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Lloyd v Chief Commissioner of State Revenue [2016] NSWCATAD 230

Date of judgement 12 October 2016 Proceeding No. 1610275
Judge(s) S Frost, Senior Member
Court or Tribunal New South Wales Civil and Administrative Tribunal
Legislation cited Land Tax Management Act 1956

Taxation Administration Act 1996
Catchwords REVENUE – land tax – principal place of residence – property not used and occupied by owner – concession for unoccupied property – conditions for exemption not met – exemption not available – land tax assessments confirmed
Cases cited Cornish Investments Pty Ltd v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25

Background

The Applicants purchased the Property in October 2012. As the house on the Property was in derelict condition, the Applicants intended to demolish and rebuild the house prior to moving into it. The applicants claimed that land was exempt under clause 6 of Schedule 1A of the Land Tax Management Act (unoccupied land intended to be owner’s principal place of residence).

However, upon realising the considerable expense required to build a new home, the Applicants decided to partially renovate the existing house. The Applicants commenced renovations in early 2013 and ceased renovations after approximately one year.

The Applicants rented out the Property between March 2014 and June 2015, and lodged the rental bond with the Rental Bond Board. The Chief Commissioner was notified and land tax assessments were issued in July 2015 for the 2013, 2014 and 2015 land tax years. The applicant’s objections to the assessments were disallowed, and they sought a review of the assessments by the Tribunal.

From June 2015, the Applicants’ son resided in the Property.

Statutory Framework

A person’s principal place of residence (PPR) is exempt from land tax, by virtue of s 10(1)(r) of the LTM Act, in combination with clause 2 in Schedule 1A. To attract the exemption, the land must be ‘used and occupied’ as the owner’s principal place of residence.

If the land is not actually used and occupied as the owner’s PPR, clause 6 of Schedule 1A allows an owner to claim the land as his or her PPR if additional criteria in clause 6(2) and 6(3) are met.

Subclause 6(2) states that the concession for an intended PPR does not apply unless:

  1. the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence, and

  2. if those building or other works have physically commenced on the land, no income has been derived from the use and occupation of the land since that commencement, and

  3. the intended use and occupation of the land is not unlawful.

Subclause 6(3) provides that an exemption under clause 6 only applies for:

  1. (a) the 4 tax years immediately following the year in which the person became owner of the land, or

  2. (b) if the land is used and occupied for residential purposes by a person other than the owner at any time after the person became owner, 4 tax years immediately following the tax year in which the building or other works necessary to facilitate the owner’s intended use and occupation of the land are physically commenced on the land.

Decision

Senior Member Frost determined that the Applicants failed to establish that several of the statutory requirements for the exemption were satisfied for the 2013 and 2014 land tax years. The property was unoccupied on the taxing dates for the 2013 and 2014 tax years, but was let to a tenant in March 2014. No evidence was presented to support their stated intention to knock down and rebuild, and no development application was lodged with the relevant Council. Nor was an explanation given of the work carried out or intended to be carried out to facilitate their intended use and occupation of the Property as their principal place of residence in accordance with cl. 6(2)(a).

For the 2015 land tax year, the Tribunal found that the Applicants had failed to establish that the Property was “unoccupied” in accordance with cl. 6(1) because as at the taxing date, 31 December 2014, the Property was tenanted.

Orders

The Chief Commissioner’s land tax assessments for the 2013, 2014 and 2015 land tax years were affirmed. There was no award of costs.

Link to decision

Lloyd v Chief Commissioner of State Revenue [2016] NSWCATAD 230

Last updated: 2 May 2017