Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. The decision to confirm the Assessment of the respondent, the Commissioner of State Revenue, that the applicant, Eng Huat Sar, was liable for surcharge purchaser duty under Part 1 of Chapter 2A of the Duties Act 1996 (NSW) was published on 22 August 2024: see Sar v Chief Commissioner of State Revenue [2024] NSWCATAD 246 (the principal decision).

2. In that decision orders were made in respect of whether the interest, as assessed by the respondent in the Assessment, should be remitted:

(2) Subject to any agreement reached by the parties regarding remittal of interest, the following orders are made:

(a) on or before 6 September 2024, the applicant to provide written submissions as to why interest should be remitted. In his submissions the applicant is to indicate, whether in his opinion the issue of remittal of interest is suitable for determination on the papers; and

(b) on or before 20 September 2024, the respondent to file and serve any written submissions in reply. In his submissions the respondent is to indicate, whether in his opinion the issue of remittal of interest is suitable for determination on the papers.

3. The applicant did not provide any further written submissions concerning the remittal of interest. However, written submissions were provided by the respondent on 20 September 2024.

4. Pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), I am satisfied that the issues for determination regarding interest can be adequately determined in the absence of the parties by considering the material provided in this application by the parties in the applicant's substantive application, evidence given at the hearing of the substantive application and the 20 September 2024 written submissions of the respondent and I make an order accordingly.

5. For the reasons that follow, I confirm the imposition of the interest and the amount thereof as set out in the Assessment.

Jurisdiction and role of the Tribunal

6. As noted in the principal decisions at [10]-[14], the Tribunal's jurisdiction to hear and determine this matter arises under section 96 of the Taxation Administration Act 1996 (NSW) (TA Act), section 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and section 30 of the NCAT Act.

7. The Tribunal's task is to decide the correct and preferable decision having regard to the material before it and the applicable law: ADR Act section 63(1). And the applicant bears the onus of proof: TA Act section 100(3).

Relevant legislation - TA Act

8. Section 44 of the TA Act provides that tax unpaid as required under a notice of assessment is a debt payable to the respondent. That section provides:

44 Unpaid tax is debt payable to Chief Commissioner

(1) If the whole or part of tax payable by a taxpayer is not paid to the Chief Commissioner as required by a notice of assessment, the amount unpaid is a debt payable to the Chief Commissioner by the taxpayer.

(2) A debt payable by a taxpayer to the Chief Commissioner under this Act is a tax debt under this Act.

9. The word 'tax' is defined in section 3(1) of the TA Act to include a duty and interest.

10. Section 21(1) of the TA Act provides for the payment of interest in respect of a tax default as follows:

21 Interest in respect of tax defaults

(1) If a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate from time to time applying under this Division.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19688feef4582db7b0811eaa)

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