Monsgrove Developers Pty Ltd v Chief Commissioner of State Revenue

[2010] NSWADT 303

CITATION:	Monsgrove Developers Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADT 303
DIVISION:	Revenue Division
PARTIES:	APPLICANT Monsgrove Developers Pty Limited RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	096102
HEARING DATES:	12 April 2010, 21 June 2010
SUBMISSIONS CLOSED:	21 June 2010
DATE OF DECISION:	20 December 2010
BEFORE:	Perrignon R - Judicial Member
CATCHWORDS:	Parking levy – rooftop leased to taxi company for changeover station – spaces marked by lines – whether ‘set aside’ for parking – whether used for parking – method for calculation of number of leviable spaces – interest
LEGISLATION CITED:	Parking Space Levy Act 1992 Parking Space Levy Regulation 1997 Taxation Administration Act 1996 Interpretation Act 1987
CASES CITED:	Chief Commissioner of State Revenue v Hayson Group of Companies Pty Limited (RD) [2005] NSWADTAP 51
REPRESENTATION:	APPLICANT D Geddes, solicitor RESPONDENT A Hatcher, barrister-at-law
ORDERS:	(1)The Chief Commissioner’s decision to impose the parking space levies under review is confirmed (2) The Chief Commissioner’s decision to impose interest is confirmed.

REASONS FOR DECISION

1 The Applicant, Monsgrove Developers Pty Limited (‘Monsgrove’), owns premises at Chippendale in Sydney. Since 2002, they have been leased and used as a petrol station. The Chief Commissioner of State Revenue has imposed parking space levies under the Parking Space Levy Act 1992 in respect of fourteen delineated spaces on the rooftop. Monsgrove seeks review of that decision.

2 The rooftop consists of a flat paved area. The paved area is marked with painted lines, delineating some eighteen spaces. A vehicular ramp permits access to the rooftop directly from the street below, without entering the petrol station. During the term of the lease, the rooftop has been used at different times, with the tenant’s consent, as a car wash facility and a taxi changeover station.

3 On 4 November 2008, the Chief Commissioner assessed Monsgrove to parking space levies pursuant to section 9(1) of the Act, for each of five tax years commencing on 1 July 2004, 1 July 2005, 1 July 2006, 1 July 2007 and 1 July 2008. He did so in respect of only fourteen of the eighteen parking spaces. He considered that four were not reasonably capable of being used as parking spaces, because their occupation would preclude access either to the rooftop itself, or to two of the spaces. He imposed interest at the market rate.

4 Monsgrove has objected to the decision under section 86 of the Taxation Administration Act 1996. Its objection has been disallowed. It follows that the Tribunal enjoys jurisdiction to review the decision under section 96 of the latter Act. The Applicant bears the onus of proving its case: section 100(3).

5 Monsgrove does not dispute that at all relevant times it owned the premises, or that they were premises to which the Act applied. It submits that it is not liable to pay the levies, essentially for the following reasons.

1) No parking spaces ‘existed as a parking space to which this Act applies’, because Monsgrove did not ‘set aside for the parking of a motor vehicle’ any spaces on its rooftop, as required by the Parking Space Levy Act 1992 . The lines on the rooftop were painted, not by Monsgrove, but by a car wash operator who used the rooftop with the permission of the tenant.

2) If cars were parked on the rooftop during the relevant tax years, they were not authorised to do so, and did so without the knowledge of Monsgrove.

3) Though clause 5 of the lease permitted use of the rooftop as a car park, the tenant did not in fact use it for that purpose. It sublet the area to a taxi service, which used it as a taxi changeover station only. The terms of the sublease forbad its use as a car park.

6 If parking spaces did exist on the rooftop, the Applicant submits that the Chief Commissioner ought not, in November 2008, have reassessed its liability to the levies in respect of the five previous years pursuant to section 9(3) of the Taxation Administration Act 1996, because the rooftop was subleased to a taxi company.

7 If he did have that power, the Applicant submits as follows:

1) Only three of the delineated spaces were assessable, because the remaining fifteen could not safely be used for parking. This was because radiation emitted by, and within a 5-metre radius of, an Optus telephone tower and its antennae stationed on the rooftop, presented a safety hazard.

2) Alternatively, only nine spaces were assessable, because only nine parked vehicles could fit on the rooftop.

8 Even if a levy was payable, Monsgrove submits that interest should be remitted, because of exceptional circumstances. They were (1) that Monsgrove genuinely believed that the rooftop had been leased to a taxi company; (2) that Clause 3 of the sublease prohibited use of the rooftop for car parking, and (3) that Monsgrove was unaware of any such use.

9 Monsgrove did not argue that subsections (2), (2A) or (3) of section 7 operated to exempt the parking spaces from the levy.

10 In summary, the Chief Commissioner replied as follows.

1) The spaces delineated for parking on the rooftop were ‘parking spaces’ within the meaning of the Parking Space Levy Act 1992 , because Monsgrove had set aside the rooftop area for the parking of motor vehicles, as envisioned by the definition of ‘parking space’ in section 4 of the Act. It did so, by permitting its tenant to use the rooftop as a car park in Clause 5 of the head lease, in circumstances where eighteen car spaces had already been delineated on the rooftop by a car wash operator. The ‘setting aside’ of the rooftop for this purpose was sufficient to attract the parking space levy, even if the parking area was not used for parking.

2) The spaces were in fact used for the parking of motor vehicles. Taxis would be parked there between day and night shifts. Taxi drivers would park their private vehicles there during shifts. Petrol station employees also parked their cars there.

3) Parking space levies are payable in respect of ‘each parking space’: section 9(1) of the Act. As the parking spaces in this case were ‘permanently delineated’, clause 7 of the Parking Space Levy Regulation 1997 does not limit the method for assessing their number. Strictly, the Chief Commissioner was entitled to assess the levy on the basis of all eighteen delineated spaces. However, as vehicular parking on four of them would have precluded access to the rooftop or to two of the remaining spaces, he assessed the levy in respect of fourteen spaces only. That method, he says, was generous. The legislation does not exempt a space from the levy by reason of any perceived danger to health.

4) Interest at the market rate may only be remitted if exceptional circumstances are demonstrated. There was nothing exceptional about an absent landlord being unaware that premises were being used for parking cars. In any event, the Applicant had permitted that use under clause 5 of the lease. There was nothing exceptional about clause 3 of the sublease which prohibited its use for car parking, or the fact that use as a taxi changeover station entailed parking vehicles there from time to time. Nor was it exceptional that the lease required the lessee to indemnify the landlord for the levy. Such an obligation arose under the statute itself: see Part 2 clause 2(1) of the Schedule 1 to the Act.

11 The following issues arise for determination.

1) Whether, in the twelve months preceding each of the five relevant tax years – that is, in each of the financial years from 1 July 2003 to 30 June 2008 - any part of the rooftop fell within the definition of ‘parking space’ in section 4 of the Act.

2) If so, whether the Chief Commissioner lacked power under section 9(3) of the Taxation Administration Act 1996 to reassess the levy in respect of the previous five years.

(3) Whether parking spaces were ‘individually delineated by permanently marked lines’, so as to exclude the method of calculation prescribed by clause 7(1) of the Parking Space Levy Regulation 1997 .

4) If they were, how many of the delineated spaces were leviable.

5) If the spaces were not so delineated, how many leviable spaces should be calculated in accordance with Clause 7 of the Regulation.

6) Whether interest should be remitted under section 25 of the Taxation Administration Act 1996 .

12 At all relevant times, section 9(1) of the Parking Space Levy Act 1992 provided:

‘The owner, as at 1 July in a financial year, of premises to which the Act applies must, unless exempt, pay a levy to the Chief Commissioner ... for each parking space on the premises if the space existed as a parking space to which this Act applies at any time during the previous financial year.

13 ‘Parking space’ was defined in section 4 to include:

‘(a) a space set aside for the parking of a motor vehicle (whether or not the space is used for the parking of a motor vehicle), and

(b) a space used for the parking of a motor vehicle ...’

14 Mr Jin managed the petrol station, and the tenant company which operated it. He gave oral and affidavit evidence on behalf of Monsgrove. He agreed that, under Clause 5(a) of the lease, use of the roof top as a car park was permitted. Clause 5(a) provided, inter alia:

‘The Lessee will not use or permit to be used the premises or any part thereof for any purpose other than for a service station, retail shop, restaurant and for a car parking station as to the roof area or Optus station.’

15 Clause 37 of the lease made the lease subject to the right of Optus to ‘maintain the existing telecommunications station on the parking deck level of the premises’ (emphasis added).

16 These terms suggest that, when they entered into the lease, the Applicant and the lessee knew that the rooftop was suitable for use as a carpark, and anticipated that it might be so used. The Tribunal draws those inferences.

17 From 3 August 2002 to 18 December 2002, Mr Jin said that he permitted a car wash operator to use the rooftop as a car wash. Mr Jin once took his own car there to be washed. Patrons would park their cars on the rooftop while waiting to be washed, and leave them in the care of attendants while they went elsewhere. During that period, Mr Jin said that the car wash operator painted yellow lines on the concrete pavement of the roof, delineating spaces for car parking, and painted a sign on the concrete railing which read, ‘$10 Parking See Attendant’. The sign was to remain on the premises for about six years until 26 August 2008.

18 The Tribunal infers that, by at least 18 December 2002, the car wash operator had expanded his business from a car wash to a car wash and car park, and was charging parking fees.

19 On 21 November 2003, Mr Jin caused the rooftop to be sublet to a taxi service company owned and operated by Mr Lu, for the purpose of a taxi changeover station. Clauses 3, 4 and 5 of the sublease provided as follows.

‘(3) [The sublessee] must not park or leave any off-shift or unoccupied taxis on the Leased Premises, especially overnight, and must promptly remove any broken-down or un-drivable taxis owned by [it] from the Leased Premises ….

(4) [The sublessor] permits [the sublessee] to carry out simple and necessary work of maintenance and cleaning on their taxis during the changeover period.

(5) [The sublessee] must not use the Leased premises for any industrial purposes such as car repairs.’

20 Taxi drivers would typically drive their taxis onto the rooftop, lock them, and leave the keys downstairs at the petrol station shop with the console operator. The taxi driver on the next shift would pick up the keys from the console operator, take the stairs up to the car park, or walk up the vehicular ramp, and commence his or her shift by driving the taxi away.

21 Mr Jin observed that taxi shifts were of twelve hours duration. Shift changes were meant to occur at around 3 am and 3 pm, but could occur at any time. From time to time, a driver would return his car early. The car would remain parked on the roof until the next shift, when it would be driven away by the next taxi driver.

22 Some taxi drivers would drive to work at the petrol station. Others would not. Those that did often parked their private vehicles on the rooftop for the duration of their shift.

23 Sometimes, taxi change-overs would occur at the petrol station downstairs. Mr Jin's staff discouraged this, as it could impede access by customers to the petrol station facilities.

24 When granting the sublease, Mr Jin said he understood that taxis would be parked on the rooftop when waiting for the next driver, and that taxi drivers would from time to time park their private vehicles there during their shifts. Not unreasonably, he considered that to be part and parcel of a taxi changeover station.

25 In July 2009, two members of the public parked on the rooftop without permission. Mr Jin obtained statements from them dated 9 July 2009, which are in evidence. Their use of the rooftop for parking falls outside the period in question.

26 Throughout the term of the sublease, two CCTV cameras were stationed on the rooftop. Twelve other CCTV cameras were stationed in the petrol station. Mr Jin worked in an office downstairs, near the petrol station shop, mainly at night. Near his desk was a monitor which showed live footage from all fourteen cameras at once. Though there were other monitors in the station, his was the only one showing footage from the rooftop.

27 He would not observe the CCTV screen unless he heard a noise, or became aware that something untoward was happening, such as theft of petrol or goods. On two occasions, he recalls going to the rooftop to investigate suspicious circumstances. On one occasion, he found a fugitive from police. On another, he found a stolen vehicle left without permission on the roof. Except when alerted to something, he did not venture onto the rooftop, or observe what was happening there.

28 The CCTV footage was stored on a computer hard drive. The footage was automatically erased, unless saved to a compact disc. Mr Jin would only save the footage if it were needed for the reporting or investigation of a crime, or other serious incident. During the financial years ending 2005 to 2009 inclusive, only ten hours of footage were saved.

29 Mr Jin viewed the saved footage for the purposes of these proceedings, and produced still photographs from it. They were consistent with his evidence. They demonstrated the typical procedure of taxi drivers. They would park their private vehicles on the rooftop, pick up the keys from the console operator below, returning to the rooftop and drive their taxis away. When they returned from their shifts, they would hand the keys back to the console operator. On one occasion, the photos showed a Vietnamese driver who travelled to work by train, picked up the keys from the console operator downstairs, dragged his bag up the ramp, entered a taxi and drove it away.

30 According to Mr Jin, the rooftop ceased to be used as a taxi changeover station on and from 9 July 2009. On that date, after being informed by his landlord that the Chief Commissioner had imposed parking space levies in respect of the rooftop, Mr Jin blocked off access to the rooftop. Since then, it has not been used. Up till then, the taxi operator had been holding over under the sublease which had expired on 20 May 2004.

31 It is common ground that about fifteen months earlier, on 20 March 2008, compliance officers from the Office of State Revenue had attended the premises. On 14 July 2008, the Chief Commissioner forwarded a questionnaire to Monsgrove, enquiring about the use of the premises for car parking. This was followed by a Notice of Investigation on 19 August 2008. Two days later, on 21 August 2008, Monsgrove returned the completed questionnaire to the Chief Commissioner.

32 On 28 August 2008, at Monsgrove’s request, Mr Jin or his staff painted over the sign saying ‘$10 Parking See Attendant’. They chained off the rooftop, and suspended signs from the chain which said, among other things, ‘Private – Keep out’ and ‘NO PARKING’. Signs saying, “TAXI BASE ONLY”, were also painted about the premises.

33 The head lease required Mr Jin’s company to bear certain government charges. Mr Jin believes that the liability of his company to pay for the car space levy will depend on how widely the clause is construed. He considers there is potential for a dispute with the landlord as to whether his company is liable to compensate the landlord for the levy. To that extent, it is in the interests of Mr Jin’s company to establish that the parking spaces did not attract the levy.

34 Mr Jin said that the rooftop was capable of accommodating only nine vehicles. He demonstrated that by photographing his 8-seater Toyota vehicle on the rooftop, and estimating the amount of space needed on either side to accommodate it comfortably.

35 There is an Optus mobile base station with two antennae situated in one corner of the rooftop, and a further two antennae situated at another corner of the rooftop. Mr Jin produced documentation tending to prove that the Optus station emitted radiation, and that it was unsafe for human beings to remain within a 5-metre radius. In the absence of any evidence to the contrary, the Tribunal accepts this evidence. Mr Jin had informed the taxi operator of this when issuing the sublease. According to Mr Jin, when allowance is made for the 5-metre radius, the number of car spaces available, consistent with safety, is reduced to three. He says that only three changeovers occur at any one time during each of the two daily shift changes.

36 Mr Jin’s evidence was internally consistent. For reasons given below, the Tribunal is not persuaded to accept his opinion that the rooftop was capable of accommodating only nine vehicles. Apart from this, his evidence was not so improbable as to cause the Tribunal to doubt its veracity, and the Tribunal makes findings in accordance with it.

Mr Lu’s evidence

37 Mr Lu also gave oral and affidavit evidence on behalf of Monsgrove. His taxi business consisted of thirty taxis. Only three of them used the rooftop as a changeover station. Shift changeovers generally occurred at night between 1 am and 3 am, and during the day between 1 pm and 3 pm. Mr Lu knew that taxis had to keep a 5-metre distance from the ‘Optus tower’ because of radiation, and warned his drivers about it. He also told them that they may not use the rooftop for the parking of private vehicles.

38 Mr Lu said that, through the years that he operated his taxi business from the premises, he would attend only once a month, preferring to send someone else to observe the changeover. When he did attend, he observed that taxi drivers would park their private vehicles on the roof from time to time during their shift, despite his telling them not to do so. He also saw taxis parked on the roof between shifts.

39 According to Mr Lu, a taxi driver on day shift would generally return his taxi to the rooftop at around 2 pm. It would then await the night shift driver, who would drive it away at around 3 pm. However, as there were sometimes few customers requiring taxis between 3pm and 5 pm, drivers on night shift sometimes did not pick up their vehicles till 5 pm. In that case, the Tribunal infers, a taxi would remain parked on the roof from about 2pm to 5pm. In winter, according to Mr Lu, night shifts would often stop at midnight, and day shift would commence around 6 am, because not many customers were on the streets between those hours. On those occasions, taxis would be parked on the roof for up to six hours at a time.

40 Mr Lu’s evidence was not challenged. He gave it in a forthright fashion. It was not so improbable as to cause any doubt as to its veracity. The Tribunal makes findings in accordance with it.

41 From his evidence, and from that of Mr Jin, the Tribunal infers:

1) that the tenant and sub-tenant interpreted clause 3 of the sublease narrowly, so as not to prohibit the parking of taxis between shifts, and

2) that they tolerated the practice of taxi drivers parking their private vehicles on the rooftop during their shifts.

Respondent’s evidence

42 The Chief Commissioner adduced evidence from a compliance officer, Mr Markham. Mr Markham produced photographs of the rooftop taken by compliance officers during their visits on 20 March 2008, 5 September 2008 and 10 October 2008. On the latter occasion, photos were taken of twelve cars parked on the rooftop, within the delineated spaces. Mr Markham estimated each space to be about 4.5metres long by 2.3 metres wide. Having regard to the photographic evidence, the Tribunal is satisfied that each space was reasonably capable of use for the parking of a motor vehicle. That is so, even if larger vehicles, such as the 8-seater vehicle photographed by Mr Jin on the rooftop, might not have fitted comfortably, side by side, in the delineated spaces.

43 The Chief Commissioner also adduced evidence from another compliance officer, Mr Clarke. He gave evidence, among other things, of a telephone conversation with a director of the Applicant on 21 August 2008. He said that the director admitted to charging people for parking on the property. However, Mr Clarke acknowledged that the director ‘sounded very agitated and upset and did not let me finish my sentences’, and that the director ‘suggested we take the land and operate the carpark keeping the proceeds’. This suggests that the director was probably speaking facetiously, out of frustration with the investigation and the officers concerned. For that reason, it would be unsafe to conclude that the director was intending to admit that the rooftop was used as a car park.

Whether ‘parking spaces’ existed on rooftop

44 The first issue for determination is whether, during each of the financial years from 1 July 2003 to 30 June 2008, parking spaces existed on the rooftop. That, in turn, depends on whether spaces were ‘used’ or ‘set aside’ for the parking of a motor vehicle, so as to satisfy the definition of ‘parking space’ in section 4 of the Act. The Applicant bears the onus of proving that spaces were neither set aside, nor used, for parking.

45 The Applicant’s own evidence establishes that, from the commencement of the sublease on 21 November 2003, up until 9 July 2009, the rooftop was used as a taxi changeover station, with the permission of the tenant. Taxis would park on the rooftop between shifts for hours at a time. Taxi drivers would park their private vehicles on the rooftop during shifts. Each vehicle would generally be parked within one of the eighteen spaces delineated by painted lines. Having regard to that evidence, the Tribunal cannot be satisfied that any one of the spaces was not used for the parking of motor vehicles. It is more likely that all the delineated spaces were used for parking throughout the period in question.

46 Though it is strictly unnecessary to decide whether spaces were ‘set aside’ for parking, it is appropriate to do so. The expression, ‘set aside for the parking of motor vehicles’, implies a purpose. That, in turn, requires a subjective intent on the part of the person setting aside the space, or the person on whose behalf a space is set aside. That intent may be established by the evidence of the person in question, or it may be ascertained objectively from surrounding circumstances.

47 The act of ‘setting aside’ a space may take many forms. It may consist of painting lines between which cars are intended to park. It may consist of reserving a larger space, such as a rooftop, for parking, either by cordoning it off, placing signs about indicating its availability for parking, or leasing it for that purpose.

48 In this case, the lines were painted by the carwash operator. As he did not give evidence, his intention must be ascertained objectively. The photographic and other evidence establishes that the delineated spaces were capable of being used for the parking of cars. The Tribunal is satisfied that they were so used. When considered together with the advertisement of parking for reward, that constitutes compelling evidence that the spaces were intended to be used for parking, and therefore that they were ‘set aside’ for that use.

49 The Act does not require that spaces be set aside by the taxpayer, or at the taxpayer’s direction or request, or even with the taxpayer’s knowledge. It is sufficient that the spaces be ‘set aside’ for the relevant purpose, as they were in this case. This approach is consistent with the purpose of the Act, expressed in section 3:

‘The object of this Act is to discourage car use in business districts by imposing a levy on off-street commercial and office parking spaces (including parking spaces in parking stations), and by using the revenue so raised to finance the development of infrastructure to encourage the use of public transport to and from those districts.’

50 This purpose is promoted by casting the onus upon landowners to ensure that their premises are not used as car parks. It would be defeated if landowners could evade liability to pay parking space levies by (1) leasing their premises for use as (inter alia) car parks, as was done here by clause 5 of the head lease, in circumstances where parking spaces have previously been delineated by others, and (2) putting the revenue to proof that they had knowledge of such delineations, or that they spaces were being used for parking.

51 In any event, the Applicant bears the onus of proving its case. No director or officer of Monsgrove gave evidence. On the evidence, the Tribunal cannot be satisfied that Monsgrove was unaware either: (1) that the rooftop was being used for parking, or (2) that parking spaces had been delineated on the rooftop.

52 The delineated spaces were first ‘set aside’ for parking by the carwash operator some time before 18 December 2002. They remained so set aside until a contrary intention was demonstrated. That occurred on 9 July 2009, when all access to the rooftop area was discontinued. From that time, the spaces ceased to be ‘set aside’ for parking, even though the delineations continued to exist.

53 The actions of 28 August 2008, in preventing access to all persons except the taxi operator, were of a different character. They evinced an intention that the rooftop should not be used by anyone except the operator of the taxi service, and its employees. The use as a taxi changeover station itself entailed the parking of taxis, and of private vehicles owned by their drivers. For that reason, the actions of 28 August 2008 did not evidence an intention that the spaces cease to be ‘set aside’ for parking. Until 9 July 2009, they continued to be set aside for the use of the taxi service, and therefore for such parking purposes as were ancillary to that purpose.

54 For these reasons, the Tribunal cannot be satisfied, during any of the financial years from 1 July 2003 to 30 June 2008, either: (1) that the rooftop as a whole, or any of the delineated spaces on the rooftop, was not ‘set aside’ for the parking of motor vehicles, or (2) that any of the delineated spaces was not ‘used’ for the parking of motor vehicles. In both cases, the contrary is more likely.

55 It is next necessary to decide whether Clause 7(1) of the Parking Space Levy Regulation 1997 governs the method by which the number of spaces is calculated. That clause provided:

‘For the purposes of the Act, the number of such parking spaces on any premises as are not individually delineated by permanently marked lines is to be assessed in accordance with this clause.’

56 Clause 7(1) is attracted where spaces are ‘not individually delineated by permanently marked lines’. The photographs show that the paint used by the carwash operator to delineate the spaces on the rooftop is still visible, even if somewhat faded. It has stood the test of time. The Tribunal is satisfied that, by applying the paint, the carwash operator ‘individually delineated’ parking spaces ‘by permanently marked lines’. It follows that clause 7(1) does not apply.

Power of reassessment

57 Section 9 of the Taxation Administration Act 1996 empowers the Chief Commissioner to make reassessments of liability to taxation. The Applicant argues that the power to reassess is limited to the circumstances set forth in subsection (3), and that reassessments ought not have been ‘backdated’ for the five tax years in question.

58 There is no evidence that the Chief Commissioner exercised the power of reassessment in this case. The decision under review is a decision to make an initial assessment of the taxpayer’s liability, pursuant to section 8 of the Act. That power is not subject to the restrictions set forth in section 9(3).

Number of leviable spaces

59 It remains to determine the number of spaces in respect of which a levy is payable. The calculation of levies by reference to the number of parking spaces is ‘a unitised form of measurement so that big car parks pay more tax than small ones’: Chief Commissioner of State Revenue v Hayson Group of Companies Pty Limited (RD) [2005] NSWADTAP 51 [at 19].

60 The effect of clause 7(1) is to prescribe a method of calculation where spaces are not individually delineated. Though the Act does not expressly deal with the situation where they are so delineated, the implication is that, in such cases, the number of leviable spaces is equal to the number of delineated spaces. In this case, there were eighteen such spaces.

61 The applicant argued that only three of the spaces were properly leviable, because only three were reasonably capable of use for parking. Use of the remaining fifteen spaces for parking, it said, would constitute a danger to health, as each fell wholly or partly within a 5 metre radius of the mobile phone tower and antennae.

62 The Tribunal is satisfied that parking within the five metre radius would constitute a danger to health, though the severity of the danger posed would probably depend on the length of time each driver remained within the radius. The issue is whether spaces which otherwise satisfy the definition of ‘parking space’ in section 4 cease to be leviable if it is demonstrated that, for one reason or another – including a danger to health – they are not reasonably capable of use as a parking space.

63 The touchstone of liability under section 9 is not whether spaces are reasonably capable of being used for parking, but whether they have been ‘used’ for parking, or ‘set aside’ for such use. For the reasons given, the Applicant has failed to demonstrate, in respect of any of the years in question, that any of the delineated spaces was not used for parking. It follows that each of the delineated spaces was leviable.

64 It is strictly unnecessary to consider whether a danger to health is sufficient to demonstrate that a space has not been ‘set aside’ for parking. Nevertheless, as it was argued, it is appropriate to do so. Whether a space is set aside for a purpose is a question of intent, to be determined by reference to all the surrounding circumstances. The fact that a space may be unusable is one of those circumstances. In this case, there is no evidence that the carwash operator appreciated the dangers posed by the mobile phone tower and antennae. It is likely that, when he delineated the eighteen spaces, he intended to set aside each of them for parking.

65 The next issue is whether, from a particular point in time, the spaces ceased to be set aside for parking, because a contrary intention was evinced. Mr Jin appreciated the health hazard posed by the phone tower and antennae. He warned Mr Lu. Mr Lu appreciated the danger. He warned his taxi drivers.

66 Nevertheless, cars continued to be parked within the dangerous area throughout the period in question. Both Mr Jin and Mr Lu were aware of it. There is no evidence that they did anything to bring it to an end. The Tribunal is satisfied that, though Mr Jin and Mr Lu disapproved of the parking of vehicles within the five metre radius, they tolerated it throughout the period in question. Even if each preferred that parking within the five metre radius should cease, neither demonstrated an intention that it cease. In those circumstances, the Tribunal cannot be satisfied that either evinced an intention, prior to 9 July 2010, that delineated spaces within the five metre radius should cease to be set aside for the kind of parking which was ancillary to the use of the rooftop as a changeover station.

67 In the alternative, the applicant argued that only nine spaces were leviable, because only nine vehicles could fit conveniently on the rooftop. For the reasons already given, the Tribunal has found that each of the delineated spaces was wide enough to accommodate a motor vehicle, even if only nine vehicles of the size of Mr Jin’s 8-seater vehicle could fit comfortably. In any event, the spaces suggested as appropriate between vehicles by Mr Jin appeared to the Tribunal to be unnecessarily generous. It is not satisfied that only nine 8-seater vehicles could fit on the rooftop side by side.

68 For those reasons, the Tribunal is not persuaded that the Chief Commissioner ought to have calculated the number of spaces in a fashion more favourable to the Applicant.

Remission of interest

69 Section 25 of the Taxation Administration Act 1996 empowers the Chief Commissioner to remit interest ‘in such circumstances as the Chief Commissioner considers appropriate’.

70 In respect of interest at the market rate, that power should be exercised ‘rarely, if ever ... otherwise tax would be paid at a devalued amount thereby discriminating against taxpayers who meet their obligations on time …’: Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19 at [60]. Exceptional circumstances are required. They include:

‘... cases where the ‘tax default’ is entirely due to a fault of the Chief Commissioner … [and] situations completely out of the control of the taxpayer, such as postal strikes, serious illness of the taxpayer and natural disasters (bush fires, floods and earthquakes)’: Trust Co of Australia v Commissioner of Sate Revenue [2002] NSWADT 21 at [27].

71 The Applicant submits that interest should be remitted, because of ‘its genuine belief, from 2003 to 2009, that the area in question had been leased to the Taxi company’. That belief was correct. However, the fact that the rooftop had been leased to a taxi company did not prevent its use for parking. In the circumstances of this case, use of the rooftop as a taxi changeover station entailed its use for parking of taxis and other vehicles. The mere belief that it was leased to a taxi company would not justify the remission of interest at the market rate.

72 The Applicant also submits that interest should be waived, because clause 3 of the sublease forbad use of the rooftop as a car park, and it had no knowledge that it was being used for that purpose. For the reasons given, the Tribunal is not satisfied that Monsgrove, by its directors, was unaware of the use to which the rooftop was put – that is, for the parking of taxis between shifts and of the private vehicles of taxi drivers during shifts. The mere fact that clause 3 of the sublease forbad use as a car park did not in fact prevent the parking of taxis, or of private vehicles owned by taxi drivers. On the contrary, the use of the rooftop for the purposes of a taxi changeover station entailed that use. Even if it were otherwise, none of these circumstances is of such an exceptional nature as to justify the remission of interest at the market rate. Nor is it exceptional that the amount of the levy might be recoverable from a tenant under the lease.

73 For these reasons, the Tribunal is not satisfied that there is sufficient reason to remit interest under section 25 of the Taxation Administration Act 1996.

Orders

74 The Chief Commissioner’s decision to impose the parking space levies under review is confirmed.

75 The Chief Commissioner’s decision to impose interest is also confirmed.