Tacey v Chief Commissioner of State Revenue - [2016] NSWCATAD 255

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Tacey v Chief Commissioner of State Revenue [2016] NSWCATAD 255
Hearing dates: 9 June 2016; On the papers
Date of orders: 10 November 2016
Decision date: 10 November 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: Prof G Walker, Senior Member
Decision:
(1) The decision under review is varied by reduction of the premium component of the interest rate from 8 percent to 2 percent.
(2) In all other respects the decision under review is affirmed.

Catchwords: PAYROLL TAX – remission of penalty and interest – reasonable care – circumstances beyond the taxpayer’s control – reliance on expert advice – market rate component - nolo contendere -premium component –culpability component reduced.
Legislation Cited: Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Payroll Tax Act 2007; Taxation Administration Act 1996.
Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (CCSR) [2008] NSWADTAP 14;
Boston Sales and Marketing Pty Ltd v CCSR [2014] NSWCATAD 139;
CCSR v Elsegood & Co [1983] 1 NSWLR 223;
Chan & Naylor Australia Pty Ltd v CCSR [2016] NSWCATAD 4;
Federal Commissioner of Taxation (FCT) v Dalco (1990) 168 CLR 614;
Levitch Design Associates v CCSR [2014] NSWCATAD 215;
Ma v FCT (1992) 37 FCR 225;
Touma v CCSR [2012] NSWADT 2;
Trust Co of Australia v CCSR [2002] NSWADT 21.
Category: Principal judgment
Parties: John C Tacey (Applicant)
Chief Commissioner of State Revenue (Respondent)
Representation:
Counsel:
Mr Pearce (Applicant)
M Bennett (Respondent)
Solicitors:
Stewart Cuddy Mockler Solicitors (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510678

REASONS FOR DECISION

This matter was heard by Verick SM on 9 June 2016. Subsequently, and before a decision had been delivered, he became unavailable. In those circumstances, s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) applies. Following consultation with the parties, the President appointed me to determine the matter without a further hearing. I have had regard to the evidence and submissions of the parties.
On 28 October 2015, the applicant Mr John C Tacey applied for a review of the Chief Commissioner’s decision to disallow the remission of penalty tax and interest imposed as a result of payroll tax assessments raised on 18 June 2015 and issued to Central Drug Co. Pty Ltd, Medan Holdings Pty Ltd as trustee for the Tacey Family Trust, the applicant himself and Allan W Bonner.
The Chief Commissioner imposed penalty tax and interest pursuant to ss 21, 22 and 27 of the Taxation Administration Act 1996 (the TA Act) as a result of a tax shortfall the Chief Commissioner had identified through an audit investigation for the period from 1 July 2009 to 30 June 2013.
The facts of the case, including that the taxpayers are properly grouped for the purposes of the Payroll Tax Act 2007, are not in dispute. Nor is it disputed that the taxpayers were in tax default in relation to the assessments, within the meaning of ss 21 at 26 of the TA Act.
It is thus accepted that on 1 November 2013, the Chief Commissioner issued to the applicant an email headed “NSW Payroll Tax Investigation – John C Tacey and its [sic] related entities”, enclosing questionnaires separately addressed to each of the taxpayers.
The ensuing investigations led to the production of an audit report dated 4 December 2014, which concluded that the applicant is a sole trader, trading as John Tacey Chemist, operating a number of pharmacies in New South Wales. He was properly grouped with the other taxpayers for the purposes of the Payroll Tax Act. He controls Central Drug Co Pty Ltd and Medan Holdings Pty Ltd as trustee of the Tacey Family Trust.
Mr Bonner conducted a bookkeeping service, operating under various names, including Nepean Placement Services (Nepean). Nepean was conducted by Mr Bonner only in a titular capacity, as the applicant paid staff, interviewed candidates, recruited them and managed the other aspects of that business. Nepean placed employees in the chemist and retail businesses operated by the other taxpayers involved, such that those businesses could not operate without the placed employees. Mr Bonner was registered for payroll tax, but the wages paid by the other taxpayers were not declared through his registration, or at all. In light of the applicant’s involvement in the businesses conducted by the taxpayers, the Chief Commissioner concluded that the taxpayers were a group within the meaning of Division 2 of Part 5 of the Payroll Tax Act and that a tax default had occurred, for which the taxpayers had provided no reason.
It was also determined that the taxpayers failed to take reasonable care and that the tax default was within their control, as they (a) should have registered their wages as they lodged Business Activity Statements, Pay as You Go withholding statements and income tax returns, and (b) they retained the services of an external accountant whose advice could have been sought. As they had cooperated in the investigation and had supplied the information necessary for determining their true payroll tax liability, penalties of 25 percent were reduced to 20 percent for the tax default in the relevant period.
At the same time, however, there had been delays in the taxpayers’ provision of information. Thus, while the notice of investigation had issued on 1 November 2013, no information was provided until 8 and 11 April 2014, and then only because a s 72 notice had issued on 19 March 2014. That represented a delay of over five months and involved two extensions of time to provide the information, neither of which was complied with. Again, the Chief Commissioner’s request of 16 June 2014 for information about formation was complied with on 5 September 2014, making a further delay of almost three months.
Following further interviews with Mr Bonner by the Chief Commissioner’s staff in November 2014, the assessments were issued on 18 June 2015. A separate payroll tax investigation of Mr Bonner was finalized on 11 April 2013, and revealed that wages paid by Mr Bonner exceeded the payroll tax threshold for the years ending 30 June 2009 to 2012 inclusive. Penalty tax at the rate of 25 percent and interest were imposed because Mr Bonner’s questionnaire was not accurately completed in relation to wage variances. Consequently, “full and true disclosure” had not been made. Assessments to Mr Bonner were issued on 16 April 2013.
On 15 July 2015, the applicant objected to the penalty tax and interest component of the assessments on the ground that the taxpayers other than Mr Bonner had relied on Mr Bonner in conducting their affairs. The objection was disallowed on 2 October 2015.

Applicable legislation

Section 25 of the TA Act provides that 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”. Similarly, s 33 states that the Chief Commissioner “may, in such circumstances as the Chief Commissioner considers appropriate, remit penalty tax by any amount”.
Sections 26 and 27 provide for penalty tax:

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 tax payable in respect of a tax default is 25% of the amount of tax unpaid, subject to this Division.
(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.

The interest rates are laid down by s 22, which provides in pertinent part:

22   Interest rate
(1) The interest rate is the sum of:
(a)  the market rate component, and
(b)  the premium component.
(2) The market rate component is:
(a)  unless an order is in force under paragraph (b), the Bank Accepted Bill rate rounded to the second decimal place (rounding 0.005 upwards), or
(b)  the rate specified for the time being by order of the Minister published in the Gazette.
(3) The premium component is 8% per annum.
(4) In this section, the Bank Accepted Bill rate in respect of any day within a period specified in Column 1 of the Table to this subsection is the monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank for the month specified in Column 2 of that Table opposite that period.

The issue in the present application is whether the correct and preferable decision is to reduce the amount of penalty tax imposed pursuant to s 33, or to reduce the amount of penalty tax interest pursuant to s 25, or both.

The evidence

The applicant tendered a statutory declaration dated 29 January 2016 (exhibit A1) in which he stated inter alia that in addition to his own affairs he is a director of Central Drug Co Pty Ltd and Medan Holdings as trustee for the Tacey Family Trust. Mr Bonner had established his own practice, AW Bonner Nepean Placement Services, as an agency to supply staff to chemist shops. Initially staff were supplied to other shops only, but because of declining demand he believes that staff were supplied only to his chemist shops.
In his own affairs and as a director of the above companies, he had relied exclusively on the professional advice of his registered tax agent and accountant Mr Allan Bonner, trading as AW Bonner & Co. Mr Bonner had been his tax adviser for over 30 years and he had relied on Mr Bonner’s expertise and advice in all accounting, taxation and compliance matters, including payroll tax for all the taxpayers. All relevant accurate information and documentation was given to Mr Bonner to enable him to prepare the payroll tax reconciliations. Copies of those documents had been provided to the Office of State Revenue (OSR).
He had always maintained complete and accurate records, and these were provided both to Mr Bonner and to the auditors instructed by OSR. He had always cooperated with OSR.
Over time he had obtained a good understanding and made reasonable efforts to become familiar with his obligations as a director and business owner. That had involved attending continuing education seminars and conferences, his own reading about taxation requirements including payroll tax, and from discussions over time with his accountant, Mr Bonner. He had also sought specific advice from Mr Bonner about the payroll tax implications of the various companies in which he was involved and which Mr Bonner had been instrumental in establishing. Indeed, the whole business structure was set up in a manner determined by him. He had been assured that he was meeting all his taxation commitments, including payroll tax. Mr Bonner specifically advised him that each employer company was liable to pay payroll tax, but only when each entity in which he was involved exceeded the relevant tax-free threshold. He acted on his advice and at no stage did Mr Bonner change that advice or indicate that the companies, individually or in total, exceeded the threshold. He also felt more comfortable knowing that Mr Bonner was the owner and sole proprietor of AW Bonner (Nepean Placement Services). Certainly, as he became the major client of the operation, Mr Bonner did not advise him that this could potentially lead to incurring payroll tax.
As soon as he became aware, during the course of the OSR audit, that there was a potential issue about outstanding payroll tax, he immediately instructed his new accountants, Watson Erskine & Co Pty Ltd, to become involved and to subsequently take over his accounting requirements. He had no prior knowledge, or received advice from, Mr Bonner that there was a potential problem about payroll tax. Once the extent of the various payroll tax liabilities was established, he took steps to agree with, and pay, OSR current payroll tax obligations and to attempt to agree on a schedule to pay arrears owing.
The issue now in dispute relates to penalties and interest assessed at $177,263.82. He is seeking to have those penalties and interest waived.
The taxpayer group of companies with which he is involved employs over 60 people in Sydney’s south-western region. Penalties and interest of that magnitude would create severe financial hardship which could well result in the forced closure of some of the pharmacies involved, which are operating on a marginally profitable basis. That would result in the loss of a significant proportion of jobs, both professional and unskilled, in an area where there is high unemployment, particularly of young unskilled workers.
The independent retail pharmacy sector is already under great pressure because of aggressive discounting by large pharmacy chains, as well as cutbacks in the Pharmaceutical Benefits Scheme. The sale of retail pharmacies in the current environment, particularly for low-profit operations, is extremely difficult.
At the hearing, Mr Tacey gave oral evidence and the proceedings were recorded in the usual way. I have listened to the two CDs thereby produced. While the questions and comments by counsel can be clearly understood, many of Mr Tacey’s answers and Verick SM’s comments are unintelligible. It appears, however, that having adopted his statutory declaration (exhibit A1), the applicant in cross-examination said that he had researched payroll tax in pharmacy journals and had attended conferences at which the subject was on the agenda for the last five years. He had practised as a pharmacist since 1964 and had employed 50 to 60 people since 1980. He had delegated his payroll tax responsibilities to his accountant, Mr Bonner.
Nepean had been established in the mid-1980s. His businesses had benefited from the supply of staff from Nepean. There are many casuals in the industry and he needed to be able to place them. The need to supply other pharmacies declined, and Nepean had dealt mainly with him since 1989 or 1990. He had controlled the taxpayers’ accounts after 2008, as well as processing the business activity statements for all the companies.
In re-examination, the witness said he had relied on Mr Bonner, a CPA and later a chartered accountant, for payroll tax for between 40 and 45 years. He had never said that he was unfamiliar with payroll tax liability in relation to all the entities, but he did not know that Mr Bonner was not complying with payroll tax requirements. As regards Nepean, he was never told that there was any payroll tax issue. As his position changed in 1989, he was not told of any changes to his payroll tax liability.
He had consulted his accountant about payroll tax, including in relation to Nepean, because he had been concerned about the application of the threshold, but believed he was in compliance.
The respondent called no evidence, but relied on the voluminous s 58 documents (exhibit R1).

Applicant’s submissions

The applicant relied on his written submissions filed on 29 January 2016 by his solicitor, Mr Mockler, in which he conceded that the payroll tax assessments were not in dispute but that the applicant sought full remission of penalty tax and interest. He noted that there appeared to be no issue that the accountants, AW Bonner & Co, provided negligent advice to the applicant, with the result that payroll tax was not fully paid, and penalties and interest were levied.
The applicant pointed out that the Interest and Penalty Tax Guidelines issued by the respondent set out criteria that can be considered where a taxpayer has relied on external advice. They are:

whether the advice was sought before the tax default occurred,

whether the taxpayer provided all relevant, accurate and available information to the adviser when seeking the advice,

whether the adviser was appropriately qualified to provide the advice,

whether the tax default arose partly or wholly as a result of the taxpayer receiving advice to depart from usual business practices and the purposes of that departure included tax minimization or tax planning objectives,

whether the taxpayer acted reasonably in accepting the advice.

The applicant submitted that he satisfied the guidelines. He had relied on the professional advice of his registered tax agent, Mr Bonner, which proved to be incorrect and resulted in a tax default. Mr Bonner had been his accountant for over 30 years and the applicant relied, as he was entitled to do, on Mr Bonner’s expertise and advice in all accounting, taxation and compliance matters, including payroll tax, for the taxpayer. He had given Mr Bonner all the relevant and accurate information and records to enable him to prepare the payroll tax reconciliations. He kept complete and accurate records that were provided to Mr Bonner in their entirety.
The applicant submitted that he had made reasonable efforts to understand payroll tax. He had asked Mr Bonner about his payroll tax obligations and had been assured by him that each employer company in which the applicant was involved was liable to pay payroll tax only when that company exceeded the relevant tax-free threshold. That advice did not change as circumstances changed. In his role as accountant, Mr Bonner had over time been instrumental in setting up the various entities to primarily operate chemist shops. That included Mr Bonner’s own entity, AW Bonner (Nepean Placement Services), which initially had not provided services to Mr Tacey, but only to other businesses, although that gradually changed over time.
It was only when the applicant sought, and obtained, advice from Watson & Erskine & Co Pty Ltd, who are now his accountants, following the OSR audit, that he became aware of the errors made by the previous accountant, who had been less than forthcoming with him during the course of the OSR audit. John Tacey Chemist, the designated group employer, is now ensuring continued compliance with payroll tax obligations.
At the hearing the applicant adopted his written submissions and traced the history of the matter through the correspondence and the documents. He pointed out that the unregistered payroll tax employer questionnaire (exhibit R1, pp 137-143) was sent to Mr Bonner in preparation for his audit, in which he was found not to be compliant. The applicant had, however, relied upon him. There was a conflict of duty and interest between Mr Bonner’s business concerns and his obligation to the applicant as a client. There was no evidence that OSR had had regard to that conflict and the Chief Commissioner sought to deflate the role of Mr Bonner. The applicant’s actions were explicable in light of his reliance over a period of 35 years and it was incorrect to say that there was no reason for his non-compliance. He had objected to the assessment from the outset, on 15 July 2015.
In B & L Linings Pty Ltd v Chief Commissioner of State Revenue (CCSR) [2008] NSWADTAP 14, [46], the appeal panel had pointed out that the discretion to remit could be exercised in favour of the taxpayer if reasonable care had been taken, and set out a number of factors indicating that a taxpayer had taken reasonable care. In Touma v CCSR [2012] NSWADT 2, [50], Frost JM had said that while the s 27(3)(a) discretion could be enlivened if either the taxpayer or a person acting on the taxpayer’s behalf had taken reasonable care, even if the other did not, he thought it was justified to refuse to exercise the discretion if any one of the relevant persons had failed to take reasonable care. That case was distinguishable from the present one, however, because in Touma the taxpayer personally had failed in his duty to take reasonable care. The fact that Mr Tacey had some knowledge of payroll tax did not mean that he could not be relying on Mr Bonner’s expertise, for example in relation to grouping or thresholds.

The applicant then referred to the record of an OSR telephone interview with Mr Bonner dated 18 November 2014 (exhibit R1, p 384) in which the officer, Mr Staka, records Mr Bonner as saying that “John [Tacey] asked Allan [Bonner] to be a front for the business [Nepean]” and that “When Allan was asked why he was asked by John to set up the business, he did not answer”. That was nothing more than an erroneous transcription of some handwritten notes of the interview earlier in November (exhibit R1, p 375), which said nothing about a “front” or any failure to answer.
The examples referred to in Revenue Ruling PTA 36 of circumstances beyond the control of a taxpayer for the purposes of s 27(3)(b), namely “official postal and DX delays and natural disasters such as fire or flood” were guidelines only. In this case the central fact was the applicant’s reliance on Mr Bonner’s specialist tax advice, which placed him in the same position as a taxpayer affected by a postal strike.
Mahoney JA’s remarks in Commissioner of Pay-Roll Tax v Elsegood & Co [1983] 1 NSWLR 223, 229 – 230, quoted in Chan & Naylor Australia Pty Ltd v CCSR [2016] NSWCATAD 4 were not inconsistent with the applicant’s position. The question of interest, including the premium component, should be treated in the same way.

Consideration

The applicant bears the burden of proving his case in the application for review (TA Act s 100(3)), normally on the ordinary civil standard, that is, proof on the balance (preponderance) of probabilities: Ma v Federal Commissioner of Taxation (FCT) (1992) 37 FCR 225, 232. In FCT v Dalco, (1990) 168 CLR 614, [14], Brennan J observed that “the Commissioner is entitled to rely upon any deficiency in proof of the excessiveness of the amount assessed to uphold the assessment”.
Here the applicant does not dispute the assessments, including the grouping, thereby implicitly conceding that he is in control of Nepean. Nor does he challenge the existence of a “tax default” within the meaning of s 26, which creates the liability to penalty tax, or s 21, which creates the liability to pay interest.
As regards penalty tax, s 27 sets the quantum in the case of a tax default at 25 percent of the amount of tax unpaid, subject to a power to increase that amount to 75 percent if the Chief Commissioner is satisfied that the default was caused wholly or partly by intentional disregard of a taxation law. Under s 27(3), that Chief Commissioner may determine that no penalty tax is payable if the taxpayer (or a person acting on his or her behalf), took reasonable care to comply, or the default occurred solely because of circumstances beyond the control of the taxpayer or a person acting on his or her behalf. The prima facie or default result is thus that where a tax default occurs, penalty tax is payable. That, however, is subject to the broad power conferred on the Chief Commissioner by s 33 to remit penalty tax where he considers it appropriate to do so.
In the present case the respondent’s decision letter dated 2 October 2015 notes that in respect of John c Tacey and AW Bonner, penalty tax at the rate of 25 percent was imposed, as an assessment was issued after an investigation was completed and the Chief Commissioner considered that they had not taken reasonable care. In relation to Medan Holdings Pty Ltd and Central Drug Co Pty Ltd, the rate was reduced to 20 percent, as a disclosure was made after an investigation commenced.
The concept of reasonable care was considered by the Appeal Panel in B & L Linings, where the panel adopted at [46] the following exposition:

In each case, it is essentially a question of fact whether the taxpayer has taken reasonable care in attending to its tax obligations. Factors that would indicate that a taxpayer took reasonable care include attempts to comply with the tax law, reasonable professional and other inquiries to ensure compliance, reliance on professional advice or on official published views of the tax law. Factors which indicate that a taxpayer failed to take reasonable care include oversight or forgetfulness to meet with obligations, failure to maintain adequate records and procedures to prevent errors from occurring, not seeking professional advice and errors in complying with the law.

Touma, however, takes the view (at [50]) that while the discretion in s 27(3)(a) on its face may operate if either the taxpayer or a person acting on the taxpayer’s behalf took reasonable care, even if the other did not, where either the taxpayer or his or her adviser failed to take reasonable care, a decision-maker is justified in refusing to exercise the discretion in the taxpayer’s favour. In that case it was the taxpayer personally who had failed, and failed quite seriously, to take reasonable care.
The central proposition in the applicant’s case is that he took reasonable care to comply with the legislation in that he relied on advice from his accountant, Mr Bonner. Indeed in cross-examination he averred that he had “delegated” responsibility for payroll tax to him. He points to paragraphs 27 and 28 of the OSR’s Interest and Penalty Tax Guidelines, which set out criteria that can be considered by the Chief Commissioner where the taxpayer has relied on external advice. They are:

whether the advice was sought before the tax default occurred,

whether the taxpayer provided all relevant, accurate and available information to the adviser when seeking the advice,

whether the adviser was appropriately qualified to provide the advice,

whether the tax default arose partly or wholly as a result of the taxpayer receiving advice to depart from usual business practices and the purpose of that departure included tax minimization or tax planning objectives,

whether the taxpayer acted reasonably in accepting the advice.

As was noted above, the applicant submits that he has satisfied all those criteria. That, however, is of limited assistance to him, as the Guidelines paragraph 48, which deals specifically with Revenue Ruling PTA 036 version 2, states that “These guidelines should be read in conjunction with the Ruling, which applies instead of these guidelines in payroll tax cases” (my emphasis).
The evidence portrays the applicant as a commercially knowledgeable man who had turned his mind to questions of tax law, including payroll tax, so far as relevant to the managing of his chemist shops. That picture is consistent with his record as a successful businessman in the field of pharmacy. It is also consistent with the control that he exercised over Nepean’s operations, with Mr Bonner being in charge of it in name only. The respondent’s investigations concluded (exhibit R1, pp 384-385) that it was Mr Tacey who controlled its bank accounts, paid, interviewed, recruited and managed all staff, prepared the Business Activity Statements and financial statements, ensured that Nepean supplied staff only to the applicant’s other businesses, ensured that the only staff placed by Nepean were shop assistants focusing on retail chemist work, and it was he who stood to benefit from the arrangement.
Those findings also recorded that the applicant had asked Mr Bonner to be “a front for the business”. The applicant declared that to be an erroneous transcription of some hand-written notes made earlier that month (exhibit R1, p 375). There is, however, no necessary inconsistency between the 18 November file note of the telephone conversation which states that “Mr Tacey asked Mr Bonner to be a front for the business” and the handwritten notes. The author of the typed file note note, Mr Staka, may simply have been adding additional details from his recollection of a conversation that probably took place only a matter of days earlier. Further, the statement in the file note that “When Mr Bonner was asked why he was asked by Mr Tacey to set up the business, he did not answer” is unlikely to have resulted from a transcription error.
While it is possible that a taxpayer with some background in payroll tax law could rely on the advice of an accountant or other person with expertise in respect of particular issues, such as grouping and thresholds, there is little evidence that the applicant did so to the extent of justifying a finding that he took reasonable care, bearing in mind that he carries the burden of proof. His statutory declaration makes only general statements in that connection and does not refer to any specific discussions or requests for advice. There are no letters of advice or file notes to support his self-serving assertions to that effect in exhibit A1. In particular, there is a striking absence of any explanation for Mr Bonner’s occupying the position of a purely titular head of Nepean in the first place. That lacuna gains added significance from Mr Bonner’s failure to answer the question about why he was asked by Mr Tacey to take that position. An interviewee in a tax investigation, and certainly an experienced chartered accountant, is unlikely to refrain from answering a direct question without a reason.
The fact that it was the applicant who prepared the Business Activity Statements and financial statements for Nepean is difficult to reconcile with the submission that he “delegated” the entire matter of payroll tax, a large part of his taxation affairs, to Mr Bonner. I therefore find that the applicant, or alternatively Mr Bonner, and probably both, failed to take reasonable care to comply with the legislation, with the result that the discretion in s 27(3)(a) of the TA Act should not be exercised in favour of the applicant.
As to whether the default arose solely from circumstances beyond the taxpayer’s control within the meaning of s 27(3)(b), the Chief Commissioner has set out in Revenue Ruling PTA 036 version 2 some examples of what he considers to be circumstances beyond the control of a taxpayer. They are “official postal and DX delays and natural disasters such as fire or flood”. That list is stated not to be exclusive, but the examples give an idea of the significance of the event required to take circumstances outside the applicant’s control.
The ruling is relevant to the determination of this review, as s 64(1) of the Administrative Decisions Review Act 1997 requires the tribunal to “give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case”. The applicant does not dispute the operation of the provision in this case, although he does raise considerations relevant to hardship. Such matters, however, are within the province of the Hardship Review Board, not of this tribunal.
Section 64(1) is also relevant to the application of s 33 of the TA Act, which gives the Chief Commissioner a broad power to remit penalty tax by any amount. As with the s 27(3) exception, the power to remit is to be exercised in circumstances such as “official postal and DX delays and natural disasters such as fire or flood”. In Trust Company of Australia v CCSR [2002] NSWADT 21, [27], Verick JM opined that serious illness of the taxpayer would be another such circumstance. The applicant has adduced no evidence to show that any such events, or events of a similar import, occurred in relation to the taxpayers in this case.
The facts of this case also fall squarely within the legislative intendment of the grouping provisions. In Chan & Naylor, Isenberg JM quoted with approval Mahoney JA’s explanation of the rationale behind those provisions, which was to prevent larger businesses from obtaining the benefit of multiple employee number thresholds by splitting their businesses into a number of smaller or separate units. “The remedy adopted by the statute to avoid that mischief was to deny such relief [i.e tax-free thresholds] to members of a ‘group’; to provide for the employees of ‘commonly controlled’ businesses to be deemed to constitute a ‘group’; to define ‘group’ for this purpose in wide terms so as hopefully to include all who might be involved in the avoidance of the purpose of the legislation….” (at [31]).
The main weakness in the applicant’s case, however, is his failure to adduce cogent evidence with which to discharge the onus of proof applying to ss 25 and 33. In Chan & Naylor, Isenberg JM, referring to Block SM’s analysis of the matters required to be satisfied under both s 27(3) and s 33 in Boston Sales and Marketing Pty Ltd v CCSR [2014] NSWCATAD 139, [66] to [68], had this to say:

[114] With respect, I adopt Block SM’s analysis that it is for the Applicants to prove their case on the basis of the evidence before the Tribunal. Unfortunately for the Applicants I find that they have provided no evidence to satisfy me that they took reasonable care or that the tax default occurred because of circumstances beyond their control. Nor have the Applicant’s provided evidence of any other appropriate circumstances to justify a full or partial remission of penalty tax under s 33 of the TAA. Accordingly I find that I am not satisfied that there existed circumstances in respect of which it would be appropriate for the Tribunal to remit the penalty tax beyond the extent already allowed by the Respondent.

I therefore find that the applicant has not discharged the onus of proving circumstances that would warrant remission of penalty tax under s 33.
As regards remission of interest, s 25 provides the Chief Commissioner with a broad discretion similar to that in s 33: “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”. Here again, the statutory provision is, under s 64(3) of the ADR Act, to be applied in light of Revenue Ruling PTA 036, version 2, which relevantly states, “Interest may be fully remitted for a late payment tax default if the Chief Commissioner is satisfied that the late payment occurred as a result of circumstances beyond the control of the taxpayer. Examples of circumstances when interest may be remitted in full include, but are not limited to:

official postal and DX delays

natural disasters such as a fire or flood”.

Following Trust Co of Australia, another relevant circumstances would be serious illness of the taxpayer. In this part of the ruling there is no reference to the taking of reasonable care.
In the same decision, Verick JM pointed out that only in a rare case would remission of the market rate element of interest be justified:

27 In cases where an amount of interest is imposed by the application of the market rate, only exceptional circumstances would justify any remission. The narrow category of circumstances would include cases where the ‘tax default’ is entirely due to a fault of the Chief Commissioner. The circumstances would include situations completely out of the control of the taxpayer, such as postal strikes….

The premium element in the penalty See also Levitch Design Associates Pty Ltd ATF Levco Unit Trust v CCSR [2014] NSWCATAD 215, [107] to [110]. There is no suggestion of any fault on the part of the respondent in this case, or of the other enumerated circumstances. Indeed, the applicant, while not expressly conceding the point, did not contend that he had grounds for remission of the market rate component. His position was essentially a plea of nolo contendere, in the sense that he did not dispute the point but made no admissions or concessions.
Interest rate is in a slightly different position, however. In Trust Co of Australia, Verick JM drew a distinction between the market rate component and the premium rate component in this way:

25 The market rate component would reflect the use by the party in question of the relevant amount of money on one hand, and the lack of use of the relevant funds by the state on the other. But the fixed premium rate component is a rate imposed by way of a penalty for the ‘tax default’ in question. The premium rate of interest is imposed where a ‘tax default’ is a result of some culpable conduct on the part of the taxpayer” (my emphasis).

The range of factors relevant to remission of the premium element is therefore somewhat more flexible:

28 On the other hand, a wider range of circumstances would be available to justify a remission of the premium rate interest. Cases where, as was the case in the present matter, there has been a change in ownership of a property and the lodgement of an ‘Initial Return’ was not made due to some confusion as to its lodgement.

The respondent argues that the test for remission of interest is a stringent one, but does not submit that there is any significant element of culpability in the applicant’s conduct in this matter. Although, as I have found, there is no evidence of a degree of reliance on Mr Bonner’s professional advice sufficient to justify a conclusion that he had taken reasonable care to comply with the tax law, there is evidence of some degree of reliance in relation to particular payroll tax issues such as grouping and thresholds. In the circumstances, that degree of reliance was justified, as Mr Bonner had been dealing with those aspects on behalf of the applicant for several decades without incident and, as far as the applicant knew, without any failure to comply with the PT Act.
Also relevant is the applicant’s apparently unblemished payroll tax record over many years and his cooperation with OSR’s investigation, although not without significant delays and failures to meet deadlines, despite two extensions of time. Overall, the degree of culpability involved appears to lie towards the lower end of the scale. On the basis of all the evidence before me, I find that circumstances have been demonstrated that justify reducing the premium rate component of the interest from 8 percent to 2 percent. The decision under review is varied accordingly.

Orders

The decision under review is varied by reducing the premium rate component of the interest from 8 percent to 2 percent.
In all other respects the decision under review is affirmed.

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: 10 November 2016

Medium Neutral Citation:	Tacey v Chief Commissioner of State Revenue [2016] NSWCATAD 255
Hearing dates:	9 June 2016; On the papers
Date of orders:	10 November 2016
Decision date:	10 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Prof G Walker, Senior Member
Decision:	(1) The decision under review is varied by reduction of the premium component of the interest rate from 8 percent to 2 percent. (2) In all other respects the decision under review is affirmed.
Catchwords:	PAYROLL TAX – remission of penalty and interest – reasonable care – circumstances beyond the taxpayer’s control – reliance on expert advice – market rate component - nolo contendere -premium component –culpability component reduced.
Legislation Cited:	Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Payroll Tax Act 2007; Taxation Administration Act 1996.
Cases Cited:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue (CCSR) [2008] NSWADTAP 14; Boston Sales and Marketing Pty Ltd v CCSR [2014] NSWCATAD 139; CCSR v Elsegood & Co [1983] 1 NSWLR 223; Chan & Naylor Australia Pty Ltd v CCSR [2016] NSWCATAD 4; Federal Commissioner of Taxation (FCT) v Dalco (1990) 168 CLR 614; Levitch Design Associates v CCSR [2014] NSWCATAD 215; Ma v FCT (1992) 37 FCR 225; Touma v CCSR [2012] NSWADT 2; Trust Co of Australia v CCSR [2002] NSWADT 21.
Category:	Principal judgment
Parties:	John C Tacey (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: Mr Pearce (Applicant) M Bennett (Respondent) Solicitors: Stewart Cuddy Mockler Solicitors (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510678