Uechtritz v Chief Commissioner of State Revenue [2013] NSWADT 111

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Uechtritz v Chief Commissioner of State Revenue [2013] NSWADT 111 Hearing dates: 14 May 2013 Decision date: 22 May 2013 Jurisdiction: Revenue Division Before: Professor G.D. Walker, Judicial Member Decision: Application 126020: decision under review set aside Application 136005:settled, dismissed Catchwords: Land tax-principal place of residence-relevant period--days spent at property-passenger card-official records not altered-unusual circumstances Legislation Cited: Land Tax Management Act 1956 Cases Cited: Aldridge v Chief Commissioner of State Revenue [2003] NSWADTAP 50; Black v CCSR [2011] NSWADT 66; Flaracos v CCSR [2003] NSWSC 68 (revised); Leda Manorstead Pty Ltd v CCSR [2010]NSWSC 867; CCSR v McIlroy [2009] NSWADTAP 21. Category: Principal judgment Parties: Richard A. Uechtritz, (Applicant) Chief Commissioner of State Revenue, (Respondent) Representation: Counsel B L Jones (Applicant) D Mitchell (Respondent) Sekel Oshry Lawyers (Applicant) Crown Solicitors Office (Respondent) File Number(s): 126020 136005

reasons for decision

Background 1These two matters were listed for hearing together on 14 May 2013. Shortly before the hearing, however, the respondent withdrew his opposition to application number 136005, which accordingly did not proceed. Part of the evidence filed before the hearing is thus no longer relevant. 2In matter number 126020, the applicant Richard Anders Uechtritz seeks review of a decision of the respondent Chief Commissioner of State Revenue to assess him as liable to pay land tax for the 2011 tax year in respect of his property at 7 Brownell Drive, Byron Bay, New South Wales. The applicant claims to be entitled to an exemption in respect of that property under s 10(1)(r) of the Land Tax Management Act 1956 (LTM Act). He maintains that the Byron Bay property is his principal place of residence (PPR) within the meaning of clause 2 (2)(b) of schedule 1A of the LTM Act because it was used and occupied by him as his PPR on 31 December 2010. 3The respondent contends that the applicant's PPR was in fact another property owned by him, 17 Ebsworth Road, Rose Bay, New South Wales. 4The initial decision was made on 4 November 2011. An objection to the decision was lodged on 15 November 2012 under cover of a letter from the applicant's accountants. The objection was disallowed on 11 January 2012 on the basis that the respondent considered that the applicant's principal place of residence was the Rose Bay property. The review application was filed on 9 March 2012. 5The facts and the applicable law are generally not disputed. The controversy revolves around the interpretation of those facts and the relative weight to be given to them. 6As the photographs and ground plan (exhibit R5) show, the Rose Bay house is a substantial modern property and occupies approximately 585 square metres of land. It had an unimproved value of $1,670,000 for the 2011 land tax year. Even during the 2011 land tax year, after the applicant states that he moved to Byron Bay, Rose Bay remained fully furnished and the applicant did not move any of the furniture from it to the Byron Bay residence, which was already well furnished as he had agreed to buy the furniture from the outgoing vendor. The applicant and his wife also continued to maintain separate wardrobes at Rose Bay. 7It is not disputed that the Rose Bay house was the PPR of the applicant's son, a university student at the time, and his daughter who was at high school and preparing for the Higher School Certificate during the year in dispute. 8As the photographs (Exhibit A5) show, the Byron Bay property is also a more than commodious residence having in addition an office and a stand-alone self-contained apartment at the front which the applicant rented out for vacation rentals until 23 November 2011. The property stands on approximately 700 square metres of land and had an unimproved value of $4,400,000 for the 2011 tax year. The applicant concedes that he used it as a holiday home until October 2010. 9The applicant is a successful businessman who before retiring in May 2010 was chief executive officer, and later a director of, JB HiFi Ltd, a large retail chain based in Melbourne. During the relevant tax year he was a board member of Seven Group Holdings Ltd, which has its head office in Sydney. The applicant also has a charitable foundation, L and R Uechtritz Foundation, which patronizes the arts, that requires him to travel to Sydney and Melbourne. The applicant was also a director, together with his wife, and secretary of Uechtritz Nominees Pty Ltd and Uechtritz Foundation Pty Ltd, both of which had the Rose Bay property as their principal place of business. During the 2011 tax year Mr Uechtritz travelled extensively for work, family, medical and recreational purposes. 10In November 2010, he purchased a house in Glenview Street, Paddington and began making preparations for renovating it as a new "Sydney base" following the intended sale of Rose Bay. This commitment also required him to travel to Sydney to attend planning meetings and for similar purposes.