Brenton Jeffrey James v The Commissioner of State Revenue
[2014] QCAT 96
| CITATION: | Brenton Jeffrey James v The Commissioner of State Revenue [2014] QCAT 096 |
| PARTIES: | Brenton Jeffrey James (Applicant) |
| v | |
| The Commissioner of State Revenue (Respondent) |
| APPLICATION NUMBER: | GAR432-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Gardiner |
| DELIVERED ON: | 20 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The part of the Application to Review filed 5 December 2013 in respect of the Duties Act 2001 reassessment is struck out. |
| CATCHWORDS: | STATE REVENUE – TRANSFER DUTY – WHERE reassessment of transfer duty – requirement to repay duty – WHETHER Jurisdiction of QCAT to hear Application when transfer duty has not been paid within 60 days of Notice of decision on objection Taxation Administration Act 2001 (Qld) s 69 Fleri v Commissioner of State Revenue [2012] QCAT 135 followed |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr James has applied for a review of a decision by the Commissioner of State Revenue dated 1 October 2013 to impose further transfer duty on a property he bought with his sister Elizabeth Kilbride in 2007.
Mr James and Ms Kilbride had paid transfer duty on their purchase on the basis that the first home concession for transfer duty was applicable.
By a letter to Mr James on 30 October 2012 the Commissioner explained that a reassessment had issued because in the Commissioner’s view, Mr James’s circumstances meant he had not complied with the requirements of the home concession, although it was conceded that Ms Kilbride had.
There is a separate review application concerning the first home owner’s grant which is not the subject of these reasons.
The Commissioner now seeks to strike out the review of the decision under the Duties Act 2001 under section 69(1)(b) of the Taxation Administration Act 2001 and section 47 of the QCAT Act (the striking out provision).
Simply put, the Commissioner says that a pre-condition exists for a review of the transfer duty that Mr James has not complied with. The pre-condition is found in s 69(1)(b) of the Taxation Administration Act and it requires that Mr James pay the whole of the tax and late interest payments under the assessment, before he has a right of review.
Without this pre-condition being met, the Commissioner says that QCAT has no jurisdiction to entertain the review.
Mr James totally disagrees with this reading of the section saying that nowhere in s 69 does it state that it is a pre-requisite to pay any assessment prior to an application for review by QCAT.
Unfortunately, that is exactly what s 69(1)(b) does say, and in this regard, the Commissioner’s submission is right.
69Right of appeal or review
(1)This section applies to a taxpayer if—
(a)the taxpayer is dissatisfied with the commissioner’s decision on the taxpayer’s objection; and
(b)the taxpayer has paid the whole of the amount of the tax and late payment interest payable under the assessment to which the decision relates.
(my emphasis added)
This view has been upheld in three previous decisions - Fleri v Commissioner of State Revenue[1]; Cowie v Commissioner of State Revenue[2]; and Naswari v Commissioner of State Revenue[3].
[1][2012] QCAT 612 in particular at [15].
[2][2012] QCAT 612 at [13].
[3][2013] QCAT 66 from [19] onwards.
I accept and rely on these decisions.
Mr James has not met the condition precedent. The tax and late interest has not been paid. Mr James’ right of review does not exist as this pro-condition has not been met. QCAT has no jurisdiction for this part of Mr James’ review.
The part of the application to review filed by Mr James on 5 December 2013 in respect of the Duties Act 2001 reassessment is struck out.
0
2
0