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Christopher CK Soo Pty Ltd t/a C Soo Superannuation Fund & J Yap t/a Surgery Superannuation Fund v Chief Commissioner of State Revenue [2017] NSWCATAD 281

Date of judgement 15 September 2017 Proceeding No. 2017/040125
Judge(s) RL Hamilton SC, Senior Member
Court or Tribunal New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division
Legislation cited Parking Space Levy Tax Act 2009

Parking Space Levy Regulation 2009

Taxation Administration Act 1996
Catchwords Taxes and Duties - Parking Space Levy - exemption
Cases cited Sterling House 88 Pty Ltd v CCSR [2017] NSWCATAD 279

Background

The taxpayers are owners of premises at Church Street, Parramatta  described as a two storey commercial building. On 8 December 2014, an OSR (now Revenue NSW) Officer carried out a random site inspection of the premises and observed two car spaces at the rear of the premises (known as “Space 1” and “Space 2”). Space 1 is beneath a car port, and both spaces had “private parking” signs attached to the wall in front of the space.  Both had cars parked within the space: [4]. Aerial photographs obtained by the OSR Officer show a car parked in Space 2 in 2012, 2013 and 2014. They also indicate that the vehicles parked in the spaces and the carport above Space 1 extend behind the boundaries of the subject premises: [5].

Annual returns of the taxpayers show that they were only registered for one parking space at the premises and no exemption was claimed. Based on the inspections by the OSR, Notices of Assessments for the financial years 2011 to 2015 were issued to the taxpayers calculated based on two leviable (and non-exempt) car spaces on the premises: [5].

The taxpayers submitted into evidence a photograph dated 22 December 2014 showing Space 2 empty and blocked by two wheelie bins: [6]. They also tendered a survey of the subject premises which shows the parking area at the rear of the premises to be 6.73 metres wide (including a right of way), and approximately 4 metres deep. The survey also indicates that the carport encroaches from 1.14 metres to 2.23 metres on the adjoining land: [7].

Taxpayers’ objections

The taxpayers objected to the assessments for the following reasons:

  1. within the premises’ boundary, there is only space for one car parking space (pursuant to r. 6(2) of the : [18];

  2. one space is exempt as it is used for disabled parking, for bikes and motorcycles, for loading passengers and goods, or for parking by persons providing services on a casual basis: [8];

  3. cars parked illegally in the area: [8]; and

  4. beside Space 2 is a right of way and persons parking in Space 2 could not block this: [8].

The Statutory Framework

How many car spaces were on the premises?

Senior Member Hamilton considered ss. 7, 8 and 9 of the Act. Section 7 defines a leviable premises, and s. 8 allows for the imposition of a levy calculated in accordance with the Regulations: [10]-[11]. Regulations 6 and 9 of the Regulations detail the calculation of the levy. Regulation 9 provides that the amount of the levy is to be determined in accordance with a formula in relation to each parking space on the premises. Regulation 6 provides for the calculation of the number of parking spaces on the premises as follows:

  1. if any portion of the parking area has parking spaces designated in any way then it is the number of parking spaces so designated in that portion; or

  2. the total area in square metres of that portion divided by 18 (and disregarding any remainder),

whichever is greater: [12]-[16].

According to photographic evidence and the survey of the premises, an area of 26.92 square metres behind the building on the premises was used and set aside for the parking of motor vehicles. Parking for one vehicle was designated by the carport for Space 1 and the remainder of the area (Space 2) was available for parking (that is, it was not permanently blocked off by bollard) and both spaces had a “private parking” sign attached to the building: [17].

Even though the total parking space was less than 36 square metres in area, the greater number of parking spaces is two under the designated method in r. 6(2). This is regardless of the fact that the cars were only partly parked within the designated parking spaces: [18]. The taxpayers also appear to have conceded that there were two spaces by later claiming Space 2 was exempt: [18].

Is Space 1 and/or Space 2 exempt?

Senior Member Hamilton considered s. 14 of the Act and r. 7 of the Regulation, which provide for parking spaces to be exempt from the calculation of the levy where that space is used for any of the prescribed purposes: [20]-[21].

Noting that the taxpayers bear the onus of proving its case by evidence on the balance of probabilities (s. 100(3) of the Taxation Administration Act 1996), their onus is to establish by evidence that the parking spaces fall within the words of the exemptions in r. 7: [23].

The authority of Sterling House 88 v CCSR [2017] NSWCATAD 279 requires that to discharge this onus, the taxpayers need to establish on the balance of probabilities that at all times over the five levy years, the space has been set aside exclusively for one or more of the exempt purposes. This requirement of setting aside the space “exclusively” for the exempt purpose indicates that no other purpose (except another exempt purpose/s or an incidental purpose) is allowed. This could be achieved by the posting of appropriate notices which are in place and visible at all relevant times. However, “private parking” signs would not suffice: [24].

Regulation 7(1)(d) allows an exemption for the parking of motor vehicles for the purpose of loading or unloading goods or passengers but not if vehicles are permitted to park in the space otherwise than while goods or passengers are being unloaded. Permitted is not defined in the Regulation. A consideration of the definition of “permitted” by the Macquarie Dictionary (“to allow … to do something” and other similar definitions) means what is required is diligent supervision by the taxpayers to ensure that vehicles are at no time allowed or tolerated to park in the space set aside other than exclusively for the exemption purpose: [25].

The taxpayers offered no evidence that either of the two parking spaces are exempt and therefore they have not discharged their onus of proof: [26].

Retrospective notices

As discussed in Sterling House 88 v CCSR, s. 9 of the Act requires all owners of leviable premises to lodge annual returns. Section 8 of the Act imposes the levy itself without the necessity of a process of assessment by the Chief Commissioner. As such, the Chief Commissioner can, having turned his mind to the matter, and having bona fide formed a view that the premises were in a leviable district and had parking spaces on them for the relevant years, issue “retrospective” notices. The taxpayers failed to establish that they are not liable in those years by reason of an exemption or some other reason. All parking spaces on leviable premises are subject to the levy unless the taxpayer can establish that an exemption applies: [27].

Other matters

In relation to the taxpayers’ objection ground no. 3 (illegally parked cars), there was no evidence provided at the hearing to support this claim and therefore it had no bearing on the judgment: [8]. In relation to the taxpayers’ objection ground no. 4 (right of way could not be blocked), there was no evidence of vehicles encroaching on the right of way and in any event, it was not a relevant consideration: [9].

Decision

The assessments are affirmed.

Link to decision

Christopher CK Soo Pty Ltd t/a C Soo Superannuation Fund & J Yap t/a Surgery Superannuation Fund v Chief Commissioner of State Revenue [2017] NSWCATAD 281

Last updated: 6 March 2018