Clark v Chief Commissioner of State Revenue
[2010] NSWADT 110
•11 May 2010
CITATION: Clark v Chief Commissioner of State Revenue [2010] NSWADT 110 DIVISION: Revenue Division PARTIES: APPLICANT
RESPONDENT
Robert Clark
Chief Commissioner of State RevenueFILE NUMBER: 086092 HEARING DATES: 24 February 2010 SUBMISSIONS CLOSED: 24 February 2010
DATE OF DECISION:
11 May 2010BEFORE: Hole M - Judicial Member LEGISLATION CITED: Land Tax Management Act 1956
Taxation Administration Act 1996 (NSW)CASES CITED: Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41
Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57
Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21
Commissioner of Taxation v Miller (1946) CLR 93
Deane v Commissioner of Stamp Duties [1996] 2 QdR 557
Frost (Inspector of Taxes) v Feltham [1981] 1 WLR 452
Nixon v Federal Commissioner of Taxation cited 79 ATCREPRESENTATION: APPLICANT
A O'Brien, counsel / W Thomas, Thomas and Co.
RESPONDENT
A H Rider, counsel / M Twohill, Crown Solicitor's OfficeORDERS: 1. The decision of the Chief Commissioner of State Revenue is confirmed.
1 The applicant has made this application in respect of the assessment to land tax for the land tax years 2003 to 2007 inclusive in relation to a property at Mollymook (“the subject property”) in respect of the decision made by the respondent on 9 July 2008.
Facts
2 The facts in relation to the ownership of properties is as follows:
- the applicant and his wife were the owners of a house in Mosman (“Mosman house”) as at 1998;
- the applicant purchased the subject property in April 1998;
- between September 1998 and 1999 the applicant renovated the subject property;
- during the period December 1999 to January 2000 the applicant rented out the subject property for two separate holiday lettings;
- the applicant and his wife sold the Mosman house in late 2000 early 2001. They then purchased a townhouse in Mosman (“Mosman townhouse”) in late 2000 early 2001;
- as at 31 December 2002 the applicant was the registered proprietor of the subject property;
- as at 31 December 2002 the applicant and the applicant’s wife were the registered proprietors of the Mosman Townhouse;
- on 26 October 2004 a Land Tax 2005 Registration Form was forwarded to the applicant and his wife;
- in response to the forwarding of the Land Tax 2005 Registration Form that form was completed and signed by the applicant’s wife and returned to the OSR dated 22 November 2004. This completed form referred only to the Mosman townhouse claiming exemption as principal place of residence and disclosing the owners being (1) the applicant’s wife and (2) the applicant;
- on 15 May 2007 a land tax questionnaire was forwarded to the applicant care of his post office box;
- the land tax questionnaire was completed on 12 May 2007. This questionnaire discloses both the applicant and his wife as the owners and is signed by the applicant. This questionnaire discloses the subject property and the Mosman townhouse showing 100% owned for the subject property and 50% owned for the Mosman townhouse, the questionnaire is signed by the applicant and claims an exemption for the subject property for principal place of residence;
- on 14 June 2007 a letter was forwarded by the OSR to the applicant disallowing the claim for exemption for the subject property as principal place of residence for the 2003 to 2007 tax years. This letter enclosed Land Tax Notice of Assessment for the 2003, 2004, 2005, 2006 and 2007 tax years; and
- on 24 June 2007 the applicant forwarded a letter to the OSR disagreeing with the assessment and lodging an objection to that assessment.
Legislation
3 The relevant legislation for the 2003 tax year is sections 3 and 10 Land Tax Management Act 1956 (“LTMA”) as set out below:
“ 3 Definitions
(1) In this Act, unless the context or subject-matter otherwise indicates or requires:
…
“principal place of residence” of a person means the one place of residence that is, among the one or more places or residence of the person within and outside Australia, the principal place of residence of the person.
…
(3) 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 a 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.
…
10 Land exempted from tax
(1) Except where otherwise expressly provided in this Act the following lands shall, subject to sections 10AA, 10B, 10D, 10E, 10G and 10P, be exempted from taxation under this Act:
…
(r) with respect to taxation leviable or payable in respect of the year commencing on 1 January 1998 or any succeeding year, land that has a land value in respect of the year of less than the premium tax threshold and that is used and occupied as the principal place of residence of the owner of the land (or, if there are joint owners, as the principal place of residence of one or more of them) and for no other purpose (except as provided by subparagraph (iii)), being:
…
(ii) a parcel of residential land …”
4 The relevant legislation for the 2004 to 2007 tax years is section 3, clause 2 Part 2 Schedule 1A, clause 5 and clause 8 Part 3 Schedule 1A and clause 12 Part 4 Schedule 1A LTMA as set out below:
“ 3 Definitions
(1) In this Act, unless the context or subject-matter otherwise indicates or requires:
…
"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.
…
SCHEDULE 1A – Principal place of residence exemption
…
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 … if the land is:
(a) a parcel of residential land, or
(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".
(5) The principal place of residence exemption is subject to the restrictions set out in Part 4.
…
Part 3 - Concessions in application of principal place of residence exemption
…
5 Concession for land used for incidental business purposes
(1) For the purposes of the principal place of residence exemption, if land owned by a person is used and occupied by the owner primarily for residential purposes but not more than one room is used primarily for business purposes, the use of the land for the purpose of the business may be disregarded if the business is primarily conducted elsewhere.
(2) Accordingly, land does not cease to be residential land because of the use of one room primarily for business purposes, even if income is derived from the use of the land for that purpose.
…
8 Concession for absences from former residence
(1) If the Chief Commissioner is satisfied that:
(a) a person is the owner of land ( "the former residence") that has been used and occupied by the person as his or her principal place of residence for a continuous period of at least 6 months, and
(b) the person uses and occupies other land (whether or not in New South Wales), that is not owned by the person, as his or her principal place of residence,
the person is taken, for the purpose of the principal place of residence exemption, to continue to use and occupy the former residence as his or her principal place of residence.
…
Part 4 Restrictions
…
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 .
…”
5 Section 100(3) Taxation Administration Act 1996 (NSW) (“Tax Act”) provides that the applicant has the onus of proving the applicant’s case in an application for review.
History of ownership
6 A comprehensive history of the ownership of property and the activities of the applicant and his wife has been provided by way of affidavit sworn by the applicant on 24 April 2009 and includes the following information:
- the applicant has several qualifications including a Bachelor of Commerce in Economics, a Masters Degree in Business Administration and a Post Graduate Diploma in Labour Relations and the Law. The applicant retired in 1996 and now manages investments to provide the best possible standard of living as a retiree by way of his self managed superannuation fund and royalties from books he has written;
- the applicant and his wife decided to move out of Sydney after his retirement and selected Mollymook as a suitable place;
- the applicant purchased the subject property in April 1998 with the intention to renovate and then live in it;
- the applicant and his wife owned the Mosman house where they lived up to the time that they purchased the Mosman Townhouse;
- the applicant’s wife suffered from various serious health issues from childhood and from cancer from 1997. The applicant’s wife required continuous treatment at hospital and with various specialists over the subject years of 2003 to 2007 inclusive;
- in the year 2000 the applicant and his wife sold the Mosman house and purchased the Mosman townhouse;
- the subject property was rented out for two short periods in 1999/2000. As and from early 2000 the applicant moved items from Sydney to the subject property including:
“… included chairs, beds and bedding, linen, crockery and cutlery, electrical items, a large number of books, paintings and prints, my good golf clubs and my easels and painting materials. My desktop computer and computer equipment, my Library, the furniture in the “Storeroom Study” and all my Records remained at the Mosman Townhouse, although I took with me to Mitchell Parade books from my Library on a regular basis. …”
- the applicant states that he moved to the subject property during the second half of 2001 with the intention that the subject property thereafter be “ my home and principal place of residence ”. As and from that date until 30 May 2007 he states that he continued to regard the subject property as his home and principal place of residence.
- the applicant stated that he indicated to Shoalhaven Council his intention to move into the subject property and notified his change of residential address to the subject property for the purpose of tax, voting, ASIC, the RTA and other purposes. He states that he did not change his postal address which had been the same address since 1996 and was a postal box at the Spit Junction Post Office. He also states he became a member of the Mollymook Golf Club;
- the applicant states that after he moved to the subject property and over a period of time he replaced much of the existing furniture and furnishings. He attended to ongoing maintenance improvements to the subject property including substantial improvements costing approximately a total of $48,000.00. The applicant stated that from the second half of 2001 to mid 2005 he generally spent about six months of the year at the subject property. The applicant’s wife spent about 60% of that time there also, that is about 3.5 months. The subject property does not have an office/study and the applicant used dial-up facilities to operate his managed investments related to managing his self managed superannuation fund;
- the applicant stated that when he was at the subject property he kept up to date with his interests including his interest in economic, business and financial matters. He engaged in a number of activities including “talking with people who had similar interests, watching news and current affairs programs on television, reading books, newspapers, journals and bulletins and generally considering the business, economic and financial issues of the day”. The applicant suffered from Paget’s disease and engaged in a medical study program in 2003 related to treatment of that disease at Concord Hospital. As a result the disease became recessive;
- on receipt of the letter dated 26 October 2004 from the OSR he noted that the form had already been completed to show a specific client ID and land owner details as himself and his wife. On receipt of the letter and form he stated that he contacted the OSR and spoke to an officer who he recalls gave him certain advice. Pursuant to that advice the applicant asked his wife to complete and sign the form and it was then lodged with the OSR;
- on 13 February 2005 a notice was forwarded to the applicant by the OSR disclosing that for the 2005 tax year there was no amount payable;
- the applicant stated that he continued to live at the subject property and that his wife spent time with him there up until April 2007 when he placed the subject property on the market for sale;
- in December 2006 the applicant and his wife purchased a property at Roseville which is their residential property at present and completion of that purchase occurred on 29 January 2007;
- the applicant received a letter from the OSR dated 15 May 2007 enclosing a Land Tax questionnaire. This questionnaire discloses a new client ID number. The applicant completed the questionnaire and dated it 12 May 2007 disclosing that an exemption was claimed for the subject property and that he was the owner of 50% of the Mosman townhouse;
- the applicant and his wife completed the sale of the Mosman Townhouse on 30 May 2007;
- the applicant paid the land tax as assessed in accordance with the assessments dated 14 June 2007;
- the applicant sold the subject property and completion of that sale occurred on 9 November 2007; and
- the applicant required his taxation returns to be prepared on the basis that he was an investor for income tax purposes up to and including the 2003 financial year. Pursuant to advice given to him by his accountant he submitted his taxation return for the 2004 financial year as a share trader and continued to do so up to and including 2008. The Australian Taxation Office (“ATO”) reviewed the applicant’s returns for the 2004 and 2005 tax returns and ruled that he was not carrying on a business as a share trader during those years and the applicant submitted amended returns on the basis that he is an investor and he now submits his returns on that basis. On 10 October 2008 the applicant’s attention was drawn to his 2002 tax return which showed a depreciation claim in respect of the subject property and he thereupon instructed his accountant to lodge an amended return to correct that error. The applicant notes that his 2004, 2005 and 2006 tax returns disclose the subject property as his place of business. He states that he is informed by his accountant that this was shown in accordance with a computer program used by his accountant which automatically inserted the tax payer’s home address as place of business. He states that this is an error that he did not pick up at the time that he signed the returns. He further stated that the depreciation claims in those years related to his office at the Mosman townhouse.
Evidence
7 The applicant supplied a calendar for each of the subject years setting out identification of the weeks at the subject property, the weeks spent at the Mosman property and then the Mosman townhouse, the weeks spent in Sydney for medical reasons, the weeks on holidays and the weeks that are indeterminate (much discussion – accepted a particular chart as being the relevant chart). The applicant did not supply a diary for the subject years and he attested that those diaries had been kept and then they had been thrown out.
8 The applicant relied on affidavits by him filed on his behalf dated 24 April 2009, 16 December 2009 and 16 February 2010 and on an affidavit filed by his wife dated 16 February 2010, this affidavit affirms her knowledge of the information supplied by the applicant in his affidavits. The applicant and his wife gave evidence and were cross examined.
9 The applicant provided a calendar for the years 2002 through to 2007 inclusive which he analysed and then annexed to his affidavit of 16 December 2009. The analysis separated up the times that he believed that he had spent at each of the properties into four categories being the weeks spent at the subject property, the weeks spent at the Mosman townhouse, the weeks spent in Sydney for medical reasons, and the weeks spent on holiday. He also indicated that where the time spent could not be allocated to any of those four categories then they were indeterminate and were left blank. On the basis of this analysis the applicant provided a table of “basic percentages of times spent in each location” as set out below:
2002 2003 2004 2005 2006 2007 Approach above is one where carer period is excluded from the analysis. Approach below treats the care period as series of medical incidents.
2005 2006 Approach below treats the care role as irrelevant and treats the period the same as any other period. 2005 2006
Under examination the applicant indicated that the description of the time spent at Mosman and at Sydney medical would have been spent at the Mosman townhouse.
10 On cross examination the applicant indicated that he did not request his elderly neighbour who is 97, and is cared for by that person’s niece, to be a witness as he believed it would worry her to do so. He indicated that he did not call the newsagents as it would be an inconsiderate impost and in any case the newsagent had changed hands. He indicated that if any mail was required to be forwarded from Sydney to him at the subject property it would be redirected to the Milton post office.
Respondent’s evidence
11 The respondent’s representative produced to the Tribunal voluminous documentation obtained from various departments and organisations disclosing differences in the information supplied by the applicant over the relevant years, particular items are as set out in paragraph 25. Further that information provided to the Respondent’s officers during 2007 by the next door neighbour at 86 Mitchell Parade that the subject project was that it was “holiday house”.”
Applicant’s submissions
11 The applicant’s representative provided comprehensive submissions to the Tribunal. The applicant’s representative submitted that following the purchase of the subject property the applicant and his wife planned to move from Sydney and improvements were undertaken to the subject property for that purpose. That the applicant had attended to moving furniture and possessions to the subject property over a period of time.
12 The applicant’s representative noted that the applicant’s evidence was corroborated by the applicant’s wife’s evidence and that her evidence was accepted and not challenged. This evidence corroborated the evidence of the applicant.
13 The applicant’s representative referred to Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99 (“Miller”) wherein Latham CJ stated:
“I should have thought that there was no doubt that a man resided where he lived, and I do not think that there is any interpretation of the word “reside” by the courts which makes it impossible to apply the ordinary meaning of the word “reside” in the present case. In Levene v Inland Revenue Commissioners (2), Viscount Cave L.C. said:
… the word “reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place’. … In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time leaves it for the purpose of business or pleasure.”
He also submitted that the intention was relevant but not dominant as discussed by Fryberg J. in Deane v Commissioner of Stamp Duties [1996] 2 QdR 557 (“Deane”) as follows where His Honour said at page 557:
“… It also seems to me that the word “principal” in the definition allows a wide range of factors to be taken into account, and also implies an objective test of what is the principal place of residence. That is not to say that the intention of the person acquiring the residence is not relevant. Indeed, Mr Logan for the Commissioner conceded that intention could be taken into account as a factor in the assessment. It seems to me that intention is relevant, but no dominant. …”
14 The applicant’s representative submitted that the six principles set out in Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41 (“Ferrington”) were relevant and as summarised in that matter at paragraph 42. The representative submitted that the most important of those six principles was the first one and that was that the principal place of residence should be given the ordinary meaning in the context in which they appear.
15 The applicant’s representative drew attention to the comment in Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57 (“Mesiti”) at paragraph 58:
“… it would be wrong to decide that a place was the principal place of residence merely, or even mainly, on the basis of a comparison of times spent in each.”
16 Reference was made to the decision in Frost (Inspector of Taxes) v Feltham [1981] 1 WLR 452 (“Frost”) wherein notwithstanding a short time being spent at what was the subject property, in that case the court held that the Commissioners had not fallen into error by finding it to be the main residence of the taxpayer. Attention was drawn to the judgement of Nourse J and particularly to the following comment:
“The facts found by the General Commissioners were based entirely on the evidence given by the taxpayer himself, which they accepted. Those facts were as follows. The taxpayer was in 1978, and I believe still is, the tenant and licensee of a public house known as the White Horse Inn, Roydon, in Essex. He had been the tenant and licensee of that house for some 17 years previously. It was a term of his tenancy agreement with the brewers that he should reside on the premises, but that requirement was not rigidly enforced. More important is the fact that the tenancy could be terminated at any time by the brewers on giving twelve months’ notice. That, of course, is a provision which is often found in tenancies of tied houses.”
And further that Nourse J commented that “The matter must be decided objectively”.
17 The applicant’s representative submitted that the facts relied on by the applicant were sufficient to outweigh the likelihood of the more usual state of affairs 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 as referred to in Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21 (“McIlroy”) at paragraph 40. That the evidence supplied by the applicant showed that in accordance with the charts he had spent the percentages of time at the subject property where shown on the table of basic percentages where produced at paragraph 9 in the years 2002 through to 2007 inclusive.
18 It was submitted that the state of affairs in this matter was not the usual state of affairs and that accordingly the percentages could be relied upon to support the contention that the subject property was the principal place of residence of the applicant.
19 The applicant’s representative drew attention to the items that were relocated to the subject property and referred to in paragraph 6 the applicant’s claim that the subject property was his principal place of residence.
20 The applicant’s representative submitted that during periods when the applicant’s wife required a carer he was forced to be in Sydney and therefore at the Mosman townhouse as a carer.
21 The applicant’s representative drew attention to Nixon v Federal Commissioner of Taxation cited 79 ATC (“Nixon”) at page 4381 where Hunt J commented:
“Juries in civil cases every day are directed by reference to a pair of scales in which the evidence and the arguments of the plaintiff are placed on the one side and on the other are placed the evidence and arguments of the defendant. The juries are told that if the plaintiff succeeds, in their estimation, in weighing down those scales ever so slightly in his favour then he has discharged the onus of proving to their reasonable satisfaction that whatever he asserts is more probably correct than not. I do not see why a similar degree of proof is not applicable where the taxpayer is obliged to establish the absence of a particular intention in purchasing shares.”
This supported the claim by the applicant that he had discharged the onus sufficiently to provide evidence that the subject property was his principle place of residence during the relevant years. That this was notwithstanding the different information supplied by the applicant to various departments and on various records produced to the Tribunal. Further that each of the differences had been explained adequately by the applicant.
Respondent’s submissions
22 The respondent’s representative submitted that the applicant had the onus of proving that the subject property was the one place of residence that is, among the one or more places of residence of the applicant within and outside Australia, the principal place of residence of the applicant.
23 The respondent’s representative drew attention to McIlroy and referred also to paragraph 40 of the decision of the appeal panel as set out in paragraph 17 above. Therefore the principal place of residence has to be determined taking into consideration the temporal and domestic connections being the main place that is lived in together with their partner and these factors make that place the person’s settled or usual abode for the tax year.
24 The respondent’s representative drew attention to the following items obtained by the respondent and produced to the Tribunal:
“ - Department of Immigration and Citizenship records, in which the Applicant indicated in his own handwriting in 2003, 2005 and 2006 that his “intended address in Australia” on his return from overseas was Mosman and that his contact address and telephone number in Australia was Mosman;
- home and contents insurance policy details for Mollymook Beach, which state that “the home is occupied by tenants – owner rents home out for holiday letting”;
- the Applicants income tax returns for 30 June 2002 to 2007, which give his Mosman telephone number (9909 8759) as his daytime contact number;
- Medicare records, which show that of the 67 medical appointments the Applicant had with various practitioners between 1 July 2002 and 30 June 2007, 64 of the appointments were with practitioners in Sydney and only three (3) were in the Mollymook Beach area – further, between 16 July 2002 and 8 August 2006, the Applicant had 14 medical appointments with general practitioners in Sydney, but only two in the Mollymook area, being on 1 – 2 November 2004; and
- electricity bills for Mollymook, which show nominal electricity use for extended periods (consistent with Mollymook Beach being unoccupied) and only sporadic use corresponding with the times that the Applicant’s credit card and telephone records show that he was at Mollymook Beach;
- the Applicant’s 2008 income tax return, in which he declared a capital gain on the sale of Mollymook Beach – had Mollymook Beach been his PPR, its sale would not have attracted capital gains tax.”
25 The respondent’s representative submitted that consideration had been given to the various tables provided by the applicant and provided an analysis in accordance with the view of the respondent which resulted in the following table:
2003 131 days (71%) 53 days (29%) 2004 220 days (60%) 105 days (29%) 40 days (11%0 2005 270 days (74% 96 days (26%) 2006 261 days (71%) 62 days (17%) 42 days (12%0 2007 259 days (71%) 85 days (23%) 21 days (6%)
26 The respondent subpoenaed various documents including credit card and telephone records and had drawn a summary of those documents which disclosed, in the respondent’s view, an analysis of the time spent at the subject property and the Mosman house and Mosman townhouse as follows:
2003 131 days (71%) 53 days (29%) 2004 139 days (76%) 45 days (24%) 2005 146 days (79%) 38 days (21%) 2006 156 days (85%) 28 days (15%) 2007 131 days (71%) 38 days (21% 15 days (8%)
27 The respondent’s representative submitted that the applicant had not discharged the onus of proof that he had continuously used and occupied the subject property and no other land for residential purposes during the tax years and that therefore he was not entitled to claim the exemption of principal place of residence for the subject property.
28 In relation to the provisions of clause 8 of Schedule 1A the respondent’s representative submitted that the deeming provisions could not be applied to the use of the subject property as the evidence did not support that the applicant used and occupied the subject property as his principal place of residence for a continuous period of at least 6 months for any period at all. The respondent’s representative noted that there was no equivalent for clause 8 Schedule 1A for the 2003 tax year.
29 Clause 12 Schedule 1A was only applicable where separate persons who constituted a family each had their own separate principal place of residence. Further that there was no evidence that the subject property was the applicant’s or his wife’s principal place of residence therefore clause 12 did not apply to the subject property.
30 The respondent’s representative submitted that there ought not be any remission of market rate interest as the respondent had not contributed to the tax default of the applicant and in any event the respondent had exercised his discretion to remit the premium rate of interest and only impose the market rate of interest.
Reasons for decision
31 The applicant has applied for review of the decision of the Chief Commissioner to disallow the objections in relation to the decision of the Chief Commissioner dated 14 June 2007 .
32 The applicant provided comprehensive statements by himself as to the history of the ownership of the subject property with other properties and the ownership of the other properties with his wife. The applicant’s wife provided an affidavit in support of and confirming the affidavit of the applicant sworn on 24 April 2009. Other than the applicant’s affidavit, the applicant’s wife’s affidavit and the documentation supplied under subpoena no other evidence was provided as to the occupation and use of the subject property by the applicant.
33 The material supplied by the respondent and obtained by way of subpoena and referred to in paragraph 25 above does not support the applicant’s contention that the subject property was his principal place of residence. Nor does the evidence establish that the applicant and his wife had a separate principal place of residence each.
34 The applicant did spend time at the subject property in each of the tax years under review. The applicant’s wife spent some time at the subject property. The applicant and his wife spent time together on holidays. The applicant is clearly a devoted husband who undertook the care of his wife when she was being treated for severe health problems. There was no suggestion that the applicant and his wife were separated. They comprise a family for the purposes of clause 12 Schedule 1A. The comprehensive history provided by the applicant discloses that he has been meticulous in attending to various activities and documentation. There have been occasions when he has been required to review the documentation and require amendments to other documentation including his tax returns. The applicant responded to the initial land tax enquiry forwarded to himself and his wife which did not disclose the subject property. The form was signed by his wife and therefore no further action was taken by the Office of State Revenue as at 24 November 2004. Following receipt of the land tax questionnaire in 2007 the applicant responded thereto disclosing the subject property and he signed and returned that questionnaire. The applicant attested that he had spoken to an officer of State Revenue who had indicated to him that the initial form forwarded in 2004 should be completed as it was completed and returned to the OSR. At the time that that form was completed on 22 November 2004 the applicant was the owner of the subject property and the land owner details on that form showed both the applicant and his wife.
35 Much of the evidence provided by the applicant related to providing an explanation of forms that had been filled in incorrectly or with material that was inconsistent with a conclusion being drawn that the subject property was his principal place of residence.
36 The applicant bears the onus of proving that the subject property is his principal place of residence during the relevant years. The applicant attested that it was his intention to live at the subject property as his principal place of residence and he contended that he had acted in accordance with that intention.
37 Assessing objectively in the light of the circumstances relating to the actual occupation of the dwelling the applicant had attended at the subject property from time to time and had required certain works to be undertaken to the subject property with a view to fulfilling his stated intention of living permanently at that property. Objectively he lived with his wife and that from time to time he did occupy the subject property for periods of time, however the evidence provided by him does not support his contention that the subject property was his principal place of residence.
38 The personal circumstances of the applicant were influenced by his wife and his ill health and the requirement to care for his wife from time to time. There was no suggestion that they were separated and his stated original intention was that he and his wife had decided that they would like to move out of Sydney and during the holiday they decided to investigate living in the area where the subject property is situated. His intention as stated was that on purchase of the subject property he would renovate the property and that eventually he and his wife would occupy it as their home and principal place of residence. Due to intervening events by reason of the applicant’s wife’s ill health it was not possible for this intention to be realised.
39 The appeals panel in Mesiti stated that it would be wrong to decide that a place was a principal place of residence merely or even mainly on the basis of a comparison of time spent in each. Having regard to the comparison of the analysis of times of occupation of the subject property and the Mosman townhouse and in relation to the times claimed to have been spent involuntarily at the Mosman townhouse or alternatively seeking medical attention it is not possible based on those percentages to decide that the subject property was or was not the principal place of residence of the applicant. This view is supported by the applicant attesting that he kept a rough diary rather than an accurate one and that these had been thrown out and supported the view that it was not important to his contention that the subject property was his principal place of residence to compare the percentage of times spent either at the subject property or in other places including the Mosman townhouse.
40 The evidence that has been supplied by way of documentation from other places as set out in paragraph 25 supports the view that the use of the subject property was limited and that the applicant used and occupied the home being the Mosman townhouse as his principal place of residence.
41 The charging of the interest at market rate interest only is fair and reasonable in the circumstances as the respondent did not contribute to the land tax not being paid on time.
42 Objectively in consideration of the documentation produced to the Tribunal the applicant has not discharged the onus to prove that the subject property was his principal place of residence during the subject years. Accordingly the decision of the respondent is confirmed.
Orders
1. The decision of the Chief Commissioner of State Revenue is confirmed.
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4
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