Ferella v Chief Commissioner of State Revenue [2020] NSWCATAD 128

Background

The applicants owned property situated in Box Hill (“the Property”) which they claimed is used for primary production purposes and is therefore exempt from land tax. The Chief Commissioner assessed the applicants for land tax every year since at least 2000, rejecting the claim for an exemption.

In 2013 the NSW Administrative Decisions Tribunal (“the ADT”) confirmed the land tax assessments for the 2007 to 2011 land tax years, rejecting the claim for an exemption  The decision was upheld in appeals to the Appeal Panel of the ADT and to the Court of Appeal.

The Applicants unsuccessfully objected to the 2015 and 2016 assessments, but have otherwise not objected to the land tax levied on the Property.

In May 2019, the applicants’ son lodged separate objections to the land tax assessments for each of the land tax years from 2011 to 2019 inclusive on the basis that the Property was exempt as it was used for primary production purposes (“the Objections”).

The Chief Commissioner advised the applicants that:

• the applicants were unable to object to the 2011 assessment as it had already been dealt with by the Court of Appeal;
• the applicants had already objected against the 2015 and 2016 assessments and those objections had been disallowed, so the applicants could not object again to those assessments;
• the objections against the assessments for the 2012, 2013, 2014, 2017 and 2018 land tax years were lodged outside of the 60-day time limit and the Chief Commissioner had declined to accept the objections out of time;
• the objection to the 2019 assessment was disallowed.

The applicants filed an application for review with the Tribunal in respect of the 2011 to 2019 land tax assessments. The Chief Commissioner agreed that the Tribunal had jurisdiction to review the 2019 land tax assessment but sought to have the applications dismissed for the remaining assessments due to a lack of jurisdiction.

The Statutory Framework

Part 10 of the Taxation Administration Act 1996 (“the TA Act”) contains the relevant provisions for objecting to or appealing land tax assessments of the Chief Commissioner. By way of summary, the relevant provisions of Pt. 10 provide:

• a taxpayer who is dissatisfied with an assessment may lodge a written objection with the Chief Commissioner (s. 86(1));
• an objection must be lodged with the Chief Commissioner not later than 60 days after the date of service of the notice of assessment (s. 89(1));
• an objection lodged out of time may be accepted at the Chief Commissioner’s discretion if the taxpayer provides details of the circumstances concerning and the reasons for the failure to lodge the objection on time (s. 90);
• the Chief Commissioner must consider an objection and either allow the objection in whole or in part, or disallow the objection (s. 91(1));
• a taxpayer may apply to the Tribunal for an administrative review of a decision of the Chief Commissioner that has been the subject of an objection if the taxpayer is dissatisfied with the Chief Commissioner’s determination of the objection (s. 96(1)(a)); and
• an application for review must be made not later than 60 days after the date of issue of the notice of the Chief Commissioner’s determination of the objection, but the Tribunal has a discretion to allow a taxpayer to apply for review out-of-time (s. 99(1)).

Submissions

The applicants did not file any written submissions prior to the hearing and did not appear at the hearing. However, from the content of the Objections lodged with the Chief Commissioner, the Tribunal identified that the applicants claimed that certain land tax assessments were not received, that applications for exemptions were lodged but no response received and that the Property was vested in the Official Trustee in Bankruptcy until 2018 (at [37]–[40]).

The Chief Commissioner submitted that the Tribunal lacked jurisdiction to entertain a review of any decisions concerning the 2011 to 2018 land tax years.

Decision

The Tribunal determined that it lacked jurisdiction to entertain a review of the land tax assessments for the 2011 to 2018 land tax years because:

1. the 2012, 2013, 2014, 2017 and 2018 land tax assessments had not been the subject of an objection. Although objections had been physically lodged, they had been refused by the Chief Commissioner for being lodged out of time and, accordingly, the assessments had not been the subject of an objection (at [44]–[46]). Further, the applicants could not bring the decision of the Chief Commissioner to not accept the objections lodged out of time to the Tribunal as that decision would also need to be the subject of an objection to enliven the Tribunal’s jurisdiction (at [50]–[51]);
2. the applicants had lodged their application for review of the 2015 and 2016 land tax assessments three years out of date (at [57]). Further, the applicants had provided no information about why they were so late in making the application, meaning that there was nothing before the Tribunal to enable the Tribunal to consider granting an extension of time (at [61]–[63]); and
3. the administrative review conducted by the ADT in respect of the 2011 land tax year fully litigated and determined the question of exemption from land tax in respect of the 2011 land tax year and that, therefore, the applicants could not contest the 2011 land tax assessment again (at [67]).

On the basis of those findings, the Tribunal decided that the most appropriate way to dispose of the applications was to dismiss the proceedings, to the extent that they relate to the land tax years 2011 to 2018 inclusive, under s. 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (“the CAT Act”) as the applications in respect of those years were lacking in substance (at [71]-[72]).

Orders

Applications in respect of the 2011 to 2018 land tax years inclusive dismissed under s. 55(1)(b) of the CAT Act.

https://www.caselaw.nsw.gov.au/decision/5eb893dbe4b0f66047ed9045