Oueik v Chief Commissioner of State Revenue

[2022] NSWCATAD 132

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Oueik v Chief Commissioner of State Revenue [2022] NSWCATAD 132

Hearing dates:

28 March 2022

Date of orders:

26 April 2022

Decision date:

26 April 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Dunn, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

TAXES AND DUTIES – administration – interest – remission

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Duties Act 1997

Land Tax Management Act 1956 (NSW)

Taxation Administration Act 1996 (NSW)

Cases Cited:

Adams Bidco Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 702

Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107

Chief Commissioner of State Revenue (NSW) v Incise Technologies Pty Ltd [2004] NSWADTAP 19

EK Anderson Investments Pty Ltd ATF Cacs Property Trust v Chief Commissioner of State Revenue [2012] NSWADT 132

Gupta v Chief Commissioner of State Revenue [2006] NSWADT 187

Laviva Nominees Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 84

Lease A Leaf Property Pty Limited v Chief Commissioner of State Revenue [2011] NSWADTAP 41

RVO Enterprises Pty Ltd v Chief Commissioner of State Revenue [2004] NSWADT 64

Singh v Chief Commissioner of State Revenue [2016] NSWCATAD 9

Trust Co of Australia Ltd v Chief Commissioner of State Revenue [2002] NSWADT 21

Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773

Category:

Principal judgment

Parties:

Ronny Oueik (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Solicitors:
N Karam (Accountant) (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00354457

REASONS FOR DECISION

Background

1. This is an application to the Tribunal under s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for a review of the decision of the Respondent to impose interest in respect of land tax assessments issued by the Respondent on 21 June 2021 for the 2018, 2019, 2020 and 2021 land tax years in respect of property owned by the Applicant at 32-40 Kerr Parade Auburn.

2. The Applicant does not dispute the land tax assessments but objected to the Respondent’s decision to impose interest. The Respondent disallowed that objection by notice dated 30 November 2021.

3. The decision is administratively reviewable by the Tribunal by virtue of s 96 of the Taxation Administration Act 1996 (NSW) (TA Act).

4. It is the decision to impose interest, not the decision on the objection, which is the subject of the review: Singh v Chief Commissioner of State Revenue [2016] NSWCATAD 9 at [10] – [13].

5. In conducting the review, the Tribunal is required to determine the correct and preferable decision having regard to the materials before it and the applicable law: s 63 of the ADR Act.

Relevant Legislative Provisions

Land Tax Management Act

6. Pursuant to s.7 of the Land Tax Management Act 1956 (“LTMA”) land tax is levied on the taxable value of all land in New South Wales unless it is exempt under the LTMA.

7. Land tax is charged on land owned at midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied: s.8 LTMA.

8. Section 12 of the LTMA provides that the Chief Commissioner may by order published in the Gazette require taxpayers to furnish land tax returns. Section 12 states, relevantly:

12 Taxpayer to furnish returns

(1) The Chief Commissioner may by order published in the Gazette require all persons or specified classes of persons to furnish land tax returns for a specified year or years or for a specified year and each subsequent year.

(1A) Every person subject to such a requirement in force in respect of a year shall furnish a land tax return to the Chief Commissioner on or before 31 January in that year.

(1B) A land tax return required to be furnished by a person must—

(a) set out a full and complete statement of all land owned by the person at midnight on 31 December in the previous year, and

(b) set out, or be accompanied by, any information, as to the following, that may be required to complete the return—

(i) the person’s land ownership,

(ii) the eligibility of the land for an exemption from land tax or for a reduction in the taxable value of the land.

…

9. Section 14 of the LTMA provides that, subject to the LTMA and the TA Act, the Chief Commissioner shall, from the returns and from any other information in his possession, cause an assessment of land tax to be made of the taxable value of the land owned by any taxpayer.

10. Section 72 of the LTMA provides that a taxpayer who fails to furnish a land tax return or information required by the LTMA or the Chief Commissioner is taken to have committed a “tax default” for the purposes of the TA Act. It provides:

72 Failure to furnish returns or information

(1) A taxpayer who fails or neglects duly to furnish any return or information as and when required by this Act or the Chief Commissioner, or who fails to include in any return any land owned by the taxpayer, is taken to have committed a tax default for the purposes of Part 5 of the Taxation Administration Act 1996.

(2) In relation to the tax default—

(a) interest is payable in accordance with Part 5 of the Taxation Administration Act 1996 but accrues on the amount of land tax assessable to the taxpayer for the period commencing on the last day allowed for furnishing the return or information, or the correct particulars of land ownership, and ending on—

(i) the day on which the return or information is furnished or the correct particulars are furnished, or

(ii) the day on which the assessment calculated on the basis of the return or information that is required, or the correct particulars that are required, is made, or

(iii) the day on which the whole of the land tax assessable to the person is paid,

whichever occurs first, and

(b) penalty tax is payable in accordance with Part 5 of the Taxation Administration Act 1996 on the amount of tax unpaid.

TA Act

11. The TA Act applies in respect of “taxation laws” which are defined in s 4 of the TA Act to include the LTMA.

12. Section 8 of the TA Act provides that the Chief Commissioner may make an assessment of the tax liability of a taxpayer and s 9 outlines the circumstances in which the Chief Commissioner may make a reassessment. Section 9 provides that a reassessment generally cannot be made more than 5 years after the initial assessment unless in certain circumstances including:

(b) at the time the initial assessment or a reassessment was made, all the facts and circumstances affecting the liability under the relevant taxation law of the person in respect of whom the assessment or reassessment was made were not fully and truly disclosed to the Chief Commissioner and, as a result, the tax liability was assessed at a lower amount than the Chief Commissioner would otherwise have assessed it

13. Section 10 of the TA Act provides

10 Requirement for full and true disclosure of relevant facts and circumstances

(1) A person who is liable to pay tax under a taxation law must, before or at the time an assessment of the tax liability is made, fully and truly disclose to the Chief Commissioner all the facts and circumstances affecting the tax liability under the relevant taxation law.

14. Section 21 of the TA Act provides that, if a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid.

15. Section 22 of the TA Act provides, relevantly:

“22 Interest rate

(1) The interest rate is the sum of:

(a) the market rate component, and

(b) the premium component.

(2) The market rate component is:

(a) unless an order is in force under paragraph (b), the Bank Accepted Bill rate rounded to the second decimal place (rounding 0.005 upwards), or

(b) the rate specified for the time being by order of the Minister published in the Gazette.

(3) The premium component is 8% per annum.

16. Section 25 of the TA Act provides that the Chief Commissioner may, in such circumstances as the Chief Commissioner considers appropriate, remit the market rate component or the premium component of interest, or both, by any amount.

17. As previously mentioned, s 96 of the TA Act provides that a taxpayer may apply to the Tribunal for an administrative review of a decision of the Chief Commissioner that has been the subject of an objection.

18. Section 100 of the TA Act provides that the Applicant’s and Respondent’s cases on an application for review are not limited to the grounds of the objection. Section 100(3) provides that the Applicant has the onus of proving the Applicant’s case in an application for review.

19. Section 101 of the TA Act sets out the powers of the Tribunal in dealing with an application for review and provides that the Tribunal may, amongst other things, confirm or revoke the assessment or other decision to which the application relates, make an assessment or other decision in place of the assessment or decision to which the application relates or remit the matter to the Chief Commissioner for determination in accordance with its finding or decision.

Material Before the Tribunal

20. The Applicant was represented at the hearing of this application by his accountant.

21. The Applicant relied on the application filed 14 December 2021 and the documents attached to that application, submissions which attached some further documents filed on 21 February 2022 and submissions in reply filed on 22 March 2022. Other than the documents attached to the application and submissions the Applicant did not rely upon any other evidence.

22. The Respondent relied on the documents lodged pursuant to s 58 of the ADR Act, a tender bundle, a supplementary tender bundle and submissions dated 15 March 2022.

Facts

23. The following facts are largely taken from the Respondent’s submissions and are, unless otherwise indicated, not in dispute.

24. The Applicant is the owner of numerous parcels of land in New South Wales including the land in Auburn the subject of the assessments in issue. That land was originally comprised of the following parcels:

1. 32 Kerr Pde Auburn (Lot 19 DP 3854);

2. 34 Kerr Pde Auburn (Lot 19 DP 3854);

3. 36 Kerr Pde Auburn (Lot 1 DP 505016);

4. 38 Kerr Pde Auburn (Lot 2 DP 505016); and

5. 40 Kerr Pde Auburn (Lot 14 DP 56637).

25. There is no evidence before the Tribunal as to the date that those properties were acquired although there is a reference in the Applicant’s submissions to the acquisition being in the year 2001.

26. On 11 January 2017, the Respondent issued a land tax assessment notice to the Applicant for the 2017 land tax year in the amount of $70,332.60. The assessment included each of the parcels referred to above, as well as other land owned in New South Wales by the Applicant.

27. On 10 August 2017, the parcels referred to above were consolidated into a single lot with a new DP number, Lot 1 DP 1230735, known as 32-40 Kerr Pde Auburn (“the Property”). The folio identifiers for the previous individual parcels then ceased to exist.

28. On 12 January 2018, the Respondent issued a land tax assessment notice to the Applicant for the 2018 land tax year in the amount of $9,472.20. Neither the individual parcels referred to above or the Property as consolidated were included in the land tax assessment.

29. On 24 May 2019, the Respondent issued a land tax assessment notice to the Applicant for the 2017, 2018 and 2019 land tax years. The assessment:

1. Assessed the Applicant as liable for land tax for the 2019 land tax year in the amount of $21,093.10. Neither the individual parcels referred to above or the Property as consolidated were included in the land tax assessment.

2. Reassessed the 2018 land tax year, in the amount of $13,290.50, to include a property at Unit 1, 30 Kerr Pde, Auburn. Neither the individual parcels referred to above or the Property as consolidated were included in the land tax assessment.

3. Reassessed the 2017 land tax year, in the amount of $75,220.60, to include the property at Unit 1, 30 Kerr Pde, Auburn.

30. On 23 January 2020, the Respondent issued a land tax assessment notice to the Applicant for the 2020 land tax year in the amount of $28,978. Neither the individual parcels referred to above or the Property as consolidated were included in the assessment.

31. On 12 March 2020, Faten Oueik of BBC Legal on behalf of the Applicant, wrote to the Respondent advising that two properties, Unit 3, 30 Kerr Pde Auburn and Unit 4, 30 Kerr Pde Auburn, were not included in the assessment of land tax for the 2020 land tax year for the Applicant and should be added.

32. On 19 March 2020, the Respondent issued a land tax assessment notice to the Applicant for the 2017 to 2020 land tax years in the amount of $68,325.80, reassessing the 2017 to 2020 land tax years to include the properties at Unit 3 and Unit 4, 30 Kerr Pde Auburn. Interest in respect of those reassessments was remitted.

33. On 22 January 2021, the Respondent issued a land tax assessment notice to the Applicant for the 2021 land tax year in the amount of $48,769.50. Neither the individual parcels referred to above or the Property as consolidated were included in the land tax assessment.

34. On 14 April 2021, Faten Oueik on behalf of the Applicant advised the Respondent that the land tax assessment issued on 22 January 2021 was incorrect as it omitted approximately 150 units at 32-40 Kerr Pde, Auburn, being the Property. Included in the s 58 documents is a document dated 14 April 2021 entitled “Land Tax Variation Return” which, under the heading “Submitter’s Details” states “Faten Oueik”. However, the Applicant disputes that such a document was lodged by Ms Ouiek. Given there is no dispute that the Applicant advised the Respondent on that date of the omission of the Property from the 2021 assessment, it is not necessary to determine whether the Variation Return was also lodged by Ms Oueik on that date.

35. On 21 June 2021, the Respondent issued a land tax assessment notice to the Applicant for the 2018, 2019, 2020 and 2021 land tax years in the amount of $1,411,136.25, reassessing the 2018 to 2021 land tax years to include the Property. The assessment included an amount of $120,260.37 in interest. No penalty tax was imposed. According to the Respondent’s objection determination, this was in acknowledgment that the Applicant did not intentionally disregard the taxation laws and that his representative disclosed the Property in April 2021.

36. On 16 August 2021, the Respondent issued an instalment arrangement to the Applicant for the payment of unpaid land tax. The instalment plan required payment of the amount of $1,432,819.46 in monthly instalments between August 2021 and January 2022.

37. The Applicant has provided the Tribunal with bank statements which demonstrate that all instalments, at least up to and including December 2021, have been paid. According to the Respondent, the Applicant has sought an extension to the instalment plan to pay the balance owing which the Respondent has indicated he is prepared to negotiate.

The Applicant’s Submissions

38. The Applicant submits that no interest should have been imposed because he has not failed to furnish land tax returns and, accordingly, there has been no relevant tax default. The Applicant says that the original five properties were registered for land tax and the Applicant did not lodge a return or otherwise cause the removal of the Property from the land tax register. The Applicant says that on amalgamation, by reason of a system default, the Office of State Revenue (OSR) removed the Property from the register. The Applicant asserts that when properties are amalgamated the OSR receives this information from the Land Registry or Council. The Applicant points to a land tax assessment issued to a different taxpayer which, he says, did include property which had also been the subject of amalgamation, by way of seeking to demonstrate that is the case. The Applicant submits that he did not know that an amalgamation required him or his representative to call the OSR to ensure the Property was not removed. The Applicant submits that there was no system for lodging land tax returns (unlike Income Tax, Payroll Tax or GST returns which are made by way of self-assessment). In the Applicant’s submission there has been no “tax default” on his part, rather an error on the Respondent’s part in omitting the Property. Accordingly, the Applicant says there should have been no interest imposed.

39. In terms of the Respondent’s exercise of discretion to remit interest, the Applicant contends that in the circumstances of this case, the Respondent ought to have remitted interest on the basis of the Respondent’s guidelines which state: “the premium rate of interest may be reduced if there is evidence that you took reasonable care or made a voluntary disclosure before the commencement of an investigation”.

The Respondent’s Submissions

40. The Respondent submits that the Applicant has committed a tax default under s 72 of the LTMA for each of the 2018 to 2021 land tax years. The Respondent points to the following NSW Government Gazettes made pursuant to s 12 of the LTMA Act in relation to Land Tax Returns for the 2018 to 2021 land tax years:

1. Government Gazette Number 138, 22 December 2017;

2. Government Gazette Number 134, 7 December 2018;

3. Government Gazette Number 173, 13 December 2019; and

4. Government Gazette Number 384, 18 December 2020.

each of which provided that persons who own land in New South Wales at midnight on 31 December which is not exempt from land tax must lodge an initial return. The Gazettes also each, relevantly, provided that a person who had received an incorrect notice of assessment of land tax (including where details of the land owned by the person were incorrect) must lodge a variation return. The 2017 Gazette provides (and each of the Gazettes are in substantially similar terms):

Persons Who Must Lodge a Variation Return

12. A variation return is required to be lodged by a person who receives an incorrect notice of assessment of land tax. Errors on the notice which may result in an incorrect notice of assessment of land tax may occur in the following circumstances:

…

(b) details of land owned by the person as shown on the notice are incorrect …

Due Date for Lodgement of Variation Returns

16. A variation return is required to be lodged by the first instalment date shown on the notice of assessment.

…

17. Penalty tax and interest may be imposed under the Land Tax Management Act 1956 and the Taxation Administration Act 1996 for failing to lodge a return by the due date.

41. The equivalent provision to clause 12 of the 2017 Gazette in the 2018 and 2019 Gazettes read:

Examples of errors on a notice of assessment that require lodgement of a variation include:

(a) the assessment notice is missing land or contains land that is not owned by the person at the taxing date.

42. The Respondent submits that each of the 2018 to 2021 notices of assessment were incorrect as they omitted the Property and the Applicant was, by reason of the above Gazettes, required to lodge a variation return in respect of each of the 2018, 2019, 2020 and 2021 land tax assessments by the date specified in the notice for payment of the first instalment, namely:

1. 2018 Assessment: by 21 February 2018;

2. 2019 Assessment: by 3 July 2019;

3. 2020 Assessment: by 3 March 2020;

4. 2021 Assessment: by 3 March 2021.

43. The Respondent submits that as the Applicant did not lodge a variation return by any of the required dates he therefore committed a tax default pursuant to s.72 of the LTMA in each of the 2018 to 2021 land tax years and interest was correctly assessed. (As noted above, there is a Land Tax Variation Return dated 14 April 2021 in the s 58 documents, which the Applicant disputes was lodged on his behalf, which was dated after 3 March 2021.)

44. As to remission, the Respondent submits that the market rate of interest should rarely, if ever, be waived. Remission of the market rate of interest would only be justified in limited circumstances such as where the tax default is due to the fault of the Chief Commissioner or situations beyond the taxpayer’s control and there are no circumstances justifying remission in this case.

43. As to the penalty component of the interest, the Respondent submits that the Applicant has not established that he took reasonable care to comply with the taxation laws so that, again, remission is not warranted.

Consideration

46. The Applicant bears the onus of proving his case on the balance of probabilities in an application for review s 100(3) TA Act.

Tax default

47. The Applicant appears to have misunderstood the relevant legislative scheme and the obligations imposed on taxpayers by both the LTMA and the TA Act. The Applicant contends that the onus was on the Chief Commissioner to assess land tax correctly and that he did not fail to furnish returns under s 12 of the LTMA, so that no tax default has been committed under s 72 of the LTMA.

48. There is no onus on the Respondent to issue correct assessments or to make its own enquiries of Land Title records or other sources of relevant information in order to do so: EK Anderson Investments Pty Ltd ATF Cacs Property Trust v Chief Commissioner of State Revenue [2012] NSWADT 132; see also Gupta v Chief Commissioner of State Revenue [2006] NSWADT 187 at [33-34] and [40].

49. Section 12 of the LTMA, which enables the Respondent to require taxpayers to furnish land tax returns which set out a full and complete statement of all land owned by them, underscores that the regime relies upon taxpayers furnishing all relevant information to the Chief Commissioner. This is made clear also by s 10 of the TA Act which provides that a person who is liable to pay tax must, before or at the time of the assessment, fully and truly disclose to the Chief Commissioner all facts and circumstances relevant to the tax liability and s 9(5) of the TA Act which allows the Respondent to reassess tax at any time if there has been a failure to do so.

50. The Applicant in his written submissions suggested that there is no system for lodging a return for land tax purposes. This submission cannot be accepted. The requirement for a taxpayer to lodge a return under s 12 of the LTMA is notified in the Gazettes. The Respondent included in its tender bundle a copy of a page of the Respondent’s website entitled “Land Tax online” which, the Respondent says, demonstrates how returns can be completed on-line. The Respondent also submitted, and I accept, that in any event, even if the Applicant did not know how to submit a return online it was open to him to email or phone the Respondent as his representative had done in March 2020 in respect of the omission of different property.

51. The Applicant submitted at the hearing that the Gazettes identified by the Respondent did not require the Applicant to lodge a notice of variation because, he said, the Gazettes only apply in circumstances where land has been acquired. Here, the Applicant says, the land was acquired some time earlier, not in the 2018 – 2021 years. However, that is to overlook those paragraphs of the Gazettes which are identified at paragraph [40] above which clearly require a person who has received an incorrect notice of assessment to lodge a variation return. Those paragraphs make it clear that one of the potential errors that may result in an incorrect notice may be that the details of the land owned by the person as shown on the notice are incorrect. It is not limited to identifying property which has only been acquired in the last land tax period.

52. The Gazettes imposed a clear obligation upon the Applicant to review his land tax assessments carefully, to identify whether there was any property which the Applicant owned which was missing and, if so, to lodge notices of variation.

53. The 2018 – 2021 notices of assessment were clearly incorrect as they omitted the Property. It is not to the point that the Applicant had originally advised the Respondent about the acquisition of the original properties. Nor is the reason why the Property was omitted from the notices of assessment relevant. The Applicant did not lodge notices of variation as required in respect of the 2018-2020 years at all, and in respect of the 2021 year, if the notice was lodged (which the Applicant disputes) within the time frame required by the Gazette.

54. As such, I find that the Applicant committed a tax default pursuant to s 72 of the LTMA in each of the 2018 to 2021 land tax years and interest was correctly imposed.

Remission

55. Section 25 of the TA Act provides that the Chief Commissioner may, in such circumstances as he considers appropriate, remit the market rate component or the premium rate component of interest or both by any amount.

Market Rate component

56. The authorities are clear that, as the market rate component of the interest imposed by the Respondent is intended to compensate the Respondent for not having the benefit of the tax payment from the time it was due, it is a component that would rarely be waived, otherwise tax would be being paid at a discounted amount which would be unfair to taxpayers who pay their tax on time. Only exceptional circumstances would justify remission, such as where the tax default is entirely due to a fault of the Chief Commissioner or in situations completely out of the control of the taxpayer such as postal strikes, serious illness and natural disasters: Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19 at [60]; Lease A Leaf Property Pty Limited v Chief Commissioner of State Revenue [2011] NSWADTAP 41 at [34], Trust Co of Australia Ltd v Chief Commissioner of State Revenue [2002] NSWADT 21, Adams Bidco Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 702 at [163].

57. The Applicant submits that the Respondent made a mistake in not including the Property in the assessments. However, as set out above, there was a clear obligation on the Applicant to review his tax assessments carefully, to identify whether there was any property which the Applicant owned which was missing and, if so, to lodge notices of variation. As such, to the extent there may have been a mistake on the part of the Respondent, I do not consider that it is one which caused the tax default to occur. Further, the Applicant has not established on the evidence before the Tribunal, that the Respondent in fact made an error on the information available to him. The effect of the consolidation of the five individual parcels into the one Property was that the folio identifiers for those previous properties ceased to exist and the new Property had a new folio identifier. There is no evidence that the Applicant registered those details with the Respondent and no evidence to support the Applicant’s assertion that this information was provided to the Respondent by NSW Land Registry Services or Council. Nor is the fact that another taxpayer may have received a notice of assessment which included a property which had been the subject of amalgamation evidence of that. There is no evidence as to the information the Respondent may have been provided in respect of that assessment by that taxpayer or otherwise.

58. The Applicant has put forward no other circumstances which would justify remission of the market rate component of the interest.

Premium component

59. The premium component of the interest is a form of penalty. Its purpose is to provide an additional economic deterrent against taxpayers failing to meet their obligations on time: Incise Technologies at [61].

60. On the Respondent’s website there is a Revenue NSW Fact Sheet on Interest and Penalty Tax which states:

The premium rate of interest may be reduced if there is evidence you took reasonable care, or made a voluntary disclosure before the commencement of an investigation

...

61. As the Tribunal said in Laviva Nominees Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 84 the Tribunal is not bound by the Chief Commissioner's Guidelines, however there is a benefit in uniformity of application of tax laws.

62. In each case it is essentially a question of fact whether the taxpayer has taken reasonable care in complying with their tax obligations. In RVO Enterprises Pty Ltd v Chief Commissioner of State Revenue [2004] NSWADT 64, the Tribunal said at [23]:

Factors that would indicate that a taxpayer took reasonable care include reasonable attempts to comply with the tax law, reasonable professional and other inquiries to ensure compliance, reliance on professional advice or on official published views of the tax law. Factors which indicate that a taxpayer failed to take reasonable care include oversight or forgetfulness to meet with obligations, failure to maintain adequate records and procedures to prevent errors from occurring, not seeking professional advice and errors in complying with the law.

63. In Incise Technologies the Appeal Panel considered four criteria as being relevant and appropriate to the consideration of remission of the premium component of the interest (although noting that there may be other circumstances which it may be appropriate also to take into account) and these criteria have been considered in a number of subsequent cases see eg Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773 at [81], Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107 at [178], namely:

(1) all principal tax that has been assessed and is not in dispute has been fully paid at the time of the request for remission of interest;

(2) there has been co-operation by the taxpayer in providing relevant information to the Commissioner so as to enable the Commissioner to issue assessments;

(3) such co-operation by the taxpayer has occurred prior to any investigation being commenced by the Commissioner (voluntary disclosure) or, at the very least, within reasonable time after requests for information have been made by the Commissioner – i.e. the taxpayer has taken reasonable care; and

(4) there has been no wilful default by the taxpayer in not paying tax on time.

64. The Applicant submits that he satisfies these criteria as he is paying the tax assessed by an agreed instalment plan, that he made disclosure of the omission of the Property through his representative in April 2021 prior to any investigation being commenced and because the Respondent has conceded, in the objection determination, that he did not intentionally disregard the law.

65. As to the notification by Ms Oueik on behalf of the Applicant in April 2021, however, there are a number of issues which the Applicant has failed to address. These include: whether there was any attempt to notify the Respondent of the consolidation of the Property at any time; why the Applicant did not notify the Respondent of the omission of the Property after receiving each of the 2018, 2019 and 2020 assessments; why the Applicant advised the Respondent on 12 March 2020 that certain other properties were not included in the 2017 to 2020 assessments but did not disclose at that time that the Property also was not included.

66. In submissions at the hearing, the Applicant’s representative sought to rely upon a number of other matters in support of his argument that the Applicant had taken reasonable care, including: that the Applicant relied upon his bookkeeper and Ms Oueik to take care of his land tax affairs, that the Applicant’s bookkeeper must not have identified the omission, that as soon as the omission was identified Ms Oueik notified the Respondent straight away and that the Applicant had always relied on what the Respondent sent by way of assessments as being correct. However, there was no evidence given by the Applicant, his bookkeeper or Ms Oueik to support any of these assertions and, as such, I am unable to accept them. Nor is there any evidence as to what attempts were made to comply with his obligations, whether any advice was sought or received by the Applicant as to his obligations or what other enquiries he or his representatives may have made to seek to ensure his compliance.

67. I also note that:

1. the amount of the 2018 assessment ($9,472.20) was significantly different from the 2017 assessment ($70,332,60);

2. the Applicant, through his representatives, had informed the Respondent that other properties had not been included in an earlier assessment and interest was remitted in respect of the re-assessments that then issued, so it is apparent that at least some attention was being paid to the Applicant’s property which was included on his land tax assessments;

3. the Property comprises approximately 105 units and, according to the June 2021 assessment, is of significant value giving rise to a land tax liability of approximately $1,400,000 over a four year period.

68. In light of these matters it is very difficult to understand, in the absence of any evidence to assist the Tribunal, how the omission of the Property could have gone unnoticed for a period of over three years. I accept the Respondent’s submission that the Applicant has not established that he notified the Respondent in a timely fashion or demonstrated reasonable care in making the disclosure which was made in April 2021.

69. The Respondent also submitted that, while the Respondent has accepted that the Applicant did not intentionally disregard his tax obligations, the concept of “wilful default” is broader than “intentional disregard” and would capture default in circumstances where the Applicant not only knew but ought to have known of his obligations and failed to comply with them. The Respondent did not cite authority for that proposition and it is not consistent with the way some Courts appear to have considered this criteria, see for example Antegra, where the Court stated at [180]:

In that regard, the decision by the plaintiffs to not pay the assessed land tax cannot be anything other than “wilful” in the sense of being intentional.

70. I agree that the Applicant ought to have known he was required to lodge variation notices and did not do so. In light of the other findings I make as to whether the Applicant has established that he has taken reasonable care, whether that amounts to “wilful default” in the sense intended in Incise, is not a question I need to determine.

71. The onus is on the Applicant to prove his case on the balance of probablilities. He has not discharged that onus in this case. The Tribunal cannot, in the absence of evidence addressing the matters referred to above, be satisfied that the Applicant has taken reasonable care to comply with his obligations or that it is appropriate in the circumstances to remit any amount of the premium component of the interest imposed.

Orders

1. The decision under review is affirmed.

**********

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

Registrar

Decision last updated: 26 April 2022