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[2008] WASAT 11
respondent. The decision of the Commissioner refusing the applicant's objection to the imposition of the 5% penalty tax for late payment of duty was affirmed; the applicant's application for review was...
Mr Anderson purchased land under a general conditional contract. His settlement agent mistakenly believed certain conditional contracts had to be lodged earlier and therefore lodged this contract on 20 June 2006. The Office of State Revenue assessed duty on 27 June 2006 and, because the duty was not paid by the due date, imposed a late payment penalty which was remitted to 5% under the Commissioner's published practice. The applicant sought full remission on the basis of the agent's misunderstanding. The Tribunal held the assessment and penalty were lawful, that the agent's mistake did not amount to the exceptional circumstances required by TAA 4.1 to remit the penalty to nil, and affirmed the Commissioner's decision.
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1,819 words · generated 29/08/2026
The applicant, Mr David Jeffrey Anderson, purchased a parcel of land that was part of a proposed subdivision (Lot 869 Kembla Circle, Madeley). The contract was a general conditional contract: completion was conditional on the seller obtaining subdivision approvals within 90 days (special condition 5) and a certificate of title for the subdivided lot had not yet issued ([29]-[33]). The applicant's settlement agent, Mr Peter James of Peter James Settlements, met with an Office of State Revenue (OSR) investigations officer, Mr Tony Ferrone, in about March–May 2006 in connection with enquiries about other contracts. Mr James later formed the belief that OSR had told him that vacant land subdivision conditional contracts needed to be lodged within two months of execution and that a 12‑month period for payment would follow ([22]-[26], [23]).
2 cited instruments linked from this judgment.
Relying in part on that understanding, Mr James lodged the Madeley contract with OSR for assessment on 20 June 2006 with a covering letter describing it as an 'off the plan' subdivision and asking for 'additional time for presentation of this offer without penalty' ([28]). OSR assessed duty on 27 June 2006 ($7,720) and set the payment due date at 27 July 2006 ([34]). Payment was not made by that date. A penalty assessment under s 27(1) of the Taxation Administration Act 2003 (TA Act) was issued on 4 August 2006 in the amount of $386 (5% of the primary duty) and reminders followed ([36]-[37]). Mr James sought remission and extensions by letters of 8 August and 5 September 2006 ([35], [38]-[39]). The Commissioner remitted the statutory 20% penalty to 5% under the published Commissioner's Practice TAA 4.1 but refused further remission to nil. The applicant sought review in the State Administrative Tribunal. The Tribunal heard the matter on 17 January 2008 and delivered reasons on 25 January 2008, affirming the Commissioner and dismissing the review ([HEARD], [DELIVERED], [69]).
Three legal and practical points drove the Tribunal's decision.
Statutory framework and assessment consequences. Under the Stamp Act 1921 (WA), a person liable to pay duty on a general conditional contract must lodge the contract within statutorily prescribed periods and duty is payable within one month after the date of the assessment notice for general conditional contracts (see the statutory scheme at [10]-[18], and the explanation in [15]-[18]). Where an instrument is lodged and assessed, the statutory payment obligation arises and cannot be sidestepped by an assertion that the instrument could have been lodged later.
Commissioner's lawful remission policy. The Taxation Administration Act gives the Commissioner power to remit penalty tax (s 29(1) TA Act) and to publish practices under s 30(1). The Commissioner had published Practice TAA 4.1, which provides that the default 20% penalty will be remitted to 5% routinely but that further remission to nil will be exceptional and listed some examples (see [44]-[47]). The Tribunal treated TAA 4.1 as a lawful exercise of administrative discretion and as the relevant standard against which to measure claims of exceptional circumstances.
Application of the law to the facts. The Tribunal accepted that Mr James had been under a misunderstanding about lodgement/payment windows, but it found that the Commissioner had previously published explanatory materials (Fact Sheet 1 July 2004; Circular 82, February 2006) and had conducted education sessions; by mid‑2006 an experienced settlement agent should have appreciated the correct law ([20]-[21], [52]). Critically, once the contract was lodged and assessed the duty became due and payable; Mr James should have caused payment on receiving assessment. The Tribunal concluded that the agent's mistake did not amount to the exceptional circumstances required by TAA 4.1 to remit the 5% penalty to nil ([51]-[55], [62]-[67]). The Tribunal also rejected the submission that the assessment officer should have read the covering letter and held back assessment or enquired into the agent's subjective intent: given the volume of lodgements and OSR operational practice, that was neither reasonable nor required by the Stamp Act ([57]-[61]).
Accordingly, the Tribunal concluded the Commissioner had not erred in remitting to only 5% and affirmed the decision ([67]-[69]).
Before the 2004 amendments to the Stamp Act the industry had a prevalent practice in which some settlement agents treated conditional contracts differently; the term 'off‑the‑plan' had a commonly understood meaning outside the statutory definitions. The 2004 amendments introduced statutory definitions and differential lodgement and payment regimes for general conditional contracts, subdivision conditional contracts, and off‑the‑plan conditional contracts. The OSR issued Fact Sheets and Circular 82 to clarify these changes (see [19]-[21], [22]).
The Tribunal's decision confirms two points in the 'after' state:
Thus, the decision reinforces that formal compliance with lodgement dates and payment deadlines is decisive and that administrative leniency beyond published policy will be exceptional.
Paragraph 1: "The applicant bought a property ... The Commissioner then imposed penalty tax of 5% of the primary duty."
Paragraphs 45–47 (TAA 4.1 description): The Tribunal records that TAA 4.1 remits 20% to 5% routinely, and that further remission to nil is only in exceptional circumstances, with examples such as misdirected payment or immediate payment on the day the penalty notice issued.
Paragraph 57–61 (assessment officer duties and document volume): The Tribunal says it is unreasonable to expect assessment officers to investigate every covering letter; OSR receives many documents daily, making such policing impracticable.
Paragraph 67 (concluding reasoning): "the law ... is clear: duty was payable on the contract when actually lodged; the duty assessed should have been paid within one month ... and exceptional grounds do not exist for the remission of the 5% penalty tax imposed."
This decision speaks directly to situations where:
If a contract is a general conditional contract and is lodged and assessed, and the duty is unpaid by the statutory due date, this decision supports that a mere misunderstanding by the lodging agent will not, by itself, justify remission to nil. Conversely, where a payment was in fact misdirected to another authority or the taxpayer paid on the same day as the penalty notice and has an excellent payment record (examples in TAA 4.1), the decision leaves room for different outcomes consistent with the Commissioner's practice.
The judgment expressly cites Miller and Commissioner of State Revenue [2006] WASAT 336 at [49] in support of acknowledging the legitimateness of published remission policies; the Tribunal relied on that principle rather than treating TAA 4.1 as novel. The decision itself is a tribunal-level administrative review and therefore persuasive authority for similar Tribunal matters and lower courts; it upholds the administrative discretion exercised in accordance with published policy. The decision emphasises administrative practicality and the limits of assessment officers' duties, an approach likely to be followed in fact patterns involving high document volumes and routine assessment activity.
(As this deep dive is grounded solely in the text of Anderson, the account of 'how later courts have treated it' is limited to the Tribunal's own citation practice and to the logical consequences for similar administrative review applications. No additional later-court treatment beyond what appears in the decision is extracted here.)
This decision is a useful, practical marker: early lodgement triggers assessment and payment obligations; the Commissioner's published remission policy is given effect; and mistaken belief by an experienced agent will not, in the absence of exceptional additional factors, erase a penalty once an assessment has been properly made.
Note: This is a structured legal-information analysis grounded in the Anderson and Commissioner of State Revenue [2008] WASAT 11 decision. It is not legal advice. I can make mistakes. Before you act on, rely on, or use this material or any draft arising from it, get a qualified Australian lawyer to check it.
ACT : TAXATION ADMINISTRATION ACT 2003 (WA)
CITATION : ANDERSON and COMMISSIONER OF STATE REVENUE [2008] WASAT 11
Stamp duty - Penalty - Late payment of duty on general conditional contract - Misunderstanding as to time for lodgement and time for payment - Commissioner's Practice TAA 4.1
1 The applicant bought a property which was the subject of a proposed subdivision in respect of which a certificate of title had not yet issued. The applicant's settlement agent, after meeting one of the Commissioner's officers in relation to another client's property, misconceived the time periods for lodging general conditional contracts and paying the duty assessed on them. The applicant's settlement agent did not arrange for payment of duty within the time allowed. The Commissioner then imposed penalty tax of 5% of the primary duty.
2 The Tribunal closely considered the provisions of the Stamp Act 1921 (WA) and determined that the Commissioner's decision to impose penalty tax of 5% was correct in law.
3 The primary issue for determination in these proceedings is whether the Commissioner was right to remit penalty tax imposed for the late payment of duty on a general conditional contract to 5% of the amount of primary duty and not to have wholly remitted such penalty tax.
4 The Stamp Act 1921 (WA) (Stamp Act) provides for the payment of duty on, amongst other instruments, general conditional contracts, subdivision conditional contracts and off-the-plan conditional contracts.
5 A "general conditional contract" is an "eligible conditional contract", completion of which is conditional on the happening of one or more specified events under the Stamp Act as specified in the contract, including:
the obtaining to the satisfaction of a purchaser under the contract of funds or approval to obtain funds to finance the purchase; and
completion of the contract is conditional on the happening of an event; and
8 An "offtheplan conditional contract" is a "general conditional contract" which includes provision for:
10 The person who is or may be liable to pay duty on a general conditional contract must lodge the contract with the Commissioner:
if the contract becomes unconditional within one month after the date on which it was first executed within two months after that execution date; and
12 The person who is or may be liable to pay duty on a contract which is an "offtheplan conditional contract" or a "subdivision conditional contract" must lodge the contract with the Commissioner within two months after the day on which the contract was first executed: s 17BA(5)(c) and s 17BA(5)(d), Stamp Act.
13 It may be seen then that the lodgement requirement in respect of an offtheplan conditional contract or a subdivision conditional contract within two months after the day on which the contract was first executed may be more onerous than the obligation to lodge a general conditional contract either within one month after the date on which the contract becomes unconditional or within 12 months after the date on which it was first executed, whichever is earlier, or if the contract becomes unconditional within one month after the date on which it was first executed, then within two months of that date.
14 However, the obligation created by the Stamp Act to pay duty is more generous in the case of an "offtheplan conditional contract" or a "subdivision conditional contract" within two years after the date on which the contract was first executed or one month after the date of the assessment notice, whichever is the later compared with the obligation to pay duty on a general conditional contract that is, within one month after the date of the assessment notice.
16 On the sale of land or conveyance or transfer of any other property the purchaser is liable to pay duty on the transfer under the Transfer of Land Act 1893 (WA): s 17(1)(a) and Item 4, Second Schedule, Stamp Act.
17 The contract or agreement for the sale of any estate or interest in any property is charged with the same ad valorem duty to be paid by the purchaser as if it was an actual conveyance on sale of the estate, interest or property contracted or agreed to be sold. Where such duty has been paid the conveyance of transfer concerned shall not be chargeable with duty: s 74(1) and s 74(4), Stamp Act.
19 The provisions concerning the different types of conditional contracts were inserted into the Stamp Act and became effective in early 2004. They were calculated to require close consideration in the development and related industries, including amongst conveyancers and property settlement agents. Amongst other things, the expression "offtheplan" was most commonly understood in the general community prior to 2004 to be a reference to the purchase of a house and land package where the house to be acquired was to be constructed "offtheplan" which the purchaser had agreed to. However, as noted above, the statutory definition in the Stamp Act of an "offtheplan conditional contract" gave the expression a particular meaning in relation to a strata lot on which construction of a building was proposed.
20 The Commissioner obviously recognised the need to educate persons likely to be affected in practice by these new provisions and first published a Fact Sheet dealing with Conditional Contracts under Pt II of the Stamp Act as at 1 July 2004. The fact sheet took the trouble to explain the nature of general conditional contracts, farming land conditional contracts, offtheplan conditional contracts, mining tenement conditional contracts and subdivision conditional contracts. It explained when these various conditional contracts were required to be lodged and explained the type of payment on certain conditional contracts. The fact sheet further noted that a penalty tax applied for the late lodgement of documents and late payment of stamp duty. It also gave contact details for persons to contact the Office of State Revenue.
21 In February 2006, the Commissioner also issued Circular 82 concerning lodgement and payment requirements for certain conditional contracts, noting in the first paragraph:
"It has become apparent that some lodging parties are unsure of when a conditional contract is a general conditional contract, an off-the-plan conditional contract or a subdivision conditional contract.
The purpose of this Circular is to clarify the differences between the abovementioned classes of eligible conditional contracts and to encourage agents to re-examine contracts that they have in their possession and are holding pending lodgement."
The circular advised that the Office of State Revenue would be providing customer education sessions and explained the process of booking a place.
22 In this context, in about March 2006, a senior investigations officer of the Office of State Revenue, Mr Tony Ferrone, carried out an investigation into compliance with the provisions relating to "offtheplan conditional contracts" under the Stamp Act in respect of the sale of a proposed strata title property in Rivervale. To this end he met with Mr Peter James of Peter James Settlements, who was also acting for the applicant in respect of the purchase of a property.
23 As Mr James explained in evidence to the Tribunal, he up to that point had been labouring under the impression that he had a longer period 12 months in which to lodge conditional contracts for the assessment of stamp duty. This was the practice he had been following for many years as a settlement agent. Mr Ferrone disabused Mr James of his misunderstanding and in particular explained that "offtheplan conditional contracts" needed to be lodged within two months of execution under s 17BA of the Stamp Act.
24 Mr Ferrone then impounded the documentation relating to the contract concerning the Rivervale apartment, which was considered to be an "offtheplan contract" not lodged in time. He was then advised by Mr James of another contract, in relation to the sale of a Raffles Waterfront apartment, which Mr James thought was probably also an "offtheplan conditional contract". Mr Ferrone then impounded that contract as well.
25 Mr James says that, in his conversation with Mr Ferrone, Mr Ferrone told him that the same lodgement rule applied in respect of the sale of "vacant land" conditional contracts, and that they also needed to be lodged within two months of the date of execution.
26 Mr Ferrone, who gave evidence at the hearing at the Tribunal, does not believe that he gave any such advice concerning vacant land conditional sale contracts. He has no recollection of doing so. He referred to notes that he made at the time of his meetings with Mr James between March and May 2006 which make no mention of him giving any such advice or discussion.
27 In any event, Mr James subsequently considered the various contracts he was then dealing with in his business to ensure that he was compliant with the requirements of the Stamp Act. Amongst other things, Mr James was not only a licensed settlement agent but also an approved person for the purpose of completing on-line stamping under the Stamp Act, pursuant to arrangements made with the Office of State Revenue. Naturally enough Mr James wished to ensure that all of his activities were entirely professional and in accordance with the law.
28 As a result of these considerations, on 20 June 2006, soon after he had completed discussions with Mr Ferrone, Mr James lodged a contract for assessment of stamp duty with the Commissioner of State Revenue in respect of the purchase by the applicant of Lot 869 Kembla Circle, Madeley. The letter was in these terms:
"Please find enclosed Offer for assessment of stamp duty.
The contract represents an "off the plan" sub-division and we have recently been informed that offers for off the plan sales are required to be lodged for assessment of duty within 2 months even though payment of duty is not yet required until issue of Titles or within 2 years of assessment.
We have now been through all contracts held in this office and have put into place a system to prevent the delay in presentation of this type of offer and trust you will allow additional time for presentation of this offer without penalty."
29 The contract referred to in the letter and enclosed with it for assessment of duty was entitled "Contract for Sale of Land by Offer and Acceptance". It was in respect of land situated at and known as Lot 869 Kembla Circle, Madeley, being a portion of land the subject of proposed subdivision in respect of which a certificate of title had not yet issued. It was not a contract in respect of the sale of the proposed strata lot or a contract that involved the construction of a building on it. Nor was it a contract conditional on the purchaser obtaining relevant approvals for subdivision.
30 In short, the contract in question was not an "offtheplan conditional contract" or a "subdivision conditional contact" as defined by the Stamp Act. Accordingly, the reference in the covering letter to an "offtheplan" subdivision was, to say the least, a little misleading.
31 However, the contract in question plainly was a "general conditional contract" as defined, as amongst other special conditions it included a condition that the offer was subject to the seller receiving satisfactory approvals for subdivision from all relevant authorities within 90 days of acceptance of the contract (see special condition 5).
32 In those circumstances, the applicant or his agent was not required to lodge the contract in question with the Commissioner for an assessment of duty within the two month period following execution, as in the case of an "offtheplan conditional contract", unless the contract became unconditional within one month after the date on which it was first executed. Rather, in all likelihood, the applicant or his agent did not need to lodge the contract for stamping until it became unconditional (and then only within one month) or within 12 months of the date on which the contract was executed.
33 Of course, if the applicant or his agent did not need to lodge the contract in question until near the end of the 12 month period following execution, then an assessment notice would not issue in respect of it and the obligation to pay the duty within one month of the assessment notice would not have arisen for a good 12 months. In this case, the contract in question was executed by acceptance of the offer by the seller on 20 February 2006. In all likelihood, therefore, the general conditional contract in question did not need to be lodged for assessment until February 2007.
34 However, because the contract in question albeit that it was a general conditional contract was lodged under cover of the letter from Mr James of 20 June 2006, a notice of assessment was issued by the Office of State Revenue. On 27 June 2006 the notice of assessment was sent to Peter James Settlements in the amount of $7,720. The due date for the payment of the assessed duty was clearly stated as 27 July 2006, one month later.
35 Mr James did not cause the payment of the assessment notice on or before 27 July 2006. Instead, by letter dated 8 August 2006, he wrote to the Office of State Revenue noting that:
"During a visit to your office in relation to an assessment of duty ... we were informed that it is necessary to present Contracts relating to vacant land sub-divisions within two months of acceptance. These would be assessed for duty and a period of 12 [months] granted to effect payment.
It now seems that the Commissioner requires assessment of vacant land sub-division to be paid within 1 month of issue, not 12 months as advised by yourself.
...
Previous to your advice it was our usual office practice to present conditional contracts for vacant Sub-Divisional Land within 12 months for assessment. Due to the misunderstanding of your instructions, we now request additional time for payment of up to 11 months from the date of assessment in relation to the enclosed Notices."
36 The letter from Mr James dated 8 August 2006 appears to have been prompted by his receipt of a notice of penalty tax issued on 4 August 2006 in respect of the applicant's purchase. The Commissioner imposed a penalty tax under s 27(1) of the Taxation Administration Act 2003 (WA) (TA Act) in the amount of $386 (being 5% of the primary duty) and issued a late payment penalty tax assessment notice on 4 August 2006.
37 The Commissioner sent a reminder letter dated 4 September 2006 to the applicant requesting the payment of the outstanding amounts for assessed duty and penalty tax (a total of $8,106) by 22 September 2007.
38 By letter dated 5 September 2006, Mr James again wrote to the Commissioner enclosing six notices for penalty tax (including the applicant's) and requesting remission of the fines levied and an extension of time for payment of stamp duty.
39 However, in the letter of 5 September 2006, Mr James set out the circumstances in which he says that he was advised by Mr Ferrone that it was necessary to lodge a conditional contract for vacant land within two months of execution.
40 Mr James' contention was that if he had not been incorrectly advised in this regard by Mr Ferrone, he would not have lodged the general conditional contract until much later, would not have received the initial assessment of duty as early as he did and would not have been obliged to pay, on behalf of the applicant, the required duty. Of course, on this view he would not have incurred any penalty tax.
41 Thus the issue arises in these proceedings whether in deciding to remit penalty tax to 5% of the amount payable, the Commissioner erred. Mr James on behalf of the applicant says that in all the circumstances, taking a more compassionate approach to the confusion which has arisen in his mind and in the industry, he should not be penalised by the penalty tax assessments that arose from the lodgement of the general conditional contracts at a time earlier than actually required under the Stamp Act.
42 The Commissioner says the case for the imposition of a penalty for late payment of duty is incontestable.
43 The Commissioner points to the fact that the relevant instrument the contract was lodged on 20 June 2006 for assessment of duty. It was duly assessed and a notice was issued on 27 June 2006 requiring payment within a month. The payment was not made, and, in accordance with the usual policy of the Commissioner, the penalty of 5% of the amount of duty payable was imposed. The Commissioner says there are no reasons to support the reduction of the penalty tax payable to nil.
44 Ordinarily the person in the position of the applicant is liable to pay an amount of penalty tax equal to 20% of the amount outstanding on the due date. However, the Commissioner has the power to remit penalty tax wholly or in part: s 29(1), TA Act.
45 In accordance with s 30(1) of the TA Act, the Commissioner published the 'Commissioner's Practice TAA 4.1 Remission of Penalty Tax for Late Payment Commissioner's Assessments' which provide the Commissioner's practice for remitting penalty tax on the late payment of instruments.
prior to a penalty tax assessment being made a penalty tax of 20% of the outstanding amount imposed by s 27 of the TA Act will be remitted to 5%; however,
a penalty tax assessment notice will be issued if the stamp duty assessed is not paid within seven days after the due date.
"Further remission of the 5% late payment penalty to nil will only be considered in exceptional circumstances, which may include, but are not limited to:
payment of tax is received on the same day as the penalty tax assessment notice was issued, and a check of the taxpayer's history shows a good payment record;...
payment was inadvertently directed to the wrong Authority (eg. Australian Taxation Office, Department of Land Information or another State or Territory revenue office) and such payment was made within the required time."
48 The Commissioner says none of the exceptional circumstances are relevant here.
49 The Tribunal has previously acknowledged the appropriateness of having a policy concerning the remission of penalty, albeit in a different context: see Miller and Commissioner of State Revenue [2006] WASAT 336 at [16], referring to Commissioner's Practice TAA 1.2.
50 In this case, the applicant, through Mr James, says that the advice that Mr James says he received from Mr Ferrone concerning the need to lodge a conditional vacant land contract within two months of execution, which he relied on, has led to the imposition of the penalty tax. Because of that, Mr James contends on behalf of the applicant that there are exceptional circumstances here that should lead to the penalty tax being reduced to nil.
51 In the view of the Tribunal, the position of the applicant, and more particularly Mr James as the responsible settlement agent, whilst unfortunate, does not constitute acceptable grounds for the complete waiver of penalty tax.
52 While it appears from the material before the Tribunal and from Mr James' evidence to the Tribunal, that Mr James laboured under some misunderstanding as to the conditional contract lodging and duty requirements introduced in early 2004, as of the middle of 2006, the Commissioner had earlier issued guidelines and the true position really should have been appreciated by an experienced settlement agent in Mr James' position by that time.
53 Furthermore, even though it may have been the case that Mr James did not need to lodge the applicant's contract for duty as early as he did on 20 June 2006, once he received the assessment he should have seen to its payment. The contract is a general conditional contract. There was never any doubt about that and is no dispute about that. Once the assessment notice was received, Mr James should have seen to its payment. If he had done that, then no question of the penalty tax would have arisen.
54 Mr James' complaint has always been that he should not have had to pay the duty as early as he did. If he had appreciated the true nature of the contract and understood the Stamp Act requirements, he would not have lodged the contract until much later, at a time when he was in receipt of the funds from his client, the applicant, to meet that required expense.
55 Mr James' actions, once the notice of assessment was received, were all designed to have the time for payment of the duty extended. Unfortunately, the instrument, being the contract, had been lodged and, once in the hands of the Commissioner, was properly assessed for duty.
56 Whilst Mr James gave evidence of some informal practices over the years in the Stamps Office of an assessment officer allowing a settlement agent to keep possession of an instrument that the settlement agent had intended to lodge for duty, because the time for lodgement could in fact be held back until a later date, that is merely an informal practice. In this case the contract was lodged for assessment by Mr James under cover of his letter of 20 June 2006. It was appropriate for the assessment officer in the Office of State Revenue to assess duty and to issue the assessment notice.
57 Mr James points to his covering letter and also to the Stamp Duty document lodgement and assessment form lodged with it which indicates that he thought that the contract was an offtheplan conditional contract. From this Mr James contends that the assessment officer should have read the covering letter and that form and realised that Mr James only intended to lodge the contract for assessment of duty if the assessment officer considered it to be an offtheplan conditional contract.
58 For my part, I think that is asking much too much of an assessment officer whose job it is to receive many hundreds of instruments for stamp duty assessment each day, as part of their ordinary duties. It is unreasonable to expect the assessment officer or some other officer within the Office of State Revenue will undertake the task of determining whether a person who has lodged an instrument for assessment of stamp duty could have, if they so wished, lodged the instrument at a later date and so delayed the payment of duty.
60 The Commissioner points out that there was a daily average of 650 documents lodged in the year between 1 July 2006 and 30 June 2007. This certainly supports the Commissioner's contention that it would be administratively onerous for the Commissioner's officers to check that all covering letters to documents reflect a correct understanding of the law and impracticable when assessing instruments in a timely and efficient manner.
61 For my part, the assessment officer, when dealing with the assessment of the contract, does not usually labour under some duty to make further enquiry as to whether a contract is or is not an offtheplan conditional contract, or to consult the person who lodged the instrument for assessment of stamp duty to check on their intentions in requesting assessment of duty.
62 While it is quite clear that Mr James personally laboured under some misapprehensions as to the requirements of the Stamp Act in respect of a contract of the sort in question, that misapprehension does not lead to a finding that there are exceptional circumstances in this case, such that the penalty tax imposed should be reduced to nil.
63 The Tribunal notes that Mr James says that he was actually advised by Mr Ferrone that a vacant land conditional sale contract should also be lodged within a two month period of execution. I am not satisfied on all of the evidence that Mr Ferrone did so advise. By the time Mr Ferrone met with Mr James in the period March to May 2006, the Commissioner's officers had been involved in clarifying with various persons likely to be affected by the relevant Stamp Act provisions just what their obligations were. Mr Ferrone does not believe that he provided any ambiguous or confusing advice. He made no note to the effect that he advised Mr James about vacant land conditional sales.
64 While Mr James believes that he was given such advice, he acknowledges also that it is a possibility he interpreted the advice that he did receive from Mr Ferrone about relevant conditional contracts as applicable to conditional contracts concerning sales of vacant land.
65 In any event, as noted earlier, once the assessment of duty was issued, the applicant's obligation was to pay it. If it had been paid then no penalty tax would have been imposed.
66 The Tribunal is pleased to note, however, that following these events Mr James availed himself of the opportunity to participate in information sessions provided by the Commissioner and clarified for himself exactly what would be required of him in the future.
67 In all of these circumstances the Tribunal considers that whilst, from Mr James' point of view, the imposition of even a 5% penalty tax seems harsh, the law concerning the lodgement of instruments for assessment of duty and the payment of duty is clear: duty was payable on the contract when actually lodged; the duty assessed should have been paid within one month of the notice of assessment; and exceptional grounds do not exist for the remission of the 5% penalty tax imposed by the Commissioner.
68 In these circumstances the Commissioner's decision refusing the objection to his penalty tax decision should be affirmed and the application for review dismissed.
69 For the reasons given above, the following orders should be made:
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
The decision of the Commissioner refusing the applicant's objection to the imposition of the 5% penalty tax for late payment of duty was affirmed; the applicant's application for review was dismissed (orders [69(1)-(2)]).