Detail First Pty Ltd v Chief Commissioner of State Revenue [2018] NSWCATAD 104

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Detail First Pty Ltd v Chief Commissioner of State Revenue [2018] NSWCATAD 104 Hearing dates: On the papers Date of orders: 23 May 2018 Decision date: 23 May 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: A Boxall, Senior Member Decision: (1) The application is dismissed Catchwords: ADMINISTRATIVE LAW - Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011 – refusal of registration – availability of objection – availability of administrative review Legislation Cited: Administrative Decisions Review Act 1987, ss 7, 8, 9 Civil and Administrative Tribunal Act 2013, s 7, 28, 29, 30 Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011, ss 19, 35, 41 Category: Principal judgment Parties: Detail First Pty Ltd (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: I Bose (Respondent)

Solicitors: NSW Crown Solicitors Office (Respondent)

D Cunningham (Applicant) File Number(s): 2017/00383546

reasons for decision

Background 1. The Applicant is a company whose principal place of business is in Tasmania. It provides cleaning services, and in the course of doing so employs staff in several states and territories including New South Wales. On 14 October 2015 Revenue NSW (formerly known as "NSW Office of State Revenue") began an investigation to determine whether the Applicant was liable for payroll tax in New South Wales. That investigation was completed in February 2016, and on 25 February 2016 the Respondent issued to the Applicant Payroll Tax Assessment Notices for the 2013, 2014, 2015 and 2016 tax years. In connection with the issue of these assessments the Applicant became registered for payroll tax purposes with effect from 1 October 2013 onwards. 2. During the investigation there were discussions and written communications between the parties concerning the potential availability to the Applicant of a rebate of payroll tax through the scheme (the JAP Rebate Scheme) established under the Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011 (the JAP Rebate Act) for the calculation and payment to employers on an annual basis of rebates of payroll tax in relation to new jobs created by them. These discussions culminated in a formal request on 27 May 2016 by the Applicant for registration under the JAP Rebate Scheme and the rejection of that request by the Respondent on 30 May 2016. It should be noted at this point that the substantive questions raised by the Applicant go amongst other matters to the significance, in the context of the Applicant's ability to participate in the JAP Rebate Scheme, of the discussions and written communications between the parties before 27 May 2016. This brief background summary should not be taken as adopting or implying any particular conclusion as to those substantive questions. 3. On 2 November 2016 the Applicant lodged with the Respondent an objection to certain elements of the Respondent's decisions concerning the Applicant's payroll tax liabilities. They were: 1. the calculation of the Applicant's payroll tax threshold for the 2014 tax year; 2. the value of interstate wages included in assessing the Applicant's liability to payroll tax in the 2014, 2015 and 2016 tax years; 3. the Respondent's imposition of 20% penalty tax for the 2014 and 2015 tax years; and 4. the Respondent's decision to refuse the Applicant retrospective registration under the JAP Rebate Scheme for the 2014 and 2015 tax years. 1. On 22 November 2017 the Respondent replied to the Applicant with its decision on the objection. In its reply, the Respondent: 1. partially allowed the first element of the objection, and accepted that an adjustment of the value of interstate wages was appropriate, and issued revised assessments; 2. disallowed the objection to the imposition of penalty tax; and 3. rejected the objection (using this word in its general meaning) concerning the JAP Rebate Scheme, on the basis that the relevant decision was not one in respect of which an objection (in the statutory sense) could be made under the JAP Rebate Act. 1. On 19 December 2017 the Applicant applied to the Tribunal for the review of the Respondent's decision to refuse the Applicant retrospective registration under the JAP Rebate Scheme for the 2014 and 2015 tax years.