A J Holdings (NSW) Pty Limited & Cumedo Pty Limited v Chief Commissioner of State Revenue [2013] NSWADT 156

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: A J Holdings (NSW) Pty Limited & Cumedo Pty Limited v Chief Commissioner of State Revenue [2013] NSWADT 156 Hearing dates: 3 May 2013 Decision date: 09 July 2013 Jurisdiction: Revenue Division Before: R J Perrignon, Judicial Member Decision: 1) The decision of the Chief Commissioner made on 1 May 2012, that Cumedo Pty Limited is liable to pay the quarterly instalment of gaming machine tax in respect of the period 1 October 2011 to 31 December 2011, is affirmed. 2) The decision of the Chief Commissioner made on 4 May 2012, that A J Holdings Pty Limited is liable to pay the quarterly instalment of gaming machine tax in respect of the period 1 October 2011 to 31 December 2011, is affirmed. Catchwords: Gaming machine tax; when payable; meaning of "due" in section 7(4) of the Gaming Machine Tax Act 2001; Legislation Cited: Gaming Machine Tax Act 2001 Taxation Administration Act 1996 Liquor Act 2007 Cases Cited: Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 Papacostas v Chief Commissioner of State Revenue [2006] NSWADT 57 Category: Principal judgment Parties: A J Holdings (NSW) Pty Limited & Cumedo Pty Limited (Applicants) Chief Commissioner of State Revenue (Respondent) Representation: Counsel L Sanderson (Respondent) Shanahan Tudhope Lawyers (Applicants) Crown Solicitors Office (Respondent) File Number(s): 126111

Reasons for decision 1The applicants seek orders setting aside decisions made by the Chief Commissioner on 1 and 4 May 2012, to the effect that they are liable for gaming machine tax for the period 1 October 2011 to 31 December 2011 ('the Quarterly Instalment'). 2The facts are not in dispute. For many years, the applicants have owned a hotel at Lismore called "Tommy's Tavern". In 2007 they leased it to Buckoe Pty Limited, which operated the hotel with its licensee, a Mr Parrott. In November 2011, a dispute arose between landlords and tenant as to the payment of rent. On 30 December 2011 the locks were changed by the landlords, and formal demand was made for arrears in rent. 3On 4 January 2012, the applicants began to trade from the premises. On 16 January 2012, an invoice for the Quarterly Instalment was issued by the CMS licensee, addressed to Mr Parrott at the hotel. On 18 January 2012, the Chief Commissioner of State Revenue approved payment of the invoice by three monthly instalments in January, February and March 2012. 4On 23 January 2012, the Chief Commissioner attempted to appropriate the Quarterly Instalment, or so much of it as was then payable in accordance with the instalment arrangement, from a nominated bank account. The attempted appropriation was unsuccessful, presumably because the account was not in funds. 5On 24 January 2012, the applicants requested the Casino, Liquor and Gaming Control Authority to transfer ownership of the hotel business to A J Holdings Pty Limited, and the licence to its director, Mr Sidgreaves, pursuant to section 61 of the Liquor Act 2007. That application was granted, and the licence transferred, on 30 January 2012. It is common ground that, from 4 January 2012 (or perhaps from 2 January 2012, though nothing turns on the difference) to 29 January 2012, the applicants were deemed to be the licensees of the hotel by operation of section 61(3) of the Liquor Act 2007. 6On or about 20 January 2012, the Office of State Revenue informed Mr Sidgreaves that he was liable to pay the tax, as he had been the licensee when the tax became payable on 23 January 2012. He objected, and his objection was allowed on 20 April 2012.