Kolln v Chief Commissioner of State Revenue  NSWADT 127
|Date of judgement||31 May 2011||Proceeding No.||106041|
|Judge(s)||Judicial Member A Verick|
|Court or Tribunal||Administrative Decisions Tribunal|
|Legislation cited||Land Tax Management Act 1956 (LTMA)
Taxation Administration Act 1996
|Catchwords||Land Tax Exemption – Principal Place of Residence|
|Cases cited||Aronstan v Chief Commissioner of State Revenue  NSWADT 8
Chief Commissioner of State Revenue v White and anor  NSWADTAP 27
The applicants sought a review of the decision of the Chief Commissioner of State Revenue (“Chief Commissioner”) to disallow their objection to an assessment for land tax for the land tax years 2005 to 2009 in respect of land situated in Greenpoint Road, Oyster Bay, New South Wales ("the Greenpoint Road property").
At issue in these proceedings was whether the Greenpoint Road property was exempt from land tax in the relevant years under the concession for unoccupied land intended to be the owner's principal place of residence, pursuant to clause 6 of Schedule 1A to the LTMA. Judicial Member Verick upheld the Chief Commissioner’s decision that the concession did not apply.
The applicant and his wife, as tenants in common, acquired a lot in Shipwright Place, Oyster Bay, New South Wales ("the Shipwright Place property") in 1988. The applicant and his wife built a new house on the lot and occupied that property from July 1992 to 2009 land tax years, a period that included the relevant years.
The applicant became the owner of the Greenpoint Road property, a vacant lot, in 1993.
The applicant's case was essentially that he was entitled, in respect of the Greenpoint Road property, to the concession for the principal place of residence exemption under the combined effect of clauses 6 (Concession for unoccupied land intended to be owner’s principal place of residence) and 12 (Only one principal place of residence for all members of same family) of Schedule 1A of the LTMA in the relevant tax years.
In Aronstan v Chief Commissioner of State Revenue  NSWADT 8, a similar claim was made by the applicants. In rejecting the claim Judicial Member Verick set out the way the exemption provisions, in particular clauses 6 and 12 of Schedule 1A operate [see paragraph 22 of this decision].
In Chief Commissioner of State Revenue v White and anor  NSWADTAP 27, the Appeal Panel also considered the operation of clauses 6 and 12 and reached a similar conclusion. In relation to subclause 6(7)(a), the Appeal Panel said that the:
"...clear words of the statute say that if the respondents (ie the owners) are entitled to claim an exemption elsewhere, they may not take advantage of the 6(1) concession" [see paragraph 23 of this decision].
Further, in relation to clause 12 the Panel held that:
"[it] refers to the principal place of residence exemption rather than 6(1) concession... [Accordingly] unless necessity points to a wider reading, clause 12 must be read as limiting the operation of the principal place of residence exemption to, as the heading explains, 'only one ... for all members of the same family.'" [see paragraph 23 of this decision].
Judicial Member Verick stated [see paragraph 24 of this decision] that the applicant's claim could be rejected on the same basis as the claims in both Aronstan and White were rejected. In this matter, it was argued by the applicant that, under clause 6, in relation to the Greenpoint Road property, although it was a vacant lot in the relevant years, the owner is "taken" for purposes of the principal place of residence exemption to use and occupy the unoccupied land as his or her principal place of residence. Under clause 6, however, the exemption is only available if the owner is not entitled to have his or her actual use and occupation of other land taken into account under section 9C or under Schedule 1A. In the applicant's case, his own evidence was that during the relevant years he and his family used and occupied the Shipwright Place property as their residence. In terms of subclause 6(7)(a), the applicant was entitled to have his "actual use and occupation" of the Shipwright Place property taken into account under Schedule 1A. Accordingly, the applicant was not entitled to the concession available under clause 6. Judicial Member Verick confirmed that clause 12 did not assist the applicant either, as it only operates where a family has more than one residence in use and occupation as their principal place of residence. In this matter, the only residence that was used and occupied by the applicant was the Shipwright Place property in the relevant tax years [see paragraph 25 of this decision].
The Tribunal affirmed the Chief Commissioner’s assessment of the applicant's liability for payment of land tax in respect of the Greenpoint Road property for the relevant tax years.