Three taxpayers (car dealership companies) have been unsuccessful before the Appeal Panel of the NSW Administrative Decisions Tribunal in their appeal against an earlier decision which had affirmed the Commissioner’s decision to group the taxpayers for the relevant years for payroll tax purposes.
In August 2009, the Commissioner issued assessments grouping I Co and B Co for the period 1 July 2004 to 30 June 2008, and I Co, B Co and H Co for the period 22 August 2005 to 30 June 2008, on the basis there was a common controlling interest of directors in the companies – namely, Mr and Mrs S. The taxpayers did not accept the grouping arguing broadly that Mr and Mrs S did not exercise the controlling interest in the relevant companies as Mr F had been a director (or de facto director) of B Co since 1994 and that his wife, Mrs F, had also been a director (or de facto director) of B Co since July 2000 and of H Co since October 2005. The Tribunal heard Mr F acted as the accountant for Mr and Mrs S.
In the earlier decision, the NSW Administrative Decisions Tribunal did not accept that ASIC certificates showed that Mr and Mrs F were directors as claimed at the relevant time. It was also not satisfied that Mr and Mrs F had acted as de facto directors of the relevant companies during the years in question. It then later made final orders affirming the assessments with some adjustments.
Before the Court of Appeal, the taxpayers argued the Tribunal had erred in law in holding that for the purposes of s 1274C of the Corporations Act 2001 there was evidence to the contrary of the matters contained in the ASIC certificates. The certificates referred to the status of Mr and Mrs F as directors throughout the relevant period. However, the Tribunal held that the evidence that contradicted the certificates was that during the relevant grouping periods, the ASIC records did not include Mr and Mrs F as directors of B Co and Mrs F as a director of H Co. The Appeal Panel concluded the evidence pointed to by the Tribunal was capable of constituting evidence to the contrary of the matters stated in the ASIC certificates. Accordingly, it held the Tribunal had not erred in law.
The taxpayers also sought leave to extend the appeal to the merits. Among other things, the taxpayers argued the Tribunal had lacked reference to certain evidence corroborative of its case. Although indicating the case was “very close” in considering whether leave to extend the appeal to the merits should be considered, the Appeal Panel was not satisfied that the evidence in light of the grounds would have lead it to interfere with the Tribunal’s decisions. In conclusion, it held the grounds raised did not warrant leave to be granted.
(Bilquip Pty Ltd & Ors v Chief Comr of State Revenue (NSW) (RD) [2013] NSWADTAP 36, NSW Administrative Decisions Tribunal, Appeal Panel, Seiden DP, Walker JM, Bennett NJM, 30 July 2013.)
[LTN 146, 31/7/13]