The Commissioner of State Revenue (Vic) has applied for special leave to appeal to the High Court against the decision in ACN 005 057 349 Pty Ltd v Comr of State Revenue  VSCA 332. The Victorian Court of Appeal had held that overpaid land tax could be recovered by the taxpayer by a proceeding for mandamus.
[LTN 94, 18/5/16]
Catchwords from the Court of Appeal decision
TAXATION – Land tax – Commissioner of State Revenue raised a land tax liability under the Land Tax Act 1958 twice with respect to the same landholding – Duplication error – Admission of duplication error for 2008-2011 land tax years – Refusal by the Commissioner to refund excess payments for 1990-2002 land tax years – Duplication error occurred throughout, relevantly, 1990-2002 land tax years – Discretionary power of the Commissioner to amend assessments to ensure completeness and accuracy – Refusal to exercise power to amend – Conscious maladministration – Mandamus to compel amendments – Query whether requirement for claim for restitution necessary to establish liability – Payments made in the mistaken belief that the assessments accurately identified taxpayer’s landholdings, which they did not – Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd  HCA 61; (1994) 182 CLR 51 discussed – Finance Facilities Pty Ltd v Federal Commissioner of Taxation  HCA 12; (1971) 127 CLR 106 and Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 applied – Land Tax Act 1958 s 19.
LIMITATION OF ACTIONS – Whether recovery of overpayments precluded by limitation periods – Postponement of limitation period – Whether mistake established – Whether mistake could have been discovered with reasonable diligence – Land Tax Act 1958 s 90AA – Limitation of Actions Act 1958 ss 5(1)(d) 20A and 27.