W Grants Furnishings Pty Ltd -v- Chief Commisioner of State Revenue [2002] NSWADT 108

CITATION: W Grants Furnishings Pty Ltd -v- Chief Commisioner of State Revenue [2002] NSWADT 108 DIVISION: Revenue Division APPLICANT PARTIES: W Grants Furnishings Pty Ltd RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 026007 HEARING DATES: 03/05/2002 SUBMISSIONS CLOSED: 05/03/2002 DATE OF DECISION: 06/25/2002

BEFORE: Hole M - Judicial Member APPLICATION: Parking space levy - assessment of MATTER FOR DECISION: Principal matter LEGISLATION CITED : Parking Space Levy Act 1992 Taxation Administration Act 1996 CASES CITED: APPLICANT REPRESENTATION: W Clark, agent RESPONDENT D Martin, agent ORDERS: The imposition of the parking space levy is affirmed at $1,600.00.

1 The Applicant has applied for a review of a decision by the Commissioner to assess a parking space levy in respect of two parking spaces at 2/6 Hunter Street, Parramatta being property owned by W Grants Furnishings Pty Ltd pursuant to the Parking Space Levy Amendment Act, 1992 assented to on 6 June 2000. 2 The Office of State Revenue received a response to a Notice of Investigation from the Applicant on 23 November 2001. On the basis of the information in that Notice, the Office of State Revenue issued an assessment for the financial years ending 30 June 2001 and 30 June 2002 in respect of a parking space levy payable pursuant to the Parking Space Levy Act, 1992 by the owner of the two car spaces. 3 The particular car parking spaces are in an area prescribed by the regulations pursuant to the Parking Space Levy Act, 1992 as liable to the imposition of a levy on off street parking spaces. 4 The Applicant was represented by Mr G Clark and Mr Clark provided to the Tribunal correspondence between the Applicant and the Office of State Revenue together with submissions on behalf of the Applicant. 5 The Applicant's representative noted that the requirement of the Applicant to pay the levy was not drawn to the attention of the Applicant, notwithstanding that the Applicant is a payer of land tax. The correspondence discloses that the Applicant requested that any penalties or interest payable be remitted and further requested that payment of the levy be deferred until 1 January 2002. The reply correspondence from the Office of State Revenue to the representative of the Applicant indicated on 12 March 2002 that all interest and penalty tax imposed on the assessment directed to the Applicant had been remitted. This letter dated 12 March 2002 further noted that the request by the Applicant that the charge be "waived" until 1 January 2002 had been disallowed. 6 Before the Tribunal, the Applicant's representative requested that the levy not be raised in respect of the two car parking spaces until after 1 January 2002. 7 The Applicant's representative noted in correspondence that the property was leased and that the review of the rent had recently been completed and that the rent would not again be reviewed until January 2003. 8 The Applicant's representative further noted and submitted that Section 101 of the Taxation Administration Act, 1996 enabled a Tribunal to vary a decision which had been made by either confirming or revoking the assessment or make an assessment other than that which had been made. 9 The representative of the Commissioner drew attention to the provisions of the Parking Space Levy Act, 1992 requiring that an owner pay a levy to the Commissioner, in advance, for the financial year on 1 September of that year. He further submitted that Section 3A of this Act requires that the Act be read together with the Taxation Administration Act, 1996. The representative of the Commissioner submitted that the Commissioner is not in a position to waive the levy as he is required to adhere to the provisions in the Parking Space Levy Act, 1992, the Parking Space Levy Amendment Act, 2000 and the Taxation and Administration Act, 1996. 10 In this present situation, the Applicant becomes liable pursuant to the provisions of the Parking Space Levy Act for the payment of a levy in respect of two spaces for the years 2000 and 2001 assessed as and for 1 September 2000 and 1 September 2001 being in the amount of $1,600.00 in total. 11 The provisions of the Parking Space Levy Act, 1992 when amended by the amending act assented to on 6 June 2000 and commencing on 1 July 2000 was subject to some advertising in an attempt to draw the imposition of this levy to the attention of parties who may have been liable. The Commissioner had attempted to draw this to the attention of parties that may be liable and advised the Applicant that there were some parties that "were not able to be contacted". This appears to be a reference to not being able to contact those parties directly. 12 Following objection from the Applicant to the Commissioner, all fines and interest were waived and the bare parking levy was required to be paid. 13 It is clear that the short period of introduction of the extension of the parking levy to the area in which these parking spaces are located caused some difficulty to the Commissioner in informing all parties who may have been liable as a result of the extension of the area affected. The publishing of information in a wider read newspaper other than the newspaper circulated in the particular area where the land is located would have clearly been desirable although it is doubtful bearing in mind the material in the correspondence from the Applicant's representative that this would have in fact reached the knowledge of the Applicant's representative. 14 It is clear from the submissions made that the Applicant would have complied with any notification requiring a levy to be assessed on the two car parking spaces and would have, in the event that the levy had been drawn to the Applicant's representative prior to the renegotiation of rental of the lease, would have attempted to pass that levy on to the tenant who is leasing the car parking spaces. 15 It is unfortunate that the Applicant's representative had not become aware of the extension of the car parking levy to the two car parking spaces until such time as a questionnaire forwarded by the Commissioner of the Applicant drew it to the Applicant's attention. It is clear that the Applicant would have, if it had known, accepted liability for the parking space levy and would have absorbed the payment within the proposed rental to the tenant. 16 The Tribunal may make a different assessment to that made by the Commissioner in accordance with the Taxation Administration Act, 1996. However, in this particular matter, where the levy had been in existence since 1 July 2000 and the assessment of that levy was subject to the ownership of the parking spaces being brought to the attention of the Commissioner separately to any other information, that the imposition of the levy is in accordance with the Act and that the Commissioner has appropriately waived any interest or penalty in relation to payment of the parking space levy. 17 Having considered the submissions by the Applicant and those by the Representative of the Commissioner and having considered the relevant legislation, in particular, the Parking Space Levy Act, 1992, the amendment of the Parking Space Levy Act made on 1 July 2000 and the Taxation Administration Act, 1996, particularly Section 101, and noting that the Applicant had not been aware that the levy was payable in respect of the two car parking spaces I make the following order: The imposition of the parking space levy is affirmed at $1,600.00.