Menzie v Chief Commissioner of State Revenue

[2006] NSWADT 157

CITATION:	Menzie v Chief Commissioner of State Revenue [2006] NSWADT 157
DIVISION:	Revenue Division
PARTIES:	APPLICANT Gary John Menzie RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	056119
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	04/04/2006
DATE OF DECISION:	05/29/2006
BEFORE:	Verick A - Judicial Member
CATCHWORDS:	Duties Act - principal place of residence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Duties Act 1997
REPRESENTATION:	APPLICANT In person RESPONDENT M Twohill, Solicitor
ORDERS:	Decision under review affirmed

1 The principal matter for review is the objection decision made by the Respondent on 27 June 2005 disallowing an objection lodged on 16 June 2005 by the Applicant against an assessment of vendor duty made by the Respondent under the provisions of the Duties Act 1997 (the Act).

2 When this matter came up for directions, the Applicant sought to have the matter dealt with on the papers without a hearing. The Respondent had no objections to the course sought by the Applicant. Under section 76 of the Administrative Decisions Tribunal Act 1997 (the “ADT Act”) the Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. The Tribunal is satisfied that there are circumstances in which the hearing in this matter can be dispensed with.

3 The Tribunal had before it the documents filed by the Respondent pursuant to section 58 of the ADT Act and the application made by the Applicant with relevant attachments.

4 The facts are not in dispute and are set out in correspondence supplied by the Applicant. The Applicant entered into a contract to purchase Unit 4, 69-74 North Steyne, Manly (“the property”) just before he commenced an overseas appointment in Hong Kong on 12 December 2002. Settlement of the purchase of the property took place on 16 December 2002. The Applicant continued his overseas appointment until 31 January 2005. During the Applicant’s whole duration of his overseas posting, the property was let on a short-term holiday basis and also used by the Applicant on a short-stay basis on a few occasions when visiting Australia. The applicant exchanged the contract for sale of the property on 19 March 2005 and the sale was completed on 29 April 2005.

5 On 29 April 2005 the Applicant paid the Respondent $29,250 vendor duty in relation to the sale of the property but, in a letter dated 16 June 2005, the Applicant lodged an objection to the imposition of vendor duty. The objection was disallowed and the Applicant sought a review of the decision made by the respondent.

6 The basis of the application for review was that the property was purchased just prior to moving to Hong Kong in December 2002 to be used as his principal place of residence but that, when posted back to Australia at the beginning of 2005, his family’s “requirements had changed” as he was re-located to Queensland.

7 At the relevant time the law allowed an exemption from vendor duty in relation to the sale by a person of his or her principal place of residence. The exemption set out in s 162B of the Act was, however, only available if certain use and occupation conditions were satisfied. The exemption applied if the vendor was able to satisfy any one of the three tests set out in s 162B(3)(a), (b) and (c) at the relevant time.

8 The three “use and occupation” tests were (a) that the property had been continuously used and occupied by the person for residential purposes and for no other purposes for a period of at least 2 years ending immediately before the date on which, but for exemption, the liability for vendor duty arose, or (b) the property had been used for residential purposes and for no other purposes for a period of at least 3 years in the 5 years ending immediately before the date on which, but for the exemption, the liability for vendor duty arose and during those three years no other property was used and occupied by the person for residential purposes, or (c) if the vendor became an owner of the property less than 2 years before the date on which, but for the exemption, a liability arose, and the Chief Commissioner was satisfied that the property, and no other property, had been continuously used and occupied by the person for residential purposes and for no other purposes since the vendor became owner of the property.

9 Unfortunately, the Applicant did not use and occupy the property as his principal place of residence for a sufficient period of time to satisfy any of the tests set out in s 162B(3). The Applicant’s view of a principal place of residence was essentially based on “ownership and the potential use” of the property. But the tests require actual use and occupation. The applicant’s principal place of residence during the whole duration of his overseas posting was in Hong Kong. The applicant’s occasional visits to the property on a short-stay basis did not make the property his principal place of residence.

10 The decision under review must accordingly be affirmed.