Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82

Land Tax Act 2004 ss 14, 36

Legislation Act 2001 s 88

Rates and Land Tax Act 1926

Taxation Administration Act 1999 ss 14, 31, 32, 33, 37, 39

Cases cited: Archibald Dixon as Trustee for the Dixon Holdsworth Superannuation Fund v Commissioner for Taxation [2008] FCAFC 54

Council of the Law Society of the Australian Capital Territory v LP 201920 [2021] ACAT 16

Hall v Commissioner for ACT Revenue [2021] ACAT 38

Harada v Barnes & Anor [2021] ACAT 66

House v The King (1936) 55 CLR 499

James v Commissioner for ACT Revenue [2013] ACAT 32

Jokhan and Jokhan & Commissioner for ACT Revenue [2012] ACAT 15

Kessey v Commissioner for ACT Revenue [2019] ACAT 83

Kimberley v Commissioner for ACT Revenue [2020] ACAT 112

Marks & Anor v Commissioner for ACT Revenue [2018] ACAT 84

NS v Hotchkis [2021] ACTCA 13

Oliver v Registrar, Domestic Animals And 2000 [2021] ACAT 93

Scott and Anor v Commissioner for ACT Revenue [2013] ACAT 73

Steele v Commissioner for ACT Revenue [2010] ACAT 15

Theron & Commissioner for ACT Revenue [2013] ACAT 33

Van Duren & Anor v Commissioner for ACT Revenue [2016] ACAT 121

Wade & Tan v Commissioner for ACT Revenue [2014] ACAT 79

APPEAL TRIBUNAL: Presidential Member G McCarthy

1. This appeal concerns the appellant's liability for penalty tax and interest arising from unpaid land tax that became due and payable consequent upon the appellant and his wife renting out a property that they own in Wanniassa, ACT (the property) and not disclosing the rental to the Commissioner for ACT Revenue (the Commissioner).

2. The appellant appealed from a decision of the original tribunal[1] that amended the Commissioner's reassessment[2] of the appellant's liability for penalty tax and interest arising from non-payment of the land tax.

3. With the consent of both parties, the original tribunal heard and determined the appellant's application for review of the Commissioner's decision 'on the papers', meaning by reference to the documents that were filed and without conducting a hearing.

4. With the consent of both parties, the appeal was conducted in the same manner. Consequently, we conducted the appeal by way of a review (meaning a rehearing)[3] under section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).

5. The Commissioner's original assessment of the appellant's land tax liability was made by an assessment dated 20 March 2020. That assessment was for the following periods:

6. Primary land tax was assessed at $34,439.05, penalty tax at 25% of the primary tax, being $8,609.86 and interest at $40,737.30, giving a total of $83,786.21.[4]

7. By letters dated 26 March 2020 and 8 April 2020, the appellant wrote to the ACT Chief Minister objecting to the penalty tax and interest. The appellant's correspondence was referred to the Commissioner who treated it as an objection to the assessment.

8. Having regard to the correspondence, the Commissioner allowed the objection in part. On 7 July 2020, the Commissioner issued a notice of reassessment. Primary land tax remained assessed at $34,439.05, but penalty tax was remitted under section 37 of the Taxation Administration Act 1999 (the TA Act) from Quarter 2, 2014-15 as a consequence of an email that the appellant's agent, Luton Properties Tuggeranong (Luton), sent to the Commissioner on 23 August 2016.[5] The email requested the Commissioner to send Luton the invoices for land tax and rates in relation to the property. The Commissioner was prepared to treat the email as notification that the property was rented and remitted penalty tax accordingly. Penalty tax was therefore reduced to $4,498.86 and interest to $35,702.37, giving a total of $71,612.32 (the reassessment).[6]

9. On 31 July 2020, the appellant applied to the Tribunal for review of the reassessment. In that application, the appellant did not challenge his liability to pay the primary land tax as assessed. Rather, he challenged the Commissioner's decisions to impose penalty tax under section 31(1) of the TA Act, not to remit the penalty tax under section 37 of the TA Act and not to remit the interest under section 36 of the Land Tax Act 2004 (the Land Tax Act).

10. Section 31 of the TA Act provides for the assessment of penalty tax payable in the event of a tax default. It relevantly provides:

(1) The amount of penalty tax payable in relation to a tax default is 25% of the amount of tax unpaid, subject to this division.

(5) No penalty tax is payable in relation to a tax default if the commissioner is satisfied that -

(a) the taxpayer (or a person acting on behalf of the taxpayer) took reasonable care to comply with the tax law; or

(b) the tax default happened solely because of circumstances beyond the taxpayer's control (or if a person acting on behalf of the taxpayer, because of circumstances beyond either the person's or the taxpayer's control) but not amounting to financial incapacity.

11. Section 37 of the TA Act provides for remittal of penalty tax. It provides:

The commissioner may, if the commissioner considers it appropriate in the circumstances, remit penalty tax by any amount.

12. Section 36 of the Land Tax Act provides for remittal of interest. It provides:

The commissioner may, if the commissioner considers it appropriate in the circumstances, remit interest payable by a person in relation to land tax by any amount.

13. The original tribunal rejected the appellant's grounds for why the reassessment of penalty tax was incorrect but noted that the remission of penalty tax should have been from Quarter 2, 2016-17, rather than Quarter 2, 2014-15, because Luton's email was sent on 23 August 2016 whereas the reassessment was based on it being sent on 23 August 2014. The original tribunal therefore ordered that the reassessment be amended to correct the error.[7]

14. The original tribunal also noted that the property appears to have been rented from at least 1994 to early 2001. The original tribunal explained why, in its view, land tax, penalty tax and interest were payable for the periods when the property was rented prior to the commencement of the Land Tax Act on 1 July 2004.[8]

15. There may be an argument not explained to the contrary, but based only on the explanation in the papers prepared by the Commissioner we agree with the original tribunal's observations about the appellant's land tax liability for the periods when the property was rented prior to 1 July 2004. However, it was not a matter for determination on this appeal. Our task was to conduct a rehearing of the original tribunal's decision by reference to the grounds of appeal.

16. The appellant appealed against the decision of the original Tribunal on the following grounds:

(a) The special and exceptional circumstances where I found myself prevented me from being aware in time of the land tax in ACT and my liability. One of the examples is where Luton, the real estate agent who bought the property management business from Hooker forged the owner's signature and made the owner sign subsequently to cover up his crime. The senior member of ACAT who decided my application failed to give a due weight to the crime and its implications.

(b) The ACT Revenue Office and the Office of Rental Bonds, both a part of the same government failed to liaise closely to issue land tax notices in time to save such a misery I suffer. I or my real estate agents deposited bond received from tenants without delay. ACTRO could have found it immediately and issued land tax notice without such a long delay if it shares the relevant information with the Office of Rental Bonds. In this time of the e-age, a line connecting them would be sufficient. Why we have to be governed by the past. It is the time to make a new step to break away from the past for a better life and for a more efficient government.

(c) None of the real estate agents engaged by me had advised me of the land tax or my liability. They failed to act honestly and with care in managing the property. One of them gave false information about the rental status and forged my signature on a document sent to ACTRO as mentioned above.

(d) I had never received land tax notice or brochure allegedly sent to me in time. One of the agents I spoke extensively about the subject said he had never received the brochure from ACTRO nor sent it to me. I only became aware of land tax notice when I enquired about it with Mr [sic] Simone Black of ACTRO in early 2020 after I received the huge tax bill. He said that the land tax liability is explained in the rates notice sent to rate payers.

(e) I have never avoided or neglected to take immediate action to comply with the tax law and the requests from ACTRO. I responded to the Commissioners (his agent's) request for information relating the rental status of the property relying on my agent in early 2020. When it was clear that I could not meet deadline imposed, I sought an extension that was granted, and responded.

(f) I have taken more than reasonable care to comply with the tax law immediately after I was aware of the land tax liability.

17. Arising from his grounds of appeal, the appellant sought "remission of penalty [tax] and interest".[9] Whilst the appellant stated a challenge only to the decisions not to remit penalty tax or interest, the appellant's submissions did not distinguish between a challenge to his liability to pay and a challenge to the Commissioner's decision not to remit. Accordingly, we were prepared to infer that the appellant contended that he had taken "reasonable care to comply" with his obligations to pay land tax with the result that, under section 31(5) of the TA Act, "no penalty tax is payable", and that if penalty tax is payable it should be remitted.

18. The substance of the appellant's case was not that he made a disclosure of his tax liability, but that he did not know of his obligation to disclose. The appellant stated that he relied on others to inform him of his land tax liability, and that they failed to do so. He also blamed the Commissioner for not conducting inquiries that would have enabled the Commissioner to learn that the property was rented. In other words, the appellant contended that he took reasonable care to comply with the tax law (with the result that no penalty tax is payable pursuant to section 31(5) of the TA Act). Alternatively, and for the same reasons, if penalty tax is payable it is "appropriate" to remit it pursuant to section 37 of the TA Act.

19. The principles applicable to an appeal by way of a rehearing have been explained in several recent cases.[10] The Commissioner referred to some of them in his submissions. In short, for the appeal to succeed we must find a material error of fact or law that affected the result.

20. The principles are well expressed by President Neate AM and Senior Member Orr QC in Council of the Law Society of the Australian Capital Territory v LP 201920.[11] That case also explained the nature of an appeal from an exercise of a discretion which is relevant to this appeal.

21. It is apparent from the language of the applicable section, that whether penalty tax or interest should be remitted are questions of discretion. In respect of an appeal from the exercise of a discretion, the High Court explained in House v The King[12] (House v The King):

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[13]

22. The following material was provided on the appeal which we considered:

(a) The application to review the original decision dated 31 July 2020 and its nine attachments.[14]

(b) The Tribunal documents, paginated from pages 1 to 194.

(c) The authorities (meaning earlier decisions) provided by the Commissioner for the original hearing.

(d) The appellant's submissions for the original hearing by way of a letter to Ms G Belcher dated 20 October 2020.

(e) The Commissioner's submissions for the original hearing dated 2 November 2020.

(f) Appendix A, Rates Transaction History, dated 5 November 2020.

(g) Final authorities from the Commissioner dated 6 November 2020.

(h) ACT Revenue circular Gen006.3 issued on 5 July 2019.

(i) The appellant's final submissions for the original hearing dated 15 November 2020.

(j) The decision of the original tribunal dated 17 December 2020.

(k) The appellant's application for appeal dated 19 January 2021.

(l) The appellant's submissions on the appeal sent by email on 12 and 14 March 2021, including an agency agreement between the appellant and LJ Hooker Tuggeranong dated 19 August 2008.

(m) The Commissioner's submissions on the appeal dated 6 April 2021.

(n) The appellant's final submissions on the appeal dated 12 April 2021, including two further versions of a document dated 18 November 2006 on LJ Hooker letterhead and entitled "Instructions to act as managing agent".

(o) Further authorities from the Commissioner by list dated 15 April 2021.

23. The facts have been set out in detail in the original tribunal's decision. For present purposes, it is sufficient to provide a short summary.

24. The appellant and his wife are Korean with Anglicised names. The appellant's Korean name is Mann Souk Kim, and his wife's is Hong Ja Kim.[15] The appellant is in his eighties and his wife is 7 years younger. Both have health issues. They live in Melbourne within a small community of Koreans. The appellant asserts that information about matters such as land tax were not well known in that community. The appellant was self-represented, and may have had help with his letters and documents, but they are all well written and display no lack of capacity in terms of language or general understanding.

25. At some time, probably in 1991, when the appellant completed and signed a principal place of residence form,[16] but at least prior to 1994,[17] the appellant and his wife bought the property. At that time, a predecessor to the Land Tax Act, the Rates and Land Tax Act 1926, was in force. It imposed land tax on all residential land but if the property was the owner's principal place of residence, it was exempt from land tax (the principal place of residence test). The Land Tax Act imposed land tax on rented land. As from 1 July 2018, the Land Tax Act was amended to reintroduce the principal place of residence test.[18]

26. The appellant and his wife moved to Melbourne in 1994 and have lived there ever since. Upon moving to Melbourne, they rented out the property.

27. In addition to the periods prior to 1 July 2004, the periods of rentals found to have occurred, based on electricity records and rental bond information, were for three distinct periods namely 1 July 2004 (when the Land Tax Act commenced) until 18 August 2006; 12 January 2006 to 25 March 2014 and 13 May 2014 until the date of the assessment (3 July 2020).

28. There is no issue that the property was rented during the relevant times and that land tax was payable. There is also no issue that the amounts of land tax assessed are correct.

29. At all times when the property was rented, the appellant received land and water rates notices addressed to the property. They were all paid. The Commissioner asserts that, each year, the envelope with the land rates notice included a brochure which gave information about liability for land tax. The appellant contends that he never received the brochures. Whilst we have no reason to doubt the Commissioner's contention, it is possible that each year, year after year, the envelopes containing the rates notices did not contain the brochures. However, whether the brochures were in the envelopes or not, the appellant said that he never read the documents as he relied on the agents who were managing the property.

30. The rates notices for each financial year up to and including the financial year ending 30 June 2017 were all addressed and sent to the appellant and his wife at the address of the property.

31. The rates notices for the financial years ended 30 June 2013, 2014, 2015, 2016 and 30 June 2017 also included a statement that the owner:

must notify the ACT Revenue Office of any residential property that is rented, or owned by a trustee. Penalties apply for failure to notify of land tax liability.

32. The appellant contended that he did not read these statements on the rates notices and relied on his managing agents to notify him of any land tax liability. He contended that they failed to do so.

33. The Commissioner commenced sending annual rates notices to the appellant's agent, Luton, rather than the appellant, following the Commissioner receiving an email from Luton on 23 August 2016[19] in which Luton stated "could you please send the invoices for land tax and rates" to it. Luton also attached a document entitled "Notification of appointment of an agent for rates and land tax and notification of rental status of a residential property" signed and dated 23 August 2016 (the 23 August 2016 notification).

34. The appellant and his wife provided statutory declarations stating that the signature on the 23 August 2016 notification purporting to be the signature of the owner is not the signature of the owner and that the agent "forged the owner's signature". The original tribunal accepted, as do we, that the signature on the 23 August 2016 notification is not the owner's signature. However, the appellant accepts that on 26 August 2016, three days later, he signed another notification form that gave the same information. It is apparent from the words "already actioned" that that notification too was sent to the Commissioner.

35. It is clear that the appellant received the rates notices because the appellant paid the rates himself, at least on 15 November 2015 as he said he did.[20] Whilst, at that time, LJ Hooker had been appointed and might have attended to pay the rates, assuming that was what the agency agreement[21] was supposed to mean, it must be inferred that the appellant paid the rates himself until Luton became the addressee for rates notices from August 2016.

36. By letter dated 11 February 2020, the Commissioner sent the appellant a notice under section 82 of the TA Act requiring him to give information about whether and, if so, when the property was rented as he had always been required to do under section 14 of the Land Tax Act.

Provide all of the dates that the property has been rented, including past periods.[22]

38. Below Question 3 was a table with three columns headed "occupant name", "occupancy dates" and "arrangement".

39. The Commissioner required a written response by 25 February 2020. By email sent on 3 March 2020, the appellant requested an extension of time to fill in the form and send it back. The Commissioner's agent granted an extension until 5 March 2020. By email sent on 5 March 2020, the appellant returned the "duly completed land tax notice".[23]

40. In answer to Question 3, the appellant completed the table by providing the name of the current tenant, the occupancy dates "22/4/14 - Now" and by stating that the property was "managed by agent". The appellant made a declaration on 5 March 2020 that the information provided was "true and correct to the best of my knowledge".

41. The information provided to the Commissioner was not true and correct in that the appellant did not reveal any of the "past periods" prior to the current tenancy when the property was rented.

42. He asserted that he did not know more and relied on information from the agent. We do not accept the appellant's claim in circumstances where he completed and signed the declaration himself and plainly knew at the time he did so that the property had been rented for many years prior to 2014.

43. In his letter to the President of the Tribunal dated 28 July 2020, attached to his original application to the tribunal for review of the Commissioner's reassessment, the appellant attached the first two pages of a document on LJ Hooker letterhead entitled "Instructions to act as managing agent" by which he appointed LJ Hooker to act as his agent. The Commissioner had not been provided with any part of the document at the time of the reassessment. Although undated, it stated that the property was available for rent from 24 November 2006. The appellant relied on the incomplete document to contend that he had instructed LJ Hooker to manage the property on his behalf and to notify him of any land tax liability, and that they had failed to do so. Why he did not provide a complete copy of the document at the time was not explained.

44. For the purposes of the appeal, the appellant provided some further documents concerning his engagement of LJ Hooker.

45. First, he provided an agency agreement with LJ Hooker dated 19 August 2006.[24] Clause 5 sets out the agent's duties. The duties do not include paying statutory charges, but in clause 7 the agent is authorised to deduct and pay "any statutory charges" in respect of the property from rent received. The document authorises LJ Hooker to pay any statutory charges, but they are not listed as duties.

46. Second, he provided two versions of the complete LJ Hooker document referred to in paragraph 43 above, both dated 18 November 2006.[25] Both versions of the LJ Hooker document have a section, section 6, headed "Disbursements", which provides for outgoings that the agent is authorised to pay, including land rates, water rates, unit levies, land tax and cleaning costs. On both versions of the LJ Hooker document this section of the document is struck through with a single diagonal line on the first version and two diagonal lines on the second version. The appellant relied on the fact that the 'strike outs' are not initialled, unlike his initialling of the agent's fee reduced from 10% to 7.25% on collected rent plus GST.

47. The Commissioner objected to the appellant's wish to rely on the further documents and referred to authorities about the limited circumstances in which the appeal tribunal should admit new evidence. As a general rule, an appeal tribunal will not allow new evidence if it was available before the original hearing and unless it is likely to alter the result. These principles are based on the public policy of finality and cost as well as fairness. In a rehearing, like this, where the litigant is self-represented and where the rules of evidence are not mandatory, some leeway is often given.[26]

48. It was unclear whether the appellant knew of the further documents earlier or made a forensic decision not to produce them. However, where we concluded that reliance on the documents would not cause prejudice to the Commissioner or extra advantage to the appellant, we decided to take them into account in our consideration of the appellant's appeal.

49. In his submission dated 14 March 2021 to the Appeal Tribunal, the appellant explained the chronology more clearly. He says that when they were leaving Canberra in 1994 a member of their ethnic community, a Ms Yoo, asked if she could rent the property. He agreed and took a bond that he says he lodged with the Rental Bond Board. He and the tenant did not have a written contract or agent. This continued for some years but in about 2006 he found the property to be in a dreadful state and the tenancy ended. The appellant's wife then lived in the property for a while. In November 2006 the appellant engaged LJ Hooker to manage the property on his behalf. Luton later bought the property management business. The current tenancy started in 2014 before Luton took over the agency and whilst LJ Hooker was still the agent.

Arguments by the appellant including other asserted facts

50. The appellant blames his agents for not advising him of his land tax liability and for forging his signature on the 23 August 2016 notification that Luton sent to the Commissioner. He also blames the Commissioner for not enquiring with the Office of Rental Bonds to determine that the property was rented. He contended that he has never avoided or neglected to take immediate action to comply with tax laws.

51. We do not propose to set them out in any detail as we have concluded they are in substance correct and will advert to them in explaining why the appellant's submission cannot succeed.

52. Referring to the first and third grounds of appeal, the appellant blames the real estate agents who he entrusted to manage the tenancies of the property on his behalf. The substance of this submission has been previously considered and rejected by the tribunal many times. For section 31(5) of the TA Act to apply, "the taxpayer" must have taken "reasonable care to comply with the tax law". The tribunal has repeatedly ruled that a taxpayer has not taken reasonable care to comply with their obligations under a tax law simply by asking someone else to do so on their behalf, whether it be an agent,[27] a solicitor[28] or anyone else.

53. We agree with the original tribunal's observation, referenced to earlier tribunal decisions, that the onus is on a taxpayer to be aware of and comply with their tax obligations. The appointment of an agent does not relieve a taxpayer of their duty to do so or from their liability for any associated penalty tax or interest arising from their failure to do so.[29]

54. A failure to comply by a taxpayer's agent is a default by the taxpayer, even if the taxpayer may have a claim against their agent. This has been explained before in Van Duren & Anor v Commissioner for ACT Revenue[30] and Wade & Tan v Commissioner for ACT Revenue.[31]

55. We refer next to the appellant's complaint, as part of the first ground of appeal, that the original tribunal "failed to give [a] due weight" to his "forged" signature on the 23 August notification. We were not persuaded that the "forged" signature had any bearing on the appellant's liability for penalty tax or interest. We accept that the signature is not the appellant's signature, but there is no evidence about the circumstances that led to the signature being placed on the document. It might be that somebody signed the document on the appellant's behalf at his request. In any event, the signature (forged or otherwise) does not make any difference for the purpose of determining the appellant's land tax liability. What matters is that 23 August 2016 was the first time that the Commissioner was notified that the property was rented. In this respect, the 23 August notification correctly stated the status of the property. Also, any concern about the signature not being the appellant's signature was resolved three days later when the appellant signed a document in the same form, which was submitted to the Commissioner.

56. For these reasons, the first and third grounds of appeal must fail.

57. Referring to the second ground of appeal, the appellant also blames the Commissioner for the late payment of his land tax. He contends that the ACT Revenue Office and the Office of Rental Bonds are "a part of the same government" and that in this "time of the e-age" a line connecting them would have enabled the Commissioner to find out about the appellant's land tax liability "immediately".

58. This argument too has been considered and rejected on previous occasions. Liability for land tax under the Land Tax Act operates by a system of self-assessment. There is a positive duty on a landowner to find out their obligations in respect of land tax and to comply with them. This includes their obligation under section 14 of the Land Tax Act to "tell the Commissioner" of circumstances in relation to the property that would cause land tax to become payable - in particular, in this case, that the property was rented.[32]

59. There is no duty on the Commissioner to find out about a landowner's liability by other means. There is no duty on the Commissioner to inform a landowner of their obligations to pay land tax unless the owner has notified the Commissioner of circumstances that cause land tax to become payable.

60. In Marks & Anor v Commissioner for ACT Revenue the tribunal said:

Regarding the failure to comply with section 14 of the LT Act, the purpose of section 14 is to establish a system of self-reporting. The onus is on the taxpayer to disclose the rental of a residential property to the Commissioner, and when the rental began. It is not sufficient to disclose the rental to a third party, for example the Office of Rental Bonds or the Registrar-General of Land Titles and expect the Commissioner to learn about the rental by making his own enquiries.[33]

61. We agree with that statement. It follows that the appellant's second ground of appeal must fail.

62. Referring to the fourth ground of appeal, the Commissioner was prepared to accept that the appellant, year after year, never received the brochures informing him of his land tax liability if the property was rented, that neither of the agents ever informed him of their content or his land tax obligations. The original tribunal also proceeded on that basis.

63. The Commissioner's willingness to give the appellant the benefit of the doubt about whether he received the brochures and about whether any of his managing agents informed him of his land tax obligations does not absolve the appellant of responsibility to notify the Commissioner that the property was rented. The onus was on the appellant to be aware of these obligations and to comply with them. To put it another way, if the Commissioner had never sent the brochures the appellant's obligations under section 14 of the Land Tax Act would have remained unchanged.

64. We also noted that even if the appellant did not receive the brochures or was not told of their content, he did receive the rates notices that he paid in each of the financial years ending 30 June 2013, 2014, 2015, 2016 and 2017. Each of them informed him of his obligations to notify the ACT Revenue Office if the property was rented and, if so, of his liability for land tax. For these reasons, the fourth ground of appeal fails.

65. Referring to the fifth ground of appeal, we do not accept that the appellant "never avoided or neglected to take immediate action to comply with the tax law and the requests from the ACTRO". It is true that the appellant sought an extension to provide the information requested under section 82 of the TA Act, and responded by 5 March 2020, being the date the Commissioner stated by way of an extension. But he did not comply with the tax law. Rather, when asked to advise of the "past periods" when the property was rented, the appellant did not reveal any of the past periods when the property was rented. The fifth ground of appeal must fail.

66. Referring to the sixth ground of appeal, for the reasons given, we reject the appellant's claim that he took "more than reasonable care to comply with the tax law" either immediately or at all. It follows that the sixth ground of appeal must fail.

67. We see no error in the original tribunal's conclusion that the appellant did not take reasonable care to comply with his land tax obligations or that the non-compliance was not beyond his control. It follows that section 31(5) does not apply.

68. The original tribunal dealt with the principles relevant to the discretion to remit penalty tax under section 37 of the TA Act at paragraphs 66 to 70 of its reasons. There is no error in the principles applied nor any relevant factual error. The original tribunal referred to Kessey v Commissioner for ACT Revenue[34] where the tribunal said:

In considering whether it is appropriate to remit penalty tax by any amount, the Tribunal must take into account subject matter, scope and purpose of the LTA, the TAA, and in particular section 37 of the TAA. The Tribunal must keep in mind the purpose for which land tax is imposed and paid. The Tribunal must keep in mind that the imposition of penalty tax and interest is intended to promote compliance with the self-reporting scheme for land tax, and to provide general deterrence of tax default. The Tribunal must keep in mind the legislative intention that the taxpayer is liable for any default by the taxpayer's agent. The Tribunal must keep in mind that section 37 does not require special or exceptional circumstances for the remission of penalty tax. Keeping all these matters in mind, the Tribunal must consider whether the penalty (as imposed by the Commissioner) is harsh, having regard to the particular circumstances of the taxpayer.[35]

70. The original tribunal corrected the reassessment so as to remit penalty tax from 23 August 2016, being the date from when the Commissioner might have been aware of the renting by reason of information provided by Luton, but concluded that there was nothing about the facts presented by the appellant that warranted the exercise of a discretion to remit more or all of the penalty tax. We not only see no relevant error, but agree with the original tribunal's conclusion.

71. The appellant's claim that we should remit interest must fail. As the original tribunal noted,[36] the Commissioner's decision not to remit interest under section 36 of the Land Tax Act is not a "reviewable decision". In other words, the original tribunal did not have power to interfere with that decision.[37] The appellant did not make any submission as to why that was incorrect. We agree with the original tribunal's statement of the law on this issue, meaning that the Commissioner's decision not to remit interest remains operative. Accordingly, the appellant remains liable to pay interest of $35,702.37 as assessed under the reassessment.

72. For these reasons, the application for appeal will be dismissed.

[1] Kimberley v Commissioner for ACT Revenue [2020] ACAT 112

[3] See Oliver v Registrar, Domestic Animals And 2000 [2021] ACAT 93 at [11]- [12]

[7] See Kimberley v Commissioner for ACT Revenue [2020] ACAT 112 at [12]- [16] and [69]

[8] See Kimberley v Commissioner for ACT Revenue [2020] ACAT 112 at [22]- [32] and [47]

[9] Application to appeal dated 19 January 2021

[10] See for example, Harada v Barnes & Anor [2021] ACAT 66 at [8]- [10] and Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 93 at [10]- [17]

[11] [2021] ACAT 16 at [57]- [66]

[12] [1936] HCA 40; (1936) 55 CLR 499

[13] House v The King (1936) pages 504-505 (per Dixon, Evatt and McTiernan JJ)

[17] See letter dated 28 July 2020, page 2, from the appellant to the President of the Tribunal in which the appellant acknowledges that he owned the property at the time he and his wife moved to Melbourne in 1994.

[18] See Hall v Commissioner for ACT Revenue [2021] ACAT 38

[24] The document was provided as attachment 'A' to the appellant's submissions sent by email on 12 March 2021

[25] The two versions were provided as attachments 'A' and 'B' of the appellant's final submissions dated 12 April 2021

[26] See NS v Hotchkis [2021] ACTCA 13 at [10]- [11]

[27] Van Duren & Anor v Commissioner for ACT Revenue [2016] ACAT 121 at [40]; see also Theron & Commissioner for ACT Revenue [2013] ACAT 33; Steele v Commissioner for ACT Revenue [2010] ACAT 15

[28] Jokhan and Jokhan & Commissioner for ACT Revenue [2012] ACAT 15 at [16]- [19]

[29] Kimberley v Commissioner for ACT Revenue [2020] ACAT 112 at [62]

[30] [2016] ACAT 121 at [39]

[31] [2014] ACAT 79

[32] Van Duren & Anor v Commissioner for ACT Revenue [2016] ACAT 121 at [40]; see also Theron & Commissioner for ACT Revenue [2013] ACAT 33; Steele v Commissioner for ACT Revenue [2010] ACAT 15

[33] Marks & Anor v Commissioner for ACT Revenue [2018] ACAT 84 at [139]

[34] [2019] ACAT 83

[35] Kessey v Commissioner for ACT Revenue [2019] ACAT 83 at [72], referring to Archibald Dixon as Trustee for the Dixon Holdsworth Superannuation Fund v Commissioner of Taxation [2008] FCAFC 54 at [15]- [20]

[36] Kimberley v Commissioner for ACT Revenue [2020] ACAT 112 at [19]

[37] Scott and Anor v Commissioner for ACT Revenue [2013] ACAT 73 at [11]