Sweeney v The Commissioner of State Revenue
[2015] QCAT 67
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- Unreported Judgment
- Sweeney v The Commissioner of State Revenue[2015] QCAT 67
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Sweeney v The Commissioner of State Revenue[2015] QCAT 67
Sweeney v The Commissioner of State Revenue[2015] QCAT 67
CITATION: | Sweeney v The Commissioner of State Revenue [2015] QCAT 67 |
PARTIES: | Kurt Sweeney (Applicant) |
v | |
The Commissioner of State Revenue (Respondent) |
APPLICATION NUMBER: | GAR369-14 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 27 February 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Howard |
DELIVERED ON: | 27 February 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | TRANSFER DUTY ASSESSMENT – REVIEW APPLICATION – APPLICATION FOR STRIKE OUT – whether Tribunal has jurisdiction – whether review application misconceived Taxation Administration Act 2001 (Qld), s 69 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Fleri v Commissioner of State Revenue [2012] QCAT 135 Cowie v Commissioner of State Revenue [2012] QCAT 612 Market Square (Qld) Pty Ltd atf Market Square Unit Trust v Commissioner of State Revenue [2014] QCAT 539 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]Mr Sweeney purchased a house property in 2013. He claimed a concession for transfer duty (the first homeowner concession), declaring that he would notify the Commissioner in the event that he disposed of the property within 12 months of occupying the residence as his home. He became entitled to possession on 2 April 2013. However, he leased the property on 24 June 2013.
- [2]The Commissioner of State Revenue was not satisfied that the disposal (leasing of the property is a disposal) of the property was attributable to an intervening event. It reassessed the transfer duty allowing the concessional rate for the period between the occupation date and the date of disposal of the property, but removing the benefit of the concession for the balance of the one year period. It assessed transfer duty as $7,275.21 and also assessed penalty tax and interest of $363.76 and $1,050.91 respectively. The sum of $8,745.00 remains outstanding under the reassessment notice.
- [3]Mr Sweeney applied to QCAT for a review of the decision of the Commissioner.
- [4]The Commissioner has filed an application seeking to strike out the application for review under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). It provides that the Tribunal may strike out a proceeding, which it considers, is misconceived or lacking in substance.
- [5]Under section 69 of the Taxation Administration Act 2001 (Qld), a taxpayer may apply to QCAT for a review of the Commissioner’s decision. However, s 69(1) provides as follows:
69 Right of appeal or review
- (3)This section applies to a taxpayer if—
- (a)the taxpayer is dissatisfied with the commissioner’s decision on the taxpayer’s objection; and
- (b)the taxpayer has paid the whole of the amount of the tax and late payment interest payable under the assessment to which the decision relates.[1]
- [6]The Commissioner submits that the Tribunal does not have jurisdiction because the precondition set out in s 69(1)(b) of the Taxation Administration Act has not been satisfied because Mr Sweeney has not paid the tax and interest. As a result, it submits that the Tribunal has no jurisdiction to hear the review and that the review application is therefore misconceived or lacking in substance.
- [7]Mr Sweeney has not addressed s 69(1) in his submissions. His submissions focus upon the hardship he and his family have endured.
- [8]The Tribunal has only the jurisdiction which Parliament has conferred on it in legislation. It must apply the legislation and has no power outside of the rules which the legislation sets out. The Tribunal has considered s 69(1), of the Taxation Administration Act in a number of decisions.[2] Essentially, the Tribunal has decided in those cases that a right to review a decision of the Commissioner is conditional upon compliance with s 69(1)(b). It has held that the Tribunals jurisdiction is not enlivened unless there is compliance with the requirement in s 69(1).
- [9]I agree. The precondition set out in s 69(1)(b) is substantive and mandatory, and goes to the Tribunal’s jurisdiction.
- [10]Mr Sweeney has not paid the amounts specified. Therefore, the precondition has not been met. Unfortunately for Mr Sweeney, whom I accept has been in difficult personal circumstances, I am satisfied that the review application is misconceived. Mr Sweeney’s application should be struck out.
- [11]I make orders accordingly.