Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sterling House 88 v Chief Commissioner of State Revenue [2017] NSWCATAD 279 Hearing dates: 8 June 2017 Date of orders: 15 September 2017 Decision date: 15 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: R L Hamilton SC, Senior Member Decision: The assessments of the Chief Commissioner of State Revenue are affirmed Catchwords: Taxes and Duties- Parking Space Levy- exemption Legislation Cited: Parking Space Levy Act 2009; Parking Space Levy Regulation 2009 Taxation Administration Act 1996 Texts Cited: Macquarie Dictionary Category: Principal judgment Parties: Sterling House 88 Pty Ltd (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: Mr Koops (Applicant) Mr Gerrard (Respondent) Solicitors: Madison Marcus (Applicant) Crown Solicitors Office (Respondent) File Number(s): 2016/378249 Publication restriction: Nil DECISION 1. This is a matter which comes before the Tribunal on an objection against the imposition of parking space levy under the Parking Space Levy Act 2009 (PSLA). The levy years in question are 1 July 2010 – 30 June 2015. 2. There were 5 Notices of Assessment (Notices) issued. The taxpayer objected against the assessments on 1 December 2014 and the objection was disallowed on 5 January 2015. The appeal to the Tribunal was lodged on 4 August 2016. Leave was granted to apply out of time without opposition from the Chief Commissioner. 3. The Tribunal has jurisdiction pursuant to section 96 of the Taxation Administration Act 1997 (TAA). The PSLA is a "taxation law" by s.4 TAA. Section 5 PSLA requires it to be read with the TAA. 4. The facts on which the assessments were raised are not in dispute. The taxpayer is the owner of the premises (a shopping centre) at George St Parramatta (premises). On 16 April 2014 at around 10.55am, Office of State Revenue (OSR) Officers carried out a "scoping exercise" of the premises. The focus of the 16 April 2014 visit was the parking area/loading area or zone at the rear of the premises: 1. The Officers stood opposite the zone and observed the Parking/Loading Zone for approximately 10 minutes; 2. They observed a skip bin inside the Parking/Loading Zone under the awning at the back of the building and approximately 10 vehicles parked directly behind the skip bin with some vehicles "parking in" other vehicles inside the Parking/Loading Zone in 3 columns , each column containing 3 to 4 vehicles; 3. the Officers took photographs of the Parking/Loading Zone; 4. one car depicted in the 16 April Photos is a white Toyota with licence plate "Y** 7**"; 5. another car depicted in the 16 April Photos is a silver Toyota with licence plate "B** 6**"; 6. throughout the whole of the 16 April 2014 visit the Officers gave evidence that they did not see any persons at all in the Parking/Loading Zone, and in particular did not see any person loading or unloading anything or anyone from any of the cars parked in the Parking/Loading Zone and no person attended any of the vehicles. 1. On 13 October 2014, OSR Officers conducted a field audit of the Parking/Loading Zone at the premises. That field audit involved two separate visits on the same day to the Parking/Loading Zone. 2. The Officers first arrived at the premises, at approximately 8.40am The visit lasted approximately 10 to 15 minutes, during which time the OSR Officers generally observed the Parking/Loading Zone from about 5 metres away. The Officers' evidence was that they saw 10 vehicles parked in the Parking/Loading Zone in three basic rows with 3 or 4 vehicles to each row: 1. they did not see a single person in the Parking/Loading Zone at any time and in particular did not see any persons loading or unloading goods or passengers from any of the cars parked in the Parking/Loading Zone; 2. they did not see any cars arrive or depart the Parking/Loading Zone or any person attend any of the cars; 3. they observed that the three outermost parked cars carried the Licence Plates Numbers: B* 4* M*; B** 6**; and Y** 7**; 1. They took a photograph, at 8.44am, of the Parking/Loading Zone. The photograph shows the number plates of the cars in the row closest to the street, and it is noted that 2 of the vehicles were the same model and number plate as in the 16 April photographs. 2. OSR Officers returned to the Parking/Loading Zone at the premises at approximately 9:40am and observed the Parking/Loading Zone at the premises for approximately 15 minutes. They saw that: 1. the outermost three parked cars were parked in the same positions as they were during the earlier visit that day; 2. cars remained parked in the Parking/Loading Zone in three basic rows with 3 or 4 cars to each row; 3. there was no person in the Parking/Loading Zone at any time, particularly there were no persons loading or unloading goods or passengers from any of the cars parked in the Parking/Loading Zone; 4. no cars arrived or departed the Parking/Loading Zone and no person attended any of the cars. Each of the cars remained stationary, unattended and in the same spot depicted in the photograph taken earlier that day. 1. They took several more photographs of the Parking/Loading Zone. Those photographs: 1. depict the signs present at the Parking/Loading Zone; 2. depict cars parked in three basic rows with 3 or 4 cars to each row and thereby the impossibility for cars "parked .in" to the leave the Parking/Loading Area; 3. depict the outermost three parked cars, parked in the same positions as they were during the earlier visit that day; 4. depict what appears to be a courier delivery van parked on the street outside the Parking/Loading Zone; 5. do not indicate any loading or unloading of goods or passengers occurring from any of the parked vehicles. 1. The Chief Commissioner's officers gave oral evidence concerning their visits to the premises and the taking of the photographs. The Commissioners witnesses were subject to cross-examination but their evidence was not shaken. 2. The taxpayer's managing agent gave evidence concerning the use and monitoring of the space at the rear of the premises. Her evidence was that she was the commercial property manager responsible for the premises. She had been employed for over 10 years. Prior to becoming aware of the Notices of Assessment she had conducted "random inspections" of the premises but was not sure of the frequency of such inspections. She testified that to her knowledge no-one had had their vehicle clamped or towed during the assessment period in issue. She also stated in oral evidence that she had arranged for the loading zone signage and signs warning violators to be installed in 2008. Since the Notices had been issued inspections were much more regular, parking was policed, and the gates to the loading zone were locked. Tenants (except a supermarket) had to borrow a key to access the loading zone. However this relates to the period later than that covered by the Notices, and does not assist the taxpayer. 3. In the s.58 documents there were statutory declarations from tenants of the premises stating that they did not use the loading area to park, and only used it to load and unload goods for their shop. Each statutory declaration employed standard wording, and did not refer to any time period of use. None of these tenants was called to give evidence. I accord no real weight to the statutory declarations. 4. The Parking Space Levy Act 2009 (2009) (PSLA) relevantly provides as follows: "7 Leviable premises (1) For the purposes of this Act, premises are leviable premises in any financial year if, at any time during the previous financial year: (a) the premises were located in a leviable district, and (b) one or more parking spaces were situated on the premises. (2) Despite subsection (1), premises are not leviable premises if they are declared by the regulations not to be leviable premises. 8 Imposition of parking space levy (1) A parking space levy is imposed on 1 July each year on all leviable premises. (2) The amount of the levy for any leviable premises is the amount calculated in respect of the premises in accordance with the regulations. (3) A person who, as at 1 July in any year, is the owner of leviable premises is liable for payment of the levy for the premises. (4) If the premises are owned by 2 or more persons, the owners are jointly and severally liable for payment of the levy. (5) The levy is to be paid to the Chief Commissioner…. 9 Lodging of returns (1) A person who, as at 1 July in any year, is the owner of leviable premises must, on or before 1 September in that year, furnish a return to the Chief Commissioner in relation to the parking spaces situated on those premises at any time during the previous financial year… (2) If the premises are owned by 2 or more persons, the requirements of this section are satisfied if a return is furnished by any one of them. (3) A person's obligation to furnish a return under this section continues despite any failure by the person to furnish such a return in due time." Relevant definitions are contained in section 4 PSLA: "leviable district" means a district established by the regulations as a leviable district. "leviable premises" --see section 7. "levy" means the parking space levy imposed by this Act on leviable premises. "owner", in relation to leviable premises, includes: (a) any person who jointly or severally, whether at law or in equity, is entitled to the premises for any estate of freehold in possession, and (b) any person who is entitled to receive, or is in receipt of, or if the premises were let to a tenant would be entitled to receive, the rents and profits of the premises, whether as beneficial owner, lessor, trustee, mortgagee in possession, or otherwise, and "parking space" means a space that is situated on premises in a leviable district, being a space: (a) that is used, or set aside, for the parking of motor vehicles, or (b) that is declared by the regulations to be a parking space for the purposes of this Act. "premises" includes any land and any building. … (2) The regulations may establish a leviable district by reference to local government areas (or parts of local government areas), boundaries, plans or otherwise… 1. Section 14 PSLA permits the making of regulations "(2) In particular, the regulations may make provision for or with respect to the following matters:… (c) the circumstances in which parking spaces may be exempted from the calculation of the levy,… 1. Here the exempting regulation relied on by the taxpayer is Reg.7(1)(d) of the Parking Space Levy (PSL) Regulation which provides as follows: "Exempt parking spaces (s 14) (1) A parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is set aside exclusively for one or more of the following purposes: ..(d) the parking of motor vehicles for the purpose of loading or unloading goods or passengers, but not if vehicles are permitted to park in the space otherwise than while goods or passengers are being loaded or unloaded, 1. The premises here are in a Category 2 area (Reg.3 and Sch1 Pt 2 par 5 PSL Reg.) and had parking spaces (i.e spaces used for the parking of vehicles) situated on them. 2. So it will be seen that the parking space levy is imposed by s.8(1) of the PSLA itself on the leviable premises on 1 July each year, and the owner is liable to pay the levy. No process of assessment is required by the Chief Commissioner as such. However the Chief Commissioner in order to collect payment does generate a Notice of Assessment served on the owner ,which in this case has led to these proceedings. 3. All owners of leviable premises are required by s.9(1) PSLA to lodge an annual return by 1 September each year regardless of whether parking spaces may be exempt. No returns were lodged by or on behalf of the taxpayer here in the levy years in question. 4. It is noted that the taxpayer bears the onus of proving its case (s.100(3) Taxation Administration Act 1996 (TAA)). The taxpayer cannot assert that the Chief Commissioner has the burden of establishing that the space is a carpark not a loading dock, as it has set out in its written submissions (paras 19-21) or that the Chief Commissioner's documents do not address each of the levy periods as set out in its supplementary submissions (para 4(e)). Accordingly the applicant has the onus by evidence to establish that the parking spaces in question here fall within the words of the exemption from levy in Reg.7(1)(d) PSL Reg. 5. To satisfy the onus, each parking space in contention would require the taxpayer to establish on the balance of probabilities that at all times (because the regulation uses the word "while") over the 5 levy years it has been set aside exclusively for "the parking of motor vehicles for the purpose of loading or unloading goods or passengers" and that vehicles not are permitted to park in the space otherwise than while goods or passengers are being loaded or unloaded. The requirement of setting aside the space 'exclusively' for 'the' purpose of loading or unloading of goods or passengers, indicates that no other purpose (except another exempt purpose/s or an incidental purpose) is allowed. Setting aside could be achieved by the posting of appropriate notices which are in place and visible at all relevant times. Although notices proclaiming the zone was a loading zone with a 15 parking minute limit (and warning violators of clamping and towing away) are shown in the photographs affixed to walls and the first set of gates when taken by the Chief Commissioner's officers, this only records the position at a point in time. The taxpayer's managing agent gave evidence that she had organised for the loading zone and time limit signs to be put up in 2008. This would satisfy the taxpayer's onus of proving that the parking spaces have been set aside exclusively for parking motor vehicles while loading or unloading goods or passengers. 6. The exemption is not available if vehicles are 'permitted' to park in the space otherwise than for the required purpose. 'Permitted' is not defined. The Macquarie Dictionary defines 'permit' as follows: "1. to allow… to do something 2. to let be done or occur 3. to tolerate; agree to 4. To afford opportunity for; allow 5. to grant permission; allow liberty to do something 6. to afford opportunity or possibility". This would presumably require diligent supervision by the owner or its agents to ensure that vehicles are at no time allowed or tolerated to park in the space set aside other than exclusively for the purpose of loading or unloading goods or passengers. 7. CONSIDERATION 8. I do not consider that the taxpayer has discharged its onus of proof regarding the use of the space at the rear of the premises as a loading zone, because notwithstanding the photos of the signage at the area referring to it as a "loading zone", there is insufficient evidence to satisfy the taxpayer's onus of proving that vehicles are not permitted to park otherwise than while goods or passengers are being loaded or unloaded in the years in question. The photographic evidence shows the position at each the time the Chief Commissioner's officers were present (with the same cars in the same positions in the October 2014 photos). The statement and oral evidence of the managing agent of the premises establish that there seems to have been little policing of the loading area prior to the receipt of the Notices. The gates appear to have been open during business hours according to the photos. The managing agent was unable to recall any vehicle being clamped or towed away. 9. I was concerned that the Chief Commissioner, having had his officers inspect the premises and take the photographs in April and October 2014 could raise Notices of Assessment which were in a sense "retrospective" for the preceding 3 tax years. My concern was that the Chief Commissioner may not have considered the circumstances applicable in prior years before issuing the Notices of Assessment. I asked Counsel to provide further submissions as to whether the Chief Commissioner had turned his mind to the position in the preceding years. The taxpayer did not submit that the assessments were invalid or affected by jurisdictional error. 10. I am satisfied, following receipt of further submissions from both sides that in view of the requirement for all owners of leviable premises to lodge annual returns (s.9 PSLA) (even if all spaces are exempt or claimed to be so), and because the levy is imposed by s.8 PSLA itself without the necessity of a process of assessment as such, the Chief Commissioner can, having turned his mind to the matter, and having bona fide formed a view that the premises were in a leviable district and had parking spaces on them in the relevant years, issue these "retrospective" Notices and put the onus on to the owner to establish that it is not liable in those years to the parking space levy by reason of an exemption or for some other reason. I recognise that this can be difficult to prove to the requisite standard years after the event, but this is the effect of the words of the legislation. The taxpayer did not comply with its obligation to lodge annual returns, and had it done so its position may have been alleviated. The taxpayer submitted in its response to the Chief Commissioner's additional submissions that failure to lodge is irrelevant. I do not agree. It is a requirement of the PSLA. The taxpayer submitted that the obligation to lodge did not impose a higher onus of proof on the taxpayer. I agree but only to that extent. All parking spaces on leviable premises (unless they are declared not to be leviable premises by the regulations (s.7(2) PSLA)) are subject to the levy unless the owner can establish that an exemption applies. It is not the Chief Commissioner's job to show that any exemption does not apply, as appeared to be submitted by the taxpayer. 11. The assessments of the Chief Commissioner of State Revenue are affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2017