Smith v Chief Commissioner of State Revenue [2008] NSWADT 171

CITATION: Smith v Chief Commissioner of State Revenue [2008] NSWADT 171

DIVISION: Revenue Division

APPLICANT Rodney McDonald Smith PARTIES: RESPONDENT Chief Commissioner of State Revenue

FILE NUMBER: 086024

HEARING DATES: 1 May 2008

SUBMISSIONS CLOSED: 1 May 2008

DATE OF DECISION: 12 June 2008

BEFORE: Verick A - Judicial Member

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Preliminary matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Land Tax Management Act 1956 Taxation Administration Act 1996

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

APPLICANT In person REPRESENTATION: RESPONDENT H Al Hage, solicitor

ORDERS: The application is dismissed.

REASONS FOR DECISION 1 An application was lodged by the applicant at the Tribunal on 25 March 2008 seeking a review on the grounds that "90 days lapsed without resolution of matter". The applicant's reasons for the application were: "1) Review as to whether we were liable for Land Tax at all in the first place 2) Refund of Land Tax monies paid is requested". 2 The applicant previously made an application, which was dismissed by the Tribunal on the grounds that it did not have jurisdiction. The applicant stated in his current application that this was a "re-made application as previously lack of jurisdiction". 3 Reliance was placed by the applicant on two letters that he had sent to the Chief Commissioner. One on 20 March 2007 in which he objected to "the fact that funds were literally stolen from a NAB account associated with us recently and my complaints to your office have been ignored". 4 The other letter dated 16 August 2007 was a "NOTICE OF DEFAULT" and referred to his previous correspondence, in particular to his Notice of Objection letter dated 20 March 2007 and a letter dated 22 May 2007 which was a "Notice of Fault and Opportunity to Cure" to the Chief Commissioner. In his letter of the 16 August 2007 he stated that: "By your silence and non-response I consider this matter settled and you have agreed to all the points raised in the correspondence. Your account is in default. Accordingly, I demand immediate payment of $26,000 payable in government bonds, all putative accounts with your firm closed, and after the receipt of your payment the balances to be adjusted to show a balance of zero. Payment is overdue and should you fail to make payment within seven days of the date of this letter without a reasonable excuse, you agree without denial that a lien be perfected against the assets of OFFICE OF STATE REVENUE. Moreover your attention is drawn to the terms and conditions of your firm using my autograph copyright signature, name and Confidential Commercial Information you are holding and using without my consent as set out in my 22nd May, 2007 correspondence alluded to above. Is your silence a tacit agreement? If I do not hear from you within ten (10) days from the date of the letter the agreement stands as fact, and payment will be backdated to time specified in the above correspondence." 5 In the letter of 22 May 2007 the applicant questioned the corporate status of the Office of State Revenue and informed the Chief Commissioner that he and his wife did not wish to be his clients and sought the refund of $26,000 within seven business days. The applicant also wanted "all our personal identifying information to be removed from your records and that is an end to the matter". 6 It is understandable why the Chief Commissioner did not respond to these letters directly. The letters raised no issues for determination nor were the letters in response to any assessment or any other decision made by the Chief Commissioner. The funds "stolen" from the NAB bank account were in respect of outstanding land tax and collected by the Chief Commissioner pursuant to his powers under section 46 of the Land Tax Management Act 1956, which authorises the Chief Commissioner to recover outstanding land tax payable in respect of land subject to any mortgage from the mortgagee, where the taxpayer makes a default in payment. 7 Section 91 of the Taxation Administration Act 1996 ("TA Act"), requires the Chief Commissioner to determine an objection within 90 days after it is received and failure to make a determination within 90-day period is a ground for review by the Administrative Decisions Tribunal under section 96 of the TA Act. 8 Objections can only be lodged under section 86 of the TA Act by a taxpayer who is dissatisfied with: "(a) an assessment that is shown in a notice of assessment served on the taxpayer, or (b) any other decision of the Chief Commissioner under a taxation law". 9 The meaning of the term "decision" is not defined in the TA Act. The TA Act adopts the meaning of the term as set out in section 6 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). Section 6 of the ADT Act provides for an extended general meaning of "decision" as follows: "A decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing." 10 But for purposes of the ADT Act, jurisdiction to review a reviewable decision made under an enactment, is by section 6(2) of the ADT Act confined to decisions "made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment". The Tribunal will accordingly have jurisdiction to review a decision only if "an ultimate or operative determination and not mere expression of opinion or statement which can of itself have no effect on a person" is made by an administrator. (See: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 335-338). 11 The letter of 20 March 2007 was not an objection against an assessment or against a decision made by the Chief Commissioner under a taxation law. This matter is no more than a frivolous application made by the applicant without proper advice. It raises no issues for determination by the Tribunal and accordingly no application for review was properly before the Tribunal. Orders The application is dismissed.