Ely v Commissioner of State Revenue [2022] QCAT 201

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ely v Commissioner of State Revenue [2022] QCAT 201 PARTIES: GUY ELY (applicant) v COMMISSIONER OF STATE REVENUE (respondent) APPLICATION NO/S: GAR474-21 MATTER TYPE: General administrative review matters DELIVERED ON: 24 May 2022 HEARING DATE: 20 May 2022 HEARD AT: Brisbane DECISION OF: Member Browne ORDERS: The application for review filed on 5 August 2021 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 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: 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) -- 1 of 4 -- 2 REASONS FOR DECISION [1] On 3 June 2021, the Commissioner of State Revenue issued to Mr Ely land tax assessment notices for the 2017-18, 2018-19 and 2019-20 financial years (‘the assessments’). [2] Mr Ely’s representative objected to the assessments and on 30 July 2021, the Commissioner disallowed the objection. Relevantly, Mr Ely was notified of the objection decision and given reasons for the objection. [3] Mr Ely applied to the Tribunal for a review of the decision to disallow the objection that concerns a property claimed by him to be his principal place of residence.1 In the application for review Mr Ely says that he did not get all of the evidence in time and by the time the evidence came through, the decision was already made.2 [4] The Commissioner now applies to strike out the proceeding under s 47 of the QCAT Act on the basis that the Tribunal lacks jurisdiction to determine it.3 The Commission contends that Mr Reid did not pay within 60 days the whole of the amount of the tax and late payment interest payable under the assessment as required by s 69(1) of the Taxation Administration Act 2001 (Qld) (‘the TA Act’). [5] The Commission argues that there is no power for the Tribunal to extend the time provided under s 69(2) of the TA Act 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 for a review of the commissioner’s decision. [6] In responding to the Commissioner’s application, Mr Ely says that the relevant property concerning the assessments is his principal place of residence and that relevant evidence was delayed due to his personal circumstances.4 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.5 In the present matter, the power to review the objection decision is derived from s 69 of the TA Act that is now set out below as follows: 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. 1 Application for review filed 5 August 2021. 2 Ibid. 3 Application for miscellaneous matters filed 5 October 2021. See also Tribunal’s directions dated 12 October 2021 and 22 November 2021. The matter was listed for a decision on the papers on 20 May 2022. 4 Correspondence dated 30 November 2021. 5 QCAT Act, s 17. -- 2 of 4 -- 3 (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] The Queensland Court of Appeal has observed that s 69 of the TA Act provides avenues by way of appeal to the Supreme Court or the Queensland Civil and Administrative Tribunal.6 In WB Rural Pty Limited v Commissioner of State Revenue & Anor7 the Court of Appeal said that the power under s 69(1)(b) of the TA Act requiring payment of the tax as a condition to the right of appeal is valid. The relevant passage from WB Rural Pty Limited is set out below (footnotes omitted): There is no authority for the proposition that a statutory right of appeal from an administrative decision cannot be conditioned upon the fulfilment of the duty created by that decision. What is more, notwithstanding such a condition limiting a general right of appeal, a person’s right to resort to the Supreme Court to challenge a decision made in excess of jurisdiction is preserved in any event. In any case, the equality of treatment that is a characteristic of a State Supreme Court is its equality of treatment of persons in its exercise of judicial power when that power is validly invoked.8 [9] It has previously been decided that s 69(1)(b) is substantive in nature and the Tribunal does not have power to review the decision until the relevant section has been complied with.9 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) and pay the amount of the tax within 60 days after notice is given, 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 before me the Commissioner says that as of 30 September 2021 being 62 days after the objection decision was given to Mr Ely, the whole tax and late payment interest under the assessments remains unpaid.10 [11] I am satisfied that the Commissioner’s objection decision given to Mr Ely is a reviewable decision for which s 69 of the TA Act confers jurisdiction on the Tribunal to review it. In my view, section 69(1) requires Mr Ely, as the taxpayer 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. 6 WB Rural Pty Limited v Commissioner of State Revenue & Anor [2018] QCA 255. 7 [2018] QCA 255. 8 Ibid, [35]. 9 Cowie v Commissioner of State Revenue [2012] QCAT 612; Fleri v Commissioner of State Revenue [2012] QCAT 135. 10 Annexure to respondent’s miscellaneous application dated 5 October 2021. -- 3 of 4 -- 4 [12] Mr Ely was given notice of his review rights in the objection decision that clearly states that payment of the assessment and any further accrued unpaid tax interest in full is required.11 [13] 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. [14] Mr Ely does not dispute that he received the objection decision and that he failed to pay the assessment within 60 days. [15] Unfortunately for Mr Ely there is no power to extend the time for filing an application for review under s 69(2). Section 69(2) clearly provides that the taxpayer may within 60 days after notice is given apply to the Tribunal for a review. [16] I am satisfied that 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, in this case Mr Ely. Mr Ely’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 & Ors12 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.13 [18] In the present matter, the Tribunal does not have the jurisdiction to determine the objection decision because Mr Ely did not pay the whole of the amount of the tax and late payment interest payable as provided under s 69(1) of the TA Act. 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. [19] In exercising the power to dismiss the application under s 47 of the QCAT I have also considered the objectives set out under s 3 of the QCAT Act to amongst other things, deal with matters in a way that is accessible, fair, just, economical, informal and quick. The application for review filed on 5 August 2021 is dismissed. I order accordingly. 11 Application for miscellaneous matters filed 5 October 2021, attachment 2, p 15. 12 [2010] QCAT 454. 13 Ibid, [11]. -- 4 of 4 --