Blomkamp v Commissioner of State Revenue

CITATION:

Blomkamp v Commissioner of State Revenue [2014] QCAT 107

PARTIES:	Mark John Blomkamp and Catherine Grace Blomkamp (Applicants)
v
Commissioner of State Revenue (Respondent)

APPLICATION NUMBER:

GAR363-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

20 March 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Application to review reassessment of Transfer Duty – Non-payment of reassessed duty and penalty – jurisdiction of Tribunal

Taxation Administration Act 2001 s 69 Queensland Civil and Administrative Tribunal Act 2009 ss 22 and 47

Fleri v Commissioner of State Revenue [2012] 135
Cowie v Commissioner of State Revenue [2012] QCAT 612
Naswari v Commissioner of State Revenue [2013] QCAT 66

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Mr and Mrs Blomkamp purchased a property at 20 Torrens Street, Wakerley in 2009. A transfer duty concession was claimed by them on the basis that they would reside in the property as their principal place of residence. Following an investigation by the Commissioner it became evident that the property had been leased to tenants by Mr and Mrs Blomkamp prior to them occupying the property. The Commissioner made a reassessment of duty with penalty and interest to which Mr and Mrs Blomkamp objected. The Commissioner disallowed the objection by letter on 27 August 2012. At that time an amount of $11,052.57 was due to the Commissioner in respect of duty, penalty tax and unpaid tax interest.
Mr and Mrs Blomkamp made an application to the Tribunal to review the decision on 21 October 2013. At the same time an application was made to stay the decision in which they stated that ‘there is valid reason for not paying the alleged liability’.
The Commissioner has made an application to strike-out/dismiss the application on the basis that Mr and Mrs Blomkamp have not complied with the requirements of the Taxation Administration Act 2001 (TA Act) in regard to payment of the disputed amount prior to applying to the Tribunal for review of the decision. This is on the basis that the Tribunal’s jurisdiction is only enlivened where such payment is made prior to the filing of the application.
Mr and Mrs Blomkamp had a right to lodge an application to review of the decision to disallow the objection within 60 days of notice of the decision being given to them. This is contained in s 69 (2) of the TA Act. The TA Act in s 69 (1) clearly states this section applies if the taxpayer is dissatisfied with the Commissioner’s decision on objection and the taxpayer has paid the whole amount of the tax and late payment interest payable under the assessment. That section prevails over the provisions of the Queensland and Administrative Tribunal Act 2009 in regard to the requirements for filing an application to review. The Tribunal has previously held that unless payment is made prior to the filing of the review application there is no jurisdiction to hear the review application and the application is liable to be dismissed or struck out, under s 47 of the QCAT Act[1].
[1]Fleri v Commissioner of State Revenue [2012] 135, Cowie v Commissioner of State Revenue [2012] QCAT 612, Naswari v Commissioner of State Revenue [2013] QCAT 66.
The Commissioner provided a certificate to the Tribunal declaring that as at 28 November 2013 the sum of $11,293.72 is due and payable to the Commissioner by Mr and Mrs Blomkamp. Mr and Mrs Blomkamp in their submissions dated 12 December 2013 in reply to the Commissioner’s application to strike-out/dismiss confirmed that they had paid the disputed amount. That payment was clearly not made prior to the filing of the application to review. This is not a matter where the Tribunal can exercise a discretion the requirements of the TA Act have not been met and the Tribunal has no jurisdiction to hear the application.
Mr and Mrs Blomkamp have made an application to the Tribunal to stay the application of the Commissioner’s decision. If the Tribunal had jurisdiction to hear the application it would be able to consider the exercise of its discretion to determine if a stay should be granted under s 22 of the QCAT Act. The Tribunal accepts the submission of the Commissioner that where the Tribunal does not have jurisdiction to hear the application it cannot exercise its discretion to stay the decision under review. A stay of the decision cannot be used to enable Mr and Mrs Blomkamp to continue their application where they have not complied with the requirements of s 69 (1) of the TA Act.
Due to Mr and Mrs Blomkamp’s not having complied with the requirements of s 69 (1) of the TA Act in regard to payment of the disputed amount the Tribunal orders that the application is dismissed.

Blomkamp v Commissioner of State Revenue involved the applicant seeking a review of the reassessment of transfer duty. The reassessment was made by the Commissioner of State Revenue, and the applicant had not paid the reassessed duty or the penalty imposed. The matter was brought before the court to determine the jurisdiction of the Tribunal to review the reassessment. The primary issue before the court was whether the Tribunal had the authority to review the reassessment of transfer duty and the imposition of penalties. The court was required to consider the statutory framework governing the Tribunal's jurisdiction and whether it extended to the reassessment of transfer duty.

The court examined the relevant legislation and found that the Tribunal's jurisdiction was limited to certain types of assessments and did not extend to the reassessment of transfer duty. The court noted that the Tribunal's jurisdiction was strictly defined by statute and that the reassessment of transfer duty was not within its purview. The court held that the Tribunal did not have the jurisdiction to review the reassessment of transfer duty and the associated penalty. Consequently, the court dismissed the application.

The court's reasoning was based on a strict interpretation of the statutory provisions that defined the Tribunal's jurisdiction. It held that the Tribunal's powers were limited to specific types of assessments and did not encompass the reassessment of transfer duty. The court found that the legislation did not confer upon the Tribunal the authority to review the reassessment in question. As a result, the application was dismissed, and the reassessment stood as made by the Commissioner.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established