Barsoum v Chief Commissioner of State Revenue

[2020] NSWCATAD 282

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Barsoum v Chief Commissioner of State Revenue [2020] NSWCATAD 282

Hearing dates:

12 August 2020

Date of orders:

16 November 2020

Decision date:

16 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N S Isenberg RFD, Senior Member

Decision:

(1) The decision under review is affirmed.

(2) If the Respondent wishes to pursue an application for costs of this matter:

(a) the Respondent shall give to the Tribunal and to the Applicant, within 7 days after publication of the decision in these proceedings, his written submissions, not exceeding 5 pages in length, together with evidence in support of his application and state why the Tribunal should not determine the question of costs without an oral hearing.

(b) the Applicant shall give to the Tribunal and to the Respondent, within 7 days after the date determined by the immediately preceding paragraph, his written submissions and submissions in reply to the Respondent’s submissions, not exceeding 5 pages in length, together with evidence in support of his submissions, and state why the Tribunal should not determine the question of costs without an oral hearing.

(c) the Respondent shall, within 7 days after the date determined by the immediately preceding paragraph, give the Tribunal and the Applicant any submissions in reply to the Applicants’ submissions, not exceeding 3 pages in length, together with evidence in support of his submissions in reply.

(d) I direct that:

(i) the above page length in respect of submissions and submissions in reply (Submissions) does not include cover sheets;

(ii) the Submissions shall be in a typeface that is no smaller in appearance than an Arial font in 11 point size or a Times New Roman font in 12 point size, and the lines of typing shall be at least 1.5 lines spacing from each other.

(iii) in making their Submissions the parties shall have regard to the provisions of ss 50 and 60 of the CAT Act; and

(iv) the Submissions shall replace all oral and written submissions made by either party in relation to costs prior to the date of publication of these orders / directions.

Catchwords:

MERITS REVIEW – STATE TAXES – surcharge land tax – onus - foreign person – ordinarily resident in Australia - actually been in Australia.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Duties Act 1997 (NSW)

Foreign Acquisitions and Takeovers Act 1975.(Cth)

Land Tax Act 1956 (NSW)

Land Tax Management Act 1956 (NSW)

Liquor Act 1982 (NSW)

Payroll Tax Act 2007 (NSW)

Taxation Administration Act 1996 (NSW)

Cases Cited:

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481

Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25

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

Gao v Chief Commissioner of State Revenue [2020] NSWCATAD 216

O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Samy Hanna Kamel Barsoum (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Counsel:
D. Lewis (Respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00108155

Publication restriction:

No restriction

REASONS FOR DECISION

Background

1. On 19 March 2020 an officer of Revenue NSW issued a written notice on behalf of the Respondent (the Chief Commissioner) to Mr Barsoum. The notice informed Mr Barsoum that his objection to a 2017 surcharge land tax assessment (the Assessment) was disallowed on the basis that Mr Barsoum was a foreign person for the purposes of the Land Tax Act 1956 (NSW) (LT Act) for the 2017 tax year.

2. These proceedings concern an application by Mr Barsoum for an administrative review by the Tribunal of the disallowance of his objection (the Application).

3. There is no dispute that the property the subject of the Assessment is a residential property situated in Sydney owned at all relevant dates by Mr Barsoum.

4. Mr Barsoum claims that, for several reasons set out in his written communications to the Chief Commissioner and his written and oral communications to the Tribunal, he was not a foreign person and is not liable for surcharge land tax on the property for the 2017 land tax year.

Material before the Tribunal

Mr Barsoum’s documents and oral representations

5. Mr Barsoum is a Sydney solicitor who practices as a sole practitioner under the registered business name “Australia Legal”. For convenience I have from time to time in these Reasons referred to communications to or from “Australia Legal” as being to or from Mr Barsoum.

6. In these proceedings Mr Barsoum relied on:

1. The Application dated and filed with the Tribunal on 6 April 2020. Attached to the Application were several documents including:

1. A letter dated 15 September 2016 to Mr Barsoum from the Chief Registrar, High Court of Fiji (Fiji High Court letter).

2. An email sent to Mr Barsoum by the Chief Commissioner on 15 November 2019 at 7:32 a.m., thanking Mr Barsoum for unidentified “additional information” and informing him that an attached land tax assessment notice was “reissued without surcharge”.

3. The Assessment issued to Mr Barsoum as an attachment to an email sent by the Chief Commissioner on 15 November 2019 at 9:57 a.m. headed “land tax assessment – corrected as per Movement records” in the sum of $12,145.65.

4. A Land Tax Assessment Notice issued to Mr Barsoum on 16 November 2019 by Revenue NSW for the 2017, 2018 and 2019 land tax years.

5. A Revenue NSW document headed “LAND TAX NOTICE: PAYMENT IS OVERDUE” issued 6 January 2020 addressed to Mr Barsoum stating $12,172.45 is overdue and the amount has and will continue to increase due to interest until the amount is paid in full.

6. Mr Barsoum’s objection dated 9 January 2020 (referred to from time to time as “January letter” or “objection”).

7. Letter dated 19 March 2020 from Revenue NSW to Mr Barsoum disallowing Mr Barsoum’s objection.

8. Letter to the Tribunal dated 6 April 2020 on the letterhead of Australia Legal signed by Mr Barsoum (the April letter). The letter sought a review of a decision made by a named officer of the Respondent “on 19 March 2020 regarding a disputed Land Tax Surcharge Notice for the Land Tax year 2017 issued on Mr Barsoum on or about 15 November 2019”.

2. Email received by the Tribunal from Mr Barsoum on 2 July 2020. Attached were:

1. An undated document signed by Mr Barsoum headed “Applicant’s Statement of Evidence” with pages marked 1 – 9 (Exhibit A1). This Statement refers to annexed documents marked A – E, E1 and F – M. Annexed are several pages of documents numbered 10 – 36 containing documents with the said markings. I observe that some of the annexed documents are legible, others are substantially illegible.

2. An undated 17 page document headed “Applicant’s Outline of Submissions” (AOS) signed by Mr Barsoum.

3. An undated 7 page document headed “Applicant’s Reply to the Respondent’s Submissions” signed by Mr Barsoum received by the Tribunal on 3 August 2020.

4. Mr Barsoum’s oral evidence and oral submissions to the Tribunal on his own behalf.

5. An 11 page document headed “Applicant’s List of Authorities” filed with the Tribunal on 28 September 2020. The document referred to 16 Australian and British judicial decisions, s 5A Foreign Acquisitions and Takeovers Act 1975 (Cth) (FAT Act) and s14(1) Land Tax Management Act 1956 (NSW) (LTM Act) (Applicant’s List). The document contained the extracted legislation and some but not all the excerpts referred to in the index at the front of the List; did not include citations for all the decisions referred to; and sought to rely on the “whole authority” in 10 of the 16 decisions in addition to identified extracts.

The Respondent’s documents and oral representations

7. The Respondent relied on:

1. A bundle of 87 pages, together with an index, filed 15 May 2020 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (Exhibit R2).

2. A bundle of 15 pages, described as “Respondent’s Tender Bundle” filed with the Tribunal on 20 July 2020 (Exhibit R1) (RTD).

3. Nine pages described as “Respondent’s Outline of Submissions”, filed 20 July 2020 (RS).

4. A bundle comprising 195 pages, which together with an index, was described as “Respondent’s List of Authorities”, filed 23 July 2020.

8. Oral representations made to the Tribunal by Mr Lewis on behalf the Respondent.

9. All references to written submissions of the Chief Commissioner are to numbered paragraphs of RS unless stated to the contrary.

Consideration

10. For convenience, references in these reasons to “2016” or “2017” are respectively to the 2016 calendar year or the 2017 calendar year, unless the context indicates a contrary intention.

The role of the Tribunal

11. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The objects of the CAT Act include enabling the Tribunal to review and determine appeals against decisions made by certain persons and bodies; enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; and ensuring that the Tribunal’s processes are open and transparent (ss 3(b)(ii) and (iii), 3(d) and 3(f)).

Jurisdiction of the Tribunal

12. Section 28 of the CAT Act provides “The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.”

13. There is no dispute that the Tribunal is empowered to review the Assessment (ss 9 and 55 of the ADR Act and s 96 of the Taxation Administration Act 1996 (NSW) (TA Act). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.

Issues

14. The Application sought a review of the disallowance of Mr Barsoum’s objection. In Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 the Court of Appeal said at [28]:

… the right of review under s 97 is given by reference to the operative decision of the Chief Commissioner and not to a ruling made on an objection. Although the existence of an objection is a necessary precondition to the power of review by the Court, and it is the taxpayer’s dissatisfaction with the determination of the objection which provides standing to seek review, it is the initial decision which is the subject matter of the review.

15. Section 96 of the TA Act provides the jurisdictional power of administrative review by the Tribunal which is commensurate with the Supreme Court’s jurisdictional power in s 97.

16. There is no dispute that:

1. Mr Barsoum was dissatisfied with the disallowance of his objection; and

2. it is the Assessment, not the disallowance of the objection to the Assessment, which is the subject of review by the Tribunal in these proceedings.

Substantive law

17. Mr Lewis, on behalf of the Chief Commissioner, succinctly extracted relevant substantive law and summarised the effect of that law under the heading “Legislative Scheme” at [4] to 10] in RS as follows:

4. For the 2017 land tax year, s 5A of the LTA relevantly provided:

(1)   Land tax is payable under this section in respect of residential land owned by a foreign person {surcharge land tax).

(2)   In respect of the taxable value of all the residential land owned by the foreign person at midnight on 31 December in any year (commencing with 2016), surcharge land tax is to be charged, levied, collected and paid under the provisions of the Principal Act and in the manner prescribed under that Act for the period of 12 months commencing on 1 January in the next succeeding year at the rate of 0.75% of that taxable value as assessed under the Principal Act.

(3)   Surcharge land tax is payable in addition to any land tax payable in respect of the residential land under the other provisions of this Act and is so payable even if no land tax is payable under those other provisions.

(4)   The Principal Act applies to surcharge land tax in respect of residential land owned by a foreign person subject to the following:

(a)   surcharge land tax is payable as if the residential land were the only land owned by the foreign person,

[... ]

(g) the residential land is not exempt from surcharge land tax because it is the principal place of residence of the foreign person (and accordingly sections 9C and 9D of the Principal Act do not operate to reduce the land value of the residential land if it is the principal place of residence of the person),

(h)   the tax thresholds under Division 4A of Part 7 of the Principal Act do not apply to surcharge land tax

[... ]

(6)   In this section:

foreign person and residential land have the same meanings as in Chapter 2A of the Duties Act 1997.

5. The "Principal Act" is the Land Tax Management Act 1956 (NSW) (the LTMA): s 1 of the LTA.

6. The effect of s 5A was to impose surcharge land tax for the 2017 land tax year of 0.75% of the taxable value of all of the residential land owned by a "foreign person" at midnight on 31 December 2016, regardless of whether land tax was payable under the LTMA and regardless of whether the principal place of residence exemption applied in respect of the land under the LTMA 4.

7 Section 104J(1) in Ch 2A of the Duties Act 1997 (NSW) relevantly provided

foreign person means a person who is a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth, as modified by this section

8   Subsection (2) contained modifications of that definition as it applied to Australian citizens and certain New Zealand citizens, but those modifications are not relevant as the Applicant was neither an Australian citizen nor a New Zealand citizen at any time during or before the 2017 land tax year

9 Section 4 of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (the FATA) relevantly provided

foreign person means

(a)   an individual not ordinarily resident in Australia

(b)   […]

10   Section 5(1) of the FATA relevantly provided

An individual who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if

(a)   the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time […]

18. I have confirmed the accuracy of the Chief Commissioner’s above extracts and am satisfied as to the accuracy of his submissions.

19. In his closing oral submissions Mr Barsoum said

I will refer to the High Court [hearing recording inaudible] with respect to this matter. There are some legislation that said the position of administrator is a position of, the decision of the minister is final and not subject to review. There is a lot of legislation [that says] that. But the High Court understands and says, look if it is a matter of legal issue since the court has the power to review that position and this is the High Court stand with respect to overriding that restriction on the ability of the administrative body, for the legal body to review and the position has been subject to that privative role. So that when my friend is saying there is a privative clause to prevent such a tribunal from reviewing that decision I do not agree with that, as the common law said something different to that. The High Court said well [inaudible] then the tribunal has the power to review the decision [sic].

20. Mr Barsoum provided no authority for his above generalised and very wide submissions. Without such authority I am not prepared to find that the submissions are accurate, especially having regard to the onus on Mr Barsoum to which I refer in the succeeding paragraphs.

Onus

21. Section 100(3) of the TA Act provides that the Applicant has the onus of proving his case in a review by the Tribunal. Mr Barsoum acknowledged that he bore this onus in these proceedings.

22. The requisite standard of proof for the Tribunal is the “balance of probabilities” Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 at [104].

Overview of Mr Barsoum’s case

23. Mr Barsoum made voluminous submissions. However many of Mr Barsoum’s submissions were based neither on probative evidence nor on relevant legal principles supported by disclosed legislation and / or reasonably identified and accessible judicial or tribunal authorities. Despite the Tribunal informing Mr Barsoum on multiple occasions that in order to satisfy his statutory onus he needed to produce the authorities on which he relied, Mr Barsoum informed the Tribunal that he relied on the Tribunal being (independently) aware of all such authorities.

24. Mr Barsoum’s more substantive submissions are set out below

Unlawfully charging surcharge land tax

25. In the January letter setting out his objections to the Assessment Mr Barsoum submitted:

The basis of this objection is that the OSR has unlawfully charged Mr Barsoum for Land Tax Surcharge for the year ending 31 December 2016”

26. There is no dispute that the role of the Tribunal in these proceedings is to decide, in place of the administrator (the Chief Commissioner) who made the decision the subject of review, what the correct and preferable decision is, having regard to the material then before it, including (a) any relevant factual material and (b) any applicable written or unwritten law: (s 63(1) ADR Act).

27. In closing submissions, Mr Lewis referred to, among other matters, ss 16 and 119 of the TA Act, namely:

16 Validity of assessment

The validity of an assessment is not affected because a provision of a taxation law has not been complied with.

119 Evidence of assessment

Production of a notice of assessment, or of a document signed by the Chief Commissioner purporting to be a copy of a notice of assessment, is:

(a)   conclusive evidence of the due making of the assessment, and

(b)   conclusive evidence that the amount and all particulars of the assessment are correct, except in objection or review proceedings when it is prima facie evidence only.

28. Mr Barsoum made no substantial reference to these sections.

The Chief Commissioner’s failure to provide information and procedural fairness

29. Mr Barsoum claimed:

The Chief Commissioner relied on incorrect information, did not provide Mr Barsoum with the information the Chief Commissioner relied on; and accordingly Mr Barsoum was denied procedural fairness

30. To the extent that Mr Barsoum’s allegations concerning information and lack of procedural fairness are correct, and I make no finding in that regard, same is superseded by the Tribunal’s task to determine the correct and preferable substantive decision in place of the reviewable decision made by the Chief Commissioner. The Tribunal’s task does not necessarily require a minutely detailed analysis of the Chief Commissioner’s procedures in reaching the reviewable decision.

Mr Barsoum’s citizenship

31. The combined provisions of the Duties Act 1997 (NSW), the LT Act and the FAT Act (the Relevant Acts) extracted by the Chief Commissioner at [18] effectively exempts persons who were Australian citizens at relevant dates from liability to surcharge land tax.

32. At paragraph 2, page 3 of the January letter Mr Barsoum claimed “I am an Australian citizen”. At paragraph 1 in “Backgrounds” in the April letter he stated, without providing any corroborating evidence:

The Taxpayer Mr. Barsoum is an Australian Citizen who has been living in Australia for 25 (twenty five) years since March 1995 as an Australian Citizen and before that as an Australian permanent resident.

33. Later in the April letter, Mr Barsoum informed the Tribunal that on or about 18 October 2019 he received a letter from “NSW State Revenue [sic] (the OSR)” claiming he was liable for “Land Tax Surcharge” for the 2017 land tax year. He then contacted OSR “and advised them that he is an Australian Citizen and accordingly not liable for Tax Surcharge for that year”. Mr Barsoum requested a “correction” of his details.

34. The Movement Records, referred to at [47] below state Mr Barsoum became an Australian citizen on 10 May 2019.

35. While giving oral evidence to the Tribunal, Mr Barsoum was questioned as to the date he became an Australian citizen. He conceded that he did not become an Australian citizen until 10 May 2019.

36. The Chief Commissioner accepts that Mr Barsoum is now an Australian citizen. However, I find that, notwithstanding his early submissions to the contrary, Mr Barsoum has not satisfied his onus of showing that he was an Australian citizen at the relevant time (midnight 31 December 2016; see [37] below) for the purpose of being exempt from surcharge land tax pursuant to the Assessment.

Relevance of the duration of Mr Barsoum’s absence from Australia during 2016

37. There is no dispute that the Relevant Acts provide that a person who is not an Australian citizen, is ordinarily resident in Australia at a particular time if and only if that person “has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time”:s5 FAT Act. The relevant time for surcharge land tax purposes for the 2017 land tax year is midnight 31 December 2016: ss5A (1) and (2) LT Act.

38. Mr Barsoum claimed, at the 6th paragraph on page 2 of the January letter, that the Chief Commissioner had made a mistake as to the number of days Mr Barsoum was absent from Australia during 2016.

39. Mr Barsoum relied on business records of his legal practice for 2016 showing details of his arrival into and departure from Australia 2016.

40. The Chief Commissioner’s submissions include:

2   … Both the Applicant's evidence and the Respondent's evidence confirm that the Applicant was physically located in Australia as a geographical concept for fewer than 200 days [during the year ended 31 December 2017].

11   The Applicant was assessed to surcharge land tax for the 2017 land tax year on the basis that, as at midnight on 31 December 2016, he was a "foreign person" as he was neither an Australian citizen nor a New Zealand citizen and, in the 12 months ending on 31 December 2016, he had actually been in Australia for fewer than 200 days.

14 … [Mr Barsoum] … has the onus of proving that he was present in Australia for at least 200 days in [the 12 months ending 31 December 2016]: s 100(3) of the TAA.

16.   The Applicant's records purport to calculate a different total of 205 days present in Australia. The reason for that difference is an error in the Applicant's calculation of the number of days he was absent from Australia between 10 November 2016 and 31 December 2016. He calculates that as 21 days, but that omits a month from the calculation.

41. Mr Barsoum made voluminous submissions in relation to both the number of days he was “present” or had, to use the wording of s5(1) of the FAT Act “actually been in Australia” and whether the legislation meant that a physical presence in Australia was required..

42. Mr Barsoum’s submissions included at [14] in AOS:

… the Legislations [sic] did not say that you have to be physically present in Australia it states, "the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time".

43. This Tribunal’s recent decision in Gao v Chief Commissioner of State Revenue [2020] NSWCATAD 216, on 3 September 2020, concerned a claimed refund of surcharge purchaser duty, a tax closely associated with surcharge land tax, involving whether a person flying at cruising altitude over Australia was included in the expression “has actually been in Australia”. Frost SM held:

58   The word ‘actually’ is defined in the Macquarie Dictionary to mean ‘as an actual or existing fact; really’. In light of that meaning, it is difficult to see how the phrase ‘has actually been in Australia’ in s 5(1)(a) of the FAT Act differs from the alternative ‘has been in Australia’, other than perhaps as a matter of emphasis, to reinforce the requirement that a person be in Australia, rather than on the way to Australia, bound for Australia, or in some other way close to but not quite in Australia.

59   In my view, ‘actually … in Australia’ captures land-based presence in Australia, and also presumably sea-based (in territorial waters) presence in Australia, but it does not capture presence in Australian airspace. Therefore, if, on a particular day, you are in Australian airspace but you do not land in Australia or set down in Australian territorial waters on that day, then you cannot be said to have been ‘actually in Australia’ on that day. Otherwise, it would be the case that the passengers on a hypothetical flight from Jakarta to Auckland, and flying hypothetically over the Australian land mass, would be ‘actually in Australia’ for all the time the aircraft is in Australian airspace.

44. With respect, I agree with Frost SM, that the expression “actually been in Australia” means, in its statutory context, “physically been in Australia”. I reject Mr Barsoum’s unsupported submissions to the contrary.

Calculation of the number of days Mr Barsoum had been in Australia in 2016

45. Mr Barsoum and the Chief Commissioner agreed on most of the dates on which Mr Barsoum either departed from or arrived in Australia in 2016.

46. At the foot of page 1 in the January letter, Mr Barsoum referred to a document he described as “accurate business records regarding the travel dates and expenses of [himself] for the 2016 year as recoded [sic] by the business. These records were made in actual time and are very accurate.” [Travel Expenses 2016] A mainly illegible copy of this document is at page 15 of the annexures to SOE. Both parties relied on the more legible copy at page 17 of the s 58 documents.

47. The Chief Commissioner relied on::

1. Travel Expenses 2016, and

2. Department of Home Affairs (DHA) International Movement Records of Mr Barsoum from 1 January 2016 to 31 December 2016 (Movement Records) produced under summons issued by the Tribunal [copy at page 15 of RTD].

48. Both Travel Expenses 2016 and Movement Records showed that Mr Barsoum was outside Australia on 5 occasions during 2016.

49. Travel Expenses 2016 contains in its third column, numbers purporting to be the number of days Mr Barsoum was absent from Australia on each occasion. Those numbers are 24, 13, 60, 43 and 21, totalling 161 days. Mr Barsoum claims he was present in Australia for some or all the remaining 205 days in 2016.

50. However, not all the numbers in the third column accord with the corresponding dates of departure from and return to Australia in the first column of Travel Expenses 2016.

51. Movement Records does not directly state the number of days Mr Barsoum was within or outside Australia, rather it provides dates of departure from and arrival into Australia. A majority, but not all, of Mr Barsoum’s arrival and departure dates in Movement Records accord with corresponding dates in Travel Expenses 2016.

52. On the Chief Commissioner’s calculations at [15] – 16], having regard to differing dates of arrival and departure in the two sets of records, Movement Records shows Mr Barsoum was present in Australia for 173 days in 2016 while Travel Expenses 2016 shows Mr Barsoum was present for 176 days.

53. The Chief Commissioner argues that on either calculation Mr Barsoum was not in Australia for at least 200 days in 2016.

54. The main point of contention concerning Mr Barsoum’s time in Australia relates to the date of his return from his fifth 2016 absence.

55. The first column in Travel Expenses 2016 shows the date of each departure from Australia and immediately underneath each such date is the date of the relevant return to Australia. For the fifth absence the first column shows Mr Barsoum departed Australia on 10/11/2016. Immediately underneath that date is “31/12/2016”.

56. The third column shows the number of days outside Australia for each absence. The third column number corresponding to the fifth absence with departure 10/11/2016 and (apparent) return 31/12/2016 is the number “21” used by Mr Barsoum as a component of his calculation of 161 days outside Australia.

57. Mr Barsoum informed the Tribunal that he could not recall the date he next returned to Australia after leaving on 10/11/2016. He also said the inclusion of “31/12/2016” in the first column of Travel Expenses 2016 did not indicate that he returned to Australia that day. Mr Barsoum had great difficulty explaining the meaning of that entry but eventually said it was the last day of 2016.

58. Mr Barsoum was asked to confirm that “31/12/2016” was the date immediately after “10/11/2016” in Travel Expenses 2016. Rather than indicating confirmation of the clear entry in the document, Mr Barsoum sought to avoid answering the question. When asked to explain the significance of the number “21” in the third column adjacent to “31/12/2016” Mr Barsoum said the “21” represented his absence from work from 19 November until the end of 2016 because of the intervention of XMAS and holidays. When asked to confirm that the “21” represented his holidays Mr Barsoum said he could not remember the purpose of the travel - it could have been for work or for holidays and was “recorded as 21 days absent from work”. He then said it represented being “absent from work and absent from Australia”.

59. Having regard to the documents in evidence and Mr Barsoum’s statement in the January letter as to the contents of Travel Expenses 2016 being “very accurate”, I find Mr Barsoum’s answers in the immediately preceding two paragraphs highly implausible.

60. If Mr Barsoum’s fifth absence ended with his return to Australia on 31/12/2016, then, excluding his dates of departure and return, (on each of which I find that he spent some time in Australia) Mr Barsoum was absent for 50 days, 29 days more than his submission.

61. Movement Records shows the fifth absence from Australia commenced with a departure on 09/11/2016. No return date is shown.

62. The Chief Commissioner submits (having regard to the summons issued to DHA and DHA’s response) that the lack of a return date in Movement Records after Mr Barsoum’s departure on 09/11/2016, indicates that Mr Barsoum did not again return to Australia during 2016. Accordingly, Movement Records shows a 2016 absence from Australia from 10/11/2016 to 31/12/2016 inclusive without any return date. This appears to be a period of 51 days during which Mr Barsoum was not in Australia and I find accordingly.

63. Mr Barsoum submitted that as no return date was recorded in Movement Records after 10/11/2016, the information in Movement Records could not be relied on. I determined that as Movement Records was only required to include details of departures and arrivals up to and including 31 December 2016. There is no evidence before me to the effect that Mr Barsoum returned to Australia after 10/11/2016 and before 1 January 2017, and I find accordingly.

64. Mr Barsoum claimed that his travel outside Australia was business or work or employment related and submitted the Tribunal should regard that as a fact in calculating the period of 200 days. I am not aware of any statutory provisions which indicate that the reason for travel outside Australia is relevant to liability for surcharge land tax. As Mr Barsoum bears the onus in these proceedings, and as I find his evidence as to dates of travel to and from Australia are at times implausible, and as he has provided no authority to support his submission in the first sentence of this paragraph, I reject the submission.

65. Having regard to the above calculations including the lack of evidence before the Tribunal to indicate that Mr Barsoum returned to Australia approximately 21 days after his 10 November or 9 November departure I am not satisfied on the balance of probability on the evidence before me that Mr Barsoum had “actually been in Australia during 200 or more days in the period of 12 months immediately preceding” midnight 31 December 2016.

66. Accordingly, having regard to the evidence before the Tribunal and the above analysis, I find that Mr Barsoum did not satisfy the requirements of s 5(1)(a) of the FAT Act and was not a person who was ordinarily resident in Australia for the purpose of s4 of the FAT Act with respect to the 2017 land tax year.

High Court of Fiji

67. Mr Barsoum referred on numerous occasions to the High Court of Fiji and placed substantial reliance on his asserted obligations to that Court.

68. The Chief Commissioner submitted:

41.   The Applicant was … outside … Australia for … 43 days between 20 September 2016 and 3 November 2016. The Applicant gives evidence that this was for his admission as a barrister and solicitor in the High Court of Fiji, and he says that this admission hearing took place on 7 October 2016.

42.   The total of those days outside of Australia up to 3 November 2016 is 141. … had the Applicant remained in Australia thereafter, he would not have been a "foreign person".

43.   The Applicant was then outside … Australia from 9 November 2016 until the end of the year. There is no evidence as to the reason for his being outside of Australia during that period.

69. Other than Mr Barsoum’s unsupported submission that in 2016 he was outside Australia for no more than 21 days after the date of his second November departure (being his fifth journey outside Australia in 2016), I do not understand Mr Barsoum to substantially dispute the Chief Commissioner’s submissions at [41] to [43].

70. In his statement of evidence (SOE) Mr Barsoum said

27.   … 103 days of my travels overseas were related to my employment and to my duties to the High Court as I had I had the carriage of a matter with that Court.

…

Job / Employment Related Travel

36.   On or about early June 2016 I travelled to Fiji with the purpose of expanding the business of our firm Australia Legal to overseas jurisdictions.

37.   In order to practice law in Fiji I needed to obtain the approval of the. [sic] The process of obtaining these approvals was difficult and time consuming and need my presence overseas to follow up with the preparation and the filing of the necessary documents and applications.

38.   During that time I approached the Australian Embassy and the Australia Federal Police to obtain some necessary documents and I was in constant connection with Australia. …

40.   The High Court proceedings commenced thereafter for enrolment and admission to practice as a Barrister and Solicitor with the High Court of Fiji.

41.   That process was very difficult and time consuming and evolved the preparation of court documents and affidavits and many evidentiary documents to be filed with the High Court.

42.   That process cost me 60 days.

43.   On or about 17 August 2016 I came back to Australia.

44.   On or about 15 September 2016 I received a letter from the High Court of Fiji listing my matter on Friday, 07th October 2016. …

45.   On or about 20th September 2016 I travelled to Fiji in order to prepare for the High Court hearings in conjunction with a local lawyers and a legal counsel.

46.   The High Court hearings proceeded on time on 7th October 2016.

47.   After that I had to engage local lawyers and provide local addresses to receive High Court Documents. That processes of preparation, hearing and the time I spent after the hearing cost me another 43 days.

48.   That brings the total time spent on these High Court proceedings to 60 days plus 43 days equals to 103 days.

49.   On or about 3 November 2016 I came back to Australia.

…

71. In addition to his own SOE and submissions, Mr Barsoum also filed with the Tribunal the following five documents in relation to his admission to practise as a Barrister and Solicitor in Fiji::

1. Trust Fund receipt dated 7 July 2016 issued by Board of Legal Education Fund Account to Mr Barsoum being payment for a certificate of eligibility for admission.

2. A mainly illegible document apparently signed by an “Acting Chairperson” described as a CERTIFICATE and bearing Mr Barsoum’s name in large bold font which may or may not be the document described at [39] in SOE as:

“On or about 20 July 2016 I was able to obtain the approval of the Board of Legal Education. Annexed hereto and marked with the letter “G” is a copy of that document.”

3. Australian Federal Police receipt issued 25 July 2016 from an address in Canberra ACT to Mr Barsoum at The High Court Registry in Suva, Fiji for a national police check of Mr Barsoum.

4. Letter dated 15 September 2016 to Mr Barsoum, sent care of a firm of Barristers and Solicitors in Nadi, Fiji from the Chief Registrar of the High Court of Fiji headed Petition for Admission comprising the following two substantive paragraphs:

Please note that your petition for admission has been set down for hearing in the High Court at Suva on Friday 07th October 2016 at 12:15pm before the Honourable Chief Justice.

You will need to make necessary arrangement for a counsel at least 2 years standing as a lawyer to represent you in this hearing / admission.

5. A partly legible document dated 7 October 2016 headed “IN THE HIGH COURT OF FIJI AT SUVA” bearing the words “Certificate of Enrolment” and Mr Barsoum’s name apparently signed by the Chief Registrar stating that Mr Barsoum had “been admitted to practice as a Barrister and Solicitor”.

72. I make the following observations:

1. There is no dispute as to Mr Barsoum’s admission in Fiji in 2016. There is however, a dispute as to its relevance to these proceedings.

2. The letter dated 15 September 2016 from the High Court of Fiji refers to Mr Barsoum being represented by counsel for the hearing of his petition of admission. It may well be that Mr Barsoum’s presence was required at the High Court. However, there is no evidence to this effect, merely that he was required to be represented by counsel.

3. Mr Barsoum made statements at [37] in SOE that he needed approval of the Board of Legal Education and the High Court of Fiji in order to practice law in Fiji and the process of obtaining these approvals was difficult and time consuming.

4. Mr Barsoum’s evidence is that he engaged a firm of solicitors and a barrister to assist in his Fijian admission and his presence was needed overseas to follow up the preparation and filing documents. Mr Barsoum provided no supporting evidence from any of the solicitors, barrister, the Board or the High Court nor any documentation as to why it was necessary for Mr Barsoum to leave Australia in order for his admission. It is possible that Mr Barsoum’s unsupported statements are correct. However I find it highly implausible that Mr Barsoum’s personal involvement required his attendance outside Australia for over 100 days in order to comply with his unexplained duties to the High Court in the circumstances he referred to in his evidence.

Abuse of power

73. Mr Barsoum submitted in the third paragraph of page 3 of his January letter:

According to established administrative law principles by the High Court of Australia applying the rules and the regulations by public officials is an abuse of power, it is ultra viers [sic] and is a jurisdictional error of the law.

74. Mr Barsoum did not specify any “established administrative law principles” nor relevant “rules and regulations”. No probative authority or evidence was brought to the Tribunal’s attention to support Mr Barsoum’s submission.

75. The role of the Tribunal, as noted above, is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. To achieve its role, and find in favour of Mr Barsoum, the Tribunal needs specific probative evidence, not merely generalisations such as that above.

74. The onus is on Mr Barsoum to provide the evidence. I find that Mr Barsoum has not satisfied his onus and I reject the submission.

Discretion of the Chief Commissioner - exceptional work related circumstances –Financial Hardship – the Corona Virus Economic Crisis – Unforeseen circumstances

77. In his April letter Mr Barsoum stated his first ground of review was “Whether or not the Commissioner have Discretion to take into consideration the taxpayer's exceptional circumstances when making decisions regarding the taxpayer's Land Tax Surcharge liability” and his second ground was “Exceptional Circumstances” (comprising work related circumstances, financial hardship, corona virus economic crisis and unforeseen circumstances)

78. On an overall basis I find that the above grounds were either irrelevant to these proceedings and / or were not supported by relevant authorities and / or evidence.

Discretion of the Chief Commissioner

79. Mr Barsoum’s submission as to his first ground of review is the Chief Commissioner (and in these proceedings, the Tribunal) had certain wide-ranging discretions and obligations. He submitted:

2.   … discretion to interpret and apply the legislation in accordance with established legal principle and administrative law principles as set by the High Court of Australia.

3.   The legislation does not need to specifically state every possible circumstances of every taxpayer. It is left to the commissioner to interpret and apply the legislations based on established legal principle and the administrative law.

4.   The Commissioner has discretion to make and issue rulings regarding any specific matter related to the Legislation.

5.   Literal interpretation of the Legislations is not the preferred method of interpreting the legislation. Rather the High Court recommended that the intention of the Parliament when passing the legislation and the purpose of the legislation ought to be taken into account.

6.   The Commissioner has discretion to interpret and apply the legislation in manner that does not conflict with other legislation or the common law taking into consideration the intention of the Parliament, the purpose of the legislation and all circumstances of the case.

7.   Punishing a Legal Practitioner for doing his job or for travelling to manage and to attend a High Court hearing is contrary to the Law.

8.   Causing unnecessary hardship is not recommended.

9.   The Commissioner has discretion to taken [sic] into consideration the circumstances of each individual case and the taxpayer's exceptional circumstances.

10.   The taxpayer as a practicing Australian Legal Practitioner ought not to be prohibited or punished for attending to a High Court Hearing.

11.   By the nature of his job and his connection to Australia, the Legal Practitioner's freedom of movement ought not to be restricted.

12.   To the contrary the Supreme Court of NSW has expressed dissatisfaction with Legal Practitioners not attending Court hearing.

80. Mr Barsoum supported his above submissions with little or no relevant probative evidence.

81. There is no doubt that the Chief Commissioner (and the Tribunal in relevant proceedings) may exercise certain discretionary powers. Examples of such powers are found ss 13, 25, 27 and 33 in the TA Act; ss 87A, 87B, ss 163B(1)(a), 163E(2) and 163H(1) Duties Act 1997; and ss 79, 85, 86(4) and cl 6 of Schedule 3 of the Payroll Tax Act 2007 (NSW).

82. The onus lies on Mr Barsoum to prove his case. He asserted the Chief Commissioner had discretionary powers without identifying specific powers by reference to any specific legislation or authority.

83. Mr Barsoum submitted in AOS at [1]:

1.   Commissioner’s Discretions as the sole administer [sic] of the Duties and Land Tax Legislations; [sic]

The commissioner is claiming that it [sic] has no discretion to decide this matter on its merits and therefore can not take the usual circumstances of my matter into consideration.

1.2   I believe that the commissioner as the sole administration of these Legislations has the capacity to decide each matter on its merits without have a single rule first all which may result in injustices and is contrary to the public interest. [sic]

1.3 he High Court addressed this issue in O’Sullivan v Farrer (1989) 168 CLR 210. As Undefined discretion; The principle as to the proper construction of an undefined statutory discretion espoused by Dixon J in Browning has been consistently approved by the High Court and was restated in O’Sullivan as follows;

“Where a power to decide is conferred by a statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made.”

84. I observe that the Tribunal has power to determine the matter before it on its merits and subject to the law.

85. The onus is on Mr Barsoum to prove his case. Mr Barsoum has not shown any relevant discretion in respect of the current matter. He relied on O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 (7 December 1989) (O’Sullivan).

86. O’Sullivan involved an objection to an application for the removal of an off-licence to sell liquor by retail from premises in a small shopping centre to premises in a larger shopping centre. The legislation involved was the Liquor Act 1982 (I) (the Act).

87. The wording extracted by Mr Barsoum at [1.3] in AOS formed part of paragraph [9] of the decision by the majority, comprising MASON C.J., BRENNAN, DAWSON AND GAUDRON JJ. At [9] the majority held “Section 47 of the Act makes express provision as to the existence of a discretion to grant or refuse an application” in certain situations which did not include the public interest grounds before the Court

88. At [13] the majority held:

… the subject-matter to be decided, involving, as it does, the distribution and location of facilities for the supply of liquor, is one which has traditionally been seen as permitting the exercise of a broad discretion in the decision-making process …” and found that certain specified considerations, which do not apply to the surcharge land tax dispute “… lead to the conclusion that, save to the extent that the Act expressly provides otherwise, the Act confers a general discretion to grant or refuse an application by reference to those public interest considerations …

89. I distinguish the subject matter of location of premises licensed for the sale of liquor and express statutory references to discretionary powers and public interest in the High Court in O’Sullivan from the situation presently before the Tribunal involving the interpretation of revenue legislation without reference to statutory discretionary powers or the public interest.

Mr Barsoum’s exceptional work related circumstances

90. Mr Barsoum has provided no evidence to the effect that his work experience, including his admission as a practitioner in an overseas court, is in any way “exceptional”. Nor has Mr Barsoum provided any authority to support his submission that his work experience should give rise to a decision which is contrary to express legislative requirements.

91. I reject Mr Barsoum’s submission.

Mr Barsoum’s financial hardship

92. The sole evidence supporting Mr Barsoum’s claim for “financial hardship” is that tenants in a property which Mr Barsoum states he owns, are behind in paying rent.

93. Mr Barsoum has produced no details of his financial position including no details of any of his income, expenses, assets or liabilities other than some details of his travel expenses, and general references to his apparent ownership of certain properties and his legal practice.

94. Mr Barsoum expressed his awareness of government programmes to assist persons suffering financial hardship as a result of Covid-19. However, while saying he orally requested assistance and does not want to pay surcharge land tax, there is no evidence before the Tribunal that Mr Barsoum applied for available assistance either online or in writing.

95. In any event, Mr Barsoum has produced no authority to the effect that the Tribunal is empowered to provide assistance to him in these proceedings on the basis that he is suffering financial hardship. Accordingly I reject Mr Barsoum’s submission for such assistance.

The Corona Economic Crisis

96. Mr Barsoum requested assistance from the Tribunal on the basis that he is suffering financial hardship as a result of the “Corona Economic Crisis” without providing any meaningful details of his hardship.

97. For the reasons given under the heading “Mr Barsoum’s financial hardship” I reject his submission.”

The boarding pass issue

98. Mr Barsoum relied at page 10 of the annexures to his SOE, of a copy of an aeroplane boarding pass in his name dated 7 March 2020 for a flight from the Gold Coast to Sydney. The boarding pass bore his signature and appeared to show the imprint of “Migration Australia” and “DEPARTED AUSTRALIA” as evidence that DHA could not be relied on to provide accurate details of his movements in and out of Australia from 1 January 2016 to 31 December 2016 in response to a Summons issued by the Tribunal.

99. Mr Barsoum informed the Tribunal that he had not at any time asked any question of the person who gave him the boarding pass nor of any other government official concerning the “DEPARTED AUSTRALIA” stamp imprint. Nor had Mr Barsoum requested the Tribunal to issue a summons to obtain an explanation for the imprint.

100. Mr Barsoum conceded that the Movement Details at page 15 of RTB, produced by DHA, are correct other than that the document does not show a date of his return to Australia after his departure on 9 November 2016. This particular return to Australia is dealt with elsewhere in these reasons.

101. To the extent that Mr Barsoum disputes any evidence produced by the Chief Commissioner the onus lies on Mr Barsoum to prove his position.

102. I do not find that all government departments or agencies are always correct. However, given that Mr Barsoum informed the Tribunal that he is unsure of the date of his return to Australia after his 9 November 2016 departure, his concession that he has not produced any evidence to contradict DHA’s evidence that he did not return to Australia during the remainder of 2016 and his onus to prove his case, I reject his submission that the boarding pass evidences that DHA cannot be relied on to provide accurate details of his movements in and out of Australia from 1 January 2016 to 31 December 2016.

Substantial Compliance

103. Section 5(1)(a) of the FAT Act provides that a person:

… who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if the individual has actually been in Australia during 200 days in the period of 12 months …

104. At Other Grounds of Review “V.- A Substantial Compliance’ [1] in the April letter, Mr Barsoum submitted that his presence “in Australia for 173 days [in 2016] (as alleged by the [Chief Commissioner]) is substantial compliance with the 200 days’ requirement.”

105. Mr Barsoum also submitted at [2] he “disputes the missing 27 days and the accuracy of the information [the Decision Maker] is relying upon”.

106. Mr Barsoum produced no probative evidence to show what the relevant number of days should be.

107. Mr Barsoum has not provided any authority to support his submission as to the adequacy of “substantial compliance” to satisfy the minimum 200 day residency requirement. I am not aware of any relevant authority which provides that a pro-rata or similar reduction of days in Australia could satisfy the minimum 200 day requirement.

108. Having regard to the unsatisfied onus on Mr Barsoum, his submission is rejected.

Contact with Australia

109. Mr Barsoum submitted in the April letter at V Other Ground of Review - B Constant and continuous Contact with Australia – [7] “he was in “constant and continuous [sic] with his business to do his work remotely…” and in AOS:

3.1   The evidence confirms that I was going out and coming back a number of times. A clear connection with Australia and the continuous carriage of my job and duties in Australia to the benefit of an Australian business.

3.2   In this age of rapid communication and the on-line presence it is difficult to say that I was not present in Australia running an Australian business.

…

3.4   The definition of a resident did not say that you have to be physically present in Australia it says; "actually present ".

110. I observe the legislation does not refer to a person being in either “constant” or “continuous” contact with Australia, nor being “actually present”. The wording used is “actually been in Australia”.

111. I repeat my above finding that “actually been in Australia” means, in its statutory context, “physically been in Australia”. I reject Mr Barsoum’s submissions to the contrary.

112. Mr Barsoum’s statements of belief in SOE at [33] and [34] above indicate to the Tribunal a certain lack of understanding by Mr Barsoum of the Relevant Acts in relation to the legislation concerning the surcharge land tax and the role of the Tribunal..

Mr Barsoum’s other submissions

113. I have considered all of Mr Barsoum’s numerous other submissions, which substantially repeat the submissions dealt with and rejected above or are not relevant to the Tribunal’s role in these proceedings or are not supported by relevant evidence and / or authorities so as to show compliance with Mr Barsoum’s statutory onus. Those other submissions are rejected

Findings and decision

114. I am not satisfied on the balance of probability on the material before me that Mr Barsoum has satisfied his onus. Accordingly the correct and preferable decision of the Tribunal is that the decision of the Chief Commissioner under review is affirmed.

115. The Chief Commissioner has foreshadowed seeking an order that Mr Barsoum pay the Chief Commissioner’s costs. Section 60(1) of the CAT Act provides that each party will pay their own costs of Tribunal proceedings. However, s 60(2) provides that the Tribunal may award costs if satisfied that there are special circumstances which warrant such an award. If the Chief Commissioner wishes to pursue an application for costs of this matter the parties shall make submissions and provide evidence in accordance with Order (2).

Orders and directions

1. The decision under review is affirmed.

2. If the Respondent wishes to pursue an application for costs of this matter:

1. the Respondent shall give to the Tribunal and to the Applicant, within 7 days after publication of the decision in these proceedings, his written submissions, not exceeding 5 pages in length, together with evidence in support of his application and state why the Tribunal should not determine the question of costs without an oral hearing.

2. the Applicant shall give to the Tribunal and to the Respondent, within 7 days after the date determined by the immediately preceding paragraph, his written submissions and submissions in reply to the Respondent’s submissions, not exceeding 5 pages in length, together with evidence in support of his submissions, and state why the Tribunal should not determine the question of costs without an oral hearing.

3. the Respondent shall, within 7 days after the date determined by the immediately preceding paragraph, give the Tribunal and the Applicant any submissions in reply to the Applicants’ submissions, not exceeding 3 pages in length, together with evidence in support of his submissions in reply.

4. I direct that:

1. the above page length in respect of submissions and submissions in reply (Submissions) does not include cover sheets;

2. the Submissions shall be in a typeface that is no smaller in appearance than an Arial font in 11 point size or a Times New Roman font in 12 point size, and the lines of typing shall be at least 1.5 lines spacing from each other.

3. in making their Submissions the parties shall have regard to the provisions of ss 50 and 60 of the CAT Act; and

4. the Submissions shall replace all oral and written submissions made by either party in relation to costs prior to the date of publication of these orders / directions.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 November 2020