Reolon v Chief Commissioner of State Revenue [2013] NSWADT 96

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Reolon v Chief Commissioner of State Revenue [2013] NSWADT 96 Hearing dates: March 5, April 17, 2013 Decision date: 06 May 2013 Jurisdiction: Revenue Division Before: Professor G.D. Walker, Judicial Member Decision: The decision under review is affirmed. Catchwords: Land tax - primary producer exemption - "land used for primary production" Legislation Cited: Land Tax Management Act 1956 Cases Cited: Abbott v Commissioner of Land Tax (1978) 38 LGRA 417; Ashleigh Developments Pty Ltd v. Chief Commissioner of Land Tax (CCSR) [2012] NSWADT 25; Hoxede Pty Ltd v CCSR [2011] NSWADT 251; Leda Manorstead Pty Ltd v CCSR [2010] 2010 NSWSC 23; Maraya Holdings Pty Ltd v CCSR [2013] NSWSC 23; Romano v CCSR [2011] NSWADT 73; Ryde Municipal Council v Macquarie University (1978) 139 CLR 633; Southern Estates Pty Ltd v FCT (1967) 117 CLR 481; Thomason v Chief Executive, Department of Lands (1994-95) 15 QCLR 286. Category: Principal judgment Parties: A.D. Reolon, applicant Chief Commissioner of State Revenue (respondent) Representation: Mr A.D. Reolon, (applicant in person) Mr El-Hage (respondent) Mr M. Twohill, Crown Solicitor's Office (respondent] File Number(s): 126098

reasons for decision

Background 1The applicant purchased the property 1378C Wiseman's Ferry Road, Maroota, New South Wales, being Lot 1 in DP 162911, in August 2008, the purchase being settled on 17 October 2008. The land area is 8.26 hectares or 20 acres. 2It is not disputed that the land is zoned as rural land, although local council rates are levied on a residential basis. It is common ground that the property is "rural land" within the meaning of s 10AA(4)(a) of the Land Tax Management Act 1956 (LTM Act). 3On 9 June 2010, the applicant lodged an "Application for Exemption -- Primary Production Land" claiming that he was entitled to the primary production exemption. In that application, he referred to his earlier application for the exemption dated 5 November 2009 in which he claimed that he was entitled to the exemption on the basis that the following activities were conducted on the land: (1)Apiary production, commencing on 25 September 2008; (2)Aquaculture, commencing on 20 July 2009; (3)Herb and vegetable production, commencing on 2 October 2009; (4)Cattle, poultry and goats, commencing 16 March 2010. 4By letter dated 21 October 2011, the Chief Commissioner informed the applicant that his claim for the primary production exemption had been denied because the dominant use of the land was not primary production. The Chief Commissioner averred that the house on the property was generating an annual rental income of approximately $21,840, such that the renting of the house was the dominant use of the land. The Chief Commissioner accordingly issued an assessment to the applicant (Exhibit R1, tab 8), requiring payment for the 2009 -- 2011 land tax years. 5By an undated longhand letter received by the respondent on 6 December 2011, followed by an e-mail dated 13 December 2011, the applicant objected to the assessment on the ground that he was entitled to the primary producer exemption. 6In his letter dated 16 July 2012, the Chief Commissioner disallowed the objection but applied the exemption to the 2012 tax year and issued a reassessment accordingly (Exhibit R1, Tab 20). 7The applicant then on 30 July 2012 applied for a review of the assessment of 21 October 2011 requiring payment of land tax for 2009 -- 2011.