Chief Commissioner of State Revenue -v- Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19

Appeal Panel - Internal

CITATION: Chief Commissioner of State Revenue -v- Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19 revised - 30/06/2004 APPELLANT PARTIES: Chief Commissioner of State Revenue RESPONDENTS Incise Technologies Pty Ltd & Incise Sales Pty Ltd FILE NUMBER: 039082 HEARING DATES: 18/03/2004 SUBMISSIONS CLOSED: 03/18/2004 DATE OF DECISION: 05/26/2004

Incise Technologies Pty Ltd & Anor v Chief Commissioner of State Revenue [2003] NSWADT246 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Seve J - Judicial Member; Bennett C - Non Judicial Member CATCHWORDS: leave to extend to the merits - penalty - statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 026045 DATE OF DECISION UNDER APPEAL: 11/17/2003 Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 LEGISLATION CITED : Pay-roll Tax Act 1971 Taxation (Administration) Act 1987 (ACT) Taxation Administration Act 1996 Attorney General ex rel. Franklins Stores Pty Ltd v Lizelle Pty Ltd & ors [1977] 2 NSWLR 955 Australian Coal and Shale Employees' Federation v Commonwealth (1956) 94 CLR 621 Commissioner of Police v Reid [2000] TASSC 181 Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 CASES CITED: Government Insurance Office of New South Wales v Ivanoff (1991) 22 NSWLR 368 Hession v Century 21 South Pacific (1992) 28 NSWLR 120 House v The King (1936) 55 CLR 499 Incise Technologies Pty Ltd & Incise Sales Pty Ltd v Commissioner of State Revenue [2003] NSWADT 246 Montreal Street Rwy Co v Normandin [1917] AC 170 at 175 (PC) Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 Re Inglis and anor v Commissioner of Taxation (1993) 27 ATR 1050 APPELLANT REPRESENTATION: I Mescher, barrister RESPONDENTS A Galazzo, agent ORDERS: 1. Appeal allowed in part; 2. The Tribunal's decision to reduce the penalty tax by 80% to an amount of 5% under s28 of the Taxation Administration Act is affirmed; 3. Tribunal's decision to relieve applicant from payment of premium rate component of interest set aside; 4. Appeal extended to merits in respect of the Commissioner's decision not to waive the premium rate component of interest; 5. Appeal to proceed in accordance with directions given in para [82].