Kelly v Chief Commissioner of State Revenue

[2009] NSWADT 253

CITATION:	Kelly v Chief Commissioner of State Revenue [2009] NSWADT 253
DIVISION:	Revenue Division
PARTIES:	APPLICANT Francis Kelly and Joanne Seve RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	086114
HEARING DATES:	27 March 2009
SUBMISSIONS CLOSED:	17 April 2009
DATE OF DECISION:	30 September 2009
BEFORE:	Hirschhorn M - Judicial Member
LEGISLATION CITED:	Land Tax Management Act 1956 Taxation Administration Act 1996 Administrative Decisions Tribunal Act 1997 Strata Schemes (Freehold Development) Act 1973 Strata Schemes Management Act 1996 Land Tax Management (Amendment) Act 1992 Income Tax Assessment Act 1936
CASES CITED:	CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384 Jeffrey James Prebble Pty Ltd v FCT (2203) 131 FCR 130 Cameron Brae Pty Ltd v FCT (2007) 161 FCR 468IRG Technical Services Pty Ltd v FCT (2007) 165 FCR 57 Deputy Commissioner of Taxation v PM Developments Pty Ltd [2008] FCA 1886 Spencer v The Commonwealth (1907) 5 CLR 418
REPRESENTATION:	APPLICANT J Seve (in person and as agent for F Kelly) RESPONDENT I Young, barrister
ORDERS:	1.The decision of the Chief Commissioner of 30 January 2008 is revoked 2.The matter is remitted to the Chief Commissioner for determination in accordance with the findings of the Tribunal (including that the Chief Commissioner should notify the owners of Lot 2 of the original application under Section 65A(1) Land Tax Management Act 1956 made by the Applicants and to take into consideration any response from the owners of Lot 2) 3.The parties to provide any further submissions in respect of the matter of costs in writing within 28 days. 4. The parties have liberty to apply to the Tribunal within 7 days if either party wishes to have the matter re-listed to make oral submissions in respect of the matter of costs.

REASONS FOR DECISION

Part A –Introduction and background

1 This matter involved an application by the Applicants for review of a decision of the Respondent dated 30 January 2008 to refuse to:

a. form an opinion under Section 65A(1) of the Land Tax Management Act 1956 (“LTMA”) that the proportional unit entitlement (as defined in Section 65A(2) of the LTMA) of Lot 1 the subject of strata scheme SP50870 is unfair or unreasonable; and

b. alter the proportional unit entitlement (as defined in Section 65A(2) of the LTMA) of Lot 1 the subject of the strata scheme SP50870 (for land tax purposes) as necessary to ensure that it is fair and reasonable:
i. in respect of the tax year in which the alteration is made (and any subsequent year to which it is applicable);
ii. in respect of the tax years before the tax year in which the alteration is made up to and including the 2000 tax year
under Section 65A(2) of the LTMA

2 The Applicant objected to the abovementioned decision of the Respondent by letter on 4 February 2008.

3 By letter on 14 May 2008, the Respondent responded to the objection letter stating that Section 88 of the Taxation Administration Act 1996 provided that on an objection, the onus of proof lay with the objector and requested a market valuation report from a registered valuer that substantiated the Applicant’s claim.

4 On 21 May 2008, the Applicants, by letter, provided a market valuation report for Lots 1 and 2, 13 Park Avenue Avalon prepared by Quadrant Real Estate Valuations.

5 An initial decision on objection was given by the Respondent by letter on 1 July 2008 disallowing the objection. After a complaint by the Applicants that the objection decision did not satisfy the requirements of Section 93 of the Taxation Administration Act 1953 (“TAA), the decision was withdrawn by the Respondent by letter on 9 July 2008.

6 The Applicants’ objection was then wholly disallowed by the Respondent in a letter also dated 9 July 2008 for the reasons set out in that letter.

7 There was further correspondence and a meeting between the Applicants and representatives of the OSR during the period from 9 July 2008 to 4 September 2008. During this time, the Applicants obtained and provided to Respondent market value valuation reports in relation to Lots 1 and 2.

8 On 4 September 2008, the Respondent wrote to the Applicants to advise that the objection decision of 4 July 2008 was to be withdrawn and replaced by the objection decision contained in the present letter. The objection was disallowed for the reasons given in the letter dated 4 September 2008 as well as the reasons contained in the Respondent’s letter of 9 July 2008.

9 The Applicant appeared in person at the hearing and as agent on behalf of Francis Kelly. The Applicant filed detailed written submissions, submissions in reply, made oral submissions at the hearing and filed further submissions following the hearing as requested by the Tribunal. The Applicant also relied on the following evidence:

a) A statutory declaration of Beau Bowen, registered valuer declared 3 February 2009;
b) A residential valuation report (short form report) dated 16 May 2006 for Lot 1 & 2 Park Avenue Avalon, NSW in respect of “Unit entitlement assessment”/”to determine a fair unit entitlement proportion”;
c) A residential valuation report (short form report) dated 5 August 2008 for Lot 2/13 Park Avenue, Avalon, NSW in respect of “market value”/”to determine fair estimated market value”;
d) A residential valuation report (short form report) dated 5 August 2008 for Lot 1/13 Park Avenue, Avalon, NSW in respect of “market value” / “to determine fair estimated market value”;
e) A valuation of real estate report dated 5 August 2008 for 1/13 Park Street (sic), Avalon, NSW in respect of “to establish the current market valuation of the property as at 5 August 2008.

10 The Respondent did not object to the tender of the abovementioned evidence by the Applicant and did not cross-examine the relevant registered valuer that had prepared the reports and made the statutory declaration.

11 The Respondent also prepared detailed written submissions, made oral submissions and filed further written submissions after the hearing as requested by the Tribunal. The Respondent also filed the documents required by Section 58 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

Part B – Facts

12 The facts were not in contest between the parties.

13 The Applicants have been the registered owners of Lot 1 in Strata Scheme 50870 (“Lot 1”) since they purchased the property in 1999.

14 Ms Seve has paid land tax in respect of her 50% share in Lot 1 since the 2000 land tax year. Ms Seve and Mr Kelly have jointly paid land tax in respect of Lot 1 since the 2002 land tax year.

15 There are only 2 lots in Strata Scheme 50870, namely Lot 1 owned by the Applicants and Lot 2 (owned by other persons did not take any part in the hearing of the matter).

16 The actual unit entitlement of each of Lot 1 and Lot 2 is one over two (1 / 2).

17 In early 2007, the Applicants explained that they had lodged an objection with the Valuer-General to the land valuation relating to their lot. They subsequently received notice on 21 November 2007 that their objection was disallowed. Neither that objection nor the notice was before the Tribunal.

18 Prior to receiving that notice of disallowance of objection by the Valuer-General, Ms Seve said that an officer of the Valuer-General during a site inspection had foreshadowed her that it was unlikely that the objection would be allowed but he mentioned that the Applicants might consider applying to the Respondent for alteration of the proportional unit entitlement of Lot 1 pursuant to Section 65A LTMA.

19 The Applicants then made an application by letter to the Respondent on 20 December 2007 and requested:

a) Pursuant to s65A(1) LTMA, the Chief Commissioner alter the proportional unit entitlement for Lot 1 to a one third entitlement for land tax purposes to ensure it is fair and reasonable;

b) Pursuant to s65A(5) of the LTMA, the Chief Commissioner apply the altered entitlement

(i) in respect of the tax year in which the alteration is made (and any subsequent year to which it is applicable), and
ii. in respect of each tax year in which the alteration is made (but not before the 1989 tax year) from the 2000 tax year onwards (being the tax years since the Applicants purchased and became the registered owners of Lot 1 in 1999) and

c) Pursuant to s65A(6), the Chief Commissioner make reassessments accordingly for the 2000- 2007 tax years inclusive for Joanne Seve and for the 2002-2007 tax years inclusive for the Applicants jointly and make future land tax assessments accordingly for the 2008 tax year and onwards.

20 In her letter and at the hearing, Ms Seve described the physical and other features of Lot 1 and Lot 2 in the manner set out below (which were also observed for the most part in the valuation reports tendered by the Applicant).

a. Strata Plan 50870 is a horizontal strata plan. In other words, apart from an adjoining common wall area, the land comprised in each of Lots 1 and 2 is separate and distinct (horizontally and vertically) from one another.

b. In terms of area, Lot 1 comprises 650 square metres and Lot 2 comprises 554 square metres.

c. Lot 1 faces the street (i.e. Park Avenue, Avalon) and has a long driveway through its front yard. Facing from Park Avenue, when entering the driveway, about one third of the way along the driveway, immediately to the right, is the car space for Lot 2 (carved out of the land that otherwise belongs to Lot 1). The driveway on Lot 1 is a right of carriageway in favour of Lot 2 so that the owners can enter their car-space. The driveway on Lot 1 goes through its front yard (as opposed to down one side, for example) due to certain tree preservation orders.

d. There is a two story brick dwelling on Lot 1 and Lot 1 also essentially comprises the entire “front yard” of the parcel of land (with the exception of the car-space and the right of carriageway for Lot 2 referred to above).

e. Ms Seve said that from the back of Lot 1, one can see Lot 2, trees and some ocean glimpses.

e. Lot 2, by contrast, is set back from Park Avenue and from the diagram provided to the Tribunal by Ms Seve at the hearing, comprises the entire “back-yard” of the parcel of land. There is also a two-story brick dwelling on Lot 2. This dwelling shares a common wall with the building on Lot 1.

f. According to Ms Seve, as Lot 2 is set back from Park Avenue, it enjoys more privacy than Lot 1. Ms Seve also stated that Lot 2 has expansive beach and ocean and landscape views in contrast to Lot 1.

g. Ms Seve further noted that Lot 2 is not burdened by a car-space or any right of carriage-way (or indeed any other rights) in favour of Lot 1.

21 The Section 58 documents filed by the Commissioner included an internal report prepared by the Office of State Revenue that referred to the names of the owners of Lot 2 and that they have occupied Lot 2 as their “principal place of residence” since 1995. A transfer document indicates that Lot 2 was purchased by the present owners on 7 November 1995 for a sum of $375,000.

22 Some transfer documents for Lot 1 were also before the Tribunal. One transfer was dated 8 March 1996 and was in the sum of $368,000. A subsequent transfer of Lot 1 to the Applicants occurred on 25 May 1999 and was in the sum of $475,000.

23 The Tribunal notes that the title search for Lot 2 as at 14 November 1995 (included in the Section 58 documents) indicates that in respect of Lot 2, there are some “restrictions on the use of land” This same notification of restriction on use does not appear on the title search for Lot 1. There was no evidence before the Tribunal as to whether these restrictions still exist, their precise nature and/or whether they would have any relevance to the unimproved and/or market value of Lot 2.

24 A historical search of the register included in the Section 58 documents indicates that the strata plan was recorded on 6 October 1995.

Part C -Applicant’s case

25 The Applicant made a number of sets of detailed written submissions as previously mentioned which the Tribunal has considered together with oral submissions made at the hearing. By way of summary of these submissions, the Applicant’s case was essentially that set out below.

26 The Tribunal has the power to review the decision of the Respondent of 30 January 2008 (Royal Australasian Ornithologists Union v Chief Commissioner of State Revenue [2002] NSWADT 263).

27 Section 65A LTMA as originally introduced in 1988 was repealed and a new Section 65A was introduced into the LTMA by Schedule 2(8) of the Land Tax Management (Amendment) Act 1992 on 31 December 1992. The explanatory notes accompanying the original Section 65A are not to be relied on as a statement of the purposes of the replacement section.

28 The limitation on the Respondent’s power in the original version of Section 65A, in cases of avoidance, is not contained in the replacement section 65A. Instead the present section confers on the Respondent a broad and unrestricted discretion.

29 It is a fetter on this broad discretion for the Respondent to only exercise the discretion in cases to combat tax avoidance schemes involving staged strata developments (McDonald’s Australia Ltd v Chief Commissioner of State Revenue [2005] NSWSC 6).

30 The power of the Respondent to alter unit entitlement under Section 65A is for land tax purposes only and the actual unit entitlement of the lot remains unchanged. An application to the Strata Titles Board through the Consumer, Trade and Tenancy Tribunal (“CTTT”) is only appropriate in cases where actual unit entitlement is to be altered.

31 The actual unit entitlement of the two lots in Strata Scheme 50870 is presently 50% each, which is based on the number of lots and approximately equal area of the two lots in the Strata Scheme. However Lot 2 has advantages over Lot 1 such as location with enjoyment of exclusive and expansive beach, ocean and landscape views, privacy and lack of traffic noise and is not burdened by a car-space belonging to the other lot or a right of carriageway in favour of the other lot.

32 For the purposes of calculating land tax for Lot 1, attribution of a unit entitlement of 50% of the unimproved value of the land, the subject of Strata Scheme 50870, is an unfair allocation of an unreasonably high percentage of the unimproved value of that land relative to Lot 2. For the purposes of calculating land tax, application of the actual unit entitlement of 50% results in land tax in respect of Lot 1 being higher than it ought fairly and reasonably to be.

33 To be fair and reasonable, the Applicants indicated in their objection that a lower proportional unit entitlement for Lot 1 of 33.3% (or one third) should be applied for land tax purposes and that this altered unit entitlement should be applied for land tax purposes from the 2000 land tax year being the first land tax year that the Applicants owned Lot 1.

34 At the hearing, the Applicants submitted that, based on the report they obtained from Quadrant Real Estate Valuations (in response to a request of the Respondent during the objection process), containing a comparison of the unimproved land values of Lots 1 and 2, the proportional unit entitlement for Lot 1 should be 32%.

35 The Applicants had (as requested by the Chief Commissioner in the objection process) also obtained “improved land” market valuation reports of the two lots. As the Applicants were not the owners of Lot 2, they were only able to obtain a “short-form improved land market estimation” for Lot 2. A similar short-form report was also obtained for Lot 1 so that it could be compared with Lot 2. The Applicants also had a full improved land market valuation report of Lot 1.

36 The Applicants submitted that if the “improved value land values” of the two lots was applied, then the unit entitlement for Lot 1, for land tax purposes only, should be 46%.

37 The Applicant maintains however that since land tax is calculated on the basis of “unimproved land value”, the basis of valuation that should be applied by the Respondent in forming an opinion under Section 65A(1) of the LTMA should also be the estimated unimproved land values of the lots in the strata scheme.

38 The Applicant annexed to its submissions, four versions of calculations based on a unit entitlement for Lot 1 of 33.3% (as originally proposed by the Applicants), 32% (as per an unimproved land value basis), 46% (as per the short form estimations on an improved land value basis) and 39% (representing a midpoint).

39 In relation to the midpoint, the Applicants submitted that if there is uncertainty as to the basis of valuation that should be applied in respect of the Commissioner forming an opinion and exercising a discretion under Section 65A, reasonably and in fairness in this case, the Commissioner should consider a compromise position between the two bases of valuation (Part 3 TAA and section 65A(6) LTMA).

40 In response to a matter raised by the Commissioner concerning the owners of Lot 2 in its ultimate objection decision of 4 September 2008, the Applicants maintain that it is not the opinion of the owners of Lot 2 that is relevant to the exercise of the Respondent’s discretion under Section 65A but rather the objective facts and the circumstances of the two lots of the strata scheme. Further, the Respondent had ample opportunity to make contact with the owners of Lot 2 (whilst observing the restrictions under Part 9, Division 3 of the TAA) during the objection process.

41 Ms Seve also stated at the hearing that the Applicants had not approached the owners of Lot 2 in respect of making this application. The owners of Lot 2 were a retired couple and the Applicants did not wish to disturb them.

42 The Applicants submitted that it was inapposite for the Respondent to note that an alteration of the unit entitlement for Lot 1 as requested would increase the amount of land tax payable or potentially payable by the owners of Lot 2, since Lot 2 is used and occupied as the owners’ principal place of residence.

43 The Applicants also submitted, that the refusal by the Respondent to exercise his discretion under Section 65A where the percentage difference between the improved value market valuations of strata lots is 8% is an arbitrary fetter on the discretion under Section 65A. Further, the difference of 8% is significant to the Applicants in this case in terms of payment of land tax.

44 The reliance placed by the Commissioner on a transfer of Lot 2 that occurred 13 years ago and may have involved a transfer to a related party may not have reflected the true market value of Lot 2 and in any case is in appropriate, unjust and unfair to rely on in the exercise of the discretion under Section 65A.

45 Finally, the Applicants submitted that the Chief Commissioner should make reassessments for the 2000-2008 land tax years inclusive for Ms Seve and for the 2003-2008 land tax years inclusive for the Applicants jointly. The altered proportional unit entitlement should apply for future land tax years.

Part D - The Respondent’s case

46 The Respondent also filed detailed written submissions and made oral submissions which the Tribunal has considered. In summary the Respondent’s case was essentially as set out below.

47 The Tribunal is required to decide what the “correct and preferable decision is having regard to the material then before it” pursuant to Section 63(1) ADT Act. The Tribunal is not limited to the material that was before the Respondent at the time the decision was made. Neither the reasoning process nor the material relied on by the Respondent is decisive in the review by the Tribunal and it will form its decision ab initio.

48 Section 65A confers an “alteration power” on the Respondent and the Tribunal, to be exercised by reference to as criterion of fairness and reasonableness.

49 Section 65A has not enumerated any relevant facts, criteria and circumstances to guide the Respondent in forming his conclusion that the existing proportional unit entitlement is “unfair or unreasonable” together with the exercise of a discretionary alteration power to ensure that it is both fair and reasonable. In such a case, the discretion must be exercised by reference to factors “determined by implication from the subject-matter, scope and purpose of the Act”.

50 The modern approach to statutory interpretation as set out in a number of authorities at the highest level provides that one should consider “context” first without the need to first identify any ambiguity. A consideration of context includes the existing state of the law, the mischief the legislature intended the statute to correct, the object of the legislation and its legislative history.

51 The contention by the Applicant that the purpose of the original Section 65A is not relevant to consider in respect of the new section 65A cannot stand in the Tribunal being contrary to several Federal Court authorities. In supplementary submissions, the Respondent urged that the discretion should be limited to analogous situations mentioned in the explanatory notes for the 1988 amendments, namely disproportionate unit entitlements, created by design, in staged developments.

52 The new section 65A is retrospective (i.e it applies for the 1992 and following land tax years but can also apply retrospectively as new section 65A(5)(b) empowers the Chief Commissioner to make an alteration in respect of any tax year before the tax year in which the alteration is made (but not before the 1989 tax year) The new section 65A is retrospective and operates in parallel with the original Section 65A in respect of the 1989-1991 land tax years.

53 By reference to the original Section 65A and the relevant explanatory note, the Respondent submitted that the original Section 65A was clearly an anti-avoidance provision.

54 No intention to jettison and rewrite the purpose, scope and operation of the new Section 65A appears on the face of the legislation or the Explanatory Note. The explanatory note says that it is a “replacement of an existing provision”. The new section dovetails in and can operate retrospectively back to the start date of the original provision but the original provision is repealed prospectively.

55 The replacement section 65A means that an alteration of unit entitlement is for land tax purposes only but this “change” does not have the significance for which the Applicants contend. The new Section 65A(7) simply undoes an “unexpected effect” of this anti avoidance provision and limit its effect to the taxpayer as against the Commissioner rather than as against other persons.

56 The context of Section 65A does not support the contentions of the Applicants that Section 65A is a general relieving provision to all taxpayers who feel aggrieved that their actual proportional unit entitlement is unfair or unreasonable to them.

57 In any event, the Respondent submitted that the market value and not unimproved value is the relevant consideration to be taken into account in forming the opinion that the proportional unit entitlement is unfair or unreasonable. Expressions in Section 65A have the meaning attributed to them in the SSFD. Sections 8(4A), 8A(4) and 28QAA expressly contemplate the apportionment of unit entitlements on a “market value” basis.

58 Even if Section 65A was a general relieving power open to application at the request of an aggrieved taxpayer, the relieving or dispensation power is incidental and ancillary to what would be the prima facie position absent the exercise of that relieving power. There is a threshold beyond which it would defeat the primary object of the legislation. In this case the variance, if any, as to difference between the market value and 50/50 proportional unit entitlement is not such as to warrant the favourable exercise of the dispensation power (the latter not being conceded).

59 Acceptance of the contentions of the Applicants has the consequence that, for land tax purposes, the proportional unit entitlement of Lot 2 is altered concomitantly with the changed Lot 1 proportional entitlement. Thus, the proportional unit entitlement of Lot 2 is increased, on the contentions of the Applicants from 50% to 68%.

Part E - Legislative provisions

Relevant Land Tax Legislative provisions

60 Pursuant to Sections 7, 8 and 9 of the LTMA, land tax is levied each year on the land value of all land in New South Wales owned by a taxpayer at midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied other than land which is exempt from taxation under the LTMA.

61 In the case of land subject to the Strata Schemes (Freehold Development) Act 1973 (“SSFD”), Section 9B of the LTMA provides that land tax is to be levied and paid in respect of each “lot” comprised in a parcel.

62 Section 9B is presently in the following terms:

9B Strata
(1) Land tax, in the case of land subject to the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 , is to be levied and paid in respect of each lot comprised in a parcel.
(2) For the purposes of this Act:
(a) the land value of a lot comprised in a parcel is an amount that bears to the land value of the parcel (within the meaning of section 9 (4)) the same proportion as the unit entitlement of the lot bears to the aggregate unit entitlement, and
(b) the average value of the lot is to be ascertained on the basis of the land value of the lot, as determined under paragraph (a).
(3) Expressions used in this section have the same meanings as in the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 .

63 The “land value” of a parcel is defined in Section 9(4) by reference to the value entered in the Register as the land value of the land as at 1 July in the previous year.

64 Relevantly for present purposes, Section 9B(2), in calculating the “land value of a lot” refers to the proportion that the “unit entitlement” of the “lot” bears to “aggregate unit entitlement”. By Section 9B(3), these expressions have the same meaning as in the relevant Strata Schemes legislation.

65 The relevant definitions are contained in section 5 of the Strata Schemes (Freehold Development) Act 1973 (“SSFD”) as follows:

lot means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot.

unit entitlement , in relation to a lot, means the unit entitlement of that lot shown on the schedule of unit entitlement.

aggregate unit entitlement , in relation to lots the subject of a strata scheme, means the sum of the unit entitlements of those lots.

strata scheme means:

(a) the manner of division under this Act, from time to time, of a parcel into lots or into lots and common property and the manner of the allocation under this Act, from time to time, of unit entitlements among the lots, and
(b) the rights and obligations, between themselves, of proprietors, other persons having proprietary interests in or occupying the lots and the body.

Section 65A LTMA

66 As stated above, the application for review of a decision of the Respondent in the present case concerned Section 65A LTMA which is in the following terms:

65A Alteration of strata unit entitlements

(1) If the Chief Commissioner is of the opinion that the proportional unit entitlement of a lot the subject of a strata scheme is unfair or unreasonable, the Chief Commissioner may alter that entitlement as the Chief Commissioner thinks necessary to ensure that it is fair and reasonable.

(2) The proportional unit entitlement of a lot is the proportion that the unit entitlement of the lot bears to the aggregate unit entitlement of all the lots that are the subject of the scheme.

(3) The Chief Commissioner alters a proportional unit entitlement by giving written notice of the alteration to the owner of the lot concerned, and the alteration takes effect when that notice is given. Such a notice may be given as part of a notice of assessment.

(4) The alteration may be made by altering the unit entitlement of the lot or the aggregate unit entitlement of all the lots that are the subject of the scheme, or by altering both those entitlements.

(5) If the proportional unit entitlement of a lot is altered under this section, the Chief Commissioner may for the purpose of levying land tax apply that altered entitlement:

(a) in respect of the tax year in which the alteration is made (and any subsequent year to which it is applicable), and
(b) in respect of any tax year before the tax year in which the alteration is made (but not before the 1989 tax year).

(6) For that purpose, the Chief Commissioner may make an assessment, reassessment or compromise assessment of land tax in accordance with Part 3 of the Taxation Administration Act 1996 .

(7) An alteration of unit entitlement under this section applies only for land tax purposes.
(8) In this section, strata scheme means a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or a leasehold strata scheme under the Strata Schemes (Leasehold Development) Act 1986 , and expressions used in this section have the same meanings as in those Acts.

67 Section 65A was inserted by Land Tax Management (Amendment) Act 1992 and applied from 31 December 1992. For present purposes I will refer to this provision as “new Section 65A”. The relevant explanatory note stated the following:

The object of this Bill is to make the following amendments to the Land Tax Management Act 1956 (“LTM”) Act with effect from and including the 1993 land tax year:
…
(f) to enable the Chief Commissioner to alter for land tax purposes an unfair or unreasonable strata unit entitlement (in place of an existing provision authorising the Chief Commissioner to apply to the Strata Titles Board for such a reallocation”.
….
Alteration of strata unit entitlement
An existing provision of the LTM Act (section 65A) allows the Chief Commissioner to apply to the Strata Titles Board for the reallocation of a strata (or leasehold strata) unit entitlement if the original allocation was unreasonably made and land tax has been avoided.

That provision is to be replaced with a provision that will enable to the Chief Commissioner to alter for land tax purposes, a unit entitlement that the Chief Commissioner thinks is unfair or unreasonable. Such an alteration can operate retrospectively but not before the 1989 tax year (which is the first year in which the existing provision applied). A further amendment confers a right of objection in respect of an alteration of unit entitlement under the new provision”.

68 The relevant second reading speech stated the following in relation to new Section 65A:

Some other amendments to the Land Tax Management Act are designed to overcome minor anomalies which have been identified. The bill amends section 65A to allow the chief commissioner to redetermine the allocation of individual strata entitlements for land tax purposes if satisfied that the value determined in accordance with the relevant unit entitlement is not fair and reasonable”.

69 As can be seen, the explanatory note refers to the old section 65A being “replaced” with the present provision (also named section 65A) whereas the second reading speech refers to the bill that “amends section 65A”.

70 As part of the dispute in the present case centred around whether the object and purpose of the original Section 65A was relevant in the construction of new section 65A (and, in particular, whether or not the present provision is a general dispensing provision available to taxpayers who are aggrieved as to the proportional unit entitlement of their lot), the Tribunal has set out below the original section 65A (referred to hereafter as the “old Section 65A”) as enacted together with relevant statements from the explanatory notes.

Chief Commissioner may apply for reallocation of strata unit entitlement

(1) If the Chief Commissioner is of the opinion that in relation to a strata scheme under the Strata Titles Act 1973 or a lease hold scheme under the Strata Title (Leasehold) Act 1986-

a. The allocation of unit entitlements among the lots the subject of the scheme was unreasonably made; and

b. As a result, a person’s liability to land tax has been reduced or avoided,

The Chief Commissioner may apply under section 119 of the Strata Titles Act 1973 or section 155 of the Strata Titles (Leasehold) Act 1986 to the Strata Titles Board for an order in respect of the scheme as if the Chief Commissioner were the body corporate for the scheme.

(2) If, on the application of the Chief Commissioner under this section, an order is made that operates to change the unit entitlement of a lot, the Chief Commissioner may for the purpose of levying land tax apply that changed unit entitlement-

a. In respect of the tax year in which the change is made (and any subsequent year to which it is applicable); and

b. In respect of any tax year before the tax year in which the change is made (but not before the 1989 tax year).

(3) For that purpose, the Chief Commissioner may make an assessment of land tax or amend any assessment under section 16.

(4) Despite section 16(2), an amendment of an assessment authorised by this section may be made at any time.

71 The second reading speech said the following in relation to the introduction of new section 65A;

The bill includes provisions to defeat a land tax avoidance scheme under the strata titles legislation. The scheme involves the allocation by a developer of a minimal number of units to underdeveloped land in a staged strata scheme, which results in an understatement of the value for land tax purposes. The bill will allow the Chief Commissioner of Land Tax to appeal to the Strata Titles Board against the allocation of unit entitlements which are unreasonably made. The Chief Commissioner will be able to issue a reassessment of land tax if the Strata Titles Board reallocates unit entitlements”.

72 The relevant explanatory note stated the following:

The object of this Bill is to amend the Land Tax Management Act 1956-
…
(r) to combat a tax avoidance scheme by enabling the Chief Commissioner to appeal to a Strata Titles Board against unreasonable allocations of strata unit entitlements.
…
Unreasonable strata unit allocations
The Bill inserts a provision into the Principal Act that will allow the Chief Commissioner to seek an order under the Strata Titles Act 1973 or the Strata Titles (Leasehold) Act 1986 against an unreasonable allocation of unit entitlements. If an order is made changing unit entitlements, the Chief Commissioner can re-assess land tax on the basis of the changed unit entitlements but not before the 1989 tax year.

Part F - Discussion and Reasons for Decision

73 There are two main aspects to this matter being firstly, the proper construction of Section 65A LTMA and secondly, if the provision is a broad and unrestricted discretion as the Applicant submits, whether the Chief Commissioner (or the Tribunal standing in the shoes of the Chief Commissioner) should form an opinion that the proportional unit entitlement of Lot 1 of Strata Plan 50870 is unfair or unreasonable and, if so, whether it should alter the proportional unit entitlement as necessary to ensure that it is fair and reasonable in respect of the current land tax year and future land tax years and in respect of land tax years from 2000-2009 inclusive?

Construction of section 65A

74 In respect of construction of the provision, it is necessary to consider whether Section 65A confers a discretion on the Chief Commissioner and, if so, the nature of that discretion?

75 In respect of these issues, the Applicant submitted that the present Section 65A is a broad and unrestricted discretion. Implicit in the Applicant’s argument is that it is open for a taxpayer to make an application for the exercise of that discretion by putting forth objective facts and evidence before the Chief Commissioner. In respect of the nature of the discretion, the Applicant referred in reply submissions to Pearce & Geddes, “Statutory Interpretation in Australia (5th Edition) at paragraph [1.16] to the effect that “when considering whether a provision is obligatory or discretionary, even if the power is discretionary, the decision-maker must still consider whether, on the facts, the discretion should be exercised in favour of a person”.

76 The Respondent accepted that Section 65A is a discretion but as the statute is silent as to the factors to be taken into account in forming an opinion under Section 65A, it must be exercised by reference to the factors determined by implication from the subject matter, scope and purpose of the Act including context (which includes historical context). In the context of the Act as a whole and in its historical and legal context, the Respondent submitted that purpose of Section 65A is an anti avoidance provision to confer on the Chief Commissioner a power to combat unacceptable arrangements. It is not a general relieving provision available to all taxpayers who feel aggrieved that their actual proportional unit entitlement is unfair or unreasonable to them. At the hearing, the Counsel for the Respondent said that, having regard to the above, the discretion ought to be exercised mainly to combat unacceptable arrangements where there has been avoidance/underpayment of land tax.

77 As a matter of general statutory interpretation, I agree with Respondent’s submissions to the effect that the modern approach requires consideration of context first without the need to identify any ambiguity in a particular legislative provision. This includes “context” in its widest sense to include such things as the existing state of the law and the mischief which one may discern the statute was intended to remedy: CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384.

78 Furthermore, it is quite clear from the authorities that legislative history is to be included in the consideration of “context” : Jeffrey James Prebble Pty Ltd v FCT (2203) 131 FCR 130 at [25] per Hill & Hely JJ, Cameron Brae Pty Ltd v FCT (2007) 161 FCR 468, IRG Technical Services Pty Ltd v FCT (2007) 165 FCR at [21].

79 However the same authorities also stress that close attention must be paid to the “the text and structure of the relevant provisions as the words used by Parliament”: Cameron Brae Pty Ltd v FCT (2007) 161 FCR 468 at [3] per Stone and Allsop JJ. In IRG Technical Services Pty Ltd v FCT (2007) 165 FCR 57, Allsop J said at [21]:

The relevant words of the statutory provision are read in the context of the statute as a whole and in their legal and historical context, having regard to the aim and purpose of the provision and the legislation, to any canons of legal construction and to any inconvenience or improbability of result of any given construction. Such inconvenience or improbability of result may assist the Court to reach an alternative construction reasonably open and more clearly conforming with the legislative intent otherwise discovered. No initial textual or other ambiguity need be divined before context is examined. Fundamental to the task is the giving of close attention to the text and structure of the relevant provisions as the words used by Parliament.

80 Further in the recent case of Deputy Commissioner of Taxation v PM Developments Pty Ltd [2008] FCA 1886, Logan J in a case where he found that the description in the explanatory memorandum was not matched by the language employed in the statute, stated the following:

‘47. An assertion as to its meaning and effect in an explanatory memorandum circulated by or with the authority of the Minister introducing a Bill into Parliament, like the Second Reading Speech in respect of that Bill, is not a substitute for the language employed by the Parliament in the Bill as enacted: Re Bolton; ex parte Beane (1987) 162 CLR 514 at 518; Director of Public Prosecutions (Victoria) v Le (2007) 232 CLR 562 at 573, [29] and 586, [85]. It is the duty of the courts to construe enactments, not to make them. If, truly, the language of an enactment does not translate into law a meaning and effect that one might apprehend from secondary materials was intended it is for the Parliament to rectify that by further legislative provision.’

81 The Respondent pointed to two particular aspects of historical context relevant to the proper construction of the present Section 65A.

82 Firstly, that new Section 65A is retrospective and can apply to the land tax years from 1989-1992 inclusive. The old Section 65A also applied in respect of the 1989-1992 land tax years inclusive also and was only repealed prospectively. However, the Tribunal notes (as was acknowledged by the Respondent at the hearing), these provisions do not operate in tandem in any respect but simply in parallel in respect of those land tax years. The fact that the new Section 65A can potentially apply retrospectively in relation to the 1989-1992 land tax years (through the power of the Chief Commissioner to make reassessments now but in respect of those land tax years) is, in the view of the Tribunal, perhaps more supportive of the Applicant’s case that the new Section 65A is much broader than the old section 65A that also applied in those land tax years and is not simply a re-write of the old provision.

Secondly, the Respondent pointed to the fact that the old Section 65A employed some of the language and concepts of section 260 of the Income Tax Assessment Act 1936 and like that provision, section 65A (where it applied) altered, affected and dispossessed persons of their substantive property and contractual rights. This is because any order ultimately obtained by the Chief Commissioner under Section 119 Strata Titles Act 1973 (“STA”) would have affected the unit entitlement of a lot for all purposes, not only land tax purposes.

83 The Tribunal agrees with the Respondent that the new Section 65A (in particular sub-Section 65A(7)) appears to avoid any alteration of substantive property rights that would have otherwise occurred under the old Section 65A (if the Chief Commissioner had successfully obtained an order from the Strata Titles Board) and permits there to be an alteration of unit entitlement for land tax purposes only. To some extent this change in “mechanism” seems to be noted in the explanatory note to the new Section 65A reproduced above. However, there are other changes to the actual words of new Section 65A that have led the Tribunal to the view that this provision was not intended as a mere structural amendment to remove the potential for alteration of substantive property rights.

84 In the present case, the words used by Parliament in the present Section 65A seem to the Tribunal to have material differences to those in the old Section 65A.

85 Firstly, the present Section 65A provides for the Chief Commissioner to form an opinion that the proportional unit entitlement is “unfair” or unreasonable. The former provision only provided for the formation of an opinion that the allocation of unit entitlements was unreasonably made. The word “unfair” is an alternative to “unreasonable” and on that basis would be expected to mean something different. The Shorter Oxford Dictionary defines “unfair” as “not equitable, unjust, not according to the rules, partial”. The Courts have remarked on previous occasions that words like “reasonable” and “unreasonable” (and no doubt this could also extend to “unfair”) are not a question of law but rather a question of general social standards (refer Federal Commissioner of Taxation v GM Swift & Ors (1989) ATC 5101 at 5114 and following for a discussion of the relevant authorities).

86 Secondly, the present Section 65A appears to provide for the Chief Commissioner to form an opinion that the proportional unit entitlement at any particular point in time is unfair or unreasonable. The former provision only provided for an opinion to be formed that the allocation of unit entitlements was unreasonably made (i.e. which occurs at the time the strata plan is registered) – this is confirmed by the terms of Section 119 STA.

87 Thirdly, the present Section 65A does not contain any reference to or requirement that there be the formation of an opinion by the Chief Commissioner that a person’s liability to land tax has been reduced or avoided. This was an explicit requirement of the old Section 65A in order for the Chief Commissioner to be empowered to make an application under Section 119 of the STA as if the Chief Commissioner were the body corporate for the strata scheme.

88 Accordingly having regard to the text and structure of the new Section 65A as the words used by Parliament, despite there being some link between the subject matter (i.e. both provisions deal with proportional unit entitlement) and possibly scope (i.e. both provisions could potentially apply in cases of an unreasonable proportional unit entitlement that has led to avoidance and underpayment of land tax), the new section 65A appears to be a much broader discretion available to the Chief Commissioner and the Tribunal is of the view that in a certain case, the Chief Commissioner could form the requisite opinion that proportional unit entitlement is unfair or unreasonable and exercise the alteration power without there first being some avoidance and underpayment of land tax.

89 In addition, part of the historical context of the Land Tax Management (Amendment) Act 1992 that introduced the new Section 65A was that it followed a White paper on Land Tax entitled “Review of the NSW Land Tax Base and Valuation System”. The White paper is referred to in the Second reading speech. Other amendments introduced at the same time as Section 65A included the introduction of an annual valuation for all taxable properties and the removal of an equalisation system previously used. Further, taxpayers were given full rights of objection and appeal against such annual valuations. The objective of the White paper had been to ameliorate capacity to pay problems by improving the timeliness of official land valuations and reducing the volatility of tax assessment.

90 In the case of strata lots, there is of course an ability for a lot owner to object to and appeal against the value of the overall parcel of land the subject of the strata scheme (which in fact the Applicants did in the present case) but not in a sense, to the proportion of that value upon which they will be potentially required to pay land tax. The Tribunal notes that the second reading speech specifically said “the bill amends section 65A to allow the chief commissioner to redetermine the allocation of individual strata entitlements for land tax purposes if satisfied that the value determined in accordance with the relevant unit entitlement is not fair and reasonable”.

91 The Tribunal is of the view that the changes to the words of new Section 65A together with the relevant context of the amendments support an interpretation that the formation of the opinion by the Chief Commissioner and exercise of the discretion is not necessarily limited to those situations where the Chief Commissioner considers that land tax has been reduced or avoided and exercises the alteration power at his own volition. Depending on the facts and circumstances of a particular case, the Chief Commissioner could form an opinion that the proportional unit entitlement of a lot is unfair or unreasonable (such that the value determined in accordance with it for land tax purposes is unfair or unreasonable) and exercise the alteration power which may ultimately lower land tax for one lot owner and, in the view of the Tribunal, should correspondingly increase the land tax (or potential land tax) of another lot owner(s).

92 However as set out below in more detail, the Tribunal is also firmly of the view that if a relevant lot owner is to call for the exercise of the discretion, relevant considerations for the Chief Commissioner in forming the requisite opinion and in the exercise of the discretion would include not only a consideration of relevant valuation evidence from the lot owner calling for the exercise of the discretion but also consideration of the interests of other lot owners before any opinion could be formed that the proportional unit entitlement of a particular lot is unfair or unreasonable.

93 In coming to the conclusion that Section 65A is in the nature of a broad discretion and even though the language of the provision is extremely facultative and discretionary (i.e. the use several times of the word “may” and also “as the Chief Commissioner thinks necessary”), the authorities indicate that the decision-maker must still consider whether on the facts the discretion should be exercised in favour of a person (see for example:West Australian Field & Game Assoc Inc v Pearce (1992) 27 ALD 38 at 46).

Formation of the opinion under section 65A

94 In the present case, the Applicants have tendered in evidence before the Tribunal valuation reports that describe both the particular features of the lots in the strata scheme (as summarised in the facts above) together with, inter alia, expert opinion as to the improved market valuation of Lot 1 and an improved market estimate of Lot 2. This evidence indicates that the estimated market value of Lot 1 is $780,000.00. The estimated market value of Lot 2 is $920,000.00. As a proportion of the combined market value of the parcel, therefore, Lot 1 is said to be 46% and Lot 2 as 54%. The Respondent did not choose to rely on its own expert valuation evidence and accordingly the expert evidence as to the respective relative market values of Lots 1 and 2 currently stands uncontradicted.

95 There was some dispute between the parties as to the appropriate basis of valuation for the purposes of sub-Section 65A(1) LTMA (i.e. determining whether “proportional unit entitlement” is unfair or unreasonable). The latter term is defined in sub-section 65A(2) by reference to the term unit entitlement and aggregate unit entitlement in the SSFD.

96 Although the “unit entitlement” of a lot is central to the operation of strata scheme (and by section 8 SSFD, a plan intended to be registered as a strata plan must include a schedule of unit entitlement), there does not appear to be specific statutory guidance in respect of the how unit entitlement is to be initially determined for a strata scheme that is not a staged development scheme.

97 The Respondent referred in its submissions to Sections 8(4A), 8A(4) and 28QAA SSFD and the Applicant referred in correspondence with the Office State Revenue to Section 8(4A) but, on closer examination, Section 8(4A) refers to a schedule of unit entitlement for a strata scheme that includes a development lot (the latter being defined in section 5 as a lot in a strata plan that is identified by a strata development contract as a lot that is to be the subject of a strata plan of subdivision under the development scheme).

98 The term “strata development contract” is also defined and refers to a contract registered under Division 2A of Part 2 (which includes Section 28QAA). Division 2A of Part 2 SSFD is concerned with ”staged development schemes”. Section 8A(4) provides for the circumstances of the subdivision of a “development lot” and the unit entitlement that is to apply.

99 The lack of precise statutory guidance in respect of the initial allocation of unit entitlements in an ordinary strata scheme was in fact referred to in argument in a case stated to the Supreme Court in Anderson Stuart and Ors Treleaven and 1 Ors [2000] NSWSC 283 (at paragraph 78) for the review of a decision made by the Strata Titles Board in relation to the re-allocation of unit entitlements of a block of 3 units.

100 That case ultimately concerned an application for re-allocation of unit entitlements pursuant to Section 119 of the STA which Act was repealed but that provision effectively replaced by Section 183 of the Strata Schemes Management Act 1996 (“SSMA”).

101 In an application made under Section 119 STA, the Board was required to determine whether or not the unit entitlements at the time of registration of the Strata Plan were unreasonably made having regard to the respective values of the lots at the time. In the Anderson Stuart case, at [131], Santow J held that for the purposes of Section 119(2) STA, at least, the decision in Spencer v The Commonwealth (1907) 5 CLR 418 is the applicable principle for the valuation of land. The relevant extract from the judgement of Isaacs J (at 440-1) in Spencer’s case was set out in the Anderson Stuart case at paragraph [108]:

..the fair price of the land, which a hypothetical prudent purchaser would entertain, if he desired to purchase it for the most advantageous purpose for which it was adapted…To arrive at the value of the land…we have… to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the Plaintiffs and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration…”.

102 The learned texts in relation to strata schemes that the Tribunal has had regard to, generally state that unit entitlements are initially allocated on the basis of market value yet, as set out above, there does not appear to be specific legislative guidance other than for staged developments where a development lot is involved which is not relevant to the facts of the present case. It seems to the Tribunal that an initial allocation of unit entitlement based on market values is perhaps taken to be implicit due to the existence of provisions such as Section 183 SSMA (and previously Section 119 STA) that empower, inter alia, a lot owner or the owners corporation to apply for an order from the CTTT reallocating unit entitlements if the allocation is unreasonable when the strata plan was registered or when a strata plan of subdivision was registered.

103 In respect of such an application, the CTTT is required to have regard to the respective values of the lots and (if a strata development contract is in force in relation to the strata scheme) to such other matters as the Tribunal considers relevant (Section 183(3) SSMA) and the application must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after the change in the permitted land use, of each of the lots to which the application relates (Section 183(4) SSMA). It appears that Section 183 SSMA is interpreted in the same way as Section 119 STA in that “value” means “market value” within the meaning in Spencer’s case.

104 In the present case, therefore, the Tribunal is of the view that in forming an opinion under section 65A, the appropriate basis of valuation is market value within the meaning in Spencer’s case. This is because sub-section 65A(1) requires there to be consideration of whether the “proportional unit entitlement” is unfair or unreasonable at a particular time and unit entitlements are determined in accordance with the principles of Strata law.

Unfair or unreasonable -consideration of the interests of the owners of Lot 2

105 Having regard to the evidence before it of the particular features of Lot 1 versus Lot 2 as described in the facts and the uncontradicted expert opinion as to an 8% difference in improved market value of the lots, the Tribunal has reached the preliminary view that the proportional unit entitlement of Lot 1 is unfair or unreasonable.

106 However, having said this, the Tribunal also agrees with the Respondent’s submission that the position of Lot 1 cannot be viewed in isolation. Although section 65A(1) refers to “a lot”, subsection 65A(2) is clear that what must be considered is the proportion that the unit entitlement of the lot bears to the whole (i.e. aggregate unit entitlement). In the view of the Tribunal, if an opinion is formed that the unit entitlement of one lot is unfair or unreasonable, then it follows that the unit entitlement of one or more other lots in the scheme must also be unfair or unreasonable.

107 The scheme of the LTMA and in particular the operation of Section 9B appears to proceed on the assumption that the unit entitlements are simply fractions of a whole number. An interpretation of Section 65A that would permit the unit entitlement of one lot to be altered without there necessarily being a corresponding alteration of the unit entitlement of one or other of the lots in the same strata scheme (either at the time or shortly afterwards) would give rise to a leakage (or potential leakage) of land tax. This inconvenience or improbability of result (refer IRG Technical Services Pty Ltd v FCT (2007) 165 FCR at [21]) assists the Tribunal to conclude that the formation of an opinion that the unit entitlement of a lot is unfair or unreasonable cannot be reached in isolation and the interests of the other lot owners ought to be taken into account. This is particularly the case in the present strata scheme since there are only two lots.

108 Further, although there is uncontradicted expert evidence in this case regarding the improved market values of Lots 1 and 2, the Tribunal notes that the valuer was not able to enter Lot 2 and/or inspect the dwelling inside. Although this is no criticism of the Applicants (or the valuer) as they have no right to access Lot 2 to obtain such a valuation, this is evidence that could be supplied by the owners of Lot 2 and a matter in respect of which they may wish to respond. The Tribunal has already noted that the certificate of title (together with diagrams appearing the valuation reports) seem to indicate that part of the land of Lot 2 is restricted in use. It is unclear what this means and whether it would have any impact of the value of Lot 2.

109 The Applicant submits even if the Chief Commissioner (or the Tribunal standing in the shoes of the Commissioner) were to alter the proportional unit entitlement for Lot 1, there would be no real prejudice to the owners of Lot 2 as they currently claim the principal place of residence exemption and therefore are not currently subject to land tax. However, these circumstances could clearly change if the owners of Lot 2 were to change their arrangements or sell the property. The potential for a higher proportional unit entitlement for Lot 2 which the Tribunal agrees is a natural step if there is a reduction to the proportional unit entitlement of Lot 1 is a sufficient interest for the owners of Lot 2 to be notified of the application and their response invited in the view of the Tribunal.

Discretion to apply the altered unit entitlement and make reassessments

110 There was some dispute between the parties as to the relevant amendment period permitted by the new Section 65A (i.e. whether it is limited to 5 years pursuant to Section 9(3) of the Taxation Administration Act 1996 (“TAA”)). The Tribunal has considered the supplementary submissions of the parties in this regard and agrees with the Applicant that by operation of Section 9(3)(c) TAA and Sections 65A(5) and (6) LTMA, a reassessment may be made more than 5 years after the initial assessment.

111 In respect of the application of any altered unit entitlement for the purposes of levying land tax, the Chief Commissioner is given a further discretion in sub-section 65A(5). In the present case, the evidence as to improved market value is dated in August 2008 (which closely coincided with the date of inspection by the valuer). Whilst the evidence as to improved market value of Lot 1 relative to Lot 2 would, in the preliminary view of the Tribunal (but subject to consideration of the interests of the owners of Lot 2) support the exercise of a discretion by the Chief Commissioner applying that altered unit entitlement in the current and future land tax years, the Tribunal is not of the view that the evidence before it would support the application of an altered unit entitlement in prior land tax years in the absence of evidence of relative improved market valuations in those years. The market values of Lots 1 and 2 may have fluctuated during those 8 land tax years depending on improvements etc and the Tribunal is of the view that evidence as to present market value alone would be insufficient for the purposes of exercising a discretion to make reassessments in respect of those land tax years.

Conclusion

112 On the basis of the evidence before it, the Tribunal has reached the preliminary view that the particular features of Lot 1 (as described in the facts and expert opinion as to relative improved market values of the lots) are such that the proportional unit entitlement does seem to be unfair or unreasonable. However the Tribunal is also of the view that the interests of the owners of Lot 2 ought to be taken into account before reaching a final view is reached under Section 65A that the proportional unit entitlement of Lot 1 is unfair or unreasonable and in the application of any altered unit entitlement to assessments of land tax and/or reassessments of land tax for the owners of Lot 1.

113 In view of this, the Tribunal has decided to revoke the decision of the Chief Commissioner under review and, under the powers in Section 101(d) TAA and/or Section 63(1)(d) of the Administrative Decisions Tribunal Act 1997 (“ADT Act”) (noting that Section 101(2) provides that nothing in Section 101 limits the powers in Section 63 in Division 3 of Part 3 of the ADT Act), to remit the matter to the Chief Commissioner for determination in accordance with the findings of the Tribunal (including that the Chief Commissioner notify the owners of Lot 2 of the original application under Section 65A(1) LTMA made by the Applicants and take into consideration any response made by the owners of Lot 2 in the determination of the matter).

Orders

114 For the forgoing reasons, I make the following orders:

1. The decision of the Chief Commissioner of 30 January 2008 is revoked
2. The matter is remitted to the Chief Commissioner for determination in accordance with the findings of the Tribunal (including that the Chief Commissioner notify the owners of Lot 2 of the original application under Section 65A(1) Land Tax Management Act 1956 made by the Applicants and take into consideration any response made by the owners of Lot 2 in the determination of the matter)
3. The parties to provide any further submissions in respect of the matter of costs in writing within 28 days
4. The parties have liberty to apply within 7 days if either party wishes to have the matter re-listed to make oral submissions in respect of the matter of costs.