Naswari v Commissioner of State Revenue
[2013] QCAT 66
| CITATION: | Naswari v Commissioner of State Revenue [2013] QCAT 66 |
| PARTIES: | Kristy Ann Naswari (Applicant) |
| v | |
| Commissioner of State Revenue (Respondent) |
| APPLICATION NUMBER: | GAR302-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | David Paratz, Member |
| DELIVERED ON: | 31 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The part of the Application to Review in respect of the Reassessment of Transfer Duty is dismissed. 2. The part of the Application to Review in respect of the decision of the Commissioner made on 21 June 2012, which disallowed the objection to the decision of the Commissioner which required Ms Naswari to repay the First Home Owner Grant, and imposed a penalty amount, is listed for a Compulsory Conference at Brisbane at 9.30am on 6 March 2013. 3. The parties must attend the Compulsory Conference in person, or be represented by a person who has authority to settle (or to make a recommendation for settlement of) the dispute for that party. 4. At least seven days before the Compulsory Conference the parties must file in the Tribunal, and give copies to the other party, any documents they rely on which have not already been provided. |
| CATCHWORDS: | First Home Owners Grant – reassessment of concessional transfer duty – requirement to repay grant – jurisdiction of QCAT to hear application when transfer duty has not been paid within 60 days of Notice of decision on objection Taxation Administration Act 2001, s 69 Fleri v Commissioner of State Revenue [2012] QCAT 135 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is the decision on a preliminary issue in this matter as to reassessment of transfer duty.
Ms Naswari filed an application on 21 August 2012, for review of a decision of the Commissioner of State Revenue.
Ms Naswari bought a house at 34 Queen Street, Blackstone, Queensland for $425,000. The contract was dated 6 March 2009.
She applied for a First Home Owner Grant and this was paid to her on 15 April 2009, the day after she became entitled to possession.
She also claimed a concessional rate of transfer duty as a first home buyer.
Ms Naswari signed a Form OSR 2.1 at the time of purchase – Claim for home / first home transfer concession. This declared that she would advise the Commissioner in the event that she disposed of the property, by transferring, leasing or otherwise granting exclusive possession of all or part of it, either before occupying it as her principal place of residence or within one year of occupation.
On 10 June 2009 she appointed Curry Real Estate as letting agent and property manager of the property.
On 12 June 2009 a general tenancy agreement was entered into with tenants who stayed in the property until at least 6 April 2011.
The Commissioner conducted a data matching exercise which revealed the tenancy. The Commissioner then required Ms Naswari to provide further information.
The Commissioner issued a reassessment on 3 November 2011 which required Ms Naswari to pay further transfer duty in relation to the acquisition, as well as penalty tax and unpaid tax interest.
The Commissioner also issued a Notice of Decision on 3 November 2011 which required Ms Naswari to repay the grant, and imposed a penalty amount.
Ms Naswari objected to the reassessment and to the Notice of Decision on 23 December 2011. On 21 June 2012 the Commissioner disallowed the objections of Ms Naswari.
Ms Naswari then applied to this Tribunal on 28 August 2012 for a review of the decision to disallow her objections.
The Commissioner filed an application on 23 October 2012 seeking that the application to dismiss in respect of the reassessment be determined on a preliminary basis; and for directions as to progress of the remainder of this matter (involving the grant) to a compulsory conference.
On 5 December 2012 an order was made requiring Ms Naswari to file submissions on the Commissioner’s application by 10 December 2012, and ordering that the application be determined on the papers after that date.
On 12 December 2012 Ms Naswari filed a letter advising that she had paid the full amount of the reassessment of $18,060.47 on 7 December 2012.
The Commissioner filed submissions on 14 January 2012 in response to the letter of Ms Naswari. The Commissioner relied on the submissions made in Annexure A of the application filed on 23 October 2012, and further submitted as follows:
8. Section 69(1)(b) of the Taxation Administration Act 2001 (Qld) clearly prescribes a pre-condition to the right for a review under section 69(2) of the TAA. That right does not exist unless and until the pre-condition in section 69(1) is satisfied. The application to QCAT can only be validly made after the payment is made in full and such application must be made within 60 days after notice was given of the decision on the objection.
9. It is not now possible for this position to be corrected. Neither the Commissioner nor QCAT has any discretion to permit the Application for review to be heard in relation to the Reassessment or to permit a fresh application to be made to QCAT see Fleri v Commissioner of State Revenue [2012] QCAT 135; Cowie v Commissioner of State Revenue [2012] QCAT 612.
Section 69 of the Taxation Administration Act 2001 provides:
69. Right of appeal or review
(1) This section applies to a taxpayer if –
(a) the taxpayer is dissatisfied with the commissioner’s decision on the taxpayer’s objection; and
(b) the taxpayer has paid the whole amount of the tax and late payment interest payable under the assessment to which the decision relates.
(2) The taxpayer may, within 60 days after notice is given to the taxpayer of the commissioner’s decision on the objection –
(a) appeal to the Supreme Court; or
(b) apply, as provided under the QCAT Act, to QCAT for a review of the commissioner’s decision
(3) QCAT may not, under the QCAT Act, section 61(1)(a), extend the period under subsection (2) within which the taxpayer may apply to QCAT for the review.
A similar situation was considered in Fleri v Commissioner of State Revenue [2012] QCAT 135. In that case, payment of a reassessment had not been paid within the 60 day period. The learned member found at [15] that:
[15] On the other hand the requirement for the payment of the tax and penalty is part of the requirements before the section is said to apply. This then is a substantive provision and jurisdiction is not enlivened until section 69(1) has been complied with.
I agree with the reasoning of the learned member in Flori.
A similar situation occurred and similar result was also found in Cowie v Commissioner of State Revenue [2012] QCAT 612. In that case the learned member said at [13]:
[13] As the tribunal found in the Fieri decision a right to review a decision of the Commissioner is conditional upon compliance with section 69(1) of the Taxation Administration Act 2001 and so the tribunal jurisdiction is not enlivened unless and until there is compliance with those requirements. Non-compliance cannot be waived by the tribunal under section 61 of the QCAT Act.
Ms Naswari did not pay the amount of the reassessment within 60 days of being given notice of the Commissioner’s decision on her objection, and has not complied with s 69(1) of the TAA Act.
This Tribunal is prohibited by s 69(3) of the TAA Act from extending the time period of 60 days.
Ms Naswari is accordingly unable to apply to this Tribunal for a review of the decision of the Commissioner, and her application is misconceived within s 47(1)(a), and lacks substance within s 47(1)(b), of the QCAT Act.
Section 47(2)(a) of the QCAT Act provides that the Tribunal may order that part of the proceeding be dismissed if s 47(1) applies.
I order that the part of the application to review in respect of the reassessment of transfer duty be dismissed.
I make the following directions as to the balance of the application:
1.The part of the application to review the decision of the Commissioner made on 21 June 2012, which disallowed the objection to the decision of the Commissioner which required Ms Naswari to repay the First Home Owner Grant, and imposed a penalty amount, is listed for a compulsory conference at Brisbane at 9.30am on 6 March 2013.
2.The parties must attend the Compulsory Conference in person, or be represented by a person who has authority to settle (or to make a recommendation for settlement of) the dispute for that party.
3.At least seven days before the compulsory conference the parties must file in the Tribunal and give to the other party any documents they rely on which have not already been provided.
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