Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 Hearing dates: 26 April 2012 Decision date: 21 June 2012 Before: Meagher JA at [1]; Barrett JA at [67]; Sackville AJA at [68] Decision: (1) Time for filing the notice of contention be extended to 11 November 2011. (2) Appeal allowed in part. (3) Judgment and orders of Gzell J set aside. (4) In relation to the respondents' application for review of the appellant's determination made on 8 January 2008 disallowing the respondents' objection dated 27 September 2007 against assessments of payroll tax made by the appellant on 4 September 2007: (a) Order that the review of that determination in respect of the assessments of payroll tax for the period 1 July 2001 to 30 June 2003, and specifically the decision not to exercise the discretion under the former s 16H of the Pay-roll Tax Act 1971 in favour of the first and second named respondents for those periods, be remitted to the Equity Division of the Court for further hearing and determination in accordance with the reasons for judgment of this Court. (b) Otherwise order that the application for review of that determination in respect of the assessments of payroll tax made on 4 September 2007 and issued to the first to fifth named respondents for the periods 1 July 2003 to 30 June 2007 be dismissed. (5) Liberty to apply within 7 days of the date of this judgment in respect of the terms of these orders. (6) The parties to lodge and serve written submissions as to the orders that should be made in relation to the costs of the proceedings before Gzell J and this Court as follows: (a) Within 14 days of the date of this judgment, the appellant to lodge and serve submissions as to the orders that should be made; (b) The respondents to lodge and serve submissions in response within 10 days thereafter; The Court will determine what orders should be made as to costs on the basis of these submissions. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TAXATION - payroll tax - grouping provisions - exercise of power to exclude businesses from group - company providing secretarial, accounting, sales and marketing services to another business - whether employees of service provider performed solely or mainly in connection with the other business - whether agreement in relation to services one in respect of employment or performance of duties by service provider's employees - whether businesses carried on "substantially independently" of each other - Pay-roll Tax Act 1971 Legislation Cited: Interpretation Act 1987 Pay-roll Tax Act 1971 Pay-roll Tax Act 1971 (Vic) Taxation Administration Act 1996 Uniform Civil Procedure Rules 2005 Cases Cited: Affinity Health Ltd v Chief Commissioner of State Revenue (NSW) [2005] NSWSC 663; 205 ATC 4637 Avon Downs Pty Ltd v FCT [1949] HCA 26; 78 CLR 353 Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2010] NSWCA 326; 80 ATR 205 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Cody v JH Nelson Pty Ltd [1947] HCA 17; 74 CLR 629 Commissioner of Stamps v Garrett F Hunter Pty Ltd (1977) 69 SASR 275 Commissioner of State Revenue v Muir Electrical Co Pty Ltd [2003] VSCA 112; 8 VR 200 Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 House v The King [1936] HCA 40; 55 CLR 499 John French Pty Ltd v Commissioner of Pay-roll Tax (Qld) [1984] 1 Qd R 125 Mead Packaging (Aust) Pty Ltd v Commissioner of Pay-roll Tax (NSW) (1978) 8 ATR 477 Muir Electrical Co Pty Ltd v Commissioner of State Revenue [2001] VSCA 86; 4 VR 70 New South Wales Crime Commission v Vu [2009] NSWCA 349 Norbis v Norbis [1986] HCA 17; 161 CLR 513 Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; 241 CLR 320 Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; 180 CLR 322 Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2009] NSWSC 1007; 77 ATR 394 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; 85 ALJR 1183 Ward v Williams [1955] HCA 4; 92 CLR 496 Category: Principal judgment Parties: Chief Commissioner of State Revenue (Appellant) Tasty Chicks Pty Ltd (First Respondent) Angelo Transport Pty Ltd (Second Respondent) Souris Holdings Pty Ltd (Third Respondent) Minas Souris (Fourth Respondent Jenny Souris (Fifth Respondent) Representation: Counsel: Mr G C Lindsay SC, Mr I C Latham (Appellant) Mr C J Bevan, Ms A Tsekouras (Respondents) Solicitors: I V Knight, Crown Solicitor (Appellant) Legal Ease Lawyers (Respondents) File Number(s): CA 2008/277732 Decision under appeal Citation: Tasty Chicks Pty Ltd & Ors v Chief Commissioner of State Revenue [2009] NSWSC 1007 Date of Decision: 2009-09-25 00:00:00 Before: Gzell J File Number(s): SC 2008/1769