Significance, if any, of the respondent having sent the Land Tax Assessment Notices to the wrong address?
- The Taxation Administration Act 1996 (NSW) (TA Act), contains general provisions with respect to the administration and enforcement of a number of prescribed taxation laws, including the LTM Act: see TA Act ss 4 and 7.
- For example, s 8 of the TA Act makes provision for the respondent to make an assessment of tax liability of a taxpayer. That section is in the following terms:
8 General power to make assessment
(1) The Chief Commissioner may make an assessment of the tax liability of a taxpayer.
(2) An assessment of a tax liability may consist of a determination that there is not a particular tax liability.
(3) For the avoidance of doubt, an assessment of tax liability is taken to have been made when the Chief Commissioner calculates the tax liability of a taxpayer based on a return under the Payroll Tax Act 2007 or any other Act prescribed by the regulations for the purposes of this subsection (whether or not the Chief Commissioner issues a notice of assessment as a result of that calculation or otherwise notifies the taxpayer of the calculation)
- As I have noted above, under s 8 of the LTM Act, subject to the land being exempt, land tax is automatically levied each year on land owned at midnight on the thirty first day of December of the year immediately preceding the year for which it was levied. The person liable for the amount levied is the owner of the land.
- Section 11 of the TA Act makes provision for the information on which the respondent is to make an assessment as follows:
11 Information on which assessment is made
(1) The Chief Commissioner may make an assessment on the information that the Chief Commissioner has from any source at the time the assessment is made.
(2) If the Chief Commissioner has insufficient information to make an exact assessment of a tax liability, the Chief Commissioner may make an assessment by way of estimate.
- Section 14 of the TA Act deals with Notices of Assessment as follows:
14 Notice of assessment, reassessment or withdrawal of assessment
(1) The Chief Commissioner may issue a notice of assessment (showing the amount of the assessment).
(2) If the Chief Commissioner has not issued a notice of assessment of the tax liability of a taxpayer, the Chief Commissioner must issue the notice if a request to do so is made by the taxpayer within 5 years after the liability arose.
(3) If the Chief Commissioner makes a reassessment, the Chief Commissioner must issue a notice of assessment (showing the amount of the reassessment).
(4) If the Chief Commissioner withdraws an assessment, the Chief Commissioner must issue a notice of withdrawal of assessment.
(5) The notice is to be in a form approved by the Chief Commissioner
- Section 116 of that Act makes provision for the service of documents by the respondent as follows:
116 Service of documents by Chief Commissioner
(1) A document authorised or required to be served on or given to a person by the Chief Commissioner for the purposes of a taxation law may be served on or given to the person:
(a) personally, or
(b) by leaving it at the last address of the person known to the Chief Commissioner (including, in the case of a corporation, the registered address or a business address of the corporation), or
(c) by post addressed to the person at the last address of the person known to the Chief Commissioner (including, in the case of a corporation, the registered address or a business address of the corporation), or
(d) by delivering the document, addressed to the person, to the facilities of a document exchange specified by the person for the service of documents of that kind, or
(d1) by email to an email address specified by the person for the service of documents of that kind, or
(d2) by any other method authorised by the regulations for the service of documents of that kind, or
(e) by any means provided for the service of the document by another Act or law.
(2) If a person (the agent) has actual or apparent authority to accept service of a document on behalf of another, the Chief Commissioner may, for the purposes of a taxation law, serve the document on the agent as if the agent were that other person.
(3) Service of a document on a member of a partnership, or on a member of the committee of management of an unincorporated association or other body of persons, is taken, for the purposes of a taxation law, to constitute service of the document on each member of the partnership, or on each member of the association or other body of persons.
- While the respondent is given the power to make an assessment of land tax, the liability for such arises without the need for an assessment. When it is assessed by the respondent, the amount that is payable is that which is prescribed in Part 3 of the LTM Act. That is, LTM Act does not vest the respondent with any discretion as to the liability for land tax or what amount is payable by the owner of the land.
- It is my understanding that in issuing the 2015 Land Tax Assessment Notice the respondent relied on the documentation that was lodged with the NSW Lands Title Office when the Property was transferred to the applicant in September 2014. As I have noted above, the Revesby address, in part, appears to have been correct at that time.
- As the Notice was not issued until one year after the purchase of the Property and many months after he had notified ASIC of the change in address, Mr Neubert contended that it was the responsibility of the respondent to undertake an ASIC search to check for the correct address. Had the respondent done so, Mr Neubert said it would have been evident that there was a change of address and the Notice would have been sent to the correct address at Cecil Hills. Mr Neubert went on to say that had he and his partner received that Notice they would have been able to pay the amount outstanding and taken action to transfer the Property into their own names and avoid any future land tax liability.
- While I can understand Mr Neubert and his partner are frustrated at what has occurred, in my opinion, given the nature of the transfer of the Property to the applicant, there was no basis for the respondent to question the registered address and principal place of business of the applicant as disclosed in the transfer papers lodged in 2014. It was for Mr Neubert and his partner to inform the respondent of the change of address. However, I can understand why they may not have done so if, as they contended, their accountant had advised them that no land tax was payable on the Property. Nevertheless, it was ultimately a matter for which they as officers of the applicant were responsible. Hence, I find no error on behalf of the respondent in addressing the 2015, 2016 and 2017 Land Tax Assessment Notices to the Revesby address. This would appear to have been, from the information provided to the respondent, the last known address of the applicant.
- Even if I am wrong, s 16 of the TA Act preserves the validity of the Land Tax Assessments for the 2015, 2016 and 2017 land tax years. That section provides as follows:
16 Validity of assessment
The validity of an assessment is not affected because a provision of a taxation law has not been complied with.
- Accordingly, I find nothing turns on the Land Tax Assessment Notices for 2015, 2016 and 2017 having been sent to the Revesby address. Nor, does anything turn on the applicant being unaware of its land tax liability for these years until October 2017. As noted in the recent decision of the Tribunal in Strathavon Resort Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 200, at [22] and [23]:
22 It is clear from the Gunasti case, following the High Court decision in Commissioner of Taxation v Ryan (2000) 201 CLR 109; 43 ATR 694; 74 ALJR 471, that the fact that an assessment is not issued punctually by the Chief Commissioner cannot of itself provide an exemption from liability. It is also clear from those cases that concepts such as fairness and justice cannot intrude into the legislative taxation scheme, notwithstanding the fact that such a scheme might in certain circumstances operate harshly. I accept that to a taxpayer in the position of Strathavon that may be a bitter pill to swallow. But that is the law.
23 It must follow that the facts that the relevant assessments were not issued until about March 2016 and not made available to Strathavon until then do not alter the validity of each of those assessments. (emphasis added)
- While the issue in Strathavon differed to this case, the concepts of fairness and injustice equally do not intrude into the legislative scheme of land tax liability where an assessment notice is sent to a former address of the taxpayer.