Theophilas v Chief Commissioner of State Revenue  NSWCATAD 100
|Date of judgement||16 July 2014||Proceeding No.||1410029|
|Judge(s)||Professor GD Walker, Senior Member|
|Court or Tribunal||NSW Civil and Administrative Tribunal|
|Legislation cited||Civil and Administrative Tribunal Act 2013
Land Tax Management Act 1956
|Catchwords||Land tax - principal place of residence - entitlement to have other land taken into account|
|Cases cited||Aronstan v Chief Commissioner of State Revenue (CCSR)  NSWADT 8
B & L Linings Pty Ltd v CCSR  NSWCA 187, (2008) 74 NSWLR 481
Cornish Investments Pty Ltd v CCSR  NSWADTAP 25
Deane v Commissioner of Stamp Duties (No 2) (1996) 2 Qd R 557
FCT v Dalco (1990) 168 CLR 614
Gauci v FCT (1975) 135 CLR 81
Kidston Goldmines Ltd v Commissioner of Taxation (1991) 30 FCR 77
Leda Manorstead Pty Ltd v CCSR  NSWSC 867
McCormack v FCT (1979) 143 CLR 284
Nixon v FCT (1979) ATC 4377
Penrith Rugby League Club Ltd v Commissioner of Land Tax  2 NSWLR 616
Zakariya v CCSR  NSWADT 26
The Taxpayer sought review of the Chief Commissioner’s land tax assessment requiring him to pay land tax in respect of his property at 82 St Marks Rd, Randwick (“the Randwick property”) for the 2013 land tax year. The taxpayer claimed at all times this property was his intended PPR and was exempt even though he occupied another residence which he owned while he was attempting to have a new residence built on the Randwick Property.
The Tribunal found the taxpayer’s intentions were relevant, but did not play a dominant role in determining which property was his PPR. The Tribunal held that, viewed objectively, his Panania property was his exempt PPR at the taxing date for the 2013 tax year, and he was not entitled to the PPR exemption for the Randwick Property.
The Taxpayer acquired the Randwick property on 26 November 1992 and lived there from early 1993 to September 2012. He has never obtained any income from the property. On 18 July 2011 the Taxpayer contracted with Cosmopolitan Homes Pty Ltd (“Cosmopolitan Homes”) for the demolition of the existing Randwick residence and the construction of a new residence.
Immediately before the demolition, the Taxpayer moved into another property he owned at 6 Rodgers Ave, Panania (“the Panania property”) while construction was occurring on the Randwick property.
Some site works were carried out on the Randwick property, but on 4 November 2011 Cosmopolitan Homes went into liquidation and the construction of the new residence ceased. The Taxpayer ultimately received an insurance payout and has only now retained a new builder with construction to recommence in the near future. Delays in recommencing the construction were due to health issues affecting family members.
The Taxpayer acknowledged that he changed his address with Roads and Maritime Services (“RMS”) to the Panania property address. In July 2012 his electoral roll address had also been changed.
On 23 September 2013 the Chief Commissioner issued an assessment in respect of the Randwick Property, which created a land tax debt in the sum of $11,950.65. The Taxpayer subsequently moved out of the Panania property, and since December 2013 has been used for storage.
The issues were:
which of the Randwick and Panania properties was the Taxpayer’s principal place of residence (“PPR”) on the taxing date for the 2013 tax year (ie midnight on 31 December 2012); and
whether the Taxpayer "...was entitled to have his actual use and occupation..."” of Panania taken into account for the purposes of determining which property was exempt for the 2013 tax year.
The application relies on the PPR exemption in clause 6 of Schedule 1A to the Land Tax Management Act 1956. Specifically, with reference to clause 6(7)(a) being:
"This clause does not apply in respect of land owned by a person if:
the person or any member of the person's family (within the meaning of clause 12) is entitled to have his or her actual use and occupation of other land taken into account under... this Schedule..."
The Taxpayer submitted that at all times his intention was to live in the Randwick property and not the Panania property; his move to the Panania property was temporary, and at no time did he use, or intend to use and occupy this property as his PPR. The Taxpayer stated that his decision to rebuild was made before he inherited the Panania property, and the fact that he changed his address to the Panania property was not determinative, nor was the Telstra bill dated 7 September 2013 which was addressed to him at Panania, nor the envelope re-addressed to the Panania property. He submitted that this temporary move was delayed by the liquidation of Cosmopolitan Homes and the payment of the insurance claim – delays beyond his control – and thus there was no reason why his intention should not be accepted.
With respect to clause 6(7), the Taxpayer submitted that this clause “speaks of entitlement and does not disqualify a taxpayer simply on the ground of occupying other land,” (at para 36), and the provision itself is beneficial because of the inclusion of the words “this Schedule” in clause 6(7). It would follow that unoccupied land, where the requirements of clause 6 were met, would continue to be deemed the owner’s PPR. The Taxpayer supported this submission with reference to the cases Kidston Goldmines Ltd v Commissioner of Taxation (1991) 30 FCR 77 and Penrith Rugby League Club Ltd v Commissioner of Land Tax  2 NSWLR 616 which advanced the beneficial construction of tax exemption provisions.
The Tribunal found the Taxpayer had satisfied the exemption requirements for a property intended to be the owner’s PPR set out in clauses 6(1), 6(2) and 6(3). However, the Taxpayer did not satisfy the crucial requirement in clause 6(7) that he must not be entitled to an exemption for his actual PPR.
The Tribunal confirmed that the principal place of residence definition in section 3(1) was an objective one. The Tribunal cited the following passage from Aronstan v Chief Commissioner of State Revenue  NSWADT 8:
“It is necessary that the original subjective intention of a person does in fact come to fruition for the original subjective intention to be accepted. The original intention, in any case, does not play a dominant role in the final determination of a person's principal place of residence”.
The Tribunal stated that even though clause 6 could be viewed as seeking to encourage house building, and for that reason merits a beneficial interpretation, clause 6(7) was plainly intended to limit the scope of the unoccupied land exemption, and isolating the words ‘this schedule’ from their context and purpose “provides no warrant for circumventing the plain intention of the provision” (at para 67).
Even though there is no reason to doubt the Taxpayer’s intention to reside at the Randwick property, the issue must be determined on an objective basis. The Taxpayer’s intention was taken into account but it was not the main consideration. The objective factors that were considered by the Tribunal included: his mailing address, the address on the Telstra bill, and the RMS and Electoral roll records. In addition the tribunal found that the Taxpayer’s intention to occupy the Randwick property as his PPR did not come to fruition by the taxing date; the cessation of construction and lack of occupation for two and a half years, including a year after the payment of the insurance claim, supported this conclusion.
The Tribunal concluded that the Taxpayer’s use and occupation of the Panania property must be taken into account under Schedule 1A within the meaning of clause 6(7)(a), and therefore the unoccupied land concession provided by clause 6 did not apply to the Randwick property.
The Chief Commissioner’s assessment of the Randwick Property was affirmed.
Link to decision
- ^ Theophilas v Chief Commissioner of State Revenue  NSWCATAD 100, . In Aronstan the Taxpayers temporary place of residence was treated as their PPR.