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North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue[2019] QCAT 289

North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue[2019] QCAT 289

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue [2019] QCAT 289

PARTIES:

northlakes pharmacies (qld) pty Ltd

 

(applicant)

 

v

 

commissioner of state revenue

 

(respondent)

APPLICATION NO/S:

GAR043-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

26 September 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

The application filed on 2 March 2018 to dismiss the application to review is dismissed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where review of assessment of payroll tax – where application to dismiss for want of jurisdiction – where tribunal jurisdiction enlivened only when tax and penalty and application to review filed paid within 60 days of the date the notice of the decision was given to the taxpayer – whether relevant time and notice was given calculated on time sent in Queensland or time received in South Australia

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Taxation Administration Act 2001 (Qld), s 69, s 148, s 149

Cowie v Commissioner of Taxation [2012] QCAT 612

Fleri v Commissioner of Taxation [2012] QCAT 135

Naswari v Commissioner of State Revenue [2013] QCAT 66

Market Square (Queensland) Pty Ltd as Trustee for the Market Square Unit Trust v Commissioner of State Revenue [2013] QCAT 578

REPRESENTATION:

Applicant:

M Romaldi, director of Winter Romaldi Parhas, Legal and Advisory, Legal and Advisory

Respondent:

G Hartridge of Counsel

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    North Lakes Pharmacies (Qld) Pty Ltd (‘North Lakes’) has made application to the Tribunal to review a decision of the Commissioner of State Revenue (‘the Commissioner’) that it and certain other companies be grouped for payroll tax purposes for the years 1 July 2010 to 30 June 2015.
  2. [2]
    The decision was given to North Lakes legal representatives on 30 November 2017 by email sent at 4:58pm. As the firm was located in Adelaide on the relevant date, the time the email was received was 5:29pm. North Lakes paid the primary tax, penalty and unpaid tax interest in the amount of $157,500.00 on 30 January 2018 and filed its application to review the decision on that date.
  3. [3]
    The Commissioner has made an application to have the application to review dismissed for want of jurisdiction, on the basis that the tax, penalty and interest should have been paid and the application to review should have been made on 29 January 2018 which is 60 days from 30 November 2017. This is required in s 69(1) of the Taxation Assessment Act 2001 (‘TA Act’). The TA Act states that the section applies to a taxpayer if they are dissatisfied with the Commissioner’s decision on the taxpayer’s objection; and the taxpayer has paid the whole amount of the tax and late payment interest payable under the assessment and s 69(2) states that the taxpayer may, within 60 days after notice is given to the taxpayer of the Commissioner’s decision apply, as provided under the QCAT Act, to QCAT for a review of the Commissioner’s decision.
  4. [4]
    This provision has been applied strictly and if both the payment and the objection are not made on or before the 60th day from the date the decision is given, the Tribunal has previously dismissed the application[1] for want of jurisdiction under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  5. [5]
    North Lakes has countered that while the email may have been sent by the Commissioner at 4:58pm Brisbane time it was received in Adelaide at 5:29p.m. That s 149(1)(c) deals with when a document is taken to be given by the Commissioner to a person and if it is sent by email – the date the email is sent is the date it is taken to be given but this is subject to s 149(2) of the TA Act, so that if a document is given after 5p.m. on a particular day, the document is taken to be given to the person the following business day. North Lakes contends that the important time is when the email is received and not when it is sent and cites the s 24 of the Electronic Transactions (Queensland) Act 2001 (‘ET (Q) Act’) which deals with the time of receipt of electronic communications as being when the communication is capable of being retrieved by the addressee.
  6. [6]
    The Commissioner argues that s 148(1)(d) of the TA Act states that a document to be given under a tax law to a person is properly given if it is sent by email to the person’s email address as given to the Commissioner by the person and s 149(1)(c) makes it clear that the operative time is the time the email was sent. The Commissioner then cites s 23 of the ET (Q) Act which deals with the time of despatch of electronic communications, which says that the time when the electronic communication leaves an information system is the time of despatch.
  7. [7]
    Section 149 of the TA Act deals with when a document is taken to be given to a person. I take that to mean when the document is received by the person. Section 149(1)(c) is to be read as the date it is given by the Commissioner to a person is the date it was sent. That is not to say anything about the time it was sent as being operative in any way, it is only the date which is noted. Section 149(2) talks about the time when a document is given. The word given in respect of s 149(2) should be given its ordinary meaning of received as it is used in the context of ‘given to the person’. A document can only be given at a time before when it is received. Clearly the purpose of s 149(2) is to ensure that a document which is given outside of normal office hours is taken to be given on the next day. The email was received at 5:29pm in Adelaide which is after 5:00pm and therefore the decision on the objection is deemed to have been given on 1 December 2017 and the 60 day period ended on 30 January 2018.
  8. [8]
    The date that the tax and penalty was paid and the application to review was filed was 30 January, which is within the 60 period from 1 December 2017 and so s 69 of the TA Act has been complied with and the Tribunal has jurisdiction to hear the application.
  9. [9]
    The application to dismiss filed on 2 March 2018 is dismissed.

Footnotes

[1] Fleri v Commissioner of State Revenue [2012] QCAT 135; Cowie v Commissioner of State Revenue [2012] 612; Naswari v Commissioner of State Revenue [2013] QCAT 66 and Market Square (Queensland) Pty Ltd as Trustee for the Market Square Unit Trust v Commissioner of State Revenue [2013] QCAT 578.

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Editorial Notes

  • Published Case Name:

    North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue

  • Shortened Case Name:

    North Lakes Pharmacies (Qld) Pty Ltd v Commissioner of State Revenue

  • MNC:

    [2019] QCAT 289

  • Court:

    QCAT

  • Judge(s):

    Member Allen

  • Date:

    26 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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