Sidgreaves v Commissioner of State Revenue [2017] NSWCATAD 93

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sidgreaves v Commissioner of State Revenue [2017] NSWCATAD 93 Hearing dates: 2 & 3 March 2017 Date of orders: 29 March 2017 Decision date: 29 March 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Brian Tamberlin QC, Principal Member Decision: The Application for Review is dismissed Catchwords: TAXES AND DUTIES-gaming machine tax –hotel premises- application for refund –whether Applicant was the licensee in the period in respect of which refund is claimed. Legislation Cited: Taxation Administration Act (1999) Liquor Act (2007) Gaming Machine Tax Act (2001) Cases Cited: Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81 at [24] [27] Category: Principal judgment Parties: Anthony John Sidgreaves (Applicant) Commissioner of State Revenue (Respondent) Representation: Counsel: In Person (Applicant) A Gerard (Respondent) File Number(s): 2016/00378286 Publication restriction: Nil

Reasons for DEcision

Introduction 1. When the hearing of this matter commenced before the Tribunal the Applicant stated that he had not been served with any evidence or submissions by the Respondent. He said that he wished to proceed notwithstanding the non-service. The Respondent tendered a detailed affidavit by the solicitor acting in this matter on behalf of the respondent as to the steps taken to effect service. As the evidence proposed to be tendered by the Respondent was very substantial the Tribunal adjourned the proceedings to enable the Applicant to examine the material and make an informed decision as to whether he still wished to proceed. After having been given this opportunity he said that he wished to proceed. Accordingly, the matter proceeded with the Applicant presenting his case and referring to the evidence on which he relied. He was cross examined by counsel for the Respondent and he cross examined Mr Peter Wicks who was called for the Respondent and who gave detailed evidence as to the contents of records and communications relevant to the Licence in question. 2. The Applicant seeks review under s 96 of the Taxation Administration Act 1996 (the TAA) of a decision made by the Respondent on 17 August 2016 refusing an application by the applicant for a refund of all gaming machine tax collected by the respondent for the period from 1 January 2012 to 31 December 2015 in respect of the operation of the hotel known as "Tommy's Tavern" and hotel licence number LIQH400114540 (the Licence). 3. On or about 29 June 2016 the Applicant made the application for a refund which was the subject of the refund refusal decision as follows: … I seek an immediate refund for all gaming machine tax collected by the Chief Commissioner of State Revenue for assessment periods 1 January 2012 to 31 December 2015 as it has been established by His Honour Judge Scotting that neither AJ Holdings (NSW) Pty Ltd or the author was the holder of the relevant hoteliers' licence when instalments of gaming machine tax become due. 1. In the Refund Refusal Decision, the Respondent stated: …Information available establishes that AJ Holdings NSW Pty Ltd was the business owner and Anthony Sidgreaves was the Licensee from 30 January 2012 to 25 January 2016. Under section 6 of the Gaming Machine Tax Act 2001 you were liable to pay GMT during the period. 1. On 5 October 2016 the Applicant lodged an objection to that decision which was refused on two grounds: 1. documents in the possession of the Respondent identified that the Applicant was the holder of the Licence between 30 January 2012 and 24 January 2016: Tommy's Tavern was the hotel premises to which the Licence related...; and 2. in the alternative … the evidence establishes that the Applicant did not in fact pay the relevant gaming machine tax but rather the gaming machine tax was paid by AJS Hotel Management Pty Ltd and TT Hotel Management Pty Ltd and accordingly no refund of gaming machine tax could be paid by the Applicant to the Respondent. 1. The Applicant then filed an application for review in this Tribunal. 2. The principal issues on the review application are whether: 1. the Applicant can establish on the balance of probabilities that he was not the holder of the Licence during the relevant period; 2. the Applicant can establish an entitlement to a refund where the tax was not paid by him. 1. The hotel known as Tommy's Tavern is located at 75 Molesworth Street, Lismore (the Premises). It is the hotel associated with the Licence. 2. The Premises are owned by AJ Holdings NSW Pty Ltd and Cumedo Pty Ltd as tenants in common. AJ Holdings NSW is a company of which the Applicant was the sole director at all relevant times. Cumedo has two appointed directors being the Applicant and Patricia Sidgreaves. 3. On 5 August 2011, Mr Parrot became the licensee of Tommy's Tavern when a company known as Buckoe Pty Ltd associated with Mr Parrot commenced a commercial lease to operate the hotel. Immediately prior to that the Applicant was the holder of the Licence. 4. On or about 2 January 2012 Mr Parrot was allegedly evicted by the "owner" of the hotel premises. 5. On 23 January 2012 the Applicant completed a Liquor Licence Transfer Application Form in respect of the hotel (the Application) which was received by the Independent Liquor Gaming Authority (ILGA) on 24 January 2012. 6. This Application was completed by the Applicant and two addresses were nominated namely; an email address and a postal address. The Applicant identified himself as the Applicant and the proposed Licensee. He also signed the Application as consenting to the transfer of the Licence from the existing licensee. 7. Documents and records in evidence indicate that the Application was provisionally approved by ILGA on 30 January 2012. 8. On 17 April 2012 ILGA wrote to the Applicant at his nominated postal address stating that the Application had been provisionally approved. Enclosed with that letter was the Licence document issued to the Applicant. This document was in the standard approved form for all hotel licenses issued by ILGA. The Licence document enclosed with the letter of 17 April 2012 recorded that the licensee was the Applicant. It also referred to the address of the premises and to his email address as given by the Applicant in the Application. 9. On 4 May 2012 the Administration Officer at the Office or Liquor, Gaming and Racing sent an email to the email address nominated by the Applicant in the Application enclosing a copy of the hotel licence approval letter of 17 April 2012 together with the Licence. 10. On 28 May 2013, as a consequence of new conditions being imposed on the Licence as a result of a disturbance complaint, the Office of Liquor, Gaming and Racing sent an email to the email address nominated in the Application Form enclosing the Licence as amended which showed the Applicant as licensee of the hotel. 11. The Applicant denies receiving any of these documents. 12. In a number of subsequent requests applications, documents and correspondence between 23 September 2013 in evidence , to the end of the relevant period, the Applicant signed documents indicating that he was the licensee of Tommy's Tavern. These documents included a Transfer Application Form completed by the Applicant on 20 September 2013 in respect of Tommy's Tavern and the Licence and this was received by ILGA on that date; a request in respect of the payment of gaming tax; an eviction notice dated 16 July 2014; a further transfer request made on 13 August 2014 and a further transfer request of 6 January 2016 concerning the transfer of the Licence to Leslie Birdsall. The transfer application of 16 July 2014 and that of 13 August 2014 were not granted. 13. On 11 May 2016 a decision was made by Judge Scotting in Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81 allowing an appeal by the Applicant in relation to a conviction under the Liquor Act 2007 in respect of Tommy's Tavern. An issue in that case was whether the Applicant was a Licensee of the hotel on 30 August 2012.This is the decision referred to in [3] above cited by the Applicant in his review application. 14. In his reasons for judgement His Honour said at paragraphs [24] and [27]: The transfer of licence application to have the licence put in the appellant's name was never approved, even provisionally, by the Authority. It was an application pursuant to section 60 Liquor Act 2007. Put simply, if it was not approved it could not have effected a transfer of the licence into the appellant's name. For the purposes of my decision, I cannot establish the identity of the holder of the hotel licence as at 30 August 2012. I cannot be satisfied beyond reasonable doubt that it was the appellant because there was no evidence that the application he submitted to the Authority on 24 January 2012 was approved. The appellant was not the owner of the premises or the business owner and was therefore not able to be deemed licensee pursuant to Section 61 Liquor Act 2007. (Emphasis added)