Marks & Anor v Commissioner for ACT Revenue - [2018] ACAT 84

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MARKS & ANOR v COMMISSIONER FOR ACT REVENUE (Administrative Review) [2018] ACAT 84

AT 61/2017
Catchwords: ADMINISTRATIVE REVIEW – land tax – penalty tax – owner’s failure to tell the Commissioner in writing that their residential property was rented – communication to the Commissioner in writing that the property was under management of a real estate agent – no inquiry by the Commissioner regarding rental – taxpayer reasonably believed that land tax had been paid – investigation 10 years after the event – meaning of ‘failure to take reasonable care’ – meaning of “took reasonable care’ – ‘tax default’ includes non-compliance with obligation to notify in writing under section 14 of the Land Tax Act 2014 – burden of proof on taxpayer – Commissioner should not have been satisfied that taxpayer failed to take reasonable care – penalty tax reduced to default rate – interest not reviewable by Tribunal – decision varied

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (No 2), amdt 1.453
Land Tax Act 2004 ss 9, 14, 19A,
Land Tax (Interest and Penalty) Amendment Act 2007
Legislation Act 2001 s 250
Migration Act 1958 (Cth) ss 4, 22AA
Taxation Administration Act 1999 ss 29, 31, 32, 37, 64, 82, 101
Taxation Administration Act 1953 (Cth) s 284-90(1), Sch 1, item 3, 14ZZK
Territory Records Act 2002 s 16

Subordinate
Legislation cited: Miscellaneous Taxation Ruling MT2008/1

Cases cited:A Plus Plumbing and Building Services Pty Ltd & Commissioner for ACT Revenue [2012] ACAT 76
Aurora Developments Pty Ltd v Commissioner of Taxation (No 2) [2011] FCA 1090
Bushell v Repatriation Commission [1992] HCA 47
Hanley & Commissioner for ACT Revenue [2012] ACAT 64
Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner for ACT Revenue [2014] ACAT 31
James v Commissioner for ACT Revenue [2013] ACAT 32
Jokhan and Jokhan & Commissioner for ACT Revenue [2012] ACAT 15
Metropolitan Gas Co v Federal Commissioner of Taxation (1932) 47 CLR 621
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26
Repatriation Commission v Smith (1987) 15 FCR 327
RVO Enterprises Pty Ltd v Chief Commissioner of State Revenue [2004] NSWADT 64
Scott and Anor v Commissioner for ACT Revenue [2013] ACAT 73
Steelev Commissioner for ACT Revenue [2010] ACAT 15
Theron v Commissioner for ACT Revenue [2013] ACAT 33
Tier Toys Ltd v Commissioner of Taxation [2014] AATA 156
Vestas - Australian Wind Technology Pty Limited and Chief Executive Officer of Customs [2013] AATA 721
Wade & Tan v Commissioner for ACT Revenue [2014] ACAT 79

Texts/Papers cited: Law of Torts, 3rd edition, (2004) RP Balkin and JLR Davis

Tribunal:                   Presidential Member G McCarthy
Date of Orders:           29 August 2018
Date of Reasons for Decision:         29 August 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )  AT 61/2017

BETWEEN:
TONY ALLAN MARKS
First…

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: [2018] ACAT 84
Decision Date: 29 August 2018

CaseChat Overview and Summary

The case of Marks & Anor v Commissioner for ACT Revenue was heard before the Administrative Appeals Tribunal (AAT). The applicants, Marks and another party, sought to challenge an assessment of penalty tax imposed by the Commissioner for ACT Revenue. The applicants contended that the penalty tax should not have been imposed under the relevant legislation and sought to have the assessment varied.

The legal issues before the Tribunal involved the interpretation and application of the relevant legislative provisions concerning penalty tax. The applicants argued that the Commissioner had erred in imposing the penalty tax and that the penalty tax should be reduced or eliminated. The Commissioner defended the assessment, asserting that the penalty tax was correctly imposed according to the statutory requirements.

The Tribunal considered the arguments presented by both parties and examined the legislative framework governing the imposition of penalty tax. The Tribunal found that while there were procedural errors in the Commissioner's assessment, the penalty tax should nonetheless be imposed, albeit at a reduced rate of 25%. The Tribunal determined that the applicants' objection to the assessment of penalty tax should be allowed, and the penalty tax should be imposed at the reduced rate as varied by the Tribunal.

Orders

Orders of the court

The Tribunal orders that:

1. The decision under review is varied by allowing the applicants’ objection to the assessment of penalty tax and imposing penalty tax of 25%.

Background

Background to the litigation

Full text does not contain this section.

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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