Roen v Chief Commissioner of State Revenue

[2025] NSWCATAD 226

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Roen v Chief Commissioner of State Revenue [2025] NSWCATAD 226

Hearing dates:

24 June 2025

Date of orders:

09 September 2025

Decision date:

09 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Sullivan, Senior Member

Decision:

The assessment to penalties and interest is affirmed.

Catchwords:

TAXES AND DUTIES — penalties and interest imposed on a surcharge purchaser duty assessment — amendments made to Applicant’s declaration without her knowledge

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Duties Act 1997 (NSW)

Foreign Acquisitions and Takeovers Act 1975 (Cth)

Taxation Administration Act 1996 (NSW)

Cases Cited:

Bayton Cleaning Co Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 657

Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd (2020) 103 NSWLR 772

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

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

Cornish Investments Pty Ltd v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25

Golden Age & Hannas the Rocks v Chief Commissioner of State Revenue [2024] NSWSC 249

Hirere Pty Ltd v Chief Commissioner of State Revenue (NSW) (2004) 57 ATR 476

Jones v Dunkel (1959) 101 CLR 298

Levitch Design Associates Pty Ltd ATF Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 21

Nhem v Chief Commissioner of State Revenue [2024] NSWCATAD 9

Qualweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227

RVO Enterprises Pty Ltd ATF the R M O’Mara Family Trust v Chief Commissioner of State Revenue [2004] NSWADT 64

Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54

Category:

Principal judgment

Parties:

Julia Roen (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Counsel:
J Nixon (Respondent)

Solicitors:
Allied Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00472124

Publication restriction:

None

REASONS FOR DECISION

1. On 30 November 2020, Julia Roen (the “Applicant”) entered into an agreement to buy a house as a joint tenant with her husband. She paid transfer duty of $38,195.00 on her half share.

2. On 6 September 2024, following an investigation, the Chief Commissioner of State Revenue (the “Respondent”) assessed her to an additional liability to surcharge purchaser duty (“SPD”) of $38,080.00, together with penalty tax of $7,616.00 and interest of $13,585.13.

3. In these proceedings the Applicant only seeks a review of the penalty tax and interest that was imposed. She accepts she was a “foreign person” within the meaning of Chapter 2A of the Duties Act 1997 (NSW) (“Duties Act”) and liable for the SPD: see Applicant’s Submissions (“AS”) at [4], [16]. The SPD has been paid in full.

4. The penalty tax was imposed at 20%, rather than the rate of 25% that applies under s 27(1)(a) of the Taxation Administration Act 1996 (NSW) (“TA Act”).

5. The interest was imposed at the market and premium rates, with no remission.

6. She objected to the assessment, but the objection was disallowed.

Jurisdiction and Onus of Proof

7. The application to the Tribunal was filed within time. The Tribunal therefore has jurisdiction to hear this matter: s 96 of the TA Act, s 9 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”).

8. The Tribunal’s task is to decide what the correct and preferable decision is having regard to the material before it at the time of the hearing: ADR Act, s 63(1).

9. The applicant bears the onus of proof: TA Act, s 100(3). That means she must prove all matters necessary for the Tribunal to answer the statutory questions in her favour: Cornish Investments Pty Ltd v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [36]. The standard of proof is the balance of probabilities.

Relevant legislation

10. The statutory scheme relating to SPD, interest and penalties is set out below. Although there is no longer a dispute regarding the liability to SPD, the context is relevant to the matters in issue.

Surcharge Purchaser Duty

11. SPD is chargeable on a transfer or an agreement for sale or transfer of residential-related property to a foreign person: Duties Act, s 104L. Residential-related property includes residential land in NSW: Duties Act, s 104K(a).

12. Section 104J of the Duties Act provides that a “foreign person” is a person who is a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (“FATA”).

13. Section 4 of the FATA defines a foreign person as an individual who is not “ordinarily resident” in Australia. Section 5(1) of the FATA provides that an individual who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if:

(a) the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and

(b) at that time –

(i) the individual is in Australia and the individual’s continued presence in Australia is not subject to any limitation as to time imposed by law, or

(ii) the individual is not in Australia but, immediately before the individual’s most recent departure from Australia, the individual’s continued presence in Australia was not subject to any limitation as to time imposed by law.

14. Section 104J(3) of the Duties Act provides that for the purposes of charging SPD on a surcharge duty transaction, a person is taken to be a foreign person if the person is a foreign person when a liability for duty charged by Chapter 2 on the transaction arises. Relevantly, under ss 104Q and 12, a liability for duty arises when a transfer of dutiable property occurs; and where that transfer is effected by an instrument, liability arises when that instrument is first executed.

15. SPD is to be paid within three months after the liability to pay the duty arises: Duties Act, s 104W.

Interest

16. A failure to pay the whole or part of tax when it is liable to be paid is a tax default: TA Act, s 3(1).

17. If a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid, calculated on a daily basis: TA Act, s 21(1).

18. The interest rate is the sum of the market rate component, and the premium component: TA Act, s 22(1).

19. Section 25 of the TA Act provides for the remission of interest.

1. Commencing from 1 February 2024, s 25 was amended by the Treasury and Revenue Legislation Amendment Act 2023 No 26 (NSW) (Amendment Act) to provide as follows:

25   Remission of Interest

(1)    The Chief Commissioner may remit interest.

(2)   The Chief Commissioner may issue guidelines setting out how interest must be remitted under this division.

(3)   If guidelines are issued, interest must be remitted only in accordance with the guidelines.

(4)   The imposition or remission of penalty tax is not relevant to the imposition or remission of interest.

2. Prior to that amendment, s 25 provided:

25   Remission of interest

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.

20. The Tribunal was informed that no guidelines were issued (as at the date of the hearing) for the purpose of s 25(2) as amended and, although proposed, they would be issued with prospective effect.

Penalty tax

21. Sections 26 and 27 of the TA Act provide for the imposition of penalties for a tax default:

26   Penalty tax in respect of certain tax defaults

(1)  If a tax default occurs, the taxpayer is liable to pay penalty tax in addition to the amount of tax unpaid.

(2)  Penalty tax imposed under this Division is in addition to interest.

(3)  Penalty tax is not payable in respect of a tax default that consists of a failure to pay—

(a)  interest under Division 1, or

(b)  penalty tax previously imposed under this Division.

27   Amount of penalty tax

(1)  The amount of penalty payable for a tax default is, subject to this Division—

(a)  25% of the amount of tax unpaid, or

(b)  if the taxpayer is a significant global entity within the meaning of the Income Tax Assessment Act 1997 of the Commonwealth—50% of the amount of tax unpaid.

(2)  The Chief Commissioner may increase the amount of penalty tax payable in respect of a tax default to 75% of the amount of tax unpaid if the Chief Commissioner is satisfied that the tax default was caused wholly or partly by the intentional disregard by the taxpayer (or a person acting on behalf of the taxpayer) of a taxation law.

(3)  The Chief Commissioner may determine that no penalty tax is payable in respect of a tax default if the Chief Commissioner is satisfied that—

(a)  the taxpayer (or a person acting on behalf of the taxpayer) took reasonable care to comply with the taxation law, or

(b)  the tax default occurred solely because of circumstances beyond the taxpayer’s control (or if a person acted on behalf of the taxpayer, because of circumstances beyond either the person’s or the taxpayer’s control) but not amounting to financial incapacity.

22. Section 29(1) of the TA Act provides for a 20% reduction as follows:

(1) The amount of penalty tax determined under section 27 is to be reduced by 20% if, after the Chief Commissioner informs the taxpayer that an investigation relating to the taxpayer is to be carried out and before it is completed, the taxpayer discloses to the Chief Commissioner, in writing, sufficient information to enable the nature and extent of the tax default to be determined.

23. There is also a discretion to remit penalty tax under s 33 of the TA Act:

1. Commencing from 1 February 2024, s 33 was amended by the Amendment Act to provide as follows:

33   Remission of penalty tax

(1)    The Chief Commissioner may, in such circumstances as the Chief Commissioner considers appropriate, remit penalty tax by any amount.

(2)   The imposition or remission of interest is not relevant to the imposition or remission of penalty tax.

2. Prior to that amendment, s 33 provided:

33   Remission of penalty tax

The Chief Commissioner may, in such circumstances as the Chief Commissioner considers appropriate, remit penalty tax by any amount.

Material before the Tribunal

24. The Applicant relied on:

1. A1 – being the application to the Tribunal filed on 19 January 2024;

2. A2 - submissions (and accompanying documents) attached to the application; and

3. A3 - further submissions filed in reply on 24 May 2024 (A2).

25. The Respondent relied on:

1. R1 – a bundle of documents filed under s 58 of the ADR Act on 28 February 2025;

2. R2 – a tender bundle filed on 5 May 2025; and

3. R3 – Respondent’s submissions dated 12 April 2024.

26. At the hearing, the Respondent handed up the following documents which were received without objection:

1. R4 – Purchaser/Transferee declaration “Explanatory Notes” (2019 version);

2. R5 – Miscellaneous Taxation Ruling MT 2008/1 (Cth) titled “Penalty relating to statements: meaning of reasonable care, recklessness and intentional disregard”; and

3. R6(a) and (b) – Website information relating to Spectrum Solutions.

27. A bundle of authorities filed by the Respondent on 20 June 2025 was also before the Tribunal and marked R7. This was supplemented by a further 2 page document titled “Respondent’s note on the rule in Jones v Dunkel” handed up at the hearing (R7-1).

The Facts as established

28. No formal affidavit was provided by the Applicant although the Applicant’s application to the Tribunal included a document in her name titled “3. GROUNDS FOR APPLICATION (extended answer).”

29. She was called to provide oral testimony and was subject to cross-examination by the Respondent. The Tribunal also asked questions. There were other documents in evidence in respect of the investigation, the objection, and later correspondence with the Respondent’s legal representatives in these proceedings. Accordingly, the facts are drawn from her testimony, and the other documents before the Tribunal. Some matters were agreed by the parties at the hearing, for which I am grateful.

30. At all relevant times, the Applicant was a Canadian citizen residing in Australia on a temporary Bridging B Visa which had been granted on 12 August 2019 (R1-194). She was not a permanent resident of Australia, nor an Australian citizen.

31. On 30 November 2020, the Applicant and her husband entered into a contract to acquire the Property (R1-89).

32. As noted on the contract, Thomson Geer (lawyers) were their solicitors who assisted them with the purchase. The Applicant’s uncle was a partner at that firm.

33. Spectrum Solutions (“Spectrum”) was an independent firm which was engaged by Thomson Geer to attend to the electronic lodgements for (inter alia) the Applicant and her husband. Relevantly, Spectrum was an approval holder under Division 2 of Part 6 of the TA Act. In that capacity, Spectrum was authorised to stamp the contract and collect duty. That required Spectrum to receive information in the form of the Purchaser Transfer Declaration so that relevant answers could be input to produce the automatic issue of the assessment.

34. The Applicant and her husband did not deal directly with Spectrum.

35. Rather, Thomson Geer asked them to complete and return a Purchaser/Transferee Declaration. The Applicant produced email chains which showed a flow of information as set out below (as agreed between the parties):

Declaration form completed by the Applicant (Original Form)

36. The Applicant completed a Purchaser/Transferee Declaration Form (“PD Form”) in respect of the acquisition of the property on or around 22 December 2020.

37. She told the Tribunal she may have received the form via her husband. She received it by email, and could not recall being asked anything specific about it.

38. She completed only one version of the form (the “Original Form”).

39. As it was a “PDF editable” form she didn’t physically sign it. She entered her name and date, and it was returned to Thomson Geer.

40. The Original Form that was returned to Thomson Geer by email included the following responses:

1. Question 1 was required to be completed if her country of citizenship was other than Australia.

She completed Question 1 by (inter alia) providing her Australian visa number, and stated that her visa type was a “Bridging Visa A”.

That response was incorrect because she held at that time a “Bridging Visa B” with that reference number.

2. She completed Question 2.1 as follows:

The first box responding to Question 2.1 (“Is the purchaser/transferee a foreign person?” was correctly ticked yes.

However, she also ticked the box saying she was an Australian citizen. This was clearly wrong as a matter of fact, which she obviously would have known and was inconsistent with the responses to Question 1. Further, as noted by the Respondent, it was also not possible for an Australian citizen to be a foreign person under the relevant law.

3. She ticked “No” to Question 2.2 which asked:

“Is the purchaser/transferee an exempt permanent resident who will occupy the property as their principal place of residence for a continuous period of 200 days within the first 12 months after the liability date (date of agreement)?”

4. She ticked the two boxes under Part C (Declaration), including the box against the following statement (my emphasis on the last sentence):

“Under the Taxation Administration Act 1996, it is an offence to give false or misleading information. I declare that all information provided is true and correct in every particular.”

41. In cross-examination, the Applicant was asked whether she looked at the Visa document. She responded that she would have written down the visa number. She added “There was no expiry date, I told that to the solicitor”. She also said that she didn’t speak to Thomson Geer when completing the form, and that she emailed it through to her husband.

42. Having reviewed the documents before the Tribunal at R1-239, it appears that the Applicant’s husband received the form at 12:38pm on 22 December 2020 from a paralegal at Thomson Geer; and that he forwarded that email on to the Applicant at 4:26pm that day. On that email, the paralegal advised the Applicant’s husband that his uncle would be calling him shortly to run through the PD Form with him, noting that the Applicant’s visa details would be required to complete the form. There was no evidence of those particular discussions.

43. On 22 December 2020 at 4:31pm, Spectrum emailed Thomson Geer regarding the purchase, saying (inter alia):

“Please send through the purchaser declarations and certified ID for Roy and Julia, also please advise of the tenancy.

Once received we’ll be able to stamp the contract.”

44. At 7:03pm that day (22 December 2020), the paralegal at Thomson Geer emailed the Applicant’s Original Form to Spectrum, saying:

“Please find attached the purchaser declaration form together with VOI.

The tenancy is joint.

Thank you”

Amended Form sent to Spectrum

45. On 23 December 2020 at 10:59am, Spectrum picked up the error at Question 2.1 and replied (R1-86):

“Do you have a copy of the visa grant notice, as the purchaser declaration for Julia on page 1 section 2.1 is showing as she is foreign and also an Australian citizen.

Please confirm”

46. The paralegal at Thomson Geer replied at 12:34pm on 23 December 2020 (my emphasis):

“Please find attached visa grant.

Our client advised that it became active on 25 July 2019.”

47. On 23 December 2020 at 12:56pm, Spectrum replied to the paralegal at Thomson Geer saying:

“Hi

Please see attached the purchaser declaration form that need [sic] to be reviewed as this looks like they will be paying foreign duty – please reassess and send an amended form back

Definition of a foreign person | Revenue NSW

Thank you”

48. That same day, at 3:14pm, the paralegal at Thomson Geer responded:

“Hi [name]

Apologies, the property will be their place of residence. I have updated Julia’s purchaser declaration form but I cannot untick the box that relates to the NZ passport.

Kind regards…”

49. That “updated” form (“Amended Form”) was before the Tribunal (R2-14). The changes made was to select “Yes” in response to Question 2.2 (changed from “No”). It was also amended to indicate that eh Applicant was a person who was “ordinarily resident in Australia” (changed from “an Australian citizen”).

50. The information on the Amended Form was used by Spectrum to effect lodgement by submitting the details to Revenue NSW through Electronic Duties Return (EDR). Critically, because of the exemption claimed in section 2.2 of the Amended Form, no SPD was assessed when the original Duties Notice of Assessment issued on 23 December 2020 (R1-32) .

The investigation

51. On 21 June 2024, the Respondent commenced an investigation under Part 9 of the TA Act to determine whether the Applicant was liable to pay SPD pursuant to Chapter 2A of the Duties Act (R1-3).

52. On 6 September 2024, the Respondent issued the revised Assessment (R1-187).

53. The Applicant objected to the assessment on 10 September 2024 (R1-196; R1-203).

54. On 30 September 2024, the Respondent issued a further notice of assessment, indicating payments that had been made by the Applicant against the Assessment (R1-226).

55. The Applicant’s objection was disallowed on 12 November 2024 (R1-234). The reasons for decision said, inter alia (my emphasis):

“A Purchaser/Transferee Declaration is required to be completed by each purchaser prior to a transfer duty transaction being processed, disclosing whether the purchaser is a foreign person. From the information required to be declared it should have been evident that surcharge duty applied. Further, if there was any doubt about a liability to SPD contact could have been made with the Chief Commissioner to clarify. At the time of the transaction being processed, surcharge duty had been in operation for over 3 years. It is expected that there would be an awareness of surcharge purchaser duty and the definition of foreign person by a taxpayer and/or their representative at that time.

Whilst it is acknowledged you had engaged a legal professional to facilitate this purchase. The fact that you may have relied on your legal representative during this process is unfortunately not enough to establish reasonable care being taken to comply with the law. This was confirmed in the Supreme Court case of Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue; International Hotel Services Pty ltd v Chief Commissioner of State Revenue [2019] NSWSC 657 at [298]-[299] where Ward CJ outlines that simply engaging in [sic] or retaining a professional representative is not sufficient to consider as reasonable care. Ward CJ accepts that it is a factor that (taken with others) might demonstrate reasonable care to comply with the taxation law, however, what would be more relevant would be the seeking of professional advice or the making of inquiries to the relevant taxing agency or others directed to the issue or as to the structuring of arrangements with a view to ensure that any tax liability would be met. Importantly the reasonable care standard applies to both the taxpayer and their advisor.

Furthermore, the fact that you claim you were unaware of your liability until the investigation is also not a valid reason for a remission of interest or penalty tax. Stamping of the transaction was not processed by Revenue NSW but by your legal representative and so Revenue NSW had no way of knowing that you may be liable to surcharge duty until the commencement of the investigation….

…

Finally, whilst we appreciate the fact that you have been honest in your dealings with Revenue NSW, that you have agreed to repay the duty, and that you did not intend to disregard the law, these factors have already been taken into account in the decision to remit penalty tax to 20% and are not valid reasons for a further remission. Your personal and financial circumstances are also unfortunately not valid reasons for a remission. In conclusion, although we appreciate the circumstances and financial impact, there is no evidence of reasonable care being taken to comply with the law in this case and thus no grounds for a remission of interest or penalty tax. Remission would therefore be unfair to other taxpayers who pay their taxes on time or to the other tax defaulters who have paid interest and penalty tax in similar circumstances.”

56. The Applicant had been provided with a copy of the Amended Form by the Surcharge Compliance Team for Revenue NSW, and had assumed this was the version she had completed. After the objection was determined, however, she realised that was not the case and sent the following email to the Respondent on 19 November 2024 (R1-237) (my emphasis):

“Hi [name]

In gathering of evidence for NCAT Tribunal we have come across new information which I believe is best to raise with you prior to submission to the Tribunal.

My records indicate that on December 22^nd 2020 I completed the Purchaser Declaration form and in doing so, did in fact answer “No” to question 2.2. However, on December 23^rd 2020 at 12:56pm, a representative from Revenue NSW’s agent, Spectrum Solutions, asked my legal representative to amend the form and send it back to her. Neither myself nor my partner Roy was included in this discussion. That amended form indicated “Yes” to question 2.2.

Now knowing this, I believe it contradicts many of the points raised in the objection determination notice, and we wanted to make you aware before lodging a case for the Tribunal.”

57. I accept this was the first time the Applicant became aware the Amended Form had not been completed by her, and differed from the Original Form which she had sent to Thomson Geer.

58. On 25 November 2024, the Respondent replied by email saying (excerpt, as written) (R1-203):

“The reasonable care standard extends to both the taxpayer and their representative (Bayton Cleaning Company Pty Ltd…). At the time of assessment it was stated that you were not a foreign person therefore the system did not identify a liability to surcharge purchaser duty. Therefore, there was an error by your representative in the data entered into the system such time. Regardless, of the duties assessment this liability was to be known at such time a failure to identify and rectify such error is not deemed to be taking reasonable care.

In circumstances where you have provided the correct information to your representative and they have failed to correctly inform you of your liabilities does not deter the Chief Commissioner from imposing the correct duty and applicable interest and penalties. My review is to determine if there was an error at law by the Chief Commissioner in respects to his decision. After a review of all documentation whilst I acknowledge you had provided all relevant information to your representative to allow a correct assessment to be made. I find the assessment issued by the Chief Commissioner was in accordance with legislation, case law and business rules and unfortunealty no remission is available.”

59. The Applicant filed her application to the Tribunal for administrative review on 19 January 2025 (A1).

60. On 8 February 2025, the Applicant (via her representative) advised the Respondent by email that she now understood and accepted the liability to SPD and no longer sought to challenge that in the review by the Tribunal. Accordingly, she only sought review of the imposition of interest and penalty tax.

Applicant’s submissions

61. The Applicant’s written submissions (A3) were written on the assumption that Spectrum was an agent of the Respondent, such that their actions or errors were attributable to the Respondent and not the Applicant.

62. That was incorrect, as set out by the Respondent in their submissions (R3[52]-[53] ff); a threshold matter which was conceded by the Applicant’s solicitor at the hearing.

63. In summary, the Applicant now submits that she should not be assessed for either interest or penalties in circumstances where:

1. She correctly completed all the key information on the form;

2. She returned the form to the solicitors;

3. It was changed, sent to Spectrum, and therefore lodged on a different basis without being checked or confirmed with her;

4. She was not “on notice” that a different form was submitted, nor had any reason to suspect that had occurred; and

5. She relied upon two professional firms (Thomson Geer and Spectrum - who dealt with such matters and forms on a daily basis) to have checked and confirmed the information prior to passing it on and/or lodging it with Revenue NSW.

64. Further, the Applicant submitted that the errors that did occur arose from a “glitch” in the PDF version of the PD Form at that time. This was set out in their written submissions as follows:

“28.   The PD Form which was provided to the Applicant to fill out contains a Question 2.1 which reads Is the purchaser/transferee a foreign person? The options (boxes to be ticked) are ‘Yes’ and ‘No’. A further question (still on 2.1) appears: ‘If No, are you:’ for which the options are: ‘An Australian citizen’ or ‘a person who is ordinarily resident in Australia.’

29.   It is respectfully submitted that a person filling out the document electronically should not be able to tick two boxes with contradictory responses – documents of this nature which require selections to be made by ticking boxes are commonly known to automatically untick a box which is contradictory to another box. For exempt: for a ‘yes or no’ question, if a person ticks a box for ‘Yes’, then changes their mind and decides to click ‘No’ instead, the document will automatic ally untick the box labelled ‘Yes’. This follows common logical sense. At the very least, a document of that nature will allow the person to manually untick the box labelled ‘Yes’, so that contradictory boxes are not ticked, leading to a misleading form.

30.   However, the PD Form which was sent to the Applicant contained a technical error which, after the Applicant erroneously selected one of the options in answer to Question 2.1, not only did not automatically untick the previous contradictory response, but actually precluded her from unticking the previous contradictory response. This is a blatant technical error.

31.   The evidence of this technical error is in the email from the Applicant’s representative to Revenue NSW’s representative [now conceded to be incorrect] whin which she says:

I have updated Julia’s purchaser declaration form but cannot untick the box that relates to the NZ passport.

32.   The Applicant will seek the indulgence of the Tribunal at the Hearing to demonstrate the above-0stated technical error in the PD Form.

33.   Evidence is available that Revenue NSW, or an overseeing government department, actually became aware of the ambiguity and deficiency of the PD Form, in that the format of the form has since been altered significantly so as to remove the ambiguity and remedy the technical error.

34.   The Applicant will seek the further indulgence of the Tribunal at Hearing to demonstrate the changes to the new version of the PD Form which is available on the Revenue NSW website.

35.   This technical error is a circumstance outside of the Applicant’s control.”

65. The Applicant’s representative, at the hearing, demonstrated the functionality of the previous and current online versions of the PD Form on his computer.

66. I accept that the version of the form at the relevant time contained the technical “glitch” set out at [29] and [30] of the above submissions.

Respondent’s submissions

67. The Respondent submitted, in summary:

1. The Respondent has no legal duty to advise taxpayers of their obligations under the law. But in any event, the respondent warned the taxpayer on the Purchaser/Transferee Declaration of the need to consult their website and the information contained on it;

2. There is no evidence that the applicant sought or received external advice or contacted Revenue NSW for assistance;

3. Being unaware of your obligations is not a ground for remission of interest or penalties; and

4. Based on the information provided, the Applicant (who has the onus of proof) has not produced sufficient evidence – including evidence from the firms engaged in respect of the purchase - to conclude that she or her agent took reasonable care, or established any other grounds for the remission of penalties or interest (and citing the rule in Jones v Dunkel (1959) 101 CLR 298).

CONSIDERATION

The decision under review

68. The Tribunal’s role is to conduct an administrative review of the Assessment dated 6 September 2024 which was “the subject of an objection”: s 96(1) of the TA Act.

69. The assessment to SPD is not in dispute.

70. In this case, the questions are whether the correct and preferable decision is to remit:

1. some or all of the penalty of $7,616 (which included a reduction from 25% to 20% under s 29 of the TA Act); and

2. some or all of the interest of $13,585.13 (imposed at the market and premium rate).

71. The Applicant acknowledges in her written submissions that she bears the onus of proof.

Penalties

Section 27(3) of the TA Act

72. As noted above, the penalties were reduced from the default rate of 25% to 20% having regard to the Applicant’s co-operation during the course of the investigation.

73. Section 27(3) of the TA Act provides a discretion to the Commissioner (and, here, the Tribunal) to “determine that no penalty tax is payable”. That discretion to remit penalty to nil is only engaged if the Tribunal is satisfied that –

(a)  the taxpayer (or a person acting on behalf of the taxpayer) took reasonable care to comply with the taxation law, or

(b)  the tax default occurred solely because of circumstances beyond the taxpayer’s control (or if a person acted on behalf of the taxpayer, because of circumstances beyond either the person’s or the taxpayer’s control) but not amounting to financial incapacity.

74. To the extent that the Applicant’s written submissions misunderstood the role of Spectrum, that was later corrected and conceded at the hearing (as noted above). It follows that in respect of s 27(3)(b), I find that the tax default did not occur solely because of circumstances beyond either the Applicant’s control or of a person acting on her behalf – being either Spectrum or Thomson Geer. There is therefore no basis to exercise a discretion to reduce penalties to nil under that provision.

75. In respect of s 27(3)(a), I am not satisfied on the evidence before me that either the Applicant, or persons acting on her behalf (Thomson Geer or Spectrum) took reasonable care to comply with the taxation law.

76. “Reasonable care” requires a determination of whether a person exercised the care that a reasonable person would be likely to have exercised in the circumstances of that person (including in respect of enquiries made and advice sought or received): see Qualweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227 at [95]; RVO Enterprises Pty Ltd ATF the R M O’Mara Family Trust v Chief Commissioner of State Revenue [2004] NSWADT 64 at [23]; Levitch Design Associates Pty Ltd ATF Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 21 (“Levitch”) at [113]; also the instructive Supreme Court decision of Richmond J in Golden Age & Hannas the Rocks v Chief Commissioner of State Revenue [2024] NSWSC 249 (“Golden Age”) at [70] and [111].

77. I am unable to find that reasonable care was taken by Thomson Geer or by Spectrum because the evidence before me suggests that both held the appropriate visa information and did not complete or lodge the forms correctly. It also appears, concerningly, that answers on a declaration form may have been changed without instructions from the client. However, I am not satisfied that I have complete evidence regarding the relevant circumstances. I accept that there were some records in the form of emails and the completed forms before the Tribunal. But, as noted by the Respondent, there was no evidence in the form of an affidavit or oral testimony from any representative of either Spectrum or Thomson Geer; now was there evidence concerning the specific conversations between Thomson Geer and either the Applicant or her husband regarding instructions.

78. I am also not satisfied that the Applicant herself took reasonable care to comply with the taxation law.

79. I accept that she was not a lawyer, had no legal training, and relied upon her advisers; that she completed the “material” parts of the form correctly and returned that information to Thomson Geer. I also have accepted that there was a problem with the functionality of the form that gave rise to confusion that required amendments to be made to the form, resulting in the changes made as noted above without her knowledge.

80. Nonetheless, I am not satisfied that she exercised reasonable care. She neither sought nor received any specific instructions for completing the form, and could not recall reading the Explanatory Notes despite the form pointing to a requirement to do so. She made errors when completing the form (as set out above) – despite declaring that it was true and correct in all respects.

81. Regarding the glitch, I believe a reasonable person in the Applicant’s position would have brought any problem in completing the form to the attention of Thomson Geer to make sure that it was remedied prior to submitting the form for processing.

82. Accordingly, I find that the prerequisite(s) for the exercise of the discretion to remit penalties to nil under s 27(3)(a) are not satisfied.

83. Even if I were to have found that the Applicant took reasonable care, I would not be satisfied that the discretion should be exercised to reduce the penalties to nil, having regard to the totality of all actions of the parties, when considered together. As stated in Nhem v Chief Commissioner of State Revenue [2024] NSWCATAD 9 (at [63]-[64]):

“An additional justification for a refusal to exercise the discretion in those circumstances is obtained by having regard to the combined result of the behaviour (the acts and omissions) of the taxpayer and the person acting for them. If that combined result is that the Chief Commissioner is unable to make a proper assessment of duty because the relevant behaviour includes a failure to take reasonable care (as here) or a failure to provide complete and accurate information (as here) then, whether or not it was the intention of either of the relevant parties to mislead (and there was none established here), the Tribunal may be justified in refusing to interfere with the Chief Commissioner’s decision not to exercise the section 27(3) discretion.”

Section 33

84. Section 33 of the TA Act provides a discretion to remit penalty tax (in whole or part) if the Respondent considers it appropriate. It is a broad and unfettered discretion: Hirere Pty Ltd v Chief Commissioner of State Revenue (NSW) (2004) 57 ATR 476 at [24]-[25], [31].

85. In Bayton Cleaning Co Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 657; (2019) 109 ATR 879, Ward CJ held at [301] that she did not consider that the general discretion in s 33 should be exercised:

“… where there has been a finding that reasonable care has not been established and in the absence of some special circumstance to warrant the exercise of the discretion notwithstanding the absence of a finding of reasonable care.”

86. This position was reinforced by the Court of Appeal in Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd (2020) 103 NSWLR 772 at [149]-[150].

87. Having regard to my finding above that reasonable care has not been established, I am not satisfied that the facts above establish any special circumstances or other matters that would warrant a remission of penalty in whole or in part under the general discretion in s 33 of the TA Act.

Interest

88. Interest may be remitted pursuant to s 25 of the TA Act.

89. As set out above, s 25 was amended on 1 February 2024. Although guidelines have been issued pursuant to the amended s 25(2) of the TA Act, this matter was heard prior to their issue: see Golden Age at [24].

90. As noted in the Respondent’s submissions at [44], section 25 confers a broad and unconfined discretionary power, and the considerations which are relevant to its exercise are determined by reference to the subject matter, scope and purpose of the relevant statute: see Golden Age at [99]-[100] and the cases referred to therein.

Market rate component

91. The market rate component is intended to compensate the Respondent for not having the benefit of the tax payment from the time it was due, and so approximates the ordinary lending interest rates. It is a component that could rarely, if ever, be waived as otherwise tax would be paid at a devalued amount thereby discriminating against taxpayers who meet their obligations on time. See Golden Age at [101] referring to Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19 (“Incise”), the Commissioner’s Practice note CPN 024, and Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 (“Wan”) at [71]-[73].

92. Given the change in the Applicant’s position regarding the role of Spectrum, the only “fault” of the Respondent alleged by the Applicant at the hearing was in respect of the functionality “glitch” on the PD Form. That matter has been discussed above, and I am not persuaded that it could not have been dealt with – and correctly remedied – at the appropriate time. I find there are no exceptional or other circumstances that would justify any remission of the market rate component.

Premium component

93. It is accepted that the “premium component” of interest is a form of penalty. As stated by Richmond J in Golden Age at [102] ff:

102   In my view it is necessary to approach the remission question by recognising that the premium component is penal in nature and serves the purpose of both imposing a penalty and deterring taxpayers from delaying payment of duty in what is essentially a self-assessment regime. Consequently, the culpability of the taxpayer in failing to pay the duty liability by the due date is an important matter in the exercise of the discretion. I do not accept the Commissioner’s submission that it is a penalty at the “low end” of the scale. Depending upon the period of the delay in payment, the penalty arising from the premium component can be very significant as it was in the present case (being 24% of the duty assessed on the premium).

103   In Incise Technologies, the Appeal Panel identified (reflecting a submission made by the Commissioner in that case) four cumulative criteria which are relevant to the exercise of the discretion under s 25:

(1)   All principal tax that is owing and not in dispute has been fully paid;

(2)   There has been cooperation by the taxpayer in providing relevant information to the Commissioner so as to enable the Commissioner to issue assessments;

(3)   Such cooperation has occurred prior to any investigation being commenced by the Commissioner or, at the very least, within a reasonable time after the request for information had been made by the Commissioner; and

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

104   The Appeal Panel noted in Incise Technologies at [63] that the first of these criteria could be clarified to be “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” and that while they were all relevant and appropriate matters for consideration, they were not exhaustive. That the four criteria are not exhaustive has been confirmed in subsequent cases, eg. Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107 at [179] and Chief Commissioner of State Revenue v E Group Security Pty Ltd (No 2) [2022] NSWCA 259 at [105]-[106].

105   The Court was referred to the Commissioner’s guidelines on interest and penalty tax appearing on the Revenue NSW website, which state:

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. However, for the purpose of payroll tax, the premium rate of interest is not reduced.

…

When determining whether reasonable care was taken we’ll consider whether you:

● Kept complete and accurate records

● Made a diligent effort to understand and comply with the law;

● Sought expert advice on uncertain or complex matters;

● Were honest in your dealings with us.

We’ll also consider your:

● Understanding of the law;

● Commercial experience;

● Access to expert advice;

Meeting one or more of these criteria does not necessarily mean that reasonable care has been taken. All factors leading to the tax default are taken into consideration.

106   It was accepted in Adams Bidco at [158]-[162] that whether the taxpayer has taken reasonable care to comply with the taxation law is a relevant consideration for the exercise of the discretion under s 25; see also Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773 at [86]; Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 657 at [301]. I agree that whether the taxpayer took reasonable care is relevant to the remission of the premium component under s 25. In particular, it is necessary to consider whether there are factors which mitigate the taxpayer’s behaviour in failing to pay its tax liability on time and, in this regard, it is necessary to consider the steps (if any) taken by the taxpayer to comply with the taxation law, whether those steps were reasonable and the explanation for why, despite those reasonable steps, the tax default occurred.

94. I accept that the first four factors noted in Incise have been satisfied. I note, in particular, that there was no “wilful” default by the Applicant in not paying tax on time (per Golden Age at [108]).

95. However, as found above, I find that the Applicant did not take reasonable care. Regarding “reasonable care”, it is true that the Court in Golden Age found that the premium rate should be reduced to nil even though the error was caused by a failure by the taxpayer’s solicitors to take reasonable care. But in the circumstances of that case, the taxpayer had rightly sought and received legal advice, leading to a finding that the taxpayer took reasonable care (even though the solicitors did not). Accordingly, that case is distinguishable and I have found – for the reasons above – that no reasonable care was taken in this case by the Applicant.

96. The factors to be considered in relation to the power to remit the premium component are broad and are not limited to reasonable care or exceptional circumstances. It is also necessary to ask whether there were any other circumstances of the Applicant which are relevant to establishing the degree of culpability (Wan at [81]-[82]).

97. Having considered that question, I am not persuaded that there are other circumstances that would warrant a reduction of the premium component by any amount. And I do not agree (as submitted by the Applicant) that she and/or her representatives did all things in their control to ensure that the Applicant’s status as a foreign person, and therefore her liability to SPD, was identifiable. I find that even though there was no wilful default, there was no evidence that there was a level of attention to the matters which were required to be both understood and addressed at any level. This leads me to conclude that this is not a case in which it would be appropriate to exercise the discretion to remit any element of the premium component of interest.

98. I also observe that the change in the Applicant’s position following the filing of their written submissions, combined with the absence of testimony from persons other than the Applicant, did not assist her case having regard to the onus of proof upon her.

Orders

99. I make the following order:

1. The assessment to penalties and interest is affirmed.

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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: 09 September 2025