Sidgreaves v Chief Commissioner of State Revenue [2017] NSWCATAD 93

Date of judgement 29 March 2017 Proceeding No. 2016/378286
Judge(s) Brain Tamberlin QC, Principal Member
Court or Tribunal New South Wales Civil and Administrative Tribunal
Legislation cited Gaming Machine Tax Act 2001

Liquor Act 2007

Taxation Administration Act 1996
Catchwords TAXES AND DUTIES - gaming machine tax – hotel premises - application for refund – whether Taxpayer was the licensee in the period in respect of which refund is claimed
Cases cited Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81 at [24] [27]

Background

The Taxpayer sought review of a decision made by the Chief Commissioner on 17 August 2016 to refuse an application for a refund of all gaming machine tax collected by the Chief Commissioner for the period from 1 January 2012 to 31 December 2015 (the “Relevant Period”).

The principal issues were whether:

  1. the Taxpayer could establish on the balance of probabilities that he was not the holder of the hotel licence during the relevant period; and

  2. the Taxpayer was entitled to a refund where the tax was not paid by him.

The hotel in question is known as Tommy’s Tavern in Lismore (the “Premises”).   The Premises were owned by A J Holdings NSW Pty Ltd (“A J Holdings”) and Cumedo Pty Ltd as tenants in common.   The Taxpayer was the sole director of A J Holdings during the Relevant Period.

On 23 January 2012 the Taxpayer completed a Liquor Licence Transfer Application (the “Licence Application”) received by the Independent Liquor and Gaming Authority (“ILGA”) on 24 January 2012. The Taxpayer identified himself as the proposed licensee and also signed to give his consent to the transfer of the licence from the existing licensee to the Taxpayer (the existing licensee having been allegedly evicted by the owner of the Premises).

Documents in evidence indicated that the Licence Application was provisionally approved by the ILGA on 30 January 2012.

On 17 April 2012, ILGA wrote to the Taxpayer at the postal address nominated on the Licence Application, advising that the Licence Application had been provisionally approved (“Licence Approval Letter”).  Enclosed with that letter was the licence document issued to the Taxpayer (“Taxpayer’s Licence”). 

On 4 May 2012, the Office of Liquor, Gaming and Racing (“OLGR”) sent an email to the email address nominated by the Taxpayer on the Licence Application, attaching a copy of the Licence Approval Letter and the Taxpayer’s Licence.

On 28 May 2013, as a consequence of a change of licence conditions, OLGR sent an email to the same email address nominated by the Taxpayer attaching the amended Licence showing the Taxpayer as licensee of the Premises. 

During the Relevant Period, there were requests, applications, documents and correspondence with ILGA signed by the Taxpayer identifying himself as the licensee.

On 11 May 2016, a decision was made by Judge Scotting in the District Court of NSW allowing an appeal by the Taxpayer in relation to a conviction under the Liquor Act 2007 in respect of the Premises[1]. An issue in that case was whether the Taxpayer was the licensee of the Premises on 30 August 2012. In his reasons for judgment, his Honour said at [27]:

“…I cannot establish the identity of the holder of the hotel licence…I cannot be satisfied beyond a reasonable doubt that it was the appellant because there was no evidence that the application he submitted to the Authority on 24 January 2012 was approved…”

The Statutory Framework

Section 60 of the Liquor Act 2007 relevantly provides:

  1. The Authority may, on application made in accordance with this section, approve the transfer of a licence to a person who, in the opinion of the Authority, would be entitled to apply for the same type of licence in relation to the licensed premises.

  2. An application for approval to transfer a licence may be made by the licensee or the person to whom the licence is proposed to be transferred.

  1. An application for approval to transfer a licence to another person is to be dealt with and determined by the Authority as if it were an application for the granting of a licence to the other person and the other person was the Taxpayer for the licence. Accordingly, the provisions of Division 1 apply in relation to an application under this section.

  1. The Authority may provisionally approve the transfer of a licence to another person if the Authority is satisfied that:

    1. there is nothing that would preclude the Authority from approving the transfer of a licence, and

    2. the circumstances of the case justify giving the approval on a provisional basis.

  2. A provisional approval to transfer a licence is sufficient authority for the transfer of the licence. However, any such provisional approval ceases to have effect unless it is confirmed by the Authority before the end of the period specified by the Authority when provisionally approving the transfer (or such later period as may be allowed by the Authority before the expiration of the specified period).

  1. The Authority must not approve or provisionally approve the transfer of a licence unless satisfied:

    1. that practices will be in place at the licensed premises of the transferee as soon as the licence is transferred that ensure as far as reasonably practicable that liquor is sold, supplied and served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and

    2. that those practices will remain in place.

  2. The transfer of a licence has effect as if the licence had been granted to the transferee.

    By s. 6 of the Gaming Machine Tax Act 2001 (the “GMT Act”) a tax is payable on profits from gaming machines kept in a hotel and is payable by the hotelier.

    A “hotelier” is defined as the holder of a hotel licence under the Liquor Act: s. 4(1) of the Liquor Act.

    Section 7 of the GMT Act provides for the payment of tax by instalments.

Decision

At the hearing, the Taxpayer agreed that he made the Licence Application; but denied receiving the Licence Approval Letter and the Taxpayer’s Licence, either by post or by email; he also denied receiving the amended Licence on 28 May 2013. Further, he stated that he believed he was the transferee of the Licence in the Relevant Period, but that this was a mistaken belief which he held until the decision of Judge Scotting.

Principal Member Tamberlin found that the Taxpayer’s reliance on Judge Scotting’s decision was misplaced for a number of reasons: [40].  His Honour found that in the present case, in contrast to the criminal case before Scotting J, there was evidence that the Licence Approval Letter and the Licence were sent to the Taxpayer on two occasions to addresses nominated by him.  There was also evidence that the amended Licence was sent to him in May 2013: [41].

However, the Tribunal found that the evidence was not sufficiently clear to make a finding that the Taxpayer actually received those documents but a finding on this question was not necessary for the determination of the issues in the application for review: [41].

The Taxpayer had relied, among other evidence, on two emails sent by Peter Wicks of Liquor and Gaming NSW on 2 February 2012 indicating that the Licence Application would not be processed due to outstanding tax.  However, PM Tamberlin accepted that Mr Wicks would not have been aware, at the time he sent those emails, that the Licence Application had been provisionally approved on 30 January 2012, because the entry of the approval in OLGR’s records was not made until 5 April 2012 due to an administrative backlog: [42] and [43].

The Tribunal held that the Taxpayer did not discharge his onus of proof and the evidence did not support a finding that the Taxpayer was not the holder of the Licence during the Relevant Period: [46].

Orders

The application is dismissed.

Link to decision

Sidgreaves v Chief Commissioner of State Revenue [2017] NSWCATAD 93

Notes

  1. ^ Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81.
Last updated: 19 April 2017