Yang v Chief Commissioner of State Revenue [2013] NSWADT 123

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Yang v Chief Commissioner of State Revenue [2013] NSWADT 123 Hearing dates: 6 May 2013 Decision date: 31 May 2013 Jurisdiction: Revenue Division Before: Professor GD Walker, Judicial Member Decision: Decision under review affirmed. Catchwords: Land tax; principal place of residence; unoccupied land Legislation Cited: Land Tax Management Act 1956 Cases Cited: Cameron v Chief Commissioner of State Revenue (CCSR) [2009] NSWADT 64; CCSR v Ferrington [2004] NSWADTAP 41; Deane v Commissioner of Stamp Duties (No. 2) (1996) 2 QdR 557; FCT v Dalco (1990) 168 CLR 614; Ma v FCT (1992) 92 ATC 4373; Tobin v CCSR [2009] NSWADT 188; Warriewood Pty Ltd v FCT (1993) 93 ATC 4653. Category: Principal judgment Parties: Mr DD Yang (applicant) Representation: Counsel A.Gerard (Respondent) D Yang (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 126053

reasons for decision

Background 1The applicant Dong Dong Yang seeks review of a decision made by the Chief Commissioner of State Revenue under the Land Tax Management Act 1956 (LTM Act) that the applicant was not entitled to a principal place of residence exemption under clause 6 of Schedule 1A of the LTM Act in respect of his property 66 McGrath Ave, Five Dock, New South Wales. 2The controversy revolves around whether the Chief Commissioner's decision was correct in circumstances where the applicant asserts that the property was exempt from land tax for the 2011 land tax year on the ground that it should be taken to be his principal place of residence (PPR) for the purposes of the 2011 tax year in accordance with clause 6 (1) of Schedule 1A of the LTM Act. 3The answer to that question turns on the position as at 31 December 2010, but other time periods are also relevant to the question and on the matter of credit. 4The applicant on or about 23 October 1998 acquired 100 percent ownership of another property, 10/11-12 North Parade, Campsie, New South Wales. Subsequently, on or about 17 December 2001, the applicant acquired 100 percent ownership of the Five Dock property. According to an RTA search, he began residing at the Campsie property around 21 May 2007. 5On 30 December 2008, the applicant wrote to the Chief Commissioner seeking a "review" of the 2009 land tax year decision or assessment, which had not yet been made, in relation to Five Dock. In that document he indicated that he intended to move into the Five Dock property on 10 January 2009. 6On 15 January 2009, the Chief Commissioner issued to the applicant a land tax assessment notice in relation to, at least, the Five Dock property, for the 2009 land tax year. 7The applicant applied on 1 June 2009 for a reduction of land value on Five Dock as land partly used by the owner as PPR. In that document he indicated that he had occupied the Five Dock property for residential purposes and was either undertaking or intending to undertake complete demolition of the existing structure and rebuilding on the land. 8On 11 August 2009, the Chief Commissioner wrote to the applicant informing him that the 1 June 2009 application had been disallowed as he was already obtaining the PPR exemption in respect of the Campsie property. 9On 7 December 2009, the applicant lodged with Canada Bay Council a development application for the Five Dock property, which was approved. He then entered into a contract with Allcastle Homes Pty Ltd for the construction of a new house on the Five Dock land. Subsequently, on 26 December 2009, the applicant executed a 2009 land tax registration form and lodged it with the respondent. The In that document the applicant indicated that he "occupied" the Five Dock property from 20 September 2009.