Doherty v Commissioner for Act Revenue

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL



DOHERTY v COMMISSIONER FOR ACT REVENUE

(Administrative Review) [2014] ACAT 26

AT 13/71

Catchwords:              ADMINISTRATIVE REVIEW – Home buyer concession – whether applicant had equitable interest in land other than subject property in relation to which the home buyer concession was applied for – earlier contract for purchase of a unit “off-the-plan” - contract for subject property was made when earlier contract was not completed – units plan relating to earlier contract was registered before contract for subject property was completed – in home buyer concession application, applicant answering “no” to question whether there was legal or equitable interest in land other than subject property – re-assessment of duty after investigation – whether notification of decision about amended assessment was notice of assessment – interpretation of “legal or an equitable interest in land” – meaning of “interest”, “land”, “interest in land” and “equitable interest in land” – whether earlier contract prohibiting the lodging of caveat meant that prospective purchaser had no interest in land but only had a personal right – right of prospective purchaser to enforce seller’s obligation under earlier contract: equitable rights available to prospective purchaser to enforce or protect purchaser’s interest in land under earlier contract, by specific performance or injunction - relevance of judicial decisions dealing with caveat – remission of penalty tax: tax default being beyond applicant’s control – whether Tribunal has Commissioner’s power to remit interest payable, as part of its review of Commissioner’s refusal to allow objection to re-assessment of duty

Legislation:               ACT Civil and Administrative Tribunal Act 2008, s 68
  Duties Act 1999, ss 16A and 31
Legislation Act 2001, ss 6, 29, 31, 37, 139, 140, 141, 142, 144,   148 and 168
  Real Property Act 1900 (NSW), s 74F

Taxation Administration Act 1999,

ss 14, 82, 100, 107A, 108A


    

and 139, and schedule 1 and schedule 2

Unit Titles Act 2001, s 33

Subordinate
Legislation:               Taxation Administration (Amounts Payable – Eligibility –
  Home Buyer Concession Scheme) Determination 2009 –
  DI2009-113 (repealed), s 5

Cases:   ACT Nursing Services Pty Ltd and Commissioner for ACT
  Revenue [2008] ACTAAT 29

Bahr v Nikolay No 2 (1988) 164 CLR 604

BDH Projects v ACT Planning and Land Authority
[2010] ACAT 37

Black v Garnock [2007] HCA 3
Casey v Alcock [2009] ACTCA 1
Chan v Cresdon (1989) 168 CLR 242

Chief Commissioner of Stamp Duties (NSW) v ISPT Pty Ltd (1998) 45 NSWLR 639
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1

Cooper Brookes v Commissioner of Taxation (Cth)
  (1981) 147 CLR 297

CSS Investments Pty Limited v Lopiron Pty Limited
(1987) 16 FCR 15

Forder v Cemcorp Pty Ltd [2001] NSWSC 281

Hanley v COFACTR [2012] ACAT 64

Harrison v Lidoform Pty Ltd FCA 1998, unreported

Jessica Holdings Pty Ltd v Anglican Property Trust
(1992) 27 NSWLR 14

Jokhan v COFACTR [2012] ACAT 15

KDLE Pty Ltd v COSD (Qld) (1984) 155 CLR 288

Kingsley’s Chicken Pty Limited v Queensland Investment Corporation…

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Details
Case
[2014] ACAT 26
Decision Date

CaseChat Overview and Summary

Doherty was the applicant who brought a claim against the Commissioner for Act Revenue. The dispute centred on the eligibility of the applicant for a Home Buyer Concession in relation to a specific property, the calculation of penalty tax, and the imposition of interest. The case was heard and decided by the Australian Taxation Office Administrative Appeals Tribunal.

The primary legal issues before the Tribunal involved whether the applicant was eligible for the Home Buyer Concession under the Taxation Administration (Amounts Payable – Eligibility – Home Buyer Concession Scheme) Determination 2009 – DI2009-113. The Tribunal needed to determine if the applicant had an equitable interest in land other than the subject property within two years prior to the contract, which was not required to be relinquished under a court order or any other specified agreement. Additionally, the Tribunal considered the imposition of penalty tax and interest on the applicant.

The Tribunal found that the applicant was not eligible for the Home Buyer Concession as he held an equitable interest in land other than the subject property within the relevant period. This finding upheld the respondent’s decision. However, the Tribunal set aside the penalty tax imposed by the respondent and substituted it with a decision that the applicant would pay no penalty tax. The Tribunal also confirmed the imposition of interest by the respondent.

The Tribunal made several orders. Firstly, it confirmed the decision that the applicant was not eligible for the Home Buyer Concession. Secondly, it set aside the penalty tax imposed by the respondent and ordered that the respondent remit the penalty tax paid by the applicant within 28 days. Finally, it confirmed the imposition of interest by the respondent.

Orders

Orders of the court

The Tribunal Orders that:

1.

The Tribunal being satisfied that the applicant was not eligible for the Home Buyer Concession in relation to the property being unit 237 of block 20 section 44 Belconnen (the subject property), also known as 84 Chandler Street Belconnen because he had an equitable interest in land other than the subject property within two years prior to the subject property contract, which was not required to be relinquished under an order of a court, or under any other specified agreement in accordance with section 5(1)(d)(i) of the Taxation Administration (Amounts Payable – Eligibility – Home Buyer Concession Scheme) Determination 2009 – DI2009-113, confirms that part of the respondent’s decision under review.

2.

The respondent’s decision to impose penalty tax of 25% is set aside and substituted by a decision that the Applicant is to pay no penalty tax and the Respondent is to remit the penalty tax paid by the Applicant within 28 days.

3.

The respondent’s decision to impose interest of $3,130.86 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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