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Strathavon Resort Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 200

Date of judgement 21 June 2017 Proceeding No. 2016/00378331
Judge(s) JS Currie, Senior Member
Court or Tribunal New South Wales Civil and Administrative Tribunal
Legislation cited Administrative Decisions Review Act 1997

Boarding Houses Act 2012

Civil and Administrative Tribunal Act 2013

Land Tax Management Act 1956

Taxation Administration Act 1996
Catchwords REVENUE LAW - Land Tax – Boarding houses exemption - section 10 Q Land Tax Management Act - Certain assessments not issued punctually - effect of lack of punctuality on validity of assessments - alleged estoppel - alleged misleading conduct - Assessments not unlawful - Lack of legal impediments to the issue of validity of the assessment - Chief Commissioner’s decision affirmed
Cases cited B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187

Commissioner of Taxation v Ryan (2000) 201 CLR 109; 43 ATR 694; 74 ALJR 471

Cornish Investments Pty Limited v Chief Commissioner of State Revenue [2013] NSWADTAP 25 at [31]

Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218; 90 ATR 906 at [29] to [34]

Joukhador v Chief Commissioner of State Revenue [2015] NSWCATAD 43 at [12]-[13]

Metricon Qld Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 982

Background

On 05 February 2011, the Applicant applied for an exemption from land tax for the 2010 tax year on the basis that the land was being used as a boarding house. The Commissioner allowed the exemption for the 2010 to 2014 tax years as the boarding house met the conditions of the relevant guidelines issued by the Chief Commissioner for the purposes of s.10Q of the Act. 

Revenue Ruling LT 093 containing the guidelines for the 2014 land tax year was issued on 19 December 2013.  The 2014 Guidelines introduced a new requirement requiring boarding houses to be registered under the Boarding House Act 2014 to qualify as exempt low cost accommodation for the purposes of s.10Q.  The Ruling contained a transitional provision to allow boarding houses to be eligible for the exemption if the business was registered under the Act by 30 June 2014 or “such later date as approved by the Chief Commissioner”. This transitional provision was not included in the Revenue Rulings or the Guidelines to the 2015 and 2016 tax years. The Applicant did not register the premises as a boarding house until 11 February 2016, a fact agreed to by both parties.

The Chief Commissioner exercised his discretion in relation to the 2014 land tax year and granted the land tax exemption for that year. However, the Chief Commissioner disallowed the Applicant’s objection to the land tax assessments for the 2015 and 2016 land tax years because the premises had not been registered as a boarding house by 30 June of either year.

The Statutory Framework

Section 10Q of the Act provided:

  1. (1) Land is exempted from taxation under this Act leviable or payable in respect of the year commencing on 1 January 1995 or any succeeding year if:

    1. the land is used and occupied primarily for low cost accommodation, and

    2. application for the exemption is made in accordance with this section, and

    3. the Chief Commissioner is satisfied that the land is so used and occupied in accordance with guidelines approved by the Treasurer for the purposes of this section.

The relevant guidelines for the purposes of s. 10Q(1)(c) for 2015 and 2016 both define boarding house as “premises which are registered under the Boarding Houses Act 2012 as either a general boarding house or an assisted boarding house”.

Assessments for the 2013 to 2016 tax years were issued on 4 March 2016.  Reassessments for the 2013 and 2014 tax years exempting the boarding house for those 2 years were subsequently issued.

Applicant’s Submissions

The Applicant contended that if it had known of the obligation, it would have registered under the Boarding House Act, and that the delay of the Chief Commissioner in issuing assessments for the 2013-2016 tax years was the cause of the Applicant’s lack of registration as a boarding house within time. The Applicant also raised issues of estoppel, misleading statements, negligence, breach of statutory duty and entrapment by the Chief Commissioner.

Chief Commissioner’s Submissions

The Chief Commissioner made four submissions:

  1. The Applicant had a land tax liability for the 2015 and 2016 tax years, amounts which were properly assessed by the Chief Commissioner;

  2. The Applicant had not satisfied the requirements of the Act by not registered as a boarding house, and was thus not entitled to an exemption from land tax for the 2015 and 2016 tax years;

  3. The areas of law raised by the Applicant did not give rise to an exemption from land tax liability; and

  4. Despite the delay in issuing tax assessments, there was no general discretion in either the Tribunal or the Chief Commissioner’s office to exempt the Applicant from compliance with the Act.

Consideration

The Tribunal noted the following:

  • The Applicant had previously been granted an exemption for land tax for the 2011 and 2012 financial years on the basis that the Land was used as a boarding house.

  • No changes had been made to the use of the Land since 2011.

  • The Applicant was not aware of the requirements of Revenue Ruling LT 093, nor had it been made aware of the requirement by the Chief Commissioner.

  • The Applicant had received no communications from the Office of State Revenue concerning its liability for Land Tax for 2015 and 2016, or the requirements to register as a boarding house.

Decision

The Tribunal held that delay by the Chief Commissioner in issuing tax assessment notices did not alter the validity of the assessments. The Tribunal noted that once a liability for land tax arises the Chief Commissioner has an obligation to issue an assessment, but the Act did not impose any time limit on the issue of an assessment (Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218; 90 ATR 906 at [29] to [34]) and Joukhador v Chief Commissioner of State Revenue [2015] NSWSCATAD 43 at [12]-[13].

The Tribunal considered that the Gunasti decision was clear authority that estoppel does not lie against the Chief Commissioner in the discharge of his duty to administer the taxation law.

The Tribunal did not accept that the Chief Commissioner had misled the Applicant nor had he been negligent or breached any statutory duty, as it was clear to the Applicant that it had to apply for the exemption each year and it could not assume that once it received an exemption that it would continue from year to year.

Order

The Chief Commissioner’s decision under review is confirmed.

Link to decision

Strathavon Resort Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 200

Last updated: 5 July 2017