Jackson v Commissioner for Act Revenue (Administrative Review) - [2025] ACAT 36

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JACKSON v COMMISSIONER FOR ACT REVENUE (Administrative Review) [2025] ACAT 36

AT 12/2025
Catchwords: ADMINISTRATIVE REVIEW – conveyance duty reassessment - where Commissioner granted a concession under the Home Buyer Concession Scheme then removed the concession after determining the applicant to be ineligible – where applicant’s income exceeded the income threshold – where applicant argued the concession was unconditional – tax default - decision to impose penalty tax at 25% and interest –correct or preferable decision - application for interim order to prevent tax recovery action until tribunal proceedings have been finalised – where applicant argued the ACT Public Sector Code of Conduct revoked section 105 of the Taxation Administration Act – damages claim for $25,000 – interim application dismissed - application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 53, 57, 68
Duties Act 1999 ss 11, 12, 16, 139, 252AA
Tax Administration Act 1999 ss 7, 9, 30, 31, 32, 33, 37, 56H, 56HA, 82, 105, 107, 107A, 108A, Schedule 1, Schedule 2

Subordinate

Legislation cited: ACT Public Sector Code of Conduct s 28
Taxation Administration (Amounts Payable - Home Buyer Concession Scheme) Determination 2021

Public Sector Management Standards 2016

Cases cited:Abbey v Mack [2010] ACTSC 140
Arcidiacono v Commissioner for ACT Revenue; Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue (No 2) [2018] ACTCA 69
Kimberley v Commissioner for ACT Revenue [2021] ACAT 101
Li v Commissioner for ACT Revenue [2024] ACAT 24
Mishel Pty Ltd v Commissioner for ACT Revenue [2025] ACAT 30

Tribunal:Senior Member E Morrison

Date of Orders:  21 May 2025
Date of Reasons for Decision:      21 May 2025
Date of Publication  4 June 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 12/2025

BETWEEN:

CARL MICHAEL JACKSON
Applicant

AND:

COMMISSIONER FOR ACT REVENUE
Commissioner

TRIBUNAL:Senior Member E Morrison

DATE:21 May 2025

ORDER

The Tribunal orders that:

The Commissioner’s decision regarding the assessment of conveyance duty is confirmed.
The Commissioner’s decision to impose penalty tax at 25% is confirmed.
The application for review of the decision to impose interest is dismissed.
The application for damages is dismissed.

And the Tribunal notes:

The application for interim “cease and desist” order was dismissed at the hearing.

………………………………..

Senior Member E Morrison

REASONS FOR DECISION

Introduction

This matter involves a decision by the Commissioner for ACT Revenue (the Commissioner) to remove a conveyance duty concession it had granted to the applicant under the Home Buyer Concession Scheme (HBCS). Conveyance duty is colloquially known as “stamp duty”.
The Commissioner revoked the concession after it became aware the applicant’s gross income exceeded the statutory income threshold in the relevant period.
The Commissioner also decided to impose penalty tax and interest.
The applicant objected to all three components of the decision, which the Commissioner part-allowed.
The applicant applied to the tribunal for review of that decision, and also sought:
(a)An “emergency” interim order that “ACT Revenue cease and desist from attempting to make my bank pay this debt until this ACAT appeal process is complete”; and
(b)$25,000 in damages for “multiple adverse actions by ACT Revenue before my right to an appeal was completed under section 28 of the ACT Public Service Code of Conduct, and falsely representing themselves as having powers under section 105 of the Taxation Administration Act 1999 that they did not in fact have”.[1]
[1] Application for Review of a Decision dated 5 February 2025, page 2
At the hearing, I declined to make the interim order on the basis that:
(a)The Tribunal had no jurisdiction to make the order;
(b)The requirements of section 53 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) had not been met; and
(c)The interim application otherwise lacked merit because the order sought would be inconsistent with the Taxation Administration Act 1999 (the TAA).
For the reasons that follow, I have also decided to dismiss the substantive application on the basis that:
(a)The assessment of conveyance duty was the correct decision, and is confirmed;
(b)The imposition of penalty tax at 25% was the correct decision, and is confirmed;
(c)The Tribunal does not have jurisdiction to review the decision to impose interest; and
(d)The Tribunal does not have jurisdiction in these proceedings to award the damages claimed.

Background

On 8 October 2021, the Australian Taxation Office (ATO) issued a notice of assessment to the applicant for the year ending 30 June 2021. The applicant’s taxable income was assessed to be [redacted].
On 23 December 2021, the applicant entered a contract to purchase a residential property in the ACT. The purchase price was $875,000. Settlement occurred on 19 January 2022.
On 24 February 2022, the Commissioner issued a reassessment notice to the applicant (the First Reassessment Notice). The notice advised that conveyance duty was assessed at $29,575 and was payable by 10 March 2022.
On 18 March 2022, the applicant submitted an online application for the HBCS. Strict eligibility criteria apply, including income thresholds. The applicant signed the following declaration at the end of his application:
I/we understand that giving false or misleading information, including giving information that is false or misleading because something has been omitted, is a serious criminal offence. I/we declare that the information provided in this form is true, correct and complete and that I/we have self-assessed my/our eligibility for this exemption, concession or change., I am/we are aware that Division 8.1 of the <i>Taxation Administration Act </i> imposes record keeping requirements, including the requirement to keep for a period of not less than give (5) years from the date of submission of this form all records that are relevant to the disclosures made by me/us and that are necessary to enable my/our tax liability to be properly assessed., I/we agree to notify the ACT Revenue Office within 30 days and provide full details of any change in circumstance that may affect my/our liability, including change of contact or address details.
On 21 March 2022, the Commissioner issued a notice of assessment to the applicant, advising that a conveyance duty concession of $29,575 had been granted (the Second Reassessment Notice).
On 12 October 2023, ACT Revenue issued a notice to the applicant under section 82 of the TAA (a s82 notice). The notice advised that ACT Revenue was investigating the applicant’s HBCS claim, and requested information and documents to assist with that investigation.
Between 6 March 2022 and 23 January 2024, ACT Revenue issued three s82 notices, tried calling the applicant at least three times, and issued two letters of demand.
On 29 January 2024, the Commissioner issued a further notice of assessment (the Third Reassessment Notice). In summary, the notice advised the HBCS concession had been removed and the applicant was liable to pay conveyance duty assessed at $29,575, that penalty tax at 50% was imposed ($14,787.50), and that interest from 3 February 2022 was also imposed ($5,948.91). The total amount payable under the notice was $50,311.41, by 19 February 2024.
On 22 February 2024, the applicant sent an email to ACT Revenue in which he objected to the assessment of conveyance duty, penalty tax and interest.
On 23 February 2024, ACT Revenue sent a reply email in which it acknowledged the objection. The email relevantly advised that lodging an objection did not cancel the applicant’s liability to pay outstanding amounts, that interest would continue to accrue, and that an adjustment would be made if the objection was later allowed in full or part.
On 1 March 2024, a statutory charge was registered on the title of the applicant’s parcel of land in respect of the debt arising under the Third Reassessment Notice.
On 29 October 2024, ACT Revenue issued a notification of tax arrears to the applicant’s bank pursuant to section 56H of the TAA. The notice advised that tax was payable in relation to the applicant’s land, that a statutory charge had been registered on the title, and that the Commissioner may recover the debt from the bank if it remained unpaid within 90 days.
On 23 December 2024, the Commissioner issued a “reviewable decision and reasons statement” to the applicant, in which it advised that the objection had been part-allowed (the Reviewable Decision).
The Commissioner:
(a)Part-allowed the objection to conveyance duty. The decision was that the Owner Occupier Concession ($1,040) was available, but the HBCS concession was not. The applicant was liable to pay conveyance duty of $28,535;
(b)Part-allowed the objection to penalty tax, by reducing the rate from 50% to 25%;
(c)Part-allowed the objection to interest, by calculating interest from 10 March 2022 instead of 3 February 2022, (together, the tax debt).
The due date for payment remained at 19 February 2024.
The applicant applied to the tribunal for review of each component of the Reviewable Decision.
The final hearing was conducted on 31 March 2025. As at that date, the applicant had not paid any portion of the tax debt, and the Commissioner had not taken any further action to recover it.

The tribunal’s jurisdiction to review decisions made under the tax law

The question of jurisdiction arises several times in this matter so it is helpful to provide a short explanation at the outset.
The tribunal is a creature of statute and can only exercise the powers conferred on it by an authorising law.
Section 9 of the ACAT Act provides:
A person may apply to the tribunal if an authorising law provides that the application may be made.
Section 57 of the ACAT Act provides:
An authorising law may set out the powers of the tribunal, and the decisions it may make on an application made under the authorising law.
Division 6.3 of Part 6 of the ACAT Act deals with the tribunal’s powers and decisions in applications for administrative review. Section 68(2) provides if the tribunal reviews a decision by an entity:
The tribunal may exercise any function given by an Act to the entity for making the decision.
In very simple terms, the Tribunal’s role in administrative review proceedings is to stand in the shoes of the original decision-maker and determine what is the correct or preferable decision on the balance of probabilities. This process is called “merits review”.
Division 10.2 of Part 10 of the TAA deals with review of decisions made under ACT tax law.[2] In summary, some decisions are reviewable by the Commissioner only,[3] some decisions may be reviewed by the tribunal after the objection process has been followed,[4] and some decisions do not attract any right to apply for review.
[2] Section 4 of the TAA prescribes certain legislation, including the Duties Act 1999, as a tax law to which the TAA applies
[3] See TAA: s 107, Schedule 2
[4] See TAA: s 107A, s 108A, Schedule 1. Before applying to the tribunal, the taxpayer must lodge an objection to the assessment or decision. It is the Commissioner’s determination of the objection that is the reviewable decision before the tribunal, not the decision for which the objection was lodged; also see Mishel Pty Ltd v Commissioner for ACT Revenue [2025] ACAT 30
Where a taxpayer lodges an objection to a reviewable decision, the burden lies with the taxpayer to show their objection should be sustained.[5]

Assessment of conveyance duty

Legislative framework
[5] TAA: s 101(3); also see Li v Commissioner for ACT Revenue [2024] ACAT 24 at [275]-[276] (Li)

Conveyance duty is a tax payable on certain transfers of property in the ACT. Liability for conveyance duty arises under Chapter 2 of the Duties Act 1999 (Duties Act).
Section 11 provides that a liability for conveyance duty arises when a transfer of dutiable property occurs. Section 12 provides that the transferee (in this case, the applicant) is responsible for paying the duty. Section 16 contains a table setting out when duty becomes payable depending on the type of transaction. Part 2.3 establishes the rate of duty payable. Put simply, unless an exemption applies, the rate of duty is calculated by reference to the dutiable value of the dutiable property, minus any concessions.
The HBCS provides a conveyance duty concession for certain buyers of residential property in the ACT. The scheme is established by disallowable instrument made under section 139 of the TAA and is administered by the ACT Revenue Office (ACT Revenue).[6]
[6] For simplicity, references to “ACT Revenue” include officers at ACT Revenue acting as delegate or authorised officer of the Commissioner.
At the time of the applicant’s property purchase, the HBCS was governed by the Taxation Administration (Amounts Payable – Home Buyer Concession Scheme) Determination 2021[7] (the HBCS Instrument).
[7] DI2021-172. The HBCS Instrument is made under the TAA, s 139
Section 7 of the HBCS Instrument provided the amount of duty payable on an eligible transaction was nil for residential properties with a dutiable value of $1 million or less.
To be an eligible transaction, a transfer of property must satisfy several criteria, including that:
(c) the total gross income of all eligible home buyers and their domestic partners (if any) in the previous financial year-
(i)is less than or equal to the income threshold; and
(ii)reflects the usual income of each person.[8]
[8] HBCS Instrument, s 6(1)
The income threshold was set at $160,000 with an additional allowance of $3,330 per each dependent child of an eligible home buyer or domestic partner.[9] In the applicant’s case, the relevant income threshold was $163,330.[10] The highest income threshold under the scheme was $176,650.[11]
[9] HBCS Instrument, s 6(1) Table 1
[10] For a home buyer with one dependent child
[11] For a home buyer with five or more dependent children
The HBCS also has other eligibility criteria, including that at least one of the transferees of the property must occupy the premises as their principal place of residence for at least one year, commencing within 12 months of the completion of the transfer or a certificate of occupancy being issued.[12]
[12] HBCS Instrument, s 6(1)(d)
Part 3 of the TAA deals with tax assessments. Section 7 provides the Commissioner may make an assessment of the tax liability of a taxpayer, while section 9 authorises the Commissioner to make one or more reassessments in the five years after the initial assessment is made. The reassessment power applies to any assessment of a tax liability, including for conveyance duty.
The tribunal’s jurisdiction to review the Commissioner’s determination of the objection to the conveyance duty assessment arises under section 252AA of the Duties Act and section 107 of the TAA.
The applicant’s case
The applicant did not dispute the amount of conveyance duty that had been assessed on his property purchase. Nor did the applicant dispute that his gross (and taxable) income exceeded the relevant threshold by a significant sum.
Instead, the applicant argued he should not have to pay conveyance duty because the First Reassessment Notice provided an “unconditional” and “irrevocable” concession:
…which extinguished all rights of ACT Revenue to reclaim any conveyancing duty from me regarding this transaction.[13]
[13] Applicant’s written submission, page 4
The applicant argued the First Reassessment Notice should be treated as a final decision because it was not marked as a “provisional document”, and did not contain any warning or caveat that the concession could be revoked. The applicant said he relied on the concession provided in the notice and would have made different financial decisions if a warning had been provided. He alleged that ACT Revenue’s actions constituted “administrative negligence” and that he suffered financial harm as a result.[14]
[14] Applicant’s written submission, page 7
In essence, the applicant seemed to argue the First Reassessment Notice created a “legitimate expectation” which entitled him to form a view that he would never have to pay conveyance duty on his property purchase, even though he did not meet the HBCS eligibility criteria at the time the concession was granted.
The Commissioner’s position
The Commissioner submitted the application should be dismissed because the applicant’s income in the relevant period simply meant he was ineligible for the HBCS concession and he was therefore liable to pay conveyance duty as assessed.
Consideration of the applicant’s case
I am not persuaded by the applicant’s case.
First, conveyance duty is a tax payable on the transfer of dutiable property unless an exemption or concession applies. The HBCS Instrument is unequivocal that the concessional rate of duty payable on a transfer of property is only available for “eligible transactions”. A purchase by a home buyer whose income exceeds the relevant income threshold is not an “eligible transaction”.
Neither the Duties Act nor the HBCS Instrument confer a discretion on the Commissioner in deciding whether or how the HBCS eligibility criteria should be applied. A home buyer is either eligible for the concession or not. If they are not eligible, they must pay the conveyance duty at the assessed rate.
The applicant’s gross income in the 2020-21 financial year exceeded even the maximum income threshold for the HBCS. As a result, his purchase was not an “eligible transaction” and he was not entitled to receive the concession.
Second, the Commissioner was expressly authorised by section 9 of the TAA to reassess the applicant’s liability for conveyance duty at any time in the five years after the initial assessment was made.
It is helpful to consider the purpose and context of the HBCS in light of that reassessment power.
The HBCS is designed to assist people with the cost of purchasing a home or residential land by charging conveyance duty at a concessional rate.[15] In many cases, access to the concession may make the difference between a prospective home buyer being able to afford, or not afford, their purchase. Eligibility is means-tested to ensure the concession is available to those most in need.
[15] Explanatory Statement to the HBCS Instrument, page 1
A home buyer’s liability for conveyance duty arises at the time the property transfer occurs.[16] In most cases, this will be the settlement date. Accordingly, the scheme requires a home buyer to apply for the concession at the time of lodging the transfer of title, unless an extension of time is approved.[17] The alternative would be to require home buyers to pay the full amount of conveyance duty and then claim a “refund” once the compliance period for all eligibility criteria has expired.
[16] Duties Act, s 11
[17] HBCS Instrument, section 8
A key feature of the scheme, therefore, is that applicants must self-assess their eligibility for the concession at the time of submitting their claim. Supporting documentation is not required at that stage. When ACT Revenue receives the application, it will issue a notice of assessment with the concession applied.[18] Home buyers must then keep their records for five years to enable the Commissioner to validate their claim and/or reassess their tax liability if they are subsequently determined to be ineligible.[19]
[18] According to information available on the ACT Revenue website.
[19] TAA, ss 9, 64
It is worth noting that a home buyer’s eligibility for the concession may change after receiving it for a number of reasons, including where they fail to meet the one-year residence requirement. Compliance with that criteria cannot be verified for up to two years after the property transfer occurs. Accordingly, it seems the scheme has been designed to balance the competing policy objectives of assisting people to purchase a home against the effective administration and enforcement of ACT tax law.

Third, the applicant’s argument regarding “legitimate expectation” is a ground of judicial review that falls outside the Tribunal’s merits review jurisdiction. Even if the Tribunal did have jurisdiction to consider such an argument, it is difficult to see how his argument as to the “unconditional” nature of the concession could succeed.
At the bottom of his HBCS application, the applicant signed a declaration stating that he:
(a)had self-assessed his eligibility for the concession;
(b)understood the obligation to retain records for five years was to enable his tax liability to be “properly assessed”; and
(c)would notify ACT Revenue within 30 days after becoming aware of any change in circumstance that may affect his eligibility.
The First Reassessment Notice also included a statement that the applicant must keep copies of supporting documents for at least five years, and that ACT Revenue may contact the applicant to verify his eligibility for the concession.
Based on those two documents alone, the applicant’s argument as to legitimate expectations would appear to lack merit.
I am not required to consider the amount of conveyance duty that has been assessed because the applicant has not objected to that part of the decision.
On that basis, I have determined the Commissioner’s decision regarding conveyance duty to be the correct decision, and is confirmed.

Assessment of penalty tax at 25%

Legislative framework

Penalty tax is imposed under Division 5.2 of the TAA.
Section 30 provides:
(1) If a tax default happens, the taxpayer is liable to pay penalty tax in addition to the amount of tax unpaid.
(2) Penalty tax imposed under this division is in addition to interest.
Tax default is defined as a failure by a taxpayer to pay, in accordance with a tax law, the whole or part of tax that the taxpayer is liable to pay.[20]
[20] TAA, Dictionary
Section 31(1) provides the default rate of penalty tax is 25% of the amount of unpaid tax.
Section 31(2) provides the Commissioner may increase the rate up to 50% in certain circumstances. Those circumstances include delayed payment, delayed provision of information relating required for an assessment, or providing information under a tax law that is incorrect, incomplete or misleading.
Section 31(5) provides that no penalty tax is payable in relation to a tax default if the Commissioner is satisfied that:
(a) the taxpayer (or a person acting on behalf of the taxpayer) took reasonable care to comply with the tax law; or
(b) the tax default happened solely because of circumstances beyond the taxpayer’s control (or if a person acted on behalf of the taxpayer, because of circumstances beyond either the person’s or the taxpayer’s control) but not amounting to financial incapacity.
Section 32 provides the amount of penalty tax imposed under section 31 is reduced by 80% if the taxpayer voluntarily notifies the Commissioner of their tax default before being informed that an investigation is to be carried out.
Section 33 provides the amount of penalty tax imposed under section 31 is reduced by 20% if, after the Commissioner notifies the taxpayer of an investigation, the taxpayer gives sufficient information to the Commissioner to enable the nature and extent of the tax default to be determined.
Section 37 provides the Commissioner may remit penalty tax by any amount if the Commissioner considers it appropriate to do so in the circumstances.
Pursuant to Schedule 1 to the TAA, a decision to impose penalty tax is reviewable by the tribunal for the purpose of sections 107A and 108A of the TAA.
The applicant’s case
The applicant submitted that penalty tax should not be imposed at all. He said this was because he should not be liable for conveyance duty in the first place, did not intend to mislead the Commissioner, and an illness and subsequent death in the family meant he was unable to deal with the “complexity” of responding to ACT Revenue’s efforts to contact him.[21]
The Commissioner’s position
[21] Transcript of proceedings dated 31 March 2025, pages 25 - 32
The Commissioner submitted that penalty tax applied because a tax default occurred.
The Commissioner further submitted that penalty tax is intended to promote compliance with the self-reporting scheme for conveyance duty and concessions such as the HBCS, and provides general deterrence of tax default. On that basis, the Commissioner’s position was the applicant’s circumstances do not justify remittance of penalty tax by any amount.
Consideration of the applicant’s case
I agree with the Commissioner that a tax default has occurred. The applicant was liable to pay conveyance duty and did not pay.
Pursuant to section 31(2) of the TAA, the default rate for penalty tax is set at 25% unless the Commissioner is satisfied as to the existence of circumstances identified in sections 31(5), 32, 33 or 37 leading to a reduction or remittance of the amount payable. The default rate operates objectively in respect of a tax default and there is no requirement for intentional or dishonest conduct by the taxpayer. [22]
[22] Sections 31(2) and 34 provide the Commissioner may increase the amount of penalty tax to 50% and 90% respectively where satisfied of certain circumstances, including the provision of incorrect, incomplete or misleading information or concealment
In this case, a reduction under sections 32 or 33 is not available because the applicant did not notify the Commissioner of his tax default, nor did he assist ACT Revenue with its investigation despite several attempts to contact him.
The question, then, is whether the Tribunal is satisfied on the balance of probabilities that the applicant took reasonable care to comply with the tax law and/or the tax default happened solely because of circumstances beyond his control. Alternatively, whether the Tribunal is considers it appropriate in all the circumstances to remit penalty tax by any amount.
The tribunal applies a high threshold to these provisions, and has consistently taken the view that responsibility lies with the taxpayer to be aware of and comply with their tax obligations.[23]
[23] See Li at [356] – [381]; Kimberley v Commissioner for ACT Revenue [2021] ACAT 101 at [53]
During the hearing, it became apparent that the applicant had received his 2020-2021 ATO Notice of Assessment several months before applying for the HBCS. When asked why or how he came to underestimate his income for the purpose of his HBCS application, the applicant said he intended to make additional, retrospective superannuation contributions to reduce his income to be within the threshold in the relevant period. The applicant advised he was still within time to make the contributions but had not yet made them because:
…I need to have enough cash available to do it and this debt hanging over my head is a factor.[24]
[24] Transcript of proceedings dated 31 March 2025, page 25 lines 12-13
It was unclear to the Tribunal whether the numbers would add up, but in any event, the applicant’s argument indicated he knew he was ineligible for the scheme at the time he applied but decided to claim the concession anyway. At the time of the hearing, the applicant had not made the intended superannuation contributions, nor had he applied to the ATO for a reassessment of his 2020-21 taxable income. He has steadfastly refused to pay his tax debt since receiving the Third Reassessment Notice. Those decisions were all entirely within his control.
In this case, the facts do not support any finding that the applicant took reasonable care to comply with the tax law or that his tax default was entirely outside his control.
In the circumstances, I also do not consider it appropriate to exercise the discretion under section 37 and remit the penalty tax by any amount.
On that basis, I am satisfied the objection to the imposition of penalty tax at 25% should be disallowed. The Commissioner’s decision is confirmed.

Decision to impose interest

Interest is imposed under 5.1 of the TAA.
Decisions about interest or remittal of interest are reviewable only by the Commissioner pursuant to section 107 and Schedule 2 of the TAA.
Accordingly, the Tribunal does not have jurisdiction to review the decision to impose interest, and that aspect of the application must be dismissed.

Application for an ‘emergency’ interim order and $25,000 compensation

Legislative framework

Division 7.3 of Part 7 of the TAA authorises the Commissioner to take debt recovery measures in relation to a tax liability, including under section 56H. In summary, section 56H provides that:
(a)Tax payable in relation to a parcel of land is a charge on the interest held by the owner of the land.
(b)The charge takes priority over a sale, conveyance, mortgage or other dealings in relation to the land.
(c)The Commissioner may notify a mortgagee or credit provider of the landowner about the debt and charge, once certain requirements have been met. Those requirements include that the Commissioner has taken reasonable steps to arrange for payment of the debt by the taxpayer. A copy of the notice must also be given to the taxpayer.
If the debt is not paid within 90 days of the notice, the Commissioner is authorised under section 56HA to require the mortgagee or credit provider to pay the debt (i.e. on behalf of the taxpayer). The mortgagee or credit provider can then recover the amount from the taxpayer as a secured debt.
Section 105 of the TAA provides:
The fact that an objection or review is pending does not affect the assessment or decision to which the objection or review relates, and tax may be recovered as if no objection or review were pending.
The ACT Public Sector Code of Conduct (Public Service Code) is a notifiable instrument made under the Public Sector Management Standards 2016.[25] Section 28 of the Public Service Code provides:
Public employees must be able to explain their actions. The reasoning behind their decisions must be transparent and available. In particular, procedural fairness requires decisions to be made without bias (or the apprehension of bias). They must be based on the evidence available and anyone who is adversely affected by the decision must be given the opportunity to provide their views and contribute their voice to the debate or discussion before matters are finalised.
[25] DI2016-251, made under the Public Sector Management Act 1994
The Tribunal’s power to make an interim order arises under section 53 of the ACAT Act. Section 53 provides:
53 Interim orders
(1) This section applies if, at any stage before an application is finalised in the tribunal—
(a) a party to an application applies to the tribunal for an order under this section; and
(b) the tribunal is satisfied that, if an order under this section were not made, the party applying for the order would be disadvantaged or suffer harm.
(2) The tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order. Note The tribunal must observe natural justice and procedural fairness (see s 7).
(3) An interim order remains in force until—
(a) the tribunal orders otherwise; or
(b) the application is finalised in the tribunal.
The applicant’s case
The applicant sought an emergency “cease and desist” order to stop the Commissioner from taking further action to recover his tax debt until the tribunal proceedings were finalised. He said that such action would impact his relationship with his bank and mortgage provider, which could lead to a denial of credit, harm to his credit rating and consequential costs.[26]
[26] Applicant’s written submission, page 10
The applicant also sought an order awarding $25,000 in damages for “adverse actions” taken by ACT Revenue on behalf of the Commissioner. No particulars of loss or damage were provided.
The crux of the applicant’s case was that:
(a)Section 105 of the TAA has been “revoked” by section 28 of the Public Service Code.
(b)That meant that officers at ACT Revenue, acting on behalf of the Commissioner, had a “legally binding obligation to allow a full appeal process to complete before any adverse actions are undertaken”.[27]
(c)Accordingly, the Commissioner’s decisions made pursuant to section 56H of the TAA to register the statutory charge and issue a notice to his banking institution were “unlawful”.
The Commissioner’s position
[27] Application for Review of a Decision, page 5
The Commissioner submitted the Tribunal had no jurisdiction to make either the interim order nor award the damages sought, and further that granting the interim order would be contrary to the scope and purpose of section 105 of the TAA.
Consideration of the applicant’s case – interim order
I declined to make the interim order for three reasons.
First, I agreed with the Commissioner that the Tribunal did not have jurisdiction to make the order.
In Abbey v Mack,[28] Cowdrey J stated that an “…order made under section 53 must be made subject to the overriding limit of ACAT’s jurisdiction”.[29]
[28] [2010] ACTSC 140
[29] [2010] ACTSC 140 at [41]
Decisions made by the Commissioner to recover tax pursuant to Division 7.3 of Part 7 of the TAA are not “reviewable decisions” by the tribunal for the purpose of section 108A of the TAA. That includes any decision to register a charge, give notice to a taxpayer’s mortgagee, or require the mortgagee to pay.
Also, section 105 does not confer any decision-making power or “function” on the Commissioner. It simply deals with the status of an assessment or decision to which an objection or review relates. Accordingly, the tribunal has no “function” to exercise under section 105 for the purpose of section 68(2) of the ACAT Act.
Accordingly, an interim order to prevent the Commissioner from taking tax recovery action pending the outcome of these proceedings would be outside the overriding limit of the tribunal’s jurisdiction.
Second, even if the Tribunal did have jurisdiction to make the order sought, I was not satisfied the requirements of section 53 of the ACAT Act had been met.
Section 53(2) confers a broad discretion on the Tribunal to make any order it considers appropriate to protect the position of the party applying for it. Before making such an order, the Tribunal must be satisfied, on the balance of probabilities, that the party applying for the order would be disadvantaged or suffer harm if the order were not made.
Section 105 of the TAA states very clearly that tax may be recovered “as if no objection or review is pending”. The legal position is the applicant has incurred a significant tax liability and the Commissioner is expressly authorised to recover the tax from him regardless of the status of these proceedings.
Section 28 of the Public Service Code does not modify or “revoke” that legal position in any way. Section 28 simply requires ACT public servants to perform their duties with transparency and procedural fairness. Section 28 can, and should, operate concurrently with section 105 of the TAA. Even if there was an inconsistency (which there is not), section 105 takes priority because it is primary legislation. I rejected the applicant’s argument in this respect.
As a result, I could not be satisfied of any disadvantage or harm to the applicant beyond the natural consequence of him incurring a significant tax debt and his continued refusal to pay.
Third, I agreed with the Commissioner that it would be entirely inappropriate to make the interim order because such an order would be inconsistent with the scope and purpose of section 105.
In Arcidiacono v Commissioner for ACT Revenue; Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue (No 2)[30], the ACT Court of Appeal upheld the Commissioner’s decision to issue garnishee notices before the taxpayers’ ACAT appeal proceedings had been heard or determined. The court determined that section 105 should be interpreted and applied as to give effect to the same policy underlying similar provisions in the Commonwealth tax administration regime. Of relevance, the court said:
69The policy underlying provisions such as s 201 of the ITAA Cth was considered by the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; 237 CLR 473, an authority to which the primary judge referred. That case concerned the construction and application of the statutory demand regime to disputed tax liabilities assessed under the Taxation Administration Act 1953 (Cth). After referring to Clyne, Gummow A-CJ, Heydon, Crennan and Kiefel JJ said:
44 But harsh though the operation of these provisions may be, they implement a long-standing legislative policy to protect the interests of the revenue. In Deputy Commissioner of Taxation v Niblett, Asprey J struck out pleas of non-liability to a recovery action instituted by the Deputy Commissioner in the Supreme Court of New South Wales while objections were pending under what was then s 185 of the Assessment Act. His Honour observed:
‘It may be thought to be a hardship that a taxpayer should have to pay the tax assessed when an objection to the assessment has not been decided upon but there are obvious financial considerations of high policy that must be weighed in the balance against cases of individual hardship with which the Commissioner through the appropriate use of his powers under [the Assessment Act] can cope … Where the meaning of the words of a statute is clear ‘it is not open to the Court to narrow or whittle down the operation of the Act by seeming considerations of hardship or of business convenience or the like’ – Attorney-General v Carlton Bank.”[31]
[30] [2018] ACTCA 69
[31] [2018] ACTCA 69 at [69]
Ultimately, the court rejected the taxpayers’ argument that the garnishee decision would have a “likely ruinous financial impact” on them, and instead found the Commissioner’s decision to be not legally unreasonable having regard to the scope and purpose of section 105.
In the present case, as difficult as the applicant’s financial predicament may be, it did not justify a departure from the clear legislative intention that the Commissioner is entitled to pursue tax debts as and when it sees fit.
Accordingly, I was not satisfied of any basis for making the “cease and desist” order and dismissed the interim application at the end of the hearing.
Consideration of the applicant’s case – claim for damages
The applicant’s claim for damages falls outside the tribunal’s administrative review jurisdiction. Neither the ACAT Act nor the TAA confers power on the tribunal to award damages in relation to the Commissioner’s decision-making processes or manner in which the Commissioner’s delegates or authorised officers give effect to such decisions.
The claim for damages is dismissed for want of jurisdiction.
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Senior Member E Morrison

Date of hearing:	31 March 2025
Solicitors for the Applicant:	Self-represented
Solicitors for the Commissioner:	Alex von Treifeldt, ACT Government Solicitor