Watson v Commissioner of State Revenue
[2013] QCAT 577
•11 November 2013
| CITATION: | Watson v Commissioner of State Revenue [2013] QCAT 577 |
| PARTIES: | Mr Thomas Anthony Watson Mrs Jamie Rebecca Watson (Applicants) |
| v | |
| Commissioner of State Revenue (Respondent) |
| APPLICATION NUMBER: | GAR140-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Jim Allen, Member |
| DELIVERED ON: | 11 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to review the decision in regard to Transfer Duty, Penalty and Unpaid Tax Interest is dismissed pursuant to s 47 of the Queensland Civil and administrative Tribunal Act 2009. 2. The stay is refused. THE TRIBUNAL DIRECTS THAT: 3. The Commissioner of State Revenue must file in the Tribunal two (2) copies and give to the Mr Thomas Anthony Watson and Mrs Jamie Rebecca Watson one (1) indexed and paginated copy of: a. a written statement of reasons for the decision in regard to the First Home Owners grant; and b. any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision; by:4.00 p.m. on 21 November 2013. 4. The Commissioner of State Revenue must file in the Tribunal two (2) copies and deliver to Mr Thomas Anthony Watson and Mrs Jamie Rebecca Watson one (1) copy of any preliminary submissions on the applicable legislation and case law considered by the Commissioner to be relevant to the making of the correct and preferable decision by 4.00 p.m. on 28 November 2013. 5. Mr Thomas Anthony Watson and Mrs Jamie Rebecca Watson must file in the Tribunal two (2) copies and deliver to the The Commissioner of State Revenue one (1) copy of their response to the statement of reasons and submissions of the Commissioner by 4.00 p.m. on 20 December 2013. 6. The application is listed for a compulsory conference at Brisbane at 1.30 p.m. on 13 February 2014. 7. The application is listed for a directions hearing at Brisbane at 1.30 p.m. on 25 February 2014. |
| CATCHWORDS: | TRANSFER DUTY CONCESSIONS AND FIRST HOME OWNERS GRANT –failure to comply with principal place of residence requirements – failure to pay full amount of assessment and unpaid tax interest – stay application - application to dismiss for lack of jurisdiction Taxation Administration Act 2001 s 69 |
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 (QCAT Act).
REASONS FOR DECISION
Mr and Mrs Watson are teachers who work on Mornington Island. They purchased a house at 14/11 Glin Avenue, Newmarket in 2009 and claimed the principal place of residence concession and the First Home Owners Grant. After reassessment the Commissioner determined that the house was not Mr and Mrs Watson principle place of residence and they were not eligible for the concession and grant. A reassessment was issued including primary duty, penalty and unpaid tax interest in regard to the transfer duty concession and a demand for repayment was made in respect of the FHO grant. Mr and Mrs Watson objected to the reassessment and following disallowance of their objection they have made a review application to the Tribunal.
They have also requested a stay of the Commissioner’s decision and the Commissioner has made application to dismiss the review application in regard to the transfer duty reassessment on the ground that the Tribunal lacks jurisdiction due to the fact that the full amount of the assessment has not been paid as required[1].
[1] Taxation Administration Act 2001 s 69(1)(b).
The assessments in question are as follows:
a) Reassessment No. 500390091 – transfer duty, penalty tax and interest on transfer duty comprising duty of $12,425.00, Penalty tax of $7,455 and unpaid tax interest of $4,476.23.
b) Notice of Decision UIN: 1523487 – requiring repayment of first home owner grant together with a penalty amount compromising First Home Owners Grant Recoupment of $14,000.00, penalty of $8,400.00 and statutory charge fees.
Mr and Mrs Watson acknowledge that they paid an amount of $12,425.00 which they understood from discussions with one of the Commissioner’s officers would be credited towards the duty amount. In fact in accordance with s 42 of the Taxation Administration Act 2001 that payment was firstly credited against the penalty and interest component of the transfer reassessment with the balance being credited against the duty. Mr and Mrs Watson provided a copy of advice in an email from another one of the Commissioner’s officers that stated ‘further proceedings by our office are now on hold until the outcome of your appeal to the QCAT’.
The Tribunal notes that the objection decision clearly states that ‘Under the TAA, your clients are only entitled to appeal or apply for a review of this decision if they have paid the reassessment amount and any further accrued UTI in full’.
Mr David Smith, the Commissioner of State Revenue has provided a certificate under s 131(a) of the Taxation Administration Act 2001 to the effect that the total amount payable under the Reassessment Notice was $24,356.23, confirming that an amount of $12,425.00 had been paid on 18 October 2012 and that the current amount outstanding was $12,888.31.
The Commissioner relies on the requirement that for a right to review to be available to Mr and Mrs Watson they must have paid the whole of the amount of the tax and late payment interest payable under the assessment to which the decision relates[2]. That is that the Tribunal’s jurisdiction to hear and determine the review is not enlivened unless that requirement is met. This has been confirmed in various Tribunal decisions[3] and it clear that if the whole of the amount is not paid the Tribunal lacks jurisdiction and the application must be dismissed in accordance with s 47 of the Queensland Civil and Administrative Tribunal Act 2009.
[2]Ibid.
[3]Fleri v Commissioner of State Revenue [2012] QCAT 135; Cowie v Commissioner of State Revenue [2012] QCAT 612 and Naswari v Commissioner of State Revenue [2013] QCAT 66.
The email from the Commissioner’s officer can be interpreted as saying that no enforcement action would be taken until the Appeal, application for review, was determined. The rights of Mr and Mrs Watson in regard to the review are set out in the objection decision and it is clearly stated that all outstanding amounts must be paid.
As the requirements have not been met in regard to the payment of the outstanding tax amount the Tribunal lacks jurisdiction and the application in regard to the duty reassessment is dismissed.
Having dismissed the application for reassessment of duty on the ground that the Tribunal lacked jurisdiction the Tribunal is not able to entertain an application for a stay in regard to it under s 22(2)(b) of the QCAT Act.
The stay application in regard to the Notice of Decision that the FHO Grant must be repaid is not affected by the dismissal of the transfer duty reassessment application. The grounds raised by Mr and Mrs Watson include that the financial impact of the decision will prevent them appealing the decision and that the repayment of the FHO grant is required prior to the appealing the decision. The Commissioner confirms in his submissions in respect of the stay application that there is no requirement under s 59 of the First Home Owners Grant Act 2000 that the amount of the FHO Grant be repaid before an application to review may be made. The Commissioner has also confirmed that he has agreed not to enforce repayment of the grant and penalty. The Tribunal does not consider that the order is desirable having regard to the interests in particular of Mr and Mrs Watson as they are not otherwise disadvantaged by the status quo on the basis that the Commissioner will not enforce the order and non-payment of the outstanding amount is not a barrier to exercising their right to review. The application for a stay is refused.
The Tribunal will make the following directions in regard to the application for review of the decision in regard to the FHO Grant to ensure its progress towards finality:
1. The Commissioner of State Revenue must file in the Tribunal two (2) copies and give to the Mr Thomas Anthony Watson and Mrs Jamie Rebecca Watson one (1) indexed and paginated copy of:
a.a written statement of reasons for the decision in regard to the First Home Owners grant ; and
b.any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision; by:
4.00 p.m. on 21 November 2013.
2. The Commissioner of State Revenue must file in the Tribunal two (2) copies and deliver to Mr Thomas Anthony Watson and Mrs Jamie Rebecca Watson one (1) copy of any preliminary submissions on the applicable legislation and case law considered by the Commissioner to be relevant to the making of the correct and preferable decision by, 4.00 p.m. on 28 November 2013.
3. Mr Thomas Anthony Watson and Mrs Jamie Rebecca Watson must file in the Tribunal two (2) copies and deliver to the The Commissioner of State Revenue one (1) copy of their response to the statement of reasons and submissions of the Commissioner by, 4.00 p.m. on 20 December 2013.
4. The application is listed for a compulsory conference at Brisbane at 1.30 p.m. on 13 February 2014.
5. The application is listed for a directions hearing at Brisbane at 1.30 p.m. on 25 February 2014.
3
0