This is a matter which comes before the Tribunal on an objection against the imposition of parking space levy under the Parking Space Levy Act 2009 (PSLA). The levy years in question are 1 July 2010 - 30 June 2015.
There were 5 Notices of Assessment (Notices) issued. The taxpayer objected against the assessments on 24 May 2016 and the objection was disallowed on 12 December 2016. The appeal to the Tribunal was lodged on 30 January 2017.
The Tribunal has jurisdiction pursuant to section 96 of the Taxation Administration Act 1997 (TAA). The PSLA is a "taxation law" by s.4 TAA. Section 5 PSLA requires it to be read with the TAA.
The facts on which the assessments were raised are not in dispute. The taxpayers are the owners of the premises at Church St Parramatta (premises). It is described as a two storey commercial building housing a shop/café downstairs and offices upstairs. On 8 December 2014 an Office of State Revenue (OSR) Officer carried out a random site inspection of the car parking area at the rear of the premises. This area abuts a Council car parking area. She observed for 10-15 minutes and took photographs of the area. They depict a basic carport on steel pipe uprights with a blue car parked underneath it (SPACE 1). Beside and to the left of the carport is another space behind the premises in which a silver "Nimbus" model vehicle is parked (SPACE 2). Space 1 had a sign saying "Private Parking" and words identifying the café handwritten beneath attached to woodwork in front of the blue car. Space 2 had a "Private Parking" sign attached to the wall in front of the silver vehicle.
The Officer visited the premises again on 19 January 2015 (she corrected the date from 18 January in oral evidence) and observed the premises for 10 minutes and took more photographs. These photographs show the blue car in Space 1 as before and no vehicle in Space 2. On neither visit did she observe any activity taking place in the area used for parking at the premises.
The Officer did some investigations of the OSR's internal records and accessed a commercial property database and a spatial mapping database which shows a series of aerial photos including the premises with the boundaries of the premises overlaid onto the aerial photograph. These were all in evidence. The aerial photos dated 1 November 2012, 2 September 2013, 22 April 2014, and 21 November 2014 show a car parked in Space 2. The other aerial photos are indistinct and one could not safely say they show a vehicle in Space 2. They also show that the parked vehicles (and the carport) extend beyond the premises' rear boundary into what seems to be part of the Council car park, so that the cars are only partially parked within the boundaries of the subject premises. The internal records of the OSR showed the taxpayers were only registered through their annual returns for 1 parking space at the premises, and no exemption was claimed. The Notices of Assessment were prepared using the above information on the basis that there was 1 additional parking space there.
The taxpayers' evidence consisted of a photograph dated 22 December 2014 (i.e. after the OSR's first visit and receipt of advice of an audit) showing Space 2 empty and blocked by 2 'wheelie bins'. There were also comparison photos by OSR included. There was some irrelevant correspondence from Council about garbage bins; a copy of the lease of the café for the period 11 June 2011- 11 June 2014 with a 3 year option including one car space; copies of the managing agent's trust ledger indicating the tenant was bearing the parking space levy for 1 space; and copies of pre assessment period Notices and supporting documents and copy of original notice of assessment for the 2013-4 levy year.
The taxpayers, at the request of the Tribunal, also tendered (Exh B) a 40 year old survey of the premises, from which it was hoped to determine the area of the parking space at the rear of the building. Unfortunately the survey was illegible to the naked eye, and the taxpayer with consent later tendered a different, more recent and legible survey. This survey shows the parking area to be 6.73 metres wide including the right of way, and approximately 4 metres deep (i.e. an area of 26.92 square metres). The survey report states that the carport encroaches from 1.14 metres to 2.23 metres on adjoining land.
In the taxpayers' objection it was claimed that cars parked illegally in the area, and that 1 space was used for disabled parking, for bikes and motorcycles, for loading passengers and goods, or parking by persons providing services on a casual basis to the premises. No evidence was provided at the hearing to support these claims.
The taxpayers' representative submitted at the hearing that beside Space 2 there was a right of way and that persons parking in Space 2 could not block that, but there was no evidence of vehicles encroaching on to it. This does not appear to be a relevant consideration here in any case.
The Parking Space Levy Act 2009 (2009) (PSLA) relevantly provides as follows:
"7 Leviable premises
(1) For the purposes of this Act, premises are leviable premises in any financial year if, at any time during the previous financial year:
(a) the premises were located in a leviable district, and
(b) one or more parking spaces were situated on the premises.
(2) Despite subsection (1), premises are not leviable premises if they are declared by the regulations not to be leviable premises.
8 Imposition of parking space levy
(1) A parking space levy is imposed on 1 July each year on all leviable premises.
(2) The amount of the levy for any leviable premises is the amount calculated in respect of the premises in accordance with the regulations.
(3) A person who, as at 1 July in any year, is the owner of leviable premises is liable for payment of the levy for the premises.
(4) If the premises are owned by 2 or more persons, the owners are jointly and severally liable for payment of the levy.
(5) The levy is to be paid to the Chief Commissioner….
9 Lodging of returns
(1) A person who, as at 1 July in any year, is the owner of leviable premises must, on or before 1 September in that year, furnish a return to the Chief Commissioner in relation to the parking spaces situated on those premises at any time during the previous financial year…
(2) If the premises are owned by 2 or more persons, the requirements of this section are satisfied if a return is furnished by any one of them.
(3) A person's obligation to furnish a return under this section continues despite any failure by the person to furnish such a return in due time."
Relevant definitions are contained in section 4 PSLA:
"leviable district" means a district established by the regulations as a leviable district.
"leviable premises" --see section 7.
"levy" means the parking space levy imposed by this Act on leviable premises.
"owner", in relation to leviable premises, includes:
(a) any person who jointly or severally, whether at law or in equity, is entitled to the premises for any estate of freehold in possession, and
(b) any person who is entitled to receive, or is in receipt of, or if the premises were let to a tenant would be entitled to receive, the rents and profits of the premises, whether as beneficial owner, lessor, trustee, mortgagee in possession, or otherwise, and
"parking space" means a space that is situated on premises in a leviable district, being a space:
(a) that is used, or set aside, for the parking of motor vehicles, or
(b) that is declared by the regulations to be a parking space for the purposes of this Act.
"premises" includes any land and any building. …
(2) The regulations may establish a leviable district by reference to local government areas (or parts of local government areas), boundaries, plans or otherwise…
Section 14 PSLA permits the making of regulations
"(2) In particular, the regulations may make provision for or with respect to the following matters:…
the manner in which the number of parking spaces on any leviable premises is to be calculated….
Reg.9 of the Parking Space Levy (PSL) Regulation provides that the amount of the levy (as referred to in s.8(2) PSLA) for any premises for any financial year is determined in accordance with a formula in relation to each parking space on the premises which takes account of the base rate of levy for the year, the number of days in the previous financial year during which:
(a) the premises were in a leviable district, and
(b) the parking space was in existence, and
(c) the parking space was not an exempt parking space
and the number of days in the previous financial year (365 or 366, as the case may be).
Here the relevant regulation Reg. 6 PSL Regulations provides as follows:
6 Calculation of parking space numbers (s 14)
(1) The number of parking spaces on any premises is the sum of:
(a) the number of regular parking spaces in each parking area on the premises, and
(b) the number of stacked parking spaces on the premises.
(2) The number of regular parking spaces in a parking area is the sum of the following:
(a) in respect of those portions of the parking area in which parking spaces are designated in any way:
(i) the number of designated parking spaces in those portions, or
(ii) the number of parking spaces obtained by dividing the total area of those portions (in square meters) by 18, and disregarding any remainder,
whichever is the greater,
(b) in respect of those portions of the parking area in which parking spaces are not designated in any way, the number of parking spaces obtained by dividing the area of those portions (in square meters) by 18, and disregarding any remainder…."
Reg.2 contains relevant definitions as follows:
."parking area" means that part of any premises that is used, or set aside, for the parking of motor vehicles.
"regular parking space" means a parking space that is not a stacked parking space
So it will be seen that the parking space levy is imposed by s.8(1) of the PSLA itself on the leviable premises on 1 July each year, and the owner is liable to pay the levy. No process of assessment is required by the Chief Commissioner as such. However the Chief Commissioner in order to collect payment does generate a Notice of Assessment served on the owner , which in this case has led to these proceedings.
All owners of leviable premises are required by s.9(1) PSLA to lodge an annual return by 1 September each year regardless of whether parking spaces may be exempt. Returns were lodged by or on behalf of the taxpayers here in the levy years in question but they registered only 1 parking space.
Regulation 6(2) provides for the calculation of the number of regular parking spaces in a "parking area" meaning that part of any premises set aside or used for the parking of motor vehicles. If any portion of the parking area has parking spaces designated in any way then it is the number of parking spaces so designated in that portion; or the total area in square metres of that portion divided by 18 and disregarding any remainder- whichever is the greater.
Here the area of 26.92 square metres behind the building was used (according to the photographic evidence) and set aside (by signage stating that it was for "Private Parking") for the parking of motor vehicles. Parking for 1 vehicle was designated by the carport for Space 1 and the remainder of the area (Space 2) was available for parking (e.g. it was not permanently blocked off by say a bollard), and both spaces had a Private Parking sign attached to the building.
Even though the area was less than 36 square metres in area (which gave only 1 parking space under the alternative formula) the greater number of parking spaces (2) was under the 'designation method' even though the cars in the photographs were only partly parked within the designated parking spaces. That there were 2 parking spaces appears to have been conceded by the taxpayers earlier by claiming Space 2 to be exempt. I reject their supplementary submission that the "remaining area within the boundary at the rear of the property, shown on the survey, reflects space for only one car to be set aside for the parking of motor vehicles ..[pursuant to Reg.6(2)]".
It appears that the taxpayers wish to rely on a claim for exemption from parking space levy not made in their s.9 annual returns for Space 2.
Section 14 PSLA permits the making of regulations
"(2) In particular, the regulations may make provision for or with respect to the following matters:…
(c) the circumstances in which parking spaces may be exempted from the calculation of the levy,…
Here the provisions of the exempting regulation apparently relied on by the taxpayer is Reg.7 of the Parking Space Levy (PSL) Regulation which provides in relevant part as follows:
"Exempt parking spaces (s 14)
(1) A parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is set aside exclusively for one or more of the following purposes:
(a) the parking of bicycles or motor cycles,..
(c) the parking of motor vehicles by persons who hold mobility parking scheme authorities,
(d) the parking of motor vehicles for the purpose of loading or unloading goods or passengers, but not if vehicles are permitted to park in the space otherwise than while goods or passengers are being loaded or unloaded,
(e) the parking of motor vehicles by persons who, on a casual basis, provide services to the premises, other than vehicles used by employees, contractors or consultants whose usual place of work is on the premises,
The premises here are in a Category 2 area (Reg.3 and Sch1 Pt 2 par 5 PSL Reg.) and had parking spaces (i.e spaces used for the parking of vehicles) situated on them.
It is noted that the taxpayer bears the onus of proving its case by evidence on the balance of probabilities (s.100(3) Taxation Administration Act 1996 (TAA)). The taxpayer cannot assert that the Chief Commissioner has the burden of establishing that a space is not exempt. Accordingly the applicant has the onus by evidence to establish that the parking spaces in question here fall within the words of the exemptions from levy in Reg.7 PSL Reg.
As has been said recently in the case of Sterling House 88 v CCSR 2017 NSWCATAD 279 that to satisfy the onus, each parking space in contention would require the taxpayer to establish on the balance of probabilities that at all times (because the regulation uses the word "while") over the 5 levy years it has been set aside exclusively for one or more of the exempt purposes. The requirement of setting aside the space 'exclusively' for 'the' exempt purpose indicates that no other purpose (except another exempt purpose/s or an incidental purpose) is allowed. Setting aside could be achieved by the posting of appropriate notices which are in place and visible at all relevant times. "Private Parking" signs would not suffice.
The exemption for loading and unloading goods and passengers is not available if vehicles are 'permitted' to park in the space otherwise than for the required purpose. 'Permitted' is not defined. The Macquarie Dictionary defines 'permit' as follows: "1. to allow… to do something 2. to let be done or occur 3. to tolerate; agree to 4. To afford opportunity for; allow 5. to grant permission; allow liberty to do something 6. to afford opportunity or possibility". This would presumably require diligent supervision by the owner or its agents to ensure that vehicles are at no time allowed or tolerated to park in the space set aside other than exclusively for the exempt purpose.
[3]
CONSIDERATION
The taxpayers have offered no evidence that either of the 2 parking spaces are exempt. The claim has merely been made by their agent in the objection. I do not consider that the taxpayer has discharged its onus of proof regarding the use of the either space at the rear of the premises.
Further, as I said in Sterling House 88 v CCSR (supra) that in view of the requirement for all owners of leviable premises to lodge annual returns (s.9 PSLA) (even if all spaces are exempt or claimed to be so), and because the levy is imposed by s.8 PSLA itself without the necessity of a process of assessment as such, the Chief Commissioner can, having turned his mind to the matter, and having bona fide formed a view that the premises were in a leviable district and had parking spaces on them in the relevant years, issue these "retrospective" Notices and put the onus on to the owner to establish that it is not liable in those years to the parking space levy by reason of an exemption or for some other reason. All parking spaces on leviable premises (unless they are declared not to be leviable premises by the regulations (s.7(2) PSLA)) are subject to the levy unless the owner can establish that an exemption applies. It is not the Chief Commissioner's job to show that any exemption does not apply.
The assessments are affirmed.
[4]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 15 September 2017
Parties
Applicant/Plaintiff:
Christopher CK Soo Pty Ltd t/a C Soo Superannuation Fund & J Yap t/a Surgery Superannuation Fund