Telstra Corporation Limited v Chief Commissioner of State Revenue

[2004] NSWADT 190

CITATION:	Telstra Corporation Limited v Chief Commissioner of State Revenue [2004] NSWADT 190
DIVISION:	Revenue Division
PARTIES:	APPLICANT Telstra Corporation Limited RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	036004
HEARING DATES:	28/05/2004
SUBMISSIONS CLOSED:	05/28/2004
DATE OF DECISION:	08/31/2004
BEFORE:	Verick A - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Duties Act 1997
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Ross v Costigan (1982) FLR 184; 41 ALR 319 Royal Australasian Ornithologists Union v Chief Commissioner of State Revenue [2002] NSWADT 263 Telstra Corporation Limited v Chief Commissioner [2004] NSWADT 189
REPRESENTATION:	APPLICANT M Richmond, barrister RESPONDENT H R Sorensen, barrister
ORDERS:	The application is dismissed.

1 This matter concerns the same issue that was considered by the Tribunal in Telstra Corporation Limited v Chief Commissioner [2004] NSWADT 189 and at the request of the applicant joined with the latter matter. In relation to this application, the Tribunal has no the jurisdiction to consider the application for the reasons set out below.

2 In a letter dated 15 March 2002,the applicant’s solicitors wrote to the respondent seeking a refund of duty paid for the period from 1 July 1998 to 15 March 2002 in respect of the hire of handsets to the applicant’s customers. The application for refund was made on the grounds that the duty on handsets supplied by the applicant to its customers was excluded from the definition of “hire of goods” by s 186(1)(f) of the Duties Act 1997 and that the applicant was accordingly entitled to a refund of duty paid in respect of the relevant period.

3 The respondent considered the application for refund and on 17 September 2002 informed the applicant’s solicitors that their request for a reassessment of duty payable for the relevant period was refused. There was some correspondence following the respondent’s refusal to make any refund, which ended with a notice of objection dated 28 October 2002. In the notice of objection, the applicant’s solicitors objected to the respondent’s decision to refuse the refund. The objection was lodged pursuant to section 86 of the Taxation Administration Act 1996 (TA Act).

4 The respondent considered the objection and on 2 December 2002 informed the applicant’s solicitors that the objection had been disallowed. Following the disallowance of the objection by the respondent, the applicant, on 31 January 2003, applied to the Tribunal for a review of that decision.

5 Section 96 of the TA Act provides that a taxpayer may apply to the Tribunal for a review of a "decision of the Chief Commissioner that has been the subject of an objection". Section 86 of the TA Act gives taxpayers a right, if dissatisfied with an assessment issued by the Chief Commissioner or any other decision of the Chief Commissioner made under a taxation law, to lodge an objection. The term "decision" is not defined in the TA Act and accordingly will, for definitional purposes, take its ordinary meaning. Taxation laws for purposes of the TA Act are defined in s 4 of the TA Act and include the TA Act and the Duties Act 1997.

6 There are several provisions in the taxation laws administered by the Chief Commissioner, which require the Chief Commissioner to make a decision. The short question for purposes of the present matter concerns the role of the Chief Commissioner in relation to applications for refund of duty paid.

7 In Royal Australasian Ornithologists Union v Chief Commissioner of State Revenue [2002] NSWADT 263 I expressed the following views that are equally relevant in relation to this matter and I would adopt them to deal with this application:

‘17 The term "decision" is not defined in the legislation and some assistance is available in defining the term from decisions of the courts in relation to the term "decision" as used in section 3 of the Commonwealth Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). In considering what constitute a "decision" for this Act, the Full High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 took the view that the word "decision" means an ultimate or operative determination and not a mere expression of opinion or statement which can have no effect on a person. The principal judgment was handed down by Mason CJ (at 335-338) who provided the following reasoning for this view:
'The fact that the ADJR Act is a remedial statute providing for review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision"…Nonetheless other considerations point to the word having a relatively limited field of operation. The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Another essential quality of a reviewable decision is that it be a substantive decision…. My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan (1982) FLR 184; 41 ALR 319 when he said (at p 197; p331 of ALR) that "it may well be that the word 'decision' means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person". However I would not wish for myself to place emphasis on the words "of itself" in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision beyond reach. Review of the ultimate decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.'
18. In my opinion a similar approach should be taken in construing the term "decision" as used in the TA Act. There is also a stronger argument for the approach that the term "decision" in the TA Act be construed to mean a final decision made by the Chief Commissioner on the basis of what the Chief Justice said would be the position if the term was found in legislation providing for appeals from final decisions disposing of issues between parties. In this matter, the Chief Commissioner has merely expressed an opinion as to status of the applicant in relation to paragraph (j). He has not made any determination nor was he given any power by the paragraph to make a decision. The applicant would, of course, be entitled to object to any assessment that the Chief Commissioner issues pursuant to his view of the applicant's status. But until that occurs, the applicant would not be entitled to object against an opinion expressed by the Chief Commissioner. In my opinion, the Chief Commissioner was in error to treat the opinion as a "decision" for purposes of the objection provisions found in the TA Act. The Chief Commissioner did not have any jurisdiction under the law to do so. The Tribunal likewise has no jurisdiction to review an objection decision that was not made in accordance with the law.”

8 The application for relied on s 18 (1) of the TA Act which provides as follows:

“(1) If a taxpayer has paid a greater amount of tax in relation to a tax liability than the amount assessed for that liability, the Chief Commissioner must refund the difference to the taxpayer, subject to this Part.”

9 The application of s 18(1) of the TA Act depends on whether a taxpayer has paid a greater amount of tax than assessed. The situation would only arise in cases where a taxpayer has paid an amount greater than that assessed or, where an assessment is amended, an amount becomes available for a refund. That clearly is not this situation.

10 The opinion given by the respondent in relation to the application of s 186(1)(f) of the Duties Act to the facts in this matter is essentially no more than an advice as to the application of the law. That is the Commissioner’s opinion and not a decision made under any provision found in a taxation law administered by the respondent. To treat this as a proper application for review by the Tribunal, it is necessary to accept that there was a proper decision made by the respondent, which the applicant was entitled to lodge an objection against. In the absence of a decision to which the applicant could have properly lodged an objection, there is no jurisdiction to review an objection decision that was not made in accordance with the law.

11 I will in the circumstances dismiss this application.