Koh v Chief Commissioner of State Revenue

[2025] NSWCATAD 242

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Koh v Chief Commissioner of State Revenue [2025] NSWCATAD 242

Hearing dates:

14 February 2025

Date of orders:

30 September 2025

Decision date:

30 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

AR Boxall, Senior Member

Decision:

The Respondent’s decision is confirmed.

Catchwords:

TAXES AND DUTIES — surcharge land tax – liability

Legislation Cited:

Foreign Acquisitions and Takeovers Act 1975 (Cth), ss 4, 5

Administrative Decisions Review Act 1997 ss 58, 63

Duties Act 1997 ss 104I, 104J

Land Tax Act 1956 ss 2A, 5A, 5B

Land Tax Management Act 1956 Schedule 1A

State Revenue Legislation Amendment (Budget Measures) Act 2016

State Revenue and Other Legislation Amendment (Budget Measures) Act 2017

State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022

Taxation Administration Act 1996 ss 4, 89, 96, 99, 100, 101

Cases Cited:

BBLT Pty Ltd v Chief Commissioner of the Office for State Revenue [2003] NSWSC 1003

B&L Linings Pty Ltd v Chief Commissioner of State Revenue(2008) 74 NSWLR 481

Chu v Chief Commissioner of State Revenue [2021] NSWCATAD 238

Du v Chief Commissioner of State Revenue [2022] NSWCATAD 329

EK Anderson Investments Pty Ltd ATF Cacs Property Trust v Chief Commissioner of State Revenue [2012] NSWADT 132

Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109

Gupta v Chief Commissioner of State Revenue [2006] NSWADT 187

Giunta v Chief Commissioner of State Revenue [2005] NSWADTAP 19.

Lawrence v Chief Commissioner of State Revenue [2022] NSWCATAD 266

Sjarifudin v Chief Commissioner of State Revenue [2021] NSWCATAD 347

Category:

Principal judgment

Parties:

Applicant: Kee San Koh
Respondent: Chief Commissioner of State Revenue

Representation:

Siok Kheng Koh (Applicant)

Counsel:
Crown Solicitor (Respondent)

File Number(s):

2024/00353296

Publication restriction:

None

REASONS FOR DECISION

APPLICATION TO REVIEW DECISIONS OF THE CHIEF COMMISSIONER of STATE REVENUE

Introduction

1. This is an application for review by the Tribunal of a succession of decisions made by the Respondent over a period of several years and summarised in paragraph [5] below (the Assessments). In the Assessments, the Respondent assessed the Applicant with surcharge land tax levied under section 5A of the Land Tax Act 1956 in relation to his interest in certain land located at 85 Hartigan Avenue, Kellyville NSW (the Property) in which the Applicant holds a 25% interest as a tenant in common.

2. In these reasons references to:

1. the Section 58 Documents are to the bundle of documents filed by the Respondent with the Tribunal on 12 November 2024 pursuant to section 58 of the Administrative Decisions Review Act 1997 (ADRA);

2. the Tender Bundle are to the bundle of documents filed by the Respondent with the Tribunal on 15 January 2025 entitled Tender Bundle Filed on behalf of the Respondent; and

3. the Applicant’s Documents are to the bundles of unpaginated and unindexed documents sent by the Applicant’s agent to the Respondent and the Tribunal by various emails between 16 December 2024 and 28 January 2025.

3. The Land Tax Act 1956 (LTA) and the Land Tax Management Act 1956 (LTMA), under which surcharge land tax is levied and assessed, are both “taxation laws” as defined in section 4 of the Taxation Administration Act 1996 (TAA). The objection and review provisions of the TAA therefore apply.

4. Reference to a land tax year is to a year beginning on 1 January, and reference to a particular land tax year is to the year beginning on 1 January of that year.

Procedural history

5. On the days respectively listed in Column A of the table below, the Respondent issued an Assessment to Mr Koh, assessing him as liable to pay surcharge land tax levied under section 5A of the LTA in respect of the Property for the corresponding land tax year set out in Column B of the table, in the amount correspondingly identified in Column C of the table:

A Date of Assessment	B Land Tax Year	C Amount assessed for the Land Tax Year concerned ($)
6 September 2021	2017	1,235.60
	2018	3,743.30
	2019	4,118.30
	2020	4,358.30
	2021	4,615.00
6 January 2022	2022	4,978.30
6 January 2023	2023	11,483.30
4 January 2024	2024	12,663.30
Total tax assessed	2027 to 2024 (inclusive)	52,578.10

6. Each successive Assessment also restated the amount assessed and unpaid for earlier land tax years, so that each Assessment set out the full amount of Surcharge Land Tax assessed and claimed by the Respondent and remaining unpaid for both the land tax year to which the Assessment related and each relevant earlier land tax year, together with interest.

7. The Applicant lodged an objection to the Assessments (the Objection) with the Respondent on 23 June 2024. This was outside the 60-day period allowed under section 89 of the TAA but the Respondent nonetheless proceeded to consider the Objection. He dismissed the Objection by letter dated 24 July 2024.

8. On 24 September 2024, the Applicant lodged with the Tribunal an Administrative Review Application Form, seeking review by the Tribunal of the Assessment under section 96 of the TAA.

9. That section permits a taxpayer to apply to the Tribunal for the review of a decision made by the Respondent if:

1. The decision has itself been the subject of an objection lodged by the taxpayer under Division 1 of the TAA; and

2. The taxpayer is dissatisfied with the Respondent’s determination of the objection.

3. Both conditions were clearly satisfied.

10. Section 99 of the TAA provides that the application for review must be made no later than 60 days after the date of issue of the notice of the Respondent’s determination of the objection. The Administrative Review Application Form was filed on 24 September 2024, and on 22 October 2024 the Tribunal ordered that the date for compliance with section 99 be extended to 24 September 2024.

Factual background

11. The relevant facts are established by the Section 58 Documents, the Tender Bundle and the Applicants’ own documents and submissions. There appears to be no disagreement as to the matters summarised below:

1. The Applicant acquired his interest in the Property in 2010.

2. At all material times, the Applicant was a citizen of the Republic of Singapore. The Applicant is not (and at no relevant time was) an Australian citizen. There is neither any suggestion nor any evidence that he is a New Zealand citizen.

3. The Applicant applied for a Parent (Class AX) Subclass 103 visa, but this was refused in 2015 with the refusal being reaffirmed in 2021.

4. He has visited Australia on multiple occasions since 1 January 2016, with each visit being made under a Class 601 authority ^[1] . This authority allows entry into Australia for a limited period of 3 months for each entry ^[2] .

   1. Tender Bundle, Tab 2.

   2. Tender Bundle, Tab 12.

5. According to his immigration records ^[3] , the Applicant has been present in Australia for the following periods during the years 2016, 2017, 2018, 2019, 2020, 2021, 2022, 2023 and 2024:

   3. Tender Bundle, Tab 2

Year	Period in Australia	Number of days
2016	1/1/2016 to 15/1/2016 11/2/2016 to 28/4/2016 22/5/2016 to 12/8/2016 26/8/2016 to 13/10/2016 5/11/2026 to 31/12/2016	15 76 82 48 56 277
2017	1/1/2017 to 2/2/2017	33
2018	20/11/2018 to 6/12/2018	17
2019	No time spent in Australia	0
2020	No time spent in Australia	0
2021	No time spent in Australia	0
2022	No time spent in Australia	0
2023	No time spent in Australia	0
2024	No time spent in Australia	0

6. In none of the years 2017 to 2024 did he spend 200 days or more in Australia. The only year in which his presence in Australia exceeded 200 days was 2016.

7. From 11 December 2020 until 2 April 2024, correspondence concerning the Applicant’s liability for surcharge land tax was addressed to him c/o Belle Property Castle Hill, the managing agent for rental of the Property. Hereafter, correspondence was sent to the Applicant via the email address of his wife, Mrs S K Koh.

12. On 19 August 2024, the Respondent agreed to remit all unpaid interest ^[4] .

    4. Section 58 Documents, Tab 26

Legislative provisions

13. Legislation imposing surcharge land tax was passed in 2016 in the form of the State Revenue Legislation Amendment (Budget Measures) Act 2016, which inserted section 5A into the LTA.

14. Section 5A has been amended on several occasions since then, but the essential elements of the section have remained constant:

1. Section 5A(1) provides as follows:

Land tax is payable under this section in respect of residential land owned by a foreign person (surcharge land tax).

2. Section 5A(2) currently provides as follows:

In respect of the taxable value of all the residential land owned by the foreign person at midnight on 31 December in any year (commencing with 2016), surcharge land tax is to be charged, levied, collected and paid under the provisions of the Principal Act and in the manner prescribed under that Act for the period of 12 months commencing on 1 January in the next succeeding year at the rate of—

(a)  in the case of all residential land owned by the foreign person at midnight on 31 December 2016—0.75% of that taxable value as assessed under the Principal Act, and

(b)  in the case of all residential land owned by the foreign person at midnight on 31 December in the years 2017–2021—2% of that taxable value as assessed under the Principal Act, and

(c)  in the case of all residential land owned by the foreign person at midnight on 31 December in the years 2022 and 2023, —4% of that taxable value as assessed under the Principal Act, and

(d)  in the case of all residential land owned by the foreign person at midnight on 31 December in any other year, commencing with 2024—5% of that taxable value as assessed under the Principal Act.

3. When it commenced in 2016, section 5A(2) imposed tax only at the rate of 0.75%. It was subsequently amended on three occasions, to impose tax at the rate of 2% for the 2018 to 2022 (inclusive) land tax years [paragraph (b)], to do so at the rate of 4% for the 2023 and 2024 land tax years [paragraph (c)], and to do so at the rate of 5% for the 2025 and all following land tax years [paragraph (d)]. Apart from these changes in rates, the provisions of section 5A(2) concerning the calculation, charging, levying, collection and payment of tax have remained unchanged.

4. The expressions residential land and foreign person are and at all times have been defined by incorporating the definitions of those terms found in Chapter 2A of the Duties Act 1997, to which these reasons return in more detail below. These definitions were originally set out in sub-section 5A(6). In 2017, this sub-section was deleted, and the defined terms incorporated (as they continue to be) from the Duties Act by section 2A of the LTA.

5. Section 5A(3) of the LTA provides as follows:

Surcharge land tax is payable in addition to any land tax payable in respect of the residential land under the other provisions of this Act, and is so payable even if no land tax is payable under those other provisions.

15. Section 5B of the LTA provides as follows:

5B   Surcharge land tax—residence requirement applying to principal place of residence exemption

(1)  A person is eligible for an exemption from liability to pay surcharge land tax in respect of residential land for a land tax year because the land is the principal place of residence of the person only if—

(a)  the person is a permanent resident at midnight on 31 December of the previous year, and

(b)  the Chief Commissioner is satisfied that, during the land tax year, the person intends to use and occupy the land as the principal place of residence of the person in accordance with the residence requirement, and

(c)  the person lodges a declaration with a land tax return required to be furnished under section 12 of the Principal Act for the land tax year to the effect that the person has that intention.

(2)  The person must use and occupy the land as the person’s principal place of residence for a continuous period of 200 days in the land tax year. This requirement is referred to as the residence requirement.

(2A)  A person does not use and occupy land as the person’s principal place of residence during a period of the person’s physical absence from Australia.

(2B)  The Chief Commissioner may, in exceptional circumstances, waive the requirement in subsection (2A) in relation to a person’s brief physical absence from Australia.

(3)  If the residence requirement is not complied with by the person, surcharge land tax liability is to be assessed or reassessed as if the person’s exemption from liability to pay surcharge land tax for the land tax year had never applied.

(4) The failure of the person to comply with the residence requirement is taken to be a tax default for the purposes of Part 5 of the Taxation Administration Act 1996.

(5) Any interest that is payable on the tax default in accordance with Part 5 of the Taxation Administration Act 1996 accrues on the amount of surcharge land tax assessable to the person for the period commencing on the last day allowed for furnishing the land tax return for the land tax year and ending on the day when the assessment or reassessment referred to in subsection (3) is made.

16. Section 5B was introduced into the LTA in 2017 by the State Revenue and Other Legislation Amendment (Budget Measures) Act 2017 with effect from 1 July 2017. It thus applied to the 2018 and subsequent land tax years. Sub-sections (2A) and (2B) were inserted into Section 5B in 2022, by the State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022, with effect from 19 May 2022.

17. Section 104I of the Duties Act 1997 relevantly defines residential land as follows:

residential land means any of the following and does not include any land used for primary production—

1. a parcel of land on which there are one or more dwellings, or a parcel of land on which there is a building or buildings under construction that, when completed, will constitute one or more dwellings.

18. Section 104J of the Duties Act 1997 defines a foreign person as meaning:

a person who is a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth

subject to certain modifications:

1. to the effect that Australian citizens are always to be taken as ordinarily resident in Australia; or

2. relevant solely to certain categories of New Zealand citizen.

3. Neither of these modifications are of any relevance in the present case, however, because the Applicant is and remains a citizen of the Republic of Singapore only.

19. Section 4 of the Foreign Acquisitions and Takeovers Act 1975 (Cth) defines a foreign person relevantly as follows:

"foreign person" means:

(a)  an individual not ordinarily resident in Australia ...,

and section 5 of that Act provides as follows:

Meaning of ordinarily resident

(1)  An individual who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if:

(a)  the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and

(b)  at that time:

(i)  the individual is in Australia and the individual's continued presence in Australia is not subject to any limitation as to time imposed by law; or

(ii)  the individual is not in Australia but, immediately before the individual's most recent departure from Australia, the individual's continued presence in Australia was not subject to any limitation as to time imposed by law.

(2)  Without limiting paragraph (1)(b), an individual's continued presence in Australia is subject to a limitation as to time imposed by law if the individual is an unlawful non-citizen within the meaning of the Migration Act 1958 .

The parties’ arguments

20. The Applicant says that any liability to surcharge land tax should be waived by the Respondent since:

1. The Applicant was not properly informed by the Respondent of his liability for surcharge land tax. In particular, rather than send the Assessments to the Applicant in Singapore, the Respondent chose to send them to the Property’s managing agent.

2. Such communications as the Applicant received appeared to be scams, and the Respondent communicated this concern to the Respondent by email on 18 January 2021 and 18 November 2021, seeking clarification. No clarification was received.

3. Moreover, the limitations on travel during the period of Covid made it difficult for the Applicant to deal with the issue.

21. The Respondent says that:

1. The evidence indicates that the Applicant was not ordinarily resident in Australia during any of the relevant land tax years because:

1. He was not in Australia for 200 days or more during any relevant 12 month period other than the year 2016, and in any event his visa status was such that his continued presence in Australia was subject to a time limit imposed by law;

2. He was neither an Australian nor a New Zealand citizen, and

3. He was thus a foreign person in all relevant land tax years for purposes of section 5A of the LTA, so that the Property was subject to surcharge land tax.

2. Section 5B of the LTA cannot provide the Applicant with any relief.

3. The Respondent has no discretion to waive surcharge land tax that is payable or to exempt the Applicant or the Property from it in the absence of statutory authority to do so. There is no such authority.

The nature of the review

22. The provisions of section 100 of the TAA apply to this review. Notably:

1. sub-section 100(2) of that Act provides that neither the Applicant nor the Respondent is limited in the present application to the grounds of the Objection; and

2. sub-section 100(3) of that Act provides that the Applicant has “… the onus of proving the applicant’s case in an application for review”, an onus which is discharged by reference to the ordinary civil standard: B&L Linings Pty Ltd v Chief Commissioner of State Revenue(2008) 74 NSWLR 481.

23. Under section 63(1) of the ADRA, in conducting a review the Tribunal “..  is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

1. any relevant factual material,

2. any applicable written or unwritten law”.

24. Moreover, under section 63(2) of that Act 1997, in doing so the Tribunal “… may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision”.

Reasoning

25. The evidence shows (and there is no dispute) that:

1. The Property was residential property for purposes of section 5A of the LTA at all material times.

2. The Applicant:

1. was resident in Singapore at all material times;

2. was at all material times a citizen of the Republic of Singapore only; and

3. during only one relevant period of 12 months, being from 1 January 2016 to 31 December 2016, spent more than 200 days in Australia, but did so under an immigration status that legally limited the time he was allowed to spend in the country;

He was thus in relation to all relevant land tax years a foreign person for purposes of section 5A of the LTA.

26. It follows that subject to any exemption the Applicant was liable to surcharge land tax under section 5A of the LTA in respect of the Property for each of the 2017, 2018, 2019, 2020, 2021, 2022, 2023 and 2024 land tax years.

27. The exemption provided for in section 5B of the LTA does not apply. That section was only enacted with effect from 1 July 2017 and applies only to the 2018 and subsequent land tax years. Since after 1 January 2017 the Applicant has spent a total of 50 days in Australia, it is impossible for him to have met for any of the 2018 to 2024 (inclusive) land tax years the requirement of section 5B that he occupy the Property as his principal place of residence for a continuous period of 200 days in the relevant land tax year. In nay event, the evidence indicates that the Property has been at all relevant times leased out to tenants.

26. The Applicant’s submission that the Assessments are flawed by reason of a lack of communication from the Respondent is unconvincing, for several reasons:

1. The Assessments, together with ancillary and follow-up correspondence concerning surcharge land tax was sent to the Applicant care of the Property’s managing agent, with the first piece of correspondence concerning surcharge land tax being sent on 11 December 2020 ^[5] ;

2. At least some relevant communications sent as early as January 2021 from the Respondent were sent on to the Applicant by the agents, as the Applicant’s wife’s email dated 19 May 2024 to the Respondent confirms ^[6] ; this follows since the Applicant’s wife refers in her email of 20 June 2024 to the Respondent to having enquired of the Respondent on 18 January 2021 whether certain communications purportedly from the Respondent concerning liability to surcharge land tax, dated between 11 December 2020 and 13 January 2021, were in fact genuine; and

3. The onus is on the taxpayer to inform himself of his obligations and to meet them ^[7] ; it is not the responsibility of the Respondent to make enquiries or ascertain the liability of the Applicant ^[8] .

4. No conduct or representation on the part of the Respondent can operate to establish an estoppel against him discharging his duty to administer a taxation law ^[9] .

   5. Section 58 Document, Tabs 1 to 14.

   6. Section 58 Documents, Tabs 15 and 18.

   7. Gupta v Chief Commissioner of State Revenue [2006] NSWADT 187 at [33]; Giunta v Chief Commissioner of State Revenue [2005] NSWADTAP 19.

   8. EK Anderson Investments Pty Ltd ATF Cacs Property Trust v Chief Commissioner of State Revenue [2012] NSWADT 132.

   9. BBLT Pty Ltd v Chief Commissioner of the Office for State Revenue [2003] NSWSC 1003

29. Neither the Respondent nor this Tribunal has any discretion to waive, or to grant a “one off” exemption from, surcharge land tax for which a taxpayer is liable. This is the case even though the imposition of the tax may impose hardship or a perceived unfairness on the taxpayer or result to some degree from circumstances that deprived the taxpayer of effective choice in relation to his absence from Australia. The position is set out clearly in the Tribunal’s reasons for decisions in Sjarifudin v Chief Commissioner of State Revenue [2021] NSWCATAD 347 at [45] to [48], Chu v Chief Commissioner of State Revenue [2021] NSWCATAD 238 at [32] to [34], Lawrence v Chief Commissioner of State Revenue [2022] NSWCATAD 266 at [38] and Du v Chief Commissioner of State Revenue [2022] NSWCATAD 329, at [39] to [47]. These decisions in turn rely, at least in dismissing the proposition that general notions or fairness or justice should allow the adjustment of tax liabilities, on the High Court of Australia’s unambiguous rejection of such a proposition in Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109, at 123.

30. Nothing on the face of the Assessments or in the supporting calculations appended to them raise any concerns as to the process by which the Assessments were calculated.

31. The correct and preferable decision, therefore, is that the Assessments be confirmed, taking into account the remission of all interest on 19 August 2024.

Orders

32. The Tribunal confirms under section 101(a) of the Taxation Administration Act 1996 the Respondent’s Assessments dated 6 September 2021, 6 January 2022, 6 January 2023 and 4 January 2024 listed in Column A below of surcharge land tax for the corresponding land tax years listed in Column B below in the amounts respectively set out in Column C below:

.

A Date of Assessment	B Land Tax Year	C Amount assessed for the Land Tax Year concerned ($)
6 September 2021	2017	1,235.60
	2018	3,743.30
	2019	4,118.30
	2020	4,358.30
	2021	4,615.00
6 January 2022	2022	4,978.30
6 January 2023	2023	11,483.30
4 January 2024	2024	12,663.30

**********

Endnotes

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

Registrar

Decision last updated: 30 September 2025