Taxation Administration Act 1997 (referral)
Any taxpayer who is dissatisfied with the Commissioner of State Revenue’s determination of their objection may request the Commissioner to refer the matter to VCAT.
Referrals for review may relate to:
- Congestion Levy Act 2005
- Duties Act 2000
- Land Tax Act 2005
- Part 9B Planning and Environment Act 1987
- Payroll Tax Act 2007
Cases we can hear
Only the Commissioner can refer a matter to VCAT under the Act, but you may request the Commissioner in writing to do so.
The Commissioner may first require you to give further and better particulars of your objection – see section 107 of the Act.
Legislation that gives VCAT the power to hear these applications
Taxation Administration Act 1997 - section 106.
Your request to the Commissioner to refer the matter to VCAT must be made within 60 days after service on you of the Commissioner’s determination.
You may also request the Commissioner to refer the matter to VCAT if the Commissioner has not determined your objection within 90 days of receiving your objection.
If the Commissioner does not require you to give further particulars, and provided you have made your request within time, the Commissioner must refer the matter to VCAT within 60 days of receiving your request.
If the Commissioner requires you to give further and better particulars of your objection under section 107 of the Act and you do not give them within 30 days, the Commissioner must not refer the matter.
What can VCAT order?
On referral VCAT may confirm, reduce, increase or vary the assessment or decision. If the taxpayer does not appear before the Tribunal, the Tribunal is bound to confirm the assessment. If good cause is shown for not appearing and application is made within the prescribed time, the Tribunal may reopen and review the matter.
Can costs be awarded against me?
No, in taxation matters, no costs can be awarded in the proceeding. However, as a result of amendments made to the Victorian Civil and Administrative Tribunal Act 1998, VCAT has discretion to order a party to reimburse the application fee paid by the other party.
Is tax payable pending review?
Yes, but a request may be made by the taxpayer for the matter to be referred under section 106(1) of the Taxation Administration Act 1997 even if the tax has not been paid.
Am I bound by the grounds of objection?
Subject to an order of the Tribunal, the taxpayer’s case is limited to the grounds of the objection and the Commissioner’s case is limited to the grounds on which the objection was disallowed. See section 109 of the Taxation Administration Act 1997
Who has the onus of proof on review?
On review, the taxpayer has the onus of proving the case. See section 110 of the Taxation Administration Act 1997
About State Taxation Acts
The following gives some background information to the issues that often arise in these referrals. Be aware that the law can change and seek legal advice if you are unsure of your legal rights.
Congestion Levy Act 2005
The Congestion Levy Act 2005 imposes a levy on long stay car parking spaces in the central business district and inner Melbourne. The owner of the premises in which car parking spaces are contained or, in the case of a public car park, the operator of the car park is jointly and severally liable with the owner to pay the levy imposed on the parking spaces.
There are a number of exemptions contained in Part 4 of the Congestion Levy Act 2005 to the obligation to pay the levy. These exemptions include people using the car park space for residential purposes, loading bays, spaces owned by councils and charities, spaces used by consulate officers, parking for emergency vehicles, people attending special events, disabled parking, shift workers, garaging of fleet vehicles and bus layovers, car sales display and car services. There are also concessions for private car park spaces.
Duties Act 2000
The Duties Act 2000 requires the payment of duty in relation to a number of transactions. It replaced the Stamps Act. Those transactions can be of a number of kinds, including duty on documents and electronic transactions and the sale of a number of goods, and on transfers of real estate. The most common transactions, which require payment of duty, are the sale of real estate, motor vehicles and stock in trade, above a certain figure.
The Duties Act 2000 also makes provision for payment of duty in respect of a transfer of an entity that has a holding in land, when the whole entity is transferred to another party. This transaction is known as a transfer of “land rich holdings”. See section 78 and 79 of the Duties Act 2000.
There are also a number of exemptions in relation to land rich holdings, these exemptions include company consolidations.
Sometimes, in relation to dutiable transactions, disputes can arise as to the value of the goods or land in question. Those disputes are determined in accordance with the principles in the Valuation of Land Act 1960.
There is also a concession given to duty paid on premises acquired by a person as their principal place of residence. See section 57I - Duties Act 2000.
Land Tax Act 2005
The Land Tax Act 2005 imposes land tax in respect of each year on all taxable land in Victoria. The owner of the taxable land is liable to pay the land tax. The taxpayer is assessed on land as at midnight on 31 December of the preceding year under section 36(1) of the Act.
There are a number of exemptions in the Land Tax Act 2005. The one that tends to be most common before the Tribunal is that provision contained in section 54 relating to a principal place of residence. A principal place of residence is exempt from land tax.
Frequently there are disputes as to the amount of land tax, because the assessment for land tax is based on the valuation of the relevant land or an aggregation of land owned by the taxpayer as at midnight on 31 December of the previous year. Those valuation disputes are dealt with pursuant to the Valuation of Land Act 1960.
It is noted that section 9 of the Taxation Administration Act 1953, imposes a time limit on the Commissioner for making a reassessment in relation to tax. However, that time limit does not apply to a reassessment made in relation to the Land Tax Act 2005.
See section 51 of the Land Tax Act 2005
There are also partial exemptions if land is used for business activities, primary production or rooming house accommodation, which includes retirement villages and caravan parks.
Planning and Environment Act 1987
Part 9B of Planning and Environment Act 1987 requires that a purchaser pay a growth areas infrastructure contribution (GAIC) where land is bought within a growth area, urban growth boundary or urban growth zone.
See section 201SD of the Planning and Environment Act 1987
This tax applies to contracts entered into for the transfer of the relevant land entered into on or after 2 December 2008.
Payroll Tax Act 2007
The Payroll Tax Act 2007 imposes payroll tax on all taxable wages. The employer by whom taxable wages are paid or payable is liable to pay payroll tax on the wages. Payroll tax is only payable over a certain threshold which is referred to and calculated in Schedule 1 of the Payroll Tax Act 2007. Wages are given a wide definition in the Act and include remuneration, salary, commission, bonuses or allowances paid to an employee.
See section 13 of the Payroll Tax Act 2007
There are a number of exemptions in the payroll tax, whereby employers are not required to pay such tax. These exemptions include non-profit organisations such as religious organisations and charities. The exemptions also include education and training organisations, health care providers, wages paid for persons on maternity or adoption leave, volunteer fire fighters and emergency service volunteers, local government workers, defence personnel, foreign government representatives and international agencies and services outside Australia.
In relation to all the above matters, the Commissioner has power to impose a penalty and charge interest in respect of default pursuant to the Act. This power is in Part 5 Division 1 of the Taxation Administration Act 2007. The imposition of a penalty and/or interest can be reviewed by VCAT.
What can VCAT order?
On referral, VCAT may confirm, reduce, increase or vary the assessment or decision. If the taxpayer does not appear before VCAT we are bound to confirm the assessment. If good cause is shown for not appearing, we may, within the prescribed time, reopen and review the matter. See section 111 of the Taxation Administration Act 1997.