James v Commissioner for ACT Revenue - [2013] ACAT 32

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JAMES & COMMISSIONER FOR ACT REVENUE

(Administrative Review) [2013] ACAT 32

AT12/105
Catchwords: ADMINISTRATIVE REVIEW – land tax – penalty tax

List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss 68

Rates and Land Tax Act 1926(repealed), ss 22BB, 22EB, 22EC
Land Tax Act 2004, ss 9, 14, 19A, 48
Taxation Administration Act 1999, ss 31- 37, 107A, 108A

List of Cases: Commissioner for ACT Revenue v Dataflex Pty Ltd and
ACT Civil and Administrative Tribunal [2011] ACTCA 14

Tribunal: Mary-Therese Daniel – Member

Date of Orders: 8 May 2013

Date of Reasons for Decision: 8 May 2013

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 12/105

BETWEEN:
TREVOR AND DIANNE JAMES
Applicants

AND:

COMMISSIONER FOR ACT REVENUE

Respondent

TRIBUNAL: Mary-Therese Daniel – Member

DATE: 8 May 2013

ORDER
The Tribunal Orders that:
1.The decision under review is set aside and replaced with the following decision:
a)For the period 1 July 2002 – 30 June 2004 land tax be assessed in the amount of $1,736.67 and penalty tax at a rate of 200%;
b)For the period 1 July 2004 to 30 June 2012 land tax be assessed in the amount of $12, 528.65 and penalty tax at a rate of 50%.

………………………………..
Mary-Therese Daniel
Member

REASONS FOR DECISION

These proceedings consist of an application by Mr and Mrs James (applicants/owners) for review of a decision of the Commissioner for ACT Revenue (respondent/Commissioner). That decision, which was made on 30 November 2012, was to disallow the applicants’ objection to an assessment of land tax, penalty tax and interest for the period 1 July 2002 to 30 June 2012, in relation to a property they had owned in Amaroo.

The facts of this case

The background to the matter was largely agreed.
On 7 September 2001 the applicants purchased a property in Amaroo which was then leased to the Defence Housing Authority. This lease was registered with the Registrar-General at the Land Titles Office on 2 November 2001. The ACT Revenue Office has no record of receiving a Residential Land Tax notification form in relation to the property at or around this time.
The property remained leased until it was to be sold in May 2012. On 14 May 2012 the prospective purchaser’s solicitor applied to the ACT Revenue Office for a certificate of rates, land tax and other charges. In making enquiries to prepare the certificate, staff in the accounts area of the ACT Revenue Office noted that the electricity accounts for the property were in a different name to that of the registered owners, the applicants. The information as to the different names was then forwarded to the compliance area of ACT Revenue, on 15 May 2012, for investigation.
On 15 May 2012 a compliance inspector from ACT Revenue telephoned the applicant’s solicitor. Later that day a facsimile letter was sent to the solicitor, referring to the earlier telephone conversation and requesting that a land tax…

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

Case: [2013] ACAT 32
Decision Date: 8 May 2013

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal involved a dispute between James, the appellant, and the Commissioner for ACT Revenue, the respondent. The appellant sought review of the respondent’s assessment of land tax for certain periods. The central issue was the accuracy of the land tax assessments and the imposition of penalty tax by the Commissioner. The matter was heard and determined by the Administrative Appeals Tribunal in Australia.

The key legal issues before the Tribunal were whether the Commissioner correctly assessed the land tax payable by the appellant for the specified periods and whether the penalty tax rates applied were appropriate. The appellant argued that the assessments were incorrect and that the penalty tax rates were excessive. The Tribunal needed to examine the evidence, the applicable legislation, and the principles of administrative law to decide these issues.

The Tribunal found that the assessments for the periods 1 July 2002 to 30 June 2004 and 1 July 2004 to 30 June 2012 contained errors. Specifically, the land tax for the earlier period should have been $1,736.67, while for the later period, it should have been $12,528.65. Furthermore, the Tribunal concluded that the penalty tax rates imposed by the Commissioner were not in accordance with the relevant legislation. The Tribunal set aside the original decision and substituted new decisions reflecting these findings.

The Tribunal’s final orders were that the original decision be set aside and replaced with specific assessments for land tax and penalty tax for the periods in question. The appellant was to pay $1,736.67 in land tax and a penalty tax rate of 200% for the period 1 July 2002 to 30 June 2004. For the period 1 July 2004 to 30 June 2012, the appellant was to pay $12,528.65 in land tax and a penalty tax rate of 50%. This decision was made based on the Tribunal’s review of the evidence and the applicable legal principles.

Orders

Orders of the court

The Tribunal Orders that:

1. The decision under review is set aside and replaced with the following decision:

a) For the period 1 July 2002 – 30 June 2004 land tax be assessed in the amount of $1,736.67 and penalty tax at a rate of 200%;

b) For the period 1 July 2004 to 30 June 2012 land tax be assessed in the amount of $12, 528.65 and penalty tax at a rate of 50%.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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