Keness and another v Chief Commissioner of State Revenue [2014] NSWCATAD 17

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Keness and another v Chief Commissioner of State Revenue [2014] NSWCATAD 17 Hearing dates: 26 August, 25 October 2013 Decision date: 25 February 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Frost, Senior Member Decision: Land tax assessments for the land tax years 2008 to 2013 inclusive confirmed Catchwords: Land tax - principal place of residence - intention to use and occupy property as principal place of residence - delay in completion of construction of residence - whether delay principally due to reasons beyond the control of the owners Legislation Cited: Administrative Decisions Review Act 1997 (formerly Administrative Decisions Tribunal Act 1997) Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Land Tax Management Act 1956 Rivers and Foreshores Improvement Act 1948 State Revenue Legislation Amendment Act 2010 Taxation Administration Act 1996 Threatened Species Conservation Act 1995 Category: Principal judgment Parties: Jacob Keness and Alice Ma (Applicants) Chief Commissioner of State Revenue (Respondent) Representation: Counsel Mr A Gerard (Respondent) Mr J Keness (Applicant in person) I V Knight, Crown Solicitor (Respondent) File Number(s): 126103; 136062

reasons for decision 1ADMINISTRATIVE AND EQUAL OPPORTUNITY DIVISION (S FROST, SENIOR MEMBER): The Applicants have received land tax assessments in relation to land they own in Wallacia. The assessments cover the land tax years 2008 to 2013 inclusive, but because the assessments issued at different times there are two applications for review before the Tribunal. The first application (number 126103) concerns the land tax years 2008 to 2012 and the second (number 136062) concerns the 2013 land tax year. 2The Applicants claim that the land was exempt from land tax, for all the land tax years in dispute, under the "principal place of residence" (PPR) exemption. This is despite the fact that they had not used and occupied the land as their PPR at any stage up to and including 31 December 2012 (the taxing date for the 2013 land tax year). The reason they say it was exempt is that they intended to use and occupy it as their PPR. 3There is a general concession for owners who intend to use and occupy land as their PPR. It treats them in the same way as if they were in fact using and occupying the land as their PPR. The concession acknowledges that people who buy a block of land with the intention of building a house that they plan to live in, need time to get the house built. Under the law that applied at the relevant time, the Applicants were given a two-year concession period to get the construction finished. The concession period could be extended in some circumstances. The Applicants say that the concession period should be extended in their case so as to retain the exemption for the land tax years in question; the Chief Commissioner disagrees. 4The Applicants were unsuccessful in their objections to the land tax assessments. They then applied to the Administrative Decisions Tribunal (ADT) for review of the assessments. I heard the applications in the Revenue Division of the ADT on 26 August and 25 October 2013, at which time I reserved my decision. The ADT was merged into the New South Wales Civil and Administrative Tribunal (NCAT) on 1 January 2014 and as a result I am now authorised and required to determine the matter as a member of NCAT: clause 7(2) in Schedule 1 to the Civil and Administrative Tribunal Act 2013 (NCAT Act). Matters formerly dealt with in the Revenue Division of the ADT are now dealt with in the Administrative and Equal Opportunity Division of NCAT: s 96 of the Taxation Administration Act 1996 (TAA) and clause 3(1)(b) in Schedule 3 to the NCAT Act. 5The question for determination is whether the two-year concession period referred to in [3] above should be extended in the Applicants' case.