Irwin v Commissioner of State Revenue

[2012] QCAT 477

CITATION: Irwin v Commissioner of State Revenue [2012] QCAT 477

PARTIES:	Glenn Irwin
v
Office of State Revenue

APPLICATION NUMBER: GAR128-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Jim Allen, Member

DELIVERED ON: 24 September 2012

DELIVERED AT: Brisbane

ORDERS MADE: [1]    The application is dismissed.

CATCHWORDS:

Application to review lodged out of time – no discretion to extend time – no jurisdiction to hear application – lacked substance

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

1. Mr Irwin claimed a home transfer concession under the Duties Act 2001 on duty to be assessed in respect of a house he purchased with his fiancée.  Following a review by the Commissioner of State Revenue a reassessment of the duty with penalty and interest was issued in respect of the house.

2. Mr Irwin objected to the reassessment and a decision on the objection was made on 24 January 2012.  Mr Irwin received notice of the decision on objection on 1 February 2012.

3. Mr Irwin’s father made representation to his local member of parliament the Honourable Ros Bates and a letter from the then Under Treasurer, Mr Gerard Bradley setting out general advice in regard to the home concession was received by Mr Irwin on 22 February 2012.

4. Mr Irwin applied to review the decision on 12 April 2012.

5. The Commissioner now seeks to have the application dismissed[1] on the basis that Mr Irwin has not complied with the requirement that the application for review be made within 60 days of the date notice was given to him of the decision on objection[2].

   [1] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009.

   [2] Section 69(2)(b) of the Taxation Administration Act 2001.

6. If the relevant dates are taken as 1 February 2012 and 12 April 2012 the application was made 71 days after the first date.

7. Mr Irwin submits that the date of the letter from the under treasurer of 22 February 2012 should be the date which used to calculate the time period and on that basis the application was lodged within the 60 day period.

8. The Tribunal has a general discretion to extend time limits and waive compliance with procedural requirements[3].  As submitted by the Commissioner the Tribunal may not use this provision to extend time here.[4]

   [3] Section 61(1) of the Queensland Civil and Administrative Tribunal act 2009.

   [4] Section 69(3) of the Taxation Administration Act 2001.

9. The Tribunal is satisfied that the letter from the under treasurer is not a decision letter it merely sets out general information about the home concession and the discretions that the Commissioner may exercise in regard to penalty and interest.  The decision under review is the “Notice of decision and statement of reasons in regard to the Objection against transfer duty reassessment” dated 24 January 2012, which was received by Mr Irwin on 1 February 2012.

[10]  Mr Irwin had 60 days from that day within which to file his application for review.  This period ended on 1 April 2012.  Mr Irwin’s application which was filed in 12 April 2012 was then filed out of time.

[11]  The Tribunal accepts the Commissioner’s submissions that if the Tribunal has no jurisdiction to hear an application that would be grounds for dismissing it in accordance with previous decisions of the Tribunal[5].  In this case the Tribunal has no jurisdiction to hear the application as it has not been made in compliance with the time period set out in the applicable statute.  The application lacks substance as it cannot succeed where there is no jurisdiction to hear it.

[5]Izard v Cairns Regional Council [2010] QCAT 410; JBJ [2011] QCAT 198; Nuevo v Valuers Registration Board of Queensland [2011] QCAT 152.

[12]  Mr Irwin’s application is dismissed.