Solomon v Commissioner of State Revenue
[2014] QCAT 125
•2 April 2014
| CITATION: | Solomon v Commissioner of State Revenue [2014] QCAT 125 |
| PARTIES: | Barry Nathan Solomon (Applicant) |
| V | |
| Commissioner of State Revenue (Respondent) |
| APPLICATION NUMBER: | GAR033-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 2 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | Application to review assessment of Transfer Duty - Non-payment of assessed duty - jurisdiction of Tribunal Taxation Administration Act 2001 s 69 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22, 47 Fleri v Commissioner of State Revenue [2012] QCAT 135 |
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
The trustees of the B.N.S. Superannuation Fund made an in specie distribution of real property at 1 Tosti Street, Bundall to Mr Solomon, a member of the fund. At the time of lodgement of the form 1 transfer in respect of the transaction for the assessment of duty an exemption was claimed by Mr Solomon under s119 of the Duties Act 2001. The Commissioner advised by letter that the exemption did not apply and requested evidence of the value of the property. Following receipt of the valuation information the Commissioner issued an assessment notice in the amount of $56,430.90 (compromising $56,430.90 duty and $5.90 postage) in respect of the transaction. An objection was made against that assessment by Mr Solomon. The Commissioner disallowed the objection by letter on 21 November 2013.
Mr Solomon made an application to the Tribunal to review the decision on 24 January 2014. The Commissioner has made an application to strike-out/dismiss the application on the basis that Mr Solomon has not complied with the requirements under s69 (1) (b) of the Taxation Administration Act 2001 (TA Act) in regard to payment of the disputed amount prior to applying to the Tribunal for review of the decision. This is on the basis that the Tribunal’s jurisdiction is only enlivened where such payment is made prior to the filing of the application.
Mr Solomon had a right to lodge an application to review the decision to disallow the objection within 60 days of notice of the decision being given to him. This is contained in s 69 (2) of the TA Act. The TA Act in s 69 (1) clearly states this section applies if the taxpayer is dissatisfied with the Commissioner’s decision on objection and the taxpayer has paid the whole amount of the tax and late payment interest payable under the assessment. That section prevails over the provisions of the Queensland and Administrative Tribunal Act 2009 in regard to the requirements for filing an application to review.
The Tribunal has previously held that unless payment is made prior to the filing of the review application there is no jurisdiction to hear the review application and the application is liable to be dismissed or struck out under s 47 of the QCAT Act[1].
[1]Fleri v Commissioner of State Revenue [2012] QCAT 135, Cowie v Commissioner of State Revenue [2012] QCAT 612, Naswari v Commissioner of State Revenue [2013] QCAT 66.
The Commissioner, through a Deputy Commissioner, provided a certificate to the Tribunal declaring that as at 12 February 2014 the sum of $58,249.02 is due and payable to the Commissioner by Mr Solomon.
Mr Solomon in submissions prepared by his lawyers dated 21 March 2014 in reply to the Commissioners application to strike-out/dismiss stated that the transfer of the dutiable property was conditional on no duty being payable. That if the application to review is unsuccessful Mr Solomon intends to cancel the transfer and request a reassessment under s156A of the Duties Act 2001 and therefore either way no duty will be payable to the Commissioner. On this basis the Tribunal should exercise its discretion under s 61 (1) (c) of the Queensland Civil and Administrative Tribunal Act 2009 to waive compliance with the requirement to pay the duty.
For the Tribunal to be able to exercise its discretion to waive compliance with the requirement of s 69 (1) (b) of the TA Act it must have jurisdiction to hear the matter. Having regard to the previous Tribunal decisions this is not a matter where the Tribunal can exercise a discretion as the requirements of the TA Act have not been met and the Tribunal has no jurisdiction to hear the application.
Due to Mr Solomon not having complied with the requirements of s 69 (1) (b) of the TA Act in regard to payment of the disputed amount the Tribunal orders that the application is dismissed.
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