Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 Hearing dates: 26 June and 12 August 2013 Decision date: 06 September 2013 Jurisdiction: Appeal Panel - Internal Before: RL Seiden, Deputy President J Block, Judicial Member C Bennett, Non Judicial Member Decision: The appeal is allowed. The Decision is set aside and remitted to the Tribunal as originally constituted, to be determined in accordance with these Reasons. Catchwords: Payroll tax - grouping provisions - de-grouping of company - discretion of Chief Commissioner to de-group - nature of discretion under Payroll Tax Act 2007 (NSW) s 79 - independent and not connected - ability to influence management - ability to control - inter-company loans - carrying on of business - statutory interpretation - question of law or fact - task of Appeal Panel where error of law Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Pay-roll Tax Act 1971 (NSW) Pay-roll Tax Act 1971 (Vic) Payroll Tax Act 2007 (NSW) Taxation Administration Act 1996 (NSW) Cases Cited: Aktiebolaget Hassle v Alphapharm Pty Limited (2002) 212 CLR 411 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 AT v Commissioner of Police, NSW [2010] NSWCA 131 B&L Linings Pty Limited v Chief Commissioner of State Revenue [2008] NSWCA 187 Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner of Taxation v Crown Insurance Services Limited (2012) 207 FCR 247 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 GTS Industries Pty Limited v Commissioner of State Revenue [2004] VCAT 21 Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP 3 Lombard Farms Pty Ltd v The Chief Commissioner of State Revenue [2013] NSWADT 17 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 Network Clothing Company v Commissioner of State Revenue [2007] VCAT 2492 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 R v Young (1999) 46 NSWLR 681 Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Triline Homes Pty Ltd v Commissioner of State Revenue (Vic) (1994) unreported AAT Vic 3.3.95 Category: Principal judgment Parties: Lombard Farms Pty Ltd (Appellant) Chief Commissioner of State Revenue (Respondent) Representation: A Tsekouras (Appellant) I Latham (Respondent) Barraket Stanton Lawyers (Appellant) Crown Solicitor's Office (Respondent) File Number(s): 139005 Decision under appeal Citation: [2013] NSWADT 17 Date of Decision: 2013-01-24 00:00:00 Before: A Verick, Judicial Member File Number(s): 126032