HEALY and REVENUE CONSULTANT AS DELEGATE OF THE COMMISSIONER OF STATE REVENUE
[2023] WASAT 135
•27 DECEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: TAXATION ADMINISTRATION ACT 2003 (WA)
CITATION: HEALY and REVENUE CONSULTANT AS DELEGATE OF THE COMMISSIONER OF STATE REVENUE [2023] WASAT 135
MEMBER: MS R PETRUCCI, MEMBER
HEARD: 20 OCTOBER 2023
DELIVERED : 27 DECEMBER 2023
FILE NO/S: VR 94 of 2022
BETWEEN: PATRICK OLAN HEALY
Applicant
AND
REVENUE CONSULTANT AS DELEGATE OF THE COMMISSIONER OF STATE REVENUE
Respondent
Catchwords:
Taxation Administration Act 2003 (WA) - Jurisdiction of Tribunal - Land tax - Exemption - Private residential property - Whether property used as primary residence - Onus of proof - Turns on own facts
Legislation:
Interpretation Act 1984 (WA), s 5
Land Tax Assessment Act 2002 (WA), s 5, s 7(1), s 17, s 20, s 21, s 21(1), s 21(1)(a), Div 1, Div 2, Pt 3
State Administrative Tribunal Act 2004 (WA), s 13(1), s 13(2), s 14, s 17(1), s 18, s 24, s 27, s 29, s 29(3), s 29(9)
Taxation Administration Act 2003 (WA), s 16(2), s 37, s 37(2), s 38(5), s 40
Result:
Decision under review set aside
Orders made
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms I Inkster |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision(s):
Abela v Commissioner of State Revenue [2017] VCAT 1024
Acitino v Commissioner of State Taxation [2020] SACAT 32
Black v Chief Commissioner of State Revenue [2011] NSWADT 66
Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41
Commissioner of State Revenue v Burdinat [2012] WASC 359; (2012) 90 ATR 689
Dean v Commissioner of Stamp Duties [1996] 2 Qd 557
Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437, 44 FCR 450
Haddad v Commissioner of State Revenue [2013] VCAT 208
JM Bestall v Commissioner of State Revenue [2005] WASAT 32; (2005) 38 SR (WA) 311
Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867
Lou v Chief Commissioner of State Revenue [2019] NSWCATOD 9
McIntosh Brothers Pty Ltd v Chief Commissioner of State Revenue [2019] NSWCATAD 124
Nakhoul v Chief Commissioner of State Revenue [2009] NSWADT 103
Paspaley v Chief Commissioner of State Revenue [2014] NSWCATAD 217; (2014) 100 ATR 60
Placer Dome Inc v Commissioner of State Revenue [2017] WASCA 165, (2017) 106 ATR 511
Re Ziino and Commissioner of State Revenue [2004] VCAT 1707
Sarros and Commissioner of State Revenue [2022] WASAT 102
Stoke-On-Trent, Borough Council v Cheshire County Council [1915] 3 KB 699
Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188; (2009) 77 ATR 346
Yen-Cheng Chuang v Chief Commissioner of State Revenue [2009] NSWADT 160
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
A person's place of residence is usually understood as 'the place where he eats, drinks and sleeps'.[1] However, for a residence to be exempt from land tax in Western Australia for a particular assessment year, the person must use that residence as their 'primary residence'. Broadly, this proceeding concerns whether the applicant, Mr Patrick Olan Healy (Mr Healy) used his property, located in Quinns Rocks, an outer coastal suburb north of Perth (Quinns Rocks property) as his 'primary residence'.
[1] Stoke-On-Trent, Borough Council v Cheshire County Council [1915] 3 KB 699 at [706].
On 19 October 2022, Mr Healy commenced this proceeding under s 38(5) of the Taxation Administration Act 2003 (WA) (TA Act). That section requires the respondent, the Revenue Consultant as delegate of the Commissioner of State Revenue (Commissioner) to apply to the Tribunal for directions, where the Commissioner fails to determine an objection within 120 days from the day that the objection was lodged by Mr Healy.
On 15 November 2022, by consent of the parties at the first directions hearing,[2] the President of the Tribunal ordered that the proceeding is taken to have been commenced under s 40 of the TA Act rather than s 38(5) of the same Act as stated on Mr Healy's application. Section 40 of the TA Act provides, amongst other things, that a person who is dissatisfied with the Commissioner's decision on an objection may apply to the Tribunal for a review of the decision.
[2] Exhibit 1 (Hearing Book) at page 29.
Mr Healy is dissatisfied with the Commissioner's decision to assess land tax on the Quinns Rocks property for each of the 2018/2019, 2019/2020 and 2020/2021 assessment years (the relevant assessments).[3]
[3] ts 8-12, 20 October 2023 and Hearing Book at page 299.
Besides the Quinns Rocks property, which the parties agree is a 'private residential property' as that term is defined in clause 1 of the Glossary to the Land Tax Assessment Act 2002 (WA) (LTA Act), Mr Healy along with another person owns a property in Nowergup (Nowergup property). A business operates from the Nowergup property.
Finally, Mr Healy owned property in North Perth (North Perth property). Mr Healy purchased that property in or about December 2014. In or around October 2020, Mr Healy sold the North Perth property.
Mr Healy asserts that the Quinns Rocks property qualifies for exemption under s 21 of the LTA Act for the relevant assessments, and therefore no land tax is payable on the basis that the Quinns Rocks property was being used by him as his 'primary residence' at midnight on 30 June 2018, 30 June 2019 and 30 June 2020 (the relevant dates).
The Commissioner's position is that the Quinns Rocks property was not used by Mr Healy as his 'primary residence' at midnight on the relevant dates or, alternatively, there is insufficient evidence to establish that it was, and therefore the Quinns Rocks property is taxable.[4]
[4] ts 17, 20 October 2023.
In short, the crux of the application before the Tribunal, is whether the Quinns Rocks property qualifies for exemption and therefore no land tax is payable by application of s 21(1)(a) of the LTA Act for the relevant assessments.
If the Quinns Rocks property does not qualify for exemption, then the decision of the Commissioner in relation to the Quinns Rocks property will be confirmed. Otherwise, the decision of the Commissioner may be set aside, and orders made in accordance with s 29(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (see below at [47]).
For the reasons which follow, in my view, the correct and preferable decision in relation to the Quinns Rocks property is to:
(a)confirm the decision under review for each of the 2018/2019, and 2019/2020 assessment years; and
(b)set aside the decision under review for the 2020/2021 assessment year.
In other words, the Quinns Rocks property is not exempt from land tax for 2018/2019 and 2019/2020 assessment years but is exempt from land tax for 2020/2021 assessment year.
This means Mr Healy's application is partly successful.
Commissioner's investigation
Even though Mr Healy's objection concerns the Quinns Rocks property, it is useful to start by briefly setting out the investigation undertaken by the Commissioner in relation to Mr Healy's Quinns Rocks and North Perth properties.
On 13 October 2017, the Commissioner undertook a review of whether Mr Healy used the North Perth property as his primary place of residence. The Commissioner concluded that property was not used by Healy as his primary residence at midnight on 30 June prior to each of the 2016/2017 and 2017/2018 assessment years. This was on the basis that the North Perth property was rented out from 25 August 2015 up to the date of the review (13 October 2017) apart from a break from August 2016 to February 2017 when Mr Healy moved back into that property.[5]
[5] Hearing Book at pages 88 to 94.
Further, on the 13 October 2017, the Commissioner concluded that the Quinns Rocks property was used by Mr Healy as his primary residence at midnight on 30 June prior to each of the 2016/2017 and 2017/2018 assessment years. It appears the Commissioner reached this conclusion based on the following information:[6]
·The Australian Taxation Office recorded the Quinns Rocks property as Mr Healy's residential address;
·Western Power had an active account with Mr Healy for the Quinns Rocks property from 16 May 2016;
·The Water Corporation had an active account with Mr Healy for the Quinns Rocks property from 21 August 2016; and
·The Department of Transport recorded the Quinns Rocks property as Mr Healy's residential address.
[6] Ibid.
Following Mr Healy's telephone call to Ms Vanessa Chong, Specialist Recovery Officer, RevenueWA, on 13 September 2021, on 23 September 2021, Mr Glenn Foote, Principal Compliance Officer, RevenueWA, reviewed the assessments issued for each of the 2016/2017, 2017/2018, 2018/2019, 2019/2020 and 2020/2021 years of assessment in respect of Mr Healy.[7]
[7] Ibid at pages 112 to 114.
Mr Foote concluded, in summary, that:
·at midnight on 30 June 2016 the North Perth property was rented out to tenants as evidenced by the rental bond lodged with the Bond Administrator, rental income was declared in Mr Healy's income tax return and services were connected in the tenant's name. The North Perth property was therefore not exempt from land tax. For the Quinns Rocks property, Mr Healy held a Synergy account for the supply of electricity and electricity consumption was commensurate with someone living at that property and on that basis it was reasonable to believe Mr Healy used the Quinns Rocks property as his primary residence.
·at midnight on 30 June 2017 the North Perth property remained rented out and therefore not exempt from land tax. For similar reasons as that stated above for 30 June 2016, it was reasonable to believe Mr Healy used the Quinns Rocks property as his primary residence based on the electricity consumption.
·at midnight on 30 June 2018 the electricity consumption for the North Perth property was zero units from 12 April 2018 to 29 September 2018 as compared to between 15 to 20 units per day when the property was tenanted. Because of the lack of electricity consumption, it was not reasonable to believe Mr Healy used the North Perth property as his primary residence. For the Quinns Rocks property, the Synergy account was disconnected on 23 October 2017 and since that date there has been no electricity consumed. It was on that basis that it was not reasonable to believe Mr Healy used the Quinns Rocks property as his primary residence.
·at midnight on 30 June 2019 the electricity consumption for the North Perth property was less than one unit which is not commensurate with someone living there. Because of the lack of electricity consumption, it was not reasonable to believe Mr Healy used the North Perth property as his primary residence. For the same reasons as set out above for 30 June 2018, the lack of electricity consumed shows Mr Healy did not use the Quinns Rocks property as his primary residence.
·at midnight on 30 June 2020 the North Perth property was rented out again as evidenced by the rental income declared by Mr Healy in his income tax return and services being connected in the tenant's name. The North Perth property was not exempt from land tax. For the same reasons set out above for 30 June 2018, the lack of electricity consumed shows Mr Healy did not use the Quinns Rocks property as his primary residence.
In conclusion, for both the 2018/2019, 2019/2020 and 2020/2021 assessment years, Mr Foote decided that the Quinns Rocks property was not used by Mr Healy as his primary residence due to essentially the lack of electricity consumption.
Land tax assessment for 2018/19
Originally, on 17 October 2018, the Commissioner issued a notice of assessment for the 2018/2019 assessment year. In that notice the Quinns Rocks property was exempted from land tax.[8]
[8] Ibid at pages 279 to 280.
However, on 10 April 2019, following a request from Mr Healy on 25 March 2019[9] for the Commissioner to amend his records to reflect that his private residence was the North Perth property, the Commissioner exempted from land tax the North Perth property but removed the previous exemption from land tax for the Quinns Rocks property for the 2018/19 assessment year.[10]
[9] Ibid at page 281.
[10] Ibid at pages 282 to 283.
Subsequently, on 10 June 2020, the Commissioner issued a further land tax notice of assessment which amended the earlier assessment for the 2018/2019 assessment year and included the original assessment for the 2019/2020 assessment year.[11] The notice is headed 'Assessment Period: 2018/2019, 2019/2020'. This time, the assessment removed the exemption from land tax for both the Quinns Rocks property and the North Perth property for the 2018/2019 and 2019/2020 assessment years.
[11] Ibid at pages 284 to 285.
Mr Healy claims, and the Commissioner accepts, that he never received the notice of 10 June 2020.
Land tax assessment for 2019/20
The Commissioner issued an assessment for the 2019/2020 on 10 June 2020 (see above at [22]). Both the Quinns Rocks property and the North Perth property were not exempt from land tax for the 2019/2020 assessment year.
Land tax assessment for 2020/21
On 2 November 2020,[12] Mr Healy requested a land tax notice of assessment for the 2020/2021 assessment year for the Quinns Rocks property.
[12] Ibid at page 286.
On 25 November 2020,[13] the Commissioner issued a notice of assessment for the 2020/2021 assessment year. The notice provides that both the Quinns Rocks property and the North Perth property were not exempt from land tax for the 2020/2021 assessment year.
[13] Ibid at pages 287 to 289.
Application for review
On 29 September 2021, Mr Healy wrote to the Commissioner stating that the Quinns Rocks property was, and is his principal place of residence for 2019/2020 and 2020/2021 and 'any subsequent notice yet to issue'. Mr Healy requested the assessments for the 2019/2020 and 2020/2021 assessment years be reversed by the Commissioner.[14]
[14] Ibid at page 297.
Further, on 11 October 2021, Mr Healy wrote to the Commissioner, stating in part:[15]
I have resided continuously at [the Quinns Rocks property] since 2019.
[15] Ibid at page 298.
Separately, on 11 October 2021, Mr Healy wrote to the Commissioner objecting to the assessments.[16] The letter is headed 'Objection to Assessments 2018/2019 2019/2020 received on 24 September 2021'. In the letter, Mr Healy stated in part:
… Mr Foote is wrong, because [the Quinns Rocks property] was (and remains) my principal residence at midnight on 30th June 2020 (and 30th June 2021), No location is nominated for an alternate principal residence.
[16] Ibid at page 299.
On 25 October 2021, the Commissioner wrote to Mr Healy acknowledging his letter of 11 October 2021 (see above at [29]) in which he 'purportedly' objected to the decision of Mr Foote as conveyed by the letter dated 23 September 2021 in respect of the relevant assessments for the Quinns Rocks property.[17] The letter provided that a review officer would consider the grounds of Mr Healy's objection and would advise Mr Healy of the decision, or request him to provide further information.
[17] Ibid at page 301.
Almost a year later, on 24 August 2022, the Commissioner refused to accept Mr Healy's letter of 11 October 2021 as a valid objection. This was on the basis that the letter did not specify any grounds of objection and the objection was out of time.[18] In that letter, the Commissioner stated that he would treat Mr Healy's letter as a request for reassessment under s 16(2) of the TA Act.[19] On reassessment, the Commissioner concluded that Mr Healy did not use the Quinns Rocks property as his 'primary residence' at midnight on the relevant dates and therefore the Quinns Rocks property did not qualify for exemption from land tax under s 21(1)(a) of the LTA Act.
[18] Ibid at pages 411 to 416.
[19] Ibid at pages 231 to 236.
On 19 October 2022, My Healy commenced the proceeding in the Tribunal (see above at [2]). Mr Healy seeks the following orders from the Tribunal as set out in his application:[20]
·Correct wrongful decision to disallow my dwelling as residence EXEMPT from land tax.
·Order to cancel entries on my assessment for land tax dating from year 31/12/2019
·Refund of funds paid to OSR plus interest
·Permission for OSR to issue new assessments, based on correct criteria, for years 2019/20, 2020/21 and 2021/22
·Compensatory sum for the extended delay by OSR, deemed refusal to determine objection made by applicant, failure of OSR to identify legal authority to refuse exemption on the basis that electricity not connected to dwelling and not substantiating original decision.
[20] Ibid at page 2.
At the final hearing on 20 October 2023, Mr Healy stated that he was seeking a review of the assessments issued by the Commissioner in respect of the Quinns Rock property for the 2018/2019, 2019/2020 and 2020/2021 assessment years.[21]
[21] ts 8-12, 20 October 2023.
Prior to the final hearing, at the request of the Commissioner, an order was made by the Tribunal on 14 March 2023 inviting the Commissioner to reconsider his decision.[22]
[22] Hearing Book at page 478.
On 24 March 2023, the Commissioner reconsidered his decision and accepted Mr Healy's letter of 11 October 2021 (see above at [29]) to be a valid objection for the relevant years. The consequence of this, pursuant to s 37 of the TA Act, is that the Commissioner must consider and determine the objection having regard to:
(a)the grounds set out in the objection and nay other relevant written material submitted by the taxpayer; and
…
(c)if the objection is not against an interim assessment – any other information relevant to considering the objection, whether obtained by the Commissioner before or after the objection was lodged.
…
Upon determining Mr Healy's objection to the assessments issued for the relevant years, the Commissioner must serve on the taxpayer (in this case, Mr Healy), a notice setting out:
(a)the decision on the objection; and
(b)if the objection is disallowed in whole or in part – the reasons for the decision.
This was done on 24 March 2023 when the Commissioner notified Mr Healy that his objection to the relevant assessments was disallowed. The reasons given by the Commissioner for disallowing Mr Healy's objection was for the same reasons or grounds as set out in the Commissioner's decision of 24 August 2022 on reassessment.[23] The Commissioner's four reasons or grounds for dismissing Mr Healy's objection in relation to the Quinns Rocks property are, in summary:
·there was no electricity usage;
·there was no gas usage,
·there was no water consumption between 15 May 2018 to 17 January 2020; and
·there was very low water consumption from 18 January 2020 to 16 July 2021,
which is not consistent with the Quinns Rocks property being used as his primary residence. Further, it was noted by the Commissioner that Mr Healy's registered address for electoral roll purposes for the relevant assessments was not the Quinns Rocks property.
[23] Ibid at page 255, 293 to 295, 415 to 416 and 426 to 427.
The decision made by the Commissioner on 24 March 2023 is the 'decision under review' by the Tribunal in this proceeding.
Onus of proof
Mr Healy has the onus probandi, or burden of proving to the Tribunal that the Commissioner's decision that an exemption under s 21 of the LTA Act ought not be recorded for the relevant assessments (that is the 2018/2019, 2019/2020 and 2020/2021 assessment years) was incorrect or invalid: s 37(2) of the TA Act.[24]
[24] Placer Dome Inc v Commissioner of State Revenue [2017] WASCA 165, (2017) 106 ATR 511 at [208].
Further, in claiming the benefit of an exemption from the imposition of a tax, Mr Healy has the burden of proving the facts necessary to fall within that exemption.[25]
[25] Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437, 44 FCR 450.
In summary, Mr Healy therefore carries the burden of establishing the criteria in s 21 of the LTA Act to the civil standard,[26] being on the balance of probabilities.
[26] Lou v Chief Commissioner of State Revenue [2019] NSWCATOD 9 at [87].
Jurisdiction and powers of the Tribunal
A provision in an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned: s 13(1) of the SAT Act. In addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has jurisdiction that it is given under the SAT Act: s 13(2) of the SAT Act.
A matter in which the Tribunal has jurisdiction comes within either its original jurisdiction or its review jurisdiction: s 14 of the SAT Act.
The decision of the Commissioner to disallow Mr Healy's objection in respect of the Quinns Rocks property for the relevant years is a matter that comes within the Tribunal's review jurisdiction. It is a 'reviewable decision': s 40 of the TA Act read together with s 17(1) of the SAT Act.
In exercising its review jurisdiction, the Tribunal is to deal with the matter in accordance with the enabling Act (in this case the LTA Act) and with the SAT Act: s 18 of the SAT Act.
The review of a 'reviewable decision' is to be way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not that material existed at the time the decision was made. The purpose of the review by the Tribunal is to produce the correct and preferable decision at the time of the decision upon the review. Finally, the reasons provided by the decision-maker (in this case the Commissioner), or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision: s 27 of the SAT Act.
In considering the matter, the Tribunal has the same functions and discretions as those exercisable by the decision-maker in making the reviewable decision: s 29 of the SAT Act. Under s 29(3) of the SAT Act, the Tribunal may:
…
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and —
(i)substitute its own decision; or
(ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and in any case, make any order the Tribunal considers appropriate.
It is not open for the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker (in this case, the Commissioner): s 29(9) of the SAT Act.
Finally, the evidence and submissions cannot have retrospective effect because the issue to be determined in this proceeding is whether an exemption under s 21 of the LTA Act ought to have been recorded for Mr Healy's Quinns Rocks property for the relevant assessments.[27]
[27] JM Bestall v Commissioner of State Revenue [2005] WASAT 32; (2005) 38 SR (WA) 311 at [19].
Relevant procedural history and evidence
On 15 November 2022, the Tribunal ordered the Commissioner to file with the Tribunal and give to Mr Healy a statement of issues, facts and contentions (SIFC) that the Commissioner says arise in relation to the decision under review and an indexed and paginated bundle of documents he is required to file under s 24 of the SAT Act, being a statement of the reasons for decision and documents and other material in his possession or under his control, which are relevant to the Tribunal's review of the reviewable decision.
The matter was then referred to mediation within the Tribunal. That did not resolve the dispute.
The Tribunal then ordered Mr Healy to file his own SIFC including any other issues, facts and contentions he says arise in the proceeding. In addition, Mr Healy was ordered by the Tribunal to file his indexed and paginated bundle of documents on which he proposes to rely in the proceeding.
Finally, the parties were ordered to file with the Tribunal and provide a copy to the other party of a list of persons to be called to give evidence at the final hearing along with a signed witness statement or an outline of the evidence it is anticipated that the witness will give.
The matter was set down for a final hearing on 20 October 2023.
In accordance with the Tribunal's usual practice in matters of this nature, the final hearing was conducted on the basis that all of the documents filed with the Tribunal would be regarded as being in evidence[28] subject to any objection. There was no objection. At the hearing, the Tribunal marked the following documents, to which I have had regard for the purpose of my determination in this proceeding:
·Exhibit 1: Hearing Book (pages 1 to 484) prepared by the Tribunal and provided to the parties on 18 October 2023;
·Exhibit 2: Water Authority of Western Australia website access undated, but webpage headed 'How many litres of water do people use in Perth each year?'(handed up at the final hearing by counsel for the Commissioner); and
·Exhibit 3: Letter dated 13 December 2018 from Ms Tracie Lawry, Energy and Water Ombudsman Western Australia to Mr Healy acknowledging his complaint lodged with the Water Corporation. Letter from Mr Healy dated 26 December 2018 to Mr Lawry. Letter dated 16 December 2019 from Mr Ben McCullum, Water Corporation to Mr Healy headed '2019/02450 – Offer to resolve'. Letter dated 17 December 2019 from Mr Healy to Mr McCallum agreeing to settle their dispute (handed up at the final hearing by Mr Healy).
[28] Although forming part of the Hearing Book, the parties' contentions and submissions are taken to be submissions, rather than evidence.
Mr Healy filed with the Tribunal his witness statement dated 4 August 2023.[29] At hearing Mr Healy confirmed the contents of his witness statement.
[29] Hearing Book at pages 53 to 56.
Mr Healy gave evidence that as the Commissioner had altered his records without notice to him and without his consent, he was under no obligation to provide any information to the Commissioner to disprove a decision that had already been implemented. Mr Healy also gave evidence about his dispute with the Water Corporation, the complaint he lodged with the Energy Ombudsman on 13 December 2018 concerning the Quinns Rocks property and the settlement reached with the Water Corporation on 17 December 2019.[30]
[30] Exhibit 3.
Mr Healy did not call any other witnesses. However, Mr Healy sought to summons Mr Foote to give evidence concerning the issuing of assessment notices. At the final hearing, Mr Healy stated that he had not summoned Mr Foote and that he did not seek to ask him questions, even though Mr Foote was in attendance.
Counsel for the Commissioner called Mr Shane Thomas Hannan, an employee of RevenueWA, to give evidence. Mr Hannan filed with the Tribunal his witness statement dated 12 July 2023. At hearing, Mr Hannan confirmed the contents of his witness statement.[31]
[31] Hearing Book at pages 446 to 458.
Mr Hannan has been a Revenue Consultant in the Review Branch of RevenueWA since 2006 where he makes decisions on objections to assessments and other decisions under taxation legislation administered by RevenueWA. Mr Hannan gave evidence of his review of the land tax assessment notices for the Quinns Rocks property and the North Perth property for the relevant assessments. This included requesting electricity and water consumption data for the Quinns Rocks property.
Following the final hearing on 20 October 2023, I reserved my decision.
Issue
Mr Healy asserts, and the Commissioner disputes that at midnight on each of 30 June 2019 and 30 June 2020, the Quinns Rocks property was used by Mr Healy as his 'primary residence' within the meaning of s 21 of the LTA Act.
In his SIFC filed with the Tribunal on 16 May 2023, Mr Healy conceded at paragraph 48 that he:
… does not assert that the [Quinns Rocks property] was the primary residence of the [a]pplicant as at 30th June 2018.[32]
[32] Ibid at page 30.
However, at the commence of the final hearing, Mr Healy explained that he was seeking a review of the relevant assessments which includes the 2018/2019 assessment (see above at [4]) issued by the Commissioner in respect of the Quinns Rocks property.
Ultimately, the issue that requires my determination in this proceeding is whether for the relevant assessments, the Quinns Rocks property qualifies for exemption under s 21 of the LTA Act.
Legal framework
Land tax is payable for each 'financial year' for all land in Western Australia, except for land that is exempt: s 5 and s 17 of the LTA Act. 'Financial year' means the period of 12 months ending 30 June: s 5 of the Interpretation Act 1984 (WA) (Interpretation Act).
Land is exempt from land tax if the Commissioner grants an exemption for the assessment year under s 20 or another provision of Div 1 of Pt 3 of the LTA Act: s 17 of the LTA Act. Division 1 is headed 'General provisions' and Pt 3 is headed 'Exemptions, concessions and rebates'.
Land tax payable on land for an 'assessment year' is payable by the person who was the owner of the land at midnight on 30 June in the previous year: s 7(1) of the LTA Act. 'Assessment year' means the financial year for which the land tax is, or is to be, assessed: clause 1 of the Glossary to the LTA Act.
Division 2 of Part 3 of the LTA deals with private residential property. Section 21 contains an exemption for 'private residential property' owned by individuals and relevantly provides:
21.Residence owned by individuals, exemptions for
(1)Private residential property (except property held in trust) is exempt for an assessment year if, at midnight on 30 June in the financial year before the assessment year, it is owned —
(a)by an individual who uses it as the individual's primary residence; or
…
'Private residential property' is defined in clause 1 of the Glossary to the LTA Act relevantly as:
private residential property means —
(a)a lot of land on which there is a private residence; or
…
A 'lot' is defined in clause 1 of the Glossary to the LTA Act by reference to clause 2 of the Glossary as:
lot means a defined portion of land —
(a)which is the whole of the land the subject of —
…
(ii)a certificate of title registered under the Transfer of Land Act 1893; or
…
'Private residence' is defined in clause 1 of the Glossary to the LTA Act as:
private residence means a building or part of a building that was occupied, or fit to be occupied and intended by the owner to be occupied, as a place of residence of one or more individuals, except a building or part of a building that is —
(a)used as a hotel, motel, hostel, lodging house or boarding house; or
(b)ordinarily used for holiday accommodation; or
(c)used as an educational institution, college, hospital or nursing home; or
(d)used as a club; or
(e)used as a home for aged or disabled persons by an eligible organisation within the meaning of the Aged or Disabled Persons Care Act 1954 of the Commonwealth 1; or
(f)prescribed or of a prescribed class[.]
'Primary residence' is defined in clause 1 of the Glossary to the LTA Act as:
primary residence, in relation to an individual, means the individual's sole or principal place of residence[.]
Finally, the term 'individual' which is used in s 21(1) of the LTA Act but not defined in the Glossary to the LTA Act is defined in s 5 of the Interpretation Act as:
individual means a natural person[.]
Facts
The following facts are agreed or are uncontentious. I make the following findings of fact:
(a)On 5 September 1996, Mr Healy became the sole owner of the Quinns Rocks property.[33]
(b)The Quinns Rocks property is a 'private residential property' for the purposes of s 21 of the LTA Act at midnight on the relevant dates (30 June 2018, 30 June 2019 and 30 June 2020).
(c)The Quinns Rocks property is not held in trust.
(d)On 9 December 2014, Mr Healy became the sole owner of the North Perth property.[34]
(e)On 29 June 2016, Mr Healy became the owner with another person of the Nowergup property.[35]
(f)Mr Healy has operated a business, Healy Stores, from the Nowergup property since about March 2020.
(g)Mr Healy sold the North Perth property in about October 2020.
(h)The Synergy electricity account for the Quinns Rocks property was disconnected on 23 October 2017.
[33] Ibid at page 283.
[34] Ibid at pages 25 and 249.
[35] Ibid.
Parties' position
The Commissioner's position
Following an investigation by the Commissioner on 13 October 2017, the Commissioner determined that the Quinns Rocks property was Mr Healy's primary residence as at midnight on 30 June prior to each of the 2016/2017 and 2017/2018 assessment years.[36] This appears to be on the basis that Mr Healy established a new place of residence at the Quinns Rocks property, that he had an active account with Western Power and the Water Corporation. Further, Mr Healy had registered the Quinns Rocks property as his residential address with the Department of Transport.
[36] Ibid at pages 269 to 275.
Mr Hannan gave evidence that he drove by the Quinns Rocks property which gave him the appearance of not being occupied, or looked after as there was mail lying at the bottom of the letterbox and at the back where there is a double garage there were items scattered around.[37]
[37] ts 25, 20 October 2023.
In summary, the position of the Commissioner, as set out in Mr Hannan's decision of 24 August 2022, by reference to the Ferrington[38] principles (see below at [96]) is that:[39]
1.There was no electricity usage at the [Quinns Rocks] property during the relevant assessment years.
2.The [Quinns Rocks] property is not connected to gas.
3.There was no water usage at the [Quinns Rocks] property for the period 15 May 2018 to 17 January 2020.
4.Water usage at the [Quinns Rocks] property for the period 17 January 2020 to 16 July 2021 (ie 533 days) was very low and not consistent with the property being used as a home.
The lack of electricity connection to [Quinns Rocks property] and the very low consumption of water at the property during the relevant assessment years are indicative of such a low level of occupation that I cannot accept you were using it as your [principal place of residence] at the relevant dates.
Additionally, it is noted that your registered address for electoral roll purposes during the relevant assessment years and at the relevant dates was, and still is, your business address at [address].
[38] Chief Commissioner of State Revenue v Ferrington[2004] NSWADTAP 41.
[39] Hearing Book at pages 411 to 416.
Counsel for the Commissioner's position leading up to, and at the final hearing is that Mr Healy has failed to provide evidence to show he used the Quinns Rocks property as his primary residence at the relevant dates.
Mr Healy's position
Mr Healy disagrees with Mr Hannan's description of the Quinns Rocks property (see above at [77]). Mr Healy said he purchased the Quinns Rocks property from his parents in about 1996 which they had built.[40] The house is a 4 x 1 comprised of three bedrooms or four bedrooms and a TV room with a kitchen without a stove, a bathroom, a laundry and toilet with wooden flooring which was installed before 2017.[41] In terms of furniture, Mr Healy said there are four lounge chairs, two beds, a dining table and some built in robes and build in cupboards in the kitchen. The garden has trees which are deep rooted. The shade from the trees keeps the house cool in the summer but not too cold in the winter. There are no flowers that need watering. He mows the lawn.
[40] ts 57, 20 October 2023.
[41] ts 56, 20 October 2023.
Mr Healy said he does not want to sell 'the family home' referring to the Quinns Rocks property and he lives there because it is convenient and it is a good way to get away from work but most of his hours are spent at work.[42] Mr Healy described himself as 'very active at work and work is the place for me'. He said he works 12 hours per day, seven days per week running an agricultural products business.[43]
[42] ts 59, 20 October 2023.
[43] ts 55, 20 October 2023.
Mr Healy described a typical day as follows:[44]
When I get out of bed, I get dressed and I go to work …
I have coffee and I have fellowship and whatever and get to work. And I work mainly 12 hours a day. And in the evening I go home and I would probably buy something at the shop and go home [to the Quinns Rocks property]. I've got some special lights that I use at home and I just walk in and the light goes on. And I've got those scattered throughout the house, so I've got plenty of light. I've got solar hot water for water use, for hot water. And, basically, I either sleep or I go to work[.]
[44] ts 52, 20 October 2023.
Mr Healy explained that he does not, and has never cooked at the Quinns Rocks property as he buys prepared meals from the IGA at the corner of Quinns Road and Tapping Way, otherwise he goes out for meals, particularly for breakfast to places such as Dome. Mr Healy said he does have cereal and has prepared salads at the Quinns Rocks property.[45] When he has milk, for example on his cereal, Mr Healy explained that he buys the right size container and disposes of what is not consumed.[46] Mr Healy said he has access to a sink, a little hotplate and a refrigerator at work so if he wanted to he could heat up or cook something at work but that would be rare.[47] Mr Healy could not say if he ate more meals at work or at the Quinns Rocks property. He said he is very flexible.[48]
[45] ts 53, 20 October 2023.
[46] ts 53, 20 October 2023.
[47] ts 59, 20 October 2023.
[48] ts 63, 20 October 2023.
Mr Healy said the water at the Quinns Rocks property is heated by the solar hot water system on the roof which has been in place since 1980. Mr Healy says his water remains hot as his usage is not large.[49]
[49] ts 61, 20 October 2023.
Prior to 2018/2019, Mr Healy said there was a big explosion in North Perth outside his property there. At the time there was a house getting built next door and following the big explosion he got a bill for about $3,000 to get the electricity reconnected. He was trying to talk to Synergy about the bill and they disconnected the power at both the North Perth property and the Quinns Rocks property when he did not pay all of the bill. It was not a choice he made, rather Synergy disconnected the power.[50] Mr Healy said that up to 2017 he used electricity for kitchen appliances and lighting and the like.[51]
[50] ts 60, 20 October 2023.
[51] ts 60, 20 October 2023.
Mr Healy submits that the existence or otherwise of an electricity account is not a condition of a primary residence.[52] Instead of electricity, Mr Healy gave evidence that he has four moveable lights which are battery operated with a 12-volt battery, one in each of four rooms that he mainly uses. Mr Healy said he has no heating or cooling as the house is well built with a double brick cavity wall. Mr Healy said he does not have a television and his radio is battery operated.
[52] Hearing Book at page 306.
At the final hearing Mr Healy disclosed his complaint with the Water Corporation made on 13 December 2018 concerning a ruptured water pipeline to the Quinns Rocks property which was leaking. According to Mr Healy the water service was disconnected while he and the Water Corporation were in discussion. Further, Mr Healy said that complaint was settled by the parties, a year later, on 17 December 2019.[53] [54]
[53] Exhibit 3.
[54] ts 32, 20 October 2023.
When he was not connected to the water mains, Mr Healy stated that he used 10 litre bottles of water for drinking water, and he was also using the water from his 500-litre rainwater tank which he disgorged manually. Mr Healy described that as difficult but he had to get the ruptured waterpipe fixed, which took some time.[55]
[55] ts 53, 20 October 2023.
Mr Healy said he is not partnered and does not have children.[56] Further, Mr Healy said he does not entertain at the Quinns Rocks property.[57]
[56] ts 56, 20 October 2023.
[57] ts 55, 20 October 2023.
In terms of communications, Mr Healy says he only has a mobile phone and a laptop which he recharges at work.[58]
[58] ts 56, 20 October 2023.
With respect to uncollected mail, Mr Healy stated that mail is marketing and shopping catalogues that he has to pick up all the time.[59]
[59] ts 57, 20 October 2023.
Having set out the agreed or uncontentious facts and the legal framework on which this proceeding is to be determined, I turn to consider the crux of the application before me which is whether Mr Healy used the Quinns Rocks property as his 'primary residence' at midnight on the relevant dates.
Consideration
Proper construction of s 21 of the LTA Act
In order to determine whether Mr Healy used the Quinns Rocks property as his 'primary residence' at midnight on the relevant dates, it is necessary to start by properly construing the phrase 'uses [private residential property] as his … primary residence' in s 21(1) of the LTA Act.
In Sarros and Commissioner of State Revenue [2022] WASAT 102 (Sarros), the Tribunal set out principles in relation to the construction of statutory instruments by reference to relevant case law. I respectfully agree with, and adopt the principles set out in Sarros at [89] to [92].
Further, the Tribunal in Sarros interpreted the provisions of s 21 of the LTA Act. I respectfully agree with the interpretation of s 21 of the LTA Act in Sarros at [93] to [101] and adopt the interpretation for this proceeding. For convenience, the following was stated in Sarros (Citations omitted):
The proper construction of s 21 of the LTA Act
93For ease of reference, s 21(1) of the TLA Act is in the following terms:
Private residential property (except property held in trust) is exempt for an assessment year if, at midnight on 30 June in the financial year before the assessment year, it is owned —
(a)by an individual who uses it as his or her primary residence[.]
94The word 'uses' in s 21(1)(a) is not a defined term and therefore it takes its plain and ordinary meaning which is to '[utilise] or [employ] for or with some aim or purpose'. It follows that 'use' has regard to the purpose to which the land is put.
95In the context of s 21(1)(a) of the LTA Act, for the exemption to apply, the 'use' must relate to private residential property which is that person's primary residence. In this proceeding, it is not in contest that the Subject Lot was, at the Relevant Dates, used for residential purposes.
96As stated, the term 'primary residence' is defined in cl 1 of the Glossary to mean, 'the individual's sole or principal place of residence'.
97The words 'sole' and 'principal' are not defined so therefore take on their ordinary and common meaning. 'Sole' means: 'being the only one of its kind' or 'one and no more, only one, a single'. 'Principal' means 'first or highest in rank, importance' or 'of a number of things or persons, or one of their number: belonging to the first rank; amongst the most important; prominent, leading, main'.
98In the relevant context, it is plain that 'principal' means an individual's 'primary' or 'main' residence.
99The use of the term 'principal' in 'principal place of residence' does not mean that a person cannot use or occupy more than one residence. However, the exemption under s 21(1)(a) is only available for the person's principal place of residence.
Judicial consideration of s 21(1)(a) of the LTA Act
100Section 21 of the LTA Act (and analogous provisions from other jurisdictions) have been subject to judicial consideration. These cases provide some guidance as to how to evaluate the question of whether an individual uses a private residential property as one's primary residence.
101The starting point is that the ordinary meaning of 'place of residence' for an individual is where they eat, drink and sleep. That is to say, an individual's primary residence is where they eat and sleep and their settled or usual abode.
Ferrington principles
The Ferrington principles, as they have become known, outline a number of factors to be taken into account when considering the phrase 'principal place of residence', which as stated above, it is necessary to make a finding that the Quinns Rocks property is Mr Healy's principal place of residence for the purposes of s 21(1)(a) of the LTA Act. The principles are:[60]
First, the words 'principal place of residence' should be given their ordinary meaning in the context in which they appear …
Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling …
Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue …
Fourthly, to occupy a home as his or her principal place of residence a person's occupation, must have a degree of permanence to it; a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose[.]
[60] Above n 38.
Counsel for the Commissioner submits that other factors, as identified in case law, may be relevant in considering whether a property is the person's 'principal place of residence'. They are (in no particular order):
(a)a person's utilities usage at the property;[61]
[61] Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188; (2009) 77 ATR 346 at [49] (Tobin); Nakhoul v Chief Commissioner of State Revenue[2009] NSWADT 103 at [27] (Nakhoul).
(b)the amount of time spent at one residence versus another, including the number of nights slept at each place,[62] and the character/pattern of use;[63]
(c)evidence of a person's use of the address of the property as the residential address for purposes of their mail, driving licence, on the electoral roll, in immigration records, income tax returns and utility bills;[64]
(d)whether and when the person notified banks, utility companies and others of a change of address, and whether the person updated his or her driver's licence and the electoral roll and so on;[65]
(e)respective rights in respect of the multiple properties;[66]
(f)the nature of insurance held for each property;[67]
(g)where the person eats, drinks and sleeps;[68]
(h)where the person entertains friends;[69]
(i)relative location of clothing, furniture and possessions;[70]
(j)the extent to which the person furnished the house;[71] and
(k)where family members reside.[72]
[62] Dean v Commissioner of Stamp Duties [1996] 2 Qd 557; Paspaley v Chief Commissioner of State Revenue[2014] NSWCATAD 217; (2014) 100 ATR 60 at [164].
[63] Black v Chief Commissioner of State Revenue [2011] NSWADT 66 at [84] (Black); Haddad v Commissioner of State Revenue [2013] VCAT 208 at [17].
[64] Yen-Cheng Chuang v Chief Commissioner of State Revenue [2009] NSWADT 160 at [22] (Yen-Cheng), Nakhoul at [27]; Black at [84].
[65] Abela v Commissioner of State Revenue [2017] VCAT 1024 at [30] (Abela).
[66] Black at [84].
[67] Tobin at [18]; Black at [84].
[68] Commissioner of State Revenue v Burdinat [2012] WASC 359; (2012) 90 ATR 689 at [31]; Black at [84]. Merely sleeping in a place does not make it a residence: Re Ziino and Commissioner of State Revenue [2004] VCAT 1707 at [10]; Nakhoul at [33] - [34].
[69] Yen-Cheng at [22]; Nakhoul at [27].
[70] Yen-Cheng at [21]; Nakhoul at [27].
[71] Abela at [30].
[72] Black at [84].
Further, counsel for the Commissioner submit the following points are also relevant in considering if a property is used by the person as their primary residence.
A person may establish a place of residence in such a frugal manner if the context and the later events demonstrate an intention that the place be a place of residence: Ferringtonat [9].
Individual facts may warrant different weights in different cases: Acitino v Commissioner of State Taxation [2020] SACAT 32 at [32].
The focus on s 21 of the LTA Act is the living circumstances of the person claiming the exemption at the relevant date, as reasonably informed by the period of at least six months either side of the taxing date: McIntosh Brothers Pty Ltd v Chief Commissioner of State Revenue [2019] NSWCATAD 124 at [9]; Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867 at [4].
In my view, the Ferrington principles and other factors (see above at [96] to [101]) are relevant in the consideration of whether Mr Healy used the Quinns Rocks property as his primary residence at midnight on the relevant dates. However, that is not to say the Ferrington principles are determinative or prescriptive or that the Tribunal is limited to only considering the principles and factors set out above (see [96] to [101]). Rather, those principles and factors go to informing or guiding the decision-maker (and the Tribunal on review) as to what courts and tribunals have taken into consideration. There may be other relevant factors, some of which may be unique to the particular case that are relevant to the consideration of whether a property is the person's primary residence at the relevant time. Ultimately, all considerations and the context must be taken into account to determine whether a person used a property as their primary residence at the relevant time.
I now turn to consider whether Mr Healy used the Quinns Rocks property as his primary residence at midnight on the relevant dates. I will deal with 30 June 2018 and 30 June 2019 together.
Midnight 30 June 2018 and 30 June 2019
Counsel for the Commissioner contends that the Quinns Rocks property was not Mr Healy's primary residence at midnight on 30 June 2018 and 30 June 2019 for the following reasons.
First, Mr Healy did not consume any water, gas or electricity at the Quinns Rocks property at 30 June 2018 and at 30 June 2019 having regard to the period six months either side of 30 June 2018 and 30 June 2019. It is the position of the Commissioner that no consumption of water and electricity is not consistent with ongoing and routine human habitation of a property.
Second, even though the Australian Taxation Office's records reflect the Quinns Rocks property address as Mr Healy's residential address, this is negated by the Australian Electoral Commission's roll which does not reflect the Quinns Rocks property address as Mr Healy's address.
Finally, counsel for the Commissioner submits that Mr Healy failed to provide evidence as to how he used the Quinns Rocks property as his sole or principal place of residence in the absence of electricity, gas and hot water usage.
Turning to Mr Healy's evidence.
On 6 May 2022 Mr Healy wrote to Mr Hannan stating, among other things:[73]
(a)He has no contract supply with Synergy and that the cessation of the electricity supply occurred prior to July 2018.
(b)His house is not connected to any gas supply.
(c)He prefers to have all notices and accounts sent to his office address (the Nowergup property) because the 'mail service is more secure and centralised for [his] convenience'.
[73] Hearing Book at pages 359 to 360.
In further correspondence to the Commissioner, Mr Healy on 25 September 2022 stated in part:[74]
...
The absence of electricity and gas services does not exclude the very fact that I reside there … on a daily basis[.]
…
You also stated that no water was used 15/5/2018 to 17/1/2020. I lived in North Perth around this time.
… Water usage generally exceeds 6000 litres per period, which is a substantial volume[.]
… I cannot confirm this [registered address for electoral purposes] but even if validated, it does not affect my residency address, just the postal address[.]
(Added emphasis in bold)
[74] Ibid at pages 420 to 421.
In his response to paragraph 100 of the Commissioner's SIFC, Mr Healy stated in reply in his SIFC of 16 May 2023 that the Quinns Rocks property was not his primary residence as at midnight on 30 June 2018. Mr Healy conceded stating:
100.[He] agrees converning (sic) 2018 year, but disagrees concerning 2019 year.[75]
[75] Ibid at page 32.
This is supported by paragraph 48 of his SIFC where Mr Healy stated:
48. … [Mr Healy] does not assert that [the Quinns Rocks property] was the primary residence of [Mr Healy] as at 30th June 2018.
In relation to the 2018/2019 assessment year, at paragraph 107 of his SIFC, Mr Healy asserted:
[The Quinns Rocks property] was in 2019, 2020 and remains the applicant's primary residence.[76]
[76] Ibid at page 33.
Finally, at paragraph 111 of his SIFC, Mr Healy says he:
… swears solemnly that as at 30th June 1919 (sic) and thereafter that the applicant's principal residence was [the Quinns Rocks property][.][77]
[77] Ibid at page 33.
During the final hearing, Mr Healy gave evidence that he was living in North Perth as at 25 March 2019 and that he moved to the Quinns Rocks property in about July or August 2019, that is after 30 June 2019.[78] However, later during the final hearing, Mr Healy gave evidence that he lived at the Quinns Rocks property in 2018 and then in 2019 went to North Perth then returned to the Quinns Rocks property.[79] In other evidence Mr Healy's stated that he has resided at the Quinns Rocks property 'since 2019' and no location is nominated for an alternate principal residence.[80]
[78] ts 48, 20 October 2023.
[79] ts 50, 20 October 2023.
[80] Hearing Book at pages 298 and 299.
Separately during the final hearing, Mr Healy said he no longer resided at the North Perth property from about July or August of 2019 because he rented out the North Perth property for about 12 months and then sold that property in October 2020.[81] On that basis, Mr Healy stated that the North Perth property was his primary residence as at 30 June 2019.[82]
Conclusion - 30 June 2018 and 30 June 2019
[81] ts 69 - 70, 20 October 2023.
[82] ts 71, 20 October 2023.
It is not necessary for me to make a finding that Mr Healy was living at the North Perth property. This is because the objection made by Mr Healy is that the Quinns Rocks property was his primary residence for the assessment years. Therefore, the task of the Tribunal is limited to determining whether the Quinns Rocks property was Mr Healy's primary residence for the assessment years (see above at [48]).
Some of Mr Healy's evidence as to where he lived during the 2018/2019 and 2019/2020 was inconsistent. However, on balance, having carefully considered all of the evidence before the Tribunal, in my view Mr Healy did not use the Quinns Rocks property as his primary residence as at 30 June 2018 nor at 30 June 2019. The reasons for this are as follows.
First, Mr Healy conceded that the Quinns Rocks property was not his primary residence as at 30 June 2018 (see above at [110] to [112]).
Second, Mr Healy gave evidence that he was living in the North Perth property at 30 June 2019 and only moved to the Quinns Rocks property in July or August 2019, that is after 30 June 2019 (see above [115] to [116]).
Finally, I turn to consider whether Mr Healy used the Quinns Rocks property as his primary residence at midnight on 30 June 2020.
Midnight at 30 June 2020
Counsel for the Commissioner contends that the Quinns Rocks property was not Mr Healy's primary residence as at midnight on 30 June 2020 for the following reasons.
First, water consumption was relatively low between 17 January 2020 and 17 November 2020 ranging from an average daily consumption of 16.9 litres to 65.5 litres.
Second, there was no gas or electricity consumption in the period of at least six months either side of 30 June 2020.
Third, relatively low consumption of water and no consumption of electricity is not consistent with ongoing and routine human habitation.
Fourth, Mr Healy failed to provide evidence as to how he used the Quinns Rocks property as his sole or principal place of residence in the absence of electricity, gas and low water consumption.
A different picture emerged from Mr Healy's evidence at the final hearing when he explained that prior to 2018/2019 when he was living in the North Perth property there was a big explosion outside the property which he got a bill for about $3,000 to get the electricity reconnected. Mr Healy gave evidence that Synergy cut off the electricity supply to both the North Perth property and the Quinns Rocks property when he did not pay the electricity bill. Synergy disconnected the electricity on 23 October 2017. Prior to that date, Mr Healy said he used electricity for kitchen appliances, lighting and the like. Mr Healy's evidence at the final hearing is that he uses four battery operated moveable lights to provide lighting in the four rooms he uses the most in the Quinns Rocks property. Besides demonstrating the moveable light at the final hearing, Mr Healy provided no other evidence to support his position, for example, a neighbour to confirm the lighting arrangement and receipts for the purchase of the lights and batteries. However, it is reasonable in the circumstances that where the electricity supply has been cut off that an alternative source of lighting is used.
Again, a different picture emerged from Mr Healy's evidence in regards to water consumption at the final hearing. Mr Healy provided documents of his complaint regarding the ruptured waterpipe which caused leaking at the Quinns Rocks property. While that was being sorted, which took some time, Mr Healy gave evidence that his drinking water was from 10 litre bottles of water and that he gorged water from a 500-litre tank manually.
Having carefully reviewed the compliant documents, in my view, where Mr Healy wrote to the Energy and Water Ombudsman on 26 December 2018 stating, amongst other things, that his 'dwelling has not received any water from the meter for a year or so' and the letter from the Water Corporation to Mr Healy dated 16 December 2019 wherein it makes reference to relevant fees should Mr Healy 'wish to re-connect to the Water Corporation main in the future' there was no water service to the Quinns Rocks property from at least December 2018 through to December 2019. In the circumstances, it is reasonable that alternative sources of water were used.
Mr Healy's evidence of no water service to the Quinns Rocks Property correlates to the information supplied to Mr Hannan on 3 May 2022, by a Senior Consultant – Customer Solutions for the Water Corporation where the was no consumption from mid-January 2018 to mid‑March 2020.
Conclusion – 30 June 2020
Taking into account all considerations and in the context of there being no electricity supply to the Quinns Rocks property from 23 October 2017 where the supply had been cut off by Synergy and no water supply from the Water Corporation from about January 2018 to early 2020 while Mr Healy was in dispute with them and having to attend to the repair of a ruptured waterpipe, I find that at midnight 30 June 2020 Mr Healy used the Quinns Rock property as his primary residence. The reasons for this are as follows.
First, Mr Healy's lifestyle may be described as unconventional or 'off the grid' in that he did not have an electricity or water supply to the Quinns Rocks property. However, Mr Healy was able to explain why the electricity supply was cut off and the dispute he had with the Water Corporation and how he used alternate lighting, including solar panels and other sources of water.
Mr Healy gave evidence of his occupation of the Quinns Rocks property as a single person without children which included a lack of cooking for one person but instead buying meals from the local supermarket which is open 24 hours per day or eating out, particularly for breakfast. Further, Mr Healy explained how the solar panels on the roof heat water.
Second, Mr Healy's work involves about 12 hours of his day, every day of the week except for the occasional Sunday afternoon. In that context it is reasonable that Mr Healy would go home to sleep, relax and tend to the garden, albeit when time permits.
Third, while counsel for the Commissioner submits that limited weight should be afforded to Mr Healy's oral evidence at the final hearing because it was provided at the 'eleventh hour' and despite numerous opportunities for him to present information when requested to do so by RevenueWA including at mediation, Mr Healy failed to do, it is understandable in the context where Mr Healy was of the view that the Commissioner had already acted upon the decision that he had made (that is, not to exempt the Quinns Rocks property from land tax) that Mr Healy was not keen to provide any information requested. This is most unfortunate. Had Mr Healy provided the information requested to the Commissioner, the final hearing before the Tribunal could have been averted, thereby saving time and resources for the parties as well as for the Tribunal.
Fourth, while Mr Healy failed to provide independent evidence, for example receipts to substantiate purchase of water or calling his next‑door neighbour to give evidence at the final hearing to support his statements, in my view, Mr Healy's oral evidence, is relevant and supports his position that he used the Quinns Rocks property as his primary residence at midnight on 30 June 2020. Mr Healy was honest and straightforward in answering questions put to him at the final hearing.
In conclusion, while it would have been preferable to have before the Tribunal evidence that addresses each and every principle and factor as set out above at [96] to [101] in relation to the 2020/2021 assessment year, ultimately, in this proceeding, in the context of the electricity disconnection, and no water supply during the dispute with the Water Corporation, I am satisfied on the evidence before the Tribunal that at midnight on 30 June 2020, Mr Healy used the Quinns Rocks property as his primary residence. The result is that the Quinns Rocks property is exempt from land tax for the 2020/2021 assessment year. This means that the reviewable decision is to be set aside in regards to the 2020/2021 assessment year to reflect the Quinns Rocks property is exempt from land tax pursuant to s 21(1)(a) of the LTA Act.
I turn finally to consider Mr Healy's other contentions.
Mr Healy's other contentions
Mr Healy contends that the decision of the Commissioner was 'arbitrary and not supported by evidence'. This contention is misconceived. This is because, as stated earlier (see above at [39] to [41]), the burden rests with Mr Healy to establish that the relevant assessments or reviewable decision to which he objects is invalid or incorrect (s 37(2) of the TA Act).
Mr Healy's submission that: [83]
… [he] has a home. And that is at [the Quinns Rocks property]. And from time to time I lived in North Perth. And I have moved to [the] Quinns Rocks[property]. At all times, one of those properties was used as my principal residence. So, there is no occasion in which [the Commissioner] should be counting both properties as taxable properties, because one of them would always be exempt as my private, personal residence[.]
is misguided as an exemption from land tax is only available under s 21 of the LTA Act if the requirements of that section are met. And, again as stated earlier (see above at [39] to [41]), the burden rests with Mr Healy to establish that the relevant assessments or reviewable decision to which he objects is invalid or incorrect (s 37(2) of the TA Act).
[83] ts 46, 20 October 2023.
In addition, Mr Healy submits that if the Tribunal were to disallow his application and uphold the Commissioner's decision that would place him 'without a residence or address'.[84] Again, Mr Healy's submission is misguided because an exemption from land tax is only available under s 21 of the LTA Act if the requirements of that section are met.
[84] Hearing Book at page 34.
Mr Healy's contention that:
… there are no other residences identified, nor is there any other use identified for [the Quinns Rocks property] [.]
is also misguided for the same reason as set out in the preceding paragraphs (see above at [139] to [141]).
Finally, I note that it cannot be assumed that just because a private residential property qualifies for exemption under the LTA Act for say the current assessment year that the exemption will continue for the following year(s). This is because the requirements for the exemption as set out in the LTA Act must be satisfied each assessment year. For example, under s 21(1)(a) of the LTA Act, at midnight on 30 June in the financial year before the assessment year, the private residential property must be owned by an individual who uses that property as their primary residence. If it is not, then there is no exemption available under s 21(1)(a) of the LTA Act and that is so even if the person does not have any other private residential property.
Conclusion
For the foregoing reasons, I am satisfied that the Quinns Rocks property was not Mr Healy's primary residence at midnight on 30 June 2018 and on 30 June 2019. This means the Commissioner's decision not to exempt Mr Healy from land tax for the 2018/2019 and 2019/2020 assessment years in respect of the Quinns Rocks property is correct and is affirmed.
However, I am satisfied that the Quinns Rocks property was Mr Healy's primary residence at midnight on 30 June 2020 with the consequence the Commissioner's decision to not exempt Mr Healy from land tax for the 2020/2021 assessment year in respect of the Quinns Rocks property is incorrect and is to be set aside and a reassessment issued.
Orders
The Tribunal orders:
1.The land tax notice of assessment of the respondent dated 25 November 2020 be varied.
2.The respondent is directed to issue a reassessment for the applicant on or before 30 January 2024 for the 2020/2021 assessment year to the effect that the Quinns Rocks property is exempt from land tax pursuant to s 21(1)(a) of the Land Tax Assessment Act 2002 (WA).
3.The application is otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
27 DECEMBER 2023
1
13
4