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Chakravarty & Commissioner for ACT Revenue

Chakravarty & Commissioner for ACT Revenue

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHAKRAVARTY & COMMISSIONER FOR ACT REVENUE
(Administrative Review) [2013] ACAT 11
AA 12/51
Catchwords: ADMINISTRATIVE REVIEW – considerations in dealing with an appeal from the decision of the Original Tribunal: whether incorrect principle was applied, whether weight was given to irrelevant matters or whether insufficient weight was given to relevant matters; and whether the decision involved Wednesbury unreasonableness - First Home Owner Grant – Home buyer concession duty reassessment penalty tax – whether the appellant identified a question of fact or law

Legislation:ACT Civil and Administrative Act 2008, ss. 68, 79 & 82
First Home Owner Grant Act 2000, ss. 12, 20, 23, 47, 48 & 49
Taxation Administration Act 1999, ss. 29, 30, 31& 37

List of Regulations: Taxation Administration (Amounts Payable – Eligibility-Home Buyer Concession Scheme) Determination 2008 (No1)
List of cases: ACT Human Rights Commission v Raytheon Australia Pty Ltd [2009] ACTSC 55
Ansari v Chief Commissioner of State Revenue [2005]
NSWADT 98
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B.223
Australian Coal & Shale Employees Federation v
Commonwealth (1953) 94 CLR 621
Calcaro v Commissioner for State Revenue [2004] NSWADT
158
Chief Commissioner of State Revenue (NSW) v Ferrington (GD) [2004] NSWADTAP 41
Das v A & A Airconditioning (Civil Disputes) [2011] ACAT 52
Davey v Commissioner for ACT Revenue [2008] ACTAAT 30
House v King (1936) 55 CLR 499

McArthur v Commissioner for Act Revenue (Administrative
Review) [2012] ACAT 65
Pesi v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 61
Pundir v Chief Commissioner of State Revenue [2005]
NSWADT 108
Rauf v Chief Commissioner of State Revenue [2005] NSWADT
176
Spresian v Chief Commissioner of State Revenue [2006]
NSWADT 239
The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63
Tomasian v Chief Commissioner of State Revenue [2004]
NSWADT 37
Zhang & anor v Chief Commissioner of State Revenue [2005]
NSWADT 178

Tribunal: Ms E Symons – Presidential Member

Date of Orders:  25 February 2013
Date of Reasons for Decision:         25 February 2013
AUSTRALIAN CAPITAL TERRITORY            )
CIVIL AND ADMINISTRATIVE TRIBUNAL   )          NO:     AA 12/51
RE:SUBHANGI CHAKRAVARTY
Applicant

AND:COMMISSIONER FOR ACT REVENUE Respondent

ORDERS
Tribunal : Ms E Symons - Presidential Member
Date : 25 February 2013
The Tribunal orders that:

1. The appeal is dismissed.
...............................
Ms E Symons

Presidential Member

REASONS FOR DECISION
1.On 6 November 2012 the appellant, Ms Chakravarty, lodged an Application for Appeal from an ACAT decision dated 9 October 2012 (the Original Tribunal) [1].
[1] Chakravarty & Commissioner for ACT Revenue (Administrative Review) [2012] ACAT 68
2.The Original Tribunal’s decision confirmed two decisions; namely the decision of a delegate of the Commissioner for ACT Revenue on 7 November 2011 (the FHOG decision) to reverse the FHOG grant and to impose penalty tax and interest as the appellant had not complied with the residency requirement relating to a grant to her under the First Home Owner Grant Act 2000 (the FHOG…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] ACAT 11
Decision Date: 25 February 2013

CaseChat Overview and Summary

Subhangi Chakravarty (the appellant) appealed against a decision of the ACT Civil and Administrative Tribunal (the Original Tribunal) which upheld two decisions by the Commissioner for ACT Revenue (the respondent). The first decision reversed a grant made to the appellant under the First Home Owner Grant Act 2000 and imposed penalty tax and interest. The second decision reassessed duty payable by the appellant under the Taxation Administration Act 1999 and imposed penalty tax and interest. The appellant argued that the Original Tribunal had not considered her circumstances properly and made a number of errors in its findings of fact. The appeal was dismissed. The appellant argued that the Original Tribunal had made a number of errors in its findings of fact. The Appeal Tribunal found that the Original Tribunal was entitled to make the findings it did on the evidence before it. The Appeal Tribunal found that the Original Tribunal did not err in its consideration of penalty tax. The Original Tribunal considered the appropriate principles in deciding whether to impose a penalty tax and applied those principles to the appellant’s circumstances. The Appeal Tribunal found that the 25% penalty tax imposed was appropriate and did not exceed the scope of the penalty tax imposed by the respondent at first instance.

Orders