|Date of judgement||10 January 2019|
|Judge(s)||Principal Member Higgins|
|Court or Tribunal||New South Wales Civil and Administrative Tribunal Occupational Division|
Land Tax Act, Special Trust, Principal Place of Residence
The Taxpayer sought a review of the Land Tax Assessment Notices for the 2015 to 2018 land tax years issued by the Chief Commissioner to the Taxpayer, in relation to a property in Cecil Hills NSW.
The key facts are:
The issues for determination by the Tribunal were:
Part 2 of Schedule 1A of the LTM Act provides for the principal place of residence (PPR) exemption, subject to certain restrictions contained in Part 4 of Schedule 1A Clause 11 provides that the PPR exemption does not generally apply to land owned by companies and trustees of special trusts.
Under the terms of the Solfon Family Trust, the trust property includes the Property, and the Taxpayer (as trustee of the Trust) is the owner of the legal estate in the Property (i.e. the registered proprietor): .
The land is ‘owned’ by the applicant who is a ‘company’ as these terms are defined in s 3(1) of the LTM Act. Accordingly, the PPR exemption in cl 2 of Schedule 1A does not apply to the land by reason of the cl 11(1)(a) restriction.
The Trust Deed makes no provision for a fixed entitlement of the beneficiaries in respect of income or capital of the Trust: . Therefore, the equitable estate in the Property is not owned by a person or persons who are the owners of the land for land tax purposes: . Therefore, the Trust is a special trust, and the PPR exemption in cl 2 of Schedule 1A does not apply to the land by reason of the cl 11(1)(c) restriction.
Accordingly, the principal place of residence exemption does not apply: .
Section 116 of the Taxation Administration Act 1996 (NSW) (TA Act) contains general provisions specifying how notices of assessment may be served on taxpayers.
Section 16 of the TA Act provides that the validity of an assessment is not affected because a provision of a taxation law has not been complied with .
While the Chief Commissioner is given the power to make an assessment of land tax, the liability for land tax arises without the need for an assessment: .
Accordingly, notwithstanding the fact that the Land Tax Assessment Notices for 2015, 2016 and 2017 were sent to the Revesby address and not the Cecil Hills address, the Assessments were nevertheless validly issued and payable by the Taxpayer: .
Section 96 of the TA Act provides that a Taxpayer may apply to the Tribunal for review of a decision of the Chief Commissioner if the decision has been the subject of an objection.
The objection lodged by the Taxpayer only related to the Land Tax Assessments for the relevant tax years (i.e. 2015 to 2018). It made no reference to the Chief Commissioner’s decision regarding an instalment plan. Accordingly, the Tribunal has no jurisdiction to review this aspect of the Chief Commissioner’s decision: