Middleton v Chief Commissioner of State Revenue [2022] NSWCATAD 411

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Middleton v Chief Commissioner of State Revenue [2022] NSWCATAD 411 Hearing dates: 1 December 2022 Date of orders: 22 December 2022 Decision date: 22 December 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: S E Frost, Senior Member Decision: The surcharge land tax assessments are confirmed. Catchwords: TAXES AND DUTIES – Land tax – Surcharge land tax – Foreign person – temporary visa holder Legislation Cited: Land Tax Act 1956 (NSW) State Revenue Legislation Amendment (Budget Measures) Act 2016 (NSW) Duties Act 1997 (NSW) Foreign Acquisitions and Takeovers Act 1975 (Cth) Cases Cited: Li v So [2019] VSC 515 Galle v Chief Commissioner of State Revenue [2022] NSWCATAD 285 Texts Cited: 'Foreign Purchaser Surcharge', Taxation in Australia, Vol. 51(2) Category: Principal judgment Parties: Stuart Middleton (First Applicant) Deborah Middleton (Second Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: O Berkmann (Respondent)

Solicitors: First Applicant (Self Represented) Second Applicant (Self Represented) Crown Solicitor (Respondent) File Number(s): 2022/00235771 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This dispute is about surcharge land tax (SLT), which has been assessed to Mr and Mrs Middleton, the applicants, in respect of the 2018 land tax year. 2. The land the subject of the assessments is a parcel of residential land in Harrington Park. The applicants bought the property as a vacant block in 2016. They built a house on the property and have lived in the house, as their principal place of residence, since May 2018. They have been entitled to the principal place of residence land tax exemption for every land tax year since they became the owners. 3. Nevertheless, the Chief Commissioner took the view that Mr and Mrs Middleton were liable to SLT for the 2018 land tax year because they were in Australia on temporary visas. According to the Chief Commissioner, that meant they were not 'ordinarily resident' in Australia and so were liable to the surcharge. 4. The applicants both objected to the assessments on the ground that the surcharge did not exist when they exchanged contracts on the purchase of the property. They say the tax cannot apply to them. 5. I have concluded that the assessments of surcharge land tax are correct and must be confirmed. Following are my reasons for reaching this conclusion.