Murphy v Chief Commissioner of State Revenue

Applicable legislation 10Section 7 of the LTM Act is the provision imposing tax on the taxable value of all land situated in New South Wales that is owned by the taxpayer, other than land that is exempt under the Act. No exemption is applicable in this case as the property was vacant from 23 December 2011. Section 8 specifies that land tax is to be "charged on land as owned at midnight" on the 31 December immediately preceding the year for which the land tax is levied. In this case the relevant date is thus 31 December 2011. Section 9 defines the "taxable value" of the land, which is not in issue in this case. 11The applicant relies on s 47 of the LTM Act: 47 Land tax to be first charge on land (1) Land tax shall until payment be a first charge upon the land taxed in priority over all other encumbrances whatever, and where the land taxed comprises two or more parcels the land tax payable on the land taxed shall be a first charge on each and every such parcel and notwithstanding any disposition of the land or any part thereof the land or part shall continue to be liable in the hands of any purchaser or holder for the payment of the land tax so long as it remains unpaid. (1A) The Chief Commissioner: (a) on the application of any person, and (b) on payment of a fee determined by the Chief Commissioner (or the making of arrangements satisfactory to the Chief Commissioner for its payment), is to issue a certificate showing if there is any land tax charged on land the subject of the application. The Chief Commissioner may include in the certificate the land value of the land and average value of the land in relation to a specified land tax year. (1AA) In relation to an application for a certificate: (a) the application is to be in a form approved by the Chief Commissioner, and (b) a separate application must be made for each parcel of land that is separately valued under the Valuation of Land Act 1916 or otherwise separately valued for the purposes of land tax assessment, and (c) the Chief Commissioner may require further information or evidence with respect to the land concerned, or to any other land owned by the owner of that land, before issuing the certificate. (1B) The application fee for a certificate is to be paid in such manner as may be approved by the Chief Commissioner. (1BA) The Chief Commissioner may determine: (a) the means by which a certificate may be issued, including electronically, and (b) the form of a certificate, including as a document or in an electronic form or a form that may be produced from an electronic message. (1C) A certificate issued by the Chief Commissioner under this section is conclusive evidence of the matter certified against the Chief Commissioner and in favour of any person (whether or not the person is the person to whom the certificate was issued) except a person who: (a) had notice, when the certificate was issued, of land tax charged on the land that the certificate failed to disclose, or (b) was an owner of the land (other than a genuine purchaser for value who has not obtained possession of the land) when the certificate was issued. (1D) If a certificate issued under this section ( "the original certificate") is conclusive evidence in favour of a person, the person is entitled, on application and payment of the prescribed fee under subsection (1A), to be issued with a certificate that is to the same effect as the original certificate and such a certificate is to be regarded as having been issued when the original certificate was issued. (2) The Chief Commissioner may release the land taxed, or any part of the land, from the charge imposed by subsection (1): (a) on payment of an amount the Chief Commissioner estimates to be not less than the proportion of land tax referable to the land or part, or (b) without payment of land tax if: (i) the Chief Commissioner is satisfied that there is no significant risk that the land tax for which the charge is imposed will not be paid, and (ii) a person who is or may become liable to pay the land tax is not in arrears in payment of any land tax. (2A) Where any land sold under section 713 of the Local Government Act 1993 is liable to a charge under subsection (1), the Chief Commissioner may release the land from the charge on payment of that part of the proceeds of sale under sections 718 and 719 of that Act that is available to pay the land tax in respect of the land. (3) The provisions of this section have effect despite anything contained in: (a) section 34 or any other provision of this Act, or (b) section 42 of the Real Property Act 1900 . (4) Subsection (1) does not apply to land to which section 21A (Company title units taken to be strata lots) or section 21C (Liability of lessees of land owned by Crown or council) applies. 12The applicant also relied on s 106B of the TA Act: 106B Waiver of tax (1) The Hardship Review Board may, if authorised by a taxation law to do so, waive the payment of tax, either wholly or in part, if it is satisfied that: (a) the person liable to pay it is in such circumstances that the exaction of the full amount of tax would result in serious hardship for the person or the person's dependants, or (b) the person liable to pay it has died and that person's dependants are in such circumstances that the exaction of the full amount of tax would result in serious hardship for them. (2) The Chief Commissioner may exercise the functions of the Hardship Review Board under this section if the amount of the unpaid tax is less than $2,000 in any particular case for any financial year. (3) In this section, "tax" includes: (a) any amount payable to the Chief Commissioner under a taxation law in relation to tax, including any interest and penalty tax under Part 5, and (b) any costs and expenses incurred in relation to the recovery of the tax or any other amount that the Chief Commissioner is entitled to recover from any such person. 13Section 50 of the LTM Act was also relevant. It provides that the Hardship Review Board constituted under the TA Act may exercise its functions in relation to land tax.

Applicant's submissions 14In her written submissions and also at the hearing, the applicant argued that the LTM Act is outdated and unreasonable and should incorporate a fairer system for allowing a pro-rata calculation of land tax with respect to property. Further, she submitted, the Act does provide for apportionment of the 2012 liability in s 47(2A) as it empowers the Commissioner to reduce the land tax liability for the 2012 tax year by reference to the length of ownership of the property during 2012. In any event, the land tax payable with respect to the property should be waived in accordance with the hardship provisions in s 50 of the LTM Act and s 106B of the TA Act. She had applied to the Hardship Review Board for a waiver and refund of a part of the land tax payable with respect to 2012, on the basis of hardship. The board had informed her that it would deal with her application when the outcome of the present proceedings was known, but she also understood that this tribunal has jurisdiction to way of land tax by reason of hardship. 15In relation to the proposition that land tax liability is frequently apportioned between vendor and purchaser on settlement pursuant to a contractual provision, the applicant maintained that the conveyancer who had acted for her on the sale had never raised with her the question of apportionment. She had not herself read the contract of sale and did not know whether it made any provision for apportionment. Once the contract had been signed on the basis of an agreed price, there was no possibility of apportioning the land tax with the purchaser. 16The applicant acknowledged that the Commissioner had exercised his powers under s 47(2)(b) to release the statutory charge over the land so as to enable settlement to proceed. She had not at that time made any commitment to paying the balance outstanding, but funds had been set aside to meet the liability. She did not dispute that most of the amount of land tax owing on the property had been paid before settlement of the sale on 30 March 2012. The balance of $6413.19 was later recovered by garnisheeing certain funds held on trust by the real estate agency that had acted on the sale, as the applicant had not paid the full amount before settlement.

Consideration 17The material facts of this case are not in dispute. The applicant's essential position is that the LTM Act does provide for apportionment of land tax liability on the basis of the length of time the property has been owned during the tax year, and that if it does not, it should do so. Further, the Commissioner should waive a portion of the liability imposed because of her financially difficult circumstances. 18The LTM Act does not, however, empower the Commissioner to alter the applicant's liability in circumstances where no exemption applies. Further, the Act does not provide for a pro-rata reduction of the applicant's land tax liability on the basis of the length of ownership of the property during 2012 or any other year, as the tribunal stated in Shah v Chief Commissioner of State Revenue [2010] NSWADT 184 at [16]: [T]here is no such provision in the Act to allow land tax to be calculated on any pro-rata ownership basis. Land tax was levied pursuant to sections 7, 8 and 9 of the Act on the basis of ownership of the relevant land on 31 December 2009 for the 2010 land tax year. 19To the same effect are comments in Volpatti v Chief Commissioner of State Revenue [2007] NSWADT 222, [27]: I note there is no general discretion in the LTMA allowing the Chief Commissioner to take into account other special circumstances that may apply in respect of a landowner which are not the subject of an exemption under the Act. 20As regards the contention that s 47 affects the quantum of liability for land tax, it is plain that s 47(1) does no more than make the amount of land tax payable and owing a first charge on the property. Before the balance had been recovered, the Commissioner issued a certificate to the conveyancer acting for the purchaser of the property dated 9 June 2012 releasing the land tax as a charge on the property, pursuant to s 47(2)(b). That subsection empowers the Commissioner to release the land taxed from " the charge imposed by subsection (1)". It does not release the land from liability to the land tax assessed or any part of it. The applicant appears to have been misled by the fact that s 8 provides that "Land tax shall be charged on land as owned at midnight .... ". From s 47(2) it is clear that the Commissioner's power to release relates to the charge imposed by subsection (1), not to liability. Thus the word "charge" is being used to denote liability in one section, and security in the other. Confusing the two meanings is not a mistake most lawyers would make, but the applicant was acting without the benefit of legal advice. 21Finally, the applicant seeks to rely on s 50 of the LTM Act and s106B of the TA Act. She states that it is her understanding that the tribunal has jurisdiction to exercise powers in the TA Act and may instruct the Commissioner to waive land tax on hardship grounds. 22It is clear, however, that this tribunal has no jurisdiction to exercise the powers conferred by Part 10 Division 5 of the TA Act, and therefore cannot waive land tax on hardship grounds: Shah v Chief Commissioner of State Revenue [2010] NSWADT 184 at [21]; York v Chief Commissioner of State Revenue [2003] NSWADT 119 at [10]; Kumaran v Chief Commissioner of State Revenue [2006] NSWADT 269 at [10]. Questions of hardship are a matter falling within the powers of the Hardship Review Board, and indeed the applicant has already made an application to that body.

Costs 23The respondent made a contingent application for costs, pointing out that it had made an offer of compromise to the applicant by letter dated 3 October 2012 (Exhibit R2). It had been a genuine offer and the applicant's rejection of it was relevant to costs. The Commissioner had previously fully explained in writing to the applicant how the legislation works. It had been forced to undertake a great deal of preparation and had made the offer to avoid incurring further costs for the parties and the tribunal. 24The applicant replied that she did not view the letter as a genuine attempt to compromise the matter. The respondent had said she had no legal basis for her claim but she believed that she did. She thought it unfair that they could seek to charge her for costs that they had themselves incurred and which she could not in any event afford to pay. The letter of 3 October seemed to her more like a threat than an offer of compromise. She had previously told the tribunal that she found that the respondent's letters threatening and upsetting. 25The tribunal has the power under s 88 of the ADT Act to award costs if it is satisfied that it is fair to do so having regard to certain criteria listed in subsection (1A), which include whether a party has made a claim that has no tenable basis in fact or law. 26The respondent's letter of 3 October appears to accord with the principles laid down in Calderbank v Calderbank (1975) All ER 333. If it gave the applicant the impression of being in the nature of a threat, I think that impression may have resulted from the respondent's endeavours to comply with Calderbank principles by expressing the offer in clear and precise terms. 27The Victorian VCAT, which has a largely similar cost regime, has held that great care should be taken in exercising a power to award costs, so as to ensure that the tribunal remains readily accessible to the public at relatively low cost, particularly having regard to the tribunal's obligation to act fairly and to conduct proceedings with as little formality and technicality as the applicable legislation permits (Re Cooper and Borooondara CC [2001] VCAT 2429 at [34]. Those obligations are similar to the principles enunciated in s 3 of the ADT Act. The award of costs in proceedings involving less affluent members of the community might effectively deny access to the justice system: Bilek and Bata Investments Pty Ltd [2005] WASAT 153 at [15]. If there has been no unreasonable conduct by the party, costs will not generally be awarded: Firestar Enterprises Pty Ltd and Town of Vincent [2007] WASAT 100 at [15]. 28While the present proceedings by the applicant had few real prospects of success, I think the applicant's conduct resulted from misunderstandings caused by her inability to afford professional legal advice rather than from unreasonableness or vexatiousness. Noting that the power in s 88 incorporates a discretionary element implied by the use of the word "may", I think it inappropriate to make a costs order in this case. 29For the reasons given above, the decision under review must be affirmed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2012