Perumal v Chief Commissioner of State Revenue [2015] NSWCATAD 85

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Perumal v Chief Commissioner of State Revenue [2015] NSWCATAD 85 Hearing dates: 14 April 2015 Decision date: 28 April 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: G Walker, Senior Member Decision: Application dismissed in part, to proceed to hearing in part. Catchwords: LAND TAX – principal place of residence concessions –applicability. Legislation Cited: Land Tax Management Act 1956 Cases Cited: Re Aston and Chief Commissioner of State Revenue [2006] NSWADT 148; Re Summerville and Chief Commissioner of State Revenue [2006] NSWADT 159. Category: Principal judgment Parties: Maximus Perumal (first applicant), Nikanthi Perumal (second applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: T Davy (Respondent) Solicitors: M Perumal (Applicant in person and represented second applicant) Crown Solicitor's Office (Respondent). File Number(s): 1410694

Judgment 1. The applicants Maximus and Nikanthi Perumal on 4 December 2014 applied to this tribunal for review of an assessment dated 8 August 2014 assessing the applicants as liable to pay the sum of $3455.35 in land tax for the 2013 land tax year. At a directions hearing on 10 March 2015 it was decided that a special hearing would be held to decide a preliminary point of law concerning the proper construction of the Land Tax Management Act 1956 (LTM Act). The preliminary hearing was held on 15 April 2015. 2. A statement of agreed facts was tendered at the hearing (exhibit R2). The agreed facts included the following. 3. The substantive proceedings concern the applicability of an exemption from land tax for a principal place of residence (PPR) in respect of two properties, Frederick Street, Killara (the former residence) and Ryrie Street, Mosman (the new residence). The applicants purchased the former residence on 12 August 1988 and entered into a contract to sell it on 13 December 2012. The sale was completed on 15 February 2013 and the transfer registered on 27 March 2013. 4. The applicants purchased the new residence on 15 January 2007, the transfer being registered on 21 February 2007. This residence was tenanted until about 20 July 2011. Sydney Water services were supplied to the new residence from 9 March 2012 to 30 June 2012 and 15 March 2013 to 30 June 2013. On 11 April 2012 the applicants entered into an agreement with Wales Built Pty Ltd to construct a new residence on the property. On 20 November 2012, AGL Ltd wrote to the applicants at the former residence confirming their gas supply connection to the new residence, and duly supplied gas to Mosman from 7 January 2013 to 19 March 2013. Energy Australia Ltd supplied electricity to the new residence from 8 January to 15 April 2013. Mosman Municipal Council issued a final occupation certificate for the new residence on 10 April 2013, and a home and contents insurance policy for it was issued by GIO Insurance on 24 April 2013. 5. The respondent issued a first land tax assessment for the 2013 tax year on 16 January 2013, which allowed the PPR exemption for the former residence and taxed the new residence for the 2013 tax year. On or about 21 February 2013 the applicants wrote to the respondent stating that the new residence at Mosman had been used and occupied as their PPR from 22 December 2012 and the former residence was sold on 13 December 2012. 6. The respondent applied the concession for sale of former PPR (schedule 1A, clause 7 of the LTM Act) to both the new residence and the former residence and issued a nil reassessment on 29 July 2013. 7. The respondent on 8 August 2014 issued a third assessment for the relevant tax year in the amount of $3455.35, which is the assessment in issue in the present proceedings. That assessment exempted the new residence (Mosman) and taxed the former residence (Killara) and was issued on the basis that the PPR concession under schedule 1A, clause 7 did not apply to Killara as the Mosman residence was not acquired with in the 6 month period preceding the relevant tax date as required by clause 7. 8. In subsequent correspondence the applicants contended that they should not be assessed for land tax for the 2013 tax year for the former residence at Killara as it was sold before the relevant tax date, contracts for sale having been exchanged on 13 December 2012. The respondent replied that while the former residence was sold within 6 months before the taxing date, the new residence at Mosman was not acquired within the 6 months preceding the tax date and was therefore ineligible for the concession under clause 7. The applicants lodged an objection to that assessment on 18 September 2014, which was disallowed on 7 October 20 214. Following receipt of a final notice for $3508, the applicants paid the sum outstanding on 15 October 2014.