Gonzalez v Commissioner for Act Revenue - [2015] ACAT 61

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GONZALEZ v COMMISSIONER FOR ACT REVENUE
(Administrative Review) [2015] ACAT 61

AT 14/105
Catchwords: ADMINISTRATIVE REVIEW – land tax – interest and penalty tax – interest not a reviewable decision – taxpayer did not exercise reasonable care – taxpayer engaged professionals – does not remove the taxpayer’s obligation to notify Commissioner –nature of investigation notice where time period to comply included – effect of erroneous address for the property in an investigation notice – no voluntary disclosure by taxpayer – error in address in notice may be relevant to remission of penalty tax

Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s 68

Land Tax Act 2004 (ACT) ss 14, 53
Taxation Administration Act 1999 (ACT) ss 7, 9, 32, 33, 37, 82

Cases cited:Commissioner forACT Revenue v Dataflex Pty Ltd and ACT Civil and Administrative Tribunal [2011] ACTCA 14
Alexandrou and Ors v Commissioner for ACT Revenue (Administrative Review) [2012] ACAT 66
Belconnen Premier Inn Pty Ltd v Commissioner for ACT Revenue (Administrative Review) [2014] ACAT 68
Deputy Commissioner of Taxation v Chen [2011] NSWDC 22
Deputy Commissioner of Taxation v Falzon [2008] QCA 327
Fieldhouse v Deputy Commissioner of Taxation (1989) 25 FCR 187
Deputy Commissioner of Taxation v Gruber [1998] 43 NSWLR 271
Hay v Commissioner for ACT Revenue (Administrative Review) [2014] ACAT 23
Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner for ACT Revenue (Administrative Review) [2015] ACAT 3
James v Commissioner for ACT Revenue (Administrative Review) [2013] ACAT 32
Jokhan and Jokhan v Commissioner for ACT Revenue [2012] ACAT 15
Photo Corporation of Australia Pty Ltd v Commissioner for ACT Revenue [1994] ACTAAT 91
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368
Rawson Finances Pty Ltd v Commissioner of Taxation (2013) FCAFC 26
RVO Enterprises Pty Ltd v Chief Commissioner of State Revenue [2004] NSWADT 64
Scott and Anor v Commissioner of ACT Revenue (Administrative Review) [2013] ACAT 73
Secretary Department of Social Security v Marie Carruthers [1993] AATA 330

Steele v Commissioner for ACT Revenue (Administrative Review) [2010] ACAT 15
Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493
Theron v Commissioner for ACT Revenue [2013] ACAT 33
Touma v Chief Commissioner of State Revenue (NSW) [2012] NSWADT 2
Van Brummelen v Secretary to the Department of Social Security [1995] AATA 121
Wade & Tan v Commissioner for ACT Revenue (Administrative Review) [2014] ACAT 79

Tribunal: Ms L. Beacroft –Member

Date of Orders: 18 September 2015
Date of Reasons for Decision: 18 September 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 14/105

BETWEEN:
ISABELLE GONZALEZ
Applicant

AND:
COMMISSIONER FOR ACT REVENUE
Respondent

TRIBUNAL: Ms L. Beacroft – Member

DATE: 18 September 2015

ORDER

The Tribunal Orders that:

1.The decision of 26 November 2014 not to remit penalty tax is set aside.
2.A decision remitting 40% of the penalty tax is substituted.
3.To remove doubt, the result of Order 2 is that penalty tax will be imposed at 30%…

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: [2015] ACAT 61
Decision Date: 18 September 2015

CaseChat Overview and Summary

In the matter of Gonzalez v Commissioner for ACT Revenue, the applicant contested the imposition of land tax, including penalty tax and interest, by the Commissioner. The case was heard by the Administrative Appeals Tribunal of Australia, which was tasked with reviewing the Commissioner's decision.

The primary legal issues the Tribunal had to address were whether the penalty tax imposed could be remitted, given the taxpayer's failure to exercise reasonable care, and whether the error in the address provided in the investigation notice could affect the remission of the penalty tax. Additionally, the Tribunal had to determine whether it had jurisdiction to review the interest imposed on the land tax.

The Tribunal concluded that the taxpayer did not exercise reasonable care in ensuring compliance with the land tax laws, despite engaging professionals. The error in the address on the investigation notice might be relevant to the remission of the penalty tax, but it did not remove the taxpayer's obligation to notify the Commissioner. The Tribunal found that there was no voluntary disclosure by the taxpayer. Consequently, the Tribunal set aside the decision not to remit the penalty tax and substituted a decision remitting 40% of the penalty tax, reducing the penalty tax from 50% to 30% of the land tax payable for the relevant period. However, the Tribunal dismissed the application for review of the interest on the land tax for want of jurisdiction.

Orders

Orders of the court

1. The decision of 26 November 2014 not to remit penalty tax is set aside.

2. A decision remitting 40% of the penalty tax is substituted.

3. To remove doubt, the result of Order 2 is that penalty tax will be imposed at 30% (instead of 50%) of land tax payable for the relevant period.

4. In so far as the application seeks review of interest on land tax payable for the relevant period, it is dismissed for want of jurisdiction.

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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