McKinney and Ors and Commisioner Of State Revenue - [2006] WASAT 216

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TAXATION ADMINISTRATION ACT 2003 (WA)

CITATION: MCKINNEY & ORS and COMMISIONER OF STATE REVENUE [2006] WASAT 216

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: DETERMINED ON THE PAPERS

DELIVERED : 1 AUGUST 2006

FILE NO/S: DR 42 of 2006

BETWEEN: JENNIFER JANE MCKINNEY
BRIAN W MCKINNEY
DAVID J O'NEILL
JANE A O'NEILL
Applicants
AND
COMMISIONER OF STATE REVENUE
Respondent

Catchwords:

Land tax - Land Tax Assessment Act 2002 (WA) - Strata plan prepared but not lodged or approved or registered as at midnight, 30 June of relevant year - Meaning of lot depicted on strata plan - Ownership of subject land - Use of land as at midnight 30 June in relevant year

Legislation:

Land Tax Assessment Act 1976 (WA)
Land Tax Assessment Act 2002 (WA), s 11(1), s 12, s 12(a), s 12(b), s 17, s 18, s 21
Strata Titles Act 1985 (WA), s 3(1), s 4(1), s 5
Strata Titles General Regulations 1996 (WA)

Valuation of Land Act (WA), s 4, s 23, s 23(5), s 26

Result:

The Commissioner's assessment of land tax is set aside
The matter is sent back to the Commissioner for assessment in accordance with the correct and preferable decision stated by the Tribunal in the reasons for decision published with this order

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Ms KH Loh

Solicitors:

Applicants: Self-represented
Respondent: State Solicitor

Case(s) referred to in decision(s):

Crisp v City of Mandurah (2002) 29 SR(WA) 135

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal decided that land proposed to be subdivided into two strata lots under the Strata Titles Act 1985 (WA) but, as at 30 June 2005, was not the subject of a strata plan lodged by the applicants for approval under that Act, or approved or registered under that Act, and was not constituted of separate "lots" for the purposes of the Land Tax Assessment Act 2002 (WA) as at 30 June 2005.
As a result, as at 30 June 2005, the subject land comprised one unsubdivided lot in respect of which the exemption from land tax of private residential property owned by individuals created by s 21 of the Land Tax Assessment Act 2002 applied.
The Tribunal allowed the review application, set aside the decision of the Commissioner of State Revenue that land tax was payable in respect of the subject land and sent back the matter to the Commissioner for determination in accordance with the finding of the Tribunal.

Issues

The issue to be determined by the Tribunal is whether the respondent was correct in granting a 50% partial exemption to land tax on Lot 1 of strata plan 46381, being the Certificate of Title Volume 2597 Folio 378, and Lot 2 of strata plan 46381, being the Certificate of Title Volume 2597 Folio 379, both lots having formerly comprised Lot 876 on Plan 7448, being Certificate of Title Volume 41 Folio…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKinney and Ors and Commisioner Of State Revenue

Details

AGLC: McKinney and Ors and Commisioner Of State Revenue [2006] WASAT 216
Case: [2006] WASAT 216
Decision Date: 1 AUGUST 2006

CaseChat Overview and Summary

The parties involved in this case are McKinney and others, who were the subjects of a land tax assessment by the Commissioner of State Revenue. The dispute centred around the interpretation and application of the Land Tax Assessment Act 2002 (WA), specifically in relation to a strata plan and the tax implications of the property as at midnight, 30 June of the relevant year. The matter was heard in the relevant tribunal.

The central legal issues revolved around the meaning of a lot depicted on a strata plan that was prepared but not lodged, approved, or registered by the specified deadline. The tribunal had to determine the ownership of the subject land and its use as at midnight, 30 June in the relevant year. This involved interpreting the statutory provisions concerning land tax exemption and the significance of the strata plan's status.

The tribunal concluded that the subject land was exempt from land tax as at 30 June 2005, based on the interpretation that the strata plan, despite being prepared, had not met the legislative requirements for lodging, approval, or registration. The tribunal found that the property's use and ownership status aligned with the criteria for exemption under the Act. Consequently, the tribunal set aside the Commissioner's assessment and directed that the matter be returned for reassessment according to the tribunal's interpretation, ensuring the land was exempt from land tax.

The final orders included setting aside the Commissioner's assessment of land tax and directing that the matter be returned to the Commissioner for reassessment in accordance with the tribunal's interpretation. This reassessment would ensure that the subject land remained exempt from land tax under the Land Tax Assessment Act 2002.

Orders

Orders of the court

1. The Commissioner's assessment of land tax in respect of the subject property the subject of these review proceedings, is set aside. 2. The Tribunal sends the matter back to the Commissioner for assessment in accordance with the correct and preferable decision stated by the Tribunal in the reasons for decision published with this order, so that the subject land is, as at 30 June 2005, exempt from land tax under the Land Tax Assessment Act 2002.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.