Kolln v Chief Commissioner of State Revenue
[2012] NSWADT 269
•18 December 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Kolln v Chief Commissioner of State Revenue [2012] NSWADT 269 Hearing dates: 19 July 2012, written submissions closed 24 October 2012 Decision date: 18 December 2012 Jurisdiction: Revenue Division Before: J Block, Judicial member Decision: The decision under review is affirmed
Catchwords: Use of property as principal place of residence - onus - Legislation Cited: Land Tax Management Act 1956 Cases Cited: Chief Commissioner of State Revenue v Aldridge & Anor (RD) [2003] NSWADTAP 50;
Kolln v Chief Commissioner of State Revenue [2011] NSWADT 127;
Kolln v Chief Commissioner of State Revenue [2011] NSWADTAP 58;
Chief Commissioner of State Revenue v Aldridge & Anor (RD) [2003] NSWADTAP 50;
Levene v IRC [1928] AC;
Gregory v DC of T (1937) 57 CLR 774 at 778;
FC of T v Miller (1946) 73 CLR 93;
Chief Commissioner of State Revenue v Ghali [2012] NSWADTAP 20;
Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656;
Stoke-On-Trent Borough Council v Cheshire County Council [1915] 3 KB 699;
Fox v Stirk and Bristol Electoral Registration Officer, Ricketts v Cambridge City Electoral Registration Officer [1970] 2 QB 463;
Zakariya v Chief Commissioner of State Revenue [2003] NSWADT 26;
Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2011] NSWCA 366;
Aronstan v Chief Commissioner of State Revenue [2008] NSWADT 8;
Applewood Residential Developments Pty Ltd v Commissioner of State Revenue (Vic) [2006] VSCA 207;Category: Principal judgment Parties: Ian Kolln (Applicant)
Chief Commissioner of State Revenue (Respondent)Representation: Counsel
James Mitchell (Respondent)
I Kolln (Applicant in person)
Crown Solicitor (Respondent)
File Number(s): 126005
REasons for decision
Part A Introduction and background.
The Applicant seeks the review of decisions made by a delegate of the Respondent (who is usually referred to in these reasons as the "Chief Commissioner) on 11 November 2011 and 1 February 2012 in respect of the denial of the Applicant's claim that he was entitled, in relation the 2011 land tax year ("the relevant year"), to a principal place of residence ("PPR") exemption in respect of property situate at 22 Green Point Road, Oyster Bay ("the Green Point Property").
The Tribunal had before it the documents lodged pursuant to section 58 of the Administrative Decisions Tribunal Act 1997; in addition it admitted exhibits as follows:
Exhibit A1; a statement (described as a submission) by the Applicant dated 16 May 2012;
Exhibit A2; a statement (also described as a submission) by the Applicant dated 16 May 2012;
Exhibit A3; a notice of assessment in respect of land tax in respect of the 2005 land tax year; (as indicated at the hearing the tender of this exhibit by the Applicant was accepted despite the fact that its relevance was distinctly dubious).
Exhibit A4; a statement of evidence by the Applicant dated 17 July 2012;
Exhibit A5; a statement of evidence by Gillian Kolln dated 16 July 2012; (this exhibit was admitted with the consent of the Chief Commissioner and despite the fact that Gillian Kolln was not available for cross-examination); a consideration of Exhibit A5 indicates that its content is of little relevance.
Exhibit R1; a summons to produce documents issued by the Chief Commissioner addressed to Sydney Water together with the documents produced in answer to that summons;
Exhibit R2; a summons to produce documents issued by the Chief Commissioner addressed to Energy Australia.
The Tribunal received written submissions by the Chief Commissioner prior to the hearing; those submissions dated 11 May 2012 are referred to as "RS". At the conclusion of the hearing on 19 July 2012, a time-table was directed in respect of final submissions. Because the Applicant was not legally represented the Chief Commissioner was directed to file final submissions first and within 6 weeks; the Applicant was then allowed 6 weeks within which to reply; finally the Respondent was entitled to reply to the Applicant's submissions within a further period of 4 weeks. Final submissions by the Respondent ("RFS") were received on 29 August 2012; final submissions by the Applicant ("AFS") were received (belatedly) on 23 October 2012. The Respondent has advised the Tribunal that he does not intend to exercise his right of reply to AFS.
The term "Shipwright Place Property" refers to a house at 3 Shipwright Place Oyster Bay; the Applicant and his wife Gillian Kolln ("Gillian) owned the Shipwright Place Property as tenants in common in equal shares until it was sold in 2011; the Tribunal was not advised when precisely the Shipwright Place Property was sold but the Applicant's evidence was that the sale was completed in October 2011. The evidence before the Tribunal indicates that the Shipwright Place Property was the family home in which the Applicant and Gillian and their children resided for a number of years after its acquisition. The Applicant and Gillian had become estranged at some point in time prior to the taxing point in respect of the relevant year (31 December 2010 and which is referred to hereafter in these reasons as "the taxing date") and it is conceivable that they are no longer married. It is would seem that the estrangement originated in or around 2008 and whereafter the Applicant and Gillian occupied separate rooms in the Shipwright Place Property.
The Shipwright Place Property and the Green Point Property are very close to each other; the evidence indicates that to walk from one to the other is a matter of a few minutes only. The evidence before the Tribunal indicates that the Applicant's interest in the Green Point Property was acquired by inheritance.
Put in brief terms at this early stage the Applicant's evidence was that on Christmas day in 2010 he was informed that he would not be spending the day with his family. That news was upsetting to him; he spent that night in the Green Point Property into which he had moved some of his personal effects and including a single bed. Again in brief terms at this stage the Applicant thereafter and until the Shipwright Place Property was sold in 2011 sometimes slept in the Shipwright Place Property and sometimes in the Green Point Property; he referred in this context to the fact that he used the swimming pool at the Shipwright Place Property. As I have said there is no clear evidence before the Tribunal as to when the Shipwright Place Property was sold although it would seem that it was ready for sale in the first half of 2011 and that it must have been sold before October 2011 and when the sale was completed.
The Applicant had previously sought and been refused a PPR exemption in respect of the Green Point Property for the 2005, 2006, 2007, 2008 , 2009 and 2010 land tax years. His application was heard by Judicial Member Verick who found against him; see Kolln v Chief Commissioner of State Revenue [2011] NSWADT 127; the Applicant unsuccessfully appealed that decision; see Kolln v Chief Commissioner of State Revenue [2011] NSWADTAP 58. The land tax years referred to in this clause 8 are referred to as "the prior years". The section 58 documents include a transcript in respect of the hearing referable to the prior years and references in these reasons to 'Section 58" followed by a page number relate to that transcript. During the course of this hearing the Applicant said that his evidence at the hearing before Judicial Member Verick ("the prior hearing") had been truthful. The transcript in respect of the hearing of this matter indicates (incorrectly) that the presiding member was Judicial Member Frost.
Notwithstanding the fact that the Applicant was informed that the prior years were of limited relevance he nevertheless referred to them on a number of occasions. It is for this reason presumably that AFS contains a number of references to the prior years. It is relevant in this context to note that it is hard to describe AFS as an answer to RFS and that the relevance of some of its content is hard to comprehend. That the Chief Commissioner decided not to exercise his right of reply to AFS is not surprising. AFS demonstrates that the Applicant did not appear to appreciate that he bore the onus of demonstrating that the Chief Commissioner should have been satisfied that he resided in the Green Point Property as his PPR at the taxing date.
The Applicant was assessed for land tax in respect of the Green Point Property for the relevant year on 21 January 2011 and on 3 March 2011 he lodged an objection. On 11 November 2011 the Chief Commissioner allowed the objection as to 50% and having regard to the fact that the Applicant owned the Green Point Property as to 50%. The objection was otherwise disallowed on the basis that the Chief Commissioner did not agree that the Applicant used and occupied the Green Point Property as his PPR on the taxing date.
During the course of the hearing mention was made of the fact that at the taxing date the Applicant had not obtained an occupation certificate in respect of the Green Point Property in relation to a home constructed by him on it and in respect of which, so the Applicant contended, construction was completed on or about Christmas 2010. No such occupation certificate had been received by the date of the hearing. . This aspect, which is referred to in RS, and which was referred to on a number of occasions in evidence became irrelevant in the light of a withdrawal by the Chief Commissioner of his contentions as regards the occupation certificate. In consequence of that withdrawal the Chief Commissioner withdrew a number of contentions contained in RS.
Although at the prior hearing the Applicant was represented by senior counsel he elected at this hearing to be self-represented. As the transcript demonstrates he did not find it easy to do so. His evidence was frequently repetitious of (irrelevant) matter and was vague and imprecise as to a number of important and relevant aspects.
The legislation which is relevant in this context is clause 2 of Schedule 1A to the Land Tax Management Act 1956 ("the Act") which reads as follows:
2 Principal place of residence exemption
(1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing 1 January 2005 or any succeeding year, if the land is:
(a) a parcel of residential land, or
(b) a strata lot or, subject to this Schedule, land comprised of 2 or more strata lots.
(2) Land is not used and occupied as the principal place of residence of a person unless:
(a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or
(b) in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person's principal place of residence.
The Applicant's evidence was that he first moved into the Green Point Property in the sense that he slept in it on Christmas Day 2010. This being so he could not and did not contend that he could satisfy clause 2(2) (a) of Schedule 1A to the Act. The Applicant was thus obliged to rely on section 2(2)(b) of Schedule 1A which would allow the exemption sought if the Chief Commissioner were satisfied that at the taxing date the Applicant was in occupation of the Green Point Property as his PPR. It is sometimes suggested that this provision confers a discretion on the Chief Commissioner; any such view is incorrect; that this is so arises from the analysis of s. 3(3)(b), the predecessor provision to clause 2(2)(b), in Chief Commissioner of State Revenue v Aldridge & Anor (RD) [2003] NSWADTAP 50, where the Appeal Panel held at [26]:
"Section 3(3) (b) of the Act does not confer a true discretion on the Chief Commissioner. If the evidence of the factual circumstances supports that a particular parcel of land or a flat is used and occupied by a person as the person's principal place of residence (as defined in Section 3(1) of the Act) as at midnight on 31 December in a particular year, the Chief Commissioner must be "satisfied" of that fact. If the factual circumstances do not support that a parcel of land or a flat is used and occupied by a person as the person's principal place of residence as at midnight on 31 December in a particular year, the Chief Commissioner cannot be "satisfied" of that fact."
Put in very broad terms at this early stage the Applicant first slept in the Green Point Property on Christmas night in 2010. At that point in time he had moved some of his effects and including a single bed into the Green Point Property and for this purpose had received some help from his children. He said that subsequently other effects were moved into the Green Point Property and the evidence suggests that those moves occurred at times in 2011. The evidence before the Tribunal does not establish what precise items were moved and when they were moved. Even more to the point is the fact that, as the Applicant admitted; he thereafter sometimes slept in the Green Point Property and sometimes slept in the Shipwright Place Property and which continued to contain some and (possibly) the majority of his effects. He made mention of the fact that he made use of the swimming pool at the Shipwright Place Property. He received post at the Shipwright Place Property and said that it was convenient for him to do so given that the two properties were so close. The Applicant was unable to furnish any details as to when he slept at the Green Point Property and when he slept at the Shipwright Place Property. Nor was he able to furnish any evidence as to when he established accounts in respect of utilities and the like at the Green Point Property. Although as I have mentioned he said that he was helped in respect of the moving of effects by his children he did not call any of them to give evidence. He was, during the hearing, offered a postponement to enable him to procure the evidence needed by him but declined it. It would seem, although this too is unclear as to relevant dates, that the Shipwright Place Property was made ready for sale in the first half of 2011, that it was then sold and that completion of the sale took place in October 2011 and so that the Applicant's use of the Shipwright Place Property of necessity ceased in 2011. That the Applicant did not call Gillian to give evidence is in the circumstances understandable but his failure to call any of his children cannot be so categorised
Part B. The evidence of the Applicant in specific terms.
Part A contains a brief summary of the evidence of the Applicant. The content of RFS as to the Applicant's evidence (and which has been checked and found to be correct) is, notwithstanding that it involves some degree of repetition. contained in some detail in clause 2 of RFS as follows;
Background
2.1 The Applicant's principal place of residence was the Shipwright Place property from July 1992 until at least 31 December 2009: see Kolln v Chief Commissioner [2011] NSWADTAP 58; [2011] ADT 127. During that period he and his wife and children lived in that property, although he and his wife separated at some time during that period.
2.2 In 2008 the Applicant obtained approval for the construction of a residential dwelling on the Green Point Road property, a property in close proximity to the Shipwright Place property and a property that he owned.
2.3 On 18 November 2010 carpet was laid in the Green Point Road property (transcript 46.30) and towards the end of that year the residential premises reached practical completion albeit that an occupation certificate was not issued for the residence on the property in the 2011 land tax year.
2.4 Subsequently the Applicant and his son moved a single bed and lounge chairs from the Shipwright Place property to the Green Point Road property: transcript 33.38; 46.5-46; 47.13.
2.5 On 25 December 2010 the Applicant slept for the first time in the Green Point Road property on the single bed (transcript 45.47; s 58 at 39), having slept the previous night and most of December 2010 at the Shipwright Place property (transcript 49.31; s 58 at 40.15). The Applicant decided to sleep at the Green Point Road property because he had been excluded from family celebrations on Christmas Day and this caused him trauma or upset: transcript 35.3; 44.10; 49.43.
2.6 The Applicant's double bed, in which he customarily slept, remained in the Shipwright Place property and the Applicant slept in that double bed from time to time until it was moved sometime in 2011 (the Applicant claims this occurred in January 2011) to the Green Point Road property: transcript 45.44; 54.12; s 58 at 39. The Applicant and his son moved a washing machine from the Shipwright Place property to the Green Point Road property at some time in 2011 (the Applicant claims this occurred in January 2011) so that he no longer needed to use the washing machine on the Shipwright Place property: transcript 48.33. The Applicant acquired a refrigerator for the Green Point Road property: transcript 56.12.
2.7 In February 2011 the Applicant's wife moved out of the Green Point Road property and settled in a southern suburb of Sydney: transcript at 19; 59.21. As the Applicant's children had already left home this left the Green Point Road property and Shipwright Place property free for the Applicant to use and occupy as his residences, albeit that a decision was made some time prior to June 2011 to sell the Shipwright Place property.
2.8 The Applicant progressively moved some of his personal belongings and effects to the Green Point Road property as he needed them: transcript 46.5-46; 47.41; 48.2-10; 57.29; 57.47. Specifically, the Applicant needed his work clothes so that he could work on the house and those clothes were left at the Green Point Road property whilst the remainder of his belongings were kept at the Shipwright Place property: transcript 47.41.
2.9 The Applicant completed moving his belongings from the Shipwright Place property to the Green Point Road property sometime after the middle of May 2011: s 58 at 40.12.
2.10 In cross examination at the hearing on 19 July 2012 the Applicant described his use and occupation of the Shipwright Place property and Green Point Road property in the following exchange:
Q. But am I correct in saying you alternated between - I'm not asking you to estimate days but you seem to me to have been using both the properties as a place to sleep after Christmas Day 2010, is that a correct inference to draw or is that incorrect?
A. It might be a bloody minded - might be a stubbornness, not wanting to relinquish my place in the house, I don't know. Yes. There was a pool there as well, Shipwright Place, so I didn't - I had amenities there, I could-
Senior Member Block
Q. Did you sleep in both places, and the answer is yes, Shipwright had amenities that were useful to you?
A. Yes, it had a pool. Summertime.
Q. A swimming pool?
A. Yes.
2.11 The Applicant continued to frequent the Shipwright Place property prior to its sale in October 2011, swimming and sleeping there occasionally and collecting his mail from time to time. He used the washing machine at the Shipwright Place property: s 58 at 40.16. He did not see any need to change his mailing address because the Shipwright Place property was in close proximity to the Green Point Road property and he could easily collect his mail from that property.
2.12 In April or May of 2011 the Applicant moved out of the Shipwright Place property so that his son could prepare the residence for sale in June 2011: transcript 20.6.
2.13 In June 2011 the Shipwright Place property was listed for sale. Some of the Applicant's furniture was left in the Shipwright Place property so that the house could be marketed with furniture: transcript 53.13.
2.14 The sale of the Shipwright Place property completed in October 2011: transcript 20.17.
2.15 Again in cross examination the Applicant described his use and occupation of the Shipwright Place property up until that time (transcript 54.45-55.9; 58.22):
Q. But you still felt free to - I mean you owned 50% of the house but you still felt free to come and go between the two properties, between Shipwright and Green Point Road in terms of your living arrangements?
A. Yes.
Q. So when did that come to an end, when did you--
A. On settlement. I gave the key up.
Senior Member Block
Q. That's October 2011?
A. Yes.
...
Q. There was no specific time in that time period 18 November 2010 to April 2011 where you could say that you abandoned your living arrangements at Shipwright Place, is that the case?
A. Cessation was the settlement date.
Q. So that was?
A. October 2011.
Q. So am I correct in saying that's when you abandoned that residence? Or relinquished that residence?
A. That's no longer associated with me, that's it.
Part C. The law and including case law
The case law submissions of the Chief Commissioner are (largely) contained in 3.1 to 3.7 of RFS as follows:
3.1 The Applicant has the onus of demonstrating that the Green Point Road property was used and occupied by him as his principal place of residence on and around midnight on 31 December 2010: Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656 at 660-661.
3.2 Based on the oral testimony of the Applicant there are three principal matters (in addition to those referred to in earlier submissions) that the Tribunal must be satisfied of in order for the objection decision to be varied.
3.3 First, the Applicant needs to demonstrate that on or around 31 December 2010 the Green Point Road Property was his residence.
3.4 In order for the Green Point Road property to be considered the Applicant's residence on or around 31 December 2010 it must have been a place where he dwelt permanently or for a considerable time and been his settled or usual abode: Levene v IRC [1928] AC 217 at 222-3 per Viscount Cave LC; applied in Gregory v DC of T (1937) 57 CLR 774 at 778 per Dixon J; FC of T v Miller (1946) 73 CLR 93 at 99 per Latham CJ; applied in Chief Commissioner of State Revenue v Ghali [2012] NSWADTAP 20 at [27].
3.5 In Stoke-On-Trent Borough Council v Cheshire County Council [1915] 3 KB 699 at 706, a case concerning the proper maintenance of a minor under the poor laws of England, a matter determined by reference to the concept of residence, Ridley J relevantly observed:
The place of residence of a person is the place where he eats, drinks and sleeps. The definition is to be found in Rex v Inhabitants of North Curry, a somewhat ancient authority, and a decision which no doubt related to a different statute; but it has been recognized for many years. In that case Bayley J said : 'It is also stated in Nolan's Poor Laws, 3rd ed, p 72, that personal property cannot be rated unless the proprietor resides in the parish. Then the question is, what is the meaning of the word 'resides'? I take it that that word, where there is nothing to show that it is used in a more extensive sense, denotes the place where an individual eats, drinks, and sleeps, or where his family or his servants eat, drink, and sleep'. That is the generally the accepted meaning of the word.
If a person leaves his residence for the purpose of permanently living elsewhere, then he changes his residence. In the present case if the youthful offender's residence with Broad had been temporary, and if the real place where he ate, drank, and slept had been in Stoke-upon-Trent, he would not have lost his residence there by going to stay at a farm for a temporary purpose. If, for example, he had gone for a few days in order to get country air, his residence would have still been with his father at Stoke-upon-Trent. But the boy's residence at the farm with Broad was not temporary. His father lived in Stoke-upon-Trent, but the fact that the boy had a suit of clothes there did not make him a resident there. It seems to me that he was not in statu pupillari, but was employed by the farmer in an adult capacity ; and it is impossible to say that he was not residing with the farmer because his residence there was of a temporary nature or because he went to his father's house to change his clothes.
3.6 In Fox v Stirk and Bristol Electoral Registration Officer, Ricketts v Cambridge City Electoral Registration Officer [1970] 2 QB 463 a question arose as to the entitlement of students at the Universities of Bristol and Cambridge respectively to be registered on the register of electors for the university towns, as they were not resident there on the qualifying date. In the course of his judgment Lord Denning MR said at 475:
I prefer to go by the ordinary meaning of the word "resident." I follow Viscount Cave L.C. in Levene v Inland Revenue Commissioners [1928] AC 217 at 222, where he said:
... the word "reside" is a familiar English word and is defined in the Oxford English Dictionary as meaning "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place."
I would also take into account, as the statute says, the general principles formerly applied and have regard to the purpose and other circumstances of his presence at or absence from the address. Hence I derive three principles. The first principle is that a man can have two residences. He can have a flat in London and a house in the country. He is resident in both. The second principle is that temporary presence at an address does not make a man resident there. A guest who comes for the weekend is not resident. A short-stay visitor is not resident. The third principle is that temporary absence does not deprive a person of his residence. If he happens to be away for a holiday or away for the weekend or in hospital, he does not lose his residence on that account.
... People who have houses or flats in London and houses in the country can be on the register for both, because they are resident in both, but they can only vote at one. So also with students: they can be on the register for their homes and for their university towns, but they can only vote in one.
I think that a person may properly be said to be "resident" in a place when his stay there has a considerable degree of permanence.
3.7 More recently in Zakariya v Chief Commissioner of State Revenue [2003] NSWADT 26 the Tribunal considered facts similar to the present case in the context of a claim for a first home owner grant that was available for a property acquired and used as a principal place of residence within 12 months of acquisition. Needham JM considered whether a man, who bought a house as a consequence of his separation from his wife for the purpose of residing in it, could claim that the house was his principal place of residence notwithstanding that he did not live in the house until after the expiry of a tenancy in existence at the time of acquisition and upon expiry of that tenancy for two or three days a week in the remainder of the 12 month period. Needham JM relevantly observed:
15 The question then arises of whether the occupation on a temporary basis, between two to three days a week, when the applicant also maintained another residence, is sufficient to satisfy the eligibility criteria. The term "principal place of residence" is not defined in this Act.
16 The words "principal home" are used (but similarly not defined) in s 4 of the Social Security Act 1974 (Cth) and were examined by the Administrative Appeals Tribunal in RE: Dickeson and Secretary, Department of Social Security (1989) 18 ALD 58. The Tribunal looked at whether a disused grain shed constituted a "principal home". Although in that case the applicant lived permanently in the shed, and so the decision does not assist on the meaning of "principal" in relation to a temporary occupation, still the consideration of the phrase "principal home" is useful. The words "home" and "residence" are not exact synonyms, but they are sufficiently close for an examination of the context of one to be useful for the consideration of the other. The Concise Macquarie Dictionary (online, at defines "residence" as:
"1. the place, especially the house, in which one resides; dwelling place; dwelling..."
and "home" as:
2. a house, or other shelter that is the fixed residence of a person, a family, or a household.
3. a place of one's domestic affections ..."
17 In Dickeson, the Tribunal regarded "a substantial degree of occupation" as being persuasive (Herbert v. Byrne [1964] 1 All ER 882) and contrasted an occupation of a property by way of "occasional visiting" not constituting occupation of a home (Beck v. Scholz [1953] 1 All ER 814). A "home" is likely to be a "place where persons ordinarily eat, morning and night, and where they sleep, and in the case of adults have the characteristics of permanency" (Dickeson, at 61, citing Todd v. Nichol [1957] SASR 72).
18 The phrase "principal place of residence" does not assume that an applicant need only live at one place, but that she or he may have two or more places of residence. However, the grant may only be paid in relation to the "principal" one of those places; that which the applicant regards as his main residence or home. From the corroborating evidence such as the address of the applicant shown on the contracts for purchase and sale of the Eaglevale property, and from the lack of any corroborating evidence as to his use of the Eaglevale property as his mailing or other address, it appears that the Eaglevale property was a subsidiary and not a principal place of residence for the applicant.
Conclusion
19 Although the applicant did spend time occupying the property, he did not do so as his "principal place of residence" and thus he does not fulfil the residence criteria for the purposes of ss 7 and 12 of the Act.
As set out previously in these reasons the Applicant (correctly) conceded that he could not claim that he occupied the Green Point Property as his PPR for the period of 6 months prior to the taxing date. Clause 2(2)(a) of Schedule 1A cannot apply. The Applicant must of necessity (and as I have noted) rely on Clause 2(2)(b) of the Schedule.
The period of time between Christmas 2010 and the taxing date is a matter of some 6 days only; that this is so would not in my view render it impossible for a taxpayer to demonstrate that notwithstanding the short period of time involved the taxpayer had in fact become resident in a house by the taxing date. Clear evidence as to the fact that the taxpayer had altogether vacated his previous residence in order to move into the relevant home and that he had established suitable utility accounts and connections would presumably be necessary. Use and occupation in this context requires physical use and so that some notional or potential future or contemplated use cannot suffice. I refer in this context to the decisions of this Tribunal in respect of the prior years; I refer also to Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2011] NSWCA 366 at [23] and [24] per Allsop P, Campbell JA and Whealy JA agreeing; applied in Chief Commissioner of State Revenue v Ghali [2012] NSWADTAP 20 at [40]; see also Aronstan v Chief Commissioner of State Revenue [2008] NSWADT 8 at [39]-[43]. It is not sufficient that land be used or held for the purposes of a principal place of residence without it being so used and occupied on or around the taxing date: see Applewood Residential Developments Pty Ltd v Commissioner of State Revenue (Vic) [2006] VSCA 207 at [26] per Nettle JA.
In this particular case the Applicant has not furnished evidence of the nature required. He appears to seek to rely on the fact that he slept in the Green Point Property on Christmas night in 2010 and his claim that he moved some items such as a single bed into the Green Point Property before that Christmas day. In evidence before the Tribunal he conceded that his living arrangements after Christmas 2010 were shared between the Green Point Property and the Shipwright Place Property from and after Christmas 2010 until well into 2011. The evidence before the Tribunal is such that the Tribunal must find that not only did the Applicant not establish that the Chief Commissioner should have been satisfied that on the taxing date he occupied the Green Point Property as his PPR but rather that his evidence was such that the Chief Commissioner could of necessity only be satisfied that on the taxing date he did not occupy the Green Point Property as his PPR. That this is so is borne out by the fact that from and after the taxing day the Applicant continued to eat sleep and live at the Shipwright Place Property and the Green Point Property. The Applicant's evidence indicates that he did not at the taxing date relinquish his residence of the Shipwright Place Property. By way of one example, he did not tender any energy telephone or utility bills which might indicate that the Shipwright Place Property became vacant after Gillian departed in February 2011. As another example he did not tender any mail directions notices which might suggest that he was no longer living at the Shipwright Place Property. It follows that he has not demonstrated that he used and occupied the Green Point Property as his PPR at the taxing date.
In the circumstances the decision under review must be affirmed
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 18 December 2012
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