Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133 Hearing dates: 1 September 2014 Decision date: 10 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Prof G D Walker, Senior Member Decision: The decision under review is affirmed. Catchwords: LAND TAX - power to write off WORDS AND PHRASES - "write off" - "unwarranted"-- "impracticable". Legislation Cited: Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Criminal Code (Cth);Land Tax Management Act 1955; Property Agents and Motor Dealers Act 2000 (Qld);Taxation Administration Act 1996 Cases Cited: Chief Commissioner of State Revenue (CCSR) v Paspaley [2008] NSWCA 184; Gunasti v CCSR [2012] NSWADT 218; In re South British Insurance Co [1980] ACLC 34419; Re el Sombrero [1958] Ch 900; Thornley v Heffernan [1995] ACL Rep 435 (NSW 4), BC 9505326; Volpatti v CCSR [2007] NSWADT 222. Texts Cited: Encyclopaedic Australian Law Dictionary Category: Principal judgment Parties: Sandra and Peter Loomes (Applicants) Chief Commissioner of State Revenue (Respondent) Representation: Counsel E Walker (Respondent) Peter and Sandra Loomes (Applicants in person) Crown Solicitors Office (Respondent) File Number(s): 1410178

reasons for decision 1The applicants Sandra and Peter Loomes applied to this tribunal on 10 April 2014 for review of a decision by the respondent to assess them for land tax in the sum of $3892 for the 2011 tax year. In terms the application sought review of the respondent's disallowance of their objection to the assessment, but as will appear below, the decision appealed from must actually be the original assessment decision. 2The facts of the case are not in dispute. The applicants are the registered proprietors of land situated at 18 Franklin Road, Cronulla, New South Wales, which they purchased on 5 November 2010 with the intention of making it their principal place of residence. They planned to demolish the existing dwelling on the land and construct a new one, remaining in their existing rental accommodation until construction was completed. 3On 22 November 2010, the applicants leased the land to relatives of a work colleague of Mrs Loomes who needed to find alternative accommodation while searching for a longer-term lease on a residence, paying rent to the applicants while occupying the land. After some months they found new accommodation and moved out of the land in mid-February 2011. 4The dwelling on the land was demolished on 10 March 2011 and construction continued through that year, the applicants moving into the new house on 25 November 2011, where they have lived ever since. 5On 7 November 2013, the Chief Commissioner wrote to the applicants asking them to complete a questionnaire for the purpose of determining the applicants' liability for land tax. Following completion of the questionnaire, the applicants were assessed for land tax in the amount of $3892 for the 2011 land tax year. 6The applicants lodged an objection to that assessment on 1 March 2014 claiming the principal place of residence (PPR) exemption and relying on the concession for unoccupied land intended to be an owner's PPR. The respondent disallowed the objection on 24 March 2014, indicating that as the applicants had leased the land, the unoccupied land exemption could not apply. The applicants then applied to this tribunal for review on the grounds of hardship and of failure to consider relevant legislation, specifically s 50 of the Land Tax Management Act 1956 (LTM Act), s 106A of the Taxation Administration Act 1996 (TA Act) and s 110 of the TA Act. 7At the hearing the applicants indicated that they no longer intended to rely on the PPR exemption and on the related unoccupied land concession, or on hardship, but would base their case solely on s 110. They sought a review of the Chief Commissioner's decision to impose the land tax, taking into account his powers under s 110 of the TA Act, and a finding that further action to recover the tax would be, in the circumstances, unwarranted. 8The issue in this case is therefore whether s 110 applies so as to empower the respondent, and by extension the tribunal, to write off the whole or any part of the applicants' unpaid land tax.