Imposition of Interest & Penalty Tax
2012 Decision Summary
|AES Wiring Pty Limited and AKS Distributions Pty Limited v Chief Commissioner of State Revenue  NSWADT 11|
|Date of Decision: 01 February 2012
Decision: The decision under review is affirmed.
Catchwords: Payroll tax - penalty and interest charged in consequence of a default; consideration of case law and legislation.
- Remission of the market component of interest
The Tribunal was not satisfied that the market rate of interest imposed with respect to the default should be remitted. The Tribunal noted the market rate is only to be remitted where a default is entirely the fault of the Chief Commissioner, or where the taxpayer's default is due to circumstances beyond their control. The Tribunal was not satisfied that either of these situations arose in the present case.
- Penalty tax and reasonable care
The Tribunal found that in all of the circumstances the taxpayers had not discharged the onus of proving that they had taken "reasonable care" to comply with the relevant taxation laws. The Tribunal took into account the apparent unreliability of the accountant’s advice, as demonstrated over a period of time, and the failure of AKS to register for payroll tax for more than four (4) years after it began employing, either on a grouped basis or otherwise, despite the fact that AES, the company with which it was grouped, had previously been investigated for a default. (However, the Tribunal noted that the accountant had not been called to give evidence, and made no finding as to whether or not the accountant’s advice had been a contributing factor in the tax defaults by the taxpayers.)
- General discretion to remit penalty tax
The Tribunal was not satisfied that the taxpayers had demonstrated any other basis for it to exercise the discretion to remit the penalty tax under s.33 of the TAA.
Case summary: AES Wiring Pty Limited and AKS Distributions Pty Limited v Chief Commissioner of State Revenue  NSWADT 11
2014 Decision Summary
|Laviva Nominees Pty Ltd v Chief Commissioner of State Revenue  NSWCATAD 84|
|Date of Decision: 20 June 2014
Decision: The decision of the Chief Commissioner under review is affirmed.
The Tribunal noted that there was no obligation on the Chief Commissioner to justify the assessment, and the fact that the deed settling the Trust was stamped by OSR (before it acquired any land) did not impose any relevant obligation on the Chief Commissioner.
The Tribunal determined that:
The Tribunal confirmed the decision of the Chief Commissioner not to remit market and premium interest.
- the Taxpayer had failed to prove it had lodged complete returns required under the legislation in respect of the 2009 to 2013 tax years (paragraphs 55 to 57);
- such failures were tax defaults (paragraph 58);
- the taxpayer had not satisfied the Tribunal that the Chief Commissioner had contributed to the default, and therefore the market rate of interest should not be waived (paragraphs 65-66);
- the evidence does not disclose any relevant voluntary disclosure, but does show failures to make disclosure when asked (paragraph 69);
- the Tribunal was not satisfied on the balance of probability that the Applicant took reasonable care to comply with the relevant taxation laws, and accordingly there was no good reason to remit the premium rate component of the interest (paragraph 70).
Catchwords: Land Tax; special trust; remission of market and premium interest s72 Land Tax Management Act 1956 - ss 21, 22, 25 Taxation Administration Act 1996.
Case summary: Laviva Nominees Pty Ltd v Chief Commissioner of State Revenue  NSWCATAD 84
Last updated: 16 April 2015