Home789 Resources Pty Ltd & others v Chief Commissioner of State Revenue [2023] NSWCATAD 263

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Home789 Resources Pty Ltd & others v Chief Commissioner of State Revenue [2023] NSWCATAD 263 Hearing dates: 12, 15, 16 and 18 May 2023 Date of orders: 13 October 2023 Decision date: 13 October 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: J S Currie, Senior Member Decision: 1. In respect of applications 2020/287512; 2020/287521; 2020/287537 and 2020/287546, the applications are dismissed under section 55 (1) (a) of the Civil and Administrative Tribunal Act 2013 on the basis that the applications have been withdrawn. The Tribunal notes that those applications were withdrawal on the basis of agreement between the relevant parties that: (a) the issue of the amount of payroll tax payable by the Applicants for the period 1 July 2019 to 31 January 2020 is remitted to the Respondent to consider, and if he deems necessary, to issue a re-assessment following publication of the decision by the Tribunal in applications 2020/5300; 2020/5302; 2020/5305 and 2020/5306; and (b) the Respondent undertakes not to take enforcement action against the Applicants in respect of any amount of payroll tax owing by the Applicants in respect the period 1 July 2019- 31 January 2020 whilst proceedings 2020/5300; 2020/5302; 2020/5305 and 2020/5306 remain on foot, without giving 21 days' prior notice before doing so. 2. The decision of the Chief Commissioner on 15 March 2019 to group Home 789 Resources Pty Ltd with the other applicants and with Bright Austina Pty Ltd, SWASW Wealth Pty Ltd as trustee for the CJ Family Trust, and UFN A Epping Pty Limited as trustee for the UFN A Epping Unit Trust, ("the group") is affirmed. 3. The decision of the Chief Commissioner on 15 March 2019 to disallow an application for exclusion from the group is affirmed. 4. With the exception of the payroll tax assessments for Daegeun Hwang (No.6 in the Tribunal's reasons for decision); Hao Wang (No.12 in the Tribunal's reasons for decision) and Yong Fang Chia (No 28 in the Tribunal's reasons for decision), which are varied in accordance with the Tribunal's reasons for decision, each of the payroll tax assessments issued to the Applicants for the tax years ended on 30 June 2013, 30 June 2014, 30 June 2015 and 30 June 2016 is confirmed. 5. In respect of the tax years ended on 30 June 2017, 30 June 2018 and 30 June 2019, by consent, the assessment of the Applicants' respective liability for payroll tax is remitted to the Chief Commissioner for reassessment in accordance with the assessments previously issued which are the subject of review, including in respect of interest and penalty tax, subject to the following adjustments: In respect of Home789 Resources Pty Ltd: (1) for the financial year ended 30 June 2017, by reducing the amount of payroll tax payable by Home789 Resources Pty Limited by $13,838.82 (not including penalty tax or interest); (2) for the financial year ended 30 June 2018, by reducing the amount of payroll tax payable by Home789 Resources Pty Limited by $15,471.01(not including penalty tax or interest); and (3) for the 1 July 2018- 31 January 2019, by reducing the amount of payroll tax payable by Home789 Resources Pty Limited by $10,024.37 (not including penalty tax or interest). In respect of Great Fortune Investment Pty Ltd: (1) for the financial year ended 30 June 2017, by reducing the amount of payroll tax payable by Great Fortune Investment Pty Ltd by $30.12 (not including penalty tax or interest); (2) for the financial year ended 30 June 2018, by reducing the amount of payroll tax payable by Great Fortune Investment Pty Ltd by $38.74 (not including penalty tax or interest); and (3) for the 1 July 2018- 31 January 2019, by reducing the amount of payroll tax payable by Great Fortune Investment Pty Limited by $25.10 (not including penalty tax or interest). 6. The parties are directed to bring in short minutes of orders, which reflect the findings in this decision, including particulars of the variations to payroll tax assessment for the matters referred to in Order 4 and the matters agreed upon as described in Orders 1 and 5, within 28 days of publication of these orders. Catchwords: REVENUE- Payroll tax- Grouping of employers- business groups- real estate industry- discretion in Chief Commissioner to "de-group": Payroll Tax Act 2007, section 79- whether discretion properly exercised. REVENUE- Payroll tax- taxable wages- where each recipient had a connection with member or members of group-whether each recipient an employee - whether payments taxable wages for purposes of the Payroll Tax Act 2007, Part 2, Division 2- whether payments exempt – proper identification of persons under consideration- whether person under consideration ordinarily performs services of that kind to the public generally in relevant financial year. Legislation Cited: Administrative Decisions Review Act 1997 (NSW): sections 9, 58, 63. Civil and Administrative Tribunal Act 2013 (NSW): sections 28, 55. Payroll Tax Act 2007 (NSW): sections 6, 7, 10, 11, 13; Part 3 Division 7; sections 32, 34, 35, 70, 71, 72, 74, 79. Taxation Administration Act 1996 (NSW): sections 96,100. Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSW LR 481 Boston Sales and Marketing Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 139 Bridges Financial Services Pty Ltd v Chief Commissioner of State Revenue [2005] NSWSC 788 Cessnock Tyres v Chief Commissioner of State Revenue [2017] NSWCATAD 368 Chief Commissioner of State Revenue v Paspaley [2008] NSW CA 184 Chief Commissioner of State Revenue v Seovic Civil Engineering Pty Ltd [2014] NSWCATAP 92 Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 Conrad Linings v Chief Commissioner of State Revenue [2013] NSWADTAP 42 Construction Forestry Mining and Energy Union v Personnel Contracting Pty Limited [2022] HCA 1 Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2022] NSWSC 104 Gauci v Federal Commissioner of Taxation (1975) 135 CLR 181; (1975) 8 ALR 155 Headware v Chief Commissioner of State Revenue [2015] NSWCATAD 166 Jones v Dunkel [1959] HCA 8; 101 CLR 248 Levitch Design Associates Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 215 Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 Novus Capital Ltd v Chief Commissioner of State Revenue [2018] NSWCATAD 72 Seovic Engineering Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCA 252 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] 245 CLR 446 Texts Cited: None cited Category: Principal judgment Parties: Home789 Resources Pty Ltd (First Applicant) Great Fortune Investment Pty Ltd (Second Applicant) UFN Resources Pty Ltd (Third Applicant) Aust Sunshine Marketing Pty Ltd Fourth Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: N Kulkarni (Applicants) S Karagaratnam (Respondent) Solicitors: Dixon Holmes du Pont Lawyers (Applicants) Crown Solicitor (Respondent) File Number(s): 2020/5300, 2020/5302, 2020/5305, 2020/5306, 2020/287512, 2020/287521, 2020/287537, 2020/287546 Publication restriction: Nil