The Qld Court of Appeal has held that a taxpayer was not entitled to recover a mistaken payment of import duty and GST from the Collector of Customs on the importation of a yacht.
The taxpayer imported a yacht in 2004 for “home consumption” within the meaning of the Customs Act 1901. Upon importation, his customs broker mistakenly entered the “gross construction tons” of the yacht as 108 rather than 160. This meant the taxpayer was liable to pay a total amount of $543,918.91 (consisting of $494,471.74 of import duty and $49,447.17 of GST) instead of a nil amount. The taxpayer paid the amount and was not advised of the mistake until 2006, at which time he sought a refund of the amount from Customs. The Collector of Customs broadly argued that s 167(4) of the Customs Act prevented the taxpayer from recovering the amount of customs duty and that the taxpayer was not entitled to a refund of the GST amount pursuant to s 36 of the TAA.
The Court agreed with the Collector of Customs and held that s 167(4) prevented the taxpayer from recovering the amount of customs duty as the taxpayer did not pay under protest and did not commence his action within 6 months of payment.
It also agreed with the Collector of Customs that s 36 excluded any common law action to recover an overpayment of indirect tax as the taxpayer did not give the Commissioner of Taxation notice within 4 years from the importation of the yacht.
In conclusion, the Court held the payment of import duty and GST could not be recovered.
(Thiess v Collector of Customs & Ors [2013] QCA 54, Court of Appeal of Supreme Court of Queensland, McMurdo, Muir and Fraser JJA, 11 February 2013.)
[LTN 62, 3/4/13]