Fleri v Commissioner of State Revenue
[2012] QCAT 135
•28 March 2012
| CITATION: | Fleri v Commissioner of State Revenue [2012] QCAT 135 |
| PARTIES: | Mr Alan Alexander Louis Fleri |
| v | |
| Commissioner of State Revenue |
| APPLICATION NUMBER: | GAR050-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Jim Allen, Member |
| DELIVERED ON: | 28 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for review is dismissed. 2. The directions hearing listed at 2.30pm on 24 April 2012 is vacated. |
| CATCHWORDS: | Application to review reassessment of duty – Non-payment of reassessed duty and penalty –jurisdiction of Tribunal Taxation Administration Act 2001, s 69 |
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 (QCAT Act).
REASONS FOR DECISION
Mr Fleri made an application to the Tribunal to review a decision of the Commissioner dated 29 November 2011 to disallow an objection in respect of the reassessment of duty on the acquisition of a property at 13 Dunbarton Avenue Bundall. The reassessment of duty was as a result of the Commissioner determining that Mr Fleri was not entitled to the home concession in respect of the duty.
The reassessment notice had been issued by the Commissioner on 5 July 2011 and required payment of $9,659.85 representing additional transfer duty, penalty tax and unpaid tax interest.
Mr Fleri’s application to review the decision was filed in the Tribunal’s registry on 25 January 2012.
The Commissioner has made an application to have Mr Fleri’s application for review dismissed pursuant to section 47 of the Queensland Civil and Administrative Act 2009.
The Commissioner’s Submissions
The Commissioner’s grounds for dismissal are that Mr Fleri has not complied with the requirements of section 69 of the Taxation Administration Act 2001 which is the section of that Act which gives Mr Fleri the right to apply to the Tribunal to have the Commissioner’s decision reviewed and so the jurisdiction of the Tribunal has not been enlivened.
In particular it is stated that Mr Fleri has not paid the whole amount of the tax and late payment interest under the assessment to which the decision relates as is required[1] before section 69 applies to enable the application for review to be made. A computer printout was submitted by the Commissioner which shows an amount of $10,301.05 being outstanding as at 19 February 2012.
[1] Section 69(1)(b) of the Taxation Administration Act 2001.
Relying on similar provisions in the building jurisdiction[2], it is submitted that Mr Fleri’s failure to comply with the statutory requirements expressed in section 69(1)(b) of the Taxation Administration Act 2001 cannot be cured or waived by the operation of section 61(1) of the Queensland Civil and Administrative Tribunal Act 2009, as no jurisdiction has been created, and thus the Tribunal has no reviewable decision in which procedural steps could be taken. The requirement of section 69(1)(b) is said to be a pre-condition to the right to apply for review under section 69(2) of the Taxation Administration Act 2001.
[2]Smith v Queensland Building Services Authority [2010] QCAT 448 at paras 28-29 and NQ Industries Pty Ltd v Queensland Building Services Authority [2011] QCAT 41 and Cardillo v Queensland Building Services Authority [2011] QCAT 574.
The Commissioner notes that Tribunals in general do not have power to deal with matters outside their jurisdiction, even if the parties purport to submit to the jurisdiction by consent[3].
[3] Jessup J in Australian Education Union v Lawler [2008] FCAFC 135 at para 185.
The Commissioner also submitted that the appeals provisions under the old Stamps Act 1894 had been held to be the exclusive source of the Supreme Court of Queensland’s jurisdiction in respect of appeals from decisions under that Act[4].
[4]O’Sullivan V Commissioner of Stamp Duties [1984] 1 Qd R 212 and Commissioner of State Duties b Edmunds 1 Qd R 271.
Mr Fleri’s Submissions
[10] Mr Fleri in response to the application for dismissal submitted that there was a conflict in the instructions contained in the Commissioner’s decision letter. That is when describing your rights of review under the heading Tribunal Review it is stated that the application has to be made within 60 days and there is no mention about payment of the unpaid duty.
[11] There is said to be an impasse in the legislation. On the one hand you have to apply to the Tribunal within 60 days of the notice, whilst on the other you cannot have a formal hearing whilst the very decision we are challenging remains unpaid. Mr Fleri also raises difficulties that would be encountered in raising the amount of $10,000 during the Christmas vacation and in the current economic climate.
Conclusion
[12] The Tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling act in accordance with section 17 of the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal’s jurisdiction in regard to the review of decisions of the Commissioner of State Revenue is sourced in section 69 of the Taxation Administration Act 2001. That section is stated to apply in accordance with section 69(1) of that Act if a taxpayer is dissatisfied with the Commissioner’s decision on the taxpayer’s objection and the taxpayer has paid the whole of the amount of the tax and late payment interest payable under the assessment to which the assessment relates. A right to make an application to review to the Tribunal within 60 days of the notice of decision is contained in section 69(2) of the Taxation Administration Act 2001.
[13] The Tribunal notes that in accordance with section 69(3) of the Taxation Administration Act 2001 the Tribunal does not have the power to extend the period under section 69(2) within which the taxpayer may apply to the tribunal for the review. This variation of the power of the Tribunal is in accordance with section 6(4) of the Queensland Civil and Administrative Tribunal Act 2009 which sets out the relationship between the enabling act and that Act.
[14] This indicates that the 60 day notice period is considered a procedural requirement as section 61 of the Queensland Civil and Administrative Tribunal Act 2009 deals with the Tribunals powers to extend or waive procedural requirements. This then presupposes that the Tribunal would otherwise have jurisdiction to extend the time period and thus the time period is a procedural requirement.
[15] On the other hand the requirement for the payment of the tax and penalty is part of the requirements before the section is said to apply. This then is a substantive provision and jurisdiction is not enlivened until section 69(1) has been complied with.
[16] The Tribunal accepts the Commissioner’s submission that the Tribunal has no jurisdiction to hear an application to review a decision of the Commissioner unless section 69(1) of the Taxation Administration Act 2001 has been complied with.
[17] While Mr Fleri stated that there were some inconsistencies in the instructions it is clearly set out in the letter that
Under the TAA you are only entitled to appeal or apply for review of this decision if you have paid the reassessment and any further accrued UTI in full.
[18] The two avenues of appeal to the Supreme Court of Queensland and application to the Tribunal are then set out underneath this statement so there is no inconsistency. Even if there were an issue in regard to the instructions this would only be relevant if the tribunal already had jurisdiction and an application could be made to waive non-compliance.
[19] The Tribunal is satisfied based on the material provided by the Commissioner which is not denied by Mr Fleri that the tax and penalty remains unpaid and this has not been denied by Mr Fleri and so section 69(1)(b) has not been complied with.
[20] Mr Fleri mentioned the difficulty he would have raising the funds to pay the amount due under the reassessment. The Tribunal is not able to take these matters into account as the jurisdiction of the Tribunal has not been enlivened and so it cannot consider waving the non-compliance with section 69(1) of the Taxation Administration Act 2001.
[21] As the Tribunal has no jurisdiction to hear this application the Tribunal considers the proceeding lacks substance in accordance with section 47(1) of the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal will dismiss the application to review in accordance with section 47(2) of the Queensland Civil and Administrative Tribunal Act 2009.
[22] The Tribunal orders that
a)the application for review is dismissed; and
b)the directions hearing listed at 2.30pm on 24 April 2012 is vacated.
15
3
0