Lou v Chief Commissioner of State Revenue [2019] NSWCATOD 9
Background
The Applicant sought a review of the decision by the Chief Commissioner to disallow an exemption from land tax under the principal place of residence exemption contained in section 10(1)(r) of the Land Tax Management Act 1956 (NSW) (“LTM Act”) for the 2011 and 2012 land tax years. The Chief Commissioner had assessed a property (“the Land”) of the Applicant at Empire Bay, New South Wales as liable to land tax under Part 3 of the LTM Act.
In 2007 Ms Lou, who then worked in Sydney, bought a property at Empire Bay on the New South Wales Central Coast, some distance north of Sydney. Ms Lou said she commuted daily to work from the Land. She claimed she was entitled to the principal place of residence exemption under the LTM Act in respect of the Land.
The Statutory Framework
The principal place of residence exemption is contained in cl. 2 of Schedule 1A of the LTM Act. It provides:
2 Principal place of residence exemption
- Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing 1 January 2005 or any succeeding year, if the land is:
- a parcel of residential land, or
- a strata lot or, subject to this Schedule, land comprised of 2 or more strata lots.
- Land is not used and occupied as the principal place of residence of a person unless:
- the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or
- in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person's principal place of residence.
Decision
The Tribunal noted [at 32] the failure of the Applicant to provide evidence to support certain claims, notably:
- statements from relevant former employers as to their records of her home address during the relevant period;
- statements from neighbours of the Land regarding Ms Lou’s presence at the Land during relevant periods;
- statements from unidentified persons, with whom Ms Lou said she shared accommodation at Bondi during relevant periods, as to their recollection of her residing at Bondi; nor
- any explanation as to why she provided no such statements.
Electricity bills and notices for the Land provided by the Applicant did not relate to either of the relevant six month periods immediately preceding the 2011 and 2012 tax years, and therefore did not evidence her occupation of the Land as her principal place of residence in respect of the land tax years in question: [81]–[82]. Additionally, water bills for the Land provided by the Applicant demonstrated only that there had been some water use on the Land: [83].
The Chief Commissioner noted that the Applicant’s income tax returns prepared by her accountant for the financial years ended 30 June 2010–2013 had shown her father’s home at Forest Lodge was her “home address”. The Tribunal considered it implausible that a person with the Applicant’s qualifications in accounting would overlook such that her “home address” was the same as the “postal address”.
The Tribunal was not satisfied on the balance of probabilities that the Land was the Applicant’s principal place of residence for either of the land tax years, and determined the correct and preferable decision was that the Land was not exempt from land tax for any of those years: [126].
Orders
The decisions of the Chief Commissioner under review are affirmed.
Link to decision
Lou v Chief Commissioner of State Revenue [2019] NSWCATOD 9