Roberts v Commissioner for State Revenue
[2015] QCAT 366
•15 September 2015
| CITATION: | Roberts v Commissioner for State Revenue [2015] QCAT 366 |
| PARTIES: | David Roberts Sherin Roberts (Applicants) |
| v | |
| The Commissioner for State Revenue (Respondent) |
| APPLICATION NUMBER: | GAR080-15 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 15 September 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Gardiner |
| DELIVERED ON: | 15 September 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
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| CATCHWORDS: | LAND TAX – WHERE additional block purchased after forced resumption of original block; WHERE both blocks owned at time of assessment of land tax; WHERE resumption occurred in the following financial year: WHETHER land tax should be remitted because the property resumed. |
Land Tax Act 2010 (Qld) ss 6, 19
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
David and Sherin Roberts are trustees for a family trust, the Roberts Property Trust. They ran a small business at 12 Creek Road Mt Gravatt, a property they purchased in July 2012.
12 Creek Road Mt Gravatt adjoins 8 Creek Road Mt Gravatt which is the site of the Brisbane City Council Library at Mt Gravatt.
In September 2012, the Council decided that it needed more car parking for the library next door and issued a notice of proposed acquisition of 12 Creek Road to the Roberts Property Trust. A formal notice of Intention to Resume was issued on 11 December 2012, less than 6 months after the purchase of the property by the Trust.
Mr and Mrs Roberts point out that the property had been up for sale on three occasions prior to their purchase of it and the Council had a number of opportunities to purchase it prior to the Trust’s acquisition. It had been listed for sale in 2007, 2011 and 2012.
The Roberts Property Trust purchased 16 Creek Road in April 2013. It was the intention to move the Robert’s business to this property, actually next door to the property at 12 Creek Road, so that the business could remain in the local area.
The resumption process undertaken by the Brisbane City Council took until March 2014 to complete.
Liability for Land Tax under the Land Tax Act 2010 arises at midnight on 30 June immediately preceding the financial year - here 30 June 2013[1].
[1]Land Tax Act 2010 (Qld) s 6.
At that time, the Roberts Property Trust owned two properties – 12 and 16 Creek Road, Mt Gravatt. Land Tax was assessed on those holdings and a liability issued for the 2013-14 year in the sum of $4,352.80[2].
[2]Land Tax Act 2010 (Qld) s 19 – the general principle is that a taxpayer’s land is aggregated.
Mr and Mrs Roberts were exasperated.
In their view, they had been forced to buy the second property because of the resumption of a property they had held for less than 6 months and which the Council could have purchased on a number of prior occasions. Compounding this, they believed the resumption process that gave rise to the land tax assessment was totally out of their control and took too long, giving rise to the creation of the land tax liability.
The Roberts Property Trust, through Mr and Mrs Roberts objected to the assessment. This was reviewed by the Office of State Revenue but on 20 February 2015, the objection was disallowed.
The Commission’s reasons record that the liability for Land Tax under the Land Tax Act 2010 arose at midnight on 30 June 2013 and at that time, the Trust owned two properties. This ownership gave rise to the assessment of $4,352.80 based on the rates set out in Schedule 2 to the Act and levied on the total taxable value of land held.
The Commissioner says the function of the office under the current legislation set by Parliament, is to impose and administer the Land Tax Act. There is simply no provision in the Act for any adjustment for sale, transfer or here, resumption of the land during the ensuing financial year. Further, although the financial position of Mr and Mrs Roberts is noted by the Commissioner, there is also no basis for reduction of the liability.
Is that right?
Unfortunately for the circumstances in which Mr and Mrs Roberts find themselves, the answer is “yes”. An examination of the current legislation discloses no discretion in the hands of the Commissioner, even in these unusual circumstances. It would require a legislative change to the Act.
Mr and Mrs Roberts were caught by unfortunate timing in a set of circumstances not initiated by them and over which they had no control.
However, the Land Tax Act gives the Commissioner no discretion to amend the assessment based on the circumstances of this matter or any other. There may be good reasons for this. Certainly there would be a substantial burden placed on the Commissioner if such a discretion existed.
This Tribunal is also bound by the same provisions of the Land Tax Act and the inevitable decision based on the legislation is that the assessment of land tax for the 2013-14 financial year for the Roberts Property Trust must be confirmed.
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