Topcubasi v Chief Commissioner of State Revenue

Applicant's rights of review

1. Where tax has been assessed, s 86 of the Taxation Administration Act 1996 (NSW) ("Administration Act"), allows rights of objection to a taxpayer dissatisfied with an assessment. This is an internal review process under which the Chief Commissioner of State Revenue, the Respondent in these proceedings, must consider and determine the objection (s 91 of the Administration Act). On the facts at hand, that determination happened by 23 October 2023.
2. A taxpayer who is dissatisfied with the decision made upon the Respondent's determination of an objection, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the decision of the Chief Commissioner of State Revenue. These circumstances have arisen in the present matter as set out above, so bringing the matter within the jurisdiction of the Tribunal.
3. The onus of proving his case lies with the Applicant (s 100(3) of the Administration Act).
4. The Tribunal, dealing with the taxpayer's application, may do one or more of the following under s 101 of the Administration Act: "(a) confirm or revoke the assessment or other decision to which the application relates, (b) make an assessment or other decision in place of the assessment or other decision to which the application relates, (c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid, (d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision, (e) make any further order as to costs or otherwise as it thinks fit."

Summons

1. A preliminary matter for determination by the Tribunal was whether documents the subject a summons issued at the request of the Respondent should be released to the Respondent. The Tribunal allowed the release certain documents produced pursuant to the summons, with the consent of the Applicant. This was done at the hearing with opportunity given to the Respondent to review these documents after release. Other documents were the subject of a claim for legal professional privilege on the part of the Applicant. The Tribunal upheld that claim and these documents were not released to the Respondent.

Substantive matters

1. The substantive matters for determination were whether interest and penalty tax had been properly assessed.
2. In circumstances where a tax liability has not been discharged within the required period, a tax default arises. That a tax default has arisen is not in dispute. The Respondent submitted that the tax default in the present matter, namely non-payment of surcharge purchaser duty when due, allowed him to assess interest and penalty tax on the unpaid surcharge purchaser duty. The Applicant disagrees.

Interest

1. The Respondent can assess interest at both the market rate and the premium rate (s 21 and 22 of the Administration Act). He has done so. The Assessment made included interest calculated at both rates.
2. The Respondent, however, has certain statutory powers to remit interest (s 25 of the Administration Act). That power is discretionary. The Chief Commissioner may issue guidelines setting out how interest must be remitted. If guidelines are issued, interest must be remitted only in accordance with the guidelines.
3. Section 25 in its current form came into effect on 1 February 2024. The provisions allowing for the use of guidelines for remittal of interest took effect from that date. No guidelines have been issued on or after that date. The Respondent sets out in Practice Note CPN 024 ("CPN 024") his earlier guidelines as to how he will exercise his powers of remission. These guidelines were issued in June 2022 but remain current. Relevantly, they provide as follows: "When a tax default occurs, interest is calculated on the amount of unpaid tax calculated on a daily basis from the end of the last day for payment until the day it is paid. The Chief Commissioner may remit the market rate component or the premium component of interest, or both, by any amount depending on the circumstances affecting the tax default. Where the remission of interest is warranted, the amount remitted will, generally, be either both the premium and market rate or the premium rate only. …….. Circumstances outside the control of a taxpayer Where there is evidence that the default was outside the control of the taxpayer (or their representative), the Chief Commissioner may remit interest. Events over which a taxpayer has no control include but are not limited to: a. natural disasters such as fire or flood b. computer system breakdowns including third party systems such as electronic funds transfer systems c. illness or death of a principal taxpayer d. Revenue NSW fault affecting receipt of payment, including processing problems e. circumstances where it is impossible to lodge or pay on time (excluding financial incapacity including hardship) In cases of financial incapacity, taxpayers may apply for relief in the form of an extension of time to pay, including an instalment arrangement Reasonable care taken by the taxpayer Where there is sufficient evidence to prove that the default was within the control of the taxpayer (or their representative), but reasonable care has been taken to ensure the payment of the tax, the Chief Commissioner will usually remit the premium rate component of the interest. Events that may indicate that the taxpayer took reasonable care include (but are not limited to): a. being honest and forthright when dealing with the Chief Commissioner b. cooperation with the Chief Commissioner c. the default is attributable to calculation errors d. making diligent efforts to understand and comply with the law e. maintaining appropriate and proper recording systems in accordance with normal practice i.e., systems that minimise the risk of tax default, allow reconciliation of the tax paid or payable with returns required to be lodged and fulfil the taxpayer's obligation under the taxation laws to maintain records for the purposes of Revenue NSW investigations or audits f. taking reasonable steps to be aware of and comply with his/her taxation obligations and to be familiar with the legislative requirements g. applying any relevant revenue rulings in good faith h. seeking professional advice or private rulings for uncertain or complex matters where no revenue ruling applies, or where circumstances differ from those described in a revenue ruling i. acting promptly to seek advice or provide information once made aware, from any source, that the taxpayer might have a tax liability j. the taxpayer has used and reasonably relied on data, statements or other information provided by a third party. Meeting one or more of these examples does not necessarily mean that reasonable care has been taken; all relevant factors leading to the tax default will be taken into consideration. Note: Remission of the premium rate will only occur in special circumstances".
4. Bathurst CJ in Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd (2020) [2020] NSWCA 126 ("Downer EDI") considered the reach of the power in s 25 of the Administration Act to remit interest. His Honour did not think there was a relevant limit on the power of the Chief Commissioner to remit interest in s 25 of the Administration Act.
5. Each of the components of interest assessed, however, requires specific consideration. Those components are made up of interest assessed at the market rate and interest assessed at the premium rate.
6. The rationale for the market rate of interest is described as follows in Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19 ("Incise Technologies") and why it should be waived only rarely. The Tribunal said, at [60]: "In our view the primary interest rate (the market rate component) is intended to compensate the Commissioner (on behalf of the Government of New South Wales) for not having the benefit of the tax payment from the time it was due. So a rate is set which fluctuates, and is connected to an external rate, the Reserve Bank's Accepted Bill rate. This, as we see it, is a component that could rarely, if ever, be waived as otherwise tax would be paid at a devalued amount thereby discriminating against taxpayers who meet their obligations on time. The Tribunal made the observation at [50] that to justify any remission of the market rate component of interest, it would be necessary to show that in some way the Commissioner contributed to the default. We agree with this observation".
7. The approach of the Respondent, set out in CPN 024, is that where the circumstances of non-payment were beyond the control of the taxpayer, remission of interest assessed at the market rate may be justified. The Tribunal in Incise Technologies laid emphasis on fault on the part of the Respondent as grounds for remission. This was a factor that was also found to be of relevance in Trust Co. of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21, at [27].
8. The initial substantive question is whether the relevant tax defaults arose as a result of circumstances beyond the control of the Applicant. The Applicant alleges fault on the part of the Respondent. He asserts there has been a neglect by the Respondent of his "duties" in communicating to the Applicant his liability to pay surcharge purchaser duty. He points in particular to the delay between the date of assessment of the contract and the date of the Assessment. He also indicates that the notice of investigation sent to the Applicant did not arrive until some months later on 29 November 2023, thereby depriving him of the opportunity to contest the matter.
9. The Respondent, on the other hand, submits that the tax default that occurred was due to the failure by the Applicant to pay surcharge purchaser duty within three months of entering the contract. He also submitted that he was under no duty to notify taxpayers of their liability to taxation (Giunta v Chief Commissioner of State Revenue [2005] NSWADTAP 19; Denton v Chief Commissioner of State Revenue [2024] NSWCATAD 206, at [74]).
10. I accept the submissions of the Respondent. There is no evidence that there was any fault on the part of the Respondent resulting in the tax default in question occurring. Nor was there a duty on his part to advise the Applicant of his liability to surcharge purchaser duty. The Applicant as the taxpayer, remained responsible at all times to discharge his liabilities for taxation, including surcharge purchaser duty. There is no evidence of circumstances outside of his control giving rise to his tax default.
11. It is well accepted that interest at the market rate should rarely if ever be waived, because to do so would be to devalue the amount of tax payable. I see no reason to depart from this principle in the present case in light of the matters set out above, in particular, the absence of fault on the part of the Respondent. It follows that the assessment of interest at the market rate is affirmed.
12. The purpose of the premium rate of interest differs from that of the market rate of interest. While the market rate compensates the Chief Commissioner for the time value of money that is paid late, the premium rate of interest extracts from the taxpayer something more. It is in the nature of a penalty (Southern Cross Community Health Care Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1317 at [443] per Emmett AJA). That difference informs the varying approaches to remission of each kind of interest. While remission of interest assessed at the market rate should be rare, the circumstances in which interest assessed at the premium rate can be remitted are not as restrictive, even if they may need to be "special circumstances".
13. The Respondent submitted that determining whether remission of the premium rate component is justified involved the question of whether or not the taxpayer took reasonable care to comply with his obligations. There is no express requirement in s 25 for considerations of "reasonable care" to be taken into account in determining whether to remit interest (unlike in the case of s 27 applying to the remission of penalties as discussed below). The Respondent's guidelines, however, state that "taking reasonable steps to be aware of and comply with his/her taxation obligations and to be familiar with the legislative requirements" will be a matter that goes to whether remission should be made.
14. That taking reasonable care is a relevant consideration in determining whether or not interest at the premium rate should be assessed, alongside various other considerations, is well accepted (Golden Age and Hannas the Rocks Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 249, at [106]). What "reasonable care" to comply with taxation obligations means has been described as follows in Qualweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227, following RVO Enterprises Pty Ltd ATF the R M O'Mara Family Trust v Chief Commissioner of State Revenue 2004 NSWADT 64, at [95]: "In each case, it is essentially a question of fact whether the taxpayer has taken reasonable care in attending to its tax obligations. Factors that would indicate that a taxpayer took reasonable care include reasonable attempts to comply with the tax law, reasonable professional and other enquiries 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."
15. The decision of Richmond J in Golden Age is also relevant in considering remission of the premium rate of interest, having regard in particular to its penal character. His Honour held, in accordance with the decision in Downer EDI, that s 25 of the Administration Act, conferred on the Commissioner a broad discretionary power which is not subject to any limit. He went on to say, at [99]-[104]; "Section 25 of the TAA, both before and after its re-enactment, confers on the Commissioner (and on the Court standing in the place of the Commissioner under s 101) a broad discretionary power which is not subject to any limit: Chief Commissioner of State Revenue v Downer EDI Engineer Pty Ltd (2020) 103 NSWLR 772; [2020] NSWCA 126 at [151]. In the case of an unconfined discretionary power of this nature, the considerations which are relevant to its exercise are determined by reference to the subject matter, scope and purpose of the relevant statute, including the particular provision conferring the discretion: Sanctuary Lakes Pty Ltd v Commissioner of Taxation (2013) 212 FCR 483; [2013] FCAFC 50 at [227] per Griffiths J (Edmonds J agreeing); Giris Pty Ltd v Federal Commissioner of Taxation ([1969] HCA 5; 1969) 119 CLR 365 at 384 per Windeyer J. In Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19, the Appeal Panel observed at [60]-[61] that the market rate component is intended to compensate the Commissioner for not having the benefit of the tax payment from the time it was due, and so approximates the ordinary lending interest rates, whereas the premium rate is a form of penalty which operates as a disincentive to taxpayers to delay tax payments. The view that the premium component is penal in nature has been accepted in later decisions, see eg. Southern Cross Community Health Care Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1317 at [443] per Emmett AJA. In my view it is necessary to approach the remission question by recognising that the premium component is penal in nature and serves the purpose of both imposing a penalty and deterring taxpayers from delaying payment of duty in what is essentially a self-assessment regime. Consequently, the culpability of the taxpayer in failing to pay the duty liability by the due date is an important matter in the exercise of the discretion. ……… In Incise Technologies, the Appeal Panel identified (reflecting a submission made by the Commissioner in that case) four cumulative criteria which are relevant to the exercise of the discretion under s 25: (1) All principal tax that is owing and not in dispute has been fully paid; (2) There has been cooperation by the taxpayer in providing relevant information to the Commissioner so as to enable the Commissioner to issue assessments; (3) Such cooperation has occurred prior to any investigation being commenced by the Commissioner or, at the very least, within a reasonable time after the request for information had been made by the Commissioner; and (4) There has been no wilful default by the taxpayer in not paying tax on time". The Appeal Panel noted in Incise Technologies at [63] that the first of these criteria could be clarified to be "all principal tax that has been assessed and is not in dispute has been fully paid at the time of the request for remission of interest" and that while they were all relevant and appropriate matters for consideration, they were not exhaustive. That the four criteria are not exhaustive has been confirmed in subsequent cases, eg. Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107 at [179] and Chief Commissioner of State Revenue v E Group Security Pty Ltd (No 2) [2022] NSWCA 259 at [105]- [106]".
16. The Court in Golden Age affirms the approach to remission set out in the earlier cases and concludes that it was appropriate to remit the premium component in full, in circumstances where all four of the above criteria were satisfied. The taxpayer was found to have taken reasonable care. The taxpayer had sought advice from a firm of solicitors and acted upon that advice. Non-payment of tax had occurred as a result of an oversight by the advisor.
17. In the matter at hand, there was no evidence as to what advice was taken and whether or not that advice was followed. Documents that may have disclosed advice was the subject of a claim by the Applicant for legal professional privilege. Those documents were therefore not in evidence. There is no need to infer what the advice may have said or not said. What is relevant is that there was no evidence of the content of the advice before the Tribunal and whether it was followed or not.
18. There were also erroneous statements made to the Respondent that resulted in the surcharge duty payable not being assessed. The Applicant represented that he was an Australian citizen at the relevant time when he was not.
19. An obligation to lodge a purchaser/transferee declaration in the approved form is set out in s 16A of the Duties Act. The approved form in use at the time of execution of the contract required a declaration as to whether or not the purchaser was a "foreign person" within the meaning of the Duties Act. Whether or not surcharge purchaser duty applied depended on the answer to that question. The Applicant failed to lodge a purchaser/ transferee declaration. No plausible explanation was provided as to why the declaration was not lodged.
20. I am therefore unable to find that the Applicant has discharged the onus of proof to show that reasonable care was taken. I am able to distinguish the facts of Golden Age from those of the present case on the basis that in Golden Age, there is evidence of advice having been taken and acted on and no factually erroneous information being provided to the Respondent. The assessment of interest at the premium rate is therefore affirmed.

Penalty tax

1. The Respondent's power to assess penalty tax arises under s 26 of the Administration Act. It is imposed in addition to interest. The Administration Act expressly provides that the imposition or remission of interest is not relevant to the imposition or remission of penalty tax (s 33(2); see also s 25(4)).
2. The amount of penalty tax payable for a tax default is relevantly set at a default rate of 25% of the amount of tax unpaid (s 27). The Respondent has the power to make certain variations to the amount of penalty tax. He may increase the amount of penalty tax in certain circumstances based on the degree of culpability of the taxpayer that are not presently relevant. The Respondent in addition has the power to reduce the amount of penalty tax by 20% if, after the Respondent informs the taxpayer that an investigation relating to the taxpayer is to be carried out and before it is completed, the taxpayer discloses to the Respondent, in writing, sufficient information to enable the nature and extent of the tax default to be determined (s 29). This happened and the rate of penalty tax was reduced to 20%.
3. The Respondent's guidelines as set out in CPN 024 are as follows: "Penalty tax is generally imposed after all the facts and circumstances surrounding the tax default are considered. In certain circumstances the Chief Commissioner may increase the rate of penalty tax or determine that no penalty tax is payable. A liability to penalty tax arises when a tax default occurs. Penalty tax is in addition to interest. The amount of penalty tax is 25% of the amount of unpaid tax or 50% if the taxpayer is a significant global entity within the meaning of the Income Tax Assessment Act 1997 of the Commonwealth. The Chief Commissioner may increase the amount of penalty tax to 75% of the unpaid tax if the tax default was caused wholly or partly by the intentional disregard of the taxation law. Penalty tax may be reduced if a taxpayer makes or voluntary disclosure of a tax default before or during an investigation. ….. The Chief Commissioner also has a general discretion to remit penalty tax by any amount in such circumstances as the Chief Commissioner considers appropriate (s 33 of the TAA). Where there is evidence that the taxpayer (or their representative) took reasonable care to comply with the taxation law, or the tax default occurred solely because of circumstances beyond their control (excluding financial incapacity), the Chief Commissioner will usually determine that no penalty tax is payable".
4. The Respondent has a power to determine that no penalty tax is payable in respect of a tax default under s 27(3)(a). He may exercise that power if satisfied that the taxpayer or a person acting on behalf of the taxpayer, took "reasonable care" to comply with the taxation law. The Respondent did not use his power to remit penalty tax. In the absence of reasonable care having been taken by the Applicants (see [36]-[39] above), I do not think that s 27(3)(a) has application in the present circumstances.
5. Section 27(3)(b) of the Administration Act provides that the Respondent may determine that no penalty tax is payable if the tax default occurred solely because of circumstances beyond the control of the Applicants or a person acting on behalf of the Applicants. Section 27(3)(b) explicitly requires that the tax default be "solely" caused by circumstances beyond the control of the Applicants.
6. The evidence does not allow for a conclusion to be drawn that the Applicant's tax defaults were caused "solely" by circumstances beyond his control. I have found that the tax defaults in question arose for reasons other than matters outside the control of the Applicant (see [29] above). That the relevant power can only be exercised when the tax default was caused "solely" by circumstances beyond the control of the Applicants, clearly precludes its operation. I am therefore of the opinion that the power of remission allowed under s 27(3)(b) has no application in the present matter.
7. A separate power to remit penalty tax is allowed under s 33 of the Administration Act. The Court of Appeal in Downer EDI considered that the power of remission under s 33 was not limited either expressly or by necessary implication by the mandatory reductions required by ss 28 and 29 of the Administration Act. Bathurst CJ said: " …. it does not seem to me that the power in s 33 of the TAA to remit penalty tax "in such circumstances as the Chief Commissioner considers appropriate" is limited either expressly or by necessary implication by the mandatory reductions required by ss 28 and 29. These mandatory reductions are a relevant matter for the Commissioner to take into account in considering whether to exercise the power to remit in s 33 but they do not limit that power. As the Chief Commissioner pointed out, in Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue Ward CJ in Eq stated at [301] that except in special circumstances, the general discretion under s 33 should not be exercised beyond the limits in ss 27(3) and 29 when the circumstances giving rise to a remission under s 27(3) of the TAA had not been made out. However that was a matter of discretion not power".
8. The discretionary powers set out in s 33 remain broad and unfettered. In light of the broad and unfettered character of the discretion, no fixed rule can be brought to bear precluding an exercise of discretion in all circumstances where there has been an absence of reasonable care. Despite the broad and unfettered discretion allowed under s 33, limits on its exercise nevertheless can arise, in that that discretion cannot be exercised in a way that defeats the fundamental legislative objectives of the penalty scheme.
9. In the circumstances of the matter, I do not consider that a full or partial remission of penalty tax under s 33 ought to be made. The absence of reasonable care on the part of the Applicant's is not determinative but relevant and on the facts at hand, persuasive. I place considerable weight on the erroneous statements made to the Respondent, together with the other matters I have found going to the absence of reasonable care at [36] - [39] above.
10. The Respondent has assessed penalty tax at the default rate of 20%. He has not imposed penalty tax at higher rates applicable where the taxpayer's degree of fault goes beyond a lack of reasonable care. I consider that the Respondent was correct in doing so, on the basis of the evidence before the Tribunal.

Delays in investigation and issue of Assessment

1. The Assessment of transfer duty on the contract was made on 10 September 2020. Following investigation by the Respondent commencing in August 2023, the Assessment of surcharge purchaser duty, interest and penalty tax did not issue until December 2023. The period between the dates of the two assessments was more than three years.
2. The Applicant submitted that delays on the part of the Respondent in issuing the Assessment are grounds for remission. In Molyneux and Vermeesch v Chief Commissioner of State Revenue [2011] NSWADT 117, the premium component and penalty tax were remitted in full. The reasons for the remission included a long delay before the issue of an assessment.
3. The Respondent, on the facts of that matter, relied on an alleged non-disclosure of facts to justify his assessment. The dispute in that case was over matters of valuation. The position of the Respondent was that the provision by the taxpayer of a particular valuation that he questioned was a failure to fully disclose relevant "facts". The Administrative Decisions Tribunal found that what was in dispute were opinions as to value and not facts. There was therefore no situation of a non-disclosure of "facts".
4. The circumstances of Molyneaux can be distinguished from the facts of the present case. That was a case where a dispute over matters of opinion, namely valuation, had arisen. Remission was allowed in full where there had been no failure to disclose facts. In the present case, there has been an incorrect statement of facts as to the residency status of the Applicant. This was a matter of fundamental importance that determined whether or not surcharge purchaser duty was assessable. As a result, the assessment of interest at the premium rate and penalty tax is, in my view, correct, having regard in particular to the Applicant's failure to disclose relevant facts.
5. Interest assessed at the premium rate is levied at the rate of 8% annually. Because it runs annually, the amount of that interest will increase over time. Time taken on the part of the Respondent in an investigation and issuing an assessment could, as a result, increase the amount of interest assessed at the premium rate. This has occurred in the present case.
6. In Griglio v Chief Commissioner of State Revenue [2024] NSWCATAD 212, the Tribunal, considering the consequences of delays of this kind, said: "The Respondent is already compensated for the time value of money where the relevant surcharge purchaser duty was not paid on time, by assessment of interest at the market rate. If delay in assessing tax will result in increases in the interest calculated at the market rate, that increase merely has the effect of maintaining the time value of the underpaid tax. There appears to be no reason, however, why the Respondent should automatically be able to collect premium interest, to the extent that accrual of interest at the premium rate is the result of delay, where the Applicant is not at fault for the delay. I do not think Parliament intended that interest at the premium rate should necessarily run indefinitely as a result of the time taken by the Respondent to reach an assessment of tax, where the taxpayer neither has control over the time taken nor is at fault for delay. Having regard to the penal nature of interest assessed at the premium rate, I accept that there may be instances where premium interest could be assessed regardless of delay by the Respondent, if the degree of culpability of the taxpayer warrants such an outcome".
7. In Griglio, the taxpayer had failed to pay surcharge purchaser duty. The evidence established that the taxpayer had taken professional advice and acted on that advice. He had, acting on that advice, also made efforts to comply with s 16A of the Duties Act by lodging a purchaser/transferee declaration in the required form but failing to declare that he was a foreign person. The advisors in question also gave evidence as to what their advice was.
8. In the present case, there is no relevant evidence of the advice taken or whether it was followed and no evidence from the Applicant's advisors themselves as to the circumstances of the tax default that occurred. In other words, unlike in Griglio, there was no evidence before the Tribunal, to show that the Applicant took reasonable steps to ascertain and discharge his liability for tax, including importantly taking and relying on advice (or alternatively, engaging with the Respondent at the time of the contract to ascertain what his liability for tax was). These matters in my opinion are sufficient to distinguish the circumstances arising in Griglio. In the absence of evidence of advice being taken and followed and efforts to comply with obligations to lodge a purchaser/transferee declaration, I am of the opinion that interest assessed at the premium rate should not be remitted, whether in part or whole.
9. Both interest assessed at the premium rate and penalty tax are penal in nature. However, the amount of penalty, unlike interest at the premium rate, does not vary depending on the time taken to investigate the matter and reach an assessment. Delay therefore should not be a matter, on the facts of the case, that goes to impugning the Respondent's assessment of penalty. That assessment stands for the reasons set out at [48] above.
10. The Applicant raised questions as to the fairness of the Assessment, pointing in particular to the delay in making the Assessment. As regards questions of fairness of the outcomes under a taxation law, the High Court in Commissioner of Taxation v Ryan (2001) 201 CLR 109 said: "But the question for decision is what are the circumstances in which an amended assessment may lawfully be issued? That question is not answered by asserting the existence of any "policy" or "general intention" unless that policy or intention is to be found reflected in the provisions of the Act. Appeals to general notions of "fairness" or "justice" do no more than attempt to mask the absence of any foundation in the legislation for the conclusion which is asserted."
11. The Tribunal has applied this principle in numerous cases, confirming that there is no discretion to relieve a taxpayer of a tax liability on grounds of unfairness (Findlay v Chief Commissioner of State Revenue [2023] NSWCATAD 80, at [31] and the cases referred to there).

Conclusions

1. For the reasons set out above, the Assessment of the Respondent is confirmed.

Orders 1. The assessment of the Respondent under review is confirmed.

            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 02 September 2024