Kocak v The Commissioner for Act Revenue - [2018] ACAT 109

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KOCAK v THE COMMISSIONER FOR ACT REVENUE (Administrative Review) [2018] ACAT 109

AT 35/2018
Catchwords: ADMINISTRATIVE REVIEW – practice and procedure – application lodged with the Tribunal for review of an administrative decision – whether the Registrar should accept the application – the subject decision was ‘set aside’ by a previous decision of the Tribunal – whether there was a decision for the Tribunal to review – rule 9 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) – whether Tribunal should direct the Registrar to accept or reject the application
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 11, 68, 88
Taxation Administration Act 1999 ss 40, 100, 107A, 108, 108A, schedule 1, schedule 2

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) s 9
Court Procedures Rules 2006 Dictionary
Taxation Administration (Amounts Payable – Home Buyer Concession Scheme) Determination 2015 (No 2) D12015-108 s 8

Cases cited:Hagan v Commissioner for Australian Capital Revenue [2011] ACAT 4
Rose v Comcare [2005] AATA 349
Re Gee and Director-General of Social Services (1981) 58 FLR 347

List of

Texts/Papers cited: Macquarie Dictionary, 7^th Edition

Tribunal:President G Neate AM

Date of Orders:  1 November 2018
Date of Reasons for Decision:         1 November 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 35/2018

BETWEEN:
EDA EMINE KOCAK
Applicant

AND:
THE COMMISSIONER FOR ACT REVENUE
Respondent

TRIBUNAL: President G Neate AM
DATE:1 November 2018
ORDER

Pursuant to rule 9(3) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) the Tribunal orders that:

The Registrar is directed to reject the application for review of a decision lodged with the Tribunal on 12 September 2018 by Eda Emine Kocak.

………………………………..
President G Neate AM

REASONS FOR DECISION

On 12 September 2018, Eda Kocak lodged with the ACT Civil and Administrative Tribunal (the Tribunal) an application for review of a decision made by a delegate of the Commissioner for ACT Revenue, dated 6 April 2018, rejecting her application for a Home Buyer Concession (the original decision).
The registry staff of the Tribunal did not accept Ms Kocak’s application for review of that decision.
The matter has been referred to the Tribunal as presently constituted under rule 9 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2). That rule applies if a document lodged with the tribunal appears to the Registrar to be an abuse of the tribunal’s process or to be frivolous or vexatious. Rule 9(2) enables the Registrar to refer the document to the Tribunal for directions about how to deal with it. Under rule 9(3), the Tribunal may direct the Registrar to either accept the document or reject it.
The question before this Tribunal is whether the Registrar of the Tribunal should be directed to accept or reject the application for review of the original decision.
To answer that question it is necessary to consider briefly the circumstances giving rise to the application for the Home Buyer Concession (HBC), the process followed in challenging the original decision, the content of the decision of another delegate of the Commissioner for ACT Revenue (the Commissioner) dated 4 September 2018, and the legislative provisions governing reviewable decisions before the Tribunal. In considering the present application, the Tribunal has taken into account the relevant documents presented to the previous Tribunal and the parties’ submissions in the hearing of the present application.

Background

This case is the latest step in an endeavour by Ms Kocak to obtain the HBC in relation to her purchase of a unit for her residence.
The contract date for the purchase was 4 August 2015 and duty became payable before 18 August 2016.
The eligibility requirements for the HBC at the relevant time were set out in the Taxation Administration (Amounts Payable – Home Buyer Concession Scheme) Determination 2015 (No 2) D12015-108, which was in force between 3 June 2015 and 31 December 2015. That instrument provided that an application for concessional duty must be received by the Commissioner before the date duty became payable.
Ms Kocak purchased her property ‘off the plan’. In deciding when to lodge her application for the HBC, she relied on the checklist on the Home Buyer Concession Application Form for transactions between 3 June 2015 and 31 December 2015. That checklist stated that it was to be completed “to ensure that all required supporting documents have been attached” to the application. The “REQUIRED DOCUMENTATION” included “A copy of the Certificate of Occupancy and Use issued by the Environment and Planning Directorate”.[1]
[1] T-documents, pages 29, 38. Capitals used in document
The Certificate of Occupancy and Use was dated 25 May 2017.[2]
[2] T-documents, page 25
Ms Kocak’s application for the concessional duty was lodged on 6 September 2017.
A decision was made on 21 September 2017 to decline Ms Kocak’s late HBC application.[3]
[3] T-documents, page 12
On 19 October 2017, Ms Kocak emailed an objection to that decision and the reassessment of duty made on 19 September 2017.
On 6 April 2018, a delegate of the Commissioner for ACT Revenue wrote to Ms Kocak advising that he had disallowed her objection because he considered “the decision to decline your HBC was correct and the grounds supporting the objection are insufficient to reverse that decision.”[4] The delegate enclosed a detailed reasons statement.[5] That document included a description of how duty was assessed and when duty is payable on ‘off the plan’ purchase agreements. It noted that the legislative instruments concerning eligibility for the HBC are determined by the date the agreement to transfer was entered into.
[4] T-documents, page 12
[5] T-documents, pages 14-19
In summary, the delegate considered the following:
(a)the contract for sale (CFS) was for an ‘off the plan’ purchase;
(b)based upon the CFS execution date, duty became payable on 18 August 2016;
(c)the CFS and HBC applications were received by the ACT Revenue Office on 6 September 2017;
(d)the Office assessed duty on 7 September 2017;
(e)the Office reassessed duty on 19 September 2017; and
(f)the Office correctly declined the HBC application on 21 September 2017.
The delegate quoted section 8 of D12015-108 (Time limit for applications) and calculated that the application for HBC was 384 days late. He referred to Ms Kocak’s explanation as to why her application was late, noting her statements that:
(a)because of limited funds, she chose to act for herself and did the conveyancing;
(b)had the development been completed as scheduled on 23 October 2016 she could have submitted the HBC applications within 12 months of the contract signature;
(c)she relied on the Revenue Office HBC Application checklist which noted that the “Required Documentation” included a copy of the Certificate of Occupancy and Use.
The delegate was not persuaded by those statements to allow the objection. He concluded that:
(a)in order to have received the benefit of the HBC, Ms Kocak bore the onus of being aware of the obligation to lodge the application by the due date;
(b)had Ms Kocak been aware of her obligations in regard to the assessment of duty and the HBC application timeframe, the delay in completion of the unit development should not have unduly affected her;
(c)the checklist on the HBC application is used as “a guide only as to the documentation required to be submitted with a HBC application” and the “unavailability of one or more items on that list does not affect the time limit for an applicant to lodge an application.”[6]
[6] T-documents, page 19
Having identified various public contact options that the Revenue Office maintains so that people can obtain advice, the delegate stated that there was no evidence that Ms Kocak took any action before lodgement of the documents on 6 September 2017 to ascertain the due date for the lodgement of the HBC application.
The financial implication of the original decision for Ms Kocak was that, instead of paying the HBC of $20.00 she had to pay the sum of $8,299.69 (comprising applied duty of $7,496.00 and $803.69 interest) in relation to the purchase of the property.
On 1 May 2018, Ms Kocak applied to the Tribunal for a review of the original decision. Her application was given the file number AT 35/2018, which is applied to the present proceedings.
At the hearing of that application, Ms Kocak was represented by Arnold Vereschildt, who is not legally trained. The Commissioner was represented by Dr D Jarvis of counsel.
Having heard from the parties, a Senior Member of the Tribunal delivered oral reasons for decision in relation to the “threshold issue” of whether the Tribunal had jurisdiction to review the original decision. Following an earlier tribunal decision in Haganv The Commissioner for Australian CapitalRevenue,[7] the Senior Member held that the Tribunal:
(a)does not have jurisdiction to review a decision by the Commissioner to refuse an out-of-time application for the HBC; and
(b)has jurisdiction to review a decision to disallow an objection by the taxpayer to an assessment.
[7] Haganv The Commissioner for Australian CapitalRevenue [2011] ACAT 4
Because the decision under review was a decision to disallow an objection (although it seemed to turn on the outcome of the non-reviewable decision) and it appeared that the decision-maker had erroneously not considered section 40 of the Taxation Administration Act 1999, the Senior Member made the following orders:
1. The decision of the respondent dated 6 April 2018 is set aside.
2. The matter is remitted to the respondent for reconsideration by the Commissioner in accordance with section 40 of the Taxation Administration Act 1999 and any other relevant issues.
3. The respondent is to reimburse the applicant the applicant’s filing fee of $338.
In written reasons for decision dated 4 September 2018, a delegate of the Commissioner expressly referred to the Tribunal’s order 2 dated 8 August 2018. He continued:
Ms Kocak submitted that she had undertook to proceed with the conveyance herself with assistance, it seems from [Mr Vereschildt]. Additionally, Ms Kocak believed that she could not lodge the application until a Certificate of Occupancy and Use had been issued, and that this was required to be lodged with the HBC application. The question I must answer is whether it would have been unduly onerous for the application to have been lodged within time.
The delegate decided that the circumstances of this case “do not come close to approximating the … extremities” of inconvenience conveyed by the phrase ‘unduly onerous’. He concluded that the reasons for the late HBC application did not convince him that it would have been unduly onerous for Ms Kocak to have lodged the HBC application within the required period. Therefore the objection to the rejection of the late HBC application was disallowed.
On 12 September 2018, Ms Kocak lodged the application for review of a decision which is the subject of these proceedings. As noted earlier, that application is not an application to review the decision of 4 September 2018. It is an application to review the decision of 6 April 2018.
At the hearing of the present application, Mr Vereschildt acknowledged, and seemed to accept, the accuracy of the delegate’s decision in relation to section 40, but persisted in the contention that the Commissioner has yet to consider the merits of the out of time original application for the HBC.

Ms Kocak’s submissions

In Ms Kocak’s submissions, the Commissioner has yet to make a correct assessment of the duty payable on the purchase of her property. That is, the Commissioner has yet to decide whether, on the documents provided with Ms Kocak’s application, she was entitled to the HBC. Rather, the Commissioner had focused on the lateness of her application.
Ms Kocak accepts that her application for the HBC was made outside the prescribed period. Indeed, as early as 17 October 2017 she wrote to the ACT Revenue Office seeking a review of the decision made in relation to “my late” HBC Scheme application. Although on that occasion, she conceded that her application was late, she stated that she had:
…followed the checklist contain on page 6 of the ACT Home Buyer Concession Lodgement Guide and Application form which lists all REQUIRED DOCUMENTATION. The checklist does not list the exceptions to this requirement.[8]
[8] T-documents, page 20
Ms Kocak continued with that argument before this Tribunal, submitting that her late application was a result of having to comply with the requirement to provide certain documents including the Certificate of Occupancy and Use which, for the reasons outlined above, she did not receive until well outside the application period. In her submission, her application complied with the requirements for the payment of the HBC and the Commissioner had not decided whether she was entitled to the HBC. As in her letter of 17 October 2017, Ms Kocak contented that she was eligible for, and continues to be eligible for, the HBC rate of duty of $20.00.
In her submission, the requirement for the application to be made within a particular period was not clearly presented on the application form, but the mandatory documents were clearly specified. Having complied with the requirement to provide specified documents, she is concerned that the decisions to date by the Commissioner and the Tribunal have focussed on the lateness of her HBC application rather than the substance of that application, that is, the amount of duty she should have paid.
In her submission, the 6 April 2018 decision is reviewable and therefore the Tribunal should accept her application.

The Commissioner’s submissions

The Commissioner was represented at the hearing of this matter by Ms Allingham of the Government Solicitor’s Office. Given that the issue has come before this Tribunal as a reference under rule 9 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2), Ms Allingham made it clear that the Commissioner was there to assist the Tribunal rather than to submit that the application should be accepted or rejected.
The submissions made by the Commissioner were, in summary, as follows:
(a)by Order 1 of the Tribunal dated 8 August 2018, the decision dated 6 April 2018 was set aside;
(b)consequently, the decision no longer stands and there is no decision which can be the subject of the application for review of a decision dated 12 September 2018;
(c)the decision dated 4 September 2018 was made in response to Order 2 of the Tribunal dated 8 August 2018;
(d)that decision is the only potentially reviewable decision;
(e)that decision is of a type that is only reviewable by the Commissioner;
(f)consequently, that decision cannot be the subject of an application for review by the Tribunal.

Consideration

The decision in this case turns on the application of relevant statutory provisions to the circumstances summarised above.
The Tribunal was established under section 88 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The Tribunal’s powers and functions are conferred by that Act and other legislation.
The ACAT Act provides that a person may apply to the Tribunal “if an authorising law provides that the application may be made” (section 9). An ‘authorising law’ is ‘a territory law that provides that an application may be made to the tribunal’.[9] The right under an authorising law to make an application to the Tribunal is subject to any conditions stated in the authorising law (section 11).
[9] Dictionary to the ACAT Act
Section 107A(2) of the Taxation Administration Act 1999 provides that for section 9 of the ACAT Act the tax laws are taken to be a single authorising law.
Section 107A(1) describes reviewable decisions as follows:
(1) For this division, a reviewable decision is a determination by the commissioner of an objection by the taxpayer to—
(a)an assessment; or
(b)a decision mentioned in schedule 1, section 1.2; or
(c)a decision under a tax law that is prescribed under the law for this section.
The other relevant sections are sections 108 and 108A which provide as follows:
108 Reviewable decision notices
If the commissioner makes a reviewable decision in relation to an objection by a taxpayer, the commissioner must give a reviewable decision notice only to the taxpayer.
NoteThe requirements for reviewable decision notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008.
108A Applications for review
The taxpayer in relation to whom a reviewable decision is made may apply to the ACAT for review of the decision.
NoteIf a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.
The question is whether Ms Kocak’s application relates to a reviewable decision.
The Commissioner submitted that:
(a)because the decision dated 6 April 2018 was set aside by the Tribunal, there is no reviewable decision for the Tribunal to consider; and
(b)the decision dated 4 September 2018 is not a reviewable decision in relation to which an application may be made to the Tribunal because the decision is under section 40(3) of the Taxation Administration Act 1999 which falls under Schedule 2 of that Act (Decisions reviewable by Commissioner only).
In order to decide whether the first limb of the submission disposes of the matter, it is necessary to consider the effect of an order to ‘set aside’ the original decision of the Commissioner.
Section 68 of the ACAT Act prescribes what the Tribunal must do if it reviews a decision by an entity. Under section 68(3), the Tribunal must, by order:
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and–
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the Tribunal.
In the previous proceedings, the Senior Member made orders under section 68(3)(c)(ii) to set aside the original decision and remit the matter to the Commissioner for reconsideration in accordance with section 40 of the Taxation Administration Act 1999 and any other relevant issues.
The Dictionary to the Court Procedures Rules 2006 defines ‘set aside’ to mean:
(a)for a document—the document cannot be relied on in a proceeding; or
(b)for anything else—the thing stops having effect.
Although some judgments of superior courts in a range of criminal and civil proceedings note that the expression ‘set aside’ has a range of meanings, and that the interpretation that should be given in particular legislation depends on the terms of that legislation, the issue in some cases is whether set aside orders operate ab initio (that is, to retrospectively set something aside) or operate from the date of the order (that is, to take effect prospectively). The important point for the present proceedings is that the effect of an order, whether retrospective or prospective, is that it ends the decision set aside in the sense that that decision no longer operates.[10] It ‘stops having effect.’
[10] See Re Gee v Director-Generalof Social Services (1981) 58 FLR 347, 354, 3 ALD 132, 139; Rose v Comcare [2005] AATA 349 at [23], [26]
That approach is consistent with dictionary definitions such as “to annul or quash: to set aside a verdict.”[11]
[11] Macquarie Dictionary, 7th edition, page 1366
It is clear from the Court Procedures Rules 2006, relevant judgments and dictionary definitions that the effect of Order 1 made by the previous Tribunal was that the original decision no longer operated and hence had no effect.

Consequently, this Tribunal decides that there is no longer a decision dated 6 April 2018 for the Tribunal to consider. The original decision cannot be the subject of fresh proceedings before the Tribunal. Ms Kocak’s application dated 12 September 2018 should be rejected.
Given that conclusion, it is unnecessary to rule on the second limb of the Commissioner’s submissions. However, there might be some practical utility in expressing a view about it.
By Order 2 the matter was remitted to the Commissioner for reconsideration “in accordance with section 40 of the Taxation Administration Act 1999 and any other relevant issues.”
Although the reference in Order 2 to “any other relevant issues” is ambiguous in its scope, it can be interpreted by reference to the reasons for decision. The only error identified by the Senior Member was the failure by the maker of the original decision to consider section 40 of the Taxation Administration Act 1999. On that basis, it would be reasonable to infer that the person to whom the matter was remitted should have regard to section 40 in addition to any issues that would otherwise be relevant to the decision.
The delegate who made the decision dated 4 September 2018 quoted Order 2. He quoted section 40 and applied it to the circumstances of this case.
Schedule 1 of the Taxation Administration Act 1999 lists the categories of decisions about which a dissatisfied person might apply to the Tribunal under section 108A of that Act. That Schedule applies to decisions made under sections 18, 18F, 31, 34, 37, 40(5), 43, 44, 45, or 103 of the Taxation Administration Act 1999 or section 279AB(1) or (2) or section 279AD(3) of the Planning and Development Act 2007.
Schedule 2 of the Taxation Administration Act 1999 lists the categories of decisions about which a dissatisfied person might lodge an objection to the Commissioner under section 100 of that Act. Among those decisions are decisions under section 40(3) refusing to vary the time for lodging a return in accordance with the taxpayer’s application or refusing to vary the period to which a return relates in accordance with the taxpayer’s application.[12]
[12] The Dictionary to the Taxation Administration Act 1999 defines ‘return’ to mean ‘a return, statement, application, report or other record that–
(a)Is required or authorised under a tax law to be lodged by a person with the commissioner or a specified person; and
(b)Is liable to tax or records matters in relation to which there is or may be a tax liability.
The decision dated 4 September 2018:
(a)was not a decision under section 40(5); and
(b)was a decision under section 40(3).
Consequently, it was not a reviewable decision of a type which the Tribunal can review.[13]

Conclusion

[13] See Hagan v Commissioner for Australian Capital Revenue [2011] ACAT 4

The application for review of decision lodged with the Tribunal on 12 September 2018 was an application in relation to a decision that had been set aside by the Tribunal on 8 August 2018. Consequently, the subject matter of the application no longer exists. Therefore, it would not be appropriate for the Tribunal to accept the application for review. Indeed it could be characterised as an abuse of process to entertain the application.
For completeness, I note that the decision dated 4 September 2018, which was made as a consequence of the Tribunal’s orders on 8 August 2018, is not a ‘reviewable decision’ and hence the Tribunal would not accept an application for review of that decision.
It follows that the Tribunal:
(a)does not direct the Registrar to accept the application for review of a decision lodged with the Tribunal by Ms Kocak on 12 September 2018;
(b)directs the Registrar to reject that application.
I note that this decision should dispose of these proceedings before the Tribunal. Whether Ms Kocak might be able to seek some other form of review of a decision of the Commissioner in another forum is something about which she might seek legal advice.
………………………………..
President G Neate AM

HEARING DETAILS

FILE NUMBER:	AT 35/2018
PARTIES, APPLICANT:	Eda Emine Kocak
PARTIES, RESPONDENT:	Commissioner for ACT Revenue
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	President G Neate AM
DATES OF HEARING:	30 October 2018