Advance Pallets Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 128

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Advance Pallets Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 128 Hearing dates: 25 November 2016 Date of orders: 26 April 2017 Decision date: 26 April 2017 Before: A R Boxall, Senior Member Decision: Confirm the decision under review Catchwords: Payroll tax – interest for late payment – remission of interest – penalty tax – remission of penalty tax – circumstances beyond the taxpayer's control Legislation Cited: Civil and Administrative Tribunal Act 2013, section 41 Payroll Tax Act 2007, sections 21, 22, 25, 26, 27, 86, 87 Taxation Administration Act 1996, sections 96, 100 Cases Cited: Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19 Commissioner of ACT Revenue v G Kalsbeek Pty Ltd [2015] ACAT 90 Levitch Design Associates Pty Ltd atf Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215 Texts Cited: Revenue Ruling No PTA 036 version 2 Category: Principal judgment Parties: Applicant: Advance Pallets Pty Ltd Respondent: Chief Commissioner of State Revenue Representation: Counsel: A Rider, (Respondent)

J Rutkowski, (Agent for the Applicant) Solicitors:Crown Solicitor's Office (Respondent) File Number(s): 1610186

reasons for decision

Introduction 1. This review is undertaken in response to an application made by the Applicant on 22 March 2016 under section 96 of the Taxation Administration Act 1996. The Applicant asks the Tribunal to review the Chief Commissioner of State Revenue's (for convenience, the Commissioner) determination dated 17 February 2015, disallowing in part an objection made by the Applicant to an assessment of payroll tax, penalty tax and interest made by the Commissioner. 2. In brief, the history of the matter is as follows: 1. The Respondent issued payroll tax assessments dated 8 July 2014 in respect of each of the financial years 1 July 2010 to 30 June 2011, 1 July 2011 to 30 June 2012 and 1 July 2012 to 30 June 2013. 2. The Applicants lodged an objection dated 27 August 2014 to those assessments. 3. The Respondent wrote to the Applicant's then solicitors on 31 October 2014 stating that the objection was disallowed, but subsequently, for reasons which are not readily apparent, issued a further letter on 17 February 2015 in which: 1. he allowed the Applicant's objection in respect of the financial year 1 July 2011 to 30 June 2012, and issued an assessment that no payroll tax, penalty tax or interest was payable in respect of that financial year; 2. he disallowed the Applicant's objection to the assessment of payroll tax for the financial years 1 July 2010 to 30 June 2011 and 1 July 2012 to 30 June 2013; and 3. he disallowed the Applicant's objection to the imposition of penalty tax and interest in respect of unpaid payroll tax for the financial years 1 July 2010 to 30 June 2011 and 1 July 2012 to 30 June 2013. 1. Whatever the reason for this course of events, both the Applicant and the Respondent appear to accept that the operative decision was that communicated in the Respondent's letter of 17 February 2015, and to have proceeded at all times on that basis. 2. On 22 March 2016, some 11 months after the expiry of the statutory period for doing so, the Applicants applied under section 96 of the Taxation Administration Act 1996 for the review by the Tribunal of the Respondent's determination disallowing that objection. 3. The time for filing the application was extended retrospectively by the Tribunal to 23 March 2016 at an interlocutory hearing on 3 May 2016, pursuant to section 41 of the Civil and Administrative Tribunal Act 2013. 1. The application for review is limited to Respondent's decision to impose penalty tax and interest in respect of the financial years 1 July 2010 to 30 June 2011 and 1 July 2012 to 30 June 2013. In its application, the Applicant states that: "….We, Advance Pallets Pty Limited, have incurred additional payroll tax which we are happy to pay; however, wish [sic] to complain about the penalties applied in this situation based on the belief that we have met our previous obligations". Moreover, both the Applicant and the Respondent conducted the review hearing on this basis, namely that: 1. there is no dispute between the parties that the Applicant was liable to pay payroll tax in respect of the financial years 1 July 2010 to 30 June 2011 and 1 July 2012 to 30 June 2013; and 2. the only dispute is as to whether the Respondent properly imposed penalty tax and interest in respect of the Applicant's failure to register and lodge returns under sections 86 and 87 respectively of the Payroll Tax Act 2007, and to make timely payment of payroll tax, in respect of those financial years. 1. This review is conducted under the Taxation Administration Act 1996. Section 100(3) of that Act provides that in an application for review such as this "The applicant has the onus of proving the applicant's case ….". That is to say, the Respondent's decision must stand unless the Applicant can demonstrate, on the balance of probabilities, the deficiencies in it which the Applicant alleges. A differently constituted tribunal's reasons in Levitch Design Associates Pty Ltd atf Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215, at [27], outline a method of approach to this exercise, and these reasons respectfully adopt the methodology which they propose.