|Date of judgement||12 March 2015|
|Judge(s)||R L Seiden SC|
S Frost, Senior Member
|Court or Tribunal||Appeal Panel, NSW Civil & Administrative Tribunal|
APPEAL – Civil and Administrative Tribunal (NSW) – land tax – grouping provisions – validity of notice of assessment – jurisdiction to appeal - whether question of law - jurisdiction of Tribunal to undertake merits review where no valid notice of assessment
Drake v Minister for Ethnic Affairs (1979) 46 FLR 409
The proceedings arose in part from an audit/ investigation which commenced in 2006 and which grouped the appellant with three other entities for payroll tax and land tax purposes.
The appellant sought a review in the Tribunal of an assessment of land tax for the 2010 year (“the 2010 assessment”). Although the amount of land tax assessed by the Chief Commissioner for the 2010 year was not in dispute, the form of the 2010 assessment was.
At first instance and on appeal, the appellant submitted that the 2010 assessment was invalid because the front page included amounts owing for previous years. This submission was not accepted by the Tribunal, which found that the 2010 assessment was valid.
On appeal, the appellant argued that the front page of the notice of assessment should “isolate and identify an amount for the 2010 land tax year”, otherwise it is invalid. Alternatively, the appellant argued that if it was permissible to include earlier amounts on the front page of the 2010 assessments then this amounted to a reassessment of the earlier years.
The Appeal Panel was satisfied that the Tribunal has the jurisdiction to review an invalid decision and that its role “is to engage in in merits review of a decision (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd  FCA 21; (1979) 41 FLR 338). This is reflected in s.5 of the Civil and Administrative Tribunal Act 2013.
At paragraphs 31 and 35 of the decision, the Appeal Panel stated that
“...the Tribunal has jurisdiction to review an assessment or purported assessment and to form the correct and preferable decision on the merits, but it does not have jurisdiction to declare that the purported assessment is invalid or legally flawed...
This is true even where an assessment might otherwise be defective on the grounds of jurisdictional error, provided the assessment purports to have been made in exercise of powers conferred by the relevant statute: Kennedy v AAT & Anor  FCAFC 124; (2008) 168 FCR 566; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd  FCA 21; (1979) 41 FLR 338 at 343-344.”
At paragraph 36, the Appeal Panel stated:
“The question for the Tribunal concerned the correct quantum of liability for the assessment which had been the subject of an objection and objection decision: s 96 of the TAA. The parties have agreed upon a figure for the 2010 year, and so the questions posed by the Appellant do not arise in the appeal.”
However, in the event that it was wrong, the Appeal Panel considered whether there was a valid completion of the assessment process for 2010 and therefore, whether there was an error of law at first instance.
The Appeal Panel noted that ss.14 and 15 of the Land Tax Management Act 1956 (“LTMA”) requires the Chief Commissioner to assess land tax and set out what is to be contained in the notice of that assessment. In this case, the 2010 Assessment included the particulars required by the LTMA and notwithstanding that other information was included (such as amounts owing for previous years), it was found that the assessment and notice for 2010 were correct.
The Appeal Panel also stated that “the Tribunal’s only error lay in identifying the decision under review as the objection decision, when it was the underlying assessment that was the object of review… nothing turns on that.”
In relation to the appellant’s argument that the inclusion of amounts owing for previous years constituted a reassessment, the Appeal Panel did not consider that this argument arose as the 2010 assessment was an assessment of land tax for 2010 and not earlier years.