Hindle & Hindle v Commissioner of State Revenue
[2014] QCAT 280
| CITATION: | Hindle & Hindle v Commissioner of State Revenue [2014] QCAT 280 |
| PARTIES: | Danny Hindle (Applicant) Joanna Hindle (Applicant) |
| v | |
| Commissioner of State Revenue (Respondent) |
| APPLICATION NUMBER: | GAR268-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hughes |
| DELIVERED ON: | 18 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for review is dismissed. |
| CATCHWORDS: | ASSESSMENT OF TRANSFER DUTY – whether Tribunal has jurisdiction – where non-payment of assessed duty and interest – whether discretion to waive compliance – AGENCY – whether acceptance by conduct – where acceptance of rent – where failure to take steps to terminate tenancy Duties Act 2001 (Qld) ss 86, 88, 91 and 154 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 341, 350 and 351 Taxation Administration Act 2001 (Qld) s 69 Blomkamp v Commissioner of State Revenue [2014] QCAT 107 Fleri v Commissioner of State Revenue [2012] QCAT 135 Market Square (Queensland) Pty Ltd v Commissioner of State Revenue [2013] QCAT 578 McGahey & Anor v Body Corporate for Ambience on Burleigh CTS 37449 [2012] QCAT 61 Naswari v Commissioner of State Revenue [2013] QCAT 66 Petersen v Moloney (1951) 84 CLR 91 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
What is this Application about?
The Commissioner of State Revenue wants the Tribunal to dismiss Danny Hindle and Joanna Hindle’s application to review a reassessment their objection to reassessment of transfer duty.
Mr and Mrs Hindle have not paid the reassessed duty, penalty tax and interest. The Commissioner therefore contends that Mr and Mrs Hindle have not complied with a precondition to the Tribunal’s jurisdiction.
The Tribunal gave Mr and Mrs Hindle an opportunity to file submissions responding to the Commissioner’s application to dismiss their application.[1] Mr and Mrs Hindle have not availed themselves of this opportunity within the required time. The Tribunal must therefore proceed to decide the Commissioner’s application.
[1]Directions dated 3 October 2013 at [4].
What is the Tribunal’s jurisdiction?
An enabling Act confers jurisdiction on the Tribunal.[2] The enabling Act here is the Taxation Administration Act 2001 (Qld).
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17.
Under that Act, a taxpayer may apply to the Tribunal for review of the Commissioner’s decision on an objection.[3]
[3]Taxation Administration Act 2001 (Qld) s 69.
For the taxpayer to apply for review, the relevant provision requires:
· The taxpayer to be dissatisfied;[4]
· The taxpayer to pay the whole of the amount of the tax and late payment interest payable under the assessment;[5] and
· The taxpayer to apply within 60 days after the Commissioner notifies the taxpayer of the Commissioner’s decision on the objection.[6]
[4]Ibid s 69(1)(a).
[5]Ibid s 69(1)(b).
[6]Ibid s 69(2).
The first requirement relates to the taxpayer’s subjective view, is not contested and therefore unnecessary for me to determine.[7]
[7]Other statutory provisions unnecessarily requiring a belief were considered in McGahey & Anor v Body Corporate for Ambience on Burleigh CTS 37449 [2012] QCAT 61 at [8].
The Tribunal has previously considered the second requirement.[8] In every case, the Tribunal has dismissed the application to review where the taxpayer fails to pay the assessed duty:
The Tribunal is satisfied that the legislative intent is clear. The requirement to pay the whole of the amount of tax and late payment interest in s 69(1) is both substantive and mandatory in character and goes to the jurisdiction of QCAT. The failure to comply with this essential preliminary requirement is a jurisdictional fact sufficient to invalidate any attempt to review proceedings under s 69.[9]
[8]Fleri v Commissioner of State Revenue [2012] QCAT 135; Cowie v Commissioner of State Revenue [2012] QCAT 612; Naswari v Commissioner of State Revenue [2013] QCAT 66; Watson v Commissioner of State Revenue [2013] QCAT 577; Market Square (Queensland) Pty Ltd v Commissioner of State Revenue [2013] QCAT 578; Blomkamp v Commissioner of State Revenue [2014] QCAT 107; James v The Commissioner of State Revenue [2014] QCAT 096; Solomon v Commissioner of State Revenue [2014] QCAT 125.
[9]Market Square (Queensland) Pty Ltd v Commissioner of State Revenue [2013] QCAT 578 at [55].
The legislative intent is that taxpayers do not use the Tribunal process to avoid or defer paying duty assessed as payable in the first instance and interest. Therefore, a taxpayer cannot simply apply to the Tribunal to review a reassessment of duty without first paying the reassessed duty and interest.
The Tribunal can only waive compliance with a procedural requirement.[10] Because the provision is substantive[11] and defines the limits of the Tribunal’s jurisdiction, it is not a mere procedural requirement: the Tribunal cannot waive non-compliance.[12] Moreover, the Tribunal is expressly prohibited from extending the period of 60 days[13] for Mr and Mrs Hindle to apply to the Tribunal to allow them to pay the assessed duty and interest.
[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61(1)(c).
[11]Fleri v Commissioner of State Revenue [2012] QCAT 135 at [15].
[12]Blomkamp v Commissioner of State Revenue [2014] QCAT 107 at [5].
[13]Taxation Administration Act 2001 (Qld) s 61(3).
Mr and Mrs Hindle have not provided evidence of having paid the reassessed duty and interest. The requirement to pay the reassessed duty and interest must be strictly observed.[14] The Tribunal cannot consider any difficulty in raising funds to pay the reassessed duty and interest.[15]
[14]Cowie v Commissioner of State Revenue [2012] QCAT 612 at [13]; Market Square (Queensland) Pty Ltd v Commissioner of State Revenue [2013] QCAT 578 at [57].
[15]Fleri v Commissioner of State Revenue [2012] QCAT 135 at [20].
Mr and Mrs Hindle therefore do not have a right to review.[16] The Tribunal does not have jurisdiction.
[16]James v The Commissioner of State Revenue [2014] QCAT 096 at [12].
Mr and Mrs Hindle’s application is therefore dismissed[17]: it is misconceived[18] and lacks substance[19].
Are Mr and Mrs Hindle entitled to the principal place of residence concession even if the Tribunal had jurisdiction?
[17]Pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(2).
[18]Ibid s 47(1)(a).
[19]Ibid s 47(1)(b).
A property owner is entitled to a concessional rate of transfer duty if the owner occupies the property as their principal place of residence within one year after the transfer of the property.[20] The occupation date is the date the owner starts occupying the property as principal place of residence.[21]
[20]Duties Act 2001 (Qld) ss 86 and 91.
[21]Ibid s 88.
However, the Commissioner must reassess transfer duty without the principal place of residence concession if the owner disposes of the land before the occupation date.[22] An owner disposes of the land if the owner leases or otherwise grants exclusive possession of the land.[23]
[22]Ibid s 154(3).
[23]Ibid s 154(2).
Initially, the Commissioner applied the concessional rate of duty for a principal place of residence. However, the property was subject to a fixed term lease expiring on 3 September 2011.[24] The Commissioner therefore reassessed duty without the concession.
[24]General Tenancy Agreement dated 2 March 2011 for 4 March 2011 to 2 September 2011.
Mr and Mrs Hindle claim that on 3 June 2011, they sent the tenants a Notice To Leave the property by 3 September 2011. They claim that despite this, the tenants did not move out until 25 September 2011.
Mr and Mrs Hindle contend that the failure by the tenants to move out until 3 September 2011 “was completely out of our control”.[25]
[25]Letter DE & JJ Hindle to Office of State Revenue dated 22 May 2012.
Mr and Mrs Hindle did not seem to consider it important to provide the Tribunal with their contract to buy the property or the Notice To Leave.
Regardless, I do not accept that these circumstances were “completely out of their control” because:
· Although the Appointment of Agent is dated 4 March 2011 – two days after the execution of the Residential Tenancy Agreement – Mr and Mrs Hindle failed to take any steps to terminate either Agreement on the basis that the agent had acted without their authority. Indeed, they allowed the tenancy to continue – they received rent. This subsequent conduct evinces an intention to be bound by their agent’s acts and the Residential Tenancy Agreement;[26]
· Any errors by Mr and Mrs Hindle’s agent does not absolve them from their primary obligations as principal – an agent’s acts bind their principal;[27] and
· There is no evidence that Mr and Mrs Hindle took steps to recover possession of the property by applying to the Tribunal to terminate the tenancy and issue a Warrant of Possession.[28]
[26]Spiro v Lintern [1973] 3 All ER 319.
[27]Petersen v Moloney (1951) 84 CLR 91 at 94-5, per Dixon, Fullagar and Kitto JJ.
[28]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 341, 350 and 351.
Therefore, even if the Tribunal had jurisdiction, Mr and Mrs Hindle disposed of the property and are not entitled to the duty concession in any event.
What are the appropriate Orders?
The appropriate Order is that the application for review is dismissed.
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