On Fri 9.9.2016, the Victorian Supreme Court held there was no jurisdictional error by the Commissioner in issuing land tax reassessments for the 2009 to 2011 assessments years.
- The taxpayer sought judicial review of assessments made by the Commissioner for land tax payable by her in respect of a property for the 2009, 2010 and 2011 assessment years. The taxpayer contended that the assessments were invalid and their making involved jurisdictional error.
- The key issue was whether the PPR exemption under the Land Tax Act 2005 (Vic) applied.
- In about 2002, the taxpayer acquired the land as registered proprietor and lived in it with her husband and children.
- In 2008 or 2009, they moved to Europe and lived there.
- She sold the property in 2014.
- The land tax reassessed in 2015 was $119,475 for both the 2009 and 2010 years and was $130,050 for the 2011 year.
- The taxpayer contended the Commissioner did not have power to issue those assessments as he had previously issued assessments of land tax to her in respect of the property in the same amounts for the same years, but had then withdrawn them, under an agreement made with her.
The Supreme Court said the Commissioner’s agreement to withdraw the original assessments was made under s 8 of the Taxation Administration Act 1997 (Vic), but that Commissioner’s power to issue reassessments remained under s9 of the Taxation Administration Act. It added that there was no agreement about the exercise of power to reassess.
The Court said it did not consider that the Commissioner’s power to issue the reassessment was spent.
Accordingly, the Court was of the view the taxpayer had not established any jurisdictional error by the Commissioner in issuing in 2015 the land tax reassessments for the 2009, 2010 and 2011 years.
(Vasiliades v Comr of State Revenue [2016] VSC 544, Supreme Court of Victoria, Ginnane J, 9 September 2016.)
[LTN 175, 9/9/16]
TAXATION ADMINISTRATION ACT 1997 – SECT 9
Reassessment
(1) The Commissioner may make one or more reassessments of a tax liability of a taxpayer.
(2) Nothing prevents the Commissioner—
(a) from making a reassessment of a tax liability of a taxpayer after an amount previously assessed as being payable by the taxpayer has been paid; or
(b) from making a reassessment of a tax liability under which the taxpayer is assessed as having liabilities that are additional to or greater than those under the previous assessment.
(3) The Commissioner cannot make a reassessment of a tax liability more than 5 years after the initial assessment of the liability, unless—
(a) the reassessment is to adjust tax to give effect to a decision on an objection, review or appeal as to the initial assessment; or
(b) at the time the initial assessment or a reassessment was made, all the facts and circumstances affecting the tax liability under the relevant taxation law of the person in respect of whom the assessment or reassessment was made were not fully and truly disclosed to the Commissioner; or
(c) the reassessment is authorised to be made more than 5 years after the initial assessment by another taxation law.
(4) The time limited by subsection (3) applies even if the initial assessment is withdrawn.