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…
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- Case
- [2018] ACAT 84
- Decision Date
CaseChat Overview and Summary
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
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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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