Step by step guide to applying to NCAT for the review of a state revenue decision.
Step 1: Check that NCAT can review the decision Step 2: Lodge an objection with Revenue NSWStep 3: Consider whether you need legal representation Step 4: Apply to NCAT to review the decision Step 5: Lodge the application form by the deadline and pay the fee Step 6: Consider whether to apply for a temporary suspension of the Chief Commissioner's decision Step 7: Receive a letter from NCAT Step 8: Attend the directions hearing Step 9: Lodge your evidence and submissions Step 10: Take part in the hearing Step 11: Receive NCAT's decision Step 12: If you are not satisfied with NCAT's decision, consider whether you have grounds for appeal
The Chief Commissioner of Revenue NSW will tell you if one of its decisions can be reviewed by NCAT. If you are unsure whether NCAT can review a decision, you may need to get legal help or check the list of relevant legislation to see whether NCAT has the power to review the decision.
Before you can apply to the Tribunal, you must lodge an objection with the Chief Commissioner of Revenue NSW. An objection is a written statement which challenges the decision. You have to object within 60 days of being given the decision or notice of assessment.
The Chief Commissioner will consider the objection and either:
completely accept the objection
partially accept the objection
reject the objection
The Chief Commissioner has 90 days to respond. The response is called a Determination of Objection.
If you do not agree with the Determination of Objection or you have not received a response from Revenue NSW after 90 days, you can apply to NCAT to have the decision reviewed.
If you have not received a response to your written objection from the Chief Commissioner within 90 days, you need to give the Commissioner 14 days written notice of your intention to lodge an application in NCAT. There is no specific form for this notice.
You can either present your own case to NCAT or have a lawyer or non-lawyer agent represent you. You will usually need to be present to give your instructions to your lawyer or agent.
Your lawyer or agent needs to fill out a Notice of Representation and give it to the registry in person or by post. If a non-lawyer agent is representing you, you also need to sign the Notice before it is given to the Registry. In both cases, you have to send a copy of the Notice to the government agency which made the original decision.
Your agent needs to ask for permission from the Tribunal member to act on your behalf the next time the case is listed. You should be present with the agent in case the Tribunal does not allow the agent to appear for you. A lawyer does not need to ask for permission from the member.
To apply to NCAT, you need to fill out an application form. You will need to include the following information on your form:
your name, address and telephone number
the date of the original decision and the Determination of Objection
a copy of the original decision and the Determination of Objection (sent to you by Revenue NSW)
a brief outline of why you think the decision is wrong
You should make three copies of your completed application form.
You need to lodge your application within 60 days of receiving the Determination of Objection from the Chief Commissioner. If the Chief Commissioner fails to respond to the objection within the 90 day time period, you can apply to NCAT at any time after that.
You need to post or bring the application form and the copies to NCAT registry. You cannot lodge them online or fax them.
If you want to lodge an application but the 60 day deadline has passed, you have to ask for an extension. You will need to give a good reason for not lodging the application within the time allowed. It will be up to NCAT to decide whether to accept the late application.
A fee applies for most applications to NCAT. Check the
Fees page to see which fee applies to you, and how to pay the fee.
While you wait for NCAT to review the original decision, the Chief Commissioner’s decision will still take effect and the Revenue NSW can implement its decision.
If the decision means you have to pay any tax, interest or penalties, you must either pay the amount when due or make arrangements with Revenue NSW to pay in instalments.
You can ask for the Chief Commissioner’s decision to be suspended while you are waiting for a review by NCAT. This is called a 'stay'. You need to explain your reasons for asking for the decision to be suspended. NCAT will decide whether to grant a suspension after also considering the views of the Chief Commissioner.
The Chief Commissioner will usually not enforce his or her decision until NCAT completes its review, however interest will continue to accumulate on the unpaid tax.
You will receive a letter from NCAT informing you that your application has been received. There will also be some information about what happens next. NCAT will send a copy of your application to the Chief Commissioner.
You will also be given a date to attend a 'directions hearing' at NCAT.
During the directions hearing, a member of NCAT will talk to you and a representative from Revenue NSW about the options for resolving your case. The member will consider whether to include a
mediation in the timetable. If the matter is complex, the member may also
direct the parties to prepare a statement of issues document or provide expert
or lay evidence. The Chief Commissioner of Revenue NSW, in settling
proceedings, must have a reasonable basis to do so in fact and law.
More information can be found at Resolution processes [PDF, 61kB].
The Chief Commissioner is obliged to provide you and the Tribunal with a copy of all the documents in their possession that are considered relevant to the decision within 28 days of receiving your application from the Tribunal. These are sometimes called s58 documents.
The member will direct you to give NCAT and the Chief Commissioner submissions and evidence including statements, documents and any reports from experts. The usual time allowed for this is 4 weeks but a shorter or longer time may be given. The member will direct the Chief Commissioner to give you and NCAT his submissions and evidence in response. The usual time allowed for this is a further 4 weeks. You will usually be given a further 2 weeks to put on evidence and submissions to reply to any evidence or submissions of the Chief Commissioner. The reply must be given to NCAT and the Chief Commissioner. It should not deal with any matters other than those in the Chief Commissioner's materials unless you get permission (leave) from NCAT.
Depending on the complexity of the issues, the matter should be ready for a hearing 4 to 6 months after you lodged the application.
If you want to ask for a summons to be issued, you should raise this with the member at the directions hearing. For more information read NCAT Procedural Direction - Summons [PDF, 62kB].
You have the responsibility for proving that the assessment or decision is incorrect. You do not have to rely on the objections you made in the notice of objection to the Chief Commissioner.
You should prepare evidence and submissions to support your objections. Give that material to the Tribunal and the Chief Commissioner by the deadline given to you at the directions hearing.
The documents you need to prepare may include statements or affidavits, legal submissions, references to legal authorities, cases and legislation. Read more about
preparing evidence for hearing.
NCAT’s hearings are less formal than court hearings. Generally, the member will ask you and the representative from Revenue NSW to start by giving a short summary of your arguments.
Usually Revenue NSW will present its evidence first and then it will be your turn to present your evidence. After the evidence has been presented you will both be given an opportunity to make oral submissions about the findings of fact that the Tribunal should make and the meaning of the law that should be applied.
In some cases, the NCAT member will give their decision at the end of the hearing. However, in most cases the member will need time to consider the case and will give their decision at a later date. You will usually receive the decision in less than three months. Complex matters may take longer.
The orders will be posted to the parties and the reasons for decision will appear on the
Caselaw website. NCAT can make various decisions including:
confirming or revoking the assessment or other decision to which the application relates
substituting a different assessment or decision
ordering a person to pay the Chief Commissioner any amount of tax that has been assessed as being payable
sending the matter back to the Chief Commissioner to determine again.
You may have the right of appeal to the Appeal Panel of NCAT, on a question of law or, with the Appeal Panel's permission, on the merits of the decision. Learn more about appeals.
In some instances there is also a right of appeal to the
Supreme Court. If you are not sure of your appeal rights, you should
seek legal advice.