Brataniec v Chief Commissioner of State Revenue [2013] NSWADT 65

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Brataniec v Chief Commissioner of State Revenue [2013] NSWADT 65 Hearing dates: 18 March 2013 Decision date: 27 March 2013 Jurisdiction: Revenue Division Before: Professor GD Walker, Judicial Member Decision: The decision under review is affirmed. Catchwords: Land tax - assessment - waiver - estoppel Legislation Cited: Land Tax Management Act 1956 Cases Cited: AGC (Investments) Ltd v FCT (1991) 91 ATC 4180 FCT v Ryan (2000) 201 CLR 109 FCT v Wade (1951) 84 CLR 105 Finance Facilities Pty Ltd v FCT (1971) 127 CLR 106 Gunasti v Chief Commissioner of State Revenue (CCSR) [2012] NSWADT 218 CCSR v Paspaley [2008] NSWCA 184 Volpatti v CCSR [2007] NSWADT 222 Category: Principal judgment Parties: Elizabeth Brataniec (Applicant) Stan Brataniec (Applicant) Leon Craymer (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel A Gerard (Respondent) S Brataniec (Applicant in person, with leave) Crown Solicitor's Office (Respondent) File Number(s): 136004

Reasons for decision

Background 1The applicants, Stan Brataniec, Elizabeth Brataniec and Leon Craymer seek review of three decisions of the Chief Commissioner of State Revenue made under the Land Tax Management Act 1956 (LTM Act) and the Taxation Administration Act 1996 (TA Act) requiring the applicants to pay land tax in respect of the property at 83 Del Monte Place, Copacabana, New South Wales (Del Monte Place), for the 2008, 2009, 2010, 2011 and 2012 land tax years. 2Before those assessments for the land tax years 2008 to 2012 were issued in October 2012, the applicants had not previously been assessed as liable to land tax for Del Monte Place. The issue raised by this application is whether, in those circumstances, the Chief Commissioner correctly raised the relevant land tax notices of assessment. 3Mr Leon Craymer acquired an interest in 183 Clovelly Rd, Randwick, New South Wales, on 16 May 1955. On 1 May 1999, Mr and Mrs Brataniec purchased a 100 percent interest in the property situated at 72 Maxwell St, South Turramurra, New South Wales. 4Since 1 May 2000, Mr and Mrs Brataniec have claimed a land tax exemption for the Maxwell Street property on the basis that it is their principal place of residence (PPR) . Mr Craymer has occupied the Clovelly Road property since 1 September 1936 as his PPR, and apparently still does. 5The applicants acquired Del Monte Place on 27 November 1981, with Mr Craymer holding a 50 percent interest as tenant in common, Mr and Mrs Brataniec each holding a 25 percent interest as joint tenants. 6The then Commissioner of Land Tax on 1 August 1994 issued a Land Tax Return Amnesty Notice (Exhibit R1, page 74) in respect of any land tax return filed before 31 October 1994. 7Apparently before 31 October 1994, Mr and Mrs Brataniec lodged a Land Tax-Initial Return document with the Commissioner for Land Tax (Exhibit R1, p.76). In it they disclosed their respective ownership interests in Del Monte Place as well as their ownership of other land within the State. 8On 22 November 1994 the Commissioner issued Mr and Mrs Brataniec with an assessment notice for the 1994 tax year based on their ownership of land at Chittaway Bay, New South Wales, and also at Rouse Hill, New South Wales. Their 1994 land tax liability did not include any amount referable to their joint 50 percent ownership of Del Monte Place. Between the lodging of the 1994 initial return and 16 August 2012 the Brataniecs and Mr Craymer did not lodge a land tax return in relation to Del Monte Place. 9The Chief Commissioner on 2 August 2012 wrote to Mr and Mrs Brataniec, and also to the three applicants jointly, asking them to complete a Land Tax Questionnaire (Exhibit R1, p.6). 10Mr Brataniec completed the questionnaire on 16 August 2012, disclosing his land ownership within the State and claiming a PPR exemption for the property located at 72 Maxwell St, South Turramurra (Exhibit R1, p.7). On the same date Mrs Brataniec completed a questionnaire to a similar effect, also claiming Maxwell Street as her PPR. Mr Craymer completed the questionnaire sent jointly to the applicants on 20 August 2012, claiming land tax exemption for Clovelly Road as his PPR (Exhibit R1, p.12). 11Having received the completed questionnaires, the Chief Commissioner issued to the applicants a Primary Land Tax Assessment Notice for the land tax years 2008 to 2012 (Exhibit R1, pp.16-19) in respect of their joint ownership of Del Monte Place in the amount of $15,030.65. A secondary notice of assessment in respect of all Mrs Brataniec's land holdings in New South Wales in the amount of $2,889.70 was issued (Exhibit R1,pp.24-41). A secondary notice of assessment in the same amount was also issued to Mr Brataniec. Mr Craymer has no secondary liability (Exhibit R1, p.86). 12All the applicants then lodged an objection to the primary notice, while Mr and Mrs Brataniec each lodged an objection to their respective secondary notices (Exhibit R1, pp.22-69). 13The Chief Commissioner on 12 November 2012 partly allowed the objections to the primary notice and the secondary notices in so far as they related to the imposition of interest for failure to lodge a land tax return in accordance with s.12(2) of the LTM Act. The Chief Commissioner disallowed, however, the applicants' objections to the assessment of their primary liability to land tax in relation to Del Monte Place for the tax years 2008 to 2012.