Smith v Chief Commissioner of State Revenue

[2005] NSWADT 170

CITATION:	Smith v Chief Commissioner of State Revenue [2005] NSWADT 170
DIVISION:	Revenue Division
PARTIES:	APPLICANT Graeme and Elizabeth Smith RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	056018
HEARING DATES:	07/07/05
SUBMISSIONS CLOSED:	07/07/2005
DATE OF DECISION:	08/01/2005
BEFORE:	Hole M - Judicial Member
APPLICATION:	Land tax exemption - principal place of residence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Land Tax Management Act 1956
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT S Benjamin, solicitor
ORDERS:	The land tax as assessed by the Chief Commissioner of State Revenue is correct. The property at Cessnock was the principal place of residence of the Applicants as at 31 December 2004.

Introduction

1 This application is made by the Applicants in respect of the assessment for land tax issued by the Chief Commissioner of State Revenue relating to their properties for the Land Tax year 2004.

2 The applicants resided at their home in Cessnock. On 21 August 2003, they completed the purchase of a property at Coal Point as their intended residence for their retirement. They moved into the Coal Point property in December 2004.

3 Following purchase of the Coal Point property, the Applicants attended to extensive renovation and remodelling of the property. Mr Smith attended to a large part of the work and by 31 December 2003 the house had been gutted. It was uninhabitable as at 31 December 2003 and the Applicants continued to reside in Cessnock.

4 By the end of 2004, the Applicants had completed sufficient work on the Coal Point property to be able to move in. Since then they have attended to repairing and painting the Cessnock property in preparation for its sale.

5 On 16 September 2004 the Office of State Revenue forwarded a letter to the Applicants, at Cessnock, enclosing an information booklet noting that the Applicants may be liable to pay land tax. The Applicants lodged an objection with the Office of State Revenue by facsimile. The Applicants followed up the objection and eventually received an acknowledgment by letter dated 17 November 2004. This letter confirmed verbal advice received from the Office of State Revenue that the land tax should be paid to ensure that interest was not accruing and in the event that the land tax was not payable then it would be refunded. The Applicants duly paid the assessed land tax.

6 The objection lodged by the Applicants was disallowed by the Office of State Revenue on 14 January 2005.

7 Land Tax on the Coal Point property was far greater than that which would have been payable on the Cessnock property. The Applicants were unaware that they may have been liable to pay land tax. They employed professionals in respect of their purchase and accounting advice.

Submissions

8 The Applicants submitted that they should have been advised by the Respondent about the potential land tax liability, as, if they had known they would have been alerted to the need to move into the Coal Point property prior to the end of 2004 to minimise the amount payable. They are a retired couple who do not read newspapers, rather, getting their information from television. They believed that more care should have been taken to give them the option to minimise the land tax payable.

9 The Applicants submitted that following receipt of the letter dated 16 September 2004 they immediately tried to find a change to their situation which would have helped their unfortunate liability arising on the more valuable property. The Applicants expressed a view that it was unjust that they were not able to avail themselves of minimising the land tax payable.

10 The Respondent’s representative submitted that the Applicants had been granted an exemption in respect of the Cessnock property, as their principal place of residence and that it was clear that the Coal Point property was intended to be their principal place of residence. The exemption available pursuant to Schedule 1A Clause 6(7) of the Land Tax Management Act 1956 is only available in respect of one residential property. This exemption is not available in respect of two residential properties simultaneously.

11 The Applicants paid the Land Tax assessed promptly. There is no doubt that if they had been aware of the liability they would have arranged their renovations and remodelling program to allow them to move into Coal Point prior to 31 December 2004 thus minimising their liability. Unfortunately they were unaware of the issue and could not therefore minimise the land tax payable.

12 The Land Tax management Act 1956 places the onus of lodging a land return on the owner of land. The Chief Commissioner of State Revenue is required to widely advertise the requirement that a land tax return should be lodged and the Chief Commissioner of State Revenue does this by advertisement in newspapers and other media. Where possible the Chief Commissioner of State Revenue forwards information directly to owners of land, when information comes available through cross-references to other Government Departments.

13 There is no legislative facility or discretion available to reassign the location of the principal place of residence to minimise the land tax assessable, in isolation of the facts of the situation

Orders

14 I find that:

The land tax as assessed by the Chief Commissioner of State Revenue is correct. The property at Cessnock was the principal place of residence of the Applicants as at 31 December 2004.