Dattani v Chief Commissioner of State Revenue [2026] NSWCATAD 65;

1. Where duty has been assessed, s 86 of the Taxation Administration Act 1996 (NSW) ("Administration Act"), allows rights of objection to a taxpayer dissatisfied with an assessment. This is an internal review process under which the Chief Commissioner of State Revenue, the Respondent in these proceedings, must consider and determine the objection (s 91 of the Administration Act). On the facts at hand, that determination happened on 26 May 2025.
2. A taxpayer who is dissatisfied with the decision made upon the Respondent's determination of an objection, may apply to the Tribunal for an administrative review under the Administration Act of the decision of the Chief Commissioner of State Revenue the subject of the objection. These circumstances have arisen in the present matter as set out in the background above, so bringing the matter within the jurisdiction of the Tribunal.
3. The onus of proving his case lies with the Applicant (s 100(3) of the Administration Act).
4. The Tribunal, dealing with the taxpayer's application, may do one or more of the following under s 101 of the Administration Act:

"(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit."

1. Two matters arise for consideration. They are whether;

(1) Penalty tax can be assessed; and

(2) interest can be assessed.

1. The assessment of penalty tax and interest requires, as a preliminary matter, consideration of the taxpayer's statutory obligations to pay surcharge purchaser duty and the circumstances surrounding the failure to pay on time.
2. The Duties Act charges duty on "dutiable transactions" (s 8). The list of "dutiable transactions" that can be charged with duty includes an "agreement for the sale or transfer of dutiable property" (s 8(1)(b)(i)). "Dutiable property" includes "land in New South Wales" (s 11(1)(a)). That the agreement for sale of the residential property in New South Wales was a dutiable transaction was not in dispute.
3. Duty is applicable at the general rate set out in Division 2 of Part 3 of Chapter 2 of the Duties Act. The assessment of that duty is not in dispute. In addition to duty assessed at the general rate, further duty may apply to a dutiable transaction in certain cases. Further duty is chargeable on an agreement for the sale or transfer of "residential related property" to a "foreign person" (s 104L of the Duties Act). That duty is called "surcharge purchaser duty". The assessment of surcharge purchaser duty is also not in dispute.
4. Surcharge Purchaser Duty must be paid within 3 months of the date of the agreement for sale or transfer (s 104W of the Duties Act). There is no dispute that surcharge purchaser duty was not paid within the required 3 month period.

1. In circumstances where a tax liability has not been discharged within the required 3 month period referred to at [24] above, a tax default arises. The Respondent submitted that the tax default in the present matter, allowed him to assess penalty tax (and interest) on the unpaid surcharge purchaser duty.
2. The Respondent's power to assess penalty tax arises under s 26 of the Administration Act. It is imposed in addition to interest. The Administration Act expressly provides that the imposition or remission of interest is not relevant to the imposition or remission of penalty (s 33(2); see also s 25(4)).
3. The amount of penalty tax payable for a tax default is relevantly set at a default rate of 25% of the amount of tax unpaid (s 27).
4. The Respondent has the power to make certain variations to the amount of penalty tax. He may increase the amount of penalty tax in certain circumstances based on the degree of culpability of the taxpayer that are not presently relevant.
5. The Respondent in addition has the power to reduce the amount of penalty tax to 20% if, after the Respondent informs the taxpayer that an investigation relating to the taxpayer is to be carried out and before it is completed, the taxpayer discloses to the Respondent, in writing, sufficient information to enable the nature and extent of the tax default to be determined (s 29). The Respondent reduced the rate of penalty tax to 20%.
6. The Respondent may go further and determine that no penalty tax is payable in respect of a tax default, if satisfied that the taxpayer or a person acting on behalf of the taxpayer, took "reasonable care" to comply with the taxation law (s 27(3)). The Respondent did not use this power to remit penalty tax in its entirety. The Applicant considers that he should have done so, submitting that the power had no relevant limits. The Applicant also relied on the fact that she had sought legal advice. She thought that this entitled her to a full remission of penalty tax.
7. Section 33 of the Administration Act allows the Respondent a power to remit penalty tax in addition to that allowed under s 27. He may "in such circumstances as the Chief Commissioner considers appropriate, remit penalty tax by any amount". The Court of Appeal in Chief Commissioner of State Revenue v Downer EDI Engineer Pty Ltd (2020) 103 NSWLR 772; [2020] NSWCA 126 ("Downer EDI") considered that the power of remission under s 33 was not limited either expressly or by necessary implication by the mandatory reductions required by ss 28 and 29 of the Administration Act. Bathurst CJ said:

" .... it does not seem to me that the power in s 33 of the TAA to remit penalty tax "in such circumstances as the Chief Commissioner considers appropriate" is limited either expressly or by necessary implication by the mandatory reductions required by ss 28 and 29. These mandatory reductions are a relevant matter for the Commissioner to take into account in considering whether to exercise the power to remit in s 33 but they do not limit that power.

As the Chief Commissioner pointed out, in Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue Ward CJ in Eq stated at [301] that except in special circumstances, the general discretion under s 33 should not be exercised beyond the limits in ss 27(3) and 29 when the circumstances giving rise to a remission under s 27(3) of the TAA had not been made out. However that was a matter of discretion not power".

1. The Respondent decided not to remit the entire penalty because in the Respondent submission, the taxpayer had not taken reasonable care.
2. Whether or not the Applicant took reasonable care, first of all, requires consideration of what disclosure she made to her solicitor and whether that disclosure was adequate. The evidence was that the Applicant had provided to her solicitor information as to both her Canadian citizenship as well as the particular bridging visa she held. This happened on 29 January 2020 before the transfer of the residential property. The Respondent did not contest the evidence that the Applicant had made this disclosure.
3. There was no dispute that the information the Applicant provided to her solicitor on 29 January 2020 was sufficient to establish that the Applicant was a "foreign person" and that she did not qualify for exemption from surcharge purchaser duty. That information included her Canadian citizenship as well as the kind of visa she had, namely a bridging visa.
4. The Purchaser/Transferee Declaration prepared by the Applicant's solicitor and then completed by the Applicant correctly disclosed her citizenship as Canadian. However, it also described her as an "exempt permanent resident". The Applicant accepted that this was a wrong statement because the kind of visa the Applicant held did not allow her to claim that status. However, she said that at the time of making the Purchaser/Transferee Declaration, she relied on the advice from her solicitor. She said that the wrong statement was not the result of insufficient disclosure on her part but the result of relying on her solicitor.
5. I agree that the level of disclosure the Applicant made was sufficient.
6. The Respondent, however, says that regardless of the disclosure the Applicant made, the Applicant did not take reasonable care. This is because she did not request specific advice about surcharge purchaser duty generally, or by reference to her residency status specifically. The Respondent also says that the Applicant did not receive express legal advice that she was not liable to surcharge purchaser duty that she could rely upon. Further, the Respondent relies upon the wrong statement made in the "Purchaser/Transferee Declaration" that the Applicant was an "exempt permanent resident" when she was not, to support his submission that the Applicant did not take reasonable care.
7. I do not think that taking reasonable care requires a taxpayer to identify the applicable questions of law or fact going to the determination of their tax liability when seeking legal advice, such as whether or not surcharge purchaser duty is payable or whether or not the visa status of the taxpayer allowed them to claim exemption from surcharge purchaser duty. Identification of the relevant questions is for the solicitor to do.
8. Having identified the questions their client needs to answer and obtaining from their client their instructions including the information the solicitor needs in order to advise, it is for the solicitor to provide the advice sought. What the Applicant for her part had to do, was provide to her solicitor the information the solicitor needed to provide advice. This the Applicant did, having provided to her solicitor both information as to her citizenship and also the kind of visa she had.
9. I do not think that there was a failure on the part of the Applicant by not asking specifically whether surcharge purchaser duty applied to her, or any other question that went to determination of whether that duty applied. These were questions for the solicitor to identify. The Applicant was not in a position to receive advice as to whether or not she was subject to surcharge purchaser duty until her solicitor had, first of all, identified this as a question and then advised on the correct position. This the solicitor did not do. I cannot see, in these circumstances, that the Applicant was in default by not specifically obtaining advice on surcharge purchaser duty as submitted by the Respondent.
10. In El Chami v Chief Commissioner of State Revenue [2025] NSWCATAD 266 ("El Chami"), the Tribunal considered a situation where the taxpayer's advisor had not taken reasonable care to comply with a taxation law. Senior Member Sullivan said of the taxpayer in that case, that "a reasonable person in her position would have assumed that ... [the adviser] ... would raise any matters regarding duty payable with her (given he had provided duty advice to her)".
11. I agree with what the Tribunal said in El Chami about the assumptions a taxpayer can make when seeking legal advice, including having an expectation that the advisor will identify and raise the questions that need to be answered to enable the advisor to determine what duty is payable. The taxpayer's own task is to provide correct information to their solicitor when instructing them and correctly answer any questions put to them by the solicitor.
12. The terms of the retainer between the Applicant and her solicitor also bears relevance in identifying what the Applicant could expect of her solicitor. There are various items of advice from the solicitor about the acquisition of the residential property in issue, set out in the solicitor's letter dated 29 January 2020 that was in evidence. I accept the matters advised upon in that letter as evidence of what the solicitor was called upon to advise under their retainer.
13. The solicitor's advice of 29 January 2020 expressly addresses duty. It quantified what they said was the duty payable. It also specifically speaks to the contents of the "Purchaser Declaration". That declaration on its face describes its purpose, including collecting information whether a transaction is subject to surcharge purchaser duty. I am, in these circumstances, satisfied that advice on the liability for surcharge purchaser duty was within the scope of the solicitor's retainer and that the Applicant relied on her solicitor to advise her on her duty liability, including her liability to surcharge purchaser duty.
14. The evidence also shows that communications between the Applicant and her solicitor dealt with matters of fact specifically going to whether or not surcharge purchaser duty applied. This occurred on 29 January 2020 when the Applicant informed the solicitor of her citizenship and visa details, including that her application for permanent residence was "underway". In response, the solicitor on 30 January 2020 issued a new version of the form of Purchaser/Transferee Declaration, stating that the Applicant was a Canadian citizen and also making the wrong statement that she was an "exempt permanent resident". I am satisfied in these circumstances that the provision of advice specifically on surcharge purchaser duty was within the scope of the solicitor's retainer.
15. The evidence is sufficient for me to conclude that the Applicant provided all information required to obtain advice on the duty payable on the agreement, including surcharge purchaser duty. I am also satisfied that the retainer with the solicitor required the solicitor to advise on whether or not surcharge purchaser duty applied. The evidence also establishes that the parties communicated about the matters of fact specifically going to whether or not surcharge purchaser duty applied.
16. In these circumstances, there was no absence of reasonable care on the part of the Applicant herself. She provided the information required for the advice she sought to be provided. The terms of her retainer also provided for the solicitor to advise on duty, including surcharge purchaser duty. She relied upon the advice she received to pay duty, without also paying surcharge purchaser duty at the time payable.
17. However, this is not to say that there was reasonable care taken within the meaning of s 27(3)(a) of the Administration Act. Section 27(3)(a) allows the Respondent to take into account both whether the taxpayer or an advisor for the taxpayer took reasonable care.
18. I find that there was a lack of reasonable care on the part of the Applicant's solicitor. The solicitor in preparing the "Purchaser/Transferee Declaration" wrongly described the Applicant as an "exempt permanent resident", even though the solicitor had the information necessary to correctly draft the declaration in the circumstances described above.
19. In O'Neill Tyres Gateshead Pty Ltd & Cessnock Tyres Pty Ltd v Chief Commissioner of State Revenue [2020] NSWCATAD 314, the Tribunal said, at [56]-[57]:

"Underlying the provisions of section 27 of the TAA is a self-evident policy of promoting compliance with taxation laws by the imposition of penalty tax for failure to comply. That the penalty tax can be increased under section 27(2) for intentional disregard by the taxpayer, or decreased under section 27(3) in order to recognise reasonable care to comply, supports the policy objective by giving the Commissioner the "stick" of penalty tax, to sanction intentional non-compliance, and the "carrot" of remission, to promote sincere and careful (albeit unsuccessful) attempts at compliance.

For taxpayers to escape penalty tax by the simple expedient of delegating to professional advisers management of their payroll tax affairs would undermine this policy. It is precisely to exclude such an anomalous outcome that section 27(3)(a) includes the reference to persons ".. acting on behalf of the taxpayer". The purpose is clear: the compliance sins of the delegate are to be visited on the taxpayer. There is obviously an element of judgment to be exercised in individual cases, in deciding whether a particular case is one of wholesale delegation or merely one where the taxpayer professional advice in order to assist in compliance. In the case of Cessnock and Bayrond, the Tribunal is satisfied that it is the former rather than the latter".

1. The particular failure of the solicitor was to identify the Applicant as an "exempt foreign resident" in the Purchaser/Transferee Declaration when she was not, in the circumstances described above. Following the making of the incorrect statement in the Purchaser/Transferee Declaration, surcharge purchaser duty was not assessed as it should have been.
2. This is not a case where the tax default in question arose as a result of the combined acts or omissions of the taxpayer and their advisor of the kind that arose in Nhem v Chief Commissioner of State Revenue [2024] NSWCATAD 9 (at [63]-[64]). It was the solicitor, having been provided with correct information, who failed to advise on the liability for surcharge purchaser duty, having drafted a "Purchaser/Transferee Declaration" with an incorrect description of the Applicant's status. The result of that incorrect description was a failure to assess the surcharge purchaser duty payable.
3. In El Chami, the Tribunal found that the mistake the advisor made was an "honest error" in a transfer form, in misdescribing the interest to be transferred. In the present case, there was no evidence before the Tribunal as to why the solicitor completed the Purchaser/Transferee Declaration with a wrong statement, for example, as to whether the mistake was a mere clerical error or something more, such as a negligent failure to give correct advice or whether the failure was reckless. In these circumstances, I am unable to determine whether there are any grounds to reduce the penalty tax assessed of the kind that arose in El Chami.
4. The Chief Commissioner may determine that no penalty tax is payable in respect of a tax default if the Chief Commissioner is satisfied that a tax default occurred solely because of circumstances beyond the taxpayer's control (or if a person acted on behalf of the taxpayer, because of circumstances beyond either the person's or the taxpayer's control) but not amounting to financial incapacity (s 27(3)(b) of the Administration Act). There was no evidence to show that the tax default in question occurred because of matters beyond the control of the Applicant's adviser.
5. For the reasons set out above, I see no basis for remission of penalty tax under s 27(3)(a) or (b) of the Administration Act, in the absence of reasonable care having been taken by the Applicant's solicitor and in the absence of circumstances beyond their control.
6. I also see no particular circumstances that could warrant a remission of penalty tax under s 33 of the Administration Act. The Applicant's submission that she relied upon her solicitor's advice is not a particular circumstance that allows for remission of penalty tax under s 33.
7. The Applicant also said that she was under financial stress as a result of the assessment in dispute. To the extent that circumstances of hardship arise out of financial stress, the Tribunal does not have jurisdiction to relieve the taxpayer from liability for taxation. That jurisdiction lies with the Hardship Review Board under Division 5 of Part 10 of the Administration Act.

1. The Respondent can assess interest at both the market rate and the premium rate (s 21 and 22 of the Administration Act). He has done so. The reassessment included interest calculated at both rates.
2. The Respondent, however, has certain powers to remit interest (s 25 of the Administration Act). That power is discretionary. The Chief Commissioner may issue guidelines setting out how interest must be remitted. If guidelines are issued, interest must be remitted only in accordance with the guidelines.
3. Guidelines were issued on 1 July 2025. The parties agreed that these guidelines did not apply because the Applicant's objection had been made before the date of issue of 1 July 2025.
4. The Respondent set out in Practice Note CPN 024 ("CPN 024") his earlier guidelines as to how he will exercise his powers of remission. Relevantly, it provides as follows:

"When a tax default occurs, interest is calculated on the amount of unpaid tax calculated on a daily basis from the end of the last day for payment until the day it is paid.

The Chief Commissioner may remit the market rate component or the premium component of interest, or both, by any amount depending on the circumstances affecting the tax default. Where the remission of interest is warranted, the amount remitted will, generally, be either both the premium and market rate or the premium rate only.

........

Where there is sufficient evidence to prove that the default was within the control of the taxpayer (or their representative), but reasonable care has been taken to ensure the payment of the tax, the Chief Commissioner will usually remit the premium rate component of the interest. Events that may indicate that the taxpayer took reasonable care include (but are not limited to):

a. being honest and forthright when dealing with the Chief Commissioner

b. cooperation with the Chief Commissioner

c. the default is attributable to calculation errors

d. making diligent efforts to understand and comply with the law

e. maintaining appropriate and proper recording systems in accordance with normal practice i.e., systems that minimise the risk of tax default, allow reconciliation of the tax paid or payable with returns required to be lodged and fulfil the taxpayer's obligation under the taxation laws to maintain records for the purposes of Revenue NSW investigations or audits

f. taking reasonable steps to be aware of and comply with his/her taxation obligations and to be familiar with the legislative requirements

g. applying any relevant revenue rulings in good faith

h. seeking professional advice or private rulings for uncertain or complex matters where no revenue ruling applies, or where circumstances differ from those described in a revenue ruling

i. acting promptly to seek advice or provide information once made aware, from any source, that the taxpayer might have a tax liability

j. the taxpayer has used and reasonably relied on data, statements or other information provided by a third party.

Meeting one or more of these examples does not necessarily mean that reasonable care has been taken; all relevant factors leading to the tax default will be taken into consideration.

Note: Remission of the premium rate will only occur in special circumstances".

1. Bathurst CJ in Downer EDI considered the reach of the power in s 25 of the Administration Act to remit interest. His Honour did not think there was a limit on the power of the Chief Commissioner to remit interest in s 25 of the Administration Act. I understand the Applicant to rely on what the Court of Appeal said, in submitting that there are no limits on the power to remit interest, to support her claim for remission of interest.
2. Each of the components of interest assessed requires consideration. Those components are made up of interest assessed at the market rate and interest assessed at the premium rate. The rationale for the market rate of interest is described as follows in Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19 and why it should be waived only rarely, at [60]:

"In our view the primary interest rate (the market rate component) is intended to compensate the Commissioner (on behalf of the Government of New South Wales) for not having the benefit of the tax payment from the time it was due. So a rate is set which fluctuates, and is connected to an external rate, the Reserve Bank's Accepted Bill rate. This, as we see it, is a component that could rarely, if ever, be waived as otherwise tax would be paid at a devalued amount thereby discriminating against taxpayers who meet their obligations on time. The Tribunal made the observation at [50] that to justify any remission of the market rate component of interest, it would be necessary to show that in some way the Commissioner contributed to the default. We agree with this observation".

1. In circumstances where there was no fault on the part of the Respondent including contribution to any default, I find no grounds for remission of the market rate, absent any exceptional circumstances that could change the general position. On the evidence before the Tribunal, I find no such circumstances. It follows that the Respondent's assessment of interest at the market rate should stand and is affirmed.
2. The purpose of the premium rate of interest differs from that of the market rate of interest. While the market rate compensates the Chief Commissioner for the time value of money that is paid late, the premium rate of interest extracts from the taxpayer something more. It is in the nature of a penalty (Southern Cross Community Health Care Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1317 at [443] per Emmett AJA). That difference informs the different approaches to remission of each kind of interest. While remission of interest assessed at the market rate should be rare, the circumstances in which interest assessed at the premium rate can be remitted are not as restrictive, even if they may need to be "special circumstances" or particular "personal circumstances" (Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54, at [82]).
3. The Respondent submitted that determining whether remission of the premium rate component is justified involved the question of whether or not the taxpayer took reasonable care to comply with her obligations. There is no express requirement in s 25 for considerations of "reasonable care" to be taken into account in determining whether to remit interest (unlike in the case of s 27 applying to the remission of penalty tax as discussed above). The Respondent's guidelines, however, state that "taking reasonable steps to be aware of and comply with his/her taxation obligations and to be familiar with the legislative requirements" will be a matter that goes to whether remission should be made.
4. That taking reasonable care is a relevant consideration in determining whether or not interest at the premium rate should be assessed, alongside various other considerations, is well accepted. What "reasonable care" to comply with taxation obligations means has been described as follows in Qualweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227, following RVO Enterprises Pty Ltd ATF the R M O'Mara Family Trust v Chief Commissioner of State Revenue 2004 NSWADT 64, at [95]:

"In each case, it is essentially a question of fact whether the taxpayer has taken reasonable care in attending to its tax obligations. Factors that would indicate that a taxpayer took reasonable care include reasonable attempts to comply with the tax law, reasonable professional and other enquiries to ensure compliance, reliance on professional advice or on official published views of the tax law. Factors which indicate that a taxpayer failed to take reasonable care include oversight or forgetfulness to meet with obligations, failure to maintain adequate records and procedures to prevent errors from occurring, not seeking professional advice and errors in complying with the law."

1. The decision of Richmond J in Golden Age and Hannas the Rocks Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 249 ("Golden Age") is also relevant in considering remission of the premium rate of interest, having regard in particular to its penal character. His Honour held, in accordance with the decision in Downer EDI, that s 25 of the Administration Act, conferred on the Commissioner a broad discretionary power which is not subject to any limit. He went on to say, at [99]-[104];

"Section 25 of the TAA, both before and after its re-enactment, confers on the Commissioner (and on the Court standing in the place of the Commissioner under s 101) a broad discretionary power which is not subject to any limit: Chief Commissioner of State Revenue v Downer EDI Engineer Pty Ltd (2020) 103 NSWLR 772; [2020] NSWCA 126 at [151].

In the case of an unconfined discretionary power of this nature, the considerations which are relevant to its exercise are determined by reference to the subject matter, scope and purpose of the relevant statute, including the particular provision conferring the discretion: Sanctuary Lakes Pty Ltd v Commissioner of Taxation (2013) 212 FCR 483; [2013] FCAFC 50 at [227] per Griffiths J (Edmonds J agreeing); Giris Pty Ltd v Federal Commissioner of Taxation ([1969] HCA 5; [1969] HCA 5; 1969) 119 CLR 365 at 384 per Windeyer J.

In Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19, the Appeal Panel observed at [60]-[61] that the market rate component is intended to compensate the Commissioner for not having the benefit of the tax payment from the time it was due, and so approximates the ordinary lending interest rates, whereas the premium rate is a form of penalty which operates as a disincentive to taxpayers to delay tax payments. The view that the premium component is penal in nature has been accepted in later decisions, see eg. Southern Cross Community Health Care Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1317 at [443] per Emmett AJA.

In my view it is necessary to approach the remission question by recognising that the premium component is penal in nature and serves the purpose of both imposing a penalty and deterring taxpayers from delaying payment of duty in what is essentially a self-assessment regime. Consequently, the culpability of the taxpayer in failing to pay the duty liability by the due date is an important matter in the exercise of the discretion.

.........

In Incise Technologies, the Appeal Panel identified (reflecting a submission made by the Commissioner in that case) four cumulative criteria which are relevant to the exercise of the discretion under s 25:

(1) All principal tax that is owing and not in dispute has been fully paid;

(2) There has been cooperation by the taxpayer in providing relevant information to the Commissioner so as to enable the Commissioner to issue assessments;

(3) Such cooperation has occurred prior to any investigation being commenced by the Commissioner or, at the very least, within a reasonable time after the request for information had been made by the Commissioner; and

(4) There has been no wilful default by the taxpayer in not paying tax on time".

The Appeal Panel noted in Incise Technologies at [63] that the first of these criteria could be clarified to be "all principal tax that has been assessed and is not in dispute has been fully paid at the time of the request for remission of interest" and that while they were all relevant and appropriate matters for consideration, they were not exhaustive. That the four criteria are not exhaustive has been confirmed in subsequent cases, eg. Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107 at [179] and Chief Commissioner of State Revenue v E Group Security Pty Ltd (No 2) [2022] NSWCA 259 at [105]- [106]".

1. The Court in Golden Age affirms the approach to remission set out in the earlier cases and concludes that it was appropriate to remit the premium component in full, in circumstances where all four of the above criteria were satisfied. The taxpayer was found to have taken reasonable care. The taxpayer had sought advice from a firm of solicitors and acted upon that advice. Non-payment of tax had occurred as a result of either wrong advice or some other mistake by the advisor.
2. The taxpayer in the present case also retained the services of a solicitor and acted on the advice given. A period of nearly 5 years having elapsed since the tax default in issue before the assessment of interest, I do not think that an amount of premium interest for the entire period is properly assessable, in circumstances where the period of time it took to make the assessment was outside the Applicant's control (See Griglio v Chief Commissioner of State Revenue [2024] NSWCATAD 212, at [80] - [91]).
3. The Respondent at the hearing conceded that no interest at the premium rate should be assessed. That concession was correctly made. The Applicant did everything she could reasonably do to comply with her obligations, namely making full disclosure of her citizenship and visa to her solicitor. The failure resulting in surcharge purchaser duty not being assessed occurred as a result of her solicitor wrongly identifying her as an "exempt foreign resident", even though they had the necessary information to make the correct determination.
4. The quantum of premium interest assessed was also the result of the nearly 5 year period that elapsed between the date of the tax default in issue and the date of the assessment of interest at the premium rate, in circumstances where the Applicant had no control over the time the assessment took.
5. I agree that interest assessed at the premium rate should be remitted in its entirety as conceded by the Chief Commissioner.

(1) the assessment of penalty tax should be affirmed.

(2) the assessment of interest at the market rate should be affirmed.

(3) the decision to assess interest at the premium rate should be set aside and remitted to the Respondent for reassessment in accordance with these reasons.

(1) The assessment under review is revoked and remitted to the Respondent for determination in accordance with this decision.

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.