Deans v Chief Commissioner of State Revenue [2022] NSWCATAD 14
Background
The Applicant is the sole owner of 2 NSW properties, the property at Clontarf, and also owns a half-share in two properties, one at Potts Point and the other at Nimbin. The property at Potts Point is exempt on the basis that it is the Applicant’s principal place of residence. The property at Nimbin is exempt on the basis that the land is zoned rural or non-urban land and is used for primary production.
On 18 March 2021, the Chief Commissioner issued Land Tax Assessments to the Applicant for each of the 2017, 2018, 2019, 2020 and 2021 land tax years in respect of the property in Clontarf on the basis that the property did not satisfy the criteria for exemption as the Applicant’s principal place of residence (PPR).
On 30 March 2021, Ms Deans objected to the Chief Commissioner’s assessment of the Clontarf property and on 16 August 2021, the Chief Commissioner disallowed the objection. Ms Deans then sought administrative review of the decision to assess the Clontarf property.
The Statutory Framework
Section 7 of the Land Tax Management Act 1956 (NSW) (“LTMA”) provides that land tax is levied on all land in New South Wales unless a relevant exemption applies.
Section 10(1)(r) and Schedule 1A of the LTMA provide for the PPR exemption from land tax liability.
Submissions
Applicant
The Applicant submitted that the Clontarf property was her principal place of residence as at the relevant taxing dates for 2017 to 2021. The Applicant made the following submissions:
- The Applicant inherited the Clontarf property and has sought to have this property declared as her PPR from 1993.
- Due to a fear of violence from a close relative who has a history of violence towards the Applicant and other family members, she and her family moved into a property she jointly owns with her spouse at Potts Point. Although residing at the Potts Point property, she has recently taken steps to return to the Clontarf property.
- Although the Clontarf property is being rented out, the Applicant’s furnishings and belongings are stored at this property, and the rental agreements provided for storage and access to those belongings.
- The applicant is unable to afford the debt arising from the assessments.
The Applicant stated that the entire property has been rented out from about 2016, but in prior years a suite of rooms was rented out and she and her family remained living there.
Chief Commissioner
The documents lodged by the Chief Commissioner pursuant to the Administrative Decisions Review Act, s 58 were considered by the Tribunal, and included:
- Records obtained from the Rental Bond Board and the Australian Taxation Office showing that the Clontarf property was available to be rented out from about 9 February 2014 and was probably rented out from about 28 July 2015.
- records showing that the Applicant listed her Nimbin property as her residential address for the year ended 30 June 2016. In all later relevant years, she stated that her Potts Point property was her residential and postal address.
- Electricity bills for the period from about March 2019 to March 2021 for her property at Potts Point addressed to the Applicant and her covering email stating:
“These bills cover the period 2018 to today. Prior to that the apartment was tenanted”
which suggest that the Applicant’s PPR changed in about 2016 from Clontarf to Nimbin and then Potts Point. Although the precise dates on which she moved from each property were unclear, it is likely that the property at Potts Point was the Applicant’s PPR by 1 July 2017.
- Copies of four residential tenancy agreements managed by a real estate agent for the Clontarf property for the periods from about April 2018 to November 2021.
The Chief Commissioner asked the Applicant to provide evidence of contents insurance; the Applicant stated that she did not take out a home contents policy in respect of the Clontarf property.
Tribunal Decision
The Applicant failed to establish that the Clontarf property was her PPR from at least 1 July 2017. The rental agreements indicated that the Applicant had no right of access to the property other than a licence to store some of her personal belongings in a storage area near the garage.
The Applicant’s reasons for moving from the Clontarf property due to a threat of her safety and her concern about the financial burden of liability to land tax were not relevant to any consideration under exemption or concession provisions of the LTMA.
Similarly, the Applicant’s submission that she is unable to afford the debt arising from the assessments is not relevant to these proceedings.
The concession for a former PPR provided in Schedule 1A, Clause 8 of the LTMA did not apply in this case because the Applicant was entitled to the PPR exemption on the Potts Point property in which she had a half share.
Orders
The Tribunal confirmed the Commissioner’s decision to assess the Clontarf property.
https://www.caselaw.nsw.gov.au/decision/17e4c6d3fdfff0749cb9a304