Chief Commissioner of State Revenue v McIlroy

[2009] NSWADTAP 21

Appeal Panel - Internal

CITATION:	Chief Commissioner of State Revenue (RD) v McIlroy [2009] NSWADTAP 21
PARTIES:	APPELLANT Chief Commissioner of State Revenue RESPONDENT Roger James McIlroy
FILE NUMBER:	089033
HEARING DATES:	20 October 2008
SUBMISSIONS CLOSED:	20 October 2008
DATE OF DECISION:	7 April 2009
BEFORE:	Needham J SC - Deputy President; Perrignon R - Judicial Member; Bennett C - Non-Judicial Member
CATCHWORDS:	Land tax exemption – principal place of residence
DECISION UNDER APPEAL:	McIlroy v Chief Commissioner of State Revenue
FILE NUMBER UNDER APPEAL:	076110
DATE OF DECISION UNDER APPEAL:	03/19/2008
LEGISLATION CITED:	Land Tax Management Act 1956 Administrative Decisions Tribunal Act 1997 First Home Owner Grant 2001
CASES CITED:	Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Levene v Inland Revenue Commissioners [1928] AC 217 Stoke-On-Trent Borough Council v. Cheshire County Council (1915) 3 KB 699 Zakariya v. CCSR [2003] NSWADT 26CCSR v Mesiti [2003] NSWADTAP 57 McNally v CCSR [2003] NSWSC 1118 Flaracos v CCSR [2003] NSWSC 68 CCSR v Ferrington [2004] NSWADTAP 41
REPRESENTATION:	APPELLANT AH Rider, barrister RESPONDENT M Baird, barrister
ORDERS:	1.Appeal allowed 2.Decision of the Tribunal below is set aside 3.In substitution for the decision of the Tribunal, the original decision of the Appellant is affirmed.

1 The Chief Commissioner for State Revenue (“the Commissioner” or “the appellant”), appeals against a decision of the Tribunal, setting aside his decisions to assess a property at Palm Beach to land tax for the tax years 2002 to 2006 inclusive. The property was owned by the Respondent, Mr McIlroy, who was the Applicant in the proceedings below, and his sister. The Chief Commissioner had decided that the ‘principle place of residence’ exemption did not apply.

2 The Respondent has two residences: one in Melbourne, which he occupies with his partner, their children, and the children of his former relationship, and the Palm Beach property.

3 The questions for decision in this appeal are:

a) which of these two residences is the Respondent’s “principal” place of residence within the meaning of the Land Tax Management Act 1956 (“the Act”), and

b)accordingly, whether the Tribunal erred in applying the principal place of residence exemption to the Palm Beach property.

The scope of the appeal

4 The following evidence was uncontested.

5 The Respondent’s property at Palm Beach has been in his family since the 1920s. It is owned by him and his sister as tenants in common, but his sister (the second Respondent) holds her share in trust for him, and the fact of her ownership played no part in the appeal. The siblings inherited the property from their mother in 1972.

6 The Respondent noted that the Palm Beach property was his primary residence when completing a Land Tax Questionnaire in 2006. The Office of State Revenue investigated and issued him with an assessment for the four years in question.

7 The Respondent objected to the assessment and supplied further documentation. His objection was disallowed. The Chief Commissioner noted that the Respondent had, under Victorian land tax legislation, claimed that a property in Malvern was his principal place of residence and sought exemption from Victorian land tax on that basis.

8 The original application for review was out of time, but the Tribunal extended time for filing the application. There is no appeal from that part of the decision.

9 The respondent argued, both in the Tribunal below and before the Appeal Panel, that the Palm Beach property was his principal place of residence and that his nomination of the Malvern property as his principal place of residence for land tax exemption purposes in Victoria was an oversight and due to his ignorance of the land tax legislation. He acknowledges that an exemption for the Palm Beach property will result in a liability for land tax for the Malvern property. The Malvern property is jointly owned with his partner (see par 11 below).

10 The respondent is an art consultant and travels extensively for his work. He was employed by Christies during the relevant period 2002-2006, but now operates his own business. He has, and had, an office in Melbourne, first with Christies and now on his own. Christies were based in Melbourne and his current business is based in the UK.

11 The respondent has significant ties with Melbourne. He is enrolled to vote there, and his immediate family live there. When he is in Melbourne, he resides with his partner and their two young children, aged 6 and 8. He and his partner each have children from different relationships. Each of those children live in Melbourne. His partner’s principal place of residence is undoubtedly Malvern, and there was no contention to the contrary.

12 He has a car registered at the Palm Beach property, and has a land line telephone there. He also uses a mobile Blackberry device. The Palm Beach property has never been rented out. It is used, apart from the use contended for by the Respondent, by his children and family for holidays. Accordingly, the land line telephone shows more activity when his children are staying at the Palm Beach property. The Respondent tends to use his Blackberry rather than a fixed line.

13 The respondent says that his emotional and physical ties to the Palm Beach property mean that the property is in fact and at law his principal place of residence. He says his time in Victoria is dictated by his business and he uses the Malvern property as his residence when he is there, but that of the two, the Palm Beach property is his principal place of residence.

The legislation

14 The relevant legislation is set out in the decision appealed from in paragraphs [9] to [13] of the decision in the Tribunal below, which is here reproduced:-

“9 The principal issue in dispute in this case is whether the Palm Beach property is Mr McIlroy’s ‘principal place of residence’ for the purposes of liability for payment of Land Tax.

10 Pursuant to sections 7, 8 and 9 of the Land Tax Management Act 1956 (‘the LTM Act’), Land Tax was chargeable on the taxable value of the Palm Beach property land based on the ownership of the land as at midnight on the 31 December of each year. Thus, the Applicants were presumed to be liable for Land Tax on their land for the 2002, 2003, 2004, 2005 and 2006 Land Tax years based on their ownership of the land on 31 December 2001, 2002, 2003, 2004 and 2005, respectively, unless the land was exempted from tax.

11 As at 31 December 2001, the taxing date for the 2002 Land Tax year, section 10(1)(r) of the LTM Act provided for an exemption in respect of land, including a parcel of residential land, “that is used and occupied as the principal place of residence of the owner of the land”. There is no dispute that the Palm Beach property is ‘residential land’ within the definition in section 10(1D). ‘Principal place of residence’ is defined in section 3(1):

“ principal place of residence of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person.”
Section 3(3) stated:

“For the purposes of this Act, in respect of any year in respect of which taxation is leviable or payable, land or a flat is not used or occupied as the principal place of residence of the person unless:

(a) that land or flat and no other land or flat has, since before the first day of July that last preceded the commencement of that year, been continuously used and occupied by that person for residential purposes and for no other purpose, or

(b) in any other case, the Chief Commissioner is satisfied that the land or flat is used and occupied by that person as the person’s principal place of residence.”

12 No relevant amendments were made to the LTM Act until 31 December 2003 when the State Revenue Legislation Further Amendment Act 2003 took effect. Amendments to the LTM Act included the transfer of the substantive provisions in sections 3(3) and 10(1)(r) to a new Schedule 1A, which provided relevantly as follows:

“Part 1 Preliminary

1 Definitions

(1) In this Schedule:

principal place of residence exemption—see clause 2.

residential land—see clause 3.

taxing date—means midnight on the thirty-first day of December.

(2) For the purposes of this Schedule, a reference to the owner of land includes, if there are joint owners, any one or more of those joint owners.

Part 2 Principal place of residence exemption

2 Principal place of residence exemption

(1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing on 1 January 2004 or any succeeding year, if:

(a) the land has a land value in respect of the year of less than the premium tax threshold, and a parcel of residential land, or

(b) the land is:

(i) a parcel of residential land, or

(ii) a lot under the Strata Schemes (Freehold Development) Act 1973 or a lot under the Strata Schemes (Leasehold Development) Act 1986.

(2) Land is not used and occupied as the principal place of residence of a person unless:
(a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or

(b) in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person’s principal place of residence.

(3) If the owner of land is entitled to the exemption conferred by this clause, no other person is liable to be assessed for taxation under this Act in respect of the land during the period of the owner’s entitlement to the exemption.

(4) The exemption conferred by this clause is referred to as the principal place of residence exemption.

3 Residential land—meaning

(1) In this Schedule, residential land means land that is used and occupied for residential purposes and for no other purpose, that use and occupation being use and occupation of a building or buildings designed, constructed or adapted for residential purposes, other than a building or buildings:

(a) comprised of lots within a strata plan or residential units, or

(b) containing (out of the total of all rooms in the building or buildings) occupancies other than that of the owner, or

(c) from any part of which income is derived.

(2) Land does not cease to be used and occupied as provided by sub-clause (1) by reason of there being on that land any building or improvement that is used or occupied for a purpose ancillary to the purposes for which the building is, or the buildings are, designed, constructed or adapted.

Note. Clause 4 allows one residential occupancy to be disregarded in applying the principal place of residence exemption. Clause 5 allows the use of land for purposes ancillary to a business conducted at a different place to be disregarded in certain circumstances.

12 Only one principal place of residence for all members of same family

(1) For the purposes of the principal place of residence exemption, only one place of residence may be treated as the principal place of residence of all members of the same family.

(2) If members of a family own (whether jointly or separately) more than one residence used and occupied by any of them as a principal place of residence, the Chief Commissioner is to treat the one place of residence elected as the principal place of residence of the family as the principal place of residence of all members of the family in respect of a tax year.

(3) Such an election is to be made, by or on behalf of the members of the family, in writing and must be lodged with the Chief Commissioner within the period for the lodging of objections under section 89 of the Taxation Administration Act 1996.

(4) An election may be made, in respect of a tax year, by the end of the period allowed for the lodging of an objection to a notice of assessment of land tax liability (being an initial assessment of land tax liability) for that tax year.

(5) If an election is not made, the Chief Commissioner is to treat the residence that has the highest land value for land tax purposes as the principal place of residence of all members of the family.

(6) For the purposes of this clause, a "family" consists of the following:

(a) a person and his or her spouse (if any),

(b) any dependent child or dependent step-child of the person and his or her spouse (or of either of them) who ordinarily resides with the person or his or her spouse.

(7) A person is the "spouse" of another person if:

(a) they are legally married, or

(b) they are living together as a couple in a de facto relationship within the meaning of the Property (Relationships) Act 1984.

(8) ...

(9) A person who is the child or step-child of another person is a "dependent child" or a "dependent step-child" if:

(a) the person is under 18 years of age and is not legally married.

(10) ...”

13 Pursuant to section 100(3) of the Taxation Administration Act 1996, the onus is on the Applicants to prove their case in an application for review.”

15 The parties each submit, and the Appeal Panel accepts, that the terms of the principal place of residence exemption have, to the extent relevant, remained substantially the same for the relevant tax years.

Questions for decision

16 The grounds set out in the Notice of Appeal are reasonably broad. In essence, the Appellant claims that the Tribunal erred in finding that the Palm Beach property was the principal place of residence of the respondent and thus entitled to the exemption from Land Tax. In particular, the history of the Respondent’s occupation of the Palm Beach house along with his subjective and emotional attachment to the house was, the Appellant submitted, a factor which was accorded too much weight by the Tribunal in reaching its decision below.

Extension of the Appeal to a Review of the Merits

17 The appellant also seeks to extend the appeal to a review of the merits of the decision, in accordance with s 113(2) of the Administrative Decisions Tribunal Act 1997. The respondent countered that no grounds have been advanced by the appellant as to why leave should be granted.

18 The relevant sections are ss 113, 114 and 115. They are as follows:-

113 Right to appeal against appealable decisions of the Tribunal

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

(2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against an interlocutory decision of the Tribunal except by leave of the Appeal Panel …

114 Appeals on questions of law

(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.

(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:

(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),

(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,

(c) an order made in substitution for an order made by the Tribunal.

115 Appeals on the merits

(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.

(3) In determining any such appeal, the Appeal Panel may decide:

(a) to affirm the decision, or

(b) to vary the decision, or

(c) to set aside the decision and make a decision in substitution for the decision it set aside.

19 The New South Wales Court of Appeal in Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 held that the Appeal Panel may grant leave under section 113(2)(b) for an appeal to extend to the merits without having first determined that an error of law exists or may exist in the decision under appeal.

20 The Appeal Panel is of the view that the extension to the merits is justified in this case. The findings of fact are an intrinsic part of the decision, and the further evidence which is sought to be admitted, which was not a part of the original factual matrix, renders it appropriate to grant leave.

21 In addition, evidence referred to at the hearing (in particular, the evidence as to the proportions of time spent at various places by the respondent) sparked further investigations by the respondent. While the Commissioner was, as alleged by the respondent, “on notice” that the question of residence was at the heart of the hearing below, the emergence at the hearing of the one-third split of time (referred to below), and the use by the respondent of his Blackberry mobile phone rather than the Palm Beach landline, were matters which arose at the hearing and clearly ones which the Tribunal found persuasive. It is appropriate at the appellate level that the parties be able to adduce new evidence in that respect, and that the merits of the decision be reviewed under section 115 of the Administrative Decisions Tribunal Act 1997.

The Commissioner’s evidence and submissions

22 The learned Tribunal member made findings of fact based on the oral, written and documentary evidence of Mr McIlroy, which he accepted. The appellant submits that the findings of fact so made were contrary to the weight of the evidence of Mr McIlroy’s partner and the documentary evidence, which was added to in these proceedings.

23 In particular, the learned Tribunal member found that Mr McIlroy spent about a third of his time at the Palm Beach property, a third of his time in Melbourne, and the remaining third in Malvern. In this appeal, the appellant produced a number of documents which, it was said, supported the finding that the respondent’s principal place of residence was in Melbourne, and that the “one-third” finding (as it was referred to in argument) was not supported by the evidence.

24 The evidence relied upon by the appellant (of which there was a great deal, and of that which appears below is only a summary) included:-

a)an analysis of the Department of Immigration and QANTAS Airways information which showed, it was submitted, that Mr McIlroy spent about 60% of his time in Melbourne (to reach this conclusion, one would have to infer that he was staying in Melbourne prior to boarding flights out of Melbourne and he was staying in Melbourne after disembarking those flights);

b)a variety of documents filled in by Mr McIlroy which indicated that he regarded his home as the Melbourne property, including:- i“ Incoming Passenger Cards” filled in on overseas incoming flights;

ii An indication of “Victoria” as his state of residence on “Outgoing Passenger Cards”;

iii An indication of his domestic partner as his emergency contact for travel purposes;

iv registration of Mr McIlroy and his family in Melbourne with Medicare and the Safety Net;

v records from his employer, which showed that when he was in Sydney he generally stayed at hotels, rather than at the Palm Beach property which appeared to be occupied during the post-Christmas/January and Easter holidays periods and, in the 2005 tax year, during the July school holidays; and

vi taxation returns, for which his home address was shown as the Melbourne property, and in which his domestic partner was listed as his spouse.

25 The appellant submitted that the first stage of determining whether a property was a taxpayer’s principal place of residence was to determine whether it was, in fact, the “one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person”.

26 A number of authorities were cited in support of the various parts of the definition, including the Macquarie Online Dictionary, and English and Australian cases. It was submitted that “principal” meant “first or highest in rank”, or the “main” residence of a person. “Place” was said to refer to a location, and in its context was used in casual conversation as a synonym for a location where a person usually lives. Finally, “residence” has a meaning of a dwelling place, or the place where one resides. See Levene v. Inland Revenue Commissioners [1928] AC 217 per Viscount Cave at 222; Stoke-On-Trent Borough Council v. Cheshire County Council (1915) 3 KB 699, per Ridley J at 706, and Zakariya v. CCSR [2003] NSWADT 26.

27 It was submitted, correctly in our opinion, that the modifier “principal” indicates that a person may have more than one place of residence, and requires that the one which is exempted from Land Tax is the one which is the one which is their main residence. It was submitted that where a person lives in the course of his or her domestic life, where he and she eats and sleeps with their partner and children is the principal, rather than subordinate, place of residence – see McNally v. CCSR [2003] NSWSC 1118 at [40], and CCSR v. Mesiti [2003] NSWADTAP 57 at [61].

28 It was submitted that the weight of the evidence, including that at the hearing before the Tribunal below, but with the assistance of the new evidence sought to be adduced at the hearing, indicated that the Palm Beach house had the character of a holiday home at which he spent at most a month or two each year, and that the respondent carried out his domestic life in Melbourne with his spouse and children, where he spent more than half his time.

29 The Appellant submitted that the evidence revealed that the use of the property when it was being used was essentially as a holiday home, and that, when in Sydney, the Respondent stayed at hotels rather than at the Palm Beach property. The pattern of occupation is strongly in support of occupation during holiday periods, rather than on a regular or recurrent basis.

30 The Respondent’s sister Jane Strang, the co-owner and co-applicant in the Tribunal below, has at all times maintained a different property at Palm Beach as her principal place of residence, so it is not the case that the Palm Beach property had the character of being exempt for land tax purposes in relation to Ms Strang.

Respondent’s submissions

31 The respondent first maintains that there should be no leave granted to extend to the merits, nor should new evidence be admitted. These aspects are dealt with above.

32 In paragraph 19 of the respondent’s submissions, it is put that the legislative scheme provides for more than one “principal place of residence”, but that only one principal place of residence can be exempt from land tax. It is submitted that “that is clear from the fundamental nature and arrangement of the Act and the Schedule”.

33 The respondent submitted that the process which needs to be taken by the Commissioner is to establish which, of all potential residences for a family, are those which fit the definition of “residence” within the Act. It is submitted, correctly in our view, that each of the Palm Beach and Melbourne properties fit the definition of “residence”.

34 The Respondent then goes on to cite the statutory provisions relating to “residence” and notes that the evidence of his intention to maintain the Palm Beach property in his continued ownership shows an intention that it be his principal place of residence.

35 In addition, the respondent relies on the nature of the occupation of the Palm Beach property, and points out that the property was never rented during the respondent’s co-ownership of it, thus making it available as a place of residence for himself and for members of his family. It was submitted that continuous physical presence was not required for the establishment of a principal place of residence (see Gzell J in Flaracos v. CCSR [2003] NSWSC 68 at [29]). The respondent pointed to the finding of the learned Tribunal member that “the Palm Beach property has only ever been used for residential purposes, and Mr McIlroy has at all time retained possession and control”.

36 As a further submission, the respondent notes that he has no other place in NSW that he uses as a residence. Neither the Palm Beach nor the Melbourne properties are used exclusively as a residence. The Palm Beach property is used as a residence and for no other purpose.

37 Accordingly, is the Respondent submits that the appeal should be dismissed.

Consideration

38 The issue for determination, as noted above, is whether the Palm Beach property was the respondent’s “principal” place of residence for the relevant tax years. It is common ground that it was a “residence” of his, and that it was used for residential purposes and not rented out.

39 The learned Tribunal member stressed that the respondent regarded the Palm Beach property as his family home and has maintained strong ties with it and with the surrounding area. He found that the Malvern property was the principal place of residence of Ms Keys, Mr McIlroy’s partner, and their children. Of those two residences, the learned Tribunal member determined that the Palm Beach one was the “principal” one, applying the principles in CCSR v. Ferrington [2004] NSWADTAP 41, in that his connection to the property was an “enduring, long term one, rooted in his family and personal history” with a “strong emotional connection to the property”. The learned Tribunal member went on to say that “the fact that this actual residence in the property constitutes only about one third of the year does not, in my view, detract from the permanence of that connection”. The long-term connection to the property is such that it outweighed “the evidence in relation to his connection with the Malvern property, including Ms Key’s statement that she lives at the Malvern property with Mr McIlroy and their children”.

40 Two issues arise from these findings which need reconsideration in this Appeal. The first is the impact of the new evidence which has been allowed to be adduced which throws doubt on both the “one-third” residence split between Melbourne, Palm Beach and overseas, and on the nature of the Respondent’s occupancy of the property. The second is whether the factors relied on by the learned Tribunal member in accordance with Ferrington’s case were sufficient to outweigh the likelihood of the more usual state of affairs, namely, that a person’s principal place of residence is where he or she spends the most time, and which is shared (where applicable) with his or her spouse and children.

41 The evidence brought before the Appeal Panel showed that the time spent at Palm Beach was much less than 1/3 of the respondent’s time; in fact, only about 10%-13% each year was spent at Palm Beach, much of which represents the Christmas/New Year period. In contrast, generally around 60% (but 50% in 2004 and 65% in 2005) of his time was spent in Melbourne.

42 The Appeal Panel is of the view that the discrepancy between the evidence given before the learned Tribunal member and that before the Appeal Panel is significant, and ought properly be taken into account when considering whether the “correct and preferable” decision has been made by the Tribunal.

43 The second factor is whether the subjective intention of the Respondent is such that it overcomes the otherwise heavy evidentiary weight to be accorded to the amount of time spent by him in Melbourne and the fact that his family life occurred there, each of which suggests that his principal place of residence was in Melbourne.

44 The factors referred to in Ferrington have been widely adopted in decisions under the First Home Owner Grant 2001. They may be summarised as follows (at [42], with dot points added for clarity and case references removed for ease of reading):-

· First, the words “principal place of residence” should be given their ordinary meaning in the context in which they appear ... Thus the Commissioner’s reference to the provisions of the Land Tax Management Act 1956 is of no assistance.

· Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling ...

· Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue ...

· Fourthly, to occupy a home as his or her principal place of residence a person’s occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose ...

· Fifthly, the short length of a person’s residence, while relevant, is not determinative of the issue. ... This is so since a recipient’s occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one's principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible ....

· Sixthly, the reasons for a person’s departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances ... In Bates the Tribunal said that “whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant” was a factor to be considered. While that is undoubtedly correct, it should not be read as stipulating a requirement that the reasons for departure must be entirely out of that person’s control. The facts in Gaines illustrate that there are circumstances, peculiar to the individual concerned, which may, objectively viewed, adequately and reasonably explain a person’s decision to move out of a property, but which are not entirely out of the person’s control.

45 Because the Appeal Panel in Ferrington was reviewing a decision made under the First Home Owner Grant 2001, it did not consider it appropriate to adopt the meaning of the words “principal place of residence” as used in the Land Tax Management Act. However, this Appeal Panel considers that the factors in Ferrington, while not formulated for applying the specific legislation relevant here, are nevertheless of assistance in construing that legislation. They are not necessarily determinative, and do not displace the developed case law on the meaning of the phrase where it is used in the Land Tax Management Act.

46 Having said that, the third and fourth factors are those which were taken into account and relied upon by the learned Tribunal Member. Given the new evidence, and given the weight that the Appeal Panel would place upon the family life which Mr McIlroy shares with his partner and children in Melbourne, it appears to us that too heavy a reliance was placed upon the emotional connection, the length of occupation, and the subjective intention of the appellant with regards to the Palm Beach property. Where that property is occupied only around 10% of the time, and usually (even if not exclusively) over holiday periods, and the property is not the principal place of residence of the rest of the family, it seems to us that considerably more than subjective intention and emotional connection is required to overcome the very significant weight of the fact that the respondent is in a committed relationship with his partner, and that his partner lives in Melbourne. There was no evidence that he and his partner were separated, and there was no explanation for their having separate principal places of residence apart from the respondent’s history of maintaining the Palm Beach property as a residence for the use of his family.

47 The Appeal Panel considers that, having regard to:-

a) the evidence of the amount of time spent at Malvern in each relevant year;

b) the pattern of the Respondent’s occupation of the Palm Beach property, which is more consistent with a holiday house than a regular residence; and

c) the listing of the Malvern address for almost all official purposes such as voter registration, immigration notices and the like; and

d)the other factors considered above,

48 the correct and preferable decision is that the appeal be allowed, and the Commissioner’s decision be affirmed.

Orders

49 Appeal allowed.

50 Decision of the Tribunal below is set aside.

51 In substitution for the decision of the Tribunal, the original decision of the Appellant is affirmed.