Kuo v Commissioner of State Revenue

[2022] QCAT 25

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kuo v Commissioner of State Revenue [2022] QCAT 25

PARTIES:

HELEN KUO

(applicant)

v

COMMISSIONER OF STATE REVENUE

(respondent)

APPLICATION NO/S:

GAR245-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

12 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

The applicant’s amended Application for miscellaneous matters dated 18 October 2021 as far as it concerns an application to include land tax assessment for the years 2020-2021 and 2021-2022 in existing review GAR245-21 is dismissed.

CATCHWORDS:

PRACTICE AND PROCEDURE – TAXATION AND REVENUE – application to join appeal against recent assessments of land tax to existing appeal

Acts Interpretation Act 1954 (Qld) schedule 1

Duties Act 2001(Qld)
Land Tax Act 2010 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 17, s 18

Taxation Administration Act 2001 (Qld), s 3, s 6, part 6 schedule 2.

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

1. On 8 April 2021 Ms Kuo filed an application in the Tribunal to review decisions made by the Office of State Revenue (OSR) to:

   (a)assess her liability for land tax under the Land Tax Act 2010 (Qld) for the financial years 2016-17 to 2019-20; and

   (b)reassess transfer duty under the Duties Act 2001 (Qld) on her purchase of a property at Mount Gravatt.

2. The parties have filed written submissions about those matters.

3. More recently, in an amended Application for miscellaneous matters filed on 18 October 2021, Ms Kuo has applied to the Tribunal for further land tax assessments to be included in the existing review, described in the amended Application as follows:

   2020-2021 $17,998.24 [due December 2021.]

   2021-2022 $19,098.24. 

4. The OSR has opposed that application.

5. The amended Application also sought an order from the Tribunal to include further statements and evidence in the existing review. That part of the amended application will be determined by the Member who hears the substantive review.

6. This decision is limited to that part of the amended Application which seeks to include new land tax assessments in the existing review. For reasons which follow, I have decided to dismiss that part of the amended Application for miscellaneous matters.

Statutory framework for review of revenue decisions by the OSR

1. The statutory vehicle through which a taxpayer may apply to the Tribunal for review of an assessment of State tax is part 6 (‘Objections, reviews and appeals') of the Taxation Administration Act 2001 (Qld). The purpose of the Taxation Administration Act is to provide a general statutory mechanism for the administration and enforcement of a 'revenue law’[1] which includes the Land Tax Act.[2]

   [1]Section 3(1).

   [2]Section 6(4).

2. Section 63(1) contained in part 6 confers a right to a taxpayer objection to an assessment of tax in the following terms:

   63 Right to object - assessments

   (1)   A taxpayer who is dissatisfied with an original assessment, other than a compromise assessment, may object to the assessment.

3. The term ‘original assessment' is defined in the Dictionary (schedule 2) to the Taxation Administration Act relevantly in relation to land tax, as a tax for a matter in relation to a particular period, to mean the first assessment of the taxpayer’s liability for tax for that period.

4. A 'tax' is relevantly defined in the Dictionary to the Act to mean a 'primary tax’. That term is also defined in the Dictionary, relevantly to mean a tax imposed under a 'revenue law', in this case, the Land Tax Act.

5. Section 65 lists several requirements for there to be a valid objection (since s 65(1) uses the word 'must').

6. Following a valid objection being made, s 67 requires[3] the OSR[4] to make a decision to allow the objection completely or partly or disallow it. The OSR must give written notice to the objector, of the OSR decision on the objection.[5]  

   [3]See again, use of the word 'must'.

   [4]The provisions of the Taxation Administration Act use the term 'commissioner' meaning the Commissioner of State Revenue (see the definition of ‘commissioner' in the Dictionary), but the acronym OSR is a convenient description of that position.

   [5]Section 68.

7. The taxpayer’s right of review to the Tribunal is conferred by s 69. Section 69(1) provides that s 69 applies to a taxpayer if:

   (a)the taxpayer is dissatisfied with the OSR decision on the taxpayer’s objection; and

   (b)for an objection under s 63, the taxpayer has paid the whole of the amount of the tax and late payment interest payable under the assessment to which the decision relates.

8. Section 69(2) then relevantly provides that:

   (2)   The taxpayer may, within 60 days after notice is given to the taxpayer of the [OSR’s] decision on the objection—

   (a)…

   (b)apply, as provided under the QCAT Act,[6] to QCAT for a review of the [OSR’s] decision.

   [6]Defined in schedule 1 of the Acts Interpretation Act 1954 to mean the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).

9. Section 69(2) therefore requires, as a prerequisite to a taxpayer applying to the Tribunal for a review, that there be an OSR decision on the taxpayer’s objection.

Ms Kuo’s submissions

1. In her amended Application for miscellaneous matters, Ms Kuo explained that she had lodged an objection to the OSR on 18 October 2021 for the 2020-2021 land tax assessment. In listing her reasons for this part of the amended Application, Ms Kuo explained that:

   These above assessments were issued on the 13th September 2021 and mentioned in the 'Applicant’s further statement of evidence and other evidence' QCAT submission on the 22nd September 2021 but not on the original application that was submitted in April 2021.

2. Otherwise, her submissions in the amended Application are directed to her substantive review and not the application for joining the additional land tax assessments to her substantive review. She does not address the provisions of the Taxation Administration Act, part 6 about ‘Objections, reviews and appeals’.

OSR’s submissions

1. In a written submission filed on 18 November 2021, the OSR submits that the part of the amended Application for miscellaneous matters which seeks to join the ‘land tax assessments’ for the years 2020-2021 and 2021-2022 should be refused because the Tribunal does not have jurisdiction.

2. The key facts relied upon by the OSR are that Ms Kuo’s land tax assessment for the financial year 2020-2021 was issued on 13 September 2021. Ms Kuo objected to that assessment only on 18 October 2021. The OSR has not yet decided that objection. The land tax assessment for the financial year 2021-2022 has not yet been issued.[7]

   [7]OSR’s submissions dated 18 November 2021, paragraphs [5]-[6].

3. Ms Kuo’s submission that the land tax assessment for the financial year 2021-2022 was one of the assessments issued on 13 September 2021 therefore appears to be in error.

4. The OSR submits that the ‘additional land tax assessments’ that Ms Quo wishes to include in the current review are not 'reviewable decisions' within the meaning of ss 17 and 18 of the QCAT Act, and that taken together, those two provisions mean that the Tribunal may only exercise its review jurisdiction with respect to a 'reviewable decision’.

5. I agree. Section 17 of the QCAT Act provides that Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an ‘enabling Act’ to review a decision made or taken to have been made by another entity under such an Act. An 'enabling Act' is defined in s 6(2) of the QCAT Act relevantly to mean an Act, other than the QCAT Act itself, that confers review jurisdiction on the Tribunal. The Taxation Administration Act is an Act of that kind, as illustrated by the provisions in part 6 of that Act set out above, and in particular s 69(2).

6. The OSR submits that:

   Critically, it is only the [OSR's] decision on the taxpayer’s objection which is made a 'reviewable decision' by s 69 of the [Taxation Administration Act].[8]

   [8]OSR’s submissions, paragraph [13].

7. OSR also submits that no right to apply to the Tribunal arises unless and until the taxpayer has first received the tax assessment, objected to it and the OSR has decided the objection. Since there has been no objection decision made for the 2020-2021 land tax assessment, there is no 'reviewable decision'. Further, no land tax assessment has been issued for the financial year 2021-2022 as of 18 November 2021. There is therefore no decision, reviewable or otherwise for land tax for that year.[9]

   [9]OSR’s submissions, paragraphs [13]-[15].

8. I agree with those submissions. There is no ‘reviewable decision' for land tax for the years 2020-2021 and 2021-2022. The relevant part of the amended Application for miscellaneous matters dated 18 October 2021 is dismissed.