Wu v Chief Commissioner of State Revenue [2018] NSWCATAD 292

Background

The proceedings concerned land tax assessments for land at Belrose (“the Land”) issued to Mr Wu, (“the Taxpayer”), for the 2006 to 2012 and 2015 land tax years (“the  Relevant Period”).  The Chief Commissioner determined that the Land did not qualify for the principal place of residence exemption (“PPR exemption”) under Sch. 1A of the Land Tax Management Act 1956 (“the LTMA”). Interest was assessed at the market rate.

The specific clauses in Schedule 1A relied upon by the Taxpayer were:

• 2006-2009 – clause 2 on the basis that the Applicant lived in a fibro shed or caravan on the Land as his PPR;
• 2010-2012 – clause 8 concession for the Applicant’s absence from his PPR, residing at various other addresses;
• 2015 – clause 2 on the basis that the Applicant recommenced living on the Land as his PPR in a steel structure.

Taxpayer's submission

Mr Wu purchased the land in 2003, and asserted that he lived in either a caravan or an old fibro dwelling between April 2002 to July 2003, then occupied a new fibro dwelling, then sometimes again lived in a caravan. Mr Wu asserted that the necessary utilities, water, sewer and electricity were connected or available during this time.

During 2009 to early 2012, Mr Wu claimed he lived on a property that shared a boundary with the Land, and was not owned by him at the time. He then lived at another property until late 2012, and then lived at another address until late 2014.

Mr Wu asserted that he moved back onto the land in December 2014. He claimed the PPR exemption for 2015 on the basis that he resided in a “steel container” located on the land.

Mr Wu submitted supporting evidence provided by subcontractors, neighbours and friends.  He submitted that he should not be liable to pay interest, which was assessed at the market rate.

Chief Commissioner's submissions

The Chief Commissioner submitted that the Applicant had failed to discharge his onus of proving that the PPR exemption applied, contending that the Applicant had not established that:

1. he lived on the Land during the periods alleged;
2. if he did reside on the Land in a caravan, fibro shed and the steel container as claimed, he failed to prove that any of those structures were “buildings designed, constructed or adapted for residential purposes” as required to meet the definition of “residential land” under cl. 3(1) of Sch. 1A of the LTMA.

Decision

The Tribunal was not satisfied on the balance of probabilities that the Land was the Applicant’s PPR for the 2006-2012 and 2015 land tax years, or that the market rate of interest should be remitted.

Orders

The decisions of the Chief Commissioner under review were affirmed.

The Tribunal also made orders for submissions to be lodged in relation to the Chief Commissioner’s stated intention to seek costs.

Link to decision

Wu v Chief Commissioner of State Revenue [2018] NSWCATAD 292