Xin v Chief Commissioner of State Revenue [2024] NSWCATAD 333

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Xin v Chief Commissioner of State Revenue [2024] NSWCATAD 333 Hearing dates: 6 September 2024 Date of orders: 8 November 2024 Decision date: 08 November 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: S E Frost, Senior Member Decision: (1) Remit the assessment to the Respondent for recalculation of the amount of interest payable, so as to remove any interest imposed for the period 29 January 2020 to 9 September 2020. (2) All other components of the assessment are confirmed. Catchwords: TAXES AND DUTIES – Surcharge purchaser duty – Principal place of residence exemption not available – Interest – Penalty tax Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Duties Act 1997 (NSW) Taxation Administration Act 1996 (NSW) Cases Cited: Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 Texts Cited: Chief Commissioner of State Revenue, Commissioner's Practice Note – Interest and penalty tax guidelines (CPN 024, June 2022) Category: Principal judgment Parties: Rong Xin (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Northan Legal Pty Ltd (Applicant) Crown Solicitor (Respondent) File Number(s): 2024/00179565 Publication restriction: None

REASONS FOR DECISION

Summary 1. At issue in this case are the amounts of interest and penalty tax imposed on the Applicant, Rong Xin. 2. Ms Xin, who is not an Australian citizen, bought a townhouse in Castle Hill in 2019. She became liable to surcharge purchaser duty as a 'foreign person' because, as a non-citizen, she hadn't been in Australia during at least 200 days in the 12-month period prior to entering into the agreement to purchase. 3. Notwithstanding that prima facie liability, Ms Xin would have been entitled to an exemption from the surcharge if she had then lived in the townhouse, as her principal place of residence, for a continuous period of at least 200 days within the next 12 months after the date of the agreement. She failed to do that, and so the exemption was not available. 4. The Chief Commissioner assessed Ms Xin to the surcharge duty, plus interest and penalty tax. Ms Xin accepts the liability to the surcharge but seeks the removal or remission of the interest and penalty tax. 5. I have decided to remit the interest in part, but to confirm the assessment of penalty tax. My reasons follow.