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MERITS REVIEW – NSW State taxes - revenue law – exemptions - onus – lack of objective evidence - credibility of the applicant as his sole witness – no reasons given for not calling other witness.
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 Nulty v Blue Star Group Ltd [2011] F WAFB 975
Background
On 15 February 2017, the Applicant’s grandfather passed away. Pursuant to the grandfather’s Will, the Applicant inherited the Property.
The Applicant conceded that “it took a long time” to remove his grandfather’s personal items from the Property due to a lengthy family grieving process.
On 5 November 2018, the Applicant made an ‘Application for exemption for the Property – Deceased estate’ (“Deceased Estate Application”) and lodged a variation on 6 February 2019 with the Respondent. In the Deceased Estate Application, the Applicant stated that the Property was “…his primary residence. All bills are still under my grandfather’s name and I have been renovating since by grandfather has passed away”.
On 25 March 2019, Revenue New South Wales (RNSW) informed the Applicant that an exemption under Sch 1A cl. [9] of the Land Tax Management Act 1956 (“LTM Act”) applied for 2 years from the date of death and that if the Applicant required an exemption, he was required to lodge another application.
The Applicant claimed he had been living at the Property since his grandfather’s death.
On 26 March 2019, RNSW requested further information including: a copy of the Will and Probate; dates of moving into the Property as his residence; dates he moved out of the Property for renovations; dates renovations started; details of renovations, and his address after moving out of the Property.
The Applicant wrote to RNSW explaining that he had started renovations in 2019 but had to stop in 2020 due to the pandemic and financial difficulties, and as such the renovations were ongoing.
While the Applicant’s initial period of review included the 2018 and 2019 land tax years, the Respondent granted an exemption (‘concession on death of owner’) for those years pursuant to Sch 1A cl. 9 of the LTM Act. by way of reassessment in May 2023,
In these proceedings, the Applicant sought the exercise by Tribunal of a statutory discretion in his favour for 2020-2022 land tax years under Sch 1A cl 6(7A) of the LTM Act on the following grounds:
The reluctance of family members to remove the grandfather’s personal possessions from the Property;
The impact of the COVID-19 pandemic restricting the Applicant’s business operations and creating financial constraints; and
The scarcity of tradespeople due to COVID-19 and related government restrictions.
The Statutory Framework
Sch 1A cl 6(7A) of the LTM Act enable the Respondent to extend the 4-year exemption period in cl 6(3)(a) or (b) if the Chief Commissioner is satisfied of the following statutory conditions:
That there had been a delay in the completion of building words or other works necessary to facilitate the owner’s intended use and occupation of the land as a principal place of residence; and
The delay is due primarily to exceptional circumstances beyond the control of the owner; and
The delay could not reasonably have been avoided by the owner.
Section 100(3) of the Taxation Administration Act 1996 (“TA Act”) provides that the Applicant has the onus of proving his case in a review by the Tribunal.
Submissions
The Applicant claimed in his written statement [41]:
“I understand I was in breach of the time limit by 6 months, however, I am appealing on the grounds of no precedents exist for Covid-19 which delayed my ability to finance and employ contractors, resulting in significant delays. The Government during the pandemic made numerous concessions to support Australians during this difficult time in some capacity. I was also financially impacted during this time with no government assistance. Finally, my intention as always for this to be my principal place of residence post renovations, I utilised the property prior to commencing the renovations. This is supported by the utilities showing usage and being in my deceased grandparents [sic] name until I nearly completed the renovations”.
The Applicant also indicated that he believed the above explanation qualified “…as an exceptional unprecedented circumstance, beyond [his] control…” which warranted further review by the Respondent.
The Respondent provided the authority of Nutly v Blue Star Group Ltd [2011] F WAFB 975 for the proposition that exceptional circumstances “…must be out of the ordinary course or unusual or special or uncommon but need not be unique or unprecedented or very rare…It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence…”
The Respondent argued that the Applicant had not provided sufficient evidence that he met the necessary conditions under sch 1A cl. 6(7A) of the LTM Act.
Decision
The Applicant was cross examined by the Respondent and the Senior Member at the hearing.
The Tribunal rejected many of the statements made by the Applicant, both in writing and orally to the Tribunal during the hearing for being inconsistent or implausible. The Applicant produced no relevant judicial or Tribunal authority to support his statements and did not avail himself of the opportunity to respond to the Respondent’s submissions. Further, the Applicant did not provide any evidence from witnesses, including members of his own family or tradespeople from whom he obtained quotes and invoices for his renovations to corroborate his claims. Finally, the Applicant provided no reasons for his failure to provide such evidence.
Ultimately the Tribunal determined that the Applicant’s lack of supporting evidence, without explanation, limited the plausibility of his case and thus the Applicant had not satisfied his statutory onus.
