Monisse v Chief Commissioner of State Revenue

[2022] NSWCATAD 276

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Monisse v Chief Commissioner of State Revenue [2022] NSWCATAD 276

Hearing dates:

25 May 2022

Date of orders:

18 August 2022

Decision date:

18 August 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J S Currie, Senior Member

Decision:

The decision of the Chief Commissioner of State Revenue to issue an assessment of surcharge land tax for the tax years 2017 to 2021 of $87,018.70 is affirmed.

Catchwords:

REVENUE LAW- STATE TAXES- surcharge land tax- liability for duty not reduced by reason of failure of Revenue NSW to alert taxpayer to legislative changes.

REVENUE- FAIRNESS PRINCIPLES- ESTOPPEL- claims of unfairness and availability of estoppel of no effect where assessment validly made.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW); sections 63, 65, 68

Civil and Administrative Tribunal Act 2013 (NSW) section 28;

Duties Act 1997 (NSW) section 104J

Foreign Acquisitions and Takeovers Act 1975 (Cth) section 4

Land Tax Act 1956 (NSW); sections 2A, 5A,5D

Land Tax Management Act 1956 (NSW); Schedule 2.

Cases Cited:

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSW LR 481

BBLT Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 1003

Brataniec v Chief Commissioner of State Revenue [2013] NSWADT 187

Chief Commissioner of State Revenue v Paspaley [2008] NSW CA 184

Chu v Chief Commissioner of State Revenue [2021] NSWCATAD 238

Commissioner of Taxation v Ryan (2000) 201 CLR 109

Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25

Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218

Hashim v Chief Commissioner of State Revenue [2020] NSWCATAD 67

Levich Design Associates Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 215

Strathavon Resort Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 200

Valencia v Chief Commissioner of State Revenue [2017] NSWCATAD 261

Texts Cited:

Aronson, Groves and Weeks Judicial Review of Administrative Action and Government Liability 7th edition 2022 at [21.470], [21.590]

Category:

Principal judgment

Parties:

Paul Monisse (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2021/00365727

Publication restriction:

Nil

[THIS DECISION HAS BEEN AMENDED]

reasons for decision

What is this matter about?

1. In this matter, Mr Paul Monisse (Mr Monisse or the Applicant), in his capacity as trustee of the New Living Trust (the Trust) seeks an administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) of a decision made on 11 February 2021 by the Chief Commissioner of State Revenue (the Chief Commissioner) to issue to Mr Monisse, in that capacity, an assessment of surcharge land tax for the 2017-2021 land tax years (the Assessment).

2. Mr Monisse asserts that the Assessment should not have been issued and surcharge land tax for those tax years should be waived because he was not made aware of amendments to the legislative regime for surcharge land tax (the SLT Amendments). Those amendments imposed surcharge land tax on Mr Monisse in his capacity as trustee of the Trust because the discretionary trust deed dated 27 October 2008 which established the Trust (the Original Trust Deed) did not exclude foreign persons from the class of eligible beneficiaries. In order to avoid the imposition of surcharge land tax which resulted from the SLT Amendments, the Original Trust Deed needed to be amended to expressly exclude that class of persons as eligible beneficiaries. The Trust Deed was subsequently amended to do that, but those amendments were effective too late to avoid the surcharge land tax imposed under the Assessment.

3. Mr Monisse’s position is that the Trust Deed could and would have been amended to achieve that result if he had been made aware of the effect of the SLT Amendments, but that he remained unaware of them due to a series of failures by Revenue NSW to make contact with him prior to the effective date of the SLT Amendments. He says in effect that at the critical time he was blissfully unaware of the considerable additional land tax for which he as trustee had become liable.

4. On 19 November 2021 Mr Monisse objected to the Chief Commissioner’s decision to issue the Assessment, but that objection was disallowed by the Chief Commissioner. Mr Monisse was notified of that disallowance on 26 November 2021.

5. It is on that basis just described that Mr Monisse brings these proceedings by way of his application for administrative review (the Application) which was received by the Principal Registry on 24 December 2021.

6. It falls to me to decide whether the decision of the Chief Commissioner to issue the Assessment was the correct and preferable decision and whether I should order that it be affirmed, or make any one or more alternative orders available under sections 64 (3) and 65 (1) of the ADR Act; namely an order to vary the decision, an order to set it aside and make a substitute decision, or an order to remit it for further consideration by the Chief Commissioner, either at the conclusion of, or at any stage during the proceedings.

7. Although it would be impossible not to have some sympathy for Mr Monisse’s position, given that I accept that at the critical time he was not aware of the legislative changes which resulted in the imposition of the surcharge land tax or of the consequent need to amend the Original Trust Deed, he has not persuaded me that the Chief Commissioner’s decision to issue the Assessment was other than the correct and preferable decision, as that phrase is used in section 63 of the ADR Act.

8. I have therefore decided that the decision of the Chief Commissioner under review was the correct and preferable decision and will order that that decision is affirmed.

9. These are my reasons for those decisions.

Jurisdiction, applicable law and decision under review

10. Section 96 of the Administration Act permits a taxpayer to apply to this Tribunal for administrative review of a decision by the Chief Commissioner where (amongst other circumstances) the taxpayer is dissatisfied with the Chief Commissioner’s determination of the taxpayer’s objection. The Tribunal has jurisdiction to review the Chief Commissioner’s decision by operation of section 9 of the Administrative Decisions Review Act 1997 (NSW) and section 28 of the Civil and Administrative Tribunal Act 2013 (NSW).

11. The decision under review here is the Chief Commissioner’s decision on the Assessment and not his decision to disallow Mr Monisse’s objection: see Chief Commissioner of State Revenue v Paspaley [2008] NSW CA 184 at [28].

Taxpayer’s onus of proof

12. It is of fundamental importance that under section 100 (3) of the Administration Act, in a review of this nature the applicant taxpayer has the onus of proving their case. Accordingly, Mr Monisse is required to prove all matters necessary to enable me to determine the issues his favour. The onus rests only on him as the Applicant. There is no onus or obligation on the Chief Commissioner to demonstrate that the assessments were correctly made: Levich Design Associates Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 215

13. The requisite standard of proof is the balance of probabilities: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSW LR 481, per Allsop P at [87], [104]; Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31].

Uncontested facts

14. The pertinent facts which appear to be uncontested are as follows.

1. The Original Trust Deed took effect from 27 October 2008 and Mr Monisse was appointed as and remains as sole trustee.

2. Pursuant to clause 6 of that Deed the trustee has absolute discretion to distribute any party of the income of the trust fund for a financial year.

3. The Original Trust Deed did not exclude foreign persons falling within the class of eligible beneficiaries.

4. In October 2020, Revenue NSW sent Mr Monisse a letter addressed to “PO Box (a particular number) Surry Hills NSW” . That is an address which Mr Monisse had previously informed Revenue NSW to be prone to delivery difficulties. Revenue NSW’s letter contained details of the legislative changes which comprised the SLT Amendments and by it Revenue NSW requested Mr Monisse to complete a new declaration and to provide to Revenue NSW by 31 December 2020 a copy of an Amended Trust Deed which irrevocably excluded foreign persons from being eligible beneficiaries.

5. Mr Monisse asserts that that he did not receive that letter and so was not aware at that time of the of the need to amend the Original Trust Deed but, as I understand it, he does not contest that the was posted to the Surry Hills post office box.

6. On 11 February 2021 the Chief Commissioner issued the Assessment.

7. On 24 May 2021 Revenue NSW advised Mr Monisse that the Trust Deed did not exclude foreign persons from being eligible beneficiaries.

8. On 1 June 2021 Mr Monisse’s accountant sought from Revenue NSW a remission of the surcharge land tax imposed under the Assessment because Mr Monisse had not received communications from Revenue NSW advising of the SLT Amendments or the need for relevant trust deeds to be amended by 31 December 2020.

9. On 8 October 2021 the Original Trust Deed was amended by the Amended Trust Deed, the purpose of the amendments being to exclude irrevocably foreign persons from being eligible beneficiaries.

10. On 16 November 2021 Revenue NSW informed Mr Monisse by way of amended land tax assessment notice that interest accrued on surcharge land tax for the 2017 to 2019 years had been waived in full.

Relevant statutory provisions

15. Surcharge land tax is charged on properties which are owned by foreign persons pursuant to section 5A of the Land Tax Act (the LT Act). There are many interconnected sections of other items of legislation which provide related or referred definitions. Section 5D of the LT Act was introduced on 24 June 2020 and adds provisions relating to the liability of a trustee of a discretionary trust to surcharge land tax.

16. As it is uncontested that the Original Trust Deed did allow foreign persons to become beneficiaries and that the Amended Trust Deed effectively “closed that gap” by preventing such an occurrence, it appears that nothing turns on the definition of “foreign person”. That being so I have not repeated the lengthy statutory provisions defining that term but have simply described them below at [17].

LAND TAX ACT

5A Levy of surcharge land tax on land owned by foreign persons-2017 and subsequent land tax years

(1) Land tax is payable under this section in respect of residential land owned by a foreign person ("surcharge land tax").

(2) In respect of the taxable value of all the residential land owned by the foreign person at midnight on 31 December in any year (commencing with 2016), surcharge land tax is to be charged, levied, collected and paid under the provisions of the Principal Act and in the manner prescribed under that Act for the period of 12 months commencing on 1 January in the next succeeding year at the rate of--

(a) in the case of all residential land owned by the foreign person at midnight on 31 December 2016--0.75% of that taxable value as assessed under the Principal Act, and

(b) in the case of all residential land owned by the foreign person at midnight on 31 December in any other year (commencing with 2017) --2% of that taxable value as assessed under the Principal Act.

(3) Surcharge land tax is payable in addition to any land tax payable in respect of the residential land under the other provisions of this Act, and is so payable even if no land tax is payable under those other provisions.

(4) The Principal Act applies to surcharge land tax in respect of residential land owned by a foreign person subject to the following--

(a) surcharge land tax is payable as if the residential land were the only land owned by the foreign person,

(b) if the residential land is also owned by a person who is not a foreign person, the taxable value of the land is to be reduced to the proportionate value of the interest in the land of the foreign person,

(c) if the foreign person is a joint owner of the residential land, the person is to be individually (and not jointly) assessed and is liable in respect of the value of the person's proportionate interest in the land as if the person were the owner of a part of the land in proportion to the person's interest (and accordingly section 27 (2)-(4) of the Principal Act does not apply),

(d) if the Chief Commissioner is satisfied that the residential land is used for purposes other than residential purposes, the taxable value of the land is to be reduced by the apportionment factor determined in accordance with section 104ZB of the Duties Act 1997 in relation to the land,

(e) if the foreign person is the trustee of a fixed trust (within the meaning of section 3A of the Principal Act) in relation to the residential land, the person is not liable to surcharge land tax,

(f) the provisions of the Principal Act relating to the persons who are taken to be owners of the residential land apply to surcharge land tax, except that section 23 of the Principal Act does not operate to make a mortgagee in possession an owner of the land unless the mortgagor is a foreign person,

(g) the person is exempt from liability to pay surcharge land tax in respect of the land for a land tax year because the land is the principal place of residence of the foreign person (and accordingly sections 9C and 9D of the Principal Act operate to reduce the land value of the land if it is the principal place of residence of the person) only if the person is eligible for the exemption under section 5B,

(h) the tax thresholds under Division 4A of Part 7 of the Principal Act do not apply to surcharge land tax,

(i) any other modification prescribed by the regulations under the Principal Act applies to surcharge land tax.

(5) If a foreign person defaults in the payment of surcharge land tax then, without releasing the foreign person from his or her liability, the following provisions apply as long as the default continues--

(a) if the foreign person is a joint owner of the land concerned--any other joint owner (whether or not a foreign person) is, on being served with a notice by the Chief Commissioner requiring payment of the unpaid surcharge land tax, responsible for its payment and the unpaid tax may be recovered from that other joint owner as if he or she were the defaulting taxpayer,

(b) if the foreign person is a beneficiary of a trust relating to the land concerned--the trustee (whether or not a foreign person) is, on being served with a notice by the Chief Commissioner requiring payment of the unpaid surcharge land tax, responsible for its payment and the unpaid tax may be recovered from that trustee as if he or she were the defaulting taxpayer,

(c) all payments made under this subsection by that other joint owner or that trustee are taken to be made on behalf of the defaulting taxpayer,

(d) that other joint owner or that trustee may recover from the foreign person any amount paid by that other joint owner or that trustee under this subsection.

5D Surcharge land tax--discretionary trusts

(1) The trustee of a discretionary trust is taken to be a foreign person in that capacity for the purposes of section 5A if the trust does not prevent a foreign person from being a beneficiary of the trust.

(2) If a discretionary trust prevents a foreign person from being a beneficiary of the trust, the trustee is not in that capacity a foreign person for the purposes of section 5A.

(3) A discretionary trust is considered to prevent a foreign person from being a beneficiary of the trust if (and only if) both of the following requirements are satisfied--

(a) no potential beneficiary of the trust is a foreign person (the
"no foreign beneficiary requirement"),

(b) the terms of the trust are not capable of amendment in a manner that would result in there being a potential beneficiary of the trust who is a foreign person (the "no amendment requirement").

Note: Under the transitional arrangements for this section in Schedule 2 to the Principal Act, the no amendment requirement does not apply to a trust that satisfies the no foreign beneficiary requirement immediately before the commencement of this section.

(4) A person is a
"potential beneficiary"of a discretionary trust if the exercise or failure to exercise a discretion under the terms of the trust can result in any property of the trust being distributed to or applied for the benefit of the person.

Note: A potential beneficiary is not limited to persons named in the trust instrument and extends to the members of any class of persons to whom or for whose benefit trust property can be distributed or applied pursuant to the discretions of the trust.

(5) For the removal of doubt, a person is not a potential beneficiary of a discretionary trust if the terms of the trust prevent any property of the trust from being distributed to or applied for the benefit of the person.

(6) In this section,
"property"includes money, and a reference to the distribution or application of property includes a reference to the payment of money.

17. The definition of “foreign person” is contained in section 2A of the LT Act, which relevantly provides that foreign person has the same meaning as in Chapter 2A of the Duties Act 1997 and within that Chapter section 104J defines “foreign person”. Section 4 of the Foreign Acquisitions and Takeovers Act 1975 (Cth) defines respectively “foreign person” and “substantial interest” and section 5 sets out the circumstances in which an individual who is not an Australian citizen will be treated as being ordinarily resident in Australia.

The parties’ documentary material and submissions

18. The following documentary material was lodged by the parties and considered by me.

19. Mr Monisse lodged the Application, attaching the objection determination notice and related items of correspondence. He separately lodged a bundle of correspondence between the parties and items which related generally to the issues before the Tribunal.

20. The Chief Commissioner lodged a bundle of documents produced in compliance with section 58 of the ADR Act (the section 58 documents), his written submissions and a copy of Practice Note CPN 004 v2, which deals with surcharge land tax and surcharge purchaser duty.

21. Each party made oral submissions at the hearing.

The Applicant’s case

22. Mr Monisse’s central contention is that the Chief Commissioner decision to issue the Assessment was not the correct and preferable decision in circumstances where he as a taxpayer was not made aware by Revenue NSW of the effect of the SLT Amendments or of the need to amend the Original Trust Deed in order to prevent any foreign person becoming an eligible beneficiary under the Trust, prior to the deadline of 31 December 2020.

23. Mr Monisse appears to base that contention on the following grounds, which I have expressed in summary form:

1. the result of the Revenue NSW’s failure to make him aware of the SLT Amendments is fundamentally unfair; and

2. the failure of Revenue NSW to ensure that he was notified of the SLT Amendments operates as an estoppel against the Chief Commissioner issuing the Assessment.

3. To that might be added a third ground which was not raised by Mr Monisse in this form, but which merits consideration, especially as he is not legally qualified. That is whether the decision of the Chief Commissioner to issue the Assessment might give rise to a claim of breach of a what has been characterised by academic commentators as a possible general duty owed by public officials to protect those who are affected by their decisions. In this case that might be characterised as a duty to warn a taxpayer of possible liability for a newly imposed duty. The commentators have considered whether breach of any such “duty to protect” can emerge from a “pure omission” by a public official and if so whether that gives rise to a legal remedy.

The Chief Commissioner’s case

24. The Chief Commissioner’s case is, in summary, as follows:

1. Mr Monisse was a “foreign person” under the applicable land tax legislation in the relevant tax years, because he has not satisfied the onus he bears to establish that prior to the commencement of section 5D of the LT Act no potential beneficiary of the Trust was a foreign person and the amendments introduced by the Deed of Variation to prevent any foreign person from becoming a beneficiary were not in place prior to the required date of 31 December 2020.

2. There is no requirement on the Chief Commissioner in either the LT Act or in any savings or transitional provisions to notify individual taxpayers of amendments to tax legislation including, relevantly, the amendments to the LT Act which introduced section 5D

3. The functions of the Chief Commissioner under the relevant legislation are mandatory and not discretionary: see Brataniec v Chief Commissioner of State Revenue [2013] NSWADT 187.

4. Notice of the relevant amendments to the LT Act was provided to taxpayers and potential taxpayers, through the publicly available NSW legislation website, and through the publication of a practice note: CPN 004, “Foreign Surcharges and Discretionary Trusts” on the Revenue NSW public website on 1 July 2020.

5. Considerations of unfairness, such as appeals to leniency or natural justice, are simply not relevant when considering the validity of the Chief Commissioner’s assessments.

6. It is well-established that no conduct or representation on the part of the Chief Commissioner can operate as an estoppel against him in issuing an assessment

The real issues

25. The real issues for my consideration emerge clearly from the parties’ respective submissions as summarised above.

26. The real issues are whether the Chief Commissioner’s decision under review, namely the decision to issue the Assessment, did not constitute the correct and preferable decision, by reason of:

1. its unfairness generally, as asserted by Mr Monisse as summarised above; in particular because he was not notified of changes to the surcharge land tax regime brought about by the SLT Amendments;

2. the operation of the doctrine of estoppel: that is, whether the Chief Commissioner’s non-notification of the legislative changes, that is the SLT Amendments, estop (prevent) the Chief Commissioner from relying upon them;

3. the third issue which I have explained at [23] (3) above; namely whether the decision of the Chief Commissioner to issue the Assessment might give rise to a claim of breach of a possible general duty owed by public officials to protect those who are affected by their decisions, by way of a “warning” and whether breach of any such duty can emerge from a “pure omission” by a public official in a way that gives rise to a legal remedy.

Mr Monisse’s circumstances

27. At the hearing I found Mr Monisse’s account of his personal and financial circumstances to be credible and reliable. I accept and give some weight to his assertions, which appear to be unchallenged, that

1. he is a person who believes in compliance with the law;

2. he has what he termed a “clean record”; in that he has always complied with his land tax obligations;

3. as I understand it, he has never intended to have any foreign person or interest as a potential beneficiary of the Trust;

4. when alerted to his possible liability for additional duty correspondence under the SLT Amendments, he promptly arranged for his professional advisors to arrange the appropriate amendments to prevent any foreign person becoming a beneficiary under the Trust via the Deed of Variation;

5. he has experienced some financial hardship over the last two years, particularly as a result of the Covid pandemic and the restrictions and commercial effects of the health orders made as a result. This has arisen in particular because the international airline industry has been substantially adversely affected by Covid-based travel and immigration restrictions. Mr Monisse has been an employee of Qantas Airways for 32 years and for some time has held a senior position as an International Cabin Manager. He was effectively stood down without regular salary for nearly 2 years until recently and in that period has had to rely on Government grants and subsidies. He has had to sell some of his assets, including as I understand it his residence, in order to survive financially in this period, but is now re-engaged by the airline and is working more regularly.

28. In his written submissions and at the hearing Mr Monisse relied upon problems which he asserts arose in his communications to and from Revenue NSW. There are several of these instances but in particular he asserts essentially that important documentation may not have been sent to the address which he asserts to have notified. That is disputed by the Chief Commissioner, and I do not need to make a specific finding as to whether or not particular information or correspondence was received. However, I do accept that Mr Monisse for whatever reason did not receive promptly the Revenue NSW documentation explaining the SLT Amendments.

29. Notwithstanding those matters outlined at [27] and [28], Mr Monisse’s application for administrative review stands to be decided in accordance with the applicable law. The central question remains whether or not, by application of the law, the Chief Commissioner’s decision to issue the Assessment was the correct and preferable decision.

30. In order to answer that question, I need to consider and resolve the 3 “real issues” I have identified above.

Consideration: 1. Unfairness

31. The High Court decision in Commissioner of Taxation v Ryan (2000) 201 CLR 109 as cited by the Chief Commissioner remains the primary authority on this issue. The case before the High Court relevantly involved the issue of whether an amended assessment of taxation could be issued in the circumstances of the case. As was said by the Court at 123:

That question cannot be answered by asserting the existence of any “policy” ot “general intention” unless that policy or intention is to be found reflected in the termsof the Act. Appeals to general notions of “fairness” or “justice” do no more than attempts to mask the absence of any foundation in the legislation for the conclusion which is asserted.

32. That general statement has been upheld in revenue cases, including in this Tribunal, over recent years: see for example Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218 (“Gunasti”); Hashim v Chief Commissioner of State Revenue [2020] NSWCATAD 67 at [82] – [83] and Strathavon Resort Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 200 (“Strathavon”)

33. In Strathavon, which came before me and in which vigorous assertions were made as to the unfairness of the Chief Commissioner’s assessments of land tax and the asserted injustice of upholding them, I concluded on the basis of the authorities in relation to this issue, at [22] , as follows:

...concepts such as fairness and justice cannot intrude into the legislative taxation scheme, notwithstanding the fact that such a scheme might in certain circumstances operate harshly. I accept that for a taxpayer in the position of (the applicant in that case) that may be a bitter pill to swallow. But that is the law.

34. That conclusion applies with equal force here.

35. To the extent that Mr Monisse has raised his financial position as a ground, it is clearly established that financial hardship, including where that has been caused to any extent by the COVID economic impacts is not relevant to the issue of whether an assessed tax or duty is payable: see for example Chu v Chief Commissioner of State Revenue [2021] NSWCATAD 238 (Chu) at [32]- [34].

36. Mr Monisse does not succeed on this ground.

Consideration: 2. Estoppel

37. Mr Monisse does not succeed on this ground either. The law is clear: no conduct or representation by or on behalf of the Chief Commissioner will be regarded at law as constituting an estoppel; such as to prevent the Chief Commissioner from issuing an assessment in the course of carrying out his functions and duties in administering the revenue laws of New South Wales: BBLT Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 1003 at 111; Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218 at [19].

Consideration: 3. A duty to resolve, protect or liability for “pure omissions”?

38. As outlined at [26] above, an additional issue emerges from academic commentators’ consideration of this area. That is whether a public official (such as the Chief Commissioner) can be held to have breached a possible general duty to protect those who are or may be adversely affected by their decisions by way of a “warning” and whether breach of any such duty can emerge from a “pure omission” by the public official in a way that gives rise to a legal remedy. See for example the discussion in Aronson, Groves and Weeks Judicial Review of Administrative Action and Government Liability 7th edition 2022 at [21.470] and [21.590],

39. Although the possible existence of such a duty has been identified, its application would appear to be very narrow and to apply to only some public authorities. I am aware of no authority which would stretch the application of the concept so far as to interfere with a revenue assessment. Certainly, the learned authors of Aronson, Groves and Weeks do not envisage that a government authority such as Revenue NSW or the Chief Commissioner has any general duty at common law to “resolve or protect”, or to be liable for “pure omissions”, including those omissions which might be characterised as a failure to take protective action.

40. My consideration of this area does reveal any ground upon which the Chief Commissioner’s decision under review could successfully be challenged.

Due assessment of the quantum of duty

41. There was no assertion by Mr Monisse that the quantum of the duty or interest had been incorrectly calculated and there was nothing before me to indicate that any error in that regard had been made.

42. I find that the quantum of the duty was properly and correctly assessed, in accordance with the relevant legislation.

Conclusion: Was the decision the correct and preferable one?

43. The question of whether a decision is both correct and preferable must be made by reference to the relevant statute or other law under which the decision-maker purports to make that decision.

44. I reiterate that I must reach my decision on this only on the basis of the settled law, on the basis of the taxpayer’s burden of proof explained above at [12] and [13]. It is not for the Chief Commissioner to make a case that his decision to issue the Assessment was the correct and preferable one, rather it is for Mr Monisse to demonstrate that that it was not the correct and preferable decision.

45. Mr Monisse has not persuaded me that the Chief Commissioner’s decision to issue the Assessment was other than the correct decision, under the statutory provisions pursuant to which it was made.

46. The question as to whether it was the preferable decision must also be answered by reference to the powers and, if any discretions available under that legislation, if any. As was said by Senior Member Norman Isenberg in Valencia v Chief Commissioner of State Revenue [2017] NSWCATAD 261 at [84]:

..absent a discretionary power, the Chief Commissioner is required to administer the law in accordance with its terms. To give a benefit to the Applicants would unfairly disadvantage other taxpayers who have complied with their obligations.

47. There was no “discretionary power” as referred to in that passage available to the Chief Commissioner in this case. It follows that his decision to issue the Assessment was not only the correct decision, it was also the only decision open to him under the legislation which bound him. I conclude that his decision was therefore also the preferable decision.

48. Having decided that that decision was the correct and preferable one I must order that that decision of the Chief Commissioner is affirmed.

49. I order accordingly.

order

The decision of the Chief Commissioner of State Revenue to issue an assessment of surcharge land tax for the tax years 2017 to 2021 of $87,018.70 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

15 September 2022 - 15 September 2022:

• Page 1. Decision- “assessment of surcharge purchaser duty” amended so as to read “assessment of surcharge land tax”.

• Page 1. Catchwords- surcharge purchaser duty” amended so as to read “surcharge land tax”.

• Page 9. Paragraph [20]- last phrase amended so as to read:

“Practice Note CPN 004 v2, which deals with surcharge land tax and surcharge purchaser duty”.

• Page 13. Paragraph [40]. Last phrase amended so as to read:

“..decision under review could successfully be challenged.”

• Page 15. Order- “assessment of surcharge purchaser duty” amended so as to read “assessment of surcharge land tax”.

Decision last updated: 15 September 2022