The NSW Court of Appeal has by majority allowed the appeal of 2 taxpayers in relation to whether they were entitled to the principal place of residence (PPR) land tax exemption for the 2004 to 2008 land tax years.
The taxpayers owned the subject land. Before December 2002, and for a continuous period of at least 6 months, the taxpayers lived on the land in a mobile home and then a caravan. The taxpayers did not receive local council approval to do so. The Commissioner raised land tax assessments for the relevant years. However, the taxpayers claimed the PPR exemption on the basis that the land had been “used and occupied by the person as his or her principal place of residence for a continuous period of at least 6 months” per clause 8(1)(a) of Sch 1A to the Land Tax Management Act 1956 (NSW).
The majority of the Court (Basten JA and Gzell J) allowed the appeal. Broadly, they held that the exemption sought did not require that the use and occupation of the land must be lawful. However, the Court was unable to make final orders disposing [of] the question of liability as there was an outstanding issue not dealt with at first instance as to whether the taxpayers’ use and occupation of the land for the relevant years satisfied the definition of “residential land” per clause 3 of Sch 1A to the Land Tax Management Act. Accordingly, the matter was remitted to the NSW Administrative Decisions Tribunal for determination of that issue.
(De Marco & Anor v Chief Comr of State Revenue [2013] NSWCA 86, NSW Court of Appeal, McColl and Basten JA, Gzell J, 18 April 2013.
[LTN 75, 22/4/13]