Australia, Sept. 3 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 4:

1. The Applicant, Ms Phan, purchased an apartment in Sydney in 2022. She was a 'foreign person' for the purposes of the Duties Act 1997 (NSW) and was liable to surcharge purchaser duty (SPD) on the transaction.

2. When processing the dutiable transaction under the Electronic Duties Return (EDR) system, the stamping agent engaged by Ms Phan's solicitors failed to include the SPD in its calculation of the amount payable on the transaction. As a result, Ms Phan failed to pay the SPD of $104,000.

3. When the Respondent Commissioner became aware of the underpayment he issued to Ms Phan a Duties Notice of Assessment, which included not only the SPD amount but also amounts of interest and penalty tax totalling about $40,000. Ms Phan does not dispute her liability to the SPD but she has asked the Tribunal to review the assessment as it relates to interest and penalty tax, and to exercise its discretion to remit those amounts, either in whole or in part.

4. I have decided not to remit the interest or penalty tax. My reasons follow.

Jurisdiction

5. This is an application under s 96 of the Taxation Administration Act 1996 (NSW) (TA Act) for an administrative review of the assessment of interest and penalty tax as specified in a Duties Notice of Assessment. The administrative review is conducted under the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

6. The Tribunal's task is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Applicant, Ms Phan, has the onus of proving her case: TA Act, s 100(3). That means she must establish that she was not liable to the interest and/or penalty tax in the first place, or that either or both of them should be remitted. She must prove all matters necessary for the Tribunal to answer the statutory questions in her favour: Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [36]. The standard of proof is the balance of probabilities.

7. Ms Phan's application to the Tribunal was lodged on 7 March 2025, 77 days after the date of issue of the notice of the Commissioner's determination of Ms Phan's objection to the assessment. Although it was lodged after the expiry of the standard 60-day time limit, I granted an extension of time under s 99(1) of the TA Act, a course not opposed by the Commissioner.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19862a0176f7b87bcd694652)

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