Chandrala v Chief Commissioner of State Revenue [2021] NSWCATAD 50

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chandrala v Chief Commissioner of State Revenue [2021] NSWCATAD 50 Hearing dates: 3 December 2020 Date of orders: 5 March 2021 Decision date: 05 March 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: R Hamilton SC, Senior member Decision: The respondent's decision is affirmed Catchwords: Taxes and Duties – Land Tax – primary production exemption – use of land – applicant's onus of proof – failure to discharge Legislation Cited: Land Tax Management Act 1956 Taxation Administration Act 1996 Cases Cited: Leda Manorstead v Chief Commissioner of State Revenue [2010) NSWSC 867 Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656 Chief Commissioner of State Revenue v Metricon Qld Pty Ltd [2017] NSWCA 11 Saville v Commissioner of Land Tax 81 ATC 4373 Warriewood Valley Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 270 Category: Principal judgment Parties: Viswanadham Chandrala (Applicant) Chief Commissioner of State of Revenue (Respondent) Representation: Counsel: Solicitors: V Chandrala (Self represented – Applicant) Crown Solicitors Office (Respondent) File Number(s): 2020/227090

REASON FOR DECISION 1. This matter involves a claim for exemption from land tax for the 2020 land tax year for rural land situated in Vineyard NSW. 2. The applicant claims that the land was used for primary production, being cultivation of that land for the purpose of selling the produce of cultivation. The cultivation claimed was that of an orchard and/or a market garden. 3. The applicant purchased the land in August 2019 in a liquidation sale. It was in run down condition. The land area is 6.07 ha. It is zoned RU 2 (primary production small lots). The land is flood prone. About 0.1 of a hectare is suitable for residential use. There was a burned-out house on this area of land. About 0.8 ha was previously used as an orchard and as a market garden. The applicant's evidence was that there are were approximately 380 to 400 Nashi pear trees on the property which had been allowed to decline. 4. In October 2019 the applicant entered into the First Lease for a 14 month period for the purpose of growing vegetables and other agricultural purposes. The tenant was required to maintain the fences and repair the front gate. 5. In the period October to December 2019 asbestos was removed on the from the "house block", and the following reports were prepared: bushfire assessment, on-site waste management, and arborist. In January 2020 the applicant lodged a development application with the Council for construction of a new residence on the land. 6. Although the First Lease was entered to into in October 2019, rent for the first 2 months was waived, but 2 months rent was paid which presumably satisfied the tenant's obligations for December 2019 and January 2020. There is virtually no evidence to establish that work was performed by the tenant under the First Lease. The tenant apparently abandoned the lease in February 2020. 7. In March 2020 the applicant entered into a Second Lease of 3 years for growing produce and the lease documents (Sch 4) noted that the land was in run down condition and that the orchard needed pruning and maintenance. 8. The tenant under the Second Lease then proceeded to repair and tidy up the agricultural land and engaged in pre-lodgement discussion with the Council for a DA to convert part of the former market garden to a hydroponic farm with ancillary temporary structures.