Zumaeta v Commissioner of State Revenue
[2017] QCAT 152
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- Unreported Judgment
- Zumaeta v Commissioner of State Revenue[2017] QCAT 152
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Zumaeta v Commissioner of State Revenue[2017] QCAT 152
Zumaeta v Commissioner of State Revenue[2017] QCAT 152
CITATION: | Zumaeta v Commissioner of State Revenue [2017] QCAT 152 |
PARTIES: | Oscar Zumaeta Rachael Zumaeta (Applicant) v Commissioner of State Revenue (Respondent) |
APPLICATION NUMBER: | GAR019-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Allen |
DELIVERED ON: | 3 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROCEDURE – JURISDICTION – where review of assessment of duty – where application to dismiss for want of jurisdiction - where tribunal jurisdiction enlivened only where duty and penalty tax paid - where assessed duty and penalty tax unpaid – whether application should be dismissed. 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 (Queensland) Pty Ltd as Trustee for the Market Square Unit Trust v Commissioner of State Revenue [2013] QCAT 578 Scott v Commissioner of State Revenue [2014] QCAT 457 |
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 and Mrs Zumaeta purchased a house for which they claimed and received the principal place of residence duty exemption. The Commissioner of State Revenue investigated whether or not the Zumaeta’s were entitled to the exemption and determined they were not as they leased the house out before they took up occupation of it. The Commissioner reassessed the amount of duty and issued a new assessment with an increased amount of duty and the imposition of penalty tax.
- [2]The Zumaeta’s objected against the assessment with the objection being disallowed by the Commissioner. They have now made an application to the Tribunal to review the decision of the Commissioner under s 69 of the Taxation Administration Act 2001 (the TA Act).
- [3]The Commissioner has made an application to have the review application dismissed in accordance with s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). This is on the ground that the Zumaeta’s have not paid the amount of outstanding duty and penalty tax and the Tribunal does not then have the jurisdiction to hear the application.
- [4]The Tribunal may dismiss an application where it is frivolous, vexatious or misconceived; or is lacking in substance[1]. The Tribunal has previously determined that where a taxpayer has not paid the amount of outstanding duty and penalty tax prior to filing their application for review the Tribunal does not have jurisdiction to hear the application[2].
- [5]Where the Tribunal does not have jurisdiction to hear an application the application lacks substance and the application may be dismissed in accordance with s 47 of the QCAT Act.
- [6]An officer of the Commissioner has provided a certificate pursuant to s 131(a) of the TA Act confirming that the amount of $9,730.21 is outstanding in respect of the reassessment of duty issued to the Zumaeta’s.
- [7]Mr and Mrs Zumaeta did not in their submissions in respect of the application to dismiss deny that the amount of the reassessed duty and penalty tax was outstanding. They instead argued the substantive merits of their application.
- [8]I accept the evidence of the Commissioner that the reassessed duty and penalty tax owed by the Zumaeta’s is outstanding. In which case they have not fulfilled the requirement of section 69 of the TA Act and the Tribunal then has no jurisdiction to hear the application to review.
- [9]The application for review lacks substance and is dismissed.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47.
[2]Fleri v Commissioner of State Revenue [2012] QCAT 135, Cowie v Commissioner of State Revenue [2012] QCAT 612, Market Square (Queensland) Pty Lt as Trustee for the Market Square Unit Trust v Commissioner of State Revenue [2013] QCAT 578, Scott v Commissioner of State Revenue [2014] QCAT 457.