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…

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.

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Details

AGLC: Jackson v Commissioner for Act Revenue (Administrative Review) [2025] ACAT 36
Case: [2025] ACAT 36
Decision Date: 21 May 2025

CaseChat Overview and Summary

In Jackson v Commissioner for ACT Revenue (Administrative Review), the applicant sought to challenge a reassessment of conveyance duty, penalty tax, and interest made by the Commissioner for ACT Revenue. The reassessment occurred after the Commissioner determined that the applicant was ineligible for the Home Buyer Concession Scheme (HBCS) due to exceeding the income threshold. The applicant argued that the HBCS concession was unconditional and sought an interim order to prevent tax recovery action until the proceedings were finalised. Additionally, the applicant claimed damages for $25,000. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the Commissioner's reassessment was correct or preferable and whether the applicant was entitled to an interim order or damages.

The primary legal issues were whether the applicant was eligible for the HBCS concession and, if not, whether the Commissioner's reassessment of conveyance duty was justified. The tribunal also needed to determine whether the applicant was entitled to an interim order preventing the Commissioner from recovering the tax debt and whether the applicant could claim damages. The tribunal examined the statutory framework governing the HBCS, the nature of the concession, and the Commissioner's authority to reassess tax liabilities within a specified period.

The tribunal confirmed the Commissioner's reassessment of conveyance duty, concluding that the applicant's income exceeded the HBCS threshold, rendering him ineligible for the concession. The tribunal noted that the HBCS eligibility criteria are strict and that the concession is only available for "eligible transactions." Since the applicant's income disqualified him from the scheme, he was liable to pay conveyance duty at the assessed rate. The tribunal also upheld the Commissioner's decision to impose penalty tax at 25% and dismissed the application for interest review and damages. The tribunal dismissed the application for an interim "cease and desist" order, finding that the applicant had not shown a sufficient basis for such an order.

The tribunal's final orders confirmed the Commissioner's decision regarding the assessment of conveyance duty, the imposition of penalty tax at 25%, and dismissed the application for review of the decision to impose interest. The application for damages was also dismissed. The tribunal noted that the application for interim order was dismissed at the hearing.

Orders

Orders of the court

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.

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

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 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]

Ratio Decidendi

Legal Principle Established

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