Blomkamp v Commissioner of State Revenue [2014] QCAT 107

CITATION: Blomkamp v Commissioner of State Revenue [2014] QCAT 107 PARTIES: Mark John Blomkamp and Catherine Grace Blomkamp (Applicants) v Commissioner of State Revenue (Respondent) APPLICATION NUMBER: GAR363-13 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 20 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: Application to review reassessment of Transfer Duty – Non-payment of reassessed duty and penalty – jurisdiction of Tribunal Taxation Administration Act 2001 s 69 Queensland Civil and Administrative Tribunal Act 2009 ss 22 and 47 Fleri v Commissioner of State Revenue [2012] 135 Cowie v Commissioner of State Revenue [2012] QCAT 612 Naswari v Commissioner of State Revenue [2013] QCAT 66 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Mr and Mrs Blomkamp purchased a property at 20 Torrens Street, Wakerley in 2009. A transfer duty concession was claimed by them on the basis that they would reside in the property as their principal place of residence. Following an investigation by the Commissioner it became evident that the property had been leased to tenants by Mr and Mrs Blomkamp prior to them occupying the property. The Commissioner made a reassessment of duty with penalty and interest to which Mr and Mrs Blomkamp objected. The Commissioner disallowed the objection by letter on 27 August 2012. At that time an amount of $11,052.57 was due to the Commissioner in respect of duty, penalty tax and unpaid tax interest. [2] Mr and Mrs Blomkamp made an application to the Tribunal to review the decision on 21 October 2013. At the same time an application was made to stay the decision in which they stated that ‘there is valid reason for not paying the alleged liability’. [3] The Commissioner has made an application to strike-out/dismiss the application on the basis that Mr and Mrs Blomkamp have not complied with the requirements of the Taxation Administration Act 2001 (TA Act) in regard to payment of the disputed amount prior to applying to the Tribunal for review of the decision. This is on the basis that the Tribunal’s jurisdiction is only enlivened where such payment is made prior to the filing of the application. [4] Mr and Mrs Blomkamp had a right to lodge an application to review of the decision to disallow the objection within 60 days of notice of the decision being given to them. This is contained in s 69 (2) of the TA Act. The TA Act in s 69 (1) clearly states this section applies if the taxpayer is dissatisfied with the Commissioner’s decision on objection and the taxpayer has paid the whole amount of the tax and late payment interest payable under the assessment. That section prevails over the provisions of the Queensland and Administrative Tribunal Act 2009 in regard to the requirements for filing an application to review. The Tribunal has previously held that unless payment is made prior to the filing of the review application there is no jurisdiction to hear the review application and the application is liable to be dismissed or struck out, under s 47 of the QCAT Act1. [5] The Commissioner provided a certificate to the Tribunal declaring that as at 28 November 2013 the sum of $11,293.72 is due and payable to the Commissioner by Mr and Mrs Blomkamp. Mr and Mrs Blomkamp in their submissions dated 12 December 2013 in reply to the Commissioner’s application to strike-out/dismiss confirmed that they had paid the disputed amount. That payment was clearly not made prior to the filing of the 1 Fleri v Commissioner of State Revenue [2012] 135, Cowie v Commissioner of State Revenue [2012] QCAT 612, Naswari v Commissioner of State Revenue [2013] QCAT 66. -- 2 of 3 -- 3 application to review. This is not a matter where the Tribunal can exercise a discretion the requirements of the TA Act have not been met and the Tribunal has no jurisdiction to hear the application. [6] Mr and Mrs Blomkamp have made an application to the Tribunal to stay the application of the Commissioner’s decision. If the Tribunal had jurisdiction to hear the application it would be able to consider the exercise of its discretion to determine if a stay should be granted under s 22 of the QCAT Act. The Tribunal accepts the submission of the Commissioner that where the Tribunal does not have jurisdiction to hear the application it cannot exercise its discretion to stay the decision under review. A stay of the decision cannot be used to enable Mr and Mrs Blomkamp to continue their application where they have not complied with the requirements of s 69 (1) of the TA Act. [7] Due to Mr and Mrs Blomkamp’s not having complied with the requirements of s 69 (1) of the TA Act in regard to payment of the disputed amount the Tribunal orders that the application is dismissed. -- 3 of 3 --