In a decision handed down on Tue 18.6.2013, the NSW Court of Appeal dismissed a taxpayer’s appeal against an earlier decision which had refused the taxpayer’s claim for the principal place of residence (PPR) land tax exemption for the 2005 to 2009 land tax years (inclusive).
The taxpayer was assessed as liable for land tax for the relevant years in respect of a residential property that he owned at the relevant times for assessment. The Commissioner refused the taxpayer’s claim for the PPR exemption and that decision was affirmed by the NSW Administrative Decisions Tribunal and the Appeal Panel of the ADT. On appeal, the taxpayer contended that the Appeal Panel had erred in treating the short periods of his presence in Australia as conclusive of [him not being entitled] to the exemption. (The taxpayer worked full time in Hong Kong and lived in rented accommodation with his wife, which was paid for by his employer.) He also contended that the Appeal Panel erred in law in failing to take into account various factors in determining whether the property was his PPR (eg taxpayer was brought up in Australia, he had his wedding ceremony in Australia, the property was not leased at any time, the property was not used or occupied by any person other than his wife and son at any time, etc).
The Court of Appeal found the Appeal Panel had not treated the shortness of the periods of the taxpayer’s presence in Australia as conclusive, but rather, it found the Appeal Panel had considered the shortness of the periods which the taxpayer could have spent at the property as of considerable significance, of which it said was something the Appeal Panel was entitled to do. In relation to the second ground, the Court of Appeal said the Land Tax Management Act 1956 (NSW) does not expressly require the decision maker to take into account any of the matters upon which the taxpayer relied upon. In relation to 2 factors, which the Act impliedly required the decision maker to take into account, the Court of Appeal found the decision maker did have regard to those matters.
(Lo v Chief Comr of State Revenue [2013] NSWCA 180, NSW Court of Appeal, Beazley P, Basten JA, Macfarlan JA, 18 June 2013.)
[LTN 115, 18/6/13]