Chung v Chief Commissioner of State Revenue

[2025] NSWCATAD 229

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chung v Chief Commissioner of State Revenue [2025] NSWCATAD 229

Hearing dates:

18 August 2025

Date of orders:

15 September 2025

Decision date:

15 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

(1) The assessments under review for 2019-2023 are confirmed.

(2) The matter is otherwise remitted to the Chief Commissioner of State Revenue for determination in accordance with this decision.

Catchwords:

ADMINISTRATIVE LAW - administrative review - assessment - objection - review by Civil and Administrative Tribunal

STATE TAXES - land tax - exemption - low cost accommodation - boarding house - Treasurer’s guidelines - registration of boarding house - substantial compliance

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Boarding Houses Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Land Tax Management Act 1956 (NSW)

Taxation Administration Act 1996 (NSW)

Cases Cited:

Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107

Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19

Commissioner of Taxation v Ryan [2000] HCA 4

Hunter Resources Ltd v Melville [1988] HCA 5

Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133

Perry Properties Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 274

Project Blue Sky v ABA [1998] HCA 28

Strathavon Resort Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 200

Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54

Category:

Principal judgment

Parties:

Lucy Tie Ge Chung (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Self-represented (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2025/00150276

Publication restriction:

None

REASONS FOR DECISION

1. This is an application for review of a decision of the Chief Commissioner of State Revenue (“the Respondent”) to assess land tax for land tax years 2019 to 2024 on Lucy Tie Ge Chung. She is the applicant in this matter (“Applicant”).

2. The dispute between the parties concerned whether or not the Applicant was entitled to an exemption from land tax for these years, under s 10Q of the Land Tax Management Act 1956 (NSW) (“LTMA”). That provision allowed exemption from land tax for certain land used as a boarding house.

3. The Respondent before hearing accepted that exemption applied for the 2024 land tax year. What remained in dispute was whether land tax applied for the 2019 to 2023 years.

4. The Applicant says that she is not liable for land tax because she satisfied the requirements for exemption under s 10Q of the LTMA.

5. The Respondent disagrees. The Respondent says that exemption from land tax can only apply if there was full compliance with the requirements for exemption set out in s 10Q and that full compliance was not shown.

Background

6. The Applicant acquired the land in issue in October 2002.

7. The building on the land has two floors.

8. The upper floor contains 6 bedrooms and 4 bathrooms which are used for a boarding house. The lower floor contains a bedroom, 3 bathrooms, kitchen, common room, open dining, store room and tiled terrace used as part of the boarding house.

9. The remainder of the lower floor contains the Applicant’s residence.

10. On 18 January 2019, the respondent, the Chief Commissioner of State Revenue (“Respondent”) issued a land tax assessment notice for the 2019 land tax year in relation to the land. The assessment also included unpaid land tax and interest for the 2017 and 2018 land tax years.

11. On 21 March 2019, the Respondent advised the Applicant’s son that the Applicant should lodge a land tax return online to avoid debt recovery action.

12. Following further correspondence between the parties, on 24 October 2019, the Respondent issued a land tax assessment notice for the 2015 to 2019 land tax years assessing the land as liable for land tax.

13. On 22 January 2020, the Respondent issued a land tax assessment notice for the 2020 land tax year, assessing the land as liable for land tax.

14. Following further correspondence, on 20 January 2021, the Respondent issued a land tax assessment notice for the 2021 land tax year, assessing the land as exempt from land tax as the Applicant’s principal place of residence.

15. On 4 August 2021, the Respondent issued a land tax assessment notice for the 2021 land tax year reassessing the land as liable for land tax.

16. On 5 January 2022, the Respondent issued a land tax assessment notice for the 2022 land tax year assessing the land as liable for land tax.

17. After further correspondence about whether the exemption for boarding houses applied, on 18 January 2023, the Respondent issued a land tax assessment notice for the 2023 land tax year, assessing the land as liable to land tax.

18. On 30 June 2023 and 28 July 2023, the Respondent wrote to the Applicant advising her to lodge a variation return if she wished to apply for a land tax exemption.

19. On 28 August 2023, the Applicant completed an application to register the land as a boarding house under the Boarding Houses Act 2012 (NSW) (“BHA”). On 1 September 2023, Service NSW received the Applicant’s application. On 4 September 2023, the Department of Customer Service approved the registration as a boarding house in the general category.

20. On 5 September 2023, the Applicant lodged an application for exemption for use of the land as a boarding house.

21. On 7 December 2023, the Respondent issued a land tax assessment for the 2019 to 2023 land tax years, assessing the land as liable for land tax, the assessment including interest in respect of the 2019 to 2023 land tax years. These are the assessments in dispute.

22. On 30 January 2024, the Applicant objected to the assessments of land tax for the 2019 to 2023 land tax years.

23. A land tax assessment issued for the 2024 land tax year was also a subject of objection but is no longer in dispute. The Respondent determined that exemption applied for that year.

24. The Respondent determined the objection on 18 December 2024 and was part allowed. That part allowance applied to the part of the land assessed to have been used by the Applicant as her principal place of residence. The Respondent disallowed the objection for the remainder of the land used as a boarding house.

25. On 17 April 2025, the Applicant made application for administrative review by the Civil and Administrative Tribunal (“Tribunal”) of the Respondent’s decision disallowing her objection in part.

Applicant’s rights of review

26. Where tax has been assessed, s 86 of the Taxation Administration Act 1996 (NSW) (“Administration Act”), allows rights of objection to a taxpayer dissatisfied with an assessment, including an assessment of the kind made in this matter. This is an internal review process under which the Chief Commissioner of State Revenue, the Respondent in these proceedings, must consider and determine the objection (s 91 of the Administration Act).

27. A taxpayer who is dissatisfied with the decision made upon the Respondent’s determination of an objection, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”)of the decision of the Chief Commissioner of State Revenue.

28. These circumstances have arisen in the present matter as set out in the background above, so bringing the matter within the jurisdiction of the Tribunal.

29. The onus of proving her case lies with the Applicant (s 100(3) of the Administration Act).

30. The Tribunal, dealing with the taxpayer’s application, may do one or more of the following under s 101 of the Administration Act:

“(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit.”

Consideration

31. Under s 7 of the LTMA, land tax is to be levied and paid on the taxable value of all land situated in NSW which is owned by taxpayers other than land which is exempt from taxation under the LTMA.

32. Section 10Q of the LTMA allows exemption from land tax for certain boarding houses. It provided as follows during the relevant times:

“10Q   Low cost accommodation—exemption/reduction

(1)  Land is exempted from taxation under this Act leviable or payable in respect of the year commencing on 1 January 1995 or any succeeding year if—

(a)  the land is used and occupied primarily for low cost accommodation, and

(b)  application for the exemption is made in accordance with this section, and

(c)  the Chief Commissioner is satisfied that the land is so used and occupied in accordance with guidelines approved by the Treasurer for the purposes of this section.

(2)  The guidelines may include provisions with respect to the following—

(a)  the circumstances in which accommodation is taken to be low cost accommodation,

(b)  the types and location of premises in which low cost accommodation may be provided,

(c)  the number and types of persons for whom the accommodation must be provided,

(d)  the circumstances in which, and the arrangements under which, the accommodation is provided,

(e)  maximum tariffs for the accommodation,

(f)  periods within which tariffs may not be increased,

(g)  the circumstances in which the applicant is required to give an undertaking to pass on the benefit of the exemption from taxation (or, if subsection (4) applies, the reduction in taxation) to the persons for whom the accommodation is provided in the form of lower tariffs.

(3)  A guideline may—

(a)  apply generally or be limited in its application by reference to specified exceptions or factors, or

(b)  apply differently according to different factors of a specified kind,

or both.

(4)  If the Chief Commissioner is satisfied that part only of land or premises is used and occupied primarily for low cost accommodation in accordance with the Treasurer’s guidelines, the land value of the land is to be reduced for the purposes of land tax in accordance with the principles in section 10R (3)–(3C).

(5)  This section does not apply to an owner of land in respect of a tax year unless—

(a)  the owner applies to the Chief Commissioner for the exemption or reduction, in the form approved by the Chief Commissioner, and

(b)  the owner furnishes the Chief Commissioner with such evidence as the Chief Commissioner may request for the purpose of enabling the Chief Commissioner to determine whether there is an entitlement to the exemption or reduction.

(6)  Without limiting the other ways in which this section may cease to apply to a person, it ceases to apply to a person if the person breaches an undertaking given as referred to in subsection (2) (g)”.

33. Guidelines approved by the Treasurer for the purposes of s 10Q are set out in two sets of revenue rulings. One applies in respect of land in NSW used as a boarding house. The other applies in respect of land used for certain other low cost accommodation. The first set of guidelines are contained in the following rulings for each relevant land tax year:

1. 2019 land tax year – Revenue Ruling LT 104

2. 2020 land tax year – Revenue Ruling LT 106

3. 2021 land tax year – Revenue Ruling LT 108

4. 2022 land tax year – Revenue Ruling LT 111

5. 2023 land tax year – Revenue Ruling LT 113

(“Relevant Guidelines”).

34. Clause 6 of LTA104 provides as follows:

“For the purposes of these guidelines:

…..

“Boarding house” means premises which:

i. are registered under theBoarding Houses Act 2012 as either a general boarding house or an assisted boarding house; and

ii. are used and occupied by long term residents who:

a. are not members of the family of the owner or manager; or

b. are not directors or shareholders or members of the family of a director or a shareholder of a company if the company is the owner; and

iii. are not premises which are licensed under theLiquor Act 2007; and

iv. are not used and occupied by persons who are subject to a Residential Tenancy Agreement under theResidential Tenancies Act 2010; and

v. are not premises used as a backpacker’s hostel, serviced apartment or tourist accommodation”.

35. The Relevant Guidelines for subsequent years are in materially the same form. Each defines a “boarding house” to mean relevant premises that are registered under the BHA.

36. The Relevant Guidelines then set out various criteria for exemption from land tax for a “boarding house” so defined. Clause 3 of LTA 104 for 2019 provides that:

“Land used as a NSW boarding house is exempt from land tax for the 2019 land tax year if the following criteria are met:

i. Land that is used as the site of a boarding-house is exempt from land tax for the whole of 2019 if:

a. the land was used as a boarding house for the whole or part of the 2018 calendar year (called the “preceding year”); and

b. in respect of at least 80% of the total accommodation that was actually occupied during the period of operation as a boarding house in 2018:

A. the occupants were long term residents (as defined); and

B. the maximum tariffs charged were no more than the tariff limits specified or calculated in accordance with paragraphs 3 and 4 for that year;

c. the owner agrees that, in respect of at least 80% of the accommodation that will be occupied in 2019:

C. the occupants will be long term residents; and

D. the maximum tariffs charged will be no more than the tariff limits calculated in accordance with paragraphs 4 and 5 for that year”.

37. Clause 3 of the other Relevant Guidelines for later years contain comparable but not identical provisions allowing exemption for “boarding houses”, provided that the conditions they set out are satisfied.

38. In each case, the Relevant Guidelines apply if registration under the BHA has been obtained. They cannot apply if registration has not been obtained.

39. The BHA sets out what its object is in s 3. Section 3 provides:

“3   Object of this Act

The object of this Act is to establish an appropriate regulatory framework for the delivery of quality services to residents of registrable boarding houses, and for the promotion and protection of the wellbeing of such residents, by:

(a)  providing for a registration system for registrable boarding houses, and

(b)  providing for certain occupancy principles to be observed with respect to the provision of accommodation to residents of registrable boarding houses and for appropriate mechanisms for the enforcement of those principles, and

(c)  providing for the licensing and regulation of assisted boarding houses and their staff (including providing for service and accommodation standards at such boarding houses), and

(d)  promoting the sustainability of, and continuous improvements in, the provision of services at registrable boarding houses”.

40. The system of registration under the BHA, in other words, is intended to be part of the scheme of the regulatory framework. That regulatory framework has the object of the delivery of quality services to residents of registrable boarding houses, and for the promotion and protection of the wellbeing of such residents.

41. Section 8 defines what registration is, in the following terms:

“8   Meaning of “registered”

A registrable boarding house is registered for the purposes of this Part if the particulars of the boarding house are currently included in the Register”.

42. Section 5 of the BHA sets out the meaning of a “registrable boarding house”. It provides:

“5   Meaning of “registrable boarding house”

(1)  For the purposes of this Act, a registrable boarding house means any of the following:

(a)  a general boarding house,

(b)  an assisted boarding house that is required to be authorised under Part 4 for it to be lawfully used as such under that Part (a regulated assisted boarding house).

(2)  Boarding premises are a general boarding house if the premises provide beds, for a fee or reward, for use by 5 or more residents (not counting any residents who are proprietors or managers of the premises or relatives of the proprietors or managers)”.

43. It was not in dispute that the Applicant obtained registration of the land as a boarding house under the BHA in 2023 and that before that year, it had not been registered.

44. The Applicant’s case is that while the land was not registered as a boarding house until 2023, it had been used as such to provide low cost accommodation since 2005. She said that the delay in registration was because she was unaware of the scheme for registration. Her evidence was that this occurred in the context of health issues that impeded her. She also said that she had suffered financial hardship.

45. The Respondent, on the other hand, said that he had to be satisfied that the land was used and occupied primarily for low cost accommodation in accordance with the Relevant Guidelines pursuant to s 10Q(1)(c) of the LTMA. The Relevant Guidelines, in the Respondent’s submission, required that the land in question had to be registered under the BHA as a general or assisted boarding house. He said that it was not sufficient for the Applicant to establish that the land was in fact used as a boarding house during the relevant years if that use was not in accordance with the Relevant Guidelines, that is, if the land so used had not been registered under the BHA as required by the Relevant Guidelines.

46. The Court of Appeal in Perry Properties Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 274 considered the application of the exemption under s 10Q of the LTMA and the guidelines s 10Q contemplated. Meagher JA said, at [25] – [29]:

“Section 10Q(1) exempts land from taxation if three conditions are satisfied. Those conditions are set out in s 10Q(1)(a), (b) and (c). Paragraph (a) describes an objective state of affairs, namely that the land is used and occupied primarily for low cost accommodation. Paragraph (b) is concerned with a procedural matter. It requires that the application for exemption, which by s 10Q(5) must be made for the section to apply, be made in the form approved by the Chief Commissioner and with such evidence as may be requested in accordance with s 10Q(5)(b). Paragraph (c) requires that the Chief Commissioner be satisfied that the land “is so used and occupied in accordance with guidelines approved by the Treasurer”. The expression “so used and occupied” refers to the use and occupation described in s 10Q(1)(a). Understood in this way, paragraph (c) by its terms requires that the Chief Commissioner be satisfied that land, which is used and occupied primarily for low cost accommodation, is used and occupied in accordance with guidelines which describe particular types or forms of low cost accommodation or the circumstances in which it must be provided. If the object of the guidelines had been to provide guidance to the Chief Commissioner in being satisfied that the land was being used in accordance with s 10Q(1)(a), the phrase “in accordance with guidelines” would more naturally have appeared after the words “is satisfied”.

There are other indications in the language of s 10Q which confirm that paragraph (c) is to be read in this way. First, where one condition for exemption is the fact that the land is used and occupied primarily for low cost accommodation (which is the effect of paragraph (a)), there is no good reason for imposing a further condition, framed in the “subjective” form, that the Chief Commissioner be satisfied of that fact. Secondly, the Chief Commissioner, who has responsibility for the general administration of the Taxation Administration Act 1996 (the TAA Act), is given no power to approve or vary the guidelines. They are to be approved by the Treasurer which is consistent with their purpose being to enable the Treasurer to determine which land used and occupied primarily for low cost accommodation is to be entitled to an exemption in any tax year.

Thirdly, the terms of s 10Q(2) show that their purpose is not to provide guidance as to how the Chief Commissioner might be satisfied of the fact in paragraph (a), but rather to describe types or forms of, or arrangements for, low cost accommodation to which the exemption is to apply. For example, s 10Q(2)(c) and (d) provide that the guidelines may specify the number and types of persons for whom the low cost accommodation “must” be provided or the circumstances in which, and the arrangements under which, the accommodation “is provided”. Similarly, s 10Q(2)(g) provides that the guidelines may set out circumstances in which the applicant for exemption is “required” to give an undertaking to pass on the benefit of the exemption to the persons for whom the accommodation is provided.

This is also apparent from the terms of s 10Q(3) which provide that the guidelines may operate by inclusion or exclusion and differently depending upon specified circumstances. That they might do so is only consistent with their purpose being to identify the particular low cost accommodation to which the exemption is to apply.

By imposing the condition that the Chief Commissioner be satisfied that land answering the description in s 10Q(1)(a) is used “in accordance with the guidelines”, the guidelines are able to be used to limit the availability of the exemption so as to encourage particular low cost accommodation outcomes by providing the exemption as an incentive. Reference to the history of this legislation and its context confirms that the guidelines were intended to be used in this way and to allow flexibility in the identification of the low cost accommodation to which the exemption was to apply” (emphasis added).

47. Payne JA, considering the decision in Perry Properties, said in Antegra Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 107, at [97] – [100]:

“A number of things follow from Perry Properties. First, the Commissioner (and the Court standing in the shoes of the Commissioner) is obliged to apply the guidelines as correctly construed. It is not for a taxpayer or the Court on review to seek to rewrite the terms of the guidelines, based on policy arguments particular to an individual taxpayer. Secondly, where guidelines are updated or replaced, as has happened in this case, the updated determination of policy reflected in that updated or replaced guideline must be applied. There is no discretion reposed in the Commissioner, or the Court, to continue to apply guidelines which have been updated or replaced. Thirdly, the guidelines impose a limitation upon the availability of the exemption for what is otherwise, objectively, ”low cost accommodation”. Fourthly, the guidelines approved by the Treasurer may contain pre-conditions or requirements which limit the availability of the exemption. In the case of Perry Properties, that structural limitation was a requirement that as a pre-condition to the availability of the exemption a low cost boarding house needed 80% of its residents to have had three months’ continuous or cumulative residence. That finding has a counterpart here with the requirement that low cost accommodation the subject of guideline versions 2 and 3 must first be a ”community or residential community” within the meaning of the RLLC Act.

It follows that I reject the plaintiffs’ central argument that the correct approach to s 10Q is to ask whether:

(1) land was used and occupied primarily for low cost accommodation (by which the plaintiffs meant that the land was a ”community or residential community” whether or not the RLLC Act applied to the land);

(2) application for the exemption was made in accordance with s 10Q; and

(3) the Court is satisfied that the land was so used and occupied in accordance with the guidelines by finding that:

(a) the land was a ”residential park” (in the 2016 year or in all tax years) or ”community or residential community” within the meaning of the RLLC Act (2017, 2018 or all tax years) comprising a ”manufactured home estate”;

(b) the land was taken to be registered as a ”community” under the RLLC Act (2017, 2018 or all tax years);

(c) the land (or its component lots) comprised a ”parcel of land” used for the purposes of a ”community” and no part of the land (or its component lots) were used for another purpose (2017, 2018 or all tax years); and

(d) more than 50% of the sites available for hire or rent were residential sites that were occupied or intended for occupation only by retired persons under residential site agreements (2016 or all tax years) or more than 50% of the homes on the land (or its component lots) were used and occupied by at least one qualifying home owner under a site agreement (2017, 2018 or all tax years).

Addressing the first step in that argument, I reject the plaintiffs’ submission that the Court should first address whether ”land was used and occupied primarily for low cost accommodation”. Whilst it is true that the land the subject of s 10Q must objectively meet the description of ”low cost accommodation”, to determine that issue first and in a vacuum would tend to confuse rather than clarify the analysis of the availability of the exemption. This is because the guidelines are not designed to give guidance to the Commissioner in being satisfied that land is used and occupied primarily for low cost accommodation. To the contrary:

“By imposing the condition that the Chief Commissioner be satisfied that land answering the description in s 10Q(1)(a) is used ’in accordance with the guidelines’, the guidelines are able to be used to limit the availability of the exemption so as to encourage particular low-cost accommodation outcomes by providing the exemption as an incentive”. [8]

On the assumption (which for the sake of the analysis I will make here) that the plaintiffs’ land met the description of ”low cost accommodation” in s 10Q(1)(a) as a matter of objective fact, the guidelines limit the availability of the exemption and encourage particular types of ”low cost accommodation outcomes”. In circumstances where the essence of the parties’ dispute is whether the plaintiffs’ land falls within the requirements of the guidelines, it is neither appropriate nor useful first to delve into the issue of whether the land in question meets the description of ”low cost accommodation” in the abstract. It is not helpful to address, as the plaintiffs submitted I should, the subject of whether the land is objectively being used and occupied for ”low cost accommodation” under s 10Q if it is a ”residential park” or ”community or residential community” comprising a ”manufactured home estate” primarily used and occupied by ”retired persons”, regardless of whether or not the RLLC Act applied to the land. This is because, as Perry Properties establishes, the Court standing in the shoes of the Commissioner is obliged to apply the guidelines as correctly construed.” (emphasis added)

48. Section 10Q does not contemplate that the use and occupation of land primarily for low cost accommodation, can of itself allow for exemption to apply. In addition, the Chief Commissioner must, in the present case, be satisfied that the land is so used and occupied “in accordance with” the Relevant Guidelines.

49. The Relevant Guidelines require, among other things, that land be used as a “boarding house” for the whole or part of the relevant calendar year. What is a “boarding house” in turn is defined in cl 6 to mean premises that are, among other things, “registered under the Boarding Houses Act 2012 as either a general boarding house or an assisted boarding house”. The requirement set out in cl 3, in other words, is that to obtain exemption, land must be used as a “boarding house” as defined in cl 6, that is, the land must have been registered under the BHA when it was so used.

50. It was agreed that during the land tax years in dispute, the land in issue was not registered as a boarding house under the BHA. The absence of that registration means that the land in question did not satisfy the requirements of cl 3 of the Relevant Guidelines in that the land was not used during these years as a boarding house registered under the BHA.

51. The Tribunal in Strathavon Resort Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 200 accepted that a failure to register a boarding house under the BHA resulted in exemption under s 10Q not applying.

52. The requirement to register under the BHA limits the exemption under s 10Q by bringing to bear upon s 10Q, the scheme under the BHA for low cost accommodation. The Court of Appeal in Perry Properties said that the guidelines can be used “to limit the availability of the exemption so as to encourage particular low cost accommodation outcomes by providing the exemption as an incentive”. I do not think that limits on the availability of exemption resulting from a requirement to register under the BHA is a limit that is of a kind that falls outside what is described in Perry Properties.

53. The Applicant’s submission is that she satisfied the requirements for registration during the years in issue and for that reason, she complied with cl 3, even if she had not taken the step of actual registration under the BHA. The Tribunal understands her submission to be that these circumstances gave rise to substantial compliance with the requirement for registration under the BHA and to that extent, she satisfied the Relevant Guidelines.

54. The Applicant’s submission requires consideration of the scheme of the BHA and the function of registration within that scheme. The BHA expresses as its object the establishment of an appropriate regulatory framework for the delivery of quality services to residents of registrable boarding houses, and for the promotion and protection of the wellbeing of such residents (s 3 of the BHA). Registration is part of that scheme (see [39] - [40] above).

55. Once registered, the BHA allows for certain information contained in the Register about registrable boarding houses to be published on the Internet for public access (s 14 of the BHA). A member of the public may, as a result of that publication, access information about a boarding house and know that the boarding house is registered under and governed by the scheme of the BHA. A consequence of registration, in other words, is that a member of the public may obtain that assurance.

56. Registration, in these circumstances, cannot be said to be of no importance. It is a functioning part of the regulatory scheme. Even if the Applicant can show that she satisfied the requirements to allow for registration and was able to obtain registration at all relevant times, absent registration, I do not think that there can be substantial compliance with the requirements of s 10Q and the guidelines made under the provision.

57. In any event, there is no clear acceptance in Australia of the doctrine that “substantial compliance” with the provisions of a statute generally can be taken to be compliance, whether in the taxation context or otherwise. Dawson J in Hunter Resources Ltd v Melville [1988] HCA 5 observed “that there are some statutory requirements with which there cannot be substantial compliance - either they are complied with or not”( at [6]); see also Project Blue Sky v ABA [1998] HCA 28, at [92]. In the present case, where the requirement for registration is expressed in clear and unambiguous terms, there may be little scope for application of the doctrine of substantial compliance.

58. For these reasons, the failure to obtain registration under the BHA during the land tax years in dispute must mean that the Applicant’s claim for exemption under s 10Q of the LTMA fails.

Interest

59. The assessments in dispute included assessments of interest at the market and premium rates. That interest may be remitted in part or whole under s 25 of the Administration Act.

60. The rationale for the market rate of interest is described as follows in Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19 and why it should be waived only rarely, at [60]:

“In our view the primary interest rate (the market rate component) is intended to compensate the Commissioner (on behalf of the Government of New South Wales) for not having the benefit of the tax payment from the time it was due. So a rate is set which fluctuates, and is connected to an external rate, the Reserve Bank’s Accepted Bill rate. This, as we see it, is a component that could rarely, if ever, be waived as otherwise tax would be paid at a devalued amount thereby discriminating against taxpayers who meet their obligations on time. The Tribunal made the observation at [50] that to justify any remission of the market rate component of interest, it would be necessary to show that in some way the Commissioner contributed to the default. We agree with this observation”.

61. In the absence of fault on the part of the Respondent or other circumstances to justify remission, interest assessed at the market rate should stand.

62. Whether interest at the premium rate should be remitted turns on different considerations. The taking of reasonable care by the Applicant or the existence of exceptional circumstances may warrant a remission of interest assessed at the premium rate. Personal circumstances of the Applicant apparent from the evidence relevant to establishing the degree of culpability may also be relevant to remittal of interest assessed at the premium rate (Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [82]).

63. I am unable to find that the Applicant took reasonable care or that the tax defaults arising occurred only because of exceptional circumstances. She was aware of potential liability for land tax in 2019 and before. The evidence reveals correspondence dating from 2018, 2019, 2020, 2021 and 2022 in respect of overdue land tax from the Respondent to the Applicant. However, the tax defaults in issue nevertheless took place.

64. The Applicant gave evidence of her ill health. She said that she was an NDIS participant with long term physical and mental health conditions. She said that she had suffered a fall in 2024 resulting in a loss of mobility and was unable to manage her administrative affairs. She said that this is in part why she took the length of time she did to understand the conditions she needed to satisfy in order to claim exemption under s 10Q of the LTMA.

65. The Respondent accepted the personal circumstances of the Applicant revealed by the medical evidence as being relevant to a determination of whether interest assessed at the premium rate should be remitted. However, the Respondent also submitted that there had been a long history of defaults and that the medical evidence did not fully explain these defaults.

66. I accept the Applicant’s evidence as to her poor health and medical circumstances. These are matters that are relevant to a determination of whether premium interest should be remitted. I do not, however, think that a remittal of the entire amount of interest assessed at the premium rate is warranted in circumstances where the Applicant was aware of the liability for land tax during the period in issue as well as interest that had accrued and yet took no action in response to numerous overdue land tax notices.

67. The Respondent at the hearing conceded that half the interest assessed at the premium rate should be remitted. I think that the concession was correctly made, in view of the Applicant’s health issues and medical condition.

68. The Applicant said that she had sought an explanation from the Respondent as early as 2014 about how the exemption from land tax for boarding houses worked. She attributes the delay in complying with the requirements for claiming exemption to the absence of guidance from the Respondent. The Respondent, however, has no obligation to guide or advise the taxpayer as to its obligations. It is for the taxpayer to understand and comply with their obligations at law, including what they need to do to obtain exemption. The absence of advice or guidance from the Respondent are not matters that can have a bearing on whether or not interest at the premium can be assessed and if so, the quantum.

Fairness

69. The Applicant made a claim for relief on the basis of fairness. As regards questions of fairness of the outcomes under a taxation law, the High Court in Commissioner of Taxation v Ryan [2000] HCA 4 said:

“But the question for decision is what are the circumstances in which an amended assessment may lawfully be issued? That question is not answered by asserting the existence of any ”policy” or ”general intention” unless that policy or intention is to be found reflected in the provisions of the Act. Appeals to general notions of ”fairness” or ”justice” do no more than attempt to mask the absence of any foundation in the legislation for the conclusion which is asserted.”

70. The Tribunal has applied this principle in numerous cases, confirming that there is no discretion to relieve a taxpayer of a tax liability on grounds of unfairness.

Hardship

71. The Applicant made submissions as to the financial hardship she suffered. The Tribunal does not have jurisdiction to determine the matter on the basis of hardship (Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133). Division 5 of Part 10 of the Administration Act establishes and empowers a Hardship Review Board to deal with cases in which the exaction of the full amount of tax would result in serious hardship for the person or the person’s dependants. The remaining avenue available to the Applicant would therefore be an application to the Hardship Review Board.

Post-hearing submissions

72. The Applicant made certain written submissions after the hearing. No provision had been made in the Tribunal’s orders for such submissions. In these circumstances, I do not need to consider these submissions. I have, however, reviewed them and find nothing in these submissions that has a bearing on my reasons and conclusions.

Conclusions

73. The Tribunal finds that:

1. The assessments of land tax for 2019-2023 should stand;

2. The assessment of interest at the market rate should stand;

3. The amount of interest assessed at the premium rate should be reduced by half.

Orders

1. The assessments under review for 2019-2023 are confirmed.

2. The matter is otherwise remitted to the Chief Commissioner of State Revenue for determination in accordance with this decision.

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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: 15 September 2025