Delmege & Anor v Chief Commissioner of State Revenue [2014] NSWSC 1865

Supreme Court New South Wales

Medium Neutral Citation: Delmege & Anor v Chief Commissioner of State Revenue [2014] NSWSC 1865 Hearing dates: 31 March; 1, 2 April 2014 Decision date: 24 December 2014 Jurisdiction: Common Law Before: White J Decision: Refer to para [89] of judgment. Catchwords: TAXES AND DUTIES - land tax - exemptions and concessions - concession for unoccupied land intended to be owners' principal place of residence - Land Tax Management Act 1956 (NSW) s 10T - whether s 10T concession applicable to land used and occupied by persons other than owners of land during relevant land tax years - administration of land tax legislation - reassessments - Taxation Administration Act 1996 (NSW) s 9(3) - whether Chief Commissioner precluded from raising new assessments more than five years after initial assessment - meaning of full and true disclosure - whether tax liability assessed at lower amount than Chief Commissioner would have assessed if given full and true disclosure - whether taxpayer or Chief Commissioner bears onus of proving conditions in Taxation Administration Act 1996 (NSW) s 9(3)(b) which if satisfied permit Chief Commissioner to make reassessment more than five years after initial assessment STATUTORY INTERPRETATION - savings and transitional provisions - State Revenue Legislation Further Amendment Act 2003 (NSW) Schedule 4 cl 13 - whether transitional provisions had effect of continuing to apply provisions of the Land Tax Management Act 1956 (NSW) as in force immediately before 31 December 2003 to determine availability of s 10T concession Legislation Cited: Land Tax Management Act 1956 (NSW) Taxation Administration Act 1996 (NSW) State Revenue Legislation Further Amendment Act 2003 (NSW) Premium Property Tax Act 1998 (NSW) Income Tax Assessment Act 1936 (Cth) Income Tax and Social Services Contribution Assessment Act 1936-1955 (Cth) Cases Cited: Delmege v Chief Commissioner of State Revenue [2009] NSWSC 1052 M I M Holdings Ltd v Federal Commissioner of Taxation (1997) 36 ATR 108 Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 McAndrew v Federal Commissioner of Taxation (1956) 98 CLR 263 FJ Bloemen Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 360 Vines v Djordjevitch (1955) 91 CLR 512 Federal Commissioner of Taxation v S Hoffnung & Co Ltd (1928) 42 CLR 39 White Industries Australia Pty Ltd v Federal Commissioner of Taxation [2003] FCA 599; (2003) 129 FCR 276 Metricon Qld Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 982 Category: Principal judgment Parties: Maxwell Philip Delmege (1st Plaintiff) Narelle Patricia Delmege (2nd Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: C J Bevan (Plaintiffs) C Leggatt SC with I Young (Defendant)