|Date of judgement|
31 July 2019
R L Hamilton SC, Senior Member
|Court or Tribunal|
NSW Civil and Administrative Tribunal
TAXES AND DUTIES - objections against assessment - out of time - jurisdiction of Tribunal
This decision concerned whether the Tribunal had jurisdiction to review an application relating to land tax assessments for the 2016 and 2017 land tax years, in respect of which an objection and application for review had been sought out of time.
On 6 December 2016, the applicant was issued with a land tax assessment for the 2016 land tax year . On 17 April 2018 (approximately 16 months later), the applicant lodged a purported objection mentioning the 2016 Assessment, amongst other assessments.
The applicant did not provide any reasons for lodging the objection more than 60 days after the issuing of the assessment and therefore out of time, as prescribed by the Taxation Administration Act 1996 (“TAA”). The Chief Commissioner invited the applicant to provide reasons for the lateness of the objection and reasons why it should be accepted despite being out of time. The applicant did not accept that invitation. Accordingly, the Chief Commissioner treated the 2016 land tax year objection as being invalid.
On 16 February 2017, the applicant was issued with a land tax assessment for the 2017 land tax year. On 25 February 2017, the applicant lodged an objection to the 2017 Assessment (“the First Objection”). The objection was disallowed by the Chief Commissioner on 8 April 2017.
The applicant then purported to lodge a “second objection” on 10 July 2017. On 26 July 2017, the Chief Commissioner advised the applicant that this could not be dealt with as the First Objection had already been determined. At all relevant times, the Chief Commissioner advised the applicant of its right to seek further review and provided a fact sheet setting out critical information such as the time limit for filing applications for review.
On 23 August 2018, the applicant lodged an application with the Tribunal for review of the Second Objection. The applicant did not apply to the Tribunal for an extension of time, and provided no reasons for the delay apart from advising the Tribunal “that there was confusion in the mind of those who controlled and advised the taxpayer”: .
Section 89 of the TAA requires objections to land tax assessments to be lodged within 60 days of the assessment being issued. The Chief Commissioner may accept a late objection but the taxpayer must state fully and in writing the circumstances and reasons for the failure to lodge the objection within the 60 day period prescribed [s. 90 of the TAA].
Section 96 of the TAA provides for the Tribunal to review a decision of the Chief Commissioner under s. 9 of the Administrative Decisions Review Act 1997.
Under s. 99 of the TAA, an application to the Tribunal for review, following a determination by the Chief Commissioner of an objection, must be made within 60 days of the issue of notice of the Chief Commissioner’s determination, unless the Tribunal allows an extension.
In relation to the 2016 assessment, the Tribunal accepted that there had been no decision by the Chief Commissioner to refuse to permit the objection to be lodged out of time, and no decision on the objection. Accordingly, there was no decision by the Chief Commissioner available for review by the Tribunal for the purposes of s. 96 of the TAA: .
In relation to the 2017 Assessment, the Tribunal found that there was no evidence before it to enable it to consider whether it should allow the application to be made out of time: . Accordingly, the Tribunal held that it did not have jurisdiction to hear the matter in relation to the 2017 land tax year: . However, the Tribunal considered that it is a matter for the applicant as to whether it wishes to revisit and regularise its position: .