FITZPATRICK AND COMMISSIONER FOR ACT REVENUE

[2008] ACTAAT 21

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:FITZPATRICK AND COMMISSIONER FOR ACT REVENUE [2008] ACTAAT 21 (12 AUGUST 2008)

AT08/42

Catchwords:   Stamp duty –review of decision refusing application for a concession from stamp duty payable for an ‘off the plan’ purchase of a residential property – application received after expiry of time limit provided in Determination

Duties Act 1999, s 16A

Taxation Administration Act 1999, s 139

Tribunal:Mr M H Peedom, President

Date:12 August 2008

AUSTRALIAN CAPITAL TERRITORY                   )

ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT08/42
GENERAL DIVISION  )

RE:      DARREN RAY
  FITZPATRICK
Applicant

AND:   COMMISSIONER
  FOR ACT REVENUE
Respondent

DECISION

Tribunal  :          Mr M H Peedom, President

Date  :          12 August 2008

Decision  :For the reasons given orally, the decision under review is affirmed.

........................................
  President

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT08/42
GENERAL DIVISION  )

RE:      DARREN RAY
  FITZPATRICK
Applicant

AND:   COMMISSIONER
  FOR ACT REVENUE
Respondent

EX TEMPORE REASONS FOR DECISION

12 August 2008  Mr M H Peedom, President

This is an application for review of a decision of a delegate of the respondent which disallowed an objection by the applicant to a decision of the respondent.  The decision was to refuse an application made by the applicant for a concession from the stamp duty payable for an off the plan purchase of a residential property.

2.  Concessions are available to eligible home buyers under a Disallowable Instrument (No. DI2005-157) entitled ‘Taxation Administration (Amounts payable – Home Buyer Concession Scheme) Determination 2005 (No. 2)’ (“the Determination”).

3. The Determination is made pursuant to section 139 of the Taxation Administration Act 1999. The Determination applies to:

a)        …………

b)a transfer, or if the transfer is preceded by an agreement for transfer – that agreement – first executed or entered into on or after the date of effect of this instrument;

of a Crown lease.

The date of the instrument was 6 July 2005.

4.Relevantly to the issue in this case, clause 6 of the Determination provides:

6.For a grant, transfer or agreement for transfer made after 31 December 2004, an application for concessional duty under the Scheme must be received by the Commissioner for ACT Revenue before the date the duty must be paid.

5. The date by which the duty must be paid is to be ascertained from section 16A of the Duties Act 1999 which states:

(1)For section 16, liability for duty on an ‘off the plan’ purchase agreement is taken to arise if at least 1 of the following events happens:

(a)the agreement is completed;

………….

It then goes on to say at subsection (2):

(2)the duty payable on an ‘off the plan’ purchase agreement─

(a)is payable within 14 days after 1 of those events happens; and

………….

6.  The applicant entered into an agreement for the purchase of a residential property on 10 April 2006.  The transfer of the property was effected on 6 June 2006.

7.  Accordingly, to comply with clause 6 of the Determination, an application was required to be made 14 days after one of the events happened.  One of those events, that is, the completion of the agreement, happened on 6 June 2006.

8.  The application was received by the respondent on 2 October 2007.  Accordingly, it was lodged well in excess of one year after the expiry of the time provided for by clause 6.

9.  The applicant has explained the delay in making the application as attributable to the failure of a solicitor who he says he instructed to make the application on his behalf.

10.  The conduct of the solicitor in failing to make the application was evidently the subject of a complaint to the Law Society.  The Tribunal was not informed of the outcome of the complaint.  But it is unnecessary for the Tribunal to make any finding about the cause of the delay in lodging the application for concession.

11.  The Determination specifies a period of time for the lodging of an application for a concession.  The provision fixing a time limit is expressed in mandatory terms.  It is unsurprising that a time limit for seeking such a benefit would be required to be made within a specified time and not left open-ended.

12.  It sometimes happens that legislation or statutory instruments which fix a time for the doing of certain things are expressed in a way that do not make compliance with a time limit mandatory.  It is sometimes the case that where a time limit is specified there is expressly conferred a power to extend the time or an inference is able to be drawn that the time limit is not mandatory.  Clause 4(c) of the Determination is an example of this.  It allows the Commissioner to extend the time to meet the residency requirement.  Clause 4(c) is to be contrasted with clause 6.

13.  There is no such express provision in the Determination nor is there anything in it which infers that the time limit can be waived or extended.  Nor is there anything in the legislation pursuant to which the Determination was made which would allow an applicant to obtain the benefit of a concession without making an application for it in the manner prescribed.

14. Mr Fitzpatrick referred to a reference in the form of application for the concession to the power of the Commissioner to issue an amended assessment as indicating that the Commissioner had a discretion to waive or extend the time period. That power, however, is derived from express provision in the Taxation Administration Act and is expressed to be exercisable in circumstances where a concession is granted and it is subsequently determined that the application was not eligible for the concession. That is plainly not the case here.

15.  Accordingly, the Tribunal, having no greater power or discretion than that of the Commissioner, is unable to extend the time for lodging the application for a concession or to waive the requirement.

16.  Irrespective as to the merits of the applicant’s explanation for not complying with clause 6 of the Determination, the Tribunal cannot approve the application for a concession.

17.  The decision under review is therefore affirmed.

FORM 33

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________

PART A  FILE NO:      AT08/42

APPLICANT:  DARREN RAY FITZPATRICK

RESPONDENT:                   COMMISSIONER FOR ACT REVENUE

PARTY JOINED:                 N/A

COUNSEL APPEARING:    APPLICANT:

RESPONDENT:       MR D KETTLE

PARTY JOINED:     

SOLICITORS:  APPLICANT:

RESPONDENT:       ACT GOVERNMENT

SOLICITOR

PARTY JOINED:     

OTHER:APPLICANT: SELF

RESPONDENT:       

PARTY JOINED:     

TRIBUNAL MEMBER/S:   MR M H PEEDOM, PRESIDENT

DATE/S OF HEARING:      12 AUGUST 2008                  PLACE:CANBERRA

DATE OF DECISION:        12 AUGUST 2008                  PLACE: CANBERRA
______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( )               CASE NOTE ( )        UNREPORTED DECISION (X)

COMMENT:ORAL REASONS FOR DECISION GIVEN