Delmege v Chief Commissioner of State Revenue (No 2) [2009] NSWSC 1390

New South Wales Supreme Court

CITATION : Delmege v Chief Commissioner of State Revenue (No 2) [2009] NSWSC 1390

HEARING DATE(S) : 11 December 2009 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 11 December 2009

DECISION : Appropriate for Chief Commissioner to act under the Taxation Administration Act 1996, s 72(1).

CATCHWORDS : TAXES AND DUTIES - Land Tax - Chief Commissioner seeks approval to require persons to provide him with information or to produce documents under the Taxation Administration Act 1996, s 72(1) - objection decision in relation to 2004-2006 land tax years before court - assessments for those years further amended and amended assessments issued for 2002 and 2003 land tax years all relying on the Land Tax Management Act 1956, s 10T(2)(c) that denies the principal place of residence exemption unless while the owner is the owner the land is not used or occupied except as his or her principal place of residence - notice of objection to all amended assessments before chief commissioner for decision

LEGISLATION CITED : Taxation Administration Act 1996 Land Tax Management Act 1956

CATEGORY : Procedural and other rulings

Maxwell Philip Delmege (First Plaintiff) PARTIES : Narelle Patricia Delmege (Second Plaintiff) Chief Commissioner of State Revenue (Defendant)

FILE NUMBER(S) : SC 3603/08

COUNSEL : I Young (Defendant)

SOLICITORS : Evangelos Patakas & Associates (Plaintiffs) Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

FRIDAY 11 DECEMBER 2009

3603/08 MAXWELL PHILIP DELMEGE & ANOR v CHIEF COMMISSIONER OF STATE REVENUE (NO 2) EX TEMPORE JUDGMENT 1 I have before me an application by the Chief Commissioner of State Revenue for approval to act under the Taxation Administration Act 1996, s 72(1). It provides as follows: "The Chief Commissioner may require a person, by written notice, to do any one or more of the following: (a) to provide to the Chief Commissioner, (either orally or in writing) information that is described in the notice, (b) to attend and give evidence before the Chief Commissioner or an authorised officer, (c) to produce to the Chief Commissioner an instrument or record in the person's custody or control that is described in the notice." 2 The Chief Commissioner does not intend to require the persons to whom he proposes to address such a requirement to attend to give evidence before him. 3 The reason the Chief Commissioner has appeared before the court to seek its approval to act under that provision is because an adverse decision on a notice of objection with respect to the 2004 to 2006 land tax years is before the court and it might be said that to so act at this stage constitutes contempt. 4 Since the matter was last before the court, the Chief Commissioner has issued amended assessments with respect to those years and has issued amended assessments with respect to the 2002 and 2003 land tax years in all of which he raises the Land Tax Management Act 1956, s 10T(2)(c). It provides that the principal place of residence exemption is not available unless, while the owner is the owner, the land is not used or occupied except as his or her principal place of residence. 5 In opposition to the application, it is pointed out that much of the information which should have given the Chief Commissioner the basis for seeking the information at an earlier stage was available to him and the current application is not timely. The Chief Commissioner was aware of occupation of the premises by persons other than Mr and Mrs Delmege. 6 The taxpayers are content if, instead of this procedure, subpoenas are issued when the matter is before the court for the production of documents to the court, for the giving of evidence before the court, or for both. Otherwise, it is said, the Chief Commissioner may rely upon information unknown to Mr and Mrs Delmege or divulged to them at the last moment. 7 It seems to me that concern will not arise if the Chief Commissioner acts under the Taxation Administration Act 1996, s 72(1) because, if any information obtained under that provision is used by him to reject the current objection that the taxpayers have lodged with respect to all the amended assessments, they will be apprised of the use of that information in the making of the objection decision. 8 It seems to me that it is appropriate for the Chief Commissioner to exercise power under the Taxation Administration Act 1996, s 72(1).