Nagham Pty Ltd (ATF Nagham Family Trust) v Chief Commissioner of State Revenue

[2019] NSWCATAD 147

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nagham Pty Ltd (ATF Nagham Family Trust) v Chief Commissioner of State Revenue [2019] NSWCATAD 147

Hearing dates:

7 February 2019

Date of orders:

31 July 2019

Decision date:

31 July 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R L Hamilton S.C, Senior Member

Decision:

1. The application so far as it relates to the 2016 land tax year is dismissed for want of jurisdiction.

 

2. The application so far as it relates to the 2017 land tax year is dismissed for want of jurisdiction subject to Order 3

 3. Order 2 takes effect 21 days after publication of these reasons unless the applicant, within that time, files and serves:
a) an amended application for review; and
b) an application to extend the time for the Tribunal to review the 2017 position setting out the reasons (supported by evidence) why the application is made out of time and why the application should be allowed.

Catchwords:

TAXES AND DUTIES- objections against assessment- out of time-jurisdiction of Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997
Land Tax Management Act 1956
Taxation Administration Act 1996

Cases Cited:

B & L Linings Pty Limited & Anor V Chief Commissioner of State Revenue [2008] NSWCA 187

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Nagham Pty Ltd (ATF Nagham Family Trust) (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Counsel:
H George (agent for Applicant)
A Byrne (Respondent)

  Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2018/253532

Publication restriction:

Nil

REASONS FOR DECISION

1. This case raises the issue of whether the Tribunal has jurisdiction in the matter. The Tribunal gets its jurisdiction in State revenue matters from section 96(1) Taxation Administration Act 1996 (TAA) and section 9 Administrative Decisions Review Act1997.

2. What is required as a basis for its jurisdiction is a taxpayer who is dissatisfied with an assessment or other decision by the Chief Commissioner (s 86 TAA).The taxpayer may then object in writing. The Chief Commissioner then determines the objection (s 91 TAA). A taxpayer dissatisfied with the objection decision may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the assessment (or decision) of the Chief Commissioner that has been the subject of an objection. The Tribunal determines whether that assessment (or decision) is correct (B & L Linings Pty Limited & Anor V Chief Commissioner of State Revenue [2008] NSWCA 187 at [123]).

3. In the present case the taxpayer disputed the quantum of its liability to land tax for the for land tax years as at 31 December 2014 to 31 December 2017. The land tax year is the calendar year that next follows the relevant 31st of December. The quantum of the liability depended on whether the applicant is regarded as the trustee of a “special trust” or a “fixed trust” under section 3A of the Land Tax Management Act 1956.

4. I shall not go into detail on this question because the issue may need to be determined at a later time.

5. There were a number of attempts by the taxpayer through amendments to, and late stamping of, the trust deed to qualify the trust estate as a “fixed trust”.

6. Ultimately the Chief Commissioner accepted it as a “fixed trust” as at 31 December 2017 only (i.e. for the 2018 land tax year).

7. There remain assessments for two land tax years in dispute – the 2016 and 2017 land tax years.

8. For the 2016 land tax year the taxpayer was issued with a land tax assessment on 6 December 2016.

9. The taxpayer lodged an objection dated 17 April 2018 mentioning this assessment, as well the 2017 and 2018 years.

10. Section 89 TAA requires that objections to assessments be lodged within 60 days of the assessment being issued. Section 90 TAA requires a taxpayer who wishes an extension so a late objection can be considered to state fully and in detail and in writing the circumstances and reasons for the failure to lodge the objection within the 60 day period prescribed.

11. The objection dated 17 April 2018 did not provide any reasons for the lodgement out of time. Because no reasons for the delay in lodging the objection were provided as required by s 90 the Chief Commissioner treated the 2016 objection as being invalid and submitted that the Tribunal does not have jurisdiction to review an objection that has not been determined and has not been refused an extension of time.

12. The taxpayer was invited by the Chief Commissioner to provide reasons for lateness of the objection and reasons why it should be allowed out of time, and further advised that there was an opportunity to review a decision not to allow a late objection at the time. It has not accepted the invitation.

13. In my view there has been no decision to refuse to permit the objection to be lodged out of time, and no decision on the objection. Therefore at this point there is no decision by the Chief Commissioner available for review by the Tribunal for the purposes of s 96 TAA.

14. For the 2017 land tax year the taxpayer was issued with an assessment on 16 February 2017. An objection was lodged on the 25 February 2017. The objection was disallowed on 8 April 2017. The taxpayer was informed that it could seek further review in the Tribunal or Supreme Court and provided with a fact sheet relating to rights of review.

15. Rather than follow this course the taxpayer decided to lodge a second “objection” dated 10 July 2017. The taxpayer was advised on 26 July 2017 that as the first objection had already been determined the second “objection” could not be dealt with. Once again the taxpayer was advised of its options concerning review of the first objection decision. The fact sheet provided to the taxpayer sets out the time limits for the filing of applications for review.

16. On 23 August 2018 taxpayer lodged an application with the Tribunal for review of the second “objection” decision (i.e. more than 14 months after the latest time for lodgement of an application for review of the first objection decision unless an extension was granted). No application for an extension of time was made to the Tribunal then (see section 99 TAA) and no reasons were provided for the delay, except by way of submissions from the bar table that there was confusion in the mind of those who controlled and advised the taxpayer.

17. Even if the tribunal were to treat the incorrect referral of the second “objection” decision as a referral of the first objection decision, it has no evidence before it to enable it to consider whether it should allow the application to be made out of time.

18. Accordingly I find that the Tribunal presently has no jurisdiction to hear this matter in relation to the 2017 year. The Tribunal must consider whether it should allow the application for review to be made out of time. It is a matter for the taxpayer as to whether it wishes to revisit and regularise the position.

19. To allow the taxpayer to consider its position, but also to bring certainty to the respondent I will order that the matter, so far as it relates the 2016 land tax year, be dismissed for want of jurisdiction.

20. I will order that the matter, so far as it relates to the 2017 land tax year, be dismissed for want of jurisdiction, with the order to take effect 21 days after publication of these reasons unless the applicant within that time files and serves an amended application in the Tribunal and an application to extend the time for lodgement of the application for review, accompanied by reasons (supported by evidence) why it is out of time and why the application should be allowed.

Order

1. The application so far as it relates to the 2016 land tax year is dismissed for want of jurisdiction.

2. The application so far as it relates to the 2017 land tax year is dismissed for want of jurisdiction subject to Order 3

3. Order 2 takes effect 21 days after publication of these reasons unless the applicant, within that time, files and serves:

1. an amended application for review; and

2. an application to extend the time for the Tribunal to review the 2017 position setting out the reasons (supported by evidence) why the application is made out of time and why the application should be allowed.

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

Registrar

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

Decision last updated: 31 July 2019