Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188

CITATION: Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188

DIVISION: Revenue Division

APPLICANT June Rose Tobin PARTIES: RESPONDENT Chief Commissioner of State Revenue

FILE NUMBER: 086140

HEARING DATES: 2 July 2009

SUBMISSIONS CLOSED: 2 July 2009

DATE OF DECISION: 20 July 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: Land Tax exemption- principal place of residence

LEGISLATION CITED : Land Tax Management Act 1956 Taxation Administration Act 1996

McNally & Anor v Commissioner of State Revenue [2003] NSWSC 1118 Mesiti v Chief Commissioner of State Revenue [2003] NSWADTAP 57 CASES CITED: Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 Chief Commissioner of Taxation v Ferrington [2004] NSWADTAP 41 Chief Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21

APPLICANT In person REPRESENTATION: RESPONDENT A Gerard, solicitor

ORDERS: The Land Tax assessment under review is confirmed.

REASONS FOR DECISION 1 June Tobin ('otherwise referred to as the Applicant') has applied to the Tribunal for the review of a decision of the Chief Commissioner of State Revenue ('the Respondent'), disallowing Mrs Tobin's objection to a notice assessing her as being liable for the payment of Land Tax on her property in Watsons Bay on the ground that it was not her principal place of residence at the relevant time. Background 2 Mrs Tobin and her husband, Brian Tobin, are the joint owners of a property in Mooyi Place, Giralang in the ACT purchased in June 1991 ('the Giralang property'). Mrs Tobin inherited a property in Cliff Street, Watsons Bay ('the Watsons Bay property') following her mother's death on 1 July 2004, and the property was transferred into Mrs Tobin's name in January 2005. 3 On 30 April 2008, the Respondent issued a Land Tax notice of assessment in respect of the Watsons Bay property for the Land Tax years 2006, 2007 and 2008 totalling $46,057.25 (plus interest) and nominating a date for payment of 10 June 2008. By letter dated 31 May 2008, Mrs Tobin objected to this assessment on the ground that she considered the Watsons Bay property to be her principal place of residence ('PPR'). 4 On 30 October 2008, a delegate of the Respondent decided to disallow the objection on the ground that the Giralang property was Mr and Mrs Tobin's PPR for the relevant Land Tax years. On 30 December 2008, Mrs Tobin lodged an application for a review of that decision by the Tribunal. The Relevant Legislation 5 Pursuant to section 100(3) of the Taxation Administration Act 1996, an applicant for review bears the onus of proving his/her case in the Tribunal. 6 During the relevant period, pursuant to sections 7, 8 and 9 of the Land Tax Management Act 1956 ('the LTM Act'), Land Tax was chargeable on the taxable value of land that was not exempt based on the ownership of the land as at midnight on the 31 December of each preceding year for which Land Tax was to be levied. Thus, Mrs Tobin, being the registered owner of the Watsons Bay property, was presumed to be liable for Land Tax on that land for the 2006, 2007 and 2008 Land Tax years based on her ownership of the land on 31 December of each preceding year, unless the land was exempt from tax. 7 Section 10(1) of the LTM Act provides, relevantly, that except where otherwise provided in the Act, certain lands shall be exempted from taxation under the Act, including: (r) land that is exempt from taxation under the principal place of residence exemption, as provided for by Schedule 1. 8 'Principal place of residence' is defined in section 3(1): " principal place of residence " of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person. 9 Schedule 1A of the LTM Act provides relevantly: 2 Principal place of residence exemption (1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing 1 January 2005 or any succeeding year, if the land is: