Sidgreaves v Commissioner of State Revenue [2017] NSWCATAD 93

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sidgreaves v Commissioner of State Revenue [2017] NSWCATAD 93 Hearing dates: 2 & 3 March 2017 Date of orders: 29 March 2017 Decision date: 29 March 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Brian Tamberlin QC, Principal Member Decision: The Application for Review is dismissed Catchwords: TAXES AND DUTIES-gaming machine tax –hotel premises- application for refund –whether Applicant was the licensee in the period in respect of which refund is claimed. Legislation Cited: Taxation Administration Act (1999) Liquor Act (2007) Gaming Machine Tax Act (2001) Cases Cited: Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81 at [24] [27] Category: Principal judgment Parties: Anthony John Sidgreaves (Applicant) Commissioner of State Revenue (Respondent) Representation: Counsel: In Person (Applicant) A Gerard (Respondent) File Number(s): 2016/00378286 Publication restriction: Nil

Reasons for DEcision

Introduction 1. When the hearing of this matter commenced before the Tribunal the Applicant stated that he had not been served with any evidence or submissions by the Respondent. He said that he wished to proceed notwithstanding the non-service. The Respondent tendered a detailed affidavit by the solicitor acting in this matter on behalf of the respondent as to the steps taken to effect service. As the evidence proposed to be tendered by the Respondent was very substantial the Tribunal adjourned the proceedings to enable the Applicant to examine the material and make an informed decision as to whether he still wished to proceed. After having been given this opportunity he said that he wished to proceed. Accordingly, the matter proceeded with the Applicant presenting his case and referring to the evidence on which he relied. He was cross examined by counsel for the Respondent and he cross examined Mr Peter Wicks who was called for the Respondent and who gave detailed evidence as to the contents of records and communications relevant to the Licence in question. 2. The Applicant seeks review under s 96 of the Taxation Administration Act 1996 (the TAA) of a decision made by the Respondent on 17 August 2016 refusing an application by the applicant for a refund of all gaming machine tax collected by the respondent for the period from 1 January 2012 to 31 December 2015 in respect of the operation of the hotel known as "Tommy's Tavern" and hotel licence number LIQH400114540 (the Licence). 3. On or about 29 June 2016 the Applicant made the application for a refund which was the subject of the refund refusal decision as follows: … I seek an immediate refund for all gaming machine tax collected by the Chief Commissioner of State Revenue for assessment periods 1 January 2012 to 31 December 2015 as it has been established by His Honour Judge Scotting that neither AJ Holdings (NSW) Pty Ltd or the author was the holder of the relevant hoteliers' licence when instalments of gaming machine tax become due. 1. In the Refund Refusal Decision, the Respondent stated: …Information available establishes that AJ Holdings NSW Pty Ltd was the business owner and Anthony Sidgreaves was the Licensee from 30 January 2012 to 25 January 2016. Under section 6 of the Gaming Machine Tax Act 2001 you were liable to pay GMT during the period. 1. On 5 October 2016 the Applicant lodged an objection to that decision which was refused on two grounds: 1. documents in the possession of the Respondent identified that the Applicant was the holder of the Licence between 30 January 2012 and 24 January 2016: Tommy's Tavern was the hotel premises to which the Licence related...; and 2. in the alternative … the evidence establishes that the Applicant did not in fact pay the relevant gaming machine tax but rather the gaming machine tax was paid by AJS Hotel Management Pty Ltd and TT Hotel Management Pty Ltd and accordingly no refund of gaming machine tax could be paid by the Applicant to the Respondent. 1. The Applicant then filed an application for review in this Tribunal. 2. The principal issues on the review application are whether: 1. the Applicant can establish on the balance of probabilities that he was not the holder of the Licence during the relevant period; 2. the Applicant can establish an entitlement to a refund where the tax was not paid by him. 1. The hotel known as Tommy's Tavern is located at 75 Molesworth Street, Lismore (the Premises). It is the hotel associated with the Licence. 2. The Premises are owned by AJ Holdings NSW Pty Ltd and Cumedo Pty Ltd as tenants in common. AJ Holdings NSW is a company of which the Applicant was the sole director at all relevant times. Cumedo has two appointed directors being the Applicant and Patricia Sidgreaves. 3. On 5 August 2011, Mr Parrot became the licensee of Tommy's Tavern when a company known as Buckoe Pty Ltd associated with Mr Parrot commenced a commercial lease to operate the hotel. Immediately prior to that the Applicant was the holder of the Licence. 4. On or about 2 January 2012 Mr Parrot was allegedly evicted by the "owner" of the hotel premises. 5. On 23 January 2012 the Applicant completed a Liquor Licence Transfer Application Form in respect of the hotel (the Application) which was received by the Independent Liquor Gaming Authority (ILGA) on 24 January 2012. 6. This Application was completed by the Applicant and two addresses were nominated namely; an email address and a postal address. The Applicant identified himself as the Applicant and the proposed Licensee. He also signed the Application as consenting to the transfer of the Licence from the existing licensee. 7. Documents and records in evidence indicate that the Application was provisionally approved by ILGA on 30 January 2012. 8. On 17 April 2012 ILGA wrote to the Applicant at his nominated postal address stating that the Application had been provisionally approved. Enclosed with that letter was the Licence document issued to the Applicant. This document was in the standard approved form for all hotel licenses issued by ILGA. The Licence document enclosed with the letter of 17 April 2012 recorded that the licensee was the Applicant. It also referred to the address of the premises and to his email address as given by the Applicant in the Application. 9. On 4 May 2012 the Administration Officer at the Office or Liquor, Gaming and Racing sent an email to the email address nominated by the Applicant in the Application enclosing a copy of the hotel licence approval letter of 17 April 2012 together with the Licence. 10. On 28 May 2013, as a consequence of new conditions being imposed on the Licence as a result of a disturbance complaint, the Office of Liquor, Gaming and Racing sent an email to the email address nominated in the Application Form enclosing the Licence as amended which showed the Applicant as licensee of the hotel. 11. The Applicant denies receiving any of these documents. 12. In a number of subsequent requests applications, documents and correspondence between 23 September 2013 in evidence , to the end of the relevant period, the Applicant signed documents indicating that he was the licensee of Tommy's Tavern. These documents included a Transfer Application Form completed by the Applicant on 20 September 2013 in respect of Tommy's Tavern and the Licence and this was received by ILGA on that date; a request in respect of the payment of gaming tax; an eviction notice dated 16 July 2014; a further transfer request made on 13 August 2014 and a further transfer request of 6 January 2016 concerning the transfer of the Licence to Leslie Birdsall. The transfer application of 16 July 2014 and that of 13 August 2014 were not granted. 13. On 11 May 2016 a decision was made by Judge Scotting in Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81 allowing an appeal by the Applicant in relation to a conviction under the Liquor Act 2007 in respect of Tommy's Tavern. An issue in that case was whether the Applicant was a Licensee of the hotel on 30 August 2012.This is the decision referred to in [3] above cited by the Applicant in his review application. 14. In his reasons for judgement His Honour said at paragraphs [24] and [27]: The transfer of licence application to have the licence put in the appellant's name was never approved, even provisionally, by the Authority. It was an application pursuant to section 60 Liquor Act 2007. Put simply, if it was not approved it could not have effected a transfer of the licence into the appellant's name. For the purposes of my decision, I cannot establish the identity of the holder of the hotel licence as at 30 August 2012. I cannot be satisfied beyond reasonable doubt that it was the appellant because there was no evidence that the application he submitted to the Authority on 24 January 2012 was approved. The appellant was not the owner of the premises or the business owner and was therefore not able to be deemed licensee pursuant to Section 61 Liquor Act 2007. (Emphasis added)

Legislation 1. Section 4(1) of the Liquor Act 2007 relevantly provides: hotel means the premises to which a hotel licence relates hotelier means the holder of a hotel licence under this Act licence means a licence under this Act 1. Section 10 of that Act provides for the grant of a hotel licence which authorizes the licensee to sell liquor. 2. Section 60 provides for the transfer of licences as follows: (1) The Authority may, on application made in accordance with this section, approve the transfer of a licence to a person who, in the opinion of the Authority, would be entitled to apply for the same type of licence in relation to the licensed premises. (2) An application for approval to transfer a licence may be made by the licensee or the person to whom the licence is proposed to be transferred. (4) An application for approval to transfer a licence must: (a) be in the form and manner approved by the Authority, and (b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and (c) if made by a person other than the licensee—be accompanied by the written consent of the licensee to the proposed transfer, and (d) comply with such other requirements as may be approved by the Authority or prescribed by the regulations. (7) The Authority may provisionally approve the transfer of a licence to another person if the Authority is satisfied that: (a) there is nothing that would preclude the Authority from approving the transfer of a licence, and (b) the circumstances of the case justify giving the approval on a provisional basis. (8) A provisional approval to transfer a licence is sufficient authority for the transfer of the licence. However, any such provisional approval ceases to have effect unless it is confirmed by the Authority before the end of the period specified by the Authority when provisionally approving the transfer (or such later period as may be allowed by the Authority before the expiration of the specified period). (11) The Authority must not approve or provisionally approve the transfer of a licence unless satisfied: (a) that practices will be in place at the licensed premises of the transferee as soon as the licence is transferred that ensure as far as reasonably practicable that liquor is sold, supplied and served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and (b) that those practices will remain in place. (12) The transfer of a licence has effect as if the licence had been granted to the transferee. 1. Section 61 provides: (1) This section applies in relation to a licence (other than a club licence) if: (a) the licensee is evicted from the licensed premises, or (b) the owner of the licensed premises comes into, or becomes entitled to, possession of the licensed premises to the exclusion of the licensee, or (c) the licensee is no longer employed by the owner of the business carried on under the licence (the business owner), or (d) the licensee is not complying, or does not have the capacity to comply, with the requirement under section 91 (1) to be responsible at all times for the personal supervision and management of the business of the licensed premises. (2) An application for a transfer of the licence may be made by the owner of the licensed premises or by the business owner. (3) The owner of the licensed premises who comes into, or is entitled to, possession of the premises, or the business owner (as the case requires), is taken to be the licensee of the premises until: (a) the day that is 28 days after this section becomes applicable, or (b) the day on which application is made under subsection (2), whichever first occurs. (4) If an application is made under subsection (2) not later than 28 days after this section becomes applicable, the applicant is, until the application is determined by the Authority, taken to be the licensee under the licence to which the application relates. 1. By s 6 of the Gaming Machine Tax Act 2001 (the GMT Act) a tax is payable on profits from gaming machines kept in a hotel and is payable by the hotelier. 2. Section 7 of that Act provides for the payment of tax by instalments. 3. By s 100 of the TAA the Applicant bears the onus of proving his case for a refund in respect of the gaming machine tax. That provision states: (1) An application for review following a failure of the Chief Commissioner to determine an objection cannot be made unless the applicant has given written notice of the proposed application to the Chief Commissioner not less than 14 days before it is made. (2) The applicant's and respondent's cases on an application for review are not limited to the grounds of the objection. (3) The applicant has the onus of proving the applicant's case in an application for review. (4) If the applicant or respondent appeals against a decision of the Civil and Administrative Tribunal in an application for review to an Appeal Panel of the Tribunal, the applicant in the application for review continues to bear the onus of proving the applicant's case in the appeal if the Appeal Panel grants leave for the appeal to extend to a review of the merits of the decision. 1. Therefore, the Applicant in this case must prove on the balance of probabilities that he was not the holder of the Licence associated with Tommy's Tavern for the relevant period in respect of which the refund application has been made by him.

Evidence of the Applicant 1. The Applicant agrees that he made the Transfer Application of 23 January 2012 and nominated the addresses to which the later correspondence documents and notices were sent however, he denies receiving the documents sent to him at his nominated postal address on 17 April 2012. He also denies receiving the Licence approval letter and hotel Licence sent on 4 May 2012. Further he denies receipt of the amended Licence containing the further conditions sent to him at the nominated email address on 28 May 2013. 2. In cross examination he agreed that at various times he had referred to himself as the licensee of the hotel during the relevant period but says that this was a mistaken belief which he held until the decision of Judge Scotting on the appeal against his conviction in May 2016. 3. He tendered several documents which he said supported his submission and he specifically refers to two emails of 2 February 2012 which stated that his transfer application would not be processed because there was outstanding tax payable in respect of the Licence. He also refers to a COPS report with entries covering a period between 30 March 2012 to 11 April 2012 which referred to outstanding tax. He also tendered a copy of the transfer application to Mr Parrot in August 2011which contained some stamping notations which may evidence an irregularity in the processing of the Transfer Application in the present case which did not contain such stamped notations. 4. The applicant provided a letter from ILGA written on about 11 May 2016 which referred to a longstanding practice going back over 10 years that licensing staff would place transfer applications on hold if notified by the Office of State Revenue that there was outstanding gaming tax owing for the hotel the subject of the application. 5. The Applicant says that he believed he was the transferee of the Licence in the relevant period until the District Court proceedings leading to the decision of Judge Scotting on 11 May 2016.

Evidence of the Respondent 1. The Respondent tendered an affidavit by Peter Wicks of 17 February 2017 attaching copies of and verifying records kept in relation to the Transfer Application. He is the Manager of Licensing with Liquor and Gaming NSW. He held that position between September 2011 and May 2015. He exhibited a folder of documents (PW1) which he swears are true and correct after reviewing the records kept under the One Gov record system. He explained the record keeping procedures relating to Liquor Licences. Those procedures relate to compliance enforcement and licensing. He identified the correspondence, emails and documents relating to the Transfer Application and the Licence and verifies them Exhibit PW1 contains screen shots of these records. He states that the hotel licence issued to the Applicant in relation to the relevant period was in the standard form. 2. Mr Wicks was cross examined by the Applicant on his affidavit but his evidence was not weakened in any significance respect. 3. The Respondent also tendered an affidavit by Timothy Denmeade of 21 February 2017. He is the Operations Officer of State Revenue. His evidence relates to the payment and collection of gaming machine tax. He exhibits and verifies correspondence with the Applicant in the relevant period and includes screen shots relating to the collection of tax in respect to the hotel during the period. He identified communications with the Applicant as to entry into payment plans and approvals of instalment arrangements and deferrals where the Applicant identified himself as the Licensee. See exhibit TJD1. His evidence was not contradicted by the Applicant. 4. The third affidavit was that of Natasha Mukater of 23 February 2017 who is the Manager of the Revenue Management Branch of the Office of State Revenue and she described the revenue collection process and explained the payment system. She was not required for cross examination.

Reasoning 1. The Applicant's reliance in this application for review on the finding of Judge Scotting, that it was not proven beyond reasonable doubt that the Applicant was the holder of the Licence, is misplaced. That finding turned on the lack of evidence of approval of the transfer to the Applicant. 2. No significant evidentiary weight can be given to that finding in the present case for the following reasons: 1. That appeal related to a criminal prosecution where the Crown had the onus of proving beyond reasonable doubt that the Applicant was the holder of the Licence on the specified date. The onus of proof is different. 2. The standard of proof is different. In the present case the standard of proof is the civil standard The Applicant must show on the balance of probability that he was not the holder of the Licence during the relevant period. 3. The question in each case is different. 4. The parties to that proceeding and the present proceeding are different. 5. Most importantly, as his Honour pointed out, there was no evidence before him that the Application submitted by the Applicant to the Authority on 24 January 2012 was ever approved. In contrast, in the present case, there is extensive documentary evidence of the approval and a body of evidence which was not before his Honour that the Applicant had represented himself on many occasions in the period as the licensee of the hotel on the premises. 1. In the present case there was evidence that the letter of approval and copies of the Licence were sent to the Applicant on two occasions addressed to his nominated addresses specified in the Transfer Application. There is also evidence that the amended Licence was sent to him at his nominated address on 4 May 2013. He claims not to have received these documents. The Respondent submits that it is more likely than not that he did receive these documents and says that this conclusion would explain why he represented on numerous occasions during the period that he was the Licensee. It is pointed out by the Respondent that the only documents that the Applicant denies receiving in the period were the three communications in 2012 and 2013 enclosing copies of the Licence issued to him. However, the evidence is not sufficiently clear for the Tribunal to make a finding that the Applicant actually received these documents and a finding on this question is not necessary for determination of the issues on this review. The issue is whether he was the holder of the Licence during the period. 2. The Applicant has referred to two emails sent in early February 2012 indicating that the Application would not be processed due to outstanding tax. However, as Mr Wicks, who was party to those emails pointed out, at the time the emails were sent, he was unaware that the application had in fact, according to the later record entries, been provisionally approved on 30 January 2012. 3. Another document relied on by the Applicant is the COPS reports dating from 30 March 2012 to 11 April 2012 which he submits cast some doubt as to who the Licence holder was at that time. This report is largely based on hearsay and was made before the entry of the approval in the record had been formally made on 5 April 2012. Searches of the record prior to that date would not have shown the record of approval. Mr Wicks explained that the delay in entering the approval on the record was due to an administrative backlog in the office at that time. The entries in the COPS report are explicable by reason of the delay. Furthermore, on a reading of the whole of the entries comprising the COPS report there is a later entry referring to an outstanding debt with a comment that it had been decided to let the transfer proceed because there had been an appeal in relation to that debt. 4. The Applicant also refers in his submissions to emails of 29 and 30 August 2012. However, these emails relate to liability for gaming tax in respect of a time before the relevant period and they provide no support for a finding that the Applicant was not validly recorded as the holder of the Licence in the relevant period. 5. The Applicant referred to some details and stamps on the Transfer Application Form to Mr Parrot in August 2011 and the Transfer Application Form in the present case. He submitted that there was an indication of some irregularity in relation to the transfer application to the Applicant because there were some stamps and details on the Transfer Application Form to Mr Parrot which are not on the copy of the 24 January 2012 application to the Applicant. There is no substance in this submission because all the relevant details, according to the One Gov records have been entered and the stamps referred to on the application of Mr Parrot are not shown to have any significance so far as validity of the processing of the Transfer Application and the approval are concerned.

Decision 1. For the above reasons, the Tribunal finds that the Applicant has not discharged the onus of proof and the evidence before the Tribunal does not support a finding that the Applicant was not the holder of the Licence during the relevant period. 2. In view of this finding it is not necessary or appropriate for the Tribunal to consider the alternative basis on which the Respondent seeks to have this review application dismissed.

Order 1. The application is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2017