North West Melbourne Recycling Pty Ltd v Commissioner of State Revenue
[2017] VSC 647
•27 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
TAXATION LIST
S CI 2016 04260
| NORTH WEST MELBOURNE RECYCLING PTY LTD (ACN 087 766 514) | Plaintiff |
| v | |
| COMMISSIONER OF STATE REVENUE | Defendant |
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JUDGE: | CROFT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 October 2017 |
DATE OF JUDGMENT: | 27 October 2017 |
CASE MAY BE CITED AS: | North West Melbourne Recycling Pty Ltd v Commissioner of State Revenue |
MEDIUM NEUTRAL CITATION: | [2017] VSC 647 |
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TAXATION – Land tax – Application for refund of all or part of the amounts of land tax paid – Commissioner of State Revenue (Vic) v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349 – Taxation Administration Act 1997 ss 18–20.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J de Wijn QC with Mr T Grace | Hope Earle |
| For the Defendant | Mr P Solomon QC with Ms K O’Gorman | Solicitor for the Commissioner of State Revenue |
HIS HONOUR:
Introduction
The issue for determination in these proceedings is whether the Plaintiff, North West Melbourne Recycling Pty Ltd, is entitled to a refund under Part 4 of the Taxation Administration Act 1997 (“the TAA”) of all or part of the amount of land tax paid under the Land Tax Act 2005 (“the LTA 2005”) in respect of the Subject Land[1] for the 2011 to 2014 tax years, notwithstanding that it did not object to the assessments pursuant to which the tax was paid.
[1]Being the land described in the Statement of Agreed Facts (25 August 2017) as the land located at 475 Cooper Street, Epping, more particularly described as the land represented by Certificate of Title Volume 11246, Folio 978 and being Lot 2 on Plan of Subdivision 629878U (within the City of Whittlesea).
The issue is quite a narrow one in that the Plaintiff asserts its entitlement to a refund of land tax on the basis of a plain reading of Part 4 of the TAA, particularly sub-ss 18(2), 19(2A) and s 20.[2] The Commissioner, on the other hand, says that the existence of extant land tax assessments is a bar to a refund application under these provisions, particularly s 19(1).[3]
[2]See Transcript (16 October 2017) at 8–11.
[3]See Transcript (16 October 2017) at 23.
Factual matters
The Plaintiff paid amounts of land tax as assessed by the Commissioner which included amounts based on an incorrect taxable value of the Subject Land. The Commissioner’s assessments for the relevant years were based on City of Whittlesea valuations of the Subject Land which it is now agreed were incorrect. It is agreed that at all relevant times the site value[4] and hence the taxable value, of the Subject Land was $1.00.[5] It follows from the agreed value of the Subject Land that the land tax correctly imposed on the taxable value of the land under the LTA 2005 is negligible; as submitted by the Plaintiff, probably a fraction of one cent. It follows that, had the Plaintiff paid land tax in accordance with the correct taxable value of the Subject Land, it would have paid $244,486.87 less in land tax than it in fact paid.
[4]The formulation of the agreed fact in the Statement of Agreed Facts (25 August 2017), [11] mimics the definition of site value in s 2(1) of the Valuation of Land Act 1960. The definition of taxable value of land is its site value: see s 19 of the Land Tax Act 2005.
[5]Statement of Agreed Facts (25 August 2017), [11].
There is no factual dispute between the parties and the factual matters to which reference has been made are derived from the Statement of Agreed Facts in these proceedings.
Legislative scheme
It is clear that the relevant taxation legislation, in this case the LTA 2005, imposes the liability to tax while the legislative scheme, contained in the TAA and related legislation, provides for a process of assessment and collection of the imposed liability. It is fair to say that this point is uncontroversial and is one which has been made in many cases; generally where a distinction is drawn between a liability for tax on the one hand, and the date on which the liability is due for satisfaction by payment on the other hand. By way of example, reference is made to the statement of Gibbs J in Re Mendonca:[6]
It is now well settled that the effect of these and similar provisions is that the liability to income tax is imposed by the statute itself and that assessment is only a method of ascertaining the extent of the liability, so that the tax is a debt due and owing, although not payable, notwithstanding that no assessment has been made (Commissioner of Stamps (WA) v West Australian Trustee Executor and Agency Co Ltd (1925) 36 CLR 98, at pp 105, 116, 118; Aitken v Federal Commissioner of Taxation (1936) 56 CLR 491, at p 497; In re Brown (1950) 15 ABC 74, at pp 80-84; cf Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32, at pp 58, 63.”[7]
[6]Re Mendonca; ex parte Federal Commissioner of Taxation (1969) 15 FLR 256 at 259.
[7]See also Perram J in Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 8) (2013) 302 ALR 634 at 559 [17]: “It is true, as Re Mendonca holds, that the liability to tax is generated by the ITA 1986 and not the notice of assessment itself but the liability vindicated in debt recovery proceedings is not the liability to tax generated by the ITA 1986 but the statutory debt created by the TAA 1953 upon the issue and service of a notice of assessment.”
Part 2 of the LTA 2005 contains provisions which impose land tax on the taxable value of land at the rates set out in Schedule 1 to that legislation. The land tax assessment process is now dealt with primarily in Part 3 of the TAA, but also in Division 2 of Part 3 of the LTA 2005. Section 8 of the TAA provides that the Commissioner may make an assessment of a tax liability of a taxpayer. The term assessment in the TAA is limited to one made under Part 3 of the TAA and requires a liability upon which to operate which is, in this case, imposed under the LTA 2005.
Unsurprisingly, many, if not most, taxing schemes provide for a statutory regime by which tax incorrectly assessed and paid can be recovered and, or alternatively, assessments challenged. These provisions, to various degrees, often seek to exclude collateral proceedings to recover overpaid tax or to challenge assessments. These schemes have sometimes been referred to as “codes”, although care needs to be taken with this term as it seems to be accepted that in an appropriate case tax disputes may be resolved by seeking declaratory relief.[8]
[8]See, for example, Sandini Pty Ltd v Federal Commissioner of Taxation (2017) ATC 20-610 at [28]ff.
Unlike the Commonwealth income tax legislation where the statutory scheme provides only one method of challenging an assessment—namely, the objection and review process—and provides no other statutory scheme for the recovery of overpaid income tax, the land tax scheme in Victoria has, since 1910, provided for alternative statutory avenues for the recovery of tax and disputing assessments. These alternative statutory schemes are the objection and review process, with its own refund and appropriation provisions, which are now found in Part 10 of the TAA, and the refund scheme now found in Part 4 of the TAA, also supported by an appropriate power.[9]
[9]Taxation Administration Act 1997, s 121(1).
The predecessor and substantially similar schemes under the Land Tax Act 1958 (“the LTA 1958”) were considered in the ACN case[10] as alternatives but which together formed a “code” outside of which the taxpayer could not go. Sloss J at first instance in ACN after describing the objection and review process said:[11]
Where a taxpayer contends that it has overpaid tax, the LTA 1958 also provides another means for the taxpayer to claim a refund or to recover tax paid…
[Plaintiff’s emphasis]
[10]ACN 005 057 349 Pty Ltd v Commissioner of State Revenue (2015) 100 ATR 817 (Sloss J); and Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349.
[11]ACN 005 057 349 Pty Ltd v Commissioner of State Revenue (2015) 100 ATR 817 (2015) 100 ATR 817 at 877 [188]; see also at 846 [79].
The passage quoted from the Treasurer’s Second Reading Speech[12] by Sloss J also stresses that the objection route and the statutory refund route were alternatives.[13] It should also be noted that, as in this case, in the ACN case the tax was paid pursuant to assessments which had not been objected to. As is discussed further in more detail in these reasons, the High Court in ACN approved both the decision and the reasoning of Sloss J.[14]
[12]Victoria, Parliamentary Debates, Legislative Assembly, 21 October 1993, 1254 (Alan Stockdale, Treasurer); see also Sloss J in ACN 005 057 349 Pty Ltd v Commissioner of State Revenue (2015) 100 ATR 817 at 835–6 [47] where her Honour quotes from this Second Reading Speech (introducing the State Taxation (Further Amendment) Bill 1993). This part of the Second Reading Speech was also referred to by Gageler J in Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349 at 366 [93].
[13]ACN 005 057 349 Pty Ltd v Commissioner of State Revenue (2015) 100 ATR 817 at 877–8 [189].
[14]See, for example, Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349 at 353 [7] referring there to [106] of ACN 005 057 349 Pty Ltd v Commissioner of State Revenue (2015) 100 ATR 817.
The Plaintiff submits that it follows from the nature and terms of the statutory scheme, its history, and its judicial interpretation that although taxpayers cannot seek to recover land tax outside of the statutory refund scheme or the objection and review scheme, they are, nevertheless, alternative and overlapping schemes. Thus it is said that taxpayers are free to seek to recover land tax under, but in accordance with, either of these schemes. It follows, the Plaintiff contends, that the existence of a separate objection right to an assessment for land tax is not a bar to a claim for a refund under Part 4 of the TAA. Moreover, it is said that sub-s 19(2A) of the TAA inevitably leads to this conclusion. The Plaintiff also notes that in the present circumstances, it did not have an objection right under the TAA by reason of the provisions of s 97(3) of that Act. Thus, it is said that whatever objection rights the taxpayer may have had could only arise under the Valuation of Land Act 1960. Moreover, the Plaintiff submits that sub-s 18(2) of the TAA demonstrates that Part 4 of that Act is not to be read down by virtue of other provisions of the TAA or, for that matter, provisions of any other taxation legislation. The Commissioner’s position is, that in spite of these provisions, the existence of extant land tax assessments is a necessary bar to a refund application under s 19(1) of the TAA.
Land Tax Acts
As already observed, since the Land Tax Act 1910, the land tax legislation has provided for two overlapping and alternative schemes for the recovery of overpaid land tax. Sub-section 88(1) of the 1910 Act provided:
No application for a refund of an overpayment shall be entertained by the Commissioner unless made within twelve months after such overpayment was made; or if there has been an objection then within three months after the date of the decision on such objection.
The 1910 scheme was replicated in the Land Tax Act 1928,[15] and again in the LTA 1958.[16] In 1974, the refund provisions were broadened by the introduction of s 90(2), which replaced ss 90(2) to (4). This subsection provided:[17]
Where the Commissioner finds in any case that tax has been overpaid he may refund to the taxpayer who paid the tax the amount of tax found to have been overpaid.
[15]See s 87(3).
[16]See ss 90(2)–(3).
[17]Amendment introduced by the Land Tax (Amendment) Act 1974.
Further changes were introduced by the State Taxation (Amendment) Act 1992 which introduced, and in some cases amended, refund provisions in various State taxing Acts in response to the Full Court’s decision in Royal Insurance Australia Ltd v Comptroller of Stamps (Vic).[18]
[18](1992) 23 ATR 528.
In his Second Reading Speech introducing the State Taxation (Amendment) Bill 1992, the then Treasurer, Mr Stockdale, said:[19]
Various refund provisions in Acts administered by the commissioner allow the commissioner to refund tax or duty where he finds that tax or duty has been overpaid. However, those provisions and their interstate counterparts have been interpreted by the revenue authorities of this State and other States as not requiring or even allowing a refund if the overpayment is made as a result of a mistake of law. The Full Court of the Supreme Court of Victoria has recently decided that a refund provision in the Stamps Act places an obligation on the commissioner to refund overpaid duty in all circumstances. The commissioner is seeking special leave to the appeal the decision to the High Court. If special leave is denied or if the appeal is eventually dismissed by the High Court, under existing refund provisions the commissioner will be obliged to refund amounts overpaid no matter how long ago the overpayment occurred.
The government considers that taxpayers who have overpaid tax or duty are entitled to a refund of that tax or duty. However, there must be a point in time in which taxation matters are finalised. The amendments proposed by the Bill ensure that taxpayers are entitled to refunds of tax or duty overpaid up to three years before the date the application for a refund is lodged with the State Revenue Office.
[19]Victoria, Parliamentary Debates, Legislative Assembly, 6 November 1992, 566 (Alan Stockdale).
The 1992 Amending Act replaced the former refund provision of s 90(2) of the LTA 1958 with the following refund provision (as s 90(2)):
If the Commissioner—
(a)receives an application for a refund of overpaid tax not more than 3 years after the overpayment; and
(b)finds that the tax has been overpaid by the applicant—
the Commissioner must—
(c)refund the amount of the overpaid tax; or
(d)apply the amount of the overpaid tax against any liability of the applicant to the Crown …
The State Taxation (Further Amendment) Act 1993 repealed s 90(2) of the LTA 1958 and replaced it with a new refund provision, s 90AA, being the refund provision that was considered in the ACN case. The critical legislation considered in that case, s 90AA, which was inserted by the 1993 Amending Act, provided as follows:
90AA. Refund of Tax
(1)Proceedings for the refund or recovery of tax paid under, or purportedly paid under, this Act … must not be brought, whether against the Commissioner or otherwise, except as provided in this section.
(2) If a person claims to be entitled to receive a refund of or to recover tax paid under, or purportedly paid under, this Act, the person must lodge with the Commissioner within 3 years after the payment was made an application in the prescribed form for the refund of the payment.
(3)If –
(a)a person has lodged an application for the refund of an amount in accordance with sub-section (2); and
(b)the Commissioner has not, within the period of 3 months after the application was lodged—
(i)refunded the amount; or
(ii)applied the amount … ; or
refunded part of the amount and applied the remainder in accordance with sub-section (6)(d)—
or has, in writing given to the person within that period, refused to make a refund, the person may, within 3 months after the end of that period or after that refusal, whichever first occurs, bring proceedings for the recovery of the amount …
(4)Sub-section (3) applies whether or not the period for bringing proceedings for the refund or recovery of the amount prescribed by section 20A(1) of the Limitation of Actions Act 1958 has expired.
(5)Sub-sections (1) and (2) do not apply to a person if the person claims to be entitled to receive a refund or to recover tax paid under, or purportedly paid under, this Act by reason of the invalidity of a provision of this Act.
(6)If—
(a)an application for a refund is lodged with the Commissioner in accordance with sub-section (2); and
(b)the Commissioner finds that an amount has been overpaid by the applicant—
the Commissioner—
(c)must refund the overpaid amount; or
(d)must:
(i)apply the overpaid amount against any liability of the applicant to the State, being a liability arising under … an Act of which the Commissioner has the general administration; and
(ii)refund any part of the overpayment that is not so applied.
(7)If, under this section, the Commissioner determines to refund an amount, the amount is payable from the Consolidated Fund which is to the necessary extent appropriated accordingly.
(8)In this section, “proceedings” includes—
(a)seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; or
(b)seeking any order under the Administrative Law Act 1978.
The 1993 Amending Act also added a limitation of jurisdiction clause, in s 92A, as follows:
It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining proceedings of a kind to which section 90AA(1) applies, except as provided in that section.
Taxation Administration Act
The TAA commenced operation on 1 July 1997 and, at that time, applied only to three State taxes, namely, financial institutions duty, debits tax and payroll tax.[20] When introducing the Bill for this legislation, namely, the Taxation Administration Bill, the then Treasurer, Alan Stockdale, made reference to the refund provisions in his Second Reading Speech, initially as follows:[21]
In 1993, Victorian refund provisions in all taxing acts were amended after an exhaustive review and have been shown to work effectively. These provisions are included in this bill in their current form. Other jurisdictions, which had not developed similar provisions, have chosen to adopt slightly different models.
The Commissioner of State Revenue must still refund an overpaid amount, provided the taxpayer lodges a completed refund application, within three years of the overpayment being made. The Commissioner may offset the refundable amount against any other existing tax liability. If a refund under the provisions has not been made or has been refused, the taxpayer may, within three months of the end of the period or on refusal, institute recovery proceedings for amounts outstanding.
Later in the Second Reading Speech, the Treasurer made reference to s 85(5) of the Constitution Act 1975:[22]
Section 18 of the legislation establishes a procedure, the adherence to which is a condition precedent to taking any further action for recovering refunds. The refund provisions replicate those existing in the current taxation acts. The purpose of the provisions is to give the commissioner the opportunity to consider a refund application before any collateral legal action can be taken. The purpose of these provisions would not be achieved if the commissioner’s actions were subject to judicial review.
[20]Section 4 of the Taxation Administration Act 1997 (as originally enacted).
[21]Victoria, Parliamentary Debates, Legislative Assembly, 10 April 1997, 652 (Alan Stockdale, Treasurer).
[22]Victoria, Parliamentary Debates, Legislative Assembly, 10 April 1997, 654 (Alan Stockdale, Treasurer).
As originally enacted in 1997, the refund provisions contained in ss 18 and 19 of the TAA provided, as follows:
18. Application of Part
(1)Proceedings for the refund or recovery of tax paid or purportedly paid under a taxation law, whether before or after the commencement of this section, must not be brought, whether against the Commissioner or otherwise, except as provided in this Part.
(2)This Part has effect despite the provisions of another taxation law.
(3)Sub-section (1) and section 19 do not apply to a taxpayer if the taxpayer claims to be entitled to receive a refund or to recover tax paid or purportedly paid under a taxation law by reason of the invalidity of a provision of that law.
(4)In this Part, “proceedings” includes—
(a)seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; or
(b)seeking any order under the Administrative Law Act 1978.
19. Application for refunds
(1)If a taxpayer claims to be entitled to receive a refund of or to recover tax paid or purportedly paid under a taxation law, the taxpayer must lodge with the Commissioner within 3 years after the payment was made an application for the refund of the payment.
(2)An application for a refund cannot be made if the Commissioner has previously served a notice of assessment of the tax liability of the taxpayer in respect of the matter in respect of which the payment was made to the Commissioner.
(3)An application under sub-section (1) must be in a form approved by the Commissioner.
The 1997 legislation was then amended in 2001, with the addition of sub-s 18(5), as follows:[23]
For the avoidance of doubt, it is declared that an amount by which tax is overpaid is taken to be tax for the purposes of this Part.
[23]Amendment made by s 10 of the State Taxation Acts (Further Miscellaneous Amendments) Act 2001.
Further Land Tax Act and Taxation Administration Act Amendments
A major amendment occurred to the land tax legislation in 2005 with the enactment of the LTA 2005, which replaced the LTA 1958. The LTA 2005 commenced on 1 January 2006. As part of the introduction of the LTA 2005, the TAA was amended to bring the land tax legislation “under” the TAA by amending the definition of “taxation law” in the TAA to include the LTA 2005. This was a significant change because, until 2006, land tax was not subject to the TAA because the LTA 1958 was not defined as a “taxation law” for the purposes of the TAA. Rather, during the operation of the LTA 1958, that legislation provided its own “administration” provisions; which included the refund provisions contained in s 90AA, the provisions which were considered in the ACN case. An important consequential amendment made to the TAA by the LTA 2005 was to amend s 19 of the TAA to both insert a new s 19(2A) and also to add “the Land Tax Act 2005 and regulations made under that Act” as one of the “taxation laws” to which the TAA applied, in s 4 of the TAA. The effect of the insertion of sub-s 19(2A) into the provisions of s 19 was to ensure that the refund scheme which was provided for in s 90AA of the LTA 1958 was replicated in Part 4 of the TAA and applied where the tax overpaid was paid under an assessment. Indeed, the replication of the provisions of s 90AA of the LTA 1958 was the subject of submissions to this effect by the Commissioner; submissions which were supported by a table of comparative provisions as between s 90AA of the LTA 1958 and the identified corresponding provisions of the TAA.[24]
[24]See the Commissioner’s “Section 90AA Table”; and see Transcript (16 October 2017) at 15–7.
As a result of these consequential amendments, s 19(2) of the TAA has, since 1997, provided:
An application for a refund cannot be made if the Commissioner has previously served a notice of assessment of the tax liability of the taxpayer in respect of the matter in respect of which the payment was made to the Commissioner.
Nevertheless, the effect of this provision was nullified with respect to land tax by s 109 of the LTA 2005, which amended the TAA as follows:
After section 19(2) of the Taxation Administration Act 1997 insert—
(2A)Sub-section (2) does not apply to an application for a refund of tax paid or purportedly paid under the Land Tax Act 2005.[25]
Moreover, emphasising what, in my view, emerges clearly from these provisions, is the Explanatory Memorandum to the Land Tax Bill which contains the following statement in relation to the amendment made by s 109 of the LTA 2005, introducing sub-s 19(2A) into the TAA:
Clause 109 amends section 19(2) of the Taxation Administration Act 1997 (which provides that an application for refund cannot be made if a notice of assessment has already been issued), so that it does not apply for land tax purposes.
Section 19(1) of the TAA was amended subsequently to 1997, as in 2007 the reference to “3 years” was replaced with “5 years”.[26]
[25]Note: Section 109 of the Land Tax Act 2005, which made this consequential amendment to the TAA has since been repealed – so it no longer appears as section 109 of the Land Tax Act 2005 (but the amendment made by it to section 19(2) of the TAA continues – as section 19(2A)).
[26]Payroll Tax Act 2007, s 105(c).
Section 19(2A) of the TAA was itself amended in 2010 by sub-s 24(1) of the Planning and Environment (Growth Areas Infrastructure Contribution) Act 2010 to add the “GAIC” to land tax as an “excluded” tax under sub-s 19(2A) of the TAA. The Explanatory Memorandum to the Bill introducing this amendment stated:
Section 19 of the Taxation Administration Act 1997 provides for applications to be made for refunds of tax paid …
The effect of subclause (1) is that new Part 9B of the Planning and Environment Act 1987 is exempted from the limitations of section 19(2), that an application for a refund of tax paid cannot be made if the Commissioner has served a notice of assessment.
Other legislation
The Commissioner, in his submissions, makes some detailed reference to the provisions of the Valuation of Land Act 1960 (“the VLA”) with respect to the provisions of s 21 of the LTA 2005 which contains provisions with respect to use of valuations by the Commissioner.[27] In the course of these submissions, the point is emphasised that the VLA establishes a structured process by which the quantum of any valuation authority valuation may be contested and reviewed. More particularly, it is submitted that the Commissioner’s power to assess land tax does not entail any power to determine the site value of the land, and never has.[28] Concluding these submissions, the Commissioner contends:[29]
[27]Defendant’s Outline of Submissions (25 September 2017), [17]–[24].
[28]Defendant’s Outline of Submissions (25 September 2017), [17]–[22].
[29]Defendant’s Outline of Submissions (25 September 2017), [23]–[24].
23.Given that Parliament has consistently chosen not to vest in the Commissioner any power to determine the site value of the land (or to assist the valuation authorities to review their valuation of the site value of land), it would be unexpected if Parliament intended Part 4 of the Taxation Administration Act 1997 to empower the Commissioner to conduct an unfettered examination of the Subject Land’s site value.
24.Indeed, were Part 4 of the Taxation Administration Act 1997 interpreted as providing an alternative or overlapping[30] scheme by which a taxpayer may review the excessiveness of a VA Valuation, at least two unintended consequences would follow:
(a)first, that interpretation would create an alternative, unstructured process of valuation review. The entirety of the Valuation of Land Act 1960, and the structure it provides for the determination of objections to VA Valuations, would be rendered redundant. The taxpayer could circumvent the strictures of that regime simply by making use of another [unstructured] legislative regime in order to contest the taxable fact of the land’s site value;
(b)furthermore, that interpretation of Part 4 of the Taxation Administration Act 1997 would also require the courts to use judicial proceedings to examine de novo issues that s 21 of the Valuation of Land Act 1960 makes the subject of consultative, administrative examinations.
[Commissioner’s emphasis]
[30]Plaintiff’s Outline of Submissions (7 September 2017), [8].
As indicated previously, the Commissioner’s case against the Plaintiff was put on the basis that the existence of extant land tax assessments was a necessary bar to an application for a refund of land tax under s 19(1) of the TAA. As the Statement of Agreed Facts makes clear, it was agreed between the parties for the purpose of these proceedings that the value of the Subject Land is $1.[31] Consequently, these issues raised by the Commissioner with respect to the operation and possible effect of the provisions of the VLA have no relevance in the present circumstances. Indeed the issue for determination in these proceedings — and as specified in the Memorandum – Understanding between the parties[32]—would simply not arise if this were not the position.
Effect of the Land Tax Act and Taxation Administration Act provisions
[31]See Statement of Agreed Facts (25 August 2017), [11].
[32]Memorandum – Understanding between the parties (5 August 2017), [4], extracted below, [40].
It is common ground between the parties that there is no on point case law as to the construction and the application of s 19 of the TAA and the associated provisions to which reference has been made. Nevertheless, it is also common ground—though the interpretation and effect of their decision is in controversy—that the High Court decision in the ACN case provides guidance as to the approach to be applied in interpreting these current provisions.
In the ACN case, a landholder paid land tax pursuant to assessments in each of the tax years 1990 to 2002. In 2012 it became apparent that the land tax had, in error, been assessed on two blocks of land; one of which was not owned by the taxpayer. Against this backdrop, two central issues presented for determination by the High Court. First, for each tax year 1990 to 2002, was there a duty on the part of the Commissioner to reassess land tax under s 19 of the LTA 1958? Secondly, did s 90AA of the LTA 1958 bar the proceeding in any event? Although the ultimate issue in the ACN case was whether the taxpayer was confined to the statutory refund scheme provided for in s 90AA, a logically earlier issue was whether the failure to object to the assessments was, of itself, a bar to a refund under s 90AA. In my view, it is apparent from the High Court’s reasoning that the failure by the taxpayer to object to the assessments was not a bar to the seeking of a refund under the provisions of s 90AA. The High Court expressly considered the objection and review process as an alternative to s 90AA. Moreover, in my view, this position is clear from a variety of passages in the judgments of the members of the High Court, and it is to these that I now turn.
In the joint judgment of Kiefel and Keane JJ in ACN,[33] their Honours said in relation to the scope of s 90AA:[34]
7. In this regard, the Court of Appeal erred in failing to appreciate, as the primary judge rightly held, that the statutory regime of objections and appeals set out in the Land Tax Act, together with the process for claiming a refund set out in s 90AA, manifests an unmistakable legislative intention that the only scope for the Commissioner to refund money overpaid under an assessment is afforded by s 90AA(2) and (3) of the Land Tax Act. Section 92A is express confirmation of this legislative intention.
…
10. … There is no good reason to strain against the ordinary and natural meaning of the language of s 90AA as giving effect to the policy choice made by the legislature. That policy choice is plainly intended to be effective even in cases where it is clear that the assessments which led to the claimed overpayments were excessive.
[citations omitted]
[33]Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349.
[34]Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349 at 353 [7], [10].
In their joint judgment, Bell and Gordon JJ said:[35]
[35]Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349 at 359 [46], 361 [59]–[60], 363 [68], [71]–[73], 364 [75], [79].
46. The scheme of the LTA was that, once an assessment was made by the Commissioner, the amount specified in that assessment would become a debt, payable as land tax on the date specified in the assessment for payment. That amount remained payable for land tax on the date specified in the assessment even if the assessment was challenged by a taxpayer who was dissatisfied with an assessment and who served an objection on the Commissioner in accordance with the LTA. The fact that an objection was pending did not affect the assessment, and the tax assessed could be recovered by the Commissioner as if no objection had been served by the taxpayer. The provisions of the LTA that dealt with collection and recovery of land tax constituted a scheme that covered the field and “implement[ed] a long-standing legislative policy to protect the interests of the revenue”, the operation of which may, in some cases, be harsh.
…
59. Of course, if the power in s 19 was exercised to reduce the amount of an assessment, what then was to occur was to be found in the balance of the LTA. There was no express reference to a power of refund or to an appropriation in s 19. In other words, s 19 was to be read with, and as part of, the legislative scheme of the LTA. It is relevant to consider not only Pt III of the LTA, which provided for returns by taxpayers, as well as valuations and assessments of land tax, but also Pt VI, which provided for (including in s 90AA) the refund or recovery of tax paid under, or purportedly paid under, the LTA. If the amount assessed had been paid and the taxpayer had sought a refund or recovery of tax paid, then the LTA provided the taxpayer with such a right in s 90AA, but only if the conditions in that section, including the time limit, were satisfied. These provisions must and do inform the exercise of the power in s 19.
60. The scheme of the LTA provided the Commissioner with an express power of refund and made a consequential appropriation of the Consolidated Fund, both in s 90AA. If the Court of Appeal’s construction of s 19 was correct (and it is not), a power of refund and appropriation would need to be implied into s 19, obviating the need for s 90AA. That construction should be rejected. The objection and refund regime of the LTA was a ‘code’ that did not admit of a construction of s 19 that elevated it to a source of refund or recovery, independent of that regime. The objection and refund “code” was not one option among many, but was rather the only means by which a taxpayer could object to an assessment under which land tax had been ‘charged, levied and collected’ or seek recovery or a refund of tax paid or purportedly paid under the LTA.
…
68. That result is not surprising. It must be recalled that the production of an assessment was conclusive evidence both of the due making of the assessment and that the amount and all the particulars of the assessment were correct, except in proceedings on review or appeal against the assessment. When an assessment was served, amounts of land tax payable were fixed and were to be taken as fixed for all purposes, except those of review or appeal under Pt III of the LTA. The power of amendment “pre-supposes that an assessment is something creating a legal obligation”. And that logic underpinned the structure of s 19. It provided that every such alteration or addition that had the effect of imposing any fresh liability or increasing any existing liability “shall be subject to objection in the same manner and to the same extent as the original assessment”.
71. Under s 90AA(2), an application for refund of the payment had to be lodged with the Commissioner within three years of the payment being made. Proceedings could have been brought by a taxpayer where, within three months after the application for refund of the payment was lodged, the Commissioner had not refunded the overpaid amount … or had refused to make a refund, whichever occurred first. …
72. Each proceeding commenced by the taxpayer … was a claim to a refund of “tax paid under, or purportedly paid under,” the LTA and was barred. No application for refund had been lodged with the Commissioner within three years of the land tax being paid.
73. As seen earlier, the duplication error in the 1990 to 2002 assessments did not deprive the excess amount “charged, levied and collected” of the nature of being tax “paid under, or purportedly paid under, [the LTA]” … .
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75.The taxpayer’s contention that, in the event s 90AA applied to both proceedings (which it did), s 27 of the Limitation Act – which operates to postpone limitation periods in certain circumstances – meant that the limitation period in s 90AA commenced from the time that the taxpayer discovered the duplication error or from when such error was reasonably discoverable, should also be rejected. However, s 27 of the Limitation Act only applies in relation to a period of limitation prescribed by the Limitation Act — here, relevantly, s 20A(1) of the Limitation Act. Section 20A(1) did not apply to these appeals because s 90AA(4) expressly excluded its operation. Any other construction of s 90AA(4) would be contrary to its express terms and would be contrary to the scheme of the LTA, and circumvent the objection and refund regime. Moreover, it will be recalled that the amending Bills inserting both s 20A of the Limitation Act and s 90AA of the LTA were introduced by the government at the same time. Section 20A was intended to preserve the operation of the long-existing one year limitation period for the recovery of tax in certain circumstances, not to undercut the specific limit imposed by s 90AA.
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79. Trustees [(1915) 20 CLR 21] is not authority for the proposition that the taxpayer sought to advance here. The contention is contrary to the legislative history and the scheme of the LTA – a scheme that covers the field. Moreover, the contention would render the objection and refund regime, including s 90AA, otiose.
[Commissioner’s emphasis; citations omitted]
Gageler J, in a separate judgment, said:[36]
[36]Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349 at 366 [97], 367 [103]–[104], [106].
97. Section 19, empowering the Commissioner to “amend an assessment by making such alterations or additions to it as he thinks necessary to ensure its completeness and accuracy”, forms part of the administrative machinery of the Land Tax Act which the prohibition in s 90AA(1) overlays. A proceeding which seeks judicial review of action or inaction on the part of the Commissioner under s 19 is a proceeding which falls within the scope of the prohibition in s 90AA(1) if the object of the proceeding is the refund or recovery of tax paid under, or purportedly paid under, the Land Tax Act.
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103. An assessment as amended operates by force of s 20(1)(b) as conclusive evidence that the amount and all particulars of the amended assessment are correct. To the extent that the amount or particulars of the amended assessment differ from the amount or particulars of the original assessment, the assessment as amended is conclusive evidence that the amount or particulars of the original assessment were incorrect.
104. Amendment of an assessment does not, however, operate to change the historical fact of the original assessment having been issued. Most importantly, amendment of the assessment does not operate to alter the historical legal consequences of the original assessment having been issued. The analogy to the retrospective amendment considered in Royal Insurance is for that reason incomplete.
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106. Where an amendment decreases the amount of tax from that originally assessed, such entitlement as the taxpayer might have to get back an amount previously overpaid is limited to such entitlement as is conferred by s 90AA(2), (3) and (6) operating in light of the assessment as amended. Tax paid in discharge of the liability imposed on the taxpayer through the operation of ss 38, 39 and 57 on the original assessment was and remains tax paid under the Land Tax Act within the meaning of s 90AA(2) in the same way as it remains tax paid under the Land Tax Act within the meaning of s 90AA(1). An amount of tax so paid that is shown by an amended assessment to have been overpaid is claimable under s 90AA(2) within three years after payment. Where claimable and claimed under s 90AA(2), the amount is refundable under s 90AA(6), in default of which the amount is recoverable as permitted by s 90AA(3). Not otherwise.
[Commissioner’s emphasis; citations omitted]
The Commissioner, in his submission with respect to the significance or effect of the High Court decision in the ACN case, emphasised what was said to be the relationship or overlay of s 90AA of the LTA 1958 and sub-s 19(1) of the TAA, submitting that it is clearly indicated that sub-s 19(1) is a mere machinery provision. Moreover, the Commissioner submitted, in support of this interpretation, that the provisions of s 90AA must, in effect, transcend the sub-s 19(1) provisions in the interest of certainty in revenue collection and retention, having regard to the time limit for recovery provided for in s 90AA. However, as noted previously, the provisions of sub-s 19(1) of the TAA do now address this issue by providing a time limit with respect to the operation of these recovery or refund provisions.[37] Also, the Commissioner contends, particularly in light of the emphasised passages in the judgments in ACN set out above, that the existence of an extant assessment was a bar to a refund application being made under s 90AA and that the refund provisions could only be availed of after a reassessment had been issued. It is said that s 90AA did not provide a mechanism enabling a conclusion that tax had been overpaid to be made. Particular reliance in this respect was placed on the passage from the judgment of Gageler J (at paragraph [106]) as set out above.
[37]See above, [23].
In the current legislative environment, the latter submission would, if accepted, lead to something in the nature of an inextricable circle—an absurdity—as highlighted in the reply submissions of the Plaintiff:[38]
But my learned friend is really putting the cart [before the horse] because first of all he says we’re not going to give you your money back because you didn’t object and then he says we’re not going to make a reassessment because you didn’t object and you can’t get your money back under the refund provisions because there’s not a reassessment. I mean that’s just putting it all back [to] front.
[38]Transcript (16 October 2017) at 27.23–9.
In any event, it is, in my view, clear from the High Court judgments—particularly the passages set out above—that in ACN the Court clearly had in mind that amounts paid pursuant to an assessment could, notwithstanding that the amounts were due and payable under the assessments, be regarded as having been overpaid and susceptible to the refund regime in s 90AA. Moreover, I think it is also clear that the High Court considered the refund regime in s 90AA as independent of and an alternative to the refund obligation upon a successful objection. In the latter respect, see s 38(2) of the LTA 1958.[39]
[39]Section 38(2) was referred to by Bell and Gordon JJ in Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349 at 356–7 [34] n 35; and in ACN 005 057 349 Pty Ltd v Commissioner of State Revenue (2015) 100 ATR 817 at 831 [34], 877 [187].
The Commissioner’s submissions fail to deal at all with the purpose, and effect, of s 19(2A) or s 19(2)—being provisions central to the issue for determination in this proceeding.
The Commissioner’s avoidance of these central provisions is telling; the Commissioner offers no explanation for the decision of the legislature to introduce s 19(2A), much less one that is supportive of the Commissioner’s case.
The Commissioner’s views—as advanced—fail to give any operation at all to s 19(2A) or s 19(2). It is a trite rule of statutory construction that effect must be given to every provision in a statute, and that a construction of legislation which fails to give any operation to a provision will give way to one that does. As the High Court stated in Project Blue Sky Inc v Australian Broadcasting Authority:[40]
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume … Griffith CJ cited R v Berchet to support the proposition that it was a “known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”
[40](1998) 194 CLR 355 at 382 [71].
The Commissioner’s submissions, if accepted, would have the effect of s 19(2A) being rendered superfluous. Plainly that was not Parliament’s intention and, as Project Blue Sky holds, is wrong, as a matter of statutory interpretation. The legislative history to s 19(2A), and the provision itself, reveal a specific purpose of permitting land tax refunds (and the bringing of proceedings for the recovery of the tax) notwithstanding the prior issue of a land tax assessment; and notwithstanding a prior opportunity to object to the assessment.
The Commissioner seeks to establish a false, and legally incorrect, issue as the “first issue”,[41] being “where a taxpayer has paid land tax based upon a valuation authority’s valuation, is Part 3 of the Valuation of Land Act 1960 … the only regime under which the taxpayer may establish excessiveness of the valuation in order to obtain a refund of that land tax?”[42]
[41]Defendant’s Outline of Submissions (25 September 2017), [5], [17]–[19].
[42]Defendant’s Outline of Submissions (25 September 2017), [5].
The single, and true, issue here is the “Issue for Determination” as set out in the Memorandum —Understanding between the parties:[43]
Is the Plaintiff entitled pursuant to Part 4 of the [the TAA] to a refund of all or part of the amounts of land tax that it paid to the Commissioner for the 2011 – 2014 tax years, inclusive?
[43]Memorandum – Understanding between the parties (5 August 2017), [4].
This issue requires an examination that begins with the terms of sub-ss 19(1), (2) and (2A) of the TAA, considered against the background of Part 4 generally. Section 19, and the other provisions of Part 4 comprise, “the alpha and omega of the task of judicial construction” in this case.[44]
[44]“It has been repeatedly said that the text of a statutory provision is the alpha and omega of the judicial task of statutory construction”: Kyren Nominees Pty Ltd v Commissioner of State Taxation (2013) 116 SASR 153 at 156 [11]. See also the High Court in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39], initially quoting from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]: “ ‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context.” See also Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328, [47]–[54].
One does not begin, therefore with a consideration of the meaning of ss 19(1), 19(2) and 19(2A) of the TAA by looking at the Valuation of Land Act 1960. That would be a wholly misguided approach to the issue at hand and one that will almost inevitably lead to error in the construction of s 19 of the TAA.
For the Plaintiff’s part, it is accepted that it did not lodge an objection against the valuations on which the Commissioner relied—but that cannot “control”, much less deny, the right to apply for a refund of land tax under Part 4 of the TAA—for the simple reason that there is no provision in Part 4 which denies a taxpayer the right to apply for a refund of land tax because there existed an objection right in respect of the particular assessment (which was not exercised). Far from denying the taxpayer a right to apply for a refund of land tax in these circumstances, the one provision in Part 4 that deals with this subject-matter—s 19(2A)—unambiguously provides (read with s 19(2)) that the previous issue of a land tax assessment is not a bar to the making of a refund application under s 19.
Furthermore, this is not a case where there is any dispute about the value of the land. The value of the land is agreed to be $1.00, and not the amount on which the assessment was based.[45] While the Plaintiff does not say that the Commissioner acted unlawfully or improperly in issuing the assessments in this case they were clearly incorrect and inconsistent with the statutory criteria for the imposition of tax. It follows that tax has been overpaid and that it should be refunded, the plaintiff having otherwise satisfied the requirements of Part 4.
[45]See above, [3].
The Plaintiff submits that the first relevant submission made by the Commissioner in his submissions is where it is asserted that “in truth closely analogous issues were considered and determined by the High Court in [the ACN case] …”.[46] Certainly, there were, superficially, some similar issues considered in the ACN case, but it is clear, in my view, that the all-important issue—namely, the meaning and effect of s 19(2A) of the TAA—did not arise for consideration in ACN. This was, of course, because former legislation; the LTA 1958, did not contain a provision akin to s 19(2A) or s 19(2). The issue in ACN was whether a refund could be claimed outside of the statutory regime in s 90AA. As indicated previously, the High Court held that a claim for a refund needed to be within the constraints of s 90AA notwithstanding the issue of assessments.
[46]Defendant’s Outline of Submissions (25 September 2017), [32].
The Plaintiff submits that the next relevant submission made by the Commissioner is where it is stated that “the existence of the extant assessments was a bar to a refund application being made under s 90AA”.[47] However, neither the High Court, nor Sloss J at first instance, came to this conclusion, as has already been indicated.[48] Clearly on the facts in ACN, had this been the decision of the trial judge and the High Court, then the case would have been a very short one. The decision in ACN was that, notwithstanding the issue of an assessment, a refund claim was governed by s 90AA.
[47]Defendant’s Outline of Submissions (25 September 2017), [52].
[48]See Plaintiff’s Outline of Submissions (7 September 2017), [7], [34]–[35], [38]–[39] and [41]; and see above, [9]–[11], [29], [30].
The Plaintiff also submits that the further relevant submission made by the Commissioner is that “[t]he refund provision could be availed of only after a reassessment had been issued”.[49] As the Plaintiff submits, and in my view correctly, the first and considerable difficultly with this contention is that it finds no support from the terms of s 19 of the TAA or, to the extent they are relevant, from the provisions of the TAA dealing with reassessments.[50] Moreover, even if there were something in the reassessment provisions—or the objections provisions—in the TAA that declared that a refund application could only be made if the Commissioner had first issued a reassessment, s 18(2) expressly provides that Part 4 of the TAA “has effect despite the other provisions of another taxation law” and, of course, there is no such other provision. The second difficulty put forward by the Plaintiff, also in my view correct, is that in the case of taxes other than land tax and GAIC, a taxpayer would still not have a right to apply for a refund of that other tax after the issue of a reassessment for a lesser amount—on the Commissioner’s own argument. This is because the embargo in s 19(2) will still apply—as it will be the case that “the Commissioner [will have] previously served a notice of assessment of the tax liability of the taxpayer in respect of which the payment was made to the Commissioner”.
[49]Defendant’s Outline of Submissions (25 September 2017), [52] (emphasis omitted).
[50]Taxation Administration Act 1997, s 9.
For the preceding reasons and those which follow, I accept the Plaintiff’s submissions that there is simply no substance nor any support for the contention by the Commissioner that a refund can only be paid under s 19 of the TAA if the Commissioner first issues a reassessment for a lesser amount. The observations in this respect contained in the Commissioner’s submissions[51] are merely generalised propositions which fail to refer to, much less grapple with, the terms or effect of ss 19(1), (2) or (2A) of the TAA. These provisions are central to this proceeding, and yet are not properly addressed by the Commissioner, if at all.
[51]See Defendant’s Outline of Submissions (25 September 2017), [53]–[55].
Relevantly in this respect, any reference to a “notice of assessment” in other parts of the TAA falls to be reconciled with the references to “a notice of assessment” in s 19(2)—a position clearly consistent with long-established principles of statutory construction. The first provision relevant in this respect is s 18(2) of the TAA which emphasises the primacy of Part 4 of that Act “over every other taxation law”. It seems difficult to imagine that the legislature could have expressed matters more clearly; and particularly having regard to the legislative history of the current provisions of Part 4, to which reference has been made, together with relevant passages in the Second Reading Speeches and the relevant Explanatory Memorandum.[52] Moreover, as the High Court said in Project Blue Sky:[53]
Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[citation omitted]
[52]See above, [19]–[24].
[53]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [70].
It is self-evident, in my view, in cases involving applications for a refund of tax, that it will be the provisions of Part 4—the refund provisions—which will naturally comprise the “leading provisions”. Other provisions in the TAA—and the provisions of other legislation—will be subordinate to the provisions of Part 4 of the TAA, including s 19(2A), when construing the effect of the provisions of Part 4 and s 19(2A). The provisions of sub-s 18(2) only strongly reinforce this. Moreover, it is apparent that the provisions of sub-s 19(2A) were introduced by the legislature with the purpose of enabling or continuing to enable taxpayers who had paid land tax under a “notice of assessment” to apply under sub-s 19(1) for a refund of that land tax. The purpose of sub-s 19(2A) was to permit taxpayers to apply for a refund of land tax notwithstanding the previous issue of a “notice of assessment”. It is also the position, in my view, that if the Commissioner’s contentions were to be accepted—submissions which fail to even address sub-ss 19(2) and 19(2A), much less offer a way in which they are to be construed—these provisions, sub-ss 19(2) and 19(2A), would have no effect at all. They would be made redundant. Plainly, in the legislative context now being considered, that was not the intention of the legislature and, applying the long-accepted canon of statutory interpretation, “a court construing a statutory provision must strive to give meaning to every word of the provision”.[54] The Commissioner’s approach to these provisions does not give any effect to sub-ss 19(2) or 19(2A)—and it could certainly not be said that the Commissioner, in its submissions, has “striven” to do so.
[54]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71].
Additionally, while the Commissioner has not offered any construction for sub-s 19(2) or for sub-s 19(2A) of the TAA, as required by s 35(a) of the Interpretation of Legislation Act 1984, where more than one construction of a provision is open, “a construction that would promote the purpose or object underlying the Act … (whether or not that purpose or object is expressly stated in the Act …) shall be preferred to a construction that would not promote that purpose or object”. Here, I accept that the Plaintiff’s construction of sub-ss 19(2) and 19(2A) plainly support the purpose of the legislature, which is to enable taxpayers to apply for, and obtain, refunds of land tax notwithstanding that the land tax was subject to a previous land tax assessment—provided that any proceeding for the refund of land tax is instituted in accordance with the provisions of Part 4 of the TAA (which is the position in this case).
Finally, the Commissioner, in concluding his submissions, comments that the Plaintiff’s submissions would require s 19 of the TAA ”to do a lot of work”. It said that it must, leaving in place extant assessments, permit a conclusion that tax has been overpaid; demand (and not merely empower) refunds to be paid; empower appropriation; and enable enforcement of overpaid tax, as a monetary claim, by proceeding issued by writ and statement of claim. This is, however, in my view, no argument against conclusions as to the operation of these provisions derived from the application of a well-accepted process of statutory interpretation which, among other things, does take account of all relevant provisions—particularly sub-s 19(2) and sub-s 19(2A). In relation to the particular matters raised by the Commissioner in this respect, I am of the view that it is clear that Part 4 of the TAA was designed to permit an enquiry into whether a taxpayer was entitled to a refund; Part 4 clearly authorises the bringing of proceedings to compel the payment of the refund of the tax in the event that the Commissioner refuses to refund the tax or does not respond to the request within the required period (and see sub-s 21(1) of the TAA); and sub-s 121(1)(a) of the TAA clearly authorises appropriations of funds for this purpose.
Conclusions
For the preceding reasons, the issue for determination in this proceeding should be decided in favour of the Plaintiff. Thus, the plaintiff is entitled to a refund of the land tax for the 2011 to 2014 tax years pursuant to Part 4 of the TAA.
The parties are to bring in orders to give effect to these reasons.
I otherwise reserve the question of costs and will hear the parties further in relation to this issue.
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