Background
The Applicant owns a mixed commercial and residential building located in Milsons Point (“the Property”) comprised of 7 commercial suites, 33 residential units and parking spaces, five of which were the subject of these proceedings.
The Chief Commissioner issued assessments for 2020-21 and 2021-22. The Chief Commissioner also conducted an audit of the Applicant’s parking space levy liability and issued further assessments for 2017-18, 2018-19, 2019-2 0, 2020-21 and 2021-22 (“the relevant years”).The Assessments also included interest.
On 28 July 2022, the Applicant objected to the Assessments. The objection was partially allowed, reducing the number of parking spaces to which the levy applied to the 5 spaces set aside for visitor parking.
The central questions raised by the Applicant were whether the 5 parking spaces set aside exclusively for visitor parking were exempt from the levy, and if not, whether the interest should be remitted.
Statutory Framework
The Parking Space Levy Act 2009 (“PSL Act”) and the Parking Space Levy Regulation 2009 (NSW) (“2009 Regulations”) for the years ending 30 June 2018 and 30 June 2019, and the Parking Space Levy Regulation 2019 (NSW) (“2019 Regulations”) for the years ending 30 June 2020, 2021, and 2022, are relevant in these proceedings.
Section 3 the PSL Act sets out the object of the Act as follows:
“…to discourage car use in leviable districts by imposing a levy on parking spaces (including parking spaces in parking stations), and by using the revenue to encourage the use of public transport…”
Section 8 of the PSL Act imposes a parking space levy on “leviable premises”, specifying when such a levy is to be imposed.
The Act together with the 2009 Regulations and the 2019 Regulations provide definitions of exempt parking spaces (see reg. 7 and reg. 8, respectively).
Exemptions that were relevant in this case include:
- Spaces for the parking of motor vehicles by persons who reside on the premises or on adjoining premises;
- the parking of motor vehicles by persons who hold mobility parking scheme authorities.
Part 5, Division 1 of the Taxation Administration Act 1996 (“TA Act”), is relevant to the question of whether the interest should be remitted.
Submissions
Applicant's submissions
The Applicant’s primary submission was that the parking spaces were set aside exclusively for use solely by the residents, and exempt under regulation 7(1)(b) of the 2009 Regulation and regulation 8(1)(b) of the 2019 Regulation. The Applicant argued that “…parking of motor vehicles by persons who reside on the premises…” should be interpreted to include situations where the residents did not own the vehicle being parked but the residents had direction and control over the parking of the vehicle by visitors, therefore coming within the exemption specified in the regulations.
In the alternative the Applicant argued that the parking spaces in dispute were exempt pursuant to the 2009 Regulations and 2019 Regulations, on the basis that they were set aside for one or more of the listed exempt uses, which included holders of mobility parking scheme authorities .
Chief Commissioner's submissions
The Chief Commissioner submitted that the Applicant was not entitled to any of the exemptions because the 5 visitor parking spaces were not exclusively set aside for exempt purposes, and were not unused casual parking spaces.
Decision
The Tribunal concluded that:
- the applicant has the onus of demonstrating that the residential exemption applies to all of the parking spaces or that one or more of the individual parking spaces are set aside exclusively for one or more exempt purposes;
- the residential exemption requires the parking of the motor vehicle by a person who resides on the premise or an adjoining premise and not merely at the direction or control of that resident;
- all 5 parking spaces at issue in this case were set aside exclusively for visitor parking;
- there was always a space available for mobility scheme parking which is an exempt purpose under the legislation, but a specific parking space was not designated exclusively for mobility scheme parking since there was no differentiation between particular parking spaces;
- to be eligible for the exemptions, signposting of each parking space was not necessary;
- given the parking spaces in this case were not set aside ‘exclusively’ for one or more exempt purpose, the 5 visitor parking spaces were liable to the levy;
- on the issue of whether the interest should be remitted, the Tribunal found that the Applicant had not put forward any circumstances that would justify remission.
Orders
The Assessments were confirmed.
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