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GWP v Chief Commissioner of State Revenue

GWP v Chief Commissioner of State Revenue

Case [2025] NSWCATAD 88 22 April 2025

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GWP v Chief Commissioner of State Revenue [2025] NSWCATAD 88
Hearing dates: 27 March 2025
Date of orders: 22 April 2025
Decision date: 22 April 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Smith, Senior Member
Decision:
The decision under review is affirmed.

Catchwords:
TAXES AND DUTIES – transfer duty – purchase of property off the plan - tax default – discretion to remit market and premium interest – exceptional circumstances – reasonable care

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Duties Act 1997 (NSW)
Taxation Administration Act 1996 (NSW)

Cases Cited:
Adams Bidco Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 702
Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107
Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue; International Hotel Services Pty Ltd v Same [2019] NSWSC 657
Chief Commissioner of State Revenue v Downer EDI Engineer Pty Ltd [2020] NSWCA 126
Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19
Downer EDI Engineering Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 743
FCT v Traviati [2012] FCA 546
Golden Age and Hannas the Rocks Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 249
Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218
Qualdweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227
Trust Co of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21
Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54

Texts Cited:
None cited

Category: Principal judgment
Parties: GWP (Applicant)
GXZ (Second Applicant)
Chief Commissioner of State Revenue (Respondent)
Representation: First Applicant (self-represented)
Second Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s): 2024/00458471
Publication restriction: The publication of the names of the First Applicant and Second Applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS fOR DECISION

Decision

The Applicants, GWP and GXZ, sought administrative review of the Respondent, the Chief Commissioner of State Revenue’s decision to charge the Applicants interest for not paying transfer duty (stamp duty) between 1 September 2024 and 5 November 2024 for their off the plan property purchase.
The Tribunal has decided to affirm the Respondent’s decision and not remit the interest charged.

Overview

On 1 June 2023, the Applicants executed a contract for an off the plan purchase of a unit in an off the plan development for over $6 million. A Development Application had first been lodged by the developer/vendor in June 2017 and approval granted in January 2018.
On 1 June 2023, a Modification Application was lodged by the vendor. There was no reference to the Modification Application in the contract executed on the same date.
On 15 May 2024, a Regional Planning Panel refused the Modification Application.
On 1 June 2024, 12 months after the execution of the contract, the Applicants’ liability to pay transfer duty arose, with a due date of 1 September…

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.

Continue reading GWP v Chief Commissioner of State Revenue

Details

AGLC: GWP v Chief Commissioner of State Revenue [2025] NSWCATAD 88
Case: [2025] NSWCATAD 88
Decision Date: 22 April 2025

CaseChat Overview and Summary

In the case of GWP v Chief Commissioner of State Revenue, the applicant sought a review of a decision by the Chief Commissioner of State Revenue regarding the refusal to remit market and premium interest on unpaid duty. The applicant, GWP, had purchased property off the plan, but due to financial difficulties, was unable to complete the purchase and subsequently defaulted on the duty owed. The legal issues in the case centred around the Chief Commissioner's discretion to remit market and premium interest in the context of a tax default, and whether the circumstances surrounding GWP's default constituted "exceptional circumstances" warranting such remission. The court was required to interpret the relevant statutory provisions and determine if the applicant's actions demonstrated reasonable care to avoid the default.

The court held that the Chief Commissioner's decision not to remit the market and premium interest was justified. The court found that GWP had failed to demonstrate that their default constituted "exceptional circumstances" as required by the statute. The court emphasised that the onus was on GWP to provide compelling evidence that their default was due to factors beyond their control and that they had exercised reasonable care. The court further noted that the mere assertion of financial hardship did not, in itself, satisfy the exceptional circumstances test. The decision was affirmed, upholding the Chief Commissioner's assessment that the applicant had not met the threshold for remission of interest.

The court's reasoning was grounded in a meticulous examination of the statutory language and the evidence presented by GWP. The applicant's arguments were scrutinised to determine if they aligned with the statutory criteria for exceptional circumstances. The court's decision underscores the importance of demonstrating exceptional circumstances to warrant remission of tax penalties, particularly in the context of property-related tax defaults. The decision serves as a reminder to taxpayers that financial difficulties alone do not automatically qualify as exceptional circumstances. The court's affirmation of the Chief Commissioner's decision highlights the stringent standards applied in such cases.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

GWP v Chief Commissioner of State Revenue [2025] NSWCATAD 88

Cases Citing This Decision

No citing cases yet.

Cases Cited

Golden Age and Hannas the Rocks Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 249
Citation 1 (Para 49)

…The Supreme Court in Golden Age and Hannas the Rocks Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 249 at [102], held the view that it is necessary to approach the remission question by recognising that the premium component is penal in nature and serves the purpose of both imposing a penalty and deter…
Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107
Citation 2 (Para 53)

…These four criteria are not exhaustive and other relevant matters may be taken into account: Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107 at [178].…
Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd [2020] NSWCA 126
Citation 3 (Para 50)

…The Supreme Court in Chief Commissioner of State Revenue v Downer EDI Engineer Pty Ltd [2020] NSWCA 126 at [151] stated “I do not think there is any limit on the power of the Chief Commission to remit interest contained in s 25 of the TAA” (TA Act).…
Downer EDI Engineering Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 743
Citation 4 (Para 54)

…is broad and must be exercised in accordance with the circumstances of the case: Downer EDI Engineering Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 743 at [185]–[186].…
Adams Bidco Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 702
Citation 5 (Para 48)

…In Adams Bidco Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 702 at [157]-[158], the Supreme Court stated that the premium component of interest is a form of penalty that is imposed in order to deter conscious and willing tax defaults, in order to dissuade taxpayers who may otherwise defer payment of t…
Bayton Cleaning Co Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 657
Citation 6 (Para 57)

…In Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue; International Hotel Services Pty Ltd v Same [2019] NSWSC 657, at [114] and [297], the Supreme Court accepted the following statement in Qualdweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227 at [95] about the co…
Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773
Citation 7 (Para 52)

…that it has good prospects of challenging the assessment, there may not be a wilful default: Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773 at [86].…
Qualweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227
Citation 8 (Para 57)

…SWSC 657, at [114] and [297], the Supreme Court accepted the following statement in Qualdweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227 at [95] about the concept of reasonable care:…
Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218
Citation 9 (Para 58)

…s" and even if an assessment was unfair or unjust, this does not affect the validity of the assessment: Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218 at [43] and [48].…
Commissioner of Taxation v Traviati [2012] FCA 546
Citation 10 (Para 56)

…tances of the taxpayer, and while this involves an objective standard, it also considers the subjective circumstances of the taxpayer: FCT v Traviati [2012] FCA 546 at [36] and [70].…
Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19
Citation 11 (Para 38)

…In Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19 at [60], the Appeal Panel considered the purpose of the market rate component of interest and stated that:…
Trust Co. of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21
Citation 12 (Para 39)

…In Trust Co of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21 at [27], the Tribunal stated that only exceptional circumstances would justify any remission of the market rate component of interest. The narrow category of circumstances would include cases where the tax default is entirely the fault…

Legislation Cited

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 15)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Duties Act 1997 (NSW)
1 mention (from Para 16)
Taxation Administration Act 1996 (SA)
1 mention (from Para 18)

Medium Neutral Citation:	GWP v Chief Commissioner of State Revenue [2025] NSWCATAD 88
Hearing dates:	27 March 2025
Date of orders:	22 April 2025
Decision date:	22 April 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Smith, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	TAXES AND DUTIES – transfer duty – purchase of property off the plan - tax default – discretion to remit market and premium interest – exceptional circumstances – reasonable care
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Duties Act 1997 (NSW) Taxation Administration Act 1996 (NSW)
Cases Cited:	Adams Bidco Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 702 Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107 Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue; International Hotel Services Pty Ltd v Same [2019] NSWSC 657 Chief Commissioner of State Revenue v Downer EDI Engineer Pty Ltd [2020] NSWCA 126 Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19 Downer EDI Engineering Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 743 FCT v Traviati [2012] FCA 546 Golden Age and Hannas the Rocks Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 249 Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218 Qualdweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227 Trust Co of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21 Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54
Texts Cited:	None cited
Category:	Principal judgment
Parties:	GWP (Applicant) GXZ (Second Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	First Applicant (self-represented) Second Applicant (self-represented) Crown Solicitor (Respondent)
File Number(s):	2024/00458471
Publication restriction:	The publication of the names of the First Applicant and Second Applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).