Cowie v Commissioner of State Revenue [2012] QCAT 612

CITATION: Cowie v Commissioner of State Revenue [2012] QCAT 612 PARTIES: Malcolm John Cowie v Commissioner of State Revenue APPLICATION NUMBER: GAR310-12 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Jim Allen, Member DELIVERED ON: 30 November 2012 DELIVERED AT: Brisbane ORDERS MADE: The application for review is dismissed. CATCHWORDS: Application to review assessment of duty – Non- payment of assessed duty – jurisdiction of Tribunal Taxation Administration Act 2001, s 69 Queensland Civil and Administrative Tribunal Act 2009, ss 47, 61 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). REASONS FOR DECISION [1] Mr Cowie made an application to the Tribunal to review a decision of the Commissioner dated 21 June 2012 to disallow an objection in respect of the assessment of duty on the transfer of a property at 108/70 Marine Parade, Coolangatta. The original assessment of duty was as a result of the Commissioner determining that the transfer constituted a dutiable transaction as it was the creation of a trust of dutiable property. [2] The Commissioner had earlier issued an assessment notice on 20 February 2012 in the amount of $34,650 in respect of the transaction. [3] Mr Cowie’s application to review the decision was filed in the Tribunal’s registry on 23 August 2012. -- 1 of 3 -- 2 [4] The Commissioner has made an application to have Mr Cowie’s application for review dismissed pursuant to section 47 of the Queensland Civil and Administrative Act 2009. [5] The Tribunal made directions giving Mr Cowie an opportunity to make submissions in reply to the Commissioner’s application for dismissal and he has not done so in the time limited by the directions. The Tribunal will decide the application based on the material provided by the Commissioner. The Commissioners Submissions [6] The Commissioner’s grounds for dismissal are that Mr Cowie has not complied with the requirements of section 69 of the Taxation Administration Act 2001 which is the section of that Act which gives Mr Cowie the right to apply to the Tribunal to have the Commissioner’s decision reviewed. It is submitted that the jurisdiction of the Tribunal has not been enlivened and therefore Mr Cowie has no right to seek a review of the decision. [7] In particular it is stated that Mr Cowie has not paid the whole amount of the tax and late payment interest under the assessment to which the decision relates as is required1 before section 69 applies to enable the application for review to be made. A computer printout was submitted by the Commissioner which shows an amount of $36,911.31 including late payment interest being outstanding as at 30 September 2012. [8] The Commissioner cited the decision of Fleri v Commissioner of State Revenue2, where the Tribunal noted that its jurisdiction in regard to the review of decisions of the Commissioner is sourced in section 69 of the Taxation Administration Act 2001, and the Tribunal agreed that it has no jurisdiction to hear an application to review a decision of the Commissioner unless section 69(1) has been complied with. [9] It was further submitted that the Tribunal does not have power under section 61 of the Queensland Civil and Administrative Tribunal Act 2009 to waive this requirement, because it is a substantive mater going to jurisdiction, not merely a procedural requirement and the failure to comply with section 69(1) cannot be cured or waived by the operation of section 61(1) of the QCAT Act. [10] The Commissioner notes that Tribunals in general do not have power to deal with matters outside their jurisdiction, even if the parties purport to submit to the jurisdiction by consent. This assertion is said to be founded on a well-established principle that jurisdiction of a statutory tribunal cannot be enlarged by the consent of the parties.3 [11] The exercise of the Tribunal’s power to dismiss the application under section 47 of the QCAT Act is said to be supported by the decision of the Tribunal in Izard v Cairns Regional Council4 where the Tribunal determined 1 Section 69(1)(b) of the Taxation Administration Act 2001. 2 [2012] QCAT 135. 3 Jessup J in Australian Education Union v Lawler [2008] FCAFC 135 at para 185. 4 [2010] QCAT 410. -- 2 of 3 -- 3 that if it had no jurisdiction that would be grounds to strike out an application based on it being misconceived or lacking in substance. Conclusion [12] The Tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling act in accordance with section 17 of the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal’s jurisdiction in regard to the review of decisions of the Commissioner of State Revenue is sourced in section 69 of the Taxation Administration Act 2001. That section is stated to apply in accordance with section 69(1) of that Act if a taxpayer is dissatisfied with the commissioner’s decision on the taxpayer’s objection and the taxpayer has paid the whole of the amount of the tax and late payment interest payable under the assessment to which the assessment relates. [13] As the Tribunal found in the Fleri decision a right to review a decision of the Commissioner is conditional upon compliance with section 69(1) of the Taxation Administration Act 2001 and so the Tribunal jurisdiction is not enlivened unless and until there is compliance with those requirements. Non-compliance cannot be waived by the Tribunal under section 61 of the QCAT Act. [14] The Tribunal is satisfied based on the material provided by the Commissioner that the tax and penalty remains unpaid and so section 69(1)(b) has not been complied with. [15] As the Tribunal has no jurisdiction to hear this application the Tribunal considers the proceeding lacks substance in accordance with section 47(1) of the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal will dismiss the application to review in accordance with section 47(2) of the Queensland Civil and Administrative Tribunal Act 2009. [16] The Tribunal orders that the application for review is dismissed. -- 3 of 3 --