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MERITS REVIEW - REVENUE LAW – jurisdiction of the Tribunal - onus – surcharge land tax on residential land – foreign person – effect of submissions without supporting evidence or relevant authority.
Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 Federal Commissioner of Taxation v Wade (1951) 84 CLR 105 Tajjour v State of New South Wales (2014) 254 CLR 508
Background
The agreed facts, briefly stated, were as follows:
The Applicant was a citizen of the US at all material times, having never held Australian citizenship;
The Applicant had never resided in Australia, nor spent more than two weeks at any given time in Australia (or more than twice in any year);
The Applicant purchased the Property in July 2018, and was the owner of the Property at the time of the Assessment;
The Property was leased to tenants during the 2023 calendar year; and
The Applicant did not reside in the Property during the 2023 calendar year.
Submissions
The Applicant attempted to argue grounds of estoppel, relying solely on the statutory requirement that the Respondent must give reasons for his decision. The Tribunal commented that the Applicant provided no authority to support such submissions. The Applicant also argued that United States nationals such as himself were exempt from surcharge land tax by operation of Australian federal law, namely that the Australia-US Free Trade Agreement (“the Treaty”) and s. 109 of the Australian Constitution precluded a US citizen such as himself from NSW surcharge land tax.
On the estoppel point, the Respondent submitted that none of the relevant sections of the Taxation Administration Act 1996, TA Act (e.g., s 93(2A)) or the Administrative Decisions Review Act 1997, ADR Act (e.g., s 49(3)), sections stipulating the giving of reasons, do not make any reference to estoppel. Further there is a body of caselaw confirming that estoppel cannot prevent the exercise of statutory discretion or the performance of a statutory duty.
Further, the Respondent submitted that the Applicant’s key argument concerning the Treaty and Australian law was misconceived as fundamentally incompatible with the long-accepted dualism of international and domestic law.
Decision
Pursuant to section 100(3) of the TA Act, the onus was on the Applicant to prove his case on the balance of probabilities. The Tribunal found that the onus required the Applicant to affirmatively prove each element of his case, not merely to prove that the Respondent had withdrawn from proving one element of the Respondent’s case.
During the hearing, the Applicant made several suggestions as to issues which he believed should be addressed by the Tribunal. However, pursuant to s 63 of the ADR Act, the Tribunal found it was only required to determine the application before it, to the extent that it concerns an administratively reviewable decision having regard to the material before it.
Therefore, the Tribunal was not satisfied on the material before it that the Applicant had satisfied his onus. Accordingly, the correct and preferable decision of the Tribunal was that the decision of the Respondent under review be affirmed.
