NCAT Rewriting Federal Tax Law.

This Tribunal has demonstrated that it regards the obligation of a tenant to pay rent as a principal obligation to be addressed and dealt with as a matter of course. Generally, this proposition is not capable of challenge. But that is not the only relevant consideration. Equally, the application of taxation law in Australia is a foundation concept in our economy. NCAT is not a tax free zone. Taxation law must be obeyed in commerce throughout this country and this includes, in NCAT as most of the rent payment in retail lease environment attracts GST hence TR2002/9 and GSTR 2013/1 applies to those transactions.

Tribunals Blind eye towards the Tax Compliance in retail lease trials

From Jan 2007 till Feb 2017 landlord refused to provide any invoice for money he received over 1 million in cash.  In March, the respondents provided tax invoices for November, December, 2017 and January and February 2018. Those tax invoices made no reference to a trust. Regarding March 2018, there is no invoice because Senior Member Simon threatened the applicant with eviction for non payment, in spite of the applicant contending he needed a tax invoice before payment. The applicant paid March rent because of the threat. No invoice has ever been provided for March 2018. In September 2018, invoices were provided from April to August on behalf of a trust, the trust being raised in invoices for the first time. The failure to show that this trust is the supplier in accordance with paragraph 19 of TR2002/9 continues in spite of 14 separate pressed requests for the evidence over 9 months.In the absence of that evidence, the issue remains as to whether the trust is the supplier pursuant to paragraph 19 of TR2002/9. That question qualifies the validity of the tax invoices provided.Given the ease of providing the proof and given the rejection of the 14 approaches and the steely determination of Landord not to put this evidence before the Tribunal, the applicant, inevitably, believes, something is wrong here.

NCAT rewriting Australian federal tax law:

The statutory provisions in tax structure are Tax Rulings such as TR2002/9 Paragh 19 which says :

“The entity receiving the payment must be the entity that made the supply and the entity that makes the payment must be the entity that received the supply”.

However this federal tax ruling was rewritten as follows:

The conditions of the Stay Order required that the payment of rent was to be made by the appellant on the dates as specified to the trust account of the solicitor for the respondent “on receipt of a rent invoice from Fobupu No 2 as the trustee for the Khan Family Trust No 2 ABN 702 604 095 93”.

There is still no evidence in front of tribunal that Fobupu Pty Ltd is the trustee of Khan Family Trust No 2 ABN 702 604 095 93. The tax law is rewritten to the effect that there is no requirement that entity receiving the payment must be the entity made the supply to be verified by any objective evidence.

In the absence of a copy of the trust deed in evidence,  No order can be made requiring payment to the trustee company without the deed, as, without the trust deed, that is a payment to the trustee company in its own right and not as trustee. The trustee company, Fobupu  Pty LTD does not have an ABN.

Conveyancing Act 1919 No 6 Section 
23C   Instruments required to be in writing

If it is intended to rely upon the existence of a trust for the purposes of invoicing by the trust, section 23C, (1) (b) provides for an obligation on the respondent which generates an entitlement of the applicant to be satisfied for tax compliance purposes, that the trust is properly the invoicor. For that to occur, the trust must exist and be “manifested and proven by some writing” and the applicant needs to see and have a copy of the trust deed. This Appeal Panel needs to have that trust deed in evidence for this purpose before making any order but yet again ignored this requirement.

When Tribunal Member becomes the prosecutor:

Bona fide set off, a contention neither landlord nor his Barrister choose to address. It must be expensive to hire a barrister who wins without making any argument in writing and orally. But Principal Member Harrowell prosecuted the issue of set-off for barrister of landlord . Its impossible to win when judge becomes the prosecutor. I dont know if this level of ignorance is a sign of  corruption involved but certainly decision is not made in NCAT based on evidence and as per law.

So you are left to ponder this zillion-dollar question: Why do NCAT choose to operate in this grotesque way, having one party prepare, at great expense, their argument, in a natural expectation that that’s what the tribunal member will base his decision on – and the tribunal member than simply discards this argument, substituting it with his own fantasies? Constitution spells equality; but the powers-that-be follow Alexander Hamilton’s dictum, derived from the notion that “masses are asses” – that for the “public good” the country is ought to be controlled by “the rich and the well-born.” That seems to be the mantra of NCAT. And no one – that is, no one who matters – will notice! Parties’ actual argument is just another tree that fell in the forest of the court system. Does a tree make noise when there is no one to hear? Of course not. Sure there is the cheated, unhappy, indignant litigant – and who cares about him? Let him suffer – he suffers for the Public Good! And to take a sting out of him, rule that judges are immune from prosecution no matter what. Tell the litigant that it is for the

 

 

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