Neal v Chief Commissioner of State Revenue [2014] NSWCATAD 26

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Neal v Chief Commissioner of State Revenue [2014] NSWCATAD 26 Hearing dates: 5 October and 4 November 2013 Decision date: 14 March 2014 Before: N S Isenberg, Senior Member Decision: The decisions of the Chief Commissioner under review are affirmed. Catchwords: Land tax - principal place of residence exemption - onus of proof - whether intentional disregard of taxation law - penalty - s27(2) Taxation Administration Act 1996. Legislation Cited: Administrative Decisions Review Act 1997 (formerly Administrative Decisions Tribunal Act 1997)Civil and Administrative Tribunal Act 2013 Land Tax Management Act 1956 Taxation Administration Act 1996 Cases Cited: Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35 Jones v Dunkel (1959) 101 CLR 298 Manly Council v Byrne [2004] NSWCA 123 Touma v Chief Commissioner of State Revenue [2012] NSWADT 2 Category: Principal judgment Parties: Monica Mary Neal (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Mr D Farrar (Solicitor for the Applicant) Mr M Higgins (Counsel for the Respondent) Farrar Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 126126

reasons for decision

Background 1This matter commenced and the proceedings were heard by me in the Administrative Decisions Tribunal (ADT) in 2013 in accordance with the then Administrative Decisions Tribunal Act 1997. This decision is made by me in the Civil and Administrative Tribunal (this "Tribunal") in accordance with the Civil and Administrative Tribunal Act 2013 following the merger of the ADT into this Tribunal. 2At all relevant times the Applicant owned several properties and claimed a principal place of residence ("PPR") exemption from land tax in relation to a residential property she owned at Birchgrove ("the Birchgrove property") and a residential property of which she was a joint owner with a person referred to in this decision as Mr BB, at Huntley's Point ("the Huntley's Point property"). 3On 1 May 2012 the Respondent ("the Chief Commissioner") issued land tax assessment notices ("the Assessments") to the Applicant reversing the PPR exemption previously allowed to her in relation to both the above properties. The Assessment for the Huntley's Point property was for the tax years 2001 to 2009. The Assessment for the Birchgrove property was for the tax years 2000 to 2012. Both Assessments included 75% penalty tax and interest. 4On 3 July 2012 the Applicant objected to several aspects of the Assessments including the PPR exemption disallowance for the Birchgrove property for tax years 2000 to 2006 and the imposition of 75% penalty tax for the Birchgrove property for tax years 2000 to 2012 ("the Objections"). On 4 October 2012 the Commissioner disallowed the Objections. On 3 December 2012 the Applicant lodged with the ADT an application for review of the 4 October 2012 decision. On 17 July 2013 the Applicant lodged with the ADT an amended application seeking a review of "the imposition and amount of penalty tax imposed for land tax years 2000 to 2006" in respect of the Birchgrove property (and abandoning all other issues the subject of the 3 December 2012 application). In her amended application the Applicant relied on the grounds set out in the Objections. During the course of these proceedings the Applicant abandoned many of the grounds set out in the Objections.