|Date of judgement||26 April 2017|
|Judge(s)||A R Boxall, Senior Member|
|Court or Tribunal||New South Wales Civil and Administrative Tribunal|
Payroll tax – interest for late payment – remission of interest – penalty tax – remission of penalty tax – circumstances beyond the taxpayer’s control
The Applicant, Advance Pallets Pty Ltd (“the Applicant”) sought review of the decision of the Chief Commissioner of State Revenue (“the Chief Commissioner”) to issue notices of assessment to the Applicant for the payment of payroll tax under the Payroll Tax Act 2007 (NSW) (“the Act”) for the 2011 to 2013 financial years.
Both parties conducted the hearing on the basis that:
Mr Anthony Attard and his wife Mrs Carmen Attard are the two shareholders in and directors of the Applicant. Mr Attard is the sole secretary of the applicant and Mrs Attard’s role was administrative. On 13 March 2014 Mr Attard was diagnosed with a brain tumour. As a result Mr Attard engaged a production management team to assist in the management of the Applicant.
On 27 August 2014 the Applicant lodged an objection to payroll tax assessments issued by the Respondent in respect of the financial years 1 July 2010 to 30 June 2011, 1 July 2011 to 30 June 2012 and 1 July 2012 to 30 June 2013 (“the Objection’). The Chief Commissioner applied the market rate component of interest only under s 22 of the Taxation Administration Act 1996.
The Chief Commissioner by way of letter dated 31 October 2014 disallowed the Objection. On 17 February 2015 the Chief Commissioner issued a further letter allowing the Objection for the financial year 1 July 2011 to 30 June 2012 only.
On 22 March 2016, 11 months after the expiry of the statutory period, the Applicant applied for a review by the Tribunal of the Respondent’s determination. The time for filing the application was retrospectively extended under s 41 of the Civil and Administrative Tribunal Act 2013.
The Application for Review was limited to the Chief Commissioner’s decision to impose penalty tax and interest for the financial years ending 30 June 2011 and 30 June 2013 as the Applicant acknowledged during those respective years it incurred additional payroll tax.
The Applicant sought that interest be remitted on the unpaid tax and that penalty tax not be imposed as Mr Attard’s illness amounted to circumstances beyond the Applicant’s control that prevented it meeting its payroll tax obligations.
Under s 100(3) of the Taxation Administration Act 1996 the Applicant must demonstrate, on the balance of probabilities, the deficiencies in the Chief Commissioner’s decision, otherwise the Chief Commissioner’s decision will stand.
The Tribunal found that the market rate component of the interest should not be remitted for the following reasons:
The Tribunal found the Applicant had not discharged the onus placed on it under s 100(3) of the Taxation Administration Act 1996 due to:
The decision under review is confirmed.