T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 218

Summary

The Taxpayer, T & S Nominees Pty Ltd, sought an interim stay order under s 60 of the Administrative Decisions Review Act 1997 (“the ADR Act”) in respect of a requirement to pay land tax. The order was sought pending the hearing of the Taxpayer’s request for a review of land tax assessments issued by the Chief Commissioner.

The Tribunal refused the Taxpayer’s application and awarded costs of the application to the Chief Commissioner. The Taxpayer relied on evidence to prove that there was a serious question to be tried, but presented no financial evidence to support its claim that it would suffer irreparable loss or harm, and the Tribunal ruled that the stay application was therefore doomed to fail.

Background

The Land was at all times zoned “light industrial”. At all times the Land was leased to Ganian Pty Ltd (“Ganian”) who conducted primary production activities on the Land. The Chief Commissioner was of the view that the Land was not exempt for land tax and issued land tax assessments for the 2012 and 2013 tax years and subsequently for the 2014 tax year.

The taxpayer objected to the assessments and the Chief Commissioner disallowed the objection. The taxpayer commenced proceedings in the Tribunal seeking a review of the assessments, and an interim stay order under s.60 of the ADR Act.

Application for interim stay

The parties agreed that s.60 of the ADR Act requires consideration as to whether or not there has been irreparable harm to the taxpayer and whether there was a serious question to be tried.

The taxpayer submitted the Land could not be used other than for rural activities (despite the zoning as “light industrial”) and that any obligation on the taxpayer to pay land tax is a significant detriment that would cause irreparable harm in the relevant sense. The taxpayer submitted that it could not afford to pay $70,000 per annum in land tax and that irreparable damage would be done to the taxpayer by having to rearrange its affairs.

The Chief Commissioner submitted that the taxpayer had not adduced any evidence of its financial position so as to substantiate its contentions concerning irreparable damage. The Chief Commissioner also submitted that there was uncontested evidence that the taxpayer had sold other land for $4 million against a cost price of $635,000. Further, the unimproved valued of the Land which had been assessed was $4 million against a cost price of $125,000 and the Land had at all material times been unencumbered.

Decision

Primary Decision

Senior Member Wass held that the taxpayer must establish that there is serious question to be tried in respect of the levying of land tax and also that irreparable loss or harm will be suffered by the taxpayer before the Tribunal could make an order under s.60 of the ADR Act.

Senior Member Wass accepted the Chief Commissioner’s contentions that the only loss or harm that the taxpayer pointed to was that it would have to rearrange its affairs. Senior Member Wass found that firstly, there was no evidence to support that submission and secondly, a requirement that the taxpayer rearrange its affairs is an insufficient basis upon which to make out any case based on irreparable loss or harm for the purposes of s.60 of the ADR Act.

Senior Member Wass found that it was not necessary to come to a concluded view on whether or not there was a serious question to be tried, in light of her conclusion regarding irreparable loss or harm.

Costs of the application

The Chief Commissioner sought costs on the basis that no evidence was proffered by the Taxpayer in support of any irreparable loss or harm, and the application should not have been brought.

Senior Member Wass accepted the Chief Commissioner’s submissions and found that, absent any evidence of irreparable loss or harm, the application was doomed to fail.

Orders

Senior Member Wass refused the application for a stay and ordered that the taxpayer pay the Chief Commissioner’s costs of the application.

Link to decision

T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 218