Miljus v Chief Commissioner of State Revenue [2020] NSWCATAD 302
Background
The taxpayer owned several properties in New South Wales, including a residential property (“the Erskineville property”), which he had acquired in October 2015. On 23 May 2019, the Chief Commissioner issued a Notice of reassessment of land tax for the 2015 to 2019 land tax years, which included assessment of the Erskineville property for the 2016 land tax year.
On 14 June 2019, the Taxpayer provided the Chief Commissioner with a statutory declaration, declaring that he was also the owner of a property at 91 Shone Avenue, Horsley NSW (“the Horsley property”). The Taxpayer’s declaration confirmed that this address was his principal place of residence (PPR) from 2014 to 2019.
On 22 July 2019, the Taxpayer lodged an objection with respect to the 2016 to 2019 land tax assessments. In his objection, the Taxpayer again stated that his PPR for that period was the Horsley property.
On 12 September 2019, the Taxpayer lodged with the Chief Commissioner a further objection in which he sought the PPR exemption for the Erskineville property for the 2016 to 2019 tax years. The Chief Commissioner agreed that the PPR exemption applied to the Erskineville property for the 2017, 2018 and 2019 tax years. The only issue in dispute during the proceedings was whether the Erskineville property was entitled to the PPR exemption for the 2016 land tax year.
Relevant legislative provisions
The PPR exemption for the Erskineville property was claimed by the Taxpayer under Clss. (1) and (2)(b) of Schedule 1A of the Land Tax Management Act 1956. The Taxpayer argued that the Chief Commissioner should be satisfied that the Taxpayer used and occupied the land as his PPR as at midnight on 31 December 2015, which is the taxing date for the 2016 land tax year.
Taxpayer’s submissions
On 14 June 2019, the Taxpayer provided the Chief Commissioner with a statutory declaration, declaring that he was the owner of a property at Horsley NSW (“the Horsley property”), and that this address was his PPR from 2014 to 2019. He attached phone bills and electoral roll documentation to support this contention.
On 22 July 2019, the Taxpayer lodged an objection with respect to the 2016 to 2019 land tax assessments. In his objection, the Taxpayer again stated that his PPR for that period was the Horsley property.
On 12 September 2019, the Taxpayer lodged a further objection in which he sought the PPR exemption for the Erskineville property for the 2016 land tax year. This was the sole issue pressed by the Taxpayer during the proceedings.
In support of this submission, the Taxpayer relied on substantial supporting documentation, which included electricity and gas bills, and a residential building insurance policy (but not including contents insurance) for the Erskineville property. The taxpayer also relied upon statutory declarations provided by two of neighbours of his Erskineville property; (see [28] to [31]).
Chief Commissioner’s submissions
The Chief Commissioner submitted that the Taxpayer had failed to prove, on the balance of probabilities, that he had occupied the Erskineville property as at 31 December 2015. The Chief Commissioner argued that the Horsley property was the Taxpayer’s main place of residence in Sydney from 2013 until well after 31 December 2015 and that it is highly likely the Taxpayer continued to use a “granny flat” at the Horsley property as his principal Sydney residence throughout the relevant period, including as at midnight on 31 December 2015; (see [24] to [27]).
Decision
The Tribunal determined that the taxpayer’s case that as at 31 December 2015 his PPR was the Erskineville property was unpersuasive and that it failed to satisfy the onus of proof to establish that case. The Tribunal found that the documentary evidence provided by the Taxpayer did not establish his occupation of the Erskineville property during the 2016 land tax year (at [36]), and determined that the Taxpayer failed to adequately address the revocation of his statutory declaration dated 14 June 2019 which clearly identified the Horsley property as his PPR (at [47]).
The Tribunal determined that the evidence of the Taxpayer’s Erskineville neighbours was unpersuasive because their statutory declarations were identical, they had been prepared with the assistance of the Taxpayer, and both neighbours failed under cross-examination to identify with precision the dates they observed the Taxpayer’s presence at the Erskineville property (at [49]).
Orders
The Tribunal ordered that the decision under review (ie the Chief Commissioner’s reassessment of the taxpayer’s land tax for the 2015 to 2019 land tax years, issued on 23 May 2019) be affirmed.
Link to decision
Miljus v Chief Commissioner of State Revenue [2020] NSWCATAD 302