Rosara Pty Ltd (as Trustee) v The Commissioner of Land Tax

[1991] QLC 48

[1991] QLC 48

 

  LAND COURT,

BRISBANE

5th April, 1991

Re:     Appeal against Land Tax Assessment.
  A90-65.

Rosara Pty Ltd
  as Trustee
  v.
  The Commissioner of Land Tax

D E C I S I O N     

By notice dated 1st August, 1990, the Commissioner of Land Tax issued Assessment 073603/E14989 addressed to the Trustee Capital Investment Trust in respect of land owned at midnight on 30th June, 1989.  Under the provisions of Section 30(1) of the Land Tax Regulations, Rosara Pty Ltd as Trustee of the Capital Investment Trust duly objected to the assessment.  A written decision of the Commissioner disallowing the objection issued on 26th September, 1990.  The appellant then exercised the right of appeal to the Land Court against the assessment and lodged the notice of appeal by post.  It was received by the Registrar on 17th October, 1990.  In a notice dated 12th February, 1991, the Registrar advised the parties that the matter would come on before the Court for hearing on 25th March, 1991.  The Crown Solicitor in a letter dated 12th March, 1991, advised the appellant that a copy of the notice of appeal had not been received by the Commissioner and that an Order would be sought from the Court that the appeal not be heard for failure to serve the copy notice on the Commissioner.  The letter further advised that should the appeal not be withdrawn before the proposed date of hearing, an application for an Order for Costs pursuant to the provisions of Section 28 of the Land Tax Act of 1915-1990 would be made.

Mr Licciardello, the solicitor for the Commissioner, directs my attention to Regulation 30(2) of the Land Tax Regulations which reads:

"(1)Where a right of appeal exists against any assessment or part thereof and a taxpayer is dissatisfied therewith but does not desire to appeal to the Land Court, he may, within thirty days after the notified date on which Land Tax is payable, state his objections in writing to the Commissioner in form G in the Schedule hereto.  The objections shall be considered, and may be allowed, either wholly or in part, and the assessment may be altered or amended accordingly.

(2)Written notice of the decision of the Commissioner upon such objections shall be given to the taxpayer in such of the Forms H1 or H2 in the Schedule hereto as is applicable.  If the taxpayer is dissatisfied with the decision of the Commissioner, he may within thirty days after the date of the written notice of such decision appeal to the Land Court, and the original assessment, as altered or amended by the said decision, shall be the assessment appealed against; in all other respects the matter shall proceed as an ordinary appeal against an assessment, provided that the grounds of appeal shall be limited to the grounds of objection.   "

He submits that the words in this Regulation "in all other respects the matter shall proceed as an ordinary appeal against an assessment...." means that the matter is to proceed as an appeal under Section 27 of the Land Tax Act which gives a right to a landholder to appeal directly to the Court against an assessment.  If he elects to proceed by this path, the provisions of Regulation 28(1) apply.  This provides:

"The appeal which may be made by any taxpayer or person under section 27 of the Act must be made to the Land Court within thirty days after the notified date on which the land tax is payable and at the time the appeal is made a copy of the notice of appeal must be sent by such taxpayer or person to the Commissioner.   "

Regulation 29(1) provides:

"No appeal shall be allowed in respect of which no copy of the notice of appeal has been forwarded within the period hereinbefore limited.   "

It is his submission that these provisions are mandatory and when a landholder fails to comply with the requirements of the Regulations the Court has no power to hear and determine the appeal.
                  Mr K. Grantley, one of the Trustees, submits that he received the notice of assessment of Land Tax and chose to exercise the right given to object to the assessment in terms of Regulation 30(1) and not to exercise the right to appeal directly to the Land Court as provided by Regulation 28.  He says that having taken this path the time limit provided by Regulation 28(1) for lodgment of appeal was of no significance.  He received the form of notice of disallowance of his objection in the prescribed Form H2 in which he was advised that the matter would deemed to be determined unless within thirty days from the date of the notice he appealed to the Land Court as provided by the Land Tax Act.  There was no mention in that form that it was necessary to also advise the Commissioner of the appeal.  He says that the time constraints in Regulation 28(1) could not be complied with as the time had long expired before a decision on the objection was given.  He contends that Regulation 28(1) does not apply and the matter should be considered under Regulation (2) which reads:

"Copies of all notices of appeal against assessments shall be delivered to, or posted so that in the ordinary course of post they would be delivered to the Commissioner, not less than sixty days before the commencement of the sittings of the Court at which the appeal is to be heard.     "

He submits that the matter could be adjourned for a period of more than 60 days which would give him the time in which to supply a copy of the notice of appeal to the Commissioner.  He was advised in February of the date of hearing and this was less than 60 days.
                  In reply,  Mr Licciardello submits that Regulation 30(2) provides for the procedure to be followed when an appeal follows a decision upon objection and after prescribing the time limit for the lodgment of such an appeal, the Regulation says "in all other respects the matter shall proceed as an ordinary appeal against an assessment...." and those requirements are to be found in Regulation 28(1).
                  He submits that Regulation 28(2) is no more than a requirement that the Commissioner should have sixty days in which to prepare his case before it comes on for hearing.
                  The submissions made by Mr Licciardello are well founded.  The right of appeal to the Land Court against an assessment by the Commissioner is given by Section 27 of the Act.  Regulation 28(1) prescribes the time for lodgment of an appeal where the taxpayer elects to go straight to the Court and has the mandatory provision that a copy of the notice of appeal must be sent to the Commissioner within the prescribed 30 day period.  Regulation 30(2) makes provision for cases where the taxpayer has elected to object to the assessment and postpones the right of appeal to the Land Court until a decision on objection is given.  He is required to lodge the appeal within 30 days after the date of the written notice of such decision and in all other respects the matter shall proceed as an ordinary appeal against an assessment.  The procedure for ordinary appeals against assessments is to be found in Regulation 28(1) which requires the service of a copy of the notice of appeal on the Commissioner.
                  Regulation 28(2) is not relevant but is merely a provision to give the Commissioner time to consider the matter before it comes on for hearing.
                  It is a matter of regret that Mr Grantley was unaware of the requirement to serve a copy of the notice of appeal on the Commissioner.  His notice of appeal is in the printed prescribed form and extends over three forms.  On the back of each is printed the Rules of the Land Court to be observed by appellants and contains a note that a copy of the notice of appeal must be sent to the Commissioner.  Regulation 29(1) provides "No appeal shall be allowed in respect of which no copy of the notice of appeal has been forwarded within the period hereinbefore limited".  This is a mandatory direction and the Court has no power to waive compliance with the Regulations.  It follows that the Court has no jurisdiction and the appeal is struck out. 
                  The power of the Court on the awarding of costs is contained in Section 28 of the Land Tax Act which is expressed in mandatory terms.  I have no discretion in the matter and costs must follow the event.  Accordingly, I order the appellant pay the respondent's costs of and incidental to this appeal.  The amount of such costs shall be ascertained and fixed by the costs Taxing Officer of the Supreme Court of Queensland at Brisbane in accordance with the provisions of Section 41(9) of the Land Act 1962-1990.

(D.J. Barry)            
  President of the Land Court