the trustee of a trust – where the trust took a conveyance of a property
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS– DISCRETION OF COURT – OTHER CASES – wherethe applicant wasthe trustee of a trust – where the trust took a conveyance of a propertyto which transfer duty was payableunder the Duties Act 2001 (Qld)– where an exemption from payment of any duty was sought from theCommissioner on behalf of the Trust, but was refused– where a Notice ofAssessment was subsequently issued requiring payment of the assessed duty– where the applicant declinedto follow the objections process under theTaxation Administration Act 2001 (Qld) – where the applicantinstead made application to the court for a declaration that the Notice ofAssessment had “nostanding” along with associated relief –whether this was an appropriate case for the making of a declaration in theexercise of the court’s supervisory jurisdiction – whether theNotice of Assessment was “tentative or provisional”
– whether
the Notice of Assessment was a result of “conscious
Commissioner of Taxation v Futuris Corporation Limited (2008)
237 CLR 146
[2008] HCA 32, considered
Harvey v Commissioner of State
Revenue [2014] QSC 183, cited
Harvey v Commissioner of State Revenue
[2015] QCA 258, cited
Judgment (13 paragraphs)
[1]
C E Christensen, Crown Solicitor for the respondent
[2]
[1] By an originating application filed on 22 January 2025, David George Ford, as trustee of the Epsilon Sagittarii Trust (the Trust), seeks to call into question a Notice of Assessment issued by the respondent Commissioner in the sum of $53,615.71. In broad terms, he seeks a declaration that the Notice of Assessment has "no standing" due to alleged shortcomings in procedural fairness as well as breaches of ss 41 and 42 of the Public Sector Act 2022 (Qld) and ss 4, 6 and 9 of the Public Sector Ethics Act 1994 (Qld). Relief in aid is also sought, as best I can comprehend, for an order that the Notice of Assessment be set aside and also directions that "reassessment" of the Notice of Assessment take place under "conditions of transparency, procedural fairness & consent", that a report be prepared "by an independent third party" as to his eligibility for an exemption from the duty levied and that a right on his part to "source multiple independent third party opinions if deemed necessary" be recognised.
[2] By way of background, Mrs Shirley Ford was the trustee of the Trust until her death on 24 January 2023. On 2 December 2022, she executed an instrument to transfer a property situated in Gordon Park to the Trust. By ss 9(1)(a) and 10(1)(a) of the Duties Act 2001 (Qld), the transfer was a dutiable transaction and, as such, the trustee of the Trust was liable to pay the applicable transfer duty. However, the next day (3 December 2022), her son (Mr Ford) sent a copy of the instrument of transfer to the Queensland Revenue Office (QRO) and sought an exemption from the payment of duty on behalf of the Trust pursuant to s 118 of the Duties Act. However, because the Commissioner's position was, and remains, that the transaction is not exempt from the payment of duty, this request for an exemption was refused.
[3] On Mrs Ford's death, Mr Ford became the trustee of the Trust. Then, on 21 April 2023, the Commissioner issued a notice to Mr Ford under s 87 of the Taxation Administration Act 2001 (Qld) (requiring a current valuation of the Gordon Park property and the original instrument of transfer). For various reasons, Mr Ford refused, and has continued to refuse, to provide a valuation or the original instrument of transfer.
[3]
[4] On 12 September 2023, the Commissioner issued a default Notice of Assessment to Mr Ford personally in relation to the transaction. It was, as earlier recorded, in the amount of $53,615.71.[1] That Notice of Assessment should not have been issued to Mr Ford in his own name and, accordingly, the Commissioner reassessed the transaction on 25 January 2024 and issued a Notice of Assessment to Mrs Ford as trustee of the Trust in the same amount. Because a reassessment does not replace a previous assessment but, instead, varies the original assessment,[2] it is this varied assessment which currently operates to impose the liability to pay the assessed duty. The originating application, however, only challenges the Notice of Assessment issued on 12 September 2023. No point was taken by the Commissioner about this, so I proceed on the basis that Mr Ford seeks to challenge the 12 September 2023 Notice of Assessment as varied by the 25 January 2024 reassessment.[3]
[5] As to this, the material before the court establishes that Mr Ford has been repeatedly advised by the QRO that the correct procedure for reviewing a Notice of Assessment is to provide the Commissioner with an objection so that an objection decision can be made.[4] Again, for reasons articulated by Mr Ford in correspondence with the QRO and in the material filed in support of this application, he has declined to do so, preferring instead to challenge the Notice of Assessment elsewhere.
[6] To that end, Mr Ford filed an application for review in the Queensland Civil and Administrative Tribunal on 28 February 2025. That application was heard and determined on 10 January 2025 when it was dismissed as misconceived because, as the Sessional Member correctly found, QCAT did not have jurisdiction to entertain it.
[7] Given that failed attempt, Mr Ford has turned to this court but, as I shall now explain, there is only a limited basis under which his complaints may be considered.
[8] First, like QCAT, this court does not have jurisdiction to entertain an appeal regarding the Notice of Assessment because the objections process has not been undertaken, and that is required by s 69 of the . To the point, an appeal to this court will only be available where the Commissioner has issued an objection decision, the taxpayer has appealed that decision within 60 days and the taxpayer has paid the whole of the tax liability (including late payment interest): None of those things have occurred.
[4]
[1] On 19 February 2025, the sum due and payable under the Notice of Assessment was $60,785.87. This sum was comprised of primary tax, penalty tax, unpaid tax interest and late payment interest as at that date.
[5] The same point can be made about the Commissioner's evidentiary certificate (certifying the amount due and payable on 19 February 2025) which is in evidence. See Taxation Administration Act, s 131.
[9]
[6] The power of the court to grant a declaration without other relief is re-enacted in s 10 of the Civil Proceedings Act 2011 (Qld).
[9] Second, even if the Commissioner was wrong in failing to allow an exemption, the Notices of Assessment cannot be challenged in any other way. This is because of s 132 of the Taxation Administration Act which expressly provides that a Notice of Assessment is conclusive evidence of the proper making of the assessment and, further, for a proceeding such as this, is conclusive evidence that the amount and all particulars of the assessment are correct: s 132(1)(b)(ii).[5]
[10] Third, the complaints made by the applicant about a lack of procedural fairness, a lack of opportunity to be heard and the like are classically grounds for judicial review, but a statutory order of review or other relief is not available under the Judicial Review Act 1991 (Qld). This is because that statute does not apply to an assessment, a decision or conduct leading up to or forming part of the process of making an assessment or a decision disallowing, in whole or in part, an objection against an assessment: s 77(a), (b) and (c).
[11] Indeed, the only remaining avenue by which this court may consider the applicant's claim for declaratory relief is in the exercise of this court's supervisory jurisdiction.[6] However, in order to do so, jurisdictional error first needs to be shown in the Commissioner's decision to issue the Notice of Assessment. Conformably with what was held in Commissioner of Taxation v Futuris Corporation Limited,[7] it will only be if the Notice of Assessment does not meet the statutory description of an assessment because it is "tentative or provisional" or is a result of "conscious maladministration" that a challenge can be made to it in this court. The principles laid down in Futuris apply in the context of the Duties Act.[8] Importantly, errors in the process of assessment do not go to jurisdiction.[9] Conscious maladministration means knowingly acting in excess of power, the use of a power such as the power to assess duty for corrupt or ulterior purposes or the deliberate disregard of the taxation laws when making an assessment.[10]
[12] It is therefore necessary to establish whether this limited basis for a consideration of Mr Ford's complaints is made out on the material before the court.
[13] As a preliminary matter, objection was taken by Mr Ford to three parts of the Commissioner's affidavit material. The first objection (to the admissibility of the QCAT hearing transcript and decision) was upheld in part at the hearing of this application (the transcript was ruled out, but the QCAT decision survived). A decision on the objections taken to the second and third parts was reserved. The second part was objected to on ground of relevance. The documents objected to (appointment records and delegation instruments of an officer from the QRO) go to the proof of the officer's authority to sign the evidentiary certificate noted earlier,[11] and are admissible for that purpose. The third part (unspecified portions of the affidavit of Mr Tyler-Whiteman) was objected to on the basis that it mischaracterized the nature of the originating application, but that contention has no merit.
[14] Those rulings having been made, after a review of the material read on the hearing of the application, in no sense can it be concluded that the Notice of Assessment was "tentative" or "provisional". Nor is there even the slightest support for the notion that the assessment underlying the Notice was the product of "conscious maladministration". To the contrary, the evidence discloses an entirely orthodox assessment of the duty attracted by the transaction in question. The Notice of Assessment, when varied, is otherwise the unremarkable legislative consequence of that assessment. Mr Ford's broader complaints - including, as they do, assertions about an absence of procedural fairness and breaches of ss 41 and 42 of the Public Sector Act and ss 4, 6 and 9 of the Public Sector Ethics Act - are simply not justiciable in this court.
[15] In the result, even if the applicant's core complaint that the transaction in question attracted an exemption from duty under s 118 of the Duties Act were correct, that could only be an "error within jurisdiction" which will not engage the supervisory jurisdiction of this court. Rather, as the applicant has been repeatedly told, the proper avenue of appeal or review is via the objections process expressly provided for in the Taxation Administration Act.
[16] For these reasons, the application must be dismissed in its entirety. It will accordingly be ordered that:
The application be dismissed;
The applicant pay the respondent's costs of the application, with such costs to be assessed on the standard basis.