Kennedy v Commissioner for Act Revenue (Administrative Review)
[2010] ACAT 17
•31 March 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KENNEDY v COMMISSIONER FOR ACT REVENUE (Administrative Review) [2010] ACAT 17
AT 100 of 2008
Catchwords: ADMINISTRATIVE REVIEW – rates - lessee under crown lease obliged to pay - whether unregistered lessee is “owner” for rating obligations - failure by lessee to produce lease for registration - subsequent registration of a copy of the lease - liability of lessee on registration - taxation avoidance scheme to avoid paying rates
Legislation:Land Titles Act1925 (ACT) ss 14, 17, 70
Taxation Administration Act1999 (ACT) ss 8, 107A, 108
Administrative Appeals Tribunal Act 1989 (ACT)
ACT Civil and Administrative Tribunal Act2008 (ACT) s 83
Rates Act 2004 (ACT) s 16
Legislation Act2001(ACT) s 146 (2)
Planning and Development Act2007 (ACT) s 254
A.C.T. Self-Government (Consequential Provisions) Act1988 (CTH)
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT) s 6
Australian Constitution s 86
Tribunal: Mr C. Chenoweth, Member
Mr R. Watch, Member
Date of Orders: 31 March 2010
Date of Reasons for Decision: 31 March 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 100 of 2008
BETWEEN:
KURT ALIM KENNEDY
Applicant
AND:
COMMISSIONER FOR
ACT REVENUE
Respondent
Tribunal:Mr C. Chenoweth, Member
Mr R. Watch, Member
Date: 31 March 2010
ORDER
The decision under review is affirmed.
……………………………….
Mr C. Chenoweth
Member
REASONS FOR DECISION
1. This is an application made by Mr Kurt Alim Kennedy (“applicant”) to review a decision of the Commissioner for ACT Revenue (“respondent”). The decision made by the respondent was to disallow an objection to the payment of rates assessed for the 2007/2008 year in respect of the residential property known as block 6 section 45 Lyons ACT ("Property"). While the applicant and his wife are now the registered owners of the Property, at the time that the rates notice issued the crown lease under which they held, and continue to hold, their interests was not registered pursuant to the Land Titles Act 1925 (“LT Act”). The crown lease had been signed by both parties and was registrable, but the applicant had elected not to lodge it for registration with the Registrar General.
2. The applicant was issued with a rates notice by the respondent, but refused to pay it. He objected to the payment of the rates on the basis that his crown lease was not registered. This was because of this decision to not lodge the signed and stamped lease with the Registrar General. He maintained that he and his wife were not the “registered owners” upon whom the liability to pay rates devolves.
3. The applicant by letter of 1 September 2007 objected under the provisions of the Taxation Administration Act 1999 (“TA Act”) to the payment of rates and taxes. This objection was disallowed by the respondent. By a notice dated 19 December 2008, the applicant was provided with a detailed finding of fact and reasons for the decision of the respondent. The applicant sought a review of this decision.
JURISDICTION
4. The original application for review was made on 28 November 2008, to the Administrative Appeals Tribunal of the Territory. The application was made under the Administrative Appeals Tribunal Act (“AAT Act”). The matter did not proceed to a hearing in the Administrative Appeals Tribunal. The ACT Civil and Administrative Tribunal Act ("ACAT Act") came into effect on 13 February 2009.
5. As the application had not then been heard under the provisions of the AAT Act, the provisions of section 6 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 provided that the application for review was to be an application to this tribunal.
6. The administration and collection of rates and taxes in the Territory is governed by the provisions of the TA Act. As a result of the introduction of the ACAT Act, the TA Act was amended to provide as follows:
"A taxpayer in relation to whom a reviewable decision is made may apply to the ACAT for a review of the decision.” (Sec 108)
A reviewable decision is defined in section 107A of the TA Act as follows:
"A reviewable decision is a determination by the Commissioner of an objection by a taxpayer to:
(a)an assessment." (Following provisions not relevant.)
In the light of these provisions the matter is properly before the tribunal.
THE PROPERTY AND THE LEASES
8. The applicant became the sole proprietor of the Property on 17 December 1999 by transfer from the previous proprietors. On the 12 September 2002, he transferred the property to himself and his wife, Ms. Ozay Berjaoui, as joint tenants. That transfer was registered. On 6 June 2007, the applicant and his wife surrendered the Crown lease. The consideration for the surrender was expressed to be “The grant of a new crown lease”. (T document 31.) The surrender document was signed by the applicant and his wife, and was registered on 14 August 2007.
9. On 7 June 2007, the Planning and Land Authority of the Territory on behalf of the Commonwealth granted a new crown lease of the Property (“New Lease”) to the applicant and his wife, for a further term of 99 years. (T document 33). The applicant and his wife signed it. The New Lease was on the usual terms and conditions for a residential property. It is a lease granted by the Territory Planning and Land Authority on behalf of the Commonwealth for a term of 99 years. It includes clause 2 (g) which provides that the lessee covenants:
“To pay all rates and charges and other statutory outgoings assessed levied or payable in respect of the premises as and when the same fall due.”
10. This covenant in the New Lease by the applicant and his wife is not conditional upon registration. It is it is a joint and several obligation, (clause 1 (b) (ii).) The New Lease has been signed by the delegate of the Commonwealth, and by the applicant and his wife. In all respects it is in registrable form, but the applicant has chosen not to lodge it for registration.
11. The applicant advised the tribunal that he is presently holding both signed copies of New Lease but has chosen not to register them because there was no obligation on him to do so. Notwithstanding this, the Registrar General did register a copy of the New Lease on 26 November 2008, presumably pursuant to section 14 of the LT Act. Accordingly, the register of titles indicates that the applicant and his wife are the registered proprietors and have been so from 7 June 2007. The applicant disputes whether the Registrar General should have so acted, but he took no steps to join the Registrar General in these proceedings.
IMPOSITION OF RATES
12. Under the provisions of the Rates Act 2004 (“RA”) rates were assessed against the Property by the respondent.
Section 16 of the RA provides:
“(1) Rates imposed for a parcel of land are payable to the Commissioner by the owner of the parcel.”
(2) The person who is the owner of a parcel of land is liable to pay to the Commissioner the whole or any part of rates payable for the parcel that have not been paid whether the amount became payable before or after the person became the owner.”
13. “Owner” is defined in the dictionary to the RA, as:
(a) except for Part 7 -
the registered proprietor of an interest in the parcel (other than an interest in a lease granted by a person other than the Territory or the Commonwealth); or
a mortgagee in possession of the parcel; or
(iii)a person holding the parcel of land under a sublease from the territory, if the territory holds the parcel under lease from the Commonwealth; and
(b)For part seven (Deferral and rebates) – see section 45.”
It should be noted that this is an all encompassing definition, as it does not use the word “include.”
TAX AVOIDANCE SCHEME
15. The TA Act contains provisions in section 8 enabling the Commissioner to disregard a “tax avoidance scheme”. It provides as follows:
“(1) If the Commissioner is satisfied that a person has used a tax avoidance scheme, the Commissioner may
(a) determine the tax to which the person and other people would have been liable apart from the scheme, and
(b) take the action that the Commissioner considers necessary to allow assessments of tax so determined.
(2) If the Commissioner make such a determination under subsection (1), each person benefiting from the scheme is liable for tax in accordance with the determination.”
16. The TA Act provides in section 8 (5) for definitions of “scheme” and “ tax avoidance scheme”.
A “scheme” and a “tax avoidance scheme” are defined as follows:
““scheme” includes-
(a)any plan, action or conduct of a person; and
(b)any trust, agreement, arrangement or other understanding between people, whether oral or in writing, whether express or implied and whether or not it is intended to be legally binding; and
(c)any series or combination of schemes mentioned in paragraphs (a) and (b).”
“tax avoidance scheme” means a scheme by which a person obtains or seeks to obtain a reduction in, or exemption from, tax that would otherwise be payable and where, having regard to –
(a) the way in which the scheme was entered into or carried out; or
(b) the form and substance of the scheme; or
(c) the time when the scheme was entered into and the length of time during which it was carried out; or
(d) the extent to which the scheme reduces the tax that would otherwise be payable; or
(e) whether the scheme has resulted in, or can reasonably be expected to result in, a change in any person’s financial position, or in any other consequence for any person; or
(f) the nature of any connection (whether of a business, family or any other nature) between the person and a person mentioned in paragraph (e);
it would be reasonable to conclude that the person entered into or carried out the scheme principally for the purpose of obtaining the reduction in, or exemption from, tax.”
REGISTRATION OF LAND IN THE TERRITORY
17. The holding of land in the Territory, whether the land is subject to a mortgage or unencumbered ownership, is regulated by what is known as the Torrens Title system. The LT Act provides the framework, common to such systems, for the Registrar General to maintain a register of surveyed and identified blocks of land in the Territory, for the transfer or granting of security or sub-leases over them, and for all the usual incidents of the Torrens Title system.
18. Section 17 of the LT Act provides as follows:
“(1) Each grant of freehold and each grant for a term exceeding five years granted by or in the name of the Commonwealth by the territory after the commencement of this act, shall be in duplicate and in addition to the proper words shall refer to a map of the land.
(2) Both parts of the grant shall be lodged with the Registrar General, who, after registration under this act, shall deliver one part to the grantee.
(3) The registration shall be deemed to be an enrolment of record of the grant, and the enrolment shall relate back to the date of the grant, and either part of the grant when registered under this act shall be sufficient evidence of a duly enrolled grant of the land therein described to the person therein named on the date thereof.”
19. It should be noted that while section 17 (3) provides that enrolment is “sufficient evidence” of a duly enrolled grant of land, this section does not provide that this is the only evidence of a grant that can exist.
20. Section 70 of the LT Act imposes an obligation on the Registrar General
“to register in the register every Crown lease for a term of not less than 12 months granted by or in the name of the Commonwealth by entering the lease on a folio of the register”
21. Section 146 (2) of the Legislation Act 2001 provides that:
“In an act … the word must or a similar terms, used in relation to a function indicates that the function is required to be exercised.”
22. The effect of these provisions is to require the Registrar General to register a new lease of land where its term exceeds 12 months, including a crown lease arising from the surrender of an earlier crown lease.
Where the lease is registered following the surrender of an existing crown lease it takes effect from the date of the lease, and immediately after the surrender of the old lease becomes effective.
APPLICANT’S SUBMISSIONS
23. The applicant does not dispute that the respondent had the statutory duty and authority to levy rates on the Property under the powers contained in the RA, or that rates have purportedly been levied. The applicant’s contention is that he and his wife cannot be levied and are not liable to pay, because they are not the “registered owners” within the meaning of the RA. This situation has arisen because of the applicant’s decision (which he maintains he has a right to exercise) to not lodge the original signed and stamped New Lease in duplicate for registration.
24. The applicant submitted that he and his joint owner were not liable to pay rates in respect of the Property at the time that the assessment was issued because at that time the crown lease for the Property had been surrendered and the surrender document had been registered. The new crown lease had been issued, but the applicant had chosen not to produce this crown lease for registration. Accordingly the applicant and his wife could not be the "registered owner" -- a necessary status for the imposition of rates liability.
25. The applicant contends that the definition of “owner” of a property is limited to the person who is the registered proprietor. A person who would be regarded as the “owner” by the ordinary tests of a capacity to deal with, transfer, mortgage, sublease and otherwise protect the whole of the interest in the property comprised in the New Lease is not sufficient to bring them within the definition in the RA.
26. The applicant submitted that the Land Titles Practice Manual (“the Manual”) issued by the Registrar General prior to the grant of the New Lease indicated that registration of crown leases was optional. The applicant relied upon the Manual to avoid the generally accepted obligation to lodge a new lease for registration.
27. The applicant further contended that the respondent had no power to levy rates on the Property, because the Property was held by him on a lease from the Commonwealth. The imposition of rates on the Property would amount to a charge by the Territory government against the Commonwealth. The applicant contended that the Territory government had no power to bind the Commonwealth, and therefore it could not levy rates on the Property.
28. The applicant further contended that as the rates assessment notice had been issued in the name of "K A Kennedy" rather than his full name "Kurt Alim Kennedy" the assessment notice was thereby invalid. (He did not make a similar submission in relation to the description of his wife, who is referred to in the valuation notice and assessment notice as “O Berjaoui” (T docks 38 and 39) As noted above, she arguably remains jointly and severally liable with the applicant for the payment of the rates as a matter of contract, having signed the New Lease.)
29. At the hearing of this matter the applicant also contended that the imposition of rates on the Property amounted to a charge by the Territory in the nature of customs or excise duties, and that as these were the exclusive province of the Commonwealth government under section 86 of the Constitution, the attempt by the respondent on behalf of the Territory to levy rates was unconstitutional.
30. In his written submissions (Paragraphs 42 of each of the applicant’s submissions of17 March 2009 and 4 May 2009) the applicant also contended that the imposition of an obligation on him to lodge the New Lease for registration and to pay rates was a breach or limitation of his human rights as protected by international agreements, but this matter was not pressed at the hearing.
31. In documents filed with the tribunal, the applicant made serious allegations of fraud and malfeasance against various officers of the Territory government, including the respondent and members of his staff and the Registrar General. No credible evidence, or indeed evidence of any sort, was brought to support those allegations, and the tribunal completely disregards them. The Registrar General was not joined as a party to the proceedings. To make such allegations without evidence and in the case of the Registrar General without giving the person against whom the allegations are being made the opportunity to respond, reflects adversely on the credit of the appellant. This is particularly so as he is an admitted legal practitioner, who must be taken to know of the seriousness of making allegations of this nature without supporting them by credible evidence.
34. The tribunal's consideration is limited to the arguments of the applicant relating to the process of surrender of a registered crown lease in consideration of the grant of the New Lease, and the consequences of the refusal by the applicant to register that lease.
The other matters referred to in paragraphs 26-29 above are referred to later in these reasons.
35. In his submissions the applicant raised questions of whether the granting of the New Lease and the imposition of rates on the Property was beyond the power of the Territory, and/or whether this constituted an unlawful liability sought to be imposed on the Commonwealth. He requested that the question of law be referred to the Supreme Court under section 83 of the ACAT Act. This application was opposed by the respondent.
36. Directions on this request were given by President Peedom in the Administrative Appeals Tribunal on 19 January 2009. On 25 March 2009, the application in this tribunal for a reference of the question of law to the Supreme Court was refused by President Spender. That decision has not been appealed. The matter was therefore not the subject of consideration in the hearing before this tribunal.
RESPONDENT’S SUBMISSIONS
37. The reasons for the decision of the respondent in disallowing the objection against the rates assessment are set out in the letter of 7 November 2008 (T3 pages 3 – 8). The respondent contended that the failure by the applicant to produce the New Lease upon the surrender of the original crown lease did not prevent the Registrar General from exercising his obligation to register a crown lease in accordance with the LT Act, and that once that was done, the applicant became a "registered owner" within the meaning of the TA Act.
38. The respondent contended that a failure by applicant to produce the original signed and stamped crown lease for registration could not prevent the Registrar General from exercising the obligation on him by registering a copy of the document, where the Registrar General was satisfied that the terms of the document registered represented the terms of the crown lease.
39. The respondent further contended that the course of conduct of the applicant, and in particular the timing of the surrender and acceptance of the New Lease (particularly having regard to the applicant’s knowledge of the dates upon which assessments for rates were issued to owners of land in the territory) constituted a “scheme” within the meaning of section 8 (5) of the TA Act. The lack of any explanation as to why the applicant failed to register the New Lease, beyond a personal preference, the lack of any commercial advantage beyond the hope of avoiding payment of rates, amounted to a "taxation avoidance scheme" within the definition of a “tax avoidance scheme” in the same subsection.
40. The provisions of the TA Act relating to tax avoidance schemes are set out above in paragraph 16. The respondent, both in his original reasons for the decision under review and in submissions before the tribunal, submitted that the actions of the applicant in timing the surrender of the old crown lease and the acceptance of the issue of the New Lease, in circumstances where there was no commercial or financial benefit other than the avoidance of rates on the Property and the trivial gain of not paying the registration fee, coupled with the loss of indefeasibility of title and the capacity to deal with the Property that arises from registration of a crown lease under a Torrens Title system, amounted to evidence of a taxation avoidance scheme. If such a scheme existed, then the respondent is entitled to disregard it and impose taxes that would otherwise have been payable had the scheme not been in effect.
EVIDENCE OF APPLICANT
41. The applicant gave evidence personally. He said that he and his wife had voluntarily decided to surrender the old crown lease in consideration of the issue of the New Lease for a further term of 99 years from the date of surrender. He said that the reason for this was because he was concerned that he might not get a new crown lease of the Property when the old lease expired. No documentation or other evidence was tendered that might support such a proposition. The applicant made no mention of section 254 of the Planning and Development Act 2007 of the Territory in his submissions. In summary, that section provides that where a residential lease is surrendered prior to expiry and the land is not required by either the Territory or the Commonwealth for a public purpose, then under subsection (2) of that section, a further grant of a lease must be made. On the face of it, the existence of this sub section should have overcome any concern of the applicant on this point.
42. The applicant also stated that as he had not received any services from the respondent in respect of the rates he did not consider that he had an obligation to pay them. The applicant did not appear to consider that because the payment of rates provided the many municipal services (not necessarily directly in respect of the Property) that he, along with other residents of the Territory took advantage of every day, he was deriving a benefit from payment of rates.
43. The applicant considered that the unregistered crown lease gave him appropriate security, and that as the Property was unencumbered there was no mortgagee’s interest to consider.
44. The applicant is a qualified legal practitioner with a master’s degree in law, and at the time of the transactions in question was working in the office of the respondent. He acknowledged that he had access to the calendar indicating when the rates notices for various properties were sent to their owners. He did not concede that the timing of the surrender and the issue of the New Lease had been undertaken having regard to these dates. The tribunal found his evidence on this point to be unconvincing.
45. The applicant contended that the use of initials for his given names together with his surname did not amount to a correct description of him. He did acknowledge that his letter of objection dated 1 September 2007 to the delegate of the respondent gave as his name on the first page “K A Kennedy” and that he had signed the letter in the same way. He did not dispute that the description of himself in this letter and his signature were references to him. The applicant also acknowledged that there was no other person with the initials “K A” and the surname “Kennedy” living at the Property.
46. The applicant stated his view that the imposition of rates through the agency of the respondent amounted to an action by of the Territory government that imposed a liability on the Commonwealth as the owner of the freehold of the land in the territory.
47. The applicant stated that the imposition of rates by the Territory amounted to the imposition of customs and/or excise duties, because the business of leasing out land is part of the commerce of the Commonwealth, and of getting a productive use of its land. The applicant contended that the provisions of the ACT (Self-Government) Act of the Commonwealth limited the power of the Territory to impose rates on the land, due to the absence of the RA and the TA Act from the schedule to the regulations made under the self-government act. Accordingly, in his view the imposition of rates on the Property exceeded the powers of the Territory government.
48. The applicant also denied that he had been involved in a tax avoidance scheme, because he was motivated by his preference to have an unregistered crown lease and not pay the fees for registration, rather than avoid tax.
ANALYSIS OF ISSUES
49. The role of the tribunal is to determine whether the administrative body from which an appeal comes has made the “correct or preferable decision” on an administrative matter. It is not the role of the tribunal to declare legislation of the Territory to be unconstitutional, or to consider whether the legislative body of the Territory has exceeded its powers in passing legislation, because of some limitation claimed to be enshrined in the legislation of the Commonwealth. If the applicant wishes to pursue that argument, it should be in another place. Accordingly, the tribunal rejects the argument set out in paragraphs 46 and 47 above.
50. The tribunal rejects the argument that the imposition of rates on a residential property can amount to either duties of customs or exercise, which are the exclusive preserve of the Commonwealth under the Constitution. Duties of customs are those imposed on goods imported into the country. Duties of excise are those imposed on the production of goods within the country. This argument is quite misconceived.
51. The tribunal also rejects the argument that the assessment notice issued to the applicant was invalid because it used his initials and surname, rather than his full name. The applicant acknowledged that there was no other person by the initials and surname of “K A Kennedy” at the address of the Property. He also acknowledged that he had used this description of himself both in the letter of objection and in his signature. The tribunal finds that there is no merit in his argument. It is a well-known practice for notices from regulatory authorities to be issued in this way, and the tribunal cannot see how any confusion or other undesirable outcome results from the practice.
52. The applicant’s argument that he was not one of the “registered owners” of the property (and therefore subject to liability for rates under the rates act) because of his decision not to register the New Lease would, if correct, not only weaken the intention of the land registration scheme that interests in land were available for scrutiny on a public register and that there be a secure system for the registration of interests in land, but would also make the payment of rates optional. In order to come to this conclusion the tribunal would have to be satisfied that this was the proper interpretation of the legislation.
53. The wording of the definition of “owner” referred to in paragraph 13 above indicates that the definition is exhaustive: unless a person falls within the definition then notwithstanding that the general understanding of the word “owner” would be taken to include the applicant, the terms of the statute are not satisfied. However, once the New Lease was registered in whatever manner satisfied the Registrar General, registration imposes a liability for outstanding unpaid rates under section 16 (2) of the RA.
54. The obligation on the Registrar General is to register crown leases where they have been issued for a term greater than 12 months. The New Lease falls into this category. While the Registrar General did not have the original documents because the applicant had refused to lodge them for registration, it appears that the Registrar General was given a copy of the lease in its exact terms, which contains all of the information necessary for the efficient operation of the land registration system.
55. If the Registrar General was satisfied that the document given to him does represent the terms of the lease issued in respect of the Property, then it is a matter for his decision to register that document rather than being impeded in the exercise of his statutory obligation by the failure of the applicant to undertake the normal process of lodging for registration. As noted above, the applicant took no steps to join the Registrar General in this matter and the tribunal is not prepared to make an adverse finding against the Registrar General without hearing argument from that officer on the point.
56. Whatever the wording of the Manual, it cannot change the obligations on the Registrar General imposed under the LT Act, nor the obligations of holders of crown leases to comply with that act. The Manual may simply be wrong on the point. If it is, it cannot constitute some sort of estoppel or bar against the Registrar General carrying out his statutory obligations.
57. The tribunal also notes that the terms of the New Lease contained a covenant to pay the rates levied on the Property, as noted in paragraph 9 above. This obligation is not expressed to be subject to the lease being registered – it derives from the contractual obligations between the lessor and the lessee. The inclusion of this obligation and the acceptance of it by the signature of the applicant and his wife may give rise to a right in the Territory to proceed with action for recovery of the rates as a matter of contract, without the need for reliance upon the provisions of the TA Act or the RA.
58. The tribunal is not persuaded that there is any ground in law restricting the right of the Registrar General to register an exact copy of the New Lease, in the exercise of his or her obligations under the LT Act. Having done so, the provisions imposing a liability on the registered owner, the applicant and his wife, to pay all present and past rates arises by the effect of section 16(2) of the RA.
59. A tax avoidance scheme is defined by the statutory provisions set out in paragraph 16. The tribunal is satisfied that there was such a “scheme”. It consisted of the lodging of a surrender document for the old crown lease with the consideration expressed to be the granting of a new crown lease, and then the failure to lodge the New Lease in circumstances where the old crown lease had been registered, combined with the undertaking of these transactions at the time just prior to the issue of rate notices on the property by the respondent. When taken with the lack of any credible reason other than the avoidance of the nominal lodging fee, the tribunal considers that these steps constituted a “scheme” within the meaning of section 8.
60. The definition of “tax avoidance scheme” requires the tribunal to determine whether a person has obtained or seeks to obtain a reduction in or exemption from tax that would otherwise be payable, because of the existence of the scheme. In making this decision, the tribunal is directed to consider a number of matters. These include the way in which the scheme was entered into, the form and substance of the scheme, the extent to which the scheme reduces tax that would otherwise be payable, and whether the scheme has resulted in or can reasonably be expected to result in, a change in anyone’s financial position or in any other consequence of any person. Having considered these matters, it is necessary to determine concluded that the person entered into or carried out the scheme principally for the purpose of obtaining the reduction in or exemption from tax.
61. Having considered all of these matters, the tribunal is satisfied that the steps taken by the applicant constitute an attempted tax avoidance scheme. This conclusion is reinforced by the failure of the applicant to give any coherent or substantial reason for entry into the scheme. The applicant would not acknowledge the indefeasibility of title and the ordinary security and commercial advantage that results from a registered crown lease. The applicant’s failure to do so satisfies the tribunal that the only real motive for the surrender of the old crown lease and the acceptance of the New Lease was an attempt to avoid rates on the Property by means of a tax avoidance scheme.
DECISION
62. The tribunal determines that the decision of the respondent on the objection of the applicant to the assessment for rates on the Property, was correct and should be upheld. There are no discretionary reasons why the tribunal should not do so: the applicant has not argued for the exercise of discretion. The tribunal notes that to waive the rates on the Property as a matter of discretion, even if that was available, would simply be to impose obligations on other ratepayers who comply with their legal obligations, while allowing the applicant to take advantage of the many municipal services that the payment of those rates provides.
…………………………………..
Mr C. Chenoweth
Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 08/100
APPLICANT: KURT ALIM KENNEDY
RESPONDENT: COMMISSIONER FOR ACT REVENUE
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MR MOSSOP
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
OTHER: APPLICANT: SELF
RESPONDENT:
TRIBUNAL MEMBER/S: MR C. CHENOWETH, MEMBER
MR R. WATCH, MEMBER
DATE/S OF HEARING: 31 August 2009 PLACE: CANBERRA
DATE/S OF DECISION: 31 March 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
0
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