Dowse v Commissioner of State Revenue
[2021] QCAT 221
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Dowse v Commissioner of State Revenue [2021] QCAT 221
PARTIES: NICHOLAS PATRICK DOWSE (applicant)
v
COMMISSIONER OF STATE REVENUE (respondent)
APPLICATION NO/S:
GAR283-19
MATTER TYPE:
General administrative review matters
DELIVERED ON:
8 June 2021
HEARING DATE:
21 August 2020
HEARD AT:
Brisbane
DECISION OF:
Member Allen
ORDERS:
1. The Commissioner of State Revenue’s decision of 23 May 2019 is set aside in regard to the 2017-2018 land tax year and confirmed in regard to the 2018-2019 land tax year.
2. The Commissioner of State Revenue must reassess Mr Dowse’s land tax liability for the 2017-2018 land tax year on the basis that he was not an absentee as at midnight on 30 June 2017 and that he was entitled to the home exemption as at midnight on 30 June 2017 in respect of his unit at Kangaroo Point.
3. The Commissioner of State Revenue must pay Mr Dowse interest in respect of any refund of land tax and late payment interest in respect of the 2017-2018 land tax year in accordance with s 61(2) of the Taxation Administration Act 2001 (Qld).
4. Mr Dowse must file in the Tribunal and give a copy to the Commissioner of State Revenue of all further submissions and material addressing the issue of costs within 14 days of the date of this order.
5. The Commissioner of State Revenue must file and give a copy to Mr Dowse of all submissions and material in reply addressing the issue of costs within 14 days of being served with Mr Dowse’s submissions and material.
CATCHWORDS:
TAXES AND DUTIES – LAND TAX – LIABILITY FOR LAND TAX – Review of a decision of the Commissioner of Land Tax for the 2017-18 and 2018-19 financial years – where Commissioner assessed taxpayer on reassessment as an absentee and not being entitled to the home exemption – where taxpayer working in the United Kingdom initially for a company associated with his Australian employer and then for a company without any Australian connection – where taxpayer had a dwelling in Queensland which he maintained for his return – whether taxpayer entitled to the exception to being an absentee on the basis that he was absent in the performance of his duty for his Australian employer – whether the taxpayer was eligible for the employer exception to be prorated – whether the taxpayer’s residence was his principal place of residence.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 18, s 21, s 24.
Land Tax Act 2010 (Qld) s 6, s 7, s 8, s 9, s 10, s 12, s 16,
s 31, s 32, s 35, s 36, s 41Taxation Administration Act 2001 (Qld) s 61, s 69, s 71,
s 73Chief Commissioner of State Revenue (RD) v McIlroy [2009] NSWADTAP 21
Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803
Hafza v Director General of Social Security (1985) 6 FCR 444
Handsley and Commissioner of Taxation (Taxation) [2019] AATA 917 (17 May 2019)
Harding v Commissioner of Taxation [2018] FCA 837
Harding v Commissioner of Taxation [2019] FCAFC 29
Levene v Commissioner of Inland Revenue [1928] AC 217Rowan v Commissioner of State Revenue [2019] QCAT 151
APPEARANCES & REPRESENTATION:
Applicant:
MJ Forrest of Counsel instructed by Kilmartin Knyvett Lawyers
Respondent:
B M McMillan instructed by the Commissioner of State Revenue.
REASONS FOR DECISION
Introduction
Mr Dowse is an Australian lawyer who was employed by Ashurst Australia, formerly Blake Dawson, and a member of the Ashurst Group from 2013 for the period from 21 January 2011 to 25 May 2018. In 2016 he was given the opportunity to work in London for Ashurst LLP, another member of the Ashurst Group, and he took up this appointment on 25 January 2017. Mr Dowse owns substantial land in Queensland and is subject to annual Land Tax assessments. His land tax assessments for the 2017-18 and 2018-19 years were based on the assumption by the Commissioner that he was still residing in Australia. When the Commissioner became aware that Mr Dowse may have been overseas he was asked to complete absentee forms. From the information provided by Mr Dowse the Commissioner determined that Mr Dowse was an absentee during the relevant Land Tax years and was not entitled to the benefit of the home exemption. This resulted in reassessments of his Land Tax liability for both 2017-18 and 2018-19 and he was required to pay substantially more in Land Tax and a component for Unpaid Tax Interest in each year.
The Legislation
Mr Dowse objected to the reassessments and the Commissioner disallowed the objections. Mr Dowse has made application to the Tribunal to review the decision of the Commissioner[1]. When the Tribunal exercises its review jurisdiction it sits in the shoes of the decision maker, the Commissioner and determines the matter by way of a fresh hearing on the merits and make the correct and preferable decision[2]. The Tribunal decision is based on the material before the Commissioner and any new evidence that is allowed to be adduced for the hearing[3]. The role of the Commissioner is to assist the Tribunal to make its decision by firstly providing it with a copy of all the material that is relevant to the decision and of the Commissioner’s reasons for decision[4]. Mr Dowse has the onus of proving his case[5], to the civil standard. The Tribunal may confirm or amend the Commissioner’s decision, set it aside and substitute its own decision or set it aside and return the matter for reconsideration by the Commissioner with the directions the Tribunal considers appropriate[6].
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 18 and Taxation Administration Act 2001 (Qld) (TA Act) s 69.
[2]QCAT Act s 20 and TA Act s 71.
[3]TA Act s 71(3)(a).
[4]QCAT Act s 21.
[5]TA Act s 73.
[6]QCAT Act s 24.
The Land Tax Act imposes land tax, for each financial year[7], on the taxable value of taxable land[8]. A liability for land tax arises for a financial year at midnight on 30 June immediately preceding the financial year. The owner[9] of taxable land when a liability arises is liable to pay the tax[10]. Taxable Land is land in Queensland which has been alienated from the State for an estate in fee simple and is not exempt land[11]. Exempt land includes land which is used as a person’s home[12]. There are extensive provisions in regard to what constitutes a person’s home for land tax purposes[13].
[7]Acts Interpretation Act 1954 (Qld) Schedule 1 (definition of ‘financial year’), which is the period of one year beginning on 1 July.
[8]Land Tax Act 2010 (Qld) (LT Act) s 6.
[9]LT Act s 10.
[10]LT Act s 8.
[11]LT Act s 9.
[12]LT Act s 41.
[13]LT Act ss 35- 40.
Land Tax is imposed at different rates for an individual depending on whether they are also a trustee or absentee. An individual who is not a trustee or absentee pays land tax at the rate set out in schedule 1.[14] An absentee pays the general rate provided for under schedule 3, part 1 and the surcharge rate provided for under schedule 3, part 2.[15] The meaning of absentee is defined in s 31 of the LT Act as follows:
[14]LT Act s 32(1)(a).
[15]LT Act s 32(1)(c).
(1) An absentee is a person who does not ordinarily reside in Australia.
(2) An absentee includes a person who-
(a)Cannot satisfy the commissioner that he or she ordinarily resides in Australia; and
(b)When ownership of the person’s land is decided for this Act-
i.Is absent from Australia; or
ii.Has been absent from Australia for more than half of the 12-month period ending when the ownership is decided.
(3) An absentee does not include-
(a)A public officer of the Commonwealth or of a State who is absent in the performance of the officer’s duty; or
(b)An individual (the employee) employed by an employer in Australia for a continuous period of 1 year immediately before the employee’s absence, if the commissioner is satisfied that-
i.The employee is absent in the performance of the employee’s duty for his or her employer; and
ii.The employee’s absence will not be longer than 5 years.
(4) Subsection (3)(b) stops applying, for that absence, as soon as it is longer than 5 years.
Mr Dowse was employed by Ashurst Australia, formerly Blake Dawson, for the period commencing on 21 February 2011 and ending on 25 May 2018.[16] This was initially as a graduate lawyer, then lawyer. On 1 March 2012, Ashurst LLP, a limited liability partnership registered in England and Wales, combined its law practice in Asia with Ashurst Australia. On 1 November 2013 Ashurst Australia combined its law practice in Asia with Ashurst LLP, to conduct the global legal practice of the “Ashurst Group” as a single economic entity. The ‘Ashurst Group’ comprises Ashurst LLP, Ashurst Australia and their respective affiliates which are authorised to use the name ‘Ashurst’ or describe themselves as being in Association with Ashurst; this includes Ashurst Business Services Limited which is a wholly owned subsidiary of Ashurst LLP and incorporated in England and Wales.
[16]Unless otherwise noted all facts are incorporated from the statement of agreed facts filed on 14 February 2020.
On 30 May 2016 Mr Dowse accepted appointment as Senior Associate with Ashurst Australia in the Ashurst Group’s Brisbane office. According to the terms of his contract Ashurst Australia relevantly had the right to terminate his employment and the right to ask Mr Dowse to move to another office on a temporary or permanent basis. By letter dated 30 November 2016 Ashurst Australia approved a 25 month “Leave of Absence” for Mr Dowse to undertake an assignment to the Ashurst Group’s London Office. In accordance with the leave of absence agreement during Mr Dowse’s leave of absence Ashurst Australia’s contribution to his superannuation fund along with any voluntary contributions would be suspended, they would cease to pay his salary, they would pay his salary continuance insurance for two years, they would continue the annual renewal cost of his Queensland practicing certificate and Mr Dowse had a contractual right to return to an available substantive or equivalent position in one of Ashurst Australia’s offices upon the conclusion of his assignment. Mr Dowse’s unused annual leave was paid out at the commencement of his leave of absence.
On 1 December 2016, Ashurst Business offered Mr Dowse employment for 25 months, based in the Ashurst Group’s London office and effective from 25 January 2017. Mr Dowse entered this contract on 2 December 2016. The terms of the secondment contract relevantly provide that Ashurst Business paid Mr Dowse’s salary and deducted UK income tax on his behalf, he was obliged to act in the best interests of the firm, the firm had the right to terminate his employment, he had a contractual right to return to his substantive position or a similar position at the end of the assignment and his continuity of employment with the ‘Ashurst Group’ was taken to have commenced on 21 February 2011.
Mr Dowse departed Australia on 24 January 2017 to commence his employment on a 25-month full-time secondment from Ashurst Group’s Brisbane Office to the Ashurst Group’s London office on 25 January 2017. Immediately prior to his departure from Australia on 24 January 2017, Mr Dowse was continuously employed by Ashurst Australia for a period of more than one year, namely since 21 February 2011. Mr Dowse was absent from Australia for the period from 24 January 2017 until 6 May 2018. He returned to Australia between 7 and 25 May 2018 and ceased employment with the Ashurst Group on 25 May 2018. Mr Dowse was absent from Australia on 30 June 2017 and 30 June 2018. Presently, Mr Dowse’s absence from Australia has not been longer than five years. Mr Dowse stated in his affidavit and confirmed at the hearing that he commenced work with Facebook UK Limited on 29 May 2018. He has a Tier Visa UK work visa which will expire on 26 January 2023.
Having regard to the requirements of s 31 of the LT Act Mr Dowse’s employer as at 30 June each year is a relevant fact. As at 30 June 2017 his employer was either Ashurst Business, and/or Ashurst Australia or the Ashurst Group and as at 30 June 2018 while still overseas in London his employer was Facebook UK Limited. Since he had different employers on the relevant dates in each financial year then the 2017-2018 and 2018-2019 reassessments must be considered separately about the question of whether Mr Dowse was an absentee for land tax purposes. His entitlement to the home exemption will also be treated separately for each year.
The Commissioner cited the decision in Rowan[17] where the Tribunal noted that s 31(2) of the LT Act sets out a refinement of the basic test of what is an ‘absentee’ and that ‘ordinarily resides’ is not defined in the LT Act and after reviewing the relevant authorities, concluded that “ordinarily resides” takes its ordinary and natural meaning and is a question of fact and degree, connoting residence in a place with some degree of continuity, adopted voluntarily and for a settled purpose as part of the regular order. The Commissioner submitted that in the same way “an employer in Australia” and “duty for his employer” are not defined in the LT Act and those words should take their ordinary and natural meaning.
[17]Rowan v Commissioner of State Revenue [2019] QCAT 151.
Was Mr Dowse an absentee for the purposes of the 2017-18 financial year?
Mr Dowse submits he is entitled to the exception to the absentee definition which is set out in s 31(3)(b) as he had been employed by an employer in Australia for a continuous period of one year before his absence and was absent in the performance of his duties for his employer and his absence would not be longer than five years. It is submitted that Mr Dowse between 21 February 2012 and 24 January 2017, practised exclusively in the TMT practice group and principally under the day-to-day supervision of a partner of Ashurst Australia; that in approximately August 2016 Mr Dowse began assisting partners of Ashurst LLP with some TMT legal work being conducted by the Ashurst Group London office for clients in Europe whose retainer was with Ashurst LLP. Mr Dowse performed this work from the Brisbane office and this work was supervised by partners of Ashurst LLP who were located in the Ashurst Group’s London office. Sometime after August, in late 2016, Ashurst Australia asked Mr Dowse to move to the Ashurst London office to assist the London partners to further the TMT practice in the Ashurst Group’s London office. As a result of Mr Dowse expressing a desire for the move to London to be temporary only, Ashurst Australia subsequently agreed to structure the arrangement as a secondment for a limited time of 25 months and with a substantial legal right for Mr Dowse to return to work at Ashurst Australia at the end of the secondment period. Due to solicitors’ regulation in England and the Ashurst Group’s corporate structure, Mr Dowse was required to enter a contract of employment with Ashurst Business during the secondment. Ashurst Business provides personnel and associated services to Ashurst LLP. Ashurst Business’s immediate parent, its ultimate parent and controlling party is Ashurst LLP. While in London Mr Dowse performed work for clients of both Ashurst LLP and Ashurst Australia and where he was performing work for clients of Ashurst Australia he was supervised by partners of Ashurst Australia. It is submitted that when Ashurst LLP and Ashurst Australia combined their operations to conduct the Global legal practice of the ‘Ashurst Group’ as a single economic entity, Ashurst fully financially integrated its operations in Australia, Asia, America, the Middle East and Europe under a single profit pool and a single unified management structure. It is further submitted that as a result of the merger Ashurst LLP gained the power to exercise, and/or actually exercised control over Ashurst Australia.
I note that these submissions are supported by the letter of 16 September 2019 from Ashurst to the Commissioner which makes it clear that under the contractual arrangements between Ashurst LLP and Ashurst Australia for the conduct of the global legal practice of the Ashurst Group as a single economic entity the global profits are pooled across the Ashurst Group, and work done by one of the partnerships is of benefit to the other. The letter also explains that for various regulatory and economic reasons, staff within the Ashurst Group are generally employed through a partnership or service company formed in the jurisdiction where they are working. Ashurst Business Services Limited provides services and staff to Ashurst LLP in the UK, Ashurst Australia conducts the group’s legal practice and employs legal staff in Australia. In regard to Mr Dowse the letter confirms he had been working for Ashurst Australia from January 2011 until January 2017 primarily in the Technology, Media and Telecommunications practice group, the TMT group. The letter described the opportunities made available to staff to work in other offices around the world and that the process was generally a leave of absence from the “home” office and taking up employment with the overseas office. The leave of absence arrangement is structured so that the staff member has the right to return to their home office after the period of the overseas placement. He had taken a leave of absence and worked for Ashurst LLP under a secondment arrangement and his employer in the UK was Ashurst Business Services Limited consistent with all other legal staff working for Ashurst LLP in the UK. It also confirms that while in the UK Mr Dowse performed work for clients whose primary retainer was with Ashurst LLP and also Ashurst Australia. Where the work was for clients of Ashurst Australia his work was supervised by an Ashurst Australia partner in accordance with the secondment arrangement and further that Mr Dowse remained employed by Ashurst Australia (albeit on leave of absence) at all times throughout the period that he was working for Ashurst LLP.
While the Commissioner does not dispute the integrated financial arrangements between Ashurst Australia and Ashurst LLP he states that the relevant issue was whether Mr Dowse was absent from Australia on 30 June 2017 in the performance of his duties for an employer in Australia. The Commissioner submits that having regard to the fact that Mr Dowse’s wages and leave entitlements were paid by Ashurst Business and not Ashurst Australia as at 30 June 2017 and that his regular hours of work were set by Ashurst Business, his tax liabilities were met by Ashurst Business and his work for European clients was supervised by Ashurst Business that he was employed by Ashurst Business on 30 June 2017. The Commissioner submits that Mr Dowse is asking the Tribunal to ignore that Ashurst Business and Ashurst Australia are separate legal entities, registered as such in different countries and find that he was employed until 25 May 2018 by the Ashurst Group and absent from Australia in performance of his duty to that group. The Commissioner submits that while it may be that the financial and operational arrangements of Ashurst Australia and Ashurst Business are integrated, they remain separate legal entities responsible for the employment of employees in their respective countries. It is further submitted by the Commissioner that documentary and testimonial evidence does not support the proposition that Mr Dowse was employed by the Ashurst Group, or that the Ashurst Group exists as a legal entity. The Commissioner submits that to meet the criteria of s 31(3)(b)(i), the person must be employed by an employer in Australia. While there was no doubt that Mr Dowse was so employed at least until he entered into the contract of employment with Ashurst Business on 2 December 2016, there is also no doubt that from at least 25 January 2017 he was employed by Ashurst Business in the UK. The Commissioner raises the prospect of Mr Dowse being jointly employed by Ashurst Australia and Ashurst Business between 25 January 2017 and 25 May 2018 during his absence from Australia. The Commissioner does not take this matter further noting the decision in Fair Work Ombudsman v Eastern Colour Pty Ltd[18] where Collier J. noted that the cause of action is novel, but in her view not unknown to law. The Commissioner submitted that the notion of joint employment is also not well established and where there is clear evidence of Mr Dowse’s employment with Ashurst Business as at 30 June 2017 the Tribunal should not consider a novel cause of action. The Commissioner submits that there is no evidence that Mr Dowse was performing duties for Ashurst Australia on 30 June 2017. The Commissioner submitted that Mr Dowse’s absence from Australia at midnight on 30 June 2017 was due to his employment at that time with Ashurst Business, which is not an “employer in Australia” for the purposes of s 31(3)(b) of the LT Act and the Tribunal should not be satisfied that Mr Dowse was absent from Australia “in the performance of his duty for his employer”.
[18][2011] FCA 803.
Mr Dowse submitted in reply to the Commissioner that Mr Dowse was still employed by Ashurst Australia at the relevant time as there had been no termination of his employment and Mr Dowse had a substantive legal right to return to an Australian office with Ashurst Australia and he was also accruing long service leave with Ashurst Australia and was still performing work for Australian clients supervised by partners of Ashurst Australia. The fact he was employed by Ashurst Business during the secondment did not prevent him being employed by Ashurst Australia during the secondment, and therefore did not preclude him from being absent in the performance of his duty for Ashurst Australia. It is noted that the Commissioner acknowledged the possibility of joint employment. It is submitted that there is nothing in the LT Act which says that employment by a separate overseas legal entity (particularly within the same corporate group) means Mr Dowse cannot be performing their duty for their employer in Australia.
Discussion
Mr Dowse’s evidence and submissions and the statement of agreed facts confirm that Ashurst Australia asked Mr Dowse to consider working in the London Office of the Ashurst Group in 2016 and that as a result he entered a leave of absence agreement with Ashurst Australia and a secondment agreement with Ashurst Business. He then took up employment in the London office of the Ashurst Group on 25 January 2017 for a 25 month secondment with a right to return to his substantive or equivalent position at the end of that period with Ashurst Australia in accordance with the leave of absence agreement he entered with them. I do not accept the Commissioner’s submission that Mr Dowse was required to be performing duties for an Australian employer, in this case Ashurst Australia, as at 30 June 2017. The question is was he absent in the performance of his duty to his employer as at that date. I am satisfied that Ashurst Australia, who remained an employer of Mr Dowse while he was on his leave of absence, requested him to move to London to assist the London partners of Ashurst LLP in his practice area and that it was part of his contract of employment with Ashurst Australia for Ashurst Australia to request him to do so. He was employed by an affiliate of the Ashurst Group in London, Ashurst Business. Having regard to the Ashurst Group financial arrangements Ashurst Australia would be able to participate in the profits derived from Mr Dowse’s employment so there was a direct connection between his employment in London by Ashurst Business and Ashurst Australia. There was also evidence that while in London Mr Dowse performed work for clients of Ashurst Australia.
The Commissioner conceded that on the evidence before the Tribunal, the Commissioner could have been satisfied that the absence could not be longer than five years given Mr Dowse’s visa at that time allowed him to remain in the UK only until 24 January 2020 and his contract of employment with Ashurst Business was for a period of 25 months.
Therefore Mr Dowse was not an absentee for the land tax year 2017-18 as he met the requirements of s 31(3)(b) of the LT Act as at 30 June 2017 as he had been employed by an employer in Australia, Ashurst Australia, for a continuous period of one year immediately before his absence, that is as at 25 January 2017, and I am satisfied that he was absent in the performance of his duty for his employer, and his absence will not be longer than five years.
Was Mr Dowse an absentee for the purposes of the 2018-19 financial year?
Mr Dowse’s circumstances changed during the course of the 2018 year and as at 30 June 2018 he was no longer employed by either Ashurst Australia or Ashurst Business having ceased to be an employee of those entities as at 25 May 2018. He became an employee of Facebook UK Limited on 29 May 2018 and was an employee of Facebook on 30 June 2018. It was submitted that he was pursuant to s 31(3)(b) of the LT Act not an absentee because as at 25 May 2018 Mr Dowse was employed by an employer in Australia (Ashurst Australia) for a continuous period of 1 year immediately before his absence; he was absent in the performance of duty for his employer (Ashurst Australia); and his absence would not have been longer than five years (it would have been a maximum of 25 months pursuant to the terms of the secondment contract); and as at 30 June 2018, he was only treated as being absent for 36 days of the relevant 365 day period and was therefore not an absentee. It was submitted that this is critical as, under the LT Act, a person’s status as an absentee is determined on 30 June of the relevant year but pro rata temporis by reference to the epochs of s31, not solely by reference to the date on which ownership of land is decided.
It was submitted in support of that proposition that while the time for determining land tax liability is reckoned as at a specific date and time, a taxpayer’s status as an absentee is not because:
(a)in contrast to determining liability for land tax under s 7 of the LT Act, a person’s status as an absentee is to be assessed in light of the length of their absence from Australia in the 12 month period ending when ownership of the land is decided (s 31(2)(b)(ii)) and not solely by reference to a specific time on a specific day; and
(b)the definition of “absentee” in s 31 of the LT Act is not exhaustive. Although liability for land tax arises under s7 of the LT Act at midnight on 30 June immediately preceding the financial year, neither this provision, nor any other provision in the LT Act, prevents the Commissioner, from taking into account that Mr Dowse was not an absentee for over 80% of the 2018-2019 land tax year when determining whether or not he was an “absentee” during this year and the Commissioner is required to make assessments based on the available information, s 27 of the TA Act. Also, that the effect of s 38(1) of the Acts Interpretation Act 1954 (Qld) is that periods provided or allowed by Queensland Acts must be reckoned on a day to day basis. Further, the date on which ownership of land is decided for the purpose of the LT Act is not specifically referenced in s 31(3)(b) of the LT Act upon which Mr Dowse relies and it is not the only relevant date for the purpose of this proposition.
Mr Dowse submitted that as a result, Mr Dowse should be considered an absentee for the purpose of the LT Act for the period of 36 days from 26 May 2018 to 30 June 2018. This falls below the required threshold of “more than half of the 12-month period” contained in s 31(2)(b)(ii) and below the period of five years contained in
s 31(4). Given Mr Dowse’s relatively short period of absence from Australia in the 2018-2019 land tax year, Mr Dowse was not an absentee as at 30 June 2018. Even if Mr Dowse was an absentee as at 30 June 2018, his land tax liability for the 2018-19 land tax year should be determined on a pro rata basis based on his period of absence from Australia in the 2018-19 land tax year being 36 days from 28 May 2018 to 30 June 2018.
The Commissioner noted Mr Dowse’s preliminary submissions in regard to the 2018-2019 year and submitted that it is not in issue that for the purposes of s 31(2)(b)(i) of the LT Act, Mr Dowse was absent from Australia on 30 June 2018, and I confirm that this is accordance with the Agreed Facts. The Commissioner submitted that therefore, if Mr Dowse “does not ordinarily reside in Australia” he was an absentee pursuant to s 32(2) (sic) on 31 June 2018, unless one of the exceptions in s 31(3) applies. I note that the issues not in dispute include that as at 30 June 2018 Mr Dowse did not “ordinarily reside in Australia” for the purposes of s 31(1) of the LT Act and that he was absent from Australia and had been absent from Australia for more than half of the 12 month period ending on that date; and was therefore prima facie, an absentee pursuant to s 31(2) of the LT Act.
The Commissioner in his final submissions noted that it is uncontroversial that Mr Dowse was absent from Australia on 30 June 2018 and was not employed by an employer in Australia at that time. I confirm that this is consistent with the agreed facts and issues not in dispute. The Commissioner then submitted that therefore, there is no argument that Mr Dowse was excluded from being an absentee on that date pursuant to s 31(3)(b). The Commissioner further submitted that having regard to Mr Dowse’s submissions in regard to the 2017-18 year that the Tribunal could not be satisfied that Mr Dowse was absent from Australia between 1 July 2017 and 28 May 2018 in the performance of his duty for an employer in Australia. Having regard to my decision above the Commissioner’s submissions fail on that point as I would have been satisfied that during his employment by Ashurst Australia and Ashurst Business he was not considered an absentee.
The Commissioner accepted that during the period of Mr Dowse’s employment with Ashurst Business, his visa allowed him to remain in the UK until 24 January 2020 and his contract of employment with Ashurst Business was for a period of 25 months. Therefore, it would be reasonable to conclude that, during that period, his absence from Australia would not be longer than five years. The Commissioner submitted that however, that period is not relevant for the purpose of s 31(3)(b)(ii), since the date on which the Commissioner must be satisfied that the absence will not be longer than five years is the date on which liability for land tax arises, namely 30 June immediately preceding the relevant land tax year. That is 30 June 2018 for the assessment of Mr Dowse’s land tax liability in 2018-2019. There is no dispute on the evidence that, on that date, Mr Dowse was employed by Facebook and residing in the UK on a visa that entitled him to remain so living and working in the UK until 26 January 2023. As such, the clear evidence is that on 30 June 2018, Mr Dowse could have remained in the UK longer than five years after his departure on 24 January 2017. The Commissioner submitted that the Tribunal should give little weight to Mr Dowse’s evidence that he intends to return to Australia before 24 January 2022.
The Commissioner submitted in regard to the pro-rating of Mr Dowse’s land tax liability for the period of his employment with Ashurst Business that the Tribunal should totally reject this submission; that the LT Act makes no provision for pro-rata assessment of land tax liability. To the contrary, the LTA expressly provides that liability for land tax is to be assessed at midnight on 30 June immediately preceding the relevant year. Mr Dowse offers no authority for the proposition that land tax liability can be assessed on a pro-rata basis and the Commissioner is not aware of any authority supporting such a proposition. The Commissioner accepted that a person’s status as an absentee may change from time to time. However, it is the person’s status when the liability for land tax arises that is relevant to the assessment under s 31 of the LT Act. It was submitted that, Mr Dowse’s land tax liability cannot be assessed on a pro rata basis for the period from 1 July 2017 to 25 May 2018.
In reply to the Commissioner’s final submissions Mr Dowse submitted 30 June 2018 is not the only relevant date for determining whether he satisfies s31(3)(b) of the LT Act in the 2018-19 land tax year having regard to the submissions made above. Mr Dowse also makes submissions in regard to when the requirement that his absence will not be longer than five years in s 31(3)(b)(ii) needs to be satisfied and that the relevant time to make the determination is 30 June of the relevant year but taking into account the circumstances up to that point. That s31(3)(b)(ii) requires a consideration of whether Mr Dowse’s absence will not be longer than five years not whether the absence could be longer than five years and that Mr Dowse’s evidence is that he intends to return to Australia prior to 24 January 2022 and that he only ever intended to stay in London for a short period. That the Commissioner has not made any submissions as to why Mr Dowse should not be considered a credible witness and that there is complementary evidence to support his evidence.
In relation to the pro-rating of land tax liability Mr Dowse confirmed his earlier submissions and that the absence of authority is not fatal. An interpretation allowing for a pro-rata assessment is open, especially as it is not expressly prohibited by the LT Act.
Discussion
Section 31 of the LT Act is a definitional provision for the purposes of defining the term absentee which is then relevant for the rate of land tax to be applied in accordance with s 32 of the LT Act as the land tax rate is different for absentees and there is also a surcharge rate applicable to absentees. Section 32(1)(c) of the LT Act applies so that Land Tax is imposed on the total taxable value of the taxable land owned by a taxpayer at the following rate for an absentee – the general rate provided for under schedule 3, part 1; and the surcharge rate provided for under schedule 3, part 2. Taxpayer in accordance with Schedule 4 of the LT Act is defined in Schedule 2 of the TA Act as a person who, under a tax law has or had a tax liability; or may have a tax liability. The operative parts in s 32(1)(c) are that “land tax”[19] is imposed on the “total taxable value”[20] of “taxable land”[21] which is “owned”[22] by a taxpayer[23]. Section 8 states that the owner of taxable land when a liability for land tax arises is liable to pay the tax. Section 7 of the LT Act states that a liability for land tax for a financial year arises at midnight on 30 June immediately preceding the financial year. Therefore, it is the person who owns the land as at the point in time set out in s 7 who is liable for Land Tax and having regard to the drafting of s 32 it is their status as either an individual, company or trustee, or absentee at that point of time that determines the applicable rate of land tax. Therefore, the question of whether a taxpayer is an absentee must be determined as at midnight on 30 June immediately preceding the financial year, in this case 30 June 2018.
[19]LT Act s 6.
[20]LT Act s 16.
[21]LT Act s 9.
[22]LT Act s 10.
[23]LT Act s 10.
It is not in dispute between the parties that Mr Dowse did not ordinarily reside for the purposes of s 31(1) of the LT Act and that in particular he was absent from Australia at midnight on 30 June 2018. Prima facie then he was an absentee for the purposes of the LT Act for the 2018-19 year. That being the case there is no reason to consider the provisions of s 31(2) of the LT Act which operates as a deeming provision so that if a person is unable to satisfy the Commissioner that they ordinarily reside in Australia and is absent from Australia at midnight on 30 June then they are deemed to be an absentee or while they may be in Australia at midnight on 30 June they have been absent from Australia for more than half of the 12 month period ending at midnight on 30 June and then again they will be deemed to be an absentee. These provisions do not apply to Mr Dowse as he has acknowledged that s31(1) applies to him. In that case the exception to s31(1) contained in s 31(3) in regard to an employee who is absent in the performance of their duty for his employer needs to be considered.
Having regard to the change in Mr Dowse’s employment circumstances it was submitted on his behalf that there should be consideration given to how s 31(3) would apply for the period 1 July 2017 to 25 May 2018 during which time he was still employed by Ashurst Business and Ashurst Australia and for which I have found he was entitled to the exception under s31(3) and was not as a result an absentee for the 2017-18 land tax year. Then separately for the period 29 May 2018 to 30 June 2018 when he was no longer employed by Ashurst Australia or Ashurst Business and was employed by Facebook and he would not be entitled to the exception. It was argued that in the same way s 31(2)(ii) of the LT Act applied there needed to be a substantial period where the exception in s31(3)(b) did not apply before the exception under s31(3)(b) would be lost or land tax could be pro-rated on the basis that the exception applied for all but 26 days of the year.
This is misconceived; there is no relationship between s 31(2) and s 31(3) of the LT Act except that if a person is deemed to be an absentee under s 31(2)(b) then the exception in s 31(3) of the LT Act may be relied upon if applicable. The time periods in s 31(2)(b)(ii) relate to the calculation of the time period a person has been absent from Australia and the time periods in s31(3)(b) relate to continuity of employment prior to the absence and expected period of absence. The initial time periods in
s 31(3)(b) require relation back to the date of the employee’s absence and whether they were continuously employed by an employer in Australia for a period of one year immediately before the absence. There is no question in that regard and Mr Dowse met that requirement through his employment with Ashurst Australia. The time at which the other requirements of s 31(b) of the LT Act need to be satisfied is in accordance with s 7 of the LT Act at midnight on 30 June 2018.
It is irrelevant for the purposes of s 31(3)(b) of the LT Act if the requirements of the section were met at an earlier time during the relevant period, that is the period from the date of the absence to midnight on 30 June in question, if they are not met on that date. The requirement in s 31(3)(b)(i) that Mr Dowse is absent in the performance of his duty to his employer must have been met at midnight on 30 June 2018. It is at that point in time that Mr Dowse must be able to show that he is absent in the performance of his duty to his employer, being the employer who he was employed by in Australia for a continuous period of one year immediately prior to his absence. The agreed facts state that this employer was Ashurst Australia. The agreed facts also acknowledge that Mr Dowse was not employed by an employer in Australia between 26 May 2018 and 30 June 2018.
As Mr Dowse was not employed by an employer in Australia at midnight on 30 June 2018 I cannot be satisfied that he was absent in the performance of his duty for his employer for the purposes of s31(3)(b)(i) of the Land Tax Act and he is therefore not entitled to the exception under s31(3) of the LT Act and he was an absentee for the purposes of calculating the rate of land tax payable by him in the 2018-2019 year.
For completeness, I confirm that I accept the Commissioner’s submissions that there is no provision in the LT Act enabling pro rating of duty. Land tax is calculated based on a set of factual circumstances as at midnight on 30 June preceding the financial year in question. While I agree with Mr Dowse that s31(2)(b)(ii) does enable consideration of an expanded time period to determine whether or not a person is an absentee it is for the purpose of determining whether they are an absentee as at midnight on 30 June and for no other purpose. The requirements in s31(3) relate back to date of the absence but the determination is always in respect of a particular financial year in accordance with s7 of the LT Act.
I also have not considered whether Mr Dowse would have satisfied the requirements of s 31(3)(b)(ii) in regard to being satisfied that his absence will not be longer than five years as that was unnecessary. If I was though required to consider that I would accept Mr Dowse’s evidence that he intended to return to Australia prior to 24 January 2022. While the counsel for the Commissioner raised various matters, he did not provoke Mr Dowse to change his evidence in cross examination and so I accept that his intention was to return to Australia prior to the expiry of the five year period. That provision is in regard to future intention and circumstances may change in subsequent years; the question then is to be determined in regard to intention as at the required point in time under s7. I note that the effect of s 31(4) is that s31(3)(b) stops applying to that absence as soon as it is longer than five years and s31(3)(b)(ii) means that if the intention is that the absence will be longer than five years as at an earlier date then the exception will stop at that point.
The home exemption
Mr Dowse owns a unit at Kangaroo Point which he had used as his home prior to his departure for London on 24 January 2017. He claims that he is still entitled to claim that this land is his home for the purposes of the LT Act and that as such it is not taxable land[24]. Section 35 of the LT Act describes how the home exemption operates. Relevantly section 35(2)(b) states land is exempt under subdivision 3 if it is used as the home of the owner. Again, relevantly in accordance with s 35(3)(c) of the LT Act land is used as a person’s home if the Commissioner is satisfied the person is using the land as his principal place of residence (PPR) when the relevant liability for land tax arises in accordance with s 36(1)(c) (“the residual test”). Section 36(2) sets out matters that the Commissioner may have regard to for deciding whether land is used as the person’s principal place of residence including any other relevant matter. Section 35(4) of the LT Act sets out that land is partially exempt if it is used as home but is also used for a non-exempt purpose, which are set out in s 39 of the LT Act, except if the only other purpose it is used for is one of the purposes set out in s 35(5), which are defined in accordance with s 40 of the LT Act. Land is exempt land in accordance with s 41(2) of the LT Act if it is comprised in one parcel; and relevantly owned by a person and used as a person’s home in accordance with s 41(1).
[24]LT Act s 9.
Mr Dowse submitted that pursuant to PR LTA000 1.2 the Residual Test depends on the Commissioner being satisfied that the facts support the conclusion that the land is used as the person’s PPR. This test must be applied by the Commissioner on a case-by-case basis after considering all of the facts and circumstances. Further, where a person resides in more than one place during a year, the question of which place is the person’s principal place of residence is a question of fact and degree. In these cases, it is necessary to examine the history and circumstances, the purpose for which each property is used, the duration of ownership and the amount of time spent during the course of the year in each.
It is submitted that considering all the history, facts and circumstances, Mr Dowse satisfies the residual test in s 36(1) of the LTA Act because:
(a)Prior to commencing his secondment on 25 January 2017, he had lived in the Property as his home (and no other property in Australia) since 2012 (s36(2)(a)).
(b)Since 2012, he had kept his personal belongings at the property. During the 2017-18 and 2018-19 land tax years, except for clothes, his personal belongings (including furniture, whitegoods, crockery, cutlery, beds, photographs and other appliances) remained (and remain) at the Property (s36(2)(c)).
(c)Continuously since 2012, the Property has been his postal address and address on the electoral role (s36(2)(d)).
(d)Continuously since 2012, he has had services and utilities (including fixed line telephone, a home broadband internet service, electricity and hot water) connected to the Property in his name and at his expense (s36(2)(e)).
(e)In 2012, he acquired ownership of the property by a testamentary disposition pursuant to his late father’s will and he intended to occupy the property as his principal place of residence and did so (s36(2)(f)).
(f)During the 2017-18 and 2018-19 land tax years, he did not use the property for any non-exempt purpose, and it remained (and remains) available for him to occupy and use at any time when he returns to Australia, either briefly or permanently (s36(2)(g)).
(g)Since his departure from Australia on 24 January 2017, he has maintained (and maintains) an Australian mobile phone number (s36(2)(g)).
(h)Since his departure from Australia on 24 January 2017, he has been (and remains) on the roll of legal practitioners in Queensland and has held and (and holds) a practising certificate issued by the Queensland Law Society which entitles him to engage in unsupervised legal practice (s36(2)(g)).
(i)Mr Dowse applied the land tax home exemption to the property in the 2016-17 land tax year (s36(2)(g)).
(j)When he returned to Australia between 7 and 25 May 2018 and between 8 December 2019 and 2 January 2019, the applicant lived in the property. He stayed in the master bedroom in the bed that he owns and used the wardrobe space in the ensuite to hang his clothes. He used the living room area to host parties which his family and friends attended (s36(2)(g)).
(k)Since 2012, other than the property, he has not resided in any other place in Australia and since 30 June 2012, he has only resided at the Property when in Australia (s36(2)(g)).
(l)Mr Dowse’s absence from Australia arose solely for work. But for his secondment to the Ashurst Group’s London office, he would have been physically residing at the Property between 24 January 2017 and 25 May 2018. But for his continued employment in the UK since 25 May 2018, he would have been physically residing at the Property since that time (s36(2)(g)). Pursuant to PRLTA000. 1.2, the Commissioner may still be satisfied under the ‘residual test’ that land is a person’s principal place of residence where a person is temporarily absent from Australia for employment commitments.
(m)At all material times Mr Dowse held a valid Queensland driver licence (s36(2)(g)).
It was noted that the Commissioner had submitted at the hearing that s 31 and s 41 of the LT Act ought to be interpreted consistently so that if someone is deemed to be an ‘absentee’ under s31 of the LT Act, they cannot be said to have their PPR in Queensland pursuant to s41 of the LT Act. However, there is no statutory link between these sections of the LT Act and they are not corollaries of each other. A finding that someone is an ‘absentee’ ought not to influence a finding about whether they meet the test under s41 of the LT Act. The LT Act prescribes different, entirely independent tests for these matters. It was noted that the Commissioner relies on the definition of “ordinarily reside” in the decision of Rowan and that in that decision it was held that, “the concept of residence”, place of abode and domicile are different from ‘ordinary residence’: at [67].
It was submitted for Mr Dowse that having regard to the decision on objection the Commissioner’s conclusion is not supported by the case law which shows:
(a)Once a person has established a home in a particular place, even if involuntarily, the person does not necessarily cease to be resident there because he is physically absent[25];
(b)A person can continue to reside at, and therefore continue to be resident in, a place notwithstanding current absence from that place, if he or she has maintained a sufficient continuity of association or connection with that place;[26]
(c)For a person who spends significant time out of Australia, one such connection is the characterisation of that person’s visits to Australia and whether they are to be regarded as return visits to the place regarded as or which was the person’s home;[27]
(d)Some people, in the ordinary pursuit of their lives, regularly, or customarily, live in more than one place each of which has an element of permanence about it and is not merely a place of casual or intermittent resort;[28]
(e)In determining principal place of residence, there is no requirement that the reasons for departure must be entirely out of a person’s control[29].
[25]Hafza v Director General of Social Security (1985) 6 FCR 444, at 449 – 450.
[26]Handsley and Commissioner of Taxation (Taxation) [2019] AATA 917 (17 May 2019); Hafza at 449; Levene v Commissioner of Inland Revenue [1928] AC 217, 225; Harding v Commissioner of Taxation [2018] FCA 837, [81]; Harding v Commissioner of Taxation [2019] FCAFC 29, [62].
[27]Handsley and Harding [2019].
[28]Handsley and Harding [2019].
[29]Chief Commissioner of State Revenue (RD) v McIlroy [2009] NSWADTAP 21, [44]
It was submitted paragraph [41] of PR LTA0001. 1.2, contemplates a permissible temporary absence as a result of employment commitments. That demonstrates that temporary absences for work are not, of themselves disqualifying under the ‘residual test’ in s36(1) (c) of the LT Act. Although applying s31 of the LT Act does not by the express terms of the LT Act produce a corresponding result under Part 6, Division 1 of the LT Act, s31(3)(b)(ii) of the LT Act does provide a useful yardstick for what should be considered a temporary absence. Subsection 36(1)(c) of the LT Act should be construed and applied in light of paragraph [41] of PR LTA0001 1.2 and the fact that a five year absence is permitted under s31(3)(b)(ii). The evidence establishes that Mr Dowse used the property as his home to the greatest extent practicable in the circumstances. In circumstances where he was temporarily absent from Australia for work commitments and the Commissioner has issued a Ruling that specifically contemplates the ‘residual test’ being satisfied when a person is temporarily absent from Australia for employment commitments, it is difficult to conceive what more Mr Dowse could have done to satisfy the ‘residual test’ in s36(1)(c) of the LT Act.
Mr Dowse submitted that the evidence supports a finding as at 30 June 2017 and 30 June 2018, the land tax home exemption should be applied to the property because:
(a)Since 2012 he has used the Property as his home and principal place of residence in Australia, including while he has been in the UK.
(b)During the 2017-18 and 2018-19 land tax years he intended to remain using the Property as his home and for it to remain his principal place of residence in Australia during his temporary absence.
(c)During the 2017-18 and 2018-19 land tax years he did not use the property for any non-exempt purpose (s 41(1)(c)).
(d)He satisfies the ‘residual test’ in s 36(1)(c) of the LT Act, which means that despite his temporary absence from Australia for employment commitments, the property is his principal place of residence.
The Commissioner submitted that the Tribunal must apply ss31, 36 and 41 of the LT Act consistently, having regard to ordinary principles of statutory interpretation. That it would be an absurd result if the Tribunal were to find Mr Dowse was an absentee for the purposes of s31of the LT Act but also that the land tax home exemption applied because the Property was Mr Dowse’s PPR at the time. That s41 of the LT Act provides that land is exempt land if it is used as the person’s home. That s36(1)(a) relevantly provides that land is used as a person’s home if that land, and no other land, has been continuously used by the person for residential purposes for the six-month period ending when liability for land tax arises for the financial year. Section 36(1)(c) of the LT Act provides that land is ‘used as the home’ of a person if the Commissioner is satisfied the land is used as the person’s principal place of residence when liability arises. The Commissioner does not dispute Mr Dowse’s evidence that he has kept personal belongings at the Property; maintained telephone and electricity connections; and maintained his electoral enrolment at the Property. However, the critical “other relevant matter” for the purposes of s36(2)(g) is that Mr Dowse lived full-time at a rented apartment in London at all material; times but for an 18-day visit to Australia in May 2018. In evidence Mr Dowse accepted that at all other relevant times he lived in that apartment; kept his clothes and personal effects; and slept most nights there when not away for a week on holiday. It is submitted on behalf of Mr Dowse that s31(3)(b) “provides a useful yardstick for what should be considered a temporary absence” with reference to PR LTA0001.2. Mr Dowse’s submissions underscore the need for s31 and s36 to be interpreted and applied consistently. Sub-section 31(3) provides that a person is not an absentee if the person is absent from Australia in the performance of duty for an employer in Australia, for not more than five years. If Mr Dowse is determined to be an absentee for the relevant land tax years, it would be entirely inconsistent for the Tribunal to find that he used the Property as his home or PPR at the same time. The Commissioner submitted that the answer to the questions in regard to the Home exemption should be no.
Mr Dowse submitted in response to the Commissioner that PRLTA000.1.2 specifically contemplates a permissible temporary absence as a result of employment commitments; it would be possible for a person who is an ‘absentee’ under s31 of the LT Act to nevertheless meet the ‘residual test’ in s36(1)(c) of the LT Act. Mr Dowse submits that he satisfies s36(1)(c) of the LT Act in both 2017-18 and 2018-19 years. That using s31(3)(b)(ii) as a yardstick, a ‘temporary absence for employment’ referred to in PRLT000.1.2 could include an absence of up to five years.
Discussion
Mr Dowse up until the time that he left for England on 24 January 2017 resided at the Kangaroo Point Unit and on his evidence claimed it as his home for land tax purposes in the previous year. For him to be able to claim it as his home in the years in question he must satisfy the Tribunal that it is his principal place of residence under s36(1)(c) of the Land Tax Act as he is not able to satisfy the test in s36(1)(a). This is due to him residing in a London Flat during the course of the relevant years and in particular on the relevant date of 30 June in each year.
There are set out above a number of criteria in s36(2) of the LT Act to which regard may be had in determining whether land is a person’s PPR. The Commissioner accepts that Mr Dowse fulfils the criteria to a large degree except for the fact that he lived full time at the London flat. The Commissioner considered it would be inconsistent that Mr Dowse was an absentee and that he was still entitled to the home exemption. As I have been satisfied that Mr Dowse was not an absentee in the 2017-18 year but was one in the 2018-19 year having regard to his change in employment circumstances then the years should be considered separately.
Was Mr Dowse entitled to the home exemption in the 2017-2018 land tax year?
The evidence shows that Mr Dowse accepted a secondment to the London Office of an associated entity of his employer for a period of 25 months. He took his clothes with him to London and his unit was left exactly as it had been before his departure with all of his furniture, personal effects and relevant services connected. He did not allow anyone else to occupy the property and it was his intention to return to it at the end of his secondment. Due to his absence being in the performance of his duty to his Australian employer Mr Dowse was not an absentee for land tax purposes, therefore the Commissioner’s concern about inconsistency between s31 and s36 does not arise.
I am satisfied that the Kangaroo Point unit was Mr Dowse’s principal place of residence before he departed from London on 24 January 2017. This is because it was his only residence and it otherwise fulfilled all of the criteria in s36(2) of the LT Act.
The cases make it clear that where someone is not residing at their usual residence for a purpose such as for holiday or work as long as they intend to return to that residence then it will be a residence for particular purposes. The Commissioner in PRLTA000.1.2 has stated that if the absence is temporary then the Commissioner may still be satisfied under s36(1)(c) that the land is the person’s PPR.
In this case I am satisfied that as at 30 June 2018 Mr Dowse intended his absence to be for the period of his secondment which was for 25 months and that at the end of that period he would return to reside at the Kangaroo Point unit. I note that when Mr Dowse did return from England for a short period in 2018, between 7 and 25 May, he stayed at his Kangaroo Point Unit. The absence here is temporary in the sense that it was intended for a specific period of time and that at the end of that time there was an intention to return to reside at the PPR.
I am therefore satisfied that the Kangaroo Point unit remains as Mr Dowse’s PPR during the 2017-18 land tax year because he was temporarily absent from it as at 30 June 2017.
Was Mr Dowse entitled to the home exemption in the 2018-19 land tax year?
There were as discussed above significant changes in Mr Dowse’s circumstances during the 2017-18 year. In particular he changed employers from an employer associated with his Australian employer to Facebook UK Limited and that his new visa enabled him to continue to reside in the United Kingdom until 26 January 2023. As a result of which Mr Dowse was an absentee for land tax purposes under s31 of the LT Act. Therefore, the Commissioner’s submissions in regard to inconsistency between s31 and s36 of the LT Act need to be considered. I note that both parties accepted that Mr Dowse was absent from Australia between 24 January 2017 and 30 June 2018 except for the period between 7 and 25 May 2018. So technically Mr Dowse did not reside in Australia during those periods and he was only not an absentee in the 2017-18 year because he was able to use an exclusion for employment purposes. The facts were also able to satisfy me that this was a temporary absence and so the PPR test in s36(1)(c) could be satisfied. Does the fact that Mr Dowse is no longer able to rely on the exclusion for employment purposes from being an absentee under s31(1) mean that he should no longer be entitled to the home exemption? He is still in London for work purposes; it is simply that he has changed employers and can no longer satisfy the requirement that his employment is in the course of duties for an Australian employer.
The important question is then whether the absence from his residence at Kangaroo Point is still temporary. The cases make it clear that you can have a number of places where you reside and that it is intention and considerations such as how long you have resided somewhere and your connection to that place and your purpose for being there. Contrasting being away and staying in different places for holidays or staying at a place for a particular work purpose with the place that you call home and intend to return to at the end of your purpose. I consider that there needs to be some certainty in intention to be able to satisfy the requirements that the residence in question remains your PPR.
In this case once Mr Dowse changed employers, he was no longer on a fixed contract and his visa conditions changed so that he may continue to reside and work in England until 26 January 2023, which is six years after he left Australia. He has stated in evidence, and I accepted that he intended to return prior to 24 January 2022 which would ensure that he would have still been eligible for the exclusion under s31(3) for employment purposes and not been an absentee if that exclusion had applied. This exclusion ceases where there is an intention to be absent for longer than five years or a five-year period has elapsed since you were first absent. Mr Dowse submitted that this five-year period should be the period that is accepted for the purpose of determining that an absence is temporary and so the PPR test in s36(1)(c) of the LT Act would apply.
The Commissioner noted that submission and said in that case Mr Dowse was agreeing that s36 had to be treated consistently with s31 and so if Mr Dowse was an absentee, then he could not get the home exemption.
In this case Mr Dowse has said and I have accepted that he intends to return to his Kangaroo Point unit prior to 24 January 2022 and so that would be a five-year absence. If the exclusion for employment had been in place as at 30 June 2018 then it would be consistent for the PPR test to be satisfied as the absence from Australia was for an accepted employment purpose, a defined period and was therefore clearly temporary. The period then was for 25 months. With his change in circumstances, he is now saying that he will still return prior to 24 January 2022 to ensure that he meets the five year requirements in s31(3)(b) but as he is no longer entitled to that exemption that does not affect his status as an absentee. I do not accept Mr Dowse’s submission that the five-year period in s31(3) should be used to determine what is a temporary absence for the purpose of s36(1)(c) of the LT Act. There is no requirement that the five-year period in s31(3) be used to calculate an appropriate period for temporary absences under s36(1)(c). It is only where the employment exclusion is available that for consistency the Commissioner would treat the same absence as a temporary absence for the purpose of s36(1)(c) of the LT Act.
Is an absence intended for five years for employment purposes temporary for the purpose of satisfying the requirements of s36(1)(c) of the Land Tax Act that the land is Mr Dowse’s principal place of residence? While Mr Dowse’s unit at Kangaroo Point retains all of the indicia as his residence he had not as at 30 June 2018 resided there since 24 January 2017 except for a short period in May 2018 and he has only stated that he will return there before 24 January 2022. There is no fixed employment contract, and his visa would allow him to reside in London for another year. I am satisfied that the Kangaroo Point unit was as at 30 June 2018 available to be used as his residence upon his return to Australia whenever that may be. Mr Dowse’s absence though was no longer fixed in terms of there being a fixed contract. The Commissioner makes it clear that the status of land will be lost if it is not used as PPR unless the absence is temporary. While I accept that Mr Dowse currently intends to return to his home prior to 24 January 2022 that is still a five-year absence and his intention is not fixed with reference to his employment or visa requirements. I am not satisfied as a result that Mr Dowse’s absence is temporary and he is not entitled to the home exemption in the 2018-19 year.
Costs
Having regard to the orders I will make which will set aside the Commissioner’s decision in the 2017-18 year with directions for reassessment and confirm the decision in 2018-19 year, Mr Dowse has been partly successful in his application. The Commissioner accepted that in that case Mr Dowse should be given an opportunity to file submissions on costs with the Commissioner having a right to file submissions in reply. Mr Dowse has submitted that he should be entitled to costs and I will make the orders suggested above to enable a costs decision to be made.
Orders
The Tribunal orders that:
1.The Commissioner of State Revenue’s decision of 23 May 2019 is set aside in regard to the 2017-2018 land tax year and confirmed in regard to the 2018-2019 land tax year.
2.The Commissioner of State Revenue must reassess Mr Dowse’s land tax liability for the 2017-2018 land tax year on the basis that he was not an absentee as at midnight on 30 June 2017 and that he was entitled to the home exemption as at midnight on 30 June 2017 in respect of his unit at Kangaroo Point.
3.The Commissioner of State Revenue must pay Mr Dowse interest in respect of any refund of land tax and late payment interest in respect of the 2017-2018 land tax year in accordance with s 61(2) of the Taxation Administration Act 2001 (Qld).
4.Mr Dowse must file in the Tribunal and give a copy to the Commissioner of State Revenue of all further submissions and material in addressing the issue of costs within 14 days of the date of this order.
5.The Commissioner of State Revenue must file and give a copy to Mr Dowse of all submissions and material in reply addressing the issue of costs within 14 days of being served with Mr Dowse’s submissions and material.
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