FVK v Chief Commissioner of State Revenue [2023] NSWCATAD 118

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FVK v Chief Commissioner of State Revenue [2023] NSWCATAD 118 Hearing dates: 14 February 2023 Date of orders: 03 May 2023 Decision date: 03 May 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: J S Currie, Senior Member Decision: (1) Each of the Chief Commissioner of State Revenue's assessments of land tax in respect of the 2019, 2020, 2021 and 2022 land tax years is affirmed. (2) The decision by the Chief Commissioner of State Revenue to impose interest on the land tax payable by the Applicant by reference to the market rate component is affirmed. (3) The decision of the Chief Commissioner of State Revenue to refuse to remit the premium component of interest on the land tax payable by the Applicant ("the premium component decision") is set aside and remitted for reconsideration by the Chief Commissioner for State Revenue in accordance with the following recommendation of the Tribunal. The Tribunal recommends that the premium component decision be re-considered by reference to the following matters in addition to any others the Chief Commissioner thinks applicable: (a) FVK's apparent acceptance, in her email of 11 January 2023 seeking an arrangement for instalment payments and at the hearing, of her liability to pay the full amount of the land tax as assessed; (b) the extent of cooperation demonstrated by FVK in providing relevant information to the Chief Commissioner to enable the assessments to be made; (c) the extent to which such cooperation occurred within a reasonable time after relevant requests for information by the Chief Commissioner; and (d) the extent to which FVK's failure to pay the assessed land tax on time and in particular, in accordance with the approved instalment plan, might not properly be regarded as an instance of wilful default, having due regard to her diagnosed mental health condition and her misunderstanding of the availability of the principal place of residence exemption. Catchwords: TAXES AND DUTIES – land tax – liability – exemptions – principal place of residence: Land Tax Management Act 1956 (NSW), section 3 and Schedule 1A, Part 2 – where Applicant regarded subject property as her ongoing principal place of residence and family home – where subject property occupied by tenants for substantial periods and Applicant resided in another property which she owned during relevant tax years TAXES AND DUTIES – land tax – liability – fairness – no duty on Chief Commissioner to warn of potential liability, advise land values – no discretion in Chief Commissioner to consider fairness in determining liability for land tax otherwise correctly assessed TAXES AND DUTIES – land tax – interest – imposition of interest comprising market rate component and premium component – criteria for application of premium component – whether criteria satisfied – Chief Commissioner's refusal to remit the premium component to be reconsidered Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss 9, 58, 63, 65 Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 36(1), 38(4) Land Tax Management Act 1956 (NSW), Part 3 generally, ss 3, 7, 8, 10(1)(r), 14(1), Schedule 1A Part 2 cl 2 Taxation Administration Act 1996 (NSW), ss 8, 21, 22, 25, 96, 100 Cases Cited: AES Wiring Pty Limited and AKS Distributions Pty Limited v Chief Commissioner of State Revenue [2012] NSWADT 11 B & L Linings Pty Limited v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 Chief Commissioner of State Revenue v Aldridge (RD) [2003] NSWADTAP 50 Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41 Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19 Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 Commissioner of Taxation v Ryan (2000) 201 CLR 109; [2000] HCA 4 Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 Deans v Chief Commissioner of State Revenue [2022] NSWCATAD 14 Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614; [1990] HCA 3 Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81; [1975] HCA 54 Gunasti v Chief Commissioner of State Revenue [2012] NSWADT 218 Hashim v Chief Commissioner of State Revenue [2020] NSWCATAD 67 Levitch Design Associates Pty Ltd ATF Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215 Monisse v Chief Commissioner of State Revenue [2022] NSWCATAD 276 Monisse v Chief Commissioner of State Revenue [2023] NSWCATAP 27 Raissis v Chief Commissioner of State Revenue [2021] NSWCATAD 99 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Strathavon Resort Pty Ltd v Chief Commissioner of State Revenue (2017) NSWCATAD 200 Valencia v Chief Commissioner of State Revenue [2017] NSWCATAD 261 Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773 Yen-Cheng Chuang v Chief Commissioner of State Revenue [2009] NSWADT 160 Category: Principal judgment Parties: FVK (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Solicitors: Applicant (self-represented) Crown Solicitor (Respondent) File Number(s): 2022/00318421 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication and/or disclosure of the name of the Applicant is prohibited.