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| Date of judgement | 1 May 2019 |
| Proceeding number | 2018/322990 |
| Judge(s) | AR Boxall, Senior Member |
| Court or Tribunal | NSW Civil and Administrative Tribunal |
Administrative Decisions Review Act 1997, ss 58, 63
Civil and Administrative Tribunal Act 2013, ss 36, 41
Land Tax Management Act 1956, ss 10(1)(p), 10AA, Part 17
State Revenue Legislation Further Amendment Act 2005, Schedule 4
Taxation Administration Act 1996 ss 9, 96, 99, 100, Part 10
Threatened Species Conservation Act 1995, s127I, Part 7A
Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006, Schedule 2
AGC (Investments) Ltd v Federal Commissioner of Taxation 91 ATC 4180
B&L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481
BBLT Pty Ltd v Chief Commissioner of the Office of State Revenue [2003] NSWSC 1003
Bellinz v Federal Commissioner of Taxation [1998] FCA 615; (1998) 84 FCR 154
Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11
Daoud v Chief Commissioner of State Revenue [2013] NSWCATAD 53
DW Tolson Management Pty Limited v Chief Commissioner of State Revenue [2016] NSWCATAD 113
Federal Commissioner of Taxation v Australia & New Zealand Savings Bank Ltd [1994] HCA 58; (1994) 181 CLR 466,
Federal Commissioner of Taxation v Wade [1951] HCA 66; (1951) 84 CLR 105
Gallo v Dawson [1990] HCA 30, 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Jackson v Land and Housing Corporation [2014] NSWCATAP 22
Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53
Nanschild v Pratt [2011] NSWCA 85
Oamington Pty Ltd (Receiver & Manager Appointed) v Commissioner of Land Tax 98 ATC 5051
Opera Australia Ltd v Carr [1999] NSWADTAP 6
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
The Applicants own a Land located in Kangaroo Valley NSW (“the Land”), which they bought in 1985.
In 1997 the Chief Commissioner approved a primary production exemption under s. 10(1)(p) (“Old PPL Exemption”) of the Land Tax Management Act 1956 (“LTMA”) in respect of the Land.
In 2006 amendments were made to the LTMA which replaced s.10(1)(p) with new primary production exemption provisions in section 10AA (“New PPL Exemption”). Further amendments made to the LTMA in 2006 introduced a new sub-section 10(1)(p), providing an exemption for land that was the subject of a “biobanking agreement” (“Biobanking Exemption”).
Between 2006 and 2015, the Chief Commissioner issued land tax assessments in respect of the Land on the basis that it was exempt because it was used for a business of primary production.
Following a review of the use of the land, on 28 April 2016 the Chief Commissioner determined that the land was not entitled to exemption under the New PPL Exemption, and issued assessments for the 2012 to 2016 land tax years.
The Applicants lodged an objection on 29 July 2016, which was disallowed by Revenue NSW on 10 January 2017.
The Applicants sought a review of the assessments on the basis that the nature and character of the Land had not changed since the Old PPL Exemption was granted in 1997. They further argued that the Biobanking Exemption set out in s.10(1)(p) of the LTMA applied.
The Tribunal allowed the application in relation to the 2017 decisions to proceed, despite the lateness with which it was made, as it would better serve the principles set out in s. 36 of the Civil and Administrative Tribunal Act 2013, together with the interests of justice referred to in Daoud v Chief Commissioner of State Revenue [10].
The Tribunal also allowed the application to proceed in relation to the 2016 decisions, as to reject it would risk unfairness to the Applicants [14].
The Tribunal decided that
In respect of the reassessment of the 2012, 2013, 2014 and 2015 Assessments, the Tribunal held that the Chief Commissioner was authorised to reassess tax liabilities under s. 9 of the TAA [39].
The Chief Commissioner’s acceptance on 9 February 2015 of the Applicants’ representation, that the exemption recognised on 18 July 1997 still applied did not alter the Chief Commissioner’s authority to reassess the 2012, 2013, 2014 and 2015 Assessments. [40]-[41]
The Tribunal held that the Crown, as a legislative body, may make new laws and vary existing ones, and persons subject to the laws of NSW are bound by those laws. The Applicants being unaware of the changes made to the LTMA neither detracted from the Chief Commissioner’s obligation to apply the law as so varied, nor conferred on the Applicants any right to be shielded from its application [44]-[45].
The Tribunal rejected the Applicants’ arguments that in issuing the assessments under review the Chief Commissioner denied them natural justice, as they had provided no evidence that the Chief Commissioner failed to receive and consider the Applicants’ views, to communicate with them in the way required by law, or to comply with the TAA and the Administrative Decisions Review Act 1997 [49]-[51].
The Tribunal rejected the Applicants’ argument that the Land was “land used for primary production” for the purposes of s. 10AA as none of the practices described in the Applicants’ submissions came within the activities specified in s. 10AA(3) of the LMTA [56].
The Tribunal rejected the Applicants’ claim that the Land or any part of it at any relevant time came within the Biobanking Exemption under s. 10(1)(p) as there was no biobanking agreement in place covering the Land at any relevant time [60].
The Tribunal made the following orders:
Giammarco and Giammarco v Chief Commissioner of State Revenue [2019] NSWCATAD 77