Singh v Chief Commissioner of State Revenue [2016] NSWCATAD 9

Date of judgement 7 January 2016 Proceeding No. 1510211
Judge(s) NS Isenberg
Court or Tribunal New South Wales Civil and Administrative Tribunal
Legislation cited Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Parking Space Levy Tax Act 2009

Parking Space Levy Regulation 2009

Taxation Administration Act 1996 (NSW)
Catchwords REVENUE LAW – parking space levy - interest - onus – fairness – time to issue assessments
Cases cited B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187

Brataniec v Chief Commissioner of State Revenue [2013] NSWADT 65

Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & anor [2004] NSWADTAP 19

Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184

FCT v Ryan (2000) 201 CLR 109

Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378

Levitch Design Associates Pty Ltd ATF Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215

Trust Co of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21

Background

The Taxpayer sought a review of the Chief Commissioner’s decision to issue Parking Space Levy Assessments with interest in respect of premises in Chatswood for the 2011 to 2014 financial years on 20 January 2015 (“the Assessments”).

The Taxpayer objected to the issuing of the Assessments and the Chief Commissioner disallowed the objection for the reasons set out in his letter of 17 March 2015 (“the Disallowance Decision”).  The Taxpayer then applied to the Tribunal for review of the Disallowance Decision. 

The Taxpayer’s case is summarised at paragraph 6 of the decision.  The Chief Commissioner’s case is summarised at paragraph 8 of the decision.

Decision

The Tribunal outlined a number of issues to be considered in reaching its decision.[1] The following is a summary of the most relevant issues in the decision.

Firstly, the Tribunal considered the Taxpayer’s submission that the Chief Commissioner had informed him in 2014 that he had no outstanding PSL liability,[2] and whether this would stop the Chief Commissioner. The Tribunal was not satisfied on the evidence that such a statement was made and therefore did not consider this issue of estoppel.[3]

Secondly, the Tribunal considered the validity of the assessments. The Taxpayer made reference to s 8(1) of the TAA and asserted that the Chief Commissioner had to issue tax assessment notices as the liability was due to be paid by the Taxpayer.[4] Instead, the Tribunal accepted the Chief Commissioner’s argument that there appeared to be no express statutory time limit for the issuing of tax assessments in the circumstances of the matter.[5] The Tribunal also contrasted s 8(1) with ss 9 and 14(2) of the TAA, which impose 5 year time limits for the issue of tax assessments in the situations to which they respectively apply.[6] Further, the Tribunal found that the liability for a levy arises under s 8 of the Act rather than from the issuing of assessments.[7] Ultimately, the Tribunal concluded that the Taxpayer had not satisfied the Tribunal on the evidence that the assessments were invalidly issued or that the Taxpayer was not liable at 1 July each year under s 8(1) of the Act.[8]

Thirdly, the Tribunal considered whether a tax default had occurred. The Tribunal held that, pursuant to s 8(7) of the Act, the Taxpayer had not evidenced that no tax default had occurred, and that on the 2 September of the relevant years the Taxpayer had defaulted on his tax liability.

The Tribunal considered whether the Taxpayer should be liable for interest in the circumstances. The Tribunal cited a number of cases which stood for the proposition that the market rate of interest charged against a defaulting taxpayer should be remitted only in exceptional circumstances, such as the default being caused entirely by the tax authority.[9] The Taxpayer submitted that the tax defaults occurred because the Chief Commissioner did not issue the tax assessments in a timely manner.[10]

The Tribunal observed that the Taxpayer had not complied with s 9 of the Act which required the Taxpayer to furnish a return by 1 September in relation to parking spaces that were on the Taxpayer’s premises in the previous financial years.[11] The Chief Commissioner submitted that issuing a tax assessment is not administratively likely or possible without such returns.[12] The Tribunal did not accept this submission by the Chief Commissioner.[13] However, the Tribunal did not accept that the Chief Commissioner had caused the Taxpayer to default by not issuing a tax assessment by 1 September of the relevant year.[14] Ultimately, the Tribunal found that there was no justification to remit interest in circumstances where the Tribunal was not satisfied that the tax default was out of the control of the Taxpayer, or was entirely caused by the Chief Commissioner.[15]

The Tribunal also held that the Taxpayer’s inability to recover money from his former tenants was not relevant to the Taxpayer’s statutory joint and several liability for the PSL and the payment of interest.[16] Additionally, it was held the Taxpayer did not fall within the exemption provisions of the Parking Space Levy Regulation 2009.[17]

The Taxpayer also submitted that he should not be liable as this would be unfair in all of the circumstances.[18] In considering this issue, the Tribunal referred to the leases of the Taxpayer’s premises which contained specific references to “the State Government Parking Levy”, found on pages which appeared to have been signed by the Taxpayer.[19] The Tribunal held that it appeared that the Taxpayer knew of the levy from at least April 2008.[20] In such circumstances, and where no appropriate reason was given as to why the Taxpayer did not furnish returns to the Chief Commissioner as required by the Act, the Taxpayer did not show that it was unfair that the assessments were issued.[21]

Lastly, it was held that any argument of serious hardship suffered by the Taxpayer was not within the jurisdiction of the Tribunal.[22]

Orders

The assessments were affirmed.

Link to decision

Singh v Chief Commissioner of State Revenue [2016] NSWCATAD 9

Footnotes

  1. ^ Ibid [21].
  2. ^ Ibid [22]-[25].
  3. ^ Ibid [24]-[25].
  4. ^ Ibid [28].
  5. ^ Ibid [30].
  6. ^ Ibid [31].
  7. ^ Ibid [34].
  8. ^ Ibid [35].
  9. ^ Ibid [45]-[46].
  10. ^ Ibid [49].
  11. ^ Ibid [49].
  12. ^ Ibid [50].
  13. ^ Ibid [52].
  14. ^ Ibid [53].
  15. ^ Ibid [54].
  16. ^ Ibid [57].
  17. ^ Ibid [63].
  18. ^ Ibid [65].
  19. ^ Ibid [68].
  20. ^ Ibid [68].
  21. ^ Ibid [69].
  22. ^ Ibid [71].
Last updated: 18 May 2016