Simons v Chief Commissioner of State Revenue [2005] NSWADT 166

CITATION: Simons v Chief Commissioner of State Revenue [2005] NSWADT 166 DIVISION: Revenue Division APPLICANT PARTIES: Jane Simons RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 056015 HEARING DATES: 31/05/2005 SUBMISSIONS CLOSED: 05/31/2005 DATE OF DECISION: 07/28/2005

BEFORE: Hole M - Judicial Member APPLICATION: Parking space levy - assessment of - Taxation Administration Act - liability to pay interest MATTER FOR DECISION: Principal matter LEGISLATION CITED : Parking Space Levy Act 1992 Taxation Administration Act 1996 CASES CITED: W Grants Furnishings P/L v Chief Commissioner of State Revenue [2002] NSWADT 108 REPRESENTATION: In person T Tacadena, solicitor ORDERS: The parking space levy is affirmed and all interest should be refunded to the Applicant.

REASONS FOR DECISION Introduction 1 The Applicant has applied for a review of the decision by the Chief Commissioner of State Revenue's assessments which relate to three parking spaces owned by the Applicant at 251 Oxford Street, Bondi Junction. The spaces relate to office suites in a mixed business/residential building and are separate lots in a Strata Plan. 2 A parking space levy questionnaire was forwarded to the Applicant on 11 August 2004 by the Chief Commissioner of State Revenue with no response being received by him by the due date. On 26 October 2004 the Chief Commissioner of State Revenue, based on the information available subsequently issued assessments retrospectively to 1 July 2000 in respect of the three parking spaces at 251 Oxford Street, Bondi Junction. 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 initial assessment by the Chief Commissioner of State Revenue included penalty tax and market rate interest on the levies. Following objections from the Applicant to the Chief Commissioner of State Revenue the penalty tax in the sum of $911.32 was refunded. The Chief Commissioner of State Revenue agreed that as the spaces are in the Category 2 area some persons within those areas may not have heard of the imposition of the parking space levy on their properties. This referred to the second extension of parking space levies to parking spaces. Background 5 On receipt of the parking levy questionnaire the Applicant gave it to her agent Philip Simons to complete and Mr Simons informed her that he had returned the questionnaire to the Chief Commissioner of State Revenue prior to the appointed deadline. Mr Simons appeared as her agent at the hearing. 6 The Applicant maintains that she was not aware of a liability regarding the parking levies and it seems clear that the Applicant would have, if she had known, accepted liability for the parking levy and would have absorbed the payment within the proposed rental to the tenant(s). The Applicant paid the money owing including accrued penalty interest and market rate interest on 9 December 2004. 7 The provision of the Parking Space Levy Act 1992 was amended by the amending Act and was assented to on 6 June 2000, commencing on 1 July 2000. There was some advertising in an attempt to draw the imposition of this levy to the attention of parties who may have been liable including letterbox drops in the areas affected and advertisements in papers. 8 The Applicant maintains that the advertising was not extensive enough to bring to her attention the fact that a levy had been introduced in July 2000 and that the Chief Commissioner of State Revenue should not have waited four years before notifying her and issuing the penalty. Over the period that she has been liable she has been attending to her various duties which include her considerable work as a physiotherapist and family obligations as well as being involved in family law proceedings with her former husband. She does not live in the area and so did not receive the letterbox drops and did not read about it in the papers. 9 The facts in this case are similar to those considered in W Grants Furnishings P/L v Chief Commissioner of State Revenue [2002] NSWADT 108 (W Grants Furnishings P/L). 10 As with W Grants Furnishings P/L the Applicant would have accepted the liability for the parking space levy if she had been notified or become aware of it at the earlier date. Submissions 11 The representative of the Applicant submitted that the Applicant had made a full disclosure when made aware of the parking space levy and had immediately paid the assessed amount covering four years. The Penalty Tax was refunded and the Premium Interest remitted. The Applicant had not been culpable and therefore the Market Interest should also be remitted. The Applicant has diligently complied with all requirements that she was aware of. 12 A further submission was made that the tax was obscure and as the Applicant did not read papers and would not have received the letterbox drops then she should not be required to pay the Market Interest and that the circumstances of W Grants Furnishings P/L were almost identical. 13 The representative of the Applicant also submitted that she was unable to recover the parking space levy from the tenants retrospectively. 14 The representative of the Respondent submitted that the Market Rate Interest should apply. That the non-receipt of the parking space levy deprived the Government of the use of the money and the Market Rate was applied to redress this. 15 The Chief Commissioner of State Revenue appropriately refunded the penalty interest on the Applicant's levy. 16 I find that having considered the submissions by the Applicant and those by the Representative of the Chief Commissioner of State Revenue, 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 circumstances in W Grants Furnishings P/L were almost identical: The parking space levy is affirmed and all interest should be refunded to the Applicant.