Lo v Chief Commissioner of State Revenue [2012] NSWADTAP 12

Date of judgement 19 March 2012 Proceeding No. 201103051
Judge(s) Chesterman DP
S Frost
JM
Schwager NJM
Court or Tribunal Administrative Decisions Tribunal Appeal Panel
Legislation cited Administrative Decisions Tribunal Act 1997 - Section 88
Land Tax Management Act 1956 - Schedule 1A
Catchwords Land Tax – Principal Place of Residence – Costs
Cases cited Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41

Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57

Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184

Commissioner of Land Tax v Christie [1973] 2 NSWLR 526

Flaracos v Chief Commissioner of State Revenue [2003] NSWSC 68

Lo v Chief Commissioner of State Revenue [2011] NSWADT 224

Summary

This matter consisted of an appeal from Judicial Member Block's decision in Lo v Chief Commissioner of State Revenue [2011] NSWADT to affirm the Chief Commissioner's decision to refuse Patrick Pat Kit Lo (the taxpayer) an exemption from land tax under the Principal Place of Residence Exemption ("PPR") for the 2005 to 2009 land tax years.

On 19 March 2012 the Appeal Panel dismissed the appeal and made a presumptive costs order in favour of the Chief Commissioner.

Background

In the original Tribunal case (Lo v Chief Commissioner of State Revenue [2011] NSWADT 224), Judicial Member Block found that the taxpayer spent "11 days in Australia in the 2005 year, 14 days in the 2006 year, 15 days in the 2007 year, 14 days in the 2008 year and 33 days in the 2009 year" with the remainder of his time being spent in Hong Kong.

Ultimately, the Tribunal determined the original case on the basis that "[i]t is clear on the evidence before me that at no time during the relevant tax years did the Applicant occupy the Property as his principal place of residence. On the contrary he occupied an apartment in Hong Kong as his principal place of residence... ".

Decision

The Appeal Panel found that in considering the time the taxpayer had spent in Australia, Judicial Member Block had erroneously treated the 2005 to 2009 calendar years (rather than 2004 to 2008 calendar years) as being the relevant periods for the purpose of determining the taxpayer's tax liability with respect to land tax years 2005 to 2009. On this basis the Tribunal granted leave to extend the appeal to the merits under s. 113 (2)(b) of the ADT Act. Following a consideration of the evidence as to the limited number of days spent by the taxpayer in Australia during the relevant land tax years, the Appeal Panel concluded that the Tribunal's error was not of significance with respect to the 2006 to 2009 land tax years and was not enough to suggest that the Tribunal had arrived at the wrong result for land tax year 2005. The Appeal Panel consequently found that the identified error did not call for any interference with the Tribunal's decision.

The Appeal Panel noted that the taxpayer had selectively relied on certain passages from Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57 and Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41 as mandating the Appeal Panel's decision on the basis that some facts in those cases "resemble facts in the present case". The Appeal Panel found that other factual matters that relevantly distinguished the taxpayer's situation were "conveniently left out of the account". The Appeal Panel also reiterated the warning contained in Ferrington against applying the same interpretation of the phrase "principal place of residence" in two different statutory contexts, noting that the "range of factors to be considered under the First Home Owners Grant Act 2000 were very different to those arising under the Land Tax Management Act."

The Appeal Panel rejected one of the taxpayer's grounds of appeal that, in assessing whether the property was the taxpayer's PPR, the periods where the taxpayer's wife and son resided at the property without the taxpayer should be treated as equivalent to the periods of residence by the Applicant (Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 at [57]).

The Appeal Panel rejected the other 15 grounds of appeal on the basis that they were based on similarly incorrect assumptions, displayed a misunderstanding of the role played by various passages of the Tribunal's decision, were contrary to an Agreed Statement of Facts and thus were not open to challenge, were misconceived and lacking in substance and/or were manifestly without merit.

In considering the Chief Commissioner's costs application the Appeal Panel noted that "costs should generally be awarded against an appellant if the appeal had no reasonable prospects of success". The Appeal Panel found that an award of costs to the Chief Commissioner would appear to be fair as the appeal was "clearly unmeritorious".

The taxpayer has lodged an appeal with the Court of Appeal.

Link to decision

Lo v Chief Commissioner of State Revenue (RD) [2012] NSWADTAP 12

Last updated: 17 May 2016