Legislation: ACT Civil and Administrative Tribunal Act 2008, s 68

Land Tax Act 2004, ss 14, 19, 19A, 36, 38, 82 and part 2

Rates Act 2004, s 75

Taxation Administration Act 1999, ss 31, 37, 100, 107A and 108A, and part 5 and schedule 1.2

Cases: Aston v The Commissioner for ACT Revenue

(2007) ACTAAT 5

Commissioner for Revenue (ACT) v Dataflex [2011]

James v Commissioner for ACT Revenue [2013] ACAT 32

RVO Enterprises Pty Ltd v Chief Commissioner of State Revenue

[2004] NSWADT 64

Theron v Commissioner for ACT Revenue [2013] ACAT 33

COMMISSIONER FOR ACT REVENUE

1. On 3 June 2013, an application was filed by Mr Craig Scott and Ms Lisa Maree Thompson (the Applicants) in the ACT Civil and Administrative Tribunal (the Tribunal) for review of a decision of the Commissioner for ACT Revenue (the Commissioner) made on 6 May 2013. The Commissioner's decision was to impose penalty tax and interest for land tax for a property owned by the Applicant at Bandt Place, Dunlop (the property). The Commissioner disallowed the Applicants' objection to the imposition of penalty tax and interest for land tax.

1. At the hearing on the 26 September 2013, Mr Scott, representing both Applicants, agreed to file a power of attorney from Ms Thompson and this was filed on 27 September 2013. The Commissioner was represented by Ms K Katavic of counsel.
2. The Tribunal had before it a set of documents relevant to the decision under review (T documents), together with the Applicants' application to the Tribunal, their Facts and Contentions, the Commissioner's Facts and Contentions, and a List of Authorities filed by the Commissioner.
3. A document prepared by Ms Katavic and agreed to by Mr Scott was accepted as an Exhibit. It set out a chronology of events, and agreed facts and contentions. Also at the hearing, it was agreed that the Commissioner would file a further submission to address aspects of an issue raised by the Applicants about what constitutes notification to the Commissioner under section 14 of the Land Tax Act 2004 (LTA). Following the hearing, the Applicants asked that they be allowed to reply to the further submission given its content. This was allowed by the Tribunal with the Commissioner raising no objection. In accordance with these agreements, the Commissioner filed a Further Submission dated 27 September 2013 and the Applicants filed a Reply dated 9 October 2013.
4. The parties agreed that the property was subject to land tax for the rental period from 17 August 2009 to 29 January 2013 and that the applicants did not pay land tax for this property for the rental period.
5. Mr Scott gave oral evidence to the Tribunal on behalf of both Applicants.

1. The assessment of land tax, penalty and interest for the property is covered by the LTA and the Taxation Administration Act 1999 (TAA).
2. In summary, the grounds for imposition of land tax under the LTA are that the land must be held under a Crown lease for residential purposes on the first day of the quarter, and it must have been rented at some time in the previous quarter.[1] The LTA provides for a written notice to be given to the Commissioner[2] by the landowner or their agent about a property being rented, and the date from which it is rented. If land tax is imposed and section 14 of the LTA is not complied with then interest and penalty tax apply in addition to the land tax payable. The amount of interest payable is set out in the LTA.[3] Non-compliance is treated as a tax default under the TAA,[4] and the amount of penalty tax is payable at a statutory rate depending on the circumstances of the default [5]and, in some circumstances, can be remitted [6]
3. Key relevant sections of legislation are extracted at the end of this Decision.

1. The Tribunal may review "reviewable decisions".[7] When conducting such a review the Tribunal has all the powers of the original decision-maker.[8] The TAA defines "reviewable decisions"[9] to include decisions to impose a penalty tax under section 31 of the TAA, and a decision not to remit it under section 37 of the TAA.
2. However not all decisions of the Commissioner are reviewable by the Tribunal. Decisions by the Commissioner about the imposition of interest[10] and not to remit interest[11] are not able to be reviewed by the Tribunal.[12]

1. The TAA places the onus of proof on the taxpayer, in this case the Applicants, to show that an objection should be upheld.[13]
2. The Applicants stated that they had not received any notice about land tax from the Commissioner in 2009, despite lodging the transfer for the property with the ACT Land Titles Office in 2009. Mr Scott also stated that he may have had to negotiate late payment of rates with ACT Revenue for this property, although in evidence he was not sure. However the Tribunal notes a Rates Arrears Notice for the property dated 2 July 2010 was submitted in evidence. The Applicants received a Notice entitled "Residential Land Tax Notice Under s82 Taxation Administration Act 1999 " from the Commissioner for the property in late 2012; while the notice is dated 15 October 2012, the Applicants' evidence was that they only recall receiving the reminder notice in November 2012. The Applicants submitted the completed notice on 23 November 2012 and fully disclosed the rental details for the property. On 5 December 2013, they received an "Internal Review Notice" stating that the Commissioner imposed land tax and interest and penalty tax at the rate of 50%.
3. By contrast, when a transfer was lodged for another investment property they purchased in early 2012, which was not leased at the time of purchase, they received a notice about land tax from the Commissioner to complete, if applicable, titled "Residential Land Tax Notice that Property is Rented". The Applicants submitted the completed Notice for this other investment property, a copy of which and the covering fax was submitted in evidence. The Applicants received their first "Land tax Assessment" for this other investment property dated 15 May 2012 which they paid.
4. The Applicants argue that no interest should be imposed[14] or that it be remitted.[15]
5. Also they argue that the 50% rate for penalty tax is not applicable to them, since the tax default was not wholly or partly caused by their failure to take reasonable care. The Applicants stated that the Commissioner had failed to send them the relevant Notice to complete until 2012. Their concern about failures within ACT Revenue was heightened when ACT Revenue on 20 March 2013 sent Mr Scott an unrelated advice about land tax by mistake. Also a file note submitted by the Commissioner's office stated that the completed Notice for the Applicants' other investment property was not able to be located when a search was made in early 2013 despite it having been faxed by the Applicants in 2012.
6. The Applicants had engaged a law firm to do the conveyance for their investments properties. In 2013, the Applicants (i.e. Mr Scott) enquired of that firm whether they had notified the ACT Revenue Office that the property was leased on their behalf. On 29 January 2013, the firm responded and did not confirm that they had lodged a notice but stated:

"Once your bank registered this transfer that automatically notified both Revenue and ACTEW (water) of the address where notices were to be sent"

1. The Applicants submitted that they are fully compliant with land tax for their other investment property and had no intention to avoid land tax. They have many responsibilities regarding family, sport, work and, in the case of Mr Scott, the Army Reserve, and their level of care was reasonable given these factors.
2. Relevant to remittal of penalty tax,[16] the Applicants argued that they were not formally notified of an investigation under section 82 of the LTA until it was underway. If they had been given prior notice they could have become compliant with land tax requirements for the property without the need for an investigation.

1. The Commissioner argued that it was the obligation of the Applicants to notify the Commissioner about details of any renting of the property under section 14 of the LTA. Lodging the Transfer with ACT Land Titles Office meets the land owners' obligations under section 75 of the Rates Act 2004 to advise the Commissioner of any transfer of property and associated change of address for the purpose of rates for the property. Notification under section 75 of the Rates Act cannot satisfy section 14 of the LTA since "a change of address does not advise [ACT Revenue] that a property is rented. A property owner may have other reasons to have correspondence [from ACT Revenue] sent to a different address" [words within square brackets added][17]. On this basis, the Commissioner argued that the Applicants did not comply with section 14 of the LTA.
2. The Commissioner argued the rate for penalty tax of 50% (under section 31(2) of the TAA) was justified because the tax default was caused wholly or partly by the Applicants failing to take reasonable care. The land tax was not paid for a considerable period of time, over three years. The Applicants received information about land tax in their rates notices and, given that all rates were paid by the Applicants, this information was received by the Applicants. Also in early 2012, the Applicants had submitted the required notification to the Commissioner for land tax for another investment property and had begun to pay land tax for that other investment property in mid-2012. The Commissioner argued that "mere ignorance and oversight are not sufficient to remit or reduce the penalty tax".[18]
3. The Commissioner argued that penalty tax should not be remitted under section 37 of the TAA. In particular, the Applicants had not taken reasonable steps to mitigate the circumstances that resulted in the liability, given the default was only uncovered once the Commissioner initiated an investigation under section 82 of the LTA on or shortly before the 15 October 2012. The Applicants were sent a notice, followed by a reminder notice in late 2012 before they submitted the relevant document about the property to the Commissioner on

23 November 2012. Also there were no exceptional circumstances in this case. 4. The Commissioner submitted that the decisions to impose interest and not to remit it are not reviewable by the Tribunal under the LTA and the TAA.

1. The Tribunal firstly considers whether section 14 of the LTA notification was complied with by the Applicants. Then the question of the whether the decisions about interest are reviewable by the Tribunal is considered, followed by the question of the appropriate penalty tax rate and its remittal.

Whether section 14 of the LTA was complied with by the Applicants

1. The Applicants submitted that the Commissioner had the obligation to advise the Applicants of their land tax liability or, alternatively, that they had advised the Commissioner by virtue of the lodgment of a Transfer at ACT Land Titles Office and also by virtue of interaction with ACT Revenue on the rates for the property.
2. However, section 14 of the LTA imposes an obligation on the Applicants to notify the Commissioner of the property being rented. The ACT Revenue has no record of receiving any such notice. Mr Scott confirmed in evidence that the Applicants had not directly notified the Commissioner of the property being rented until they responded to the second section 82 Notice in November 2012 because they were not aware of any such obligation until 2012.
3. While lodgment of the Transfer at ACT Land Titles Office satisfied the Applicants' obligation under s75 of the Rates Act to advise the Commissioner of any change of address for the purpose of rates for the property, it did not satisfy the Applicants' obligation under section 14 of the LTA. Specific Notice about renting of a property is required since it may be that a property changes ownership but is not rented.
4. In Aston v The Commissioner for ACT Revenue[19], the ACT Administrative Appeals Tribunal found in favour of the Applicant taxpayer. However, in that case "the applicant did all that was initially required of him to enable his liability to pay land tax to be assessed and notice of the amount of liability to be given". He had engaged the Defence Housing Authority (Defence Housing) to "manage the property and to attend to all administrative arrangements relating to it", but ACT Revenue had misplaced the relevant notice from Defence Housing through an "administrative oversight".[20] While the Applicants in the matter before me showed administrative errors by the Commissioner's office, these did not relate to the property. There is no evidence of the Commissioner misplacing a notice for the property. Mr Scott gave evidence that he had no direct contact with Defence Housing, although Defence Housing did "manage the property" for them after the settlement[21]. The Applicants had engaged a firm of solicitors to do the conveyancing only, and in that firm's email of 29 January 2013 to Mr Scott they did not confirm that any notification had been provided by that firm on behalf of the Applicants to ACT Revenue. On this basis, the Aston matter can be distinguished from the facts of this case.
5. The lodgment of the a document for the property in 2009 at the Land Titles Office is a similar situation to that in James v Commissioner for ACT Revenue,[22]. In the James case it was argued that the lodgment of a document with the Land Titles Office was "effective notification" to ACT Revenue under section 14 of the LTA. After a detailed consideration of factors including shared government shopfronts, information sharing and notes on the relevant forms used by the ACT Land Titles Office, the Tribunal concluded:

"The Registrar-General of Land Titles is a separate entity to the Commissioner for ACT Revenue. These offices are separate agencies for the purpose of information-sharing legislation...the evidence of the representative of the Commissioner was that she was unaware of any formal arrangement for information as to registration of leases to be routinely provided to the Commissioner for land tax purposes...The evidence and submissions...were not that the applicants had registered the lease intending this to be notification of the Commissioner, but that in hindsight perhaps registration with the Registrar-General was legally effective...I am not satisfied that the Registrar-General could be considered to be the agent for the Commissioner..."[23]

1. At the hearing and in further submissions after the hearing, the current legal and practical arrangements between the Commissioner and Land Titles Office were considered, and there was no evidence that these have altered since the decision in the James case.
2. I am not satisfied that dealings with the Land Titles Office constitute notice under section 14 of the LTA for the purposes of land tax in this case. Therefore, I conclude that the Applicants did not comply with section 14 of the LTA.

Are decisions regarding interest reviewable by the Tribunal?

1. I find that decisions by the Commissioner to impose interest[24] and not to remit interest,[25] are not able to be reviewed by the Tribunal as stated in paragraph 11 above.[26]

1. The TAA sets the amount of penalty tax at 25% of the amount of tax unpaid (section 31(1)), and it is increased to 50 % as occurred in this case if the tax default "was caused wholly or partly by a failure of the person (or a person acting on behalf of the taxpayer) to take reasonable care to fulfill the taxpayer's obligation..."(section 31(2)). The 50% penalty tax does not apply "if the taxpayer ...had a reasonable excuse for the failure" (section 31(3)). Also no penalty tax is payable if the taxpayer took "reasonable care" or the tax default "happened solely because of circumstances beyond the taxpayer's control" (section 31(6) (a) and (b)).
2. A higher penalty tax percentage can be imposed where the taxpayer shows intentional disregard " (section 31(5) of the TAA). However, I accept that there was no intention by Mr Scott or Ms Thompson to avoid the operation of the tax laws. The issue relevant to section 31 in this case is whether the Applicants took

"reasonable care" and, if not, whether they had a "reasonable excuse for the failure", or if the default "happened solely" due to circumstances beyond their control.

1. In RVO Enterprises Pty Ltd v Chief Commissioner of State Revenue [27], the NSW Administrative Decisions Tribunal stated the following about factors which suggest a taxpayer took reasonable care:

"...attempts to comply with tax law, reasonable professional and other inquiries 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 Applicants submitted that the default occurred due to a number of factors, being ignorance of the law, 2013 advice from their conveyance solicitors that notice to the Commissioner was "automatic" upon lodgment of their Transfer, and various aspects of their lifestyle that made them busy and stressed. Mr Scott gave evidence that he received the rates notices for the relevant property and "I take out the bill and throw away the rest of any information".[28] In these respects, the Applicants' case is similar to Theron v Commissioner for ACT Revenue[29], where the Tribunal found the Applicant had not taken reasonable care and did not show any reasonable excuse.
2. There is a significant additional aspect to the Applicants' behavior in this case compared to the Theron case that further supports a finding that the Applicants had not taken reasonable care, did not show any reasonable excuse and that the default did not occur only due to circumstances beyond their control. The imposition of land tax for their other investment property in early 2012 should have led them to make enquiries with the Commissioner about their liability if any for the property. The Applicants certainly knew from mid-May 2012 about land tax due to their engagement with the ACT Revenue Office about their other investment property. Some 5 months later, unfortunately they had not enquired about any liability for the Bandt Place property when the first section 82 Notice was issued by the Commissioner on 15 October 2012. Mr Scott gave evidence that

"...When I started receiving land tax notices for the second investment property...Again, busy lifestyles. I know it's not an excuse...at times I may have thought that the next day ...I'd ring ACT Revenue Office to enquire...However, get to work and sort of put to the wayside and forgotten about until the next quarterly rates notice has come in."[30]

1. On this basis, I am satisfied that the Applicants did not take reasonable care, have no reasonable excuse for this default and the default did not occur solely due to circumstances beyond their control. The default occurred over a significant period of time, from when the property was rented in 2009 until 2012. The Applicants paid the rates themselves and so received information about land tax sent to them with their rates notices, which they discarded without reading. Even after they began engaging with the Commissioner about land tax for another investment property in May 2012, they made no enquiries of the Commissioner about any land tax payable for the Bandt Place property. The evidence about advice provided by the Applicants' conveyancing solicitors was limited, but even if the tax default was caused wholly or partly by a failure of the conveyancing solicitors to take reasonable care, the Applicants remain liable for the tax default under section 31 of the TAA.
2. Under the TAA, penalty tax can be remitted where there has been "reasonable steps to mitigate" or where there were "exceptional circumstances"

(section 37(a)), and also where it is "fair and reasonable to remit all or part of the penalty tax" (section 37(b)). In the Theron case mentioned earlier, which in some critical respects has similar facts to this case, the Tribunal did not remit penalty tax. Among other facts, in the Theron case the absence of voluntary disclosure before the investigation by the Commissioner began was considered a key factor in this decision. Similar to Theron, in this case there was not voluntary disclosure before the investigation. The Commissioner initiated a section 82 investigation on or shortly before the notice dated 15 October 2012, with an Electricity Connection Search undertaken by the Commissioner on 16 October 2012. However, the Applicants did not respond to this notice, so a second reminder notice dated 13 November 2012 was sent, to which the Applicants responded promptly. While the Tribunal accepts there was no intention by the Applicants to avoid paying tax, these facts do not support a finding that they took reasonable steps to mitigate or that it would be fair and reasonable to do so. 3. The Applicants argued that if the Commissioner had advised them of the investigation prior to it beginning, they would have "confirmed that the property was leased, and then they would have saved a lot of time and effort...and I would have been paying land tax from whenever".[31] The law about this was considered in the Dataflex case, where it was made clear that the "sections appear to indicate that generally the commissioner will inform the taxpayer that an investigation will be carried out before the commissioner embarks on one"; and the Court found that there was no "requirement" to do so and a "covert investigation " may be necessary.[32] Given the long period of default by the Applicants and the absence of voluntary disclosure even after land tax on another investment property became payable, it is reasonable that the Commissioner chose to provide no notice of the investigation to the Applicants. 4. The Tribunal also finds that the Applicants' circumstances that led to the tax default were not exceptional. While the Applicants have had various factors in their life that were stressors, they have been functioning well enough to have successful lives in that they work, own 2 investment properties, attend Army Reserve and so on.

1. Having regard to all of the matters before the Tribunal, the order that the Tribunal makes is to confirm the decision under review.
2. In doing so, it is worth noting that it is unfortunate that the Applicants, who had no intention to avoid paying land tax, find themselves in this position. Their submissions and evidence about their ignorance of land tax, the advice from their conveyancing solicitors that notice to ACT Revenue is automatic once the Transfer was lodged with ACT Land Titles Office, and their inattention to land tax information in their rate notices, has similarities with the Theron case. These issues may be relevant to any future enhancements to information awareness undertaken by the Commissioner on land tax.

Land Tax Act 2004

1. Commissioner to be told if residential land rented

_(1) This section applies in relation to a parcel of land that - _

_(2) A relevant person must tell the commissioner, in writing - _

Note 1 If a form is approved under the Taxation Administration Act 1999, s 139C, the form must be used.

Note 2 It is an offence to fail to notify the commissioner under this section (see Taxation Administration Act 1999, s 67 (2)).

Note 3 It is also an offence to knowingly avoid paying, or disclosing a liability to pay, part or all of an amount of tax (see Taxation Administration Act 1999, s 65 (1)).

_(3) The relevant person must tell the commissioner the information mentioned in subsection (2) not later than 30 days after - _

(a) if there is a change of ownership of the parcel - the day the ownership changes; or

(b) in any other case - the day the rental begins.

(4) This section does not apply if the owner of the parcel of land is a corporation.

(b) if the owner has authorised an agent to act on the owner's behalf in relation to the rental of the parcel - the agent.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Taxation Administration Act 1999

(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.

(2) The amount of penalty tax payable in relation to a tax default is 50% of the amount of tax unpaid if the commissioner is satisfied that the tax default was caused wholly or partly by a failure by the taxpayer (or a person acting on behalf of the taxpayer) to take reasonable care to fulfil the taxpayer's obligations under a tax law.

(3) Subsection (2) does not apply if the tax payer satisfies the commissioner that the taxpayer (or a person acting on behalf of the taxpayer) had a reasonable excuse for the failure.

(4) Subsections (2) and (3) apply to a tax default that happened before their commencement in the same way as they apply to a tax default that happened after their commencement.

(5) The amount of penalty tax payable in relation to a tax default is 75% of the amount of tax unpaid if the commissioner is satisfied that the tax default was caused wholly or partly by the intentional disregard by the taxpayer (or a person acting on behalf of the taxpayer) of a tax law.

_(6) 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 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.

Note The commissioner's decision to impose penalty tax is an internally reviewable decision (see s 107, def internally reviewable decision), and the commissioner must give an internal review notice to the taxpayer (see s 107B).

_The commissioner may remit all or part of an amount of penalty tax payable by a person if satisfied that - _

(i) the person has taken reasonable steps to mitigate, or to mitigate the effects of, the circumstances that resulted in the liability for penalty tax; or

(ii) the circumstances that resulted in the liability for penalty tax were exceptional; and

(b) it would be fair and reasonable to remit all or part of the penalty tax.

Note The commissioner's decision to refuse to remit penalty tax payable by a person is an internally reviewable decision (see s 107, def internally reviewable decision), and the commissioner must give an internal review notice to the person (see s 107B).

COMMISSIONER FOR ACT REVENUE

[3] See section 19A, LTA, and Part 5, TAA

[8] Section 68, ACT Civil and Administrative Tribunal Act 2008

[12] See section 38, LTA, and section 107A and Schedule 1, item 1.2, TAA; Theron v

Commissioner for ACT Revenue [2013] ACAT 33

[17] Page 4, Reasons Statement of the Commissioner (6 May 2013)

[18] Page 7, Statement of Facts and Contentions of the Commissioner (6 September 2013)

[19] (2007) ACTAAT 5

[20] (2007) ACTAAT 5 at [3] and [15]

[22] [2013] ACAT 32

[26] See section 38, LTA, and section 107A and Schedule 1, item 1.2, TAA; Theron v

Commissioner for ACT Revenue [2013] ACAT 33

[27] [2004] NSWADT 64 at [23]

[29] [2013] ACAT 33

[32] Commissioner for Revenue (ACT) v Dataflex [2011] ACTCA 14 at 47