Ross v Chief Commissioner of State Revenue

[2009] NSWADT 146

CITATION:	Ross v Chief Commissioner of State Revenue [2009] NSWADT 146
DIVISION:	Revenue Division
PARTIES:	APPLICANT Raymond Arthur Ross RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	096043
HEARING DATES:	10 June 2009
DATE OF DECISION:	18 June 2009
BEFORE:	Needham J SC - Deputy President
CATCHWORDS:	Directions
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	APPICANT In Person RESPONDENT A H Rider, barrister
ORDERS:	a. NOTE: Respondent to write to Applicant seeking further information by 19 June 2009, seeking a reply from Mr Ross by 3 July 2009 b. Extend time for filing of s 58 documents pending further directions c. NOTE: Applicant seeks a hearing date; opposed by the Respondent; matter adjourned for 096042 to become ready for hearing d. NOTE: this matter is to be heard with 096042.Matter adjourned for directions on 8 July 2009 at 12.00 noon. Timetable made on 13 May 2009 vacated.

1 Mr Ross is the applicant in proceedings no 096043 which have been before the Tribunal for directions on two occasions; firstly on 13 May 2009 and secondly on 10 June 2009.

2 On 13 May 2009 the following directions were made:-

(a) NOTE: see file 096042;

(b) Respondent to file and serve s 58 documents by 27 May 2009;

(c) Applicant to file and service evidence and submissions by 10 June 2009;

(d) Respondent to file and service evidence and submissions by 7 July 2009;

(e) Matter adjourned for further directions on 8 July 2009 at 11.00 am.

3 Due to non-compliance with a direction in file no 096042 (Macedo v. CCSR; “the Macedo matter”), the respondent sought that these proceedings (“the Ross matter”) and the Macedo proceedings be relisted for further directions.

4 The facts upon which Ross matter is based are, in brief compass:-

(a) Mr Ross and Ms Macedo, Mr Ross’ sister, allege that she, the registered proprietor of the property in question, holds the title on trust for Mr Ross, he being the equitable owner of the property.

(b) In addition, Ms Macedo has signed a blank transfer in favour of Mr Ross and it is argued that that transfer attracts nominal duty pursuant to s 55 of the Duties Act 1997, and it is the decision of the Commissioner in relation to the duty on the transfer which is the subject of the Ross matter.

(c) Ms Macedo has apparently also signed a Declaration of Trust in favour of Mr Ross and there is an issue whether that Declaration of Trust should be assessed as attracting nominal duty pursuant to s 55 of the Duties Act. No application for review has been lodged in relation to the duty attracted by the Declaration of Trust.

5 I should note that I have only the Application in each of the Ross and Macedo matters before me and thus the formulation of issues may not be totally accurate; however, the letter of 21 April 2008 to Mr Ross from the Office of State Revenue which is attached to the Application indicates that the objection the subject of the Ross matter arises out of a transfer from Ms Macedo to Mr Ross. That transfer is undated and no valuation of the property was provided to the Chief Commissioner.

6 When the two proceedings came before me Mr Rider, who appeared for the respondent, indicated that there were some issues relating to both sets of proceedings which in his submission needed to be dealt with so that all revenue implications arising out of the ownership of the property could be dealt with at once.

7 Those issues are, paraphrasing their formulation by Mr Rider (which was not agreed to by Mr Ross as set out below):-

(a) Previous Macedo matter – the 2008 tax year was the subject of prior proceedings (which appear to be numbered 086041, but as noted above I have not seen that file). Those proceedings were withdrawn, in circumstances which Mr Ross says left him free to re-file but which Mr Rider says may attract issue estoppel or res judicata.

(b) Macedo matter (current) – the application attaches a letter dated 21 September 2007 from the Office of State Revenue noting that the 2002-2007 tax years were objected to out of time, and no request for an extension of time was made. Accordingly, the objection was “not considered lodged within the prescribed time”. Mr Rider noted that in order for the Tribunal to have jurisdiction, Mr Ross should lodge a fresh objection, seeking an extension of time in which to object to the assessments in these years, and that the Commissioner would then consider it. Currently, as there has been no determination of an objection, the Tribunal has no jurisdiction to consider the 2002-2007 land tax assessments.

(c) Ross matter - the matter concerns, as noted above, the liability for duty on a transfer. The applicant has not provided, and the respondent has sought, the date of the transfer and a valuation as at the relevant date.

(d) Future possible Duties Act matter - Mr Rider noted that no application had been made in relation to duty levied on the Declaration of Trust.

8 Mr Ross objected to the Respondent’s formulation of the issues in relation to (c) and (d) (paragraphs (a) and (b) are dealt with in the reasons for decision in the Macedo matter). He stated his strong views that:-

(a) he was under no duty to provide either a date of transfer or a valuation as he was the equitable owner of the property and s 55 of the Duties Act applied; thus, any further expenditure on was of no value;

(b) any decision in the current matter would bind the Chief Commissioner in relation to any other assessment based on the equitable/legal ownership of the property and thus there was no need to file further proceedings to seek a review of the stamp duty levied on the Declaration of Trust.

9 Mr Rider submitted:-

(a) there was a need for a valuation and a date of transfer so that, if Mr Ross were unsuccessful, the totality of the issues between them (i.e., the level of duty) could be dealt with in one hearing.

(b) there was a need for filing of a fresh application in relation to the Declaration of Trust for the same reason.

10 While I agreed with Mr Rider’s submissions, I felt that provision of the required details was not something I should, at this point, order Mr Ross to do, nor could I order him, of course, to commence a fresh application for review. Mr Ross indicated that he did not intend to take either of those courses and reiterated the positions given above. Mr Rider submitted that time should be given for the Respondent to seek provision of the date of transfer and a valuation voluntarily from Mr Ross, and if they were not provided, the Commissioner then had power to seek his own valuation (at the cost of the Applicant).

Application for hearing date

11 Mr Ross sought that this application be set down for hearing. He said it was ready for hearing, and that the section 58 documents, submissions and evidence in the proceedings which were dismissed in relation to the 2008 land tax year could be used in these proceedings. Mr Rider resisted that application on the basis that these were different proceedings, and that there was no utility in having these proceedings heard separately from other proceedings arising out of the same property ownership facts.

12 I agreed with Mr Rider. The matter is demonstrably not in a state of readiness. The facts in this matter are complex and there is, it appears from the facts given in the letter of 21 April 2008 referred to above, a significant money trail, culminating in issues of resulting trusts and other equitable principles. It would be both costly and time consuming to hear such a matter twice (or three times, if there were an application filed in relation to the decision on the Declaration of Trust). Accordingly, I refused Mr Ross’ application for the matter to be set down for hearing and ordered that the proceedings be heard together with the Macedo matter.

13 Mr Ross objected to this on the basis that the applicants in the Ross matter and the Macedo matter were different, and that this fact alone disqualified the two proceedings from being heard together. In addition to the obvious public interest in only one hearing being undertaken in relation to revenue issues arising out of the same complex facts in relation to the same property, I have already directed that an amended Application be filed in the Macedo proceedings, adding Mr Ross as an applicant to reflect his contention that he is the true owner of the property. Given this fact, there is little force in this submission.

14 Section 73 of the Administrative Tribunal Act gives the Tribunal wide powers and discretions relating to its own procedure. Relevantly, it provides:

“73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. ...”

Directions Made

15 I made the following directions and notations:-

(a) NOTE: Respondent to write to Applicant seeking further information by 19 June 2009, seeking a reply from Mr Ross by 3 July 2009.

(b) Extend time for filing of s 58 documents pending further directions.

(c) NOTE: Applicant seeks a hearing date; opposed by the Respondent; matter adjourned for 096042 to become ready for hearing.

(d) NOTE: this matter is to be heard with 096042.

(e) Matter adjourned for directions on 8 July 2009 at 12.00 noon.

16 In addition to the orders made at the hearing, and for greater clarity, I vacate the timetables set on 13 May 2009, including (as appears from order (b) above) the requirement on the Respondent to file the s 58 documents. Once the situation as to the provision of the valuation has been clarified, an order as to the filing of the s 58 documents should be made.

Application for Disqualification

17 Mr Ross, at the end of the hearing, indicated that he would prefer the matter to be heard before a Member of the Tribunal other than myself. I will not be hearing the substantive matter as, being a Deputy President, I generally sit on appeals, but I indicated if Mr Ross wished me to remove myself from directions hearings he should do so in writing.

18 I will hear any such application. I note that the exchanges during the directions hearing on 10 June 2009 were occasionally heated, but not unduly so.