Ichlov v Chief Commissioner of State Revenue

[2004] NSWADT 117

CITATION:	Ichlov v Chief Commissioner of State Revenue [2004] NSWADT 117
DIVISION:	Revenue Division
PARTIES:	APPLICANTS Morry Ichlov & Clara Ichlov
FILE NUMBER:	046002
HEARING DATES:	10/02/2004
SUBMISSIONS CLOSED:	02/10/2004
DATE OF DECISION:	06/09/2004
BEFORE:	Hole M - Judicial Member
APPLICATION:	Taxation Administration Act - liability to pay interest
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Land Tax Management Act 1956 Taxation Administration Act 1996
CASES CITED:
REPRESENTATION:	APPLICANTS In person RESPONDENT G Van Emmerick, agent
ORDERS:	That the assessment of an interest rate of 4.89% on the late lodgement for the 1999, 2000, 2001, 2002 and 2003 land tax assessments by the Chief Commissioner of State Revenue has been correctly assessed and is payable by the applicants.

Introduction

1 The applicants have applied for a review of the decision of the Chief Commissioner of State Revenue in relation to a land tax assessment by the Chief Commission of State Revenue commencing from 1993 through to 2003 in relation to property owned by the applicants.

2 The applicants are residents of Victoria and purchased the property in 1993 on behalf of their family trust. They purchased the property with the services of a solicitor in New South Wales and since that date they have managed the property from Victoria.

3 On purchase of the property the applicants paid stamp duty and submit that in view of the fact that they advised the Office of State Revenue at the time of the purchase by way of paying stamp duty that they should have been notified at that time of their land tax liability.

4 The assessment of land tax is based on information provided to the Chief Commissioner of State Revenue which discloses the basis for assessment of land tax or the basis of any exemption sought in relation to land tax. Not all purchases are subject to land tax and the Land Tax Management Act 1956 sets out the various exemptions available and the liability that is imposed. The onus is on the land owner to furnish a land tax return to the Chief Commissioner of State Revenue in accordance with the Act where the land is liable to land tax and in the event that the owner believes that there ought to be an exemption even though there may appear to be a liability then for that owner to lodge a return and seek the appropriate exemption.

5 The applicants have submitted that:

. they were unaware of any liability that they may have for the adjustment of land tax,

. they had lodged the contract for sale at the time of purchase for assessment of stamp duty,

. the lodgement for the assessment of stamp duty was sufficient for the Chief Commissioner of State Revenue to be aware of the landholding, and therefore

. the Chief Commissioner of State Revenue ought therefore not to charge any interest on the assessments that have now been made.

6 The land tax assessments for 1999 through to 2003 were issued to the applicants by the Chief Commissioner of State Revenue following his office undertaking a compliance merger project. Following the issue of the land tax assessments to the applicants, they lodged an objection with the Chief Commissioner of State Revenue in relation to the premium interest rate of 8% and the variable market rate of 4.78% being imposed.

7 The Chief Commissioner of State Revenue considered the objection to the imposition of interest by the applicants and acted promptly to remit the premium interest rate of 8% and any penalties. The Chief Commissioner of State Revenue confirmed the rate of 4.89% being a rate estimated for loss of the opportunity to have receipt of the payment on the assessments issued.

8 There is no question that the applicants would have attended to payment of the land tax assessed if they had been aware of the liability for land tax. The applicants submitted that they believed that the imposition of the interest for late lodgement was not justified as the Chief Commissioner of State Revenue had not contacted them and as they live in Victoria they were not aware of the liability. The imposition of land tax has been in existence since 1956.

9 This application has been considered solely on the basis of the written material supplied to the Tribunal by the applicants and the respondent.

10 Taking into account the remissions made by the Chief Commissioner of State Revenue in respect of the premium interest rate and any penalties I make the following order:

That the assessment of an interest rate 4.89% on the late lodgement for the 1999, 2000, 2001, 2002 and 2003 land tax assessments by the Chief Commissioner of State Revenue has been correctly assessed and is payable by the applicants.