Haddad v Chief Commissioner of State Revenue (No 2)

[2017] NSWCATAD 23

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Haddad v Chief Commissioner of State Revenue (No 2) [2017] NSWCATAD 23
Hearing dates:	25 July 2016
Date of orders:	19 January 2017
Decision date:	19 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Boxall, Senior Member
Decision:	1. I confirm: (1) the reassessment of land tax for the 2005-2009 Tax Years on certain land owned by the Applicant at Johns Road, Wadalba (the Land) made by the Commissioner on 18 December 2013; and (2) the assessment of land tax on that Land for the 2015 Tax Year made by the Commissioner on 29 January 2015.
Catchwords:	Land tax - unutilised value allowance – single-dwelling house -
Legislation Cited:	Administrative Decisions Review Act 1987, section 58 Civil and Administrative Tribunal Act 2013, section 52 Land Tax Management Act 1956,sections 9A, Taxation Administration Act 1996, sections 96,100
Cases Cited:	Denhope Constructions Pty Limited and others v Parramatta City Council [1997] NSWSC 113 Haddad v Chief Commissioner of State Revenue [2011] NSWADT 17 Haddad v Chief Commissioner of State Revenue [2011] NSWADTAP 35 Haddad v Chief Commissioner of State Revenue [2014] NSWCA 23
Category:	Principal judgment
Parties:	Sally Haddad (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: A Ryder (Respondent)   Solicitors: J Haddad (As agent for the Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1510454

REASONS FOR DECISION

Introduction

1. This is an application made by the Applicant on 3 August 2015 under section 96 of the Taxation Administration Act 1996, for the review by the Tribunal of the Chief Commissioner of State Revenue’s (for convenience, the Commissioner) determination dated 14 July 2015, disallowing:

1. an objection made by the Applicant on 4 February 2014 to a reassessment of land tax for the 2005-2009 Tax Years on certain land at Johns Road, Wadalba (the Land) made by the Commissioner on 18 December 2013; and

2. an objection made by the Applicant on 12 March 2015 to an assessment of land tax on that Land for the 2015 Tax Year made by the Commissioner on 29 January 2015.

2. In these reasons:

1. Terms defined or used in the Land Tax Management Act 1956 have the same respective meanings;

2. References to the Act are to the Land Tax Management Act 1956; and

3. Without limiting (1) above, references to a Tax Year preceded by a reference to one or more calendar years – for example, the “2015 Tax Year”, or the “2005 and 2006 Tax Years” – are to the land tax year which begin on 1 January of the calendar year (or of each calendar year) so referenced.

3. The application was heard on Monday 25 July 2016 by Senior Member A Verick. After that, but before Senior Member Verick delivered his decision, Senior Member Verick was unavailable to determine the matter. In accordance with the procedures prescribed under section 52 of the Civil and Administrative Tribunal Act 2013, the Tribunal was reconstituted on 19 October 2016 by the President, the Hon. Justice Robertson Wright. The Tribunal as so reconstituted comprises Senior Member A R Boxall.

The substantive issue

4. This leads to the core of the dispute in the present review, which is at what point in the period between June 2007, when the House was damaged by storms, and the second half of 2012, by which time the Applicant agrees that the House was derelict and vandalised, the House ceased to be inhabited or inhabitable as a dwelling-house. Because of the “look back” provisions in section 9A(4) of the Act the issue is one of real economic significance, since the availability to the Applicant of an unutilised value allowance for earlier years depends on the answer.

5. Section 100(3) of the Taxation Administration Act 1996 provides as follows, in relation to reviews such as this one of decisions by the Commissioner:

The applicant has the onus of proof of proving the applicant’s case in an application for review.

In order to succeed, then, the Applicant must demonstrate that the Respondent’s decision in the assessment under review was incorrect. For convenience, however, these reasons will first outline the Respondent’s position, in order to identify the issues in question.

Preliminary issues

6. There are two preliminary issues which need to be addressed, in order to clarify the scope of the dispute:

1. the first concerns the 2004 Tax Year, and

2. the second concerns the 2012 Tax Year, and has implications for all subsequent, and certain preceding, Tax Years.

7. So far as the 2004 Tax Year is concerned, the Applicant’s agent, Dr Jim Haddad, both in his oral submissions and his two written submissions (entitled, respectively, Applicant’s Submissions and - a touch paradoxically - Applicant’s Oral Submissions) raises two concerns as to the Respondent’s action (or, perhaps more accurately, alleged inaction) concerning the Land in relation to the 2004 Tax Year. These were:

1. The first, as set out in the Applicant’s Submissions, is a question: “Should the respondent have asked for an unutilised value determination for the 2004 tax year?” The answer is that:

1. the Respondent was obliged to do so under section 62K(1A) of the Act if he received a request from the Applicant to do so and if he was satisfied of certain matters;

2. the Respondent received such a request from the Applicant, dated 17 October 2012, together with certain supporting materials; and

3. the Respondent did so, by email to the Valuer-General’s District Valuer in Newcastle, Ms Gai Piccoli, dated 5 November 2012, as is apparent from the documents at Tab 3 of Volume 1 of the documents filed in this matter pursuant to section 58 of the Administrative Decisions Review Act 1987 (the Section 58 Documents).

2. The second is alluded to in paragraph 5 of the Applicant’s Oral Submissions, and is to the effect that:

1. in her objection dated 2 February 2014 the Applicant stated that she disagreed with the land tax calculations made by the Respondent in the assessment 18 December 2013, in part at least because they do not take into account in calculating the net amount payable by the Applicant land tax referrable to the 2004 Tax Year; and

2. the Respondent’s determination of the Applicant’s objections did not deal with the 2004 Tax Year.

The Tribunal can only review under section 96 of the Taxation Administration Act 1996 a decision of the Commissioner which has been the subject of an objection. The decisions of the Commissioner which were the subject of the Applicant’s objections are those of 18 December 2013 and 29 January 2015 which dealt with, respectively, the 2005 to 2009 Tax Years, and the 2015 Tax Year. None of them concerned in any way the 2004 Tax Year, so that in consequence it is not open to the Tribunal in the context of this hearing to undertake a review in relation to that Tax Year, whatever issues concerning that Tax Year the Applicant may have raised in her objection dated 4 February 2014, and whatever the Commissioner may have done or not done in relation to that tax year. The scope of the review is determined under section 96 by that of the Commissioner’s original decision, not by matters which the Applicant may have raised in her objection but which fall outside the scope of the original decision.

8. So far as the 2012 Tax Year is concerned, both orally and in the Applicant’s Oral Submissions, Dr Haddad conceded that the house built on the Land (the House) was uninhabitable from some point in June or July 2012 and has not been inhabited or inhabitable since then. This means that:

1. The review application for the 2015 Tax Year can be dismissed without further consideration, since it is common ground between the parties that in the 2015 Tax Year the House was neither used nor adapted for use solely for habitation by not more than one family, and thus not a “single dwelling-house” within the meaning of section 9A(7) of the Act. The decision of the Court of Appeal in Denhope Constructions Pty Limited and others v Parramatta City Council [1997] NSWSC 113, which concerned an identical definition in predecessor legislation to that which contains the definition of “single dwelling-house”, indicates that historical usage of a structure as a dwelling-house does not confer on it in perpetuity that status. The consequence is that because the House was in the 2015 Tax Year neither so used or adapted for use, the Land was not used or occupied in the relevant tax year solely as the site of a single dwelling house and was thus not eligible to have an unutilised value allowance ascertained for it under section 62J(1)(b) of the Act.

2. In accordance with section 9A(4) of the Act, the deferral of land tax provided for under that section in respect of land for which an unutilised value allowance is ascertained comes to an end at the time at which the land in question ceases to be so used or occupied, so that for:

1. the 2012 Tax Year, and

2. each of the 4 preceding tax years (that is to say, the 2011, 2010, 2009 and 2008 Tax Years,

land tax is to be reassessed as if no unutilised value allowance had been applicable to the Land for those various tax years.

9. The necessary result of this is that the only Tax Years for which the reassessments are under consideration in this objection are the 2005, 2006 and 2007 Tax Years. That is not to say that events which occurred in subsequent tax years are irrelevant, since the occurrence as late as the 2009 Tax Year of either of the circumstances referred to in section 9A(4) of the Act – namely, the sale or other disposal of the Land, or its ceasing to be used or occupied solely as the site of a single dwelling-house - would have the effect under that sub-section of triggering a reassessment of the Land’s liability to land tax for all those tax years without any reduction by reference to an unutilised value allowance.

Respondent’s position

10. In his letter to the Applicant dated 20 December 2013 which enclosed the reassessment dated 18 December 2013, the Respondent says that it was not satisfied that the Land was a parcel of land “used or occupied solely as the site of a single dwelling-house”.

11. In the written submissions made in response to those of the Applicant, the Respondent’s counsel puts some flesh on these bare bones by way of explanation of the Respondent’s conclusions:

1. The Land and the House have already figured before the Tribunal’s predecessor, the Administrative Decisions Tribunal, and the Court of Appeal, in relation to a different issue concerned with the Act, namely whether the Applicant’s principal place of residence was located on the Land, thus entitling her to exemption under section 10(1)(r) of the Act.

2. While the substantive issues canvassed before the Administrative Review Tribunal in Haddad v Chief Commissioner of State Revenue [2011] NSWADT 17, before its Appeal Panel in Haddad v Chief Commissioner of State Revenue [2011] NSWADTAP 35 and before the Court of Appeal in Haddad v Chief Commissioner of State Revenue [2014] NSWCA 23 go primarily to the availability to the Applicant of the principal place of residence exemption, certain findings of fact were made in the course of them that, the Respondent says, are relevant to the matters at issue in the present matter.

3. The findings of fact referred to by the Respondent are as follows:

1. The House stands on the Land, as did a free standing corrugated iron “building”. The neutral word “building” is adopted deliberately here, since there was some difference of views as between the Applicant and the Respondent concerning the nature and functions of the “building”: the Applicant says that it housed a two-bedroom self-contained flat which she occupied, while the Respondent says that it was nothing more than a corrugated iron shed.

2. The House was let to tenants from sometime in 2002 until August 2007.

3. In June 2007 the garage connected to the House was seriously damaged by a falling tree.

4. The corrugated iron “building” was destroyed by fire on 17 July 2007.

5. The last tenant vacated the House in August 2007.

6. Nobody has lived on the Land since then. The Applicant, it should be noted, disputes this last proposition, claiming that on various occasions since then she has occupied the House, even though she has been restricted to using electricity supplied by means of a private generator.

4. In his written submissions, the Respondent’s counsel refers to some other matters which, he says, are relevant to the Respondent’s position:

1. On 13 June 2007, the Applicant wrote to the managing agents of the House, Dennis Smith Realty Pty Limited (also known as First National Real Estate) (the Agents) stating that she had explained to the tenant that the House may be structurally unsafe. A copy of the relevant letter is found at Tab 2 of Volume 2 of the Section 58 Documents.

2. On 26 June 2007, the tenant wrote to the Agents, complaining about leaks in the roof of the House which he said were caused by the “owner” kicking and lifting tiles from the roof of the House, at the other end from the damaged garage and above the tenant’s bedroom. A copy of the relevant letter is found at Tab 8 of Volume 2 of the Section 58 Documents.

3. On 3 July 2007, the Applicant wrote to the Agents, stating that the House had been seriously damaged and was not safe for the tenant or anyone else to continue living in. A copy of the relevant letter is found at Tab 9 of Volume 2 of the Section 58 Documents.

4. On 25 July 2007, the Applicant’s husband (and her agent in this review), Dr Jim Haddad, wrote a letter addressed “To Whom It May Concern”, stating that he had expressed concern to the tenant that the House may not be safe and that he should seek other housing until the House was proven safe. The letter than stated that “the house was not safe for [the tenant] to occupy”. A copy of the relevant letter is found at Tab 11 of Volume 2 of the Section 58 Documents.

5. On 19 June 2008 the Applicant wrote to the Respondent and stated:

“During the central coast storms of June 2007, a giant gum tree fell on the house (on the 8-06-07) rendering the house unliveable. The damage to the house was substantial. The whole roof shifted, walls demolished, and water and electrical damage throughout the house …. The tenant was in danger of harm by continuing to live in the house and as such was given immediate eviction notice”.

A copy of the relevant letter is found at Tab 13 of Volume 2 of the Section 58 Documents.

6. On 4 April 2009, the Applicant wrote to the Respondent and stated that she had been carrying out repair work on the House but that:

“… there has been no electricity used since August 2007…. Any use of electricity was dangerous because of the strong possibility of electrical fire … Energy Australia disconnected the electricity supply to the site on the 6-02-2008.”

A copy of the relevant letter is found at Tab 15 of Volume 2 of the Section 58 Documents. The Applicant, it should be noted, now seeks to qualify this statement, to the effect that what it really means is that no mains electricity has been used since August 2007.

Applicant’s position

12. The Applicant, in her Applicant’s Submissions, her Applicant’s Oral Submissions and in her agent’s oral submissions, contests the Respondent’s view. I summarise below the Applicant’s arguments, as best they can be gleaned from those various sources:

1. The Applicant has repaired the 2007 storm damage and intends to repair the present damage to the House. Why should the Land lose its unutilised value allowance in the face of this intention?

How relevant this objection remains, in view of the Applicant’s acceptance that the House was uninhabitable in June or July 2012 (and has remained uninhabited and uninhabitable since then), is unclear. Nonetheless, for completeness, it can be dealt with simply. Section 9A(4) of the Act provides that if, in a tax year, land in respect of which an unutilised value allowance is current is either disposed of or ceases to be used or occupied solely as the site of a single dwelling-house, then the land is to be reassessed for land tax as if an unutilised value allowance had not been applicable to it. The definition of “single dwelling-house”, as elucidated by the Court of Appeal in Denhope Constructions Pty Limited and others v Parramatta City Council [1997] NSWSC 113, is such that if a dwelling ceases to be used or adapted for use solely for habitation by not more than one family it ceases to be a “single dwelling-house”. The test is an objective one: if the dwelling ceases objectively to meet the criteria of that definition, section 9A(4) of the Act is engaged and land tax must be reassessed accordingly. The landowner’s intention to repair or reconstruct the affected dwelling is entirely irrelevant to this outcome.

2. The house was in fact inhabitable in 2007.

The Applicant says that on 21 June 2007 a representative of the Agents and a building assessor inspected the House, and the assessor concluded that the living areas of the House and its attached laundry were safe to use, but not the garage which formed an integral part of the structure. A copy of a file note, apparently made by a representative of the Agents and dated 21 June 2007, is found at Tab 8 of Volume 2 of the Section 58 Documents.

The various written communications in June and July 2007, which state that the House was unsafe should be discounted, because the relevant period was, to quote the Applicant’s Oral Submissions, ”.. a very stressful period for both tenant and applicant and there was a lot said by both that was not true or exaggerated ..”.

Similarly, the Applicant’s agent says, the views expressed by the Applicant as to the condition of the House in 2007 and 2008 in her letter to the Respondent dated 4 April 2009, which is found at Tab 8 of Volume 1 of the Section 58 Documents are wrong, because only the garage was rendered unusable by the fallen tree, and the tenant was evicted, not because of concerns as to the condition of the House, but rather because of the expiry of his lease, and because of difficulties in the landlord/tenant relationship.

3. The House was inhabitable in 2008.

The Applicant says that she caused the House to be repaired, and spent money on obtaining materials to do so. The Applicant’s letter of 4 April 2009, together with attached receipts, setting this out are found at Tab 8 of Volume 1 of the Section 58 Documents.

The Applicant’s agent also argues that the fact that Energy Australia cut off mains electricity supply to the House in February 2008 did not affect the habitability of the House, since the Applicant installed and used a generator at the House to provide power.

4. The House was inhabitable as at October 2011, but not by late 2012.

The Applicant says here that in email exchanges in December 2012 between her and officers of the Respondent, Ms Piccoli (the Valuer-General’s District Valuer in Newcastle) expressed the view that:

1. the House was in reasonable condition in December 2009;

2. the Valuer-General’s contractor determined that the House’s roof was intact in October 2011; and

3. the same contractor determined that the House’s roof was no longer intact in June 2012, although the Applicant raises a question as to whether the relevant photographs were in fact taken later, in July 2012.

The relevant exchanges are found at Tab 5 of Volume 1 of the Section 58 Documents.

The Applicant also refers to an aerial photograph of the House, which is said to have been taken in 2011, found at Tab 17 of Volume 1 of the Section 58 Documents.

5. The House was from time to time occupied by the Applicant after the tenant vacated it.

This claim is made explicitly in paragraph 12, and by implication in paragraph 20, of the Applicant’s Oral Submissions.

Consideration of the evidence

13. At the outset, it should be noted that the Applicant herself did not give evidence in this review, either in person or in the form of an affidavit. Much of her case took the form of assertions by her agent, either as to factual matters or as to the correct meaning to place on various pieces of written evidence comprised in the Section 58 Documents. These assertions were variously (1) inferences, of greater or lesser plausibility, drawn from matters for which there was some written evidence, (2) simple assertions of fact made by the Applicant’s agent without supporting evidence, or (3) inferences drawn by the Applicant’s agent from those assertions of fact. This approach, it is fair to say, was not particularly apt to assist the Applicant in discharging her onus of proof under Section 100(3) of the Taxation Administration Act 1996.

13. Habitability in 2007

1. The Applicant says that the House was in fact habitable in 2007. In doing so it asks the Tribunal to do two things:

1. first, to privilege the views of an unidentified building assessor who inspected the House on 21 June 2007, and which are reported at second-hand in the Agents’ file note, over her own contemporaneous and first-hand assessment of the House’s habitability, and

2. secondly, to discount generally the contemporaneous views expressed by her and Dr Haddad concerning the House’s condition and which are found in the Section 58 Documents, on the basis that such views were, to quote Dr Haddad, “…. not true or exaggerated…”.

2. While I note the reported views of the assessor, they cannot be considered as decisive:

1. There is no report or record of them prepared by the assessor himself, nor was the assessor a witness. It is therefore impossible to test them, or even to identify the assumptions or qualifications to which they may have been subject. It is not possible to identify the assessor’s qualifications to express such views, or to form any assessment as to his reliability and competence.

2. The report is a brief and informal account by Ms Ringsell, the real estate agent, of what she believed the assessor to have said. The Applicant simply assumes the accuracy of Ms Ringsell’s summary, and asks the Tribunal to do the same.

3. The assessor’s inspection occurred on 21 June 2007, according to Ms Ringsell’s file note. The Applicant, however, clearly remained of the view that the House was unsafe for occupation on 3 July 2007, when she wrote to the Agents requiring that the tenant vacate the House because of safety concerns:

“The tree has rendered the house unsafe to occupy …. [the tenant] should immediately vacate the house and the electricity and water be turned off to prevent further damage or injury …”.

4. The Applicant was therefore not sufficiently convinced in July 2007 of the accuracy of the assessor’s view to act on a basis consistent with it, at a time when the House’s condition was manifest and the assessor’s opinion, assumptions and qualifications could practically have been tested by her. It is difficult to reconcile this with her new-found desire in 2016 to treat the assessor’s opinion as determinant of the House’s condition, and I am accordingly disinclined to confer on the assessor’s reported view that status.

3. The Applicant, through her agent, says that the views expressed by her or on her behalf in 2007 as to the habitability of the House should be disregarded, or at least discounted, because the time was a stressful one, particularly for relations between the Applicant and the tenant, and the Applicant made statements which were “…. not true or exaggerated…”. I am prepared to accept that the Applicant was under stress at the time; to have a large tree fall on one’s property is clearly an alarming occurrence, and dealings with tenants are notoriously often difficult. It does not follow, however, that the views expressed in 2007 should be discounted, for the following reasons:

1. Just one year later, on 19 June 2008, by which time:

1. the tenant had been out of the property for over 10 months,

2. according to the Applicant’s Oral Submissions, the fallen tree had been disposed of and the Applicant was progressing with repairs to the House, and

3. what the Applicant’s Oral Submissions described as the “… very stressful period …” of June and July 2007 was well in the past,

the Applicant wrote to the Respondent.

2. In that letter, with the clarity of 12 months’ hindsight, she described the effect of the tree falling on the house as:

“… rendering the house unliveable. The damage to the house was substantial. The whole roof shifted, walls demolished, and water and electrical damage throughout the house. Repairs have been equivalent to building a new home …… The tenant was in danger of harm by continuing to live in the house and as such was given immediate eviction notice”.

The consistency of these comments with the views expressed in July 2007 indocte that her 2007 comments were, in fact, her genuine contemporaneous assessment of the House’s condition.

3. In a subsequent letter to the Respondent, dated 4 April 2009, the Applicant sets out some details of the repair work which she had undertaken (or was proposing to undertake) to the House:

“A lot of structural work has been done. The roof has been repaired. The brickwork has been redone. The garage doors have been repaired and refitted. Guttering and eaves have been repaired. Storm water and sewerage lines have been repaired. Outstanding work includes repairs to ceilings and walls, replacing rotted carpet, electricity supply and other interior repairs…….there has been no electricity used since August 2007. The fire of my unit short circuited and burned out the main fuse box. The fallen tree and storms caused significant damage to the electrical wiring of the home. Any use of electricity was dangerous because of the strong possibility of electrical fire …. Energy Australia disconnected the electricity supply to the site on 6-02-2008 … This was not an immediate concern, as I could not use the electricity anyway. ….. I am hoping to have all repairs completed soon and the property fenced so that I can fully reoccupy my home”.

4. This impressive catalogue of necessary works, coupled with:

1. the Applicant’s observation that electricity could still not be used because of fire risks,

2. her expressed hope to be able soon to reoccupy the House, and

3. the consistency of her views with those expressed by her in 2007,

again indicate that the Applicant’s contemporaneous views in 2007 as to the suitability of the House for occupation are a more accurate representation of its then habitability than her agent’s propositions suggest.

5. The Applicant places some reliance on photographs of the House, which indicate that the impact of the falling tree was principally at one end of the House, where a garage and laundry (which form an integrated part of the House’s structure) are located. From this, together with the reported comments of the assessor, she concludes that the rest of the House remained habitable. This ignores the views which she consistently expressed in 2007, 2008 and 2009, well after she was aware the assessor’s views.

6. Finally, for the Applicant now to claim that her views in 2007 and 2008 were not true must raise questions as to the credibility more generally of her claims. In such circumstances, I am inclined to place greater reliance on views expressed by her which are closer in time to the relevant events than on her agent’s gloss made nearly a decade later. This is for two reasons:

1. Her 2007 and 2008 views can be considered as more spontaneous responses to or accounts of the relevant circumstances.

2. Not only is her agent’s gloss entirely inconsistent with the Applicant’s earlier views, but it is put forward in the context of a dispute with the Respondent where the Applicant’s economic interest is better served by the House’s condition being quite the reverse of what she claimed it to be in 2007 and 2008. It is in consequence legitimately to be treated with some scepticism.

4. Accordingly, I am of the view that the Applicant has not discharged her onus under section 100(3) of the Taxation Administration Act 1996 to demonstrate that:

1. the House did not cease at a point during the 2007 Tax Year to be used or adapted for use solely for habitation by not more than one family, and

2. in consequence, the Land continued to be used or occupied solely as the site of a single dwelling-house.

15. Habitability in 2008

1. On 6 February 2008 Energy Australia disconnected the House from mains supply of electricity, because of damage to the poles which carried the electricity wires to the House.

2. On 4 April 2009, the Applicant wrote as follows to the Respondent:

The fire of my unit short circuited and burned out the main fuse box. The fallen tree and storms caused significant damage to the electrical wiring of the home. Any use of electricity was dangerous because of the strong possibility of electrical fire. To add to the above, the five telegraph poles forming the private electricity line to the home were also damaged by the storm. They are rotted and have to be replaced.…. Because I could not have them repaired in time Energy Australia disconnected the electricity supply to the site on 6-02-2008 … This was not an immediate concern, as I could not use the electricity anyway [my underlining].

3. This indicates that as at 7 February 2008:

1. not only was the House no longer connected to mains power, but

2. also, as the underlined words above suggest, the House’s wiring system had been so damaged as to make it incapable of use.

4. In urban Australia (in which I include Wyong Shire) in the 21st century, a house would not in my view be considered adapted for use for habitation by a family if it was neither:

1. supplied with electricity (whether from mains supply or domestic generation), nor

2. fitted with a wiring system capable of safely reticulating the electricity so supplied throughout the house for the use of its occupants.

5. Presumably, as the Applicant’s agent suggested both orally and in the Applicant’s Oral Submissions, the disconnection from mains power could have been remedied using a generator, which might address the first element in (4) above.

6. Nowhere, however, in the Applicant’s submissions or evidence is there anything to suggest that the wiring issues referred to by the Applicant in her 4 April 2009 letter had been remedied. Indeed, as the underlined words above indicate, the Applicant recognised in 2009 that the House’s electrical wiring was such in 2008 that it could not in any case be used to reticulate electricity through the House, so that even if a generator were used at the House the electricity so generated could not be fed into the House’s electrical system for domestic purposes. This in my view means that the House did not satisfy the second element in (4) above in 2008.

7. The Applicant’s agent asserts that a generator was in fact used at the House for electrical supply, thus satisfying the first element in (4) above and, he says, ensuring the habitability of the House:

1. It may well be that, as he says, a generator was used to provide electricity necessary to operate power tools used for purposes of repairs to the House, but this does not show that the House was supplied with electricity from the generator such that lighting was available to the occupants or the usual domestic electrical appliances could be used by them in the ordinary course of domestic life. It is entirely consistent with work having been performed at the House that the tradesmen engaged to do so brought their own generators, to allow them to operate power tools in the absence of mains current.

2. The Applicant provides no evidence whatsoever as to the purchase or hire, installation or use of a generator to power domestic life in the House. There are no photographs of a generator; there is no invoice for the purchase or hire of a generator by the Applicant; there is no invoice from an electrician for the integration of a generator into the House’s internal electrical systems; there are no invoices or receipts for the purchase of fuel to power the generator; and there is no evidence from the Applicant herself that she ever had occasion, as the Applicant’s Oral Submissions put it, “… to fill the fuel tank and turn the key to start the generator ….”.

8. In summary:

1. It is agreed by the Applicant that the House was not occupied by a tenant in 2008.

2. Moreover, the Applicant herself in April 2009 told the respondent that “… I am hoping to have all repairs completed soon and the property fenced so that I can fully reoccupy my home”, which strongly indicates that in 2008 and at least early 2009 the Applicant was not living in the House. The Applicant has provided no evidence that she lived in the House in 2008; indeed, the evidence that she has provided is to the effect that during that year the House was badly damaged and uninhabitable, and undergoing extensive repairs.

3. The limited evidence provided by the Applicant is to the effect that the Applicant commenced repairs to the House in March 2008, but in her April 2009 letter she recognises that these had not been completed, to a state which allowed the Applicant to resume full occupancy of the House, by April 2009.

4. The evidence provided by the Applicant is to the effect that the House’s wiring system was unable safely to reticulate electricity throughout the House in 2008, and that the House was in any event disconnected from Energy Australia’s grid in February of that year.

5. There is no evidence that a private generator was used to provide electrical supply for domestic use by occupants of the House during that year.

9. Accordingly, I am of the view that the Applicant has not discharged her onus under section 100(3) of the Taxation Administration Act 1996 to demonstrate that:

1. during 2008 the House was used solely for habitation by not more than one family,

2. during 2008 the House was equipped with a functioning electricity reticulation system and supplied with electrical power, such that it was adapted for use solely for habitation by not more than one family, and

3. in consequence, the Land continued to be used or occupied solely as the site of a single dwelling-house.

Conclusion

16. These findings deal with the review of the reassessment dated 18 December 2013. This is because (as I have found) the House was neither used nor adapted for use solely for habitation by not more than one family in either the 2007 Tax Year or the 2008 Tax Year, the Commissioner is authorised under section 9A(4) of the Act to reassess the liability of the Land to land tax in each of the 2008, 2007, 2006 and 2005 Tax Years, on the basis that no unutilised value allowance was available.

17. The Applicant’s acceptance that the House was neither used nor adapted for use solely for habitation by not more than one family for part of (and since) the 2012 Tax Year:

1. deals with the review of the assessment for the 2015 Tax Year; and

2. even if I am incorrect in my conclusion above as to the 2008 Tax Year, also deals with the review of the assessment for the 2008 Tax Year, because the Commissioner is in consequence authorised under section 9A(4) of the Act to reassess the liability of the Land to land tax in each of the 2011, 2010, 2009 and 2008 Tax Years.

18. Accordingly, I confirm:

1. the reassessment of land tax for the 2005-2009 Tax Years on certain land owned by the Applicant at Johns Road, Wadalba (the Land) made by the Commissioner on 18 December 2013; and

2. the assessment of land tax on that Land for the 2015 Tax Year made by the Commissioner on 29 January 2015.

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

Registrar

Decision last updated: 19 January 2017