Reid v Commissioner of State Revenue
[2021] QCAT 322
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- Unreported Judgment
- Reid v Commissioner of State Revenue[2021] QCAT 322
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Reid v Commissioner of State Revenue[2021] QCAT 322
Reid v Commissioner of State Revenue[2021] QCAT 322
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Reid v Commissioner of State Revenue [2021] QCAT 322 |
PARTIES: | Jason Joel Reid (applicant) v COMMISSIONER of State Revenue (respondent) |
APPLICATION NO/S: | GAR389-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 17 September 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Browne |
ORDERS: | The application for review filed on 9 October 2020 is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – revenue and taxation – where objection decision made – where application filed to review the objection decision – whether the requirements under s 69 of the Taxation Administration Act 2001 (Qld) apply – where the Commissioner applies to dismiss the proceeding – whether the Tribunal has jurisdiction to review the objection decision – whether the application for review should be dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 17, s 20, s 47 Taxation Administration Act 2001 (Qld), s 69 Fleri v Commissioner of State Revenue [2012] QCAT 135 Cowie v Commissioner of State Revenue [2012] QCAT 612 M&J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454 WB Rural Pty Limited v Commissioner of State Revenue & Anor [2018] QCA 255 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | B Tyler-Whiteman, A/Manager, Administrative Review for the Commissioner of State Revenue |
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]On 9 January 2019, the Commissioner of State Revenue partly allowed Mr Reid’s objection to a land tax assessment for properties owned in Queensland (‘the objection decision’).
- [2]Mr Reid applied to the Tribunal on 9 October 2020 for a review of the objection decision.[1] In the application for review Mr Reid describes what he would like to happen as follows:
I would like the decision reversed and the money I have had to pay refunded in the amount of $7,713.25.
- [3]The Commissioner now applies to strike out the application for review under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) on the basis that the Tribunal lacks jurisdiction to determine it.[2] The Commission contends that Mr Reid did not pay the whole of the amount of the tax and any late payment interest payable under the assessment as required by s 69(1) of the Taxation Administration Act 2001 (Qld) (‘the TAA’).
- [4]The Commission says that the whole of the tax and late payment interest under the assessments was only paid in full on 21 July 2020 being 559 days after the objection decision was received by Mr Reid. Further to that, the Commission says that there is no power for the Tribunal to extend the time provided under s 69(2) of the TAA for the filing of an application for review. Relevantly, s 69(2)(b) provides that the taxpayer may, within 60 days after notice is given to the taxpayer of the commissioner’s decision on the objection, apply, as provided under the QCAT Act to QCAT for a review of the commissioner’s decision.
- [5]In responding to the Commissioner’s application, Mr Reid argues that his objections to the incorrect assessment of his properties have always been genuine and made in good faith, as has his compliance with timeliness standards.[3] Mr Reid says the Commissioner has sent correspondence to incorrect addresses, ignored emails, allocated his case to different officers without notice, changed processes, failed to consider information and incorrectly advised him as to his rights and avenues of appeal.
- [6]Mr Reid argues that the Commissioner has failed to advise him that, as stated, ‘a QCAT appeal needed to be lodged within 60 days’ even though he had an ongoing internal appeals process within the department’. It is argued by Mr Reid that the 60 days’ time period for filing an application for review should begin only at the time he says he was formally and properly advised that the decision was final and that he had exhausted all internal avenues of review. Mr Reid says the relevant date he was advised is 2 September 2020.
Should the application for review be dismissed?
- [7]The Tribunal only has the power to review a decision as conferred on it by an enabling Act.[4] In the present matter, the power to review the objection decision is derived from s 69 of the TAA:
69 Right of appeal or review
- (1)This section applies to a taxpayer if—
- (a)the taxpayer is dissatisfied with the commissioner’s decision on the taxpayer’s objection; and
- (b)for an objection under section 63—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.
- (2)The taxpayer may, within 60 days after notice is given to the taxpayer of the commissioner’s decision on the objection—
- (a)appeal to the Supreme Court; or
- (b)apply, as provided under the QCAT Act, to QCAT for a review of the commissioner’s decision.
- (3)QCAT may not, under the QCAT Act, section 61(1)(a), extend the period under subsection (2) within which the taxpayer may apply to QCAT for the review.
…
- [8]In WB Rural Pty Limited v Commissioner of State Revenue & Anor[5] the Court of Appeal observed that s 69 of the TAA provides avenues by way of appeal to the Supreme Court or the Queensland Civil and Administrative Tribunal. Further to that, the Court determined that the power under s 69(1(b) of the TAA requiring payment of the tax as a condition to the right of appeal is valid.[6]
- [9]It has previously been decided that s 69(1)(b) of the TAA is substantive in nature and the Tribunal does not have power to review the decision until the relevant section has been complied with.[7] Put simply, the taxpayer is required to pay the whole of the amount of tax and late payment under the assessment to which the decision relates. If the taxpayer fails to comply with s 69(1), the taxpayer’s right to appeal to the Supreme Court; or to review the decision before the Tribunal is not enlivened.
- [10]In the present matter, I am satisfied that the objection decision is a reviewable decision for which s 69 of the TAA confers jurisdiction on the Tribunal to review it. In my view, section 69(1) of the TAA requires the taxpayer, in this case Mr Reid, to pay the amount of tax and late payment such that the power to appeal or review the decision is not enlivened until the debt is paid.
- [11]I am satisfied that Mr Reid was given notice of his review rights in the objection decision of 9 January 2019. The objection decision clearly states (on page 10) that payment of the assessment is required:
Under the TAA you are only entitled to appeal or apply for a review of this decision if you have paid the re/assessment and any further accrued UT1 in full.
- [12]The objection decision sets out the prescribed time of 60 days for the filing of an application in the approved form in the Tribunal. Relevantly, the objection decision also states that the Tribunal cannot extend the time for filing the application.
- [13]Mr Reid does not dispute that he received the objection decision that was emailed to him but argues that the reviewable decision was made on 27 July 2020 and that he was properly advised of the decision on 2 September 2020. I am satisfied that Mr Reid received notice of the objection decision on or about 9 January 2019. The objection decision provides an email address for Mr Reid that is the same email address that appears on the application for review.
- [14]Mr Reid was given a final payment notice on 11 July 2019 and on 2 August 2019 a reassessment notice for his property along with an account statement issued.[8] Mr Reid paid the reassessment amount on 21 July 2020. Mr Reid did not, however, pay the relevant amount before applying to the Tribunal for a review as provided under s 69(1) of the TAA. There is no power to extend the time for filing an application for review under s 69(2). Section 69(2) of the TAA clearly provides that the taxpayer may within 60 days after notice is given apply to the Tribunal for a review.
- [15]The assertions made by Mr Reid about how the Commissioner has managed his applications such as sending correspondence to incorrect addresses and, amongst other things, ignoring emails is unfortunate but are not relevant matters to be considered for the purposes of s 69. As I have said s 69 of the TAA is clear in its terms and requires the taxpayer to pay the tax debt before pursuing any appeal or review rights.
- [16]The power to dismiss or strike out a proceeding under s 47 of the QCAT Act should be exercised in this case because the Tribunal does not have the jurisdiction to review the objection decision. The Tribunal only has jurisdiction to review a decision if s 69(1) has been complied with by the taxpayer. Here, Mr Reid’s application for review is misconceived because the Tribunal does not have the jurisdiction to review the objection decision.
- [17]In M&J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors[9] the Tribunal observed relevant circumstances that may attract the power to dismiss under s 47 of the QCAT such as, amongst other things, when the proceeding filed by an applicant in QCAT does not clearly establish jurisdiction under the relevant enabling Act. The Tribunal said, and I agree, that the term ‘misconceived’ is apt to describe a proceeding which lacks substance, force or effect because the court or tribunal in which it is brought lacks the jurisdiction to determine it.[10]
- [18]In exercising the power to dismiss the application for review under s 47 of the QCAT the objectives set out under s 3 of the QCAT Act have been considered to, amongst other things, deal with matters in a way that is accessible, fair, just, economical, informal and quick.
- [19]Here the Tribunal does not have the jurisdiction to determine the objection decision of 9 January 2019 because Mr Reid did not pay the whole of the amount of the tax and late payment interest payable as provided under s 69(1) of the TAA. I am satisfied that the discretion to dismiss the application for review should be exercised because the Tribunal does not have the jurisdiction to review the objection decision. The application for review filed on 9 October 2020 is dismissed and I order accordingly.
Footnotes
[1]Application for review filed 9 October 2020.
[2]Application for miscellaneous matters filed 7 January 2021. See also Tribunal’s directions dated 14 December 2020. The matter was listed for a decision on the papers on 7 September 2021.
[3]Response filed 25 January 2021.
[4]QCAT Act, s 17.
[5][2018] QCA 255.
[6]Ibid, [37].
[7]Cowie v Commissioner of State Revenue [2012] QCAT 612 and Fleri v Commissioner of State Revenue [2012] QCAT 135.
[8]See material filed by the Commissioner in support of the application to strike out.
[9][2010] QCAT 454.
[10]Ibid, [11].