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Sterling House 88 Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 279

Date of judgement 15 September 2017 Proceeding No. 2016/378249
Judge(s) RL Hamilton SC, Senior Member
Court or Tribunal New South Wales Civil and Administrative Tribunal
Legislation cited Parking Space Levy Tax Act 2009

Parking Space Levy Regulation 2009

Taxation Administration Act 1996
Catchwords Taxes and Duties - Parking Space Levy - exemption
Cases cited N/A

Background

The Taxpayer sought a review of the Chief Commissioner’s assessments of levies under the Parking Space Levy Act 2009 (“the Act”) for the period of 1 July 2010 to 30 June 2015. The Taxpayer claimed it was entitled to the exemption under Regulation 7(1)(d) of the Parking Space Levy Regulation 2009 for parking spaces set aside exclusively for the purpose of loading or unloading goods or passengers, provided vehicles are not otherwise permitted to park in the space.

On 16 April and 13 October 2014 Revenue NSW officers carried out inspections of the Loading Zone at the Taxpayer’s premises. The officer’s evidence was that on both days there were vehicles parked in the Parking/Loading Zone in rows with 3 or 4 vehicles to each row. The officers’ evidence was that they did not see anyone in the Parking/Loading Zone at any time and did not see any persons loading or unloading goods or passengers from any of the cars parked in the Parking/Loading Zone.

The applicant’s managing agent gave evidence that during the relevant period:

  1. loading zone signage and signs warning violators had been installed;

  2. random inspections had been made of the premises; and

  3. to the agent’s knowledge, no vehicles had been clamped or towed for violation of the loading zone rules during the relevant period.

The Statutory Framework

Section 8(1) of PSL Act 2009 provides:

  1. “A parking space levy is imposed on 1 July each year on all leviable premises.”

Section 9 of PSL Act 2009 requires the owner of leviable premises to lodge a return with the Chief Commissioner in relation to the parking spaces situated on those premises at any time during the previous financial year.

Section 14(2) PSLA permits the making of regulations for exemptions to the parking space levy. The applicant relied on reg.7(1)(d) of the Parking Space Levy Regulation 2009 which provides:

“Exempt parking spaces

  1. A parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is set aside exclusively for one or more of the following purposes:

    ...

    1. the parking of motor vehicles for the purpose of loading or unloading goods or passengers, but not if vehicles are permitted to park in the space otherwise than while goods or passengers are being loaded or unloaded,

Issues

The issues in this case were:

  1. Had the applicant set aside the parking spaces exclusively for the exempt purpose?

  2. Had the applicant permitted parking in the parking spaces otherwise than while goods and passengers were being unloaded?

  3. Could the Chief Commissioner, issue “retrospective” Notices of Assessments for the 3 tax years preceding the dates his officers inspected the premises in April and October 2014? The Tribunal’s concern was that the Chief Commissioner may not have considered the circumstances applicable in the prior years before issuing the Notices of Assessment.

Decision

Issue 1 – Spaces set aside exclusively for loading or unloading

The Tribunal decided that the applicant satisfied its onus of proving on the balance of probabilities that at all times over the 5 levy years, by posting appropriate notices in place and visible during all the relevant years, the parking spaces had been:

set aside exclusively for parking motor vehicles while loading or unloading goods or passengers

Issue 2 – Spaces not used otherwise than for loading or unloading

The Tribunal held that for the loading zone exemption to be available, vehicles must not be “permitted” to park in the space otherwise than for the required purpose of loading or unloading goods or passengers. This would presumably require diligent supervision by the owner or its agents to ensure that vehicles were at no time allowed or tolerated to park in the space set aside other than exclusively for the purpose of loading or unloading goods or passengers.

The Tribunal considered that the taxpayer did not discharge its onus of proof because, notwithstanding the photos of the signage at the area referring to it as a “loading zone”, there was insufficient evidence to prove that vehicles were not permitted to park otherwise than while goods or passengers were being loaded or unloaded in the relevant years.

Issue 3 – Chief Commissioner’s power to issue prior year notices

The Tribunal came to the view that the Chief Commissioner could issue “retrospective” notices of assessment as:

  1. the levy was imposed by s.8(1) of the PSL Act itself on 1 July each year without the necessity of the Chief Commissioner to issue an Assessment;

  2. there was a requirement for all owners of leviable premises to lodge annual returns (s.9 PSLA) even if all spaces are exempt or claimed to be so; and

  3. the Chief Commissioner had turned his mind to the matter and had formed a bona fide view that the premises were in a Category 2 leviable district[1] and had parking spaces in them in the relevant years.

The onus then fell on to the applicant, pursuant to s.100(3) Taxation Administration Act 1996 (TAA), to establish (on the balance of probabilities) that it was not liable in those years to the parking space levy by reason of an exemption or for some other reason.

Given the applicant’s burden of proof, the applicant could not assert that the Chief Commissioner had the onus of establishing that the space was a car park and not a loading zone or that the Chief Commissioner’s documents did not address each of the levy periods.

Order

The assessments of the Chief Commissioner of State Revenue are affirmed.

Link to decision

Sterling House 88 Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 279

Footnotes

  1. ^ (Reg.3 and Sch1 Pt 2 par 5 PSL Reg.)
Last updated: 27 September 2017