Exglen Pty Ltd v Commissioner of State Revenue [2015] QCAT 117

CITATION: Exglen Pty Ltd v Commissioner of State Revenue [2015] QCAT 117 PARTIES: Exglen Pty Ltd (Applicant) v Commissioner of State Revenue (Respondent) APPLICATION NUMBER: GAR316-14 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Howard DELIVERED ON: 10 April 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Commissioner of State Revenue’s application to strike out the review application is dismissed. CATCHWORDS: APPLICATION FOR STRIKE OUT – whether application misconceived or lacking in substance –where Commissioner filed certificate under s 131 as to tax owing–where later reconciliation- where Commissioner now suggests no outstanding amount because of remission or waiver of amount after filing date – where no evidence of waiver or remission of any amount Taxation Administration Act 2001 (Qld), s 69 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 -- 1 of 4 -- 2 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] Exglen Pty Ltd was assessed for land tax of $7689 by the Office of State Revenue for the year 2013-2014. It applied for the land concerned to be treated as exempt land under the Land Tax Act 2010 (Qld) (‘Land Tax Act’). The Commissioner for State Revenue disallowed the objection. On 2 October 2014, Exglen filed an application for review of the Commissioner’s decision in the Tribunal. [2] The Commissioner 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’). Section 47 provides that the Tribunal may strike out a proceeding which it considers is misconceived or lacking in substance. [3] Under s 69 of the Taxation Administration Act 2001 (Qld) (‘Taxation Act’) a taxpayer may apply to QCAT for review of a decision of the Commissioner. However, s 69(1) provides 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) 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 [4] The Commissioner submits that the Tribunal does not have jurisdiction because the precondition set out in s 69(1)(b) of the Taxation Act has not been satisfied. It says this is so because Exglen has not paid the whole of the amount of the land tax and late payment interest under the assessment to which the decision relates. 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. [5] The Commissioner issued a Commissioner’s certificate on 22 October stating that following a partial payment of $7874.78 on 8 September 2014, there was an outstanding land tax liability of $482.72 (comprising of $477.26 land tax and $5.46 late payment interest to 22 October 2014). Under the Taxation Act,2 the Commissioner’s certificate is evidence of the liability outstanding on a stated date. The Commissioner relies on that shortfall in its application for strike out of the review application filed by Exglen. 1 Emphasis added. 2 Section 131. -- 2 of 4 -- 3 [6] Exglen submits that throughout its dealings with the Commissioner over the years, it has ‘queried’ numerous discrepancies regarding the land tax assessments. Despite the certificate dated 22 October, 2014, Exglen confirms it received the email from the Commissioner on 5 November 2014, which stated that at that date, it had no outstanding land tax owing. Exglen does not suggest it paid any amount between the two dates. It maintains that it owed no land tax or late penalty interest as at the date of filing of the QCAT application. It further says that even if there was any outstanding land tax, the Commissioner waived it. [7] On 6 November 2014, the Tribunal directed the Commissioner to file and serve a reconciliation of all assessments and payments of land tax for Exglen. In the submissions which accompany the reconciliation, the Commissioner says that on 5 November 2014, Exglen requested receipts for 4 payments made on 11 August 2014. It says it applied the various monies paid for outstanding amounts paid in respect of not only the 2013- 14 year but also for previous years in compliance with ss 41 and 42 of the Taxation Act. The Commissioner says it ‘reallocated’ monies received on 8 September 2014 of $7874.78 against the 2013-14 assessment, with the result that the full amount of the tax was satisfied, together with late payment interest to 9 February 2014 of $185.78. The submissions also set out that late payment interest of $633.04 had accrued at 8 September 2014. It submits that on 5 November 2011, after taking the balance of reallocated amount into account, the shortfall of late payment interest of $484.54 was remitted in full. [8] Exglen maintains that the discrepancies have not been explained, in particular the calculations of late payment interest which it says do not appear consistent. It says discrepancies continue to exist within the calculations, with the possible result that too much land tax has been collected by the Commissioner. [9] There do appear to be some discrepancies in the Commissioner’s material. The reconciliation suggests that at 22 October 2014, the late payment interest accrued was $668.50. The balance of the monies available from the $7874.78, after satisfaction of the land tax, was $185.78. The submissions with the reconciliation suggest that $484.54 was ‘remitted in full’. (However, $633.04 less $185.78 leaves $447.26; whereas $668.50 less $185.78 leaves $482.72. The figure of $482.72 is consistent with the s131 certificate as at 22 October 2014 as an overall amount, but not as the amount specified in the certificate as outstanding for late payment interest). The calculation of the figure, said to have been ‘remitted’ of $484.54, is not set out. Later submissions from the Commissioner describe the amount as having been waived, rather than remitted. [10] I directed the Commissioner to file its document recording that no amount was outstanding at 5 November 2014. The Commissioner filed a copy of its email to Exglen which states as follows: In response to our telephone discussion today regarding land tax. -- 3 of 4 -- 4 As at 5 November 2014 you have no outstanding land tax payable. Your next land tax assessment is for 2014/2015 of $7,604.00 due on 25 November 2014. If you have any further queries, please contact us on our details below. [11] The Commissioner maintains its position that on the date that the applicant filed the application for review, the taxpayer had an outstanding land tax liability, and therefore cannot meet the precondition to jurisdiction set out in s 69(1)(b) of the Taxation Act. [12] On a strike out application, the evidence must be weighed to reach a conclusion about whether a claimant has an arguable case.3 It should be used sparingly to prevent abuse when a claim is groundless or futile, but if there is a real question of law or fact, summary dismissal is not appropriate.4 [13] There are real issues about whether the Tribunal has jurisdiction. Unlike documents produced under s 132 of the Taxation Act, the Taxation Act does not provide that a s 131 certificate is conclusive evidence. The information in the s 131 certificate is in apparent conflict with the reconciliation, and both of those provide information which in some respects appears to be inconsistent with the submissions provided with the reconciliation. Also, despite the Commissioner’s submission that a reallocation was effected on 5 November, the amount of money apparently applied by the Commissioner to the 2013-14 tax liability and late payment interest is identical with the amount applied in the s 131 certificate, but with different calculations for late payment interest. The shortfall is variously described as remitted and waived. However, other than statements made in submissions, there is no documentation before the Tribunal to confirm either a remission or a waiver of any amount. The email of 5 November does not appear to be either a remission or a waiver, and does not refer to a remission or waiver, simply recording that no amount is outstanding at that date. [14] It is not for me to make findings on contested issues of fact on a strike out application. The contested issue of whether, and if so, in what amount of tax and/or late penalty interest was outstanding on 2 October 2014 requires a finding. There are apparent inconsistencies in the evidence from the Commissioner. It appears this will need to be determined as a preliminary point in the review proceeding. [15] In the circumstances, the application for strike out is dismissed. 3 Dey v Victorian Railways Commissioners (1949) 78 CLR 62. 4 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. -- 4 of 4 --