Tobin v Chief Commissioner of State Revenue

[2009] NSWADT 188

CITATION:	Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188
DIVISION:	Revenue Division
PARTIES:	APPLICANT June Rose Tobin RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	086140
HEARING DATES:	2 July 2009
SUBMISSIONS CLOSED:	2 July 2009
DATE OF DECISION:	20 July 2009
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Land Tax exemption- principal place of residence
LEGISLATION CITED:	Land Tax Management Act 1956 Taxation Administration Act 1996
CASES CITED:	McNally & Anor v Commissioner of State Revenue [2003] NSWSC 1118 Mesiti v Chief Commissioner of State Revenue [2003] NSWADTAP 57 Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 Chief Commissioner of Taxation v Ferrington [2004] NSWADTAP 41 Chief Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21
REPRESENTATION:	APPLICANT In person RESPONDENT A Gerard, solicitor
ORDERS:	The Land Tax assessment under review is confirmed.

1 June Tobin (‘otherwise referred to as the Applicant’) has applied to the Tribunal for the review of a decision of the Chief Commissioner of State Revenue (‘the Respondent’), disallowing Mrs Tobin’s objection to a notice assessing her as being liable for the payment of Land Tax on her property in Watsons Bay on the ground that it was not her principal place of residence at the relevant time.

Background

2 Mrs Tobin and her husband, Brian Tobin, are the joint owners of a property in Mooyi Place, Giralang in the ACT purchased in June 1991 (‘the Giralang property’). Mrs Tobin inherited a property in Cliff Street, Watsons Bay (‘the Watsons Bay property’) following her mother’s death on 1 July 2004, and the property was transferred into Mrs Tobin’s name in January 2005.

3 On 30 April 2008, the Respondent issued a Land Tax notice of assessment in respect of the Watsons Bay property for the Land Tax years 2006, 2007 and 2008 totalling $46,057.25 (plus interest) and nominating a date for payment of 10 June 2008. By letter dated 31 May 2008, Mrs Tobin objected to this assessment on the ground that she considered the Watsons Bay property to be her principal place of residence (‘PPR’).

4 On 30 October 2008, a delegate of the Respondent decided to disallow the objection on the ground that the Giralang property was Mr and Mrs Tobin’s PPR for the relevant Land Tax years. On 30 December 2008, Mrs Tobin lodged an application for a review of that decision by the Tribunal.

The Relevant Legislation

5 Pursuant to section 100(3) of the Taxation Administration Act 1996, an applicant for review bears the onus of proving his/her case in the Tribunal.

6 During the relevant period, pursuant to sections 7, 8 and 9 of the Land Tax Management Act 1956 (‘the LTM Act’), Land Tax was chargeable on the taxable value of land that was not exempt based on the ownership of the land as at midnight on the 31 December of each preceding year for which Land Tax was to be levied. Thus, Mrs Tobin, being the registered owner of the Watsons Bay property, was presumed to be liable for Land Tax on that land for the 2006, 2007 and 2008 Land Tax years based on her ownership of the land on 31 December of each preceding year, unless the land was exempt from tax.

7 Section 10(1) of the LTM Act provides, relevantly, that except where otherwise provided in the Act, certain lands shall be exempted from taxation under the Act, including:

(r) land that is exempt from taxation under the principal place of residence exemption, as provided for by Schedule 1.

8 ‘Principal place of residence’ is defined in section 3(1):

" principal place of residence " of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person.

9 Schedule 1A of the LTM Act provides relevantly:

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.




(3) If the owner of land is entitled to the exemption conferred by this clause, no other person is liable to be assessed for taxation under this Act in respect of the land during the period of the owner’s entitlement to the exemption.

(4) The exemption conferred by this clause is referred to as the "principal place of residence exemption".

(5) ...

10 Clause 12 provides that for the purposes of the PPR exemption, only one residence may be treated as the PPR of all members of the same family. ‘Family’ is defined as meaning a person and his/her spouse, and the dependent children who ordinarily reside with them.

11 Mrs Tobin objects to the assessment of Watsons Bay property for Land Tax purposes on the ground that the land is exempt by reason of the PPR exemption. The Respondent submits that this exemption does not apply for the Land Tax years in issue.

The Applicant’s Evidence

Mrs Tobin

12 Mrs Tobin provided a statement dated 11 March 2009 and gave oral evidence at the hearing. She said she inherited the Watsons Bay property from her mother who died on 1 July 2004 aged 92. The formal transfer of the property into Mrs Tobin’s name took place on 18 January 2005. The house is a weather board/fibro cottage about 88 years old standing on a 263 square metre corner block. The property has been owned and occupied continuously by her family for the past 72 years. It is not an investment property, and has never been used for business purposes or rented. It was her family home: she was born there and lived there until 1960 when she and Mr Tobin were married. Thereafter, they lived in various places before moving to Canberra in 1970. Mrs Tobin said she and her husband purchased the Giralang property in their joint names in 1991, and she lived there until 2005. Mr and Mrs Tobin have three adult children: two sons, one living in Port Hedland in Western Australia and the other living principally in Canberra, and a daughter who also lives in Canberra.

13 Mrs Tobin said her move to the Watsons Bay property in 2005 was a gradual one, and not completed on any particular date. The property is now her PPR. It is fully furnished, has food supplies and contains clothing, toiletries and personal effects such as family photographs both for herself and her husband. Mrs Tobin said the house is comfortable enough, but its age and construction mean that money spent on refurbishment might be better spent on rebuilding, which they began exploring in 2006. The downturn in property values and the share market have forced them to put the project on hold for the moment.

14 Mrs Tobin said she and her husband furnished the Giralang property and most of that furniture remains there. Most of the furniture at the Watsons Bay property was her mother’s, but most of Mrs Tobin’s personal belongings are there. If Mrs Tobin travels to the ACT, she sometimes stays at the Giralang property and sometimes with her daughter or son. She does not often spend weekends in the ACT – usually only for family occasions or school holidays. She still goes to the same doctor and dentist in Canberra whom she has been consulting for the past 30 years. Her Medicare records also still show the Giralang address.

15 Mrs Tobin said that when her husband is in the ACT, he stays at the Giralang property, where he has a fully equipped office – with computer, fax, telephone etc - from where he works. Nobody else uses the Giralang property. Mr Tobin is employed by Keenyear Pty Ltd, a recruitment company owned by their son, Greg Tobin, which specialises in the placement of technical staff with Commonwealth Government agencies. Her husband does not have any set hours of work, but usually works about three days a week. She rarely goes with him to the Giralang property when he is working there. Mrs Tobin said she had also performed some casual work for Keenyear - answering the phone, filing etc as required - but this ceased by the end of 2006 because she did not spend sufficient time in Canberra to justify it. Her husband’s office is in the ACT because Keenyear’s business is there, but it could be located elsewhere.

16 Mrs Tobin was asked about her son-in-law Peter Heaney using the Watsons Bay property. She said he has never lived there. He has a business in Canberra and lives there with his wife and two children. He sometimes stayed a night at the Watsons Bay property when in Sydney on business, but not more than once in three months and not at all in the past two years. Mrs Tobin said she was always present when he stayed.

17 Mrs Tobin was asked why bills for utilities and rates for the Watsons Bay property were addressed to the Giralang property. She said this was a matter of convenience because her husband paid the bills from there. The exception was the account for the telephone, which was in her mother’s name. After she and her husband had a meeting with the Office of State Revenue (‘OSR’), following the issuing of the Land Tax notice of assessment on 30 April 2008, they changed the address to which bills for all the utilities and the rates were sent to Watsons Bay. They have a Post Office box there because mail was being ÒpinchedÓ from their postbox. Mrs Tobin has also registered the Watsons Bay property as her address with the Australian Electoral Office and Australian Taxation Office and for the purposes of her NSW Seniors Card.

18 Mrs Tobin agreed that she and her husband have home building and contents insurance for the Giralang property. There has never been contents insurance for the Watsons Bay property. She does not recall when she changed the home building insurance into her name. Her husband owns a 2003 Ford Fairmont purchased in 2005, registered in the ACT and insured with the NRMA, with the garaged address being the Giralang property. Both she and her husband are listed on the policy as drivers of the car. Mrs Tobin said the car is most often at the Giralang property. She sometimes drives it, but rarely in Sydney. Mrs Tobin previously held an ACT driver’s licence but obtained a NSW licence in about February 2009.

19 Mrs Tobin was asked about a comparison of electricity, gas and water usage for the Giralang and the Watsons Bay properties prepared by the Respondent from information supplied by Mrs and Mrs Tobin. (The comparison shows the Giralang property has significantly greater usage of all three utilities.) Mrs Tobin said she does not disagree with the figures. The greater utility usage for the Giralang property is not because they spend more time there. It is because of the requirements of the Canberra climate: the Giralang property has air conditioning that is used in the summer, and ducted gas heating that runs for six to eight hours a day in the winter, and Canberra has been in drought for the past seven years so that the garden needs watering. By contrast, it rains in Sydney and the climate in Sydney affords a more pleasant lifestyle.

20 Mrs Tobin was asked about her spending. She said she uses a joint account with the Commonwealth Bank and cash for everyday purposes.

Mr Tobin

21 Mr Tobin provided a statement dated 11 March 2009 and gave oral evidence at the hearing. He said he has been employed by Keenyear Pty Ltd, a company owned by their son Greg, for the past eight years. (Greg Tobin provided a letter dated 26 January 2009 confirming this and giving a brief description of Keenyear’s business and his father’s work and employment conditions.) Mr Tobin works from a home office in the Giralang property, which is equipped by Keenyear with two desks, two computers, a scanner, mobile whiteboard, laser printer, three filing cabinets and four bookcases – it is a fully functioning office. Keenyear employs contractors and sells their services to government agencies. Mr Tobin’s work is clerical in nature. He works as required, usually averaging about three days a week, except at the end of the financial year when he might work the equivalent of full-time hours for two weeks. When he is working, he stays at the Giralang property. It is not the case that when he is there his wife is also there. Mr Tobin acknowledged that while his prime reason for being in the ACT is his work for Keenyear, he and his wife also have family there.

22 Mr Tobin stated that he considers the Watsons Bay property to be his PPR. The flexible working arrangement with Keenyear means that he can choose to live in the Watsons Bay property with his wife and travel to Canberra as required to undertake his work commitments. He estimated that, taking into account travel, he spends approximately equal time in Watsons Bay and working in Giralang.

23 Mr Tobin said it would be possible for him to work from a home office in Sydney, but he has not moved his office to the Watsons Bay property because he and his wife plan to demolish and rebuild the house. They had an architect prepare preliminary drawings and a quotation in 2006, but have not yet lodged a development application with the Council. Mr and Mrs Tobin propose to finance the building work from the sale of the Giralang property, but they have not yet listed it for sale. All their spare money is invested in shares. Their plan is to sell the shares and obtain bridging finance, living in the Giralang property until the building work is completed, at which point they will sell that property.

24 Mr Tobin said he still attends a doctor and dentist in the ACT and his Medicare records show his address as the Giralang property. In 2005, he decided to have all utility bills for both properties sent to him at the Giralang property so that he could take advantage of the electronic banking facilities available there. After receiving the Land Tax notice of assessment in respect of the Watsons Bay property, and speaking with the OSR, he and his wife changed a lot of their addresses to Watsons Bay. The use of a Post Office box is not because they are not living there. Mr Tobin said he has nominated the Watsons Bay property as his residential address for Australian Taxation Office, Electoral Roll, bank statement and NSW Seniors Card purposes, and it is now the postal address for all utility bills, rates notices, insurance etc for both properties.

25 Mr Tobin said he and his wife maintain contents insurance for the Giralang property because that is where most of their furniture and belongings are situated. They do not have contents insurance for the Watsons Bay property because there is nothing valuable there. Mr Tobin said he bought his current car in 2005. It is insured with the NRMA with the listed address being the Giralang property because the car is used more in the ACT. He has an ACT driver’s licence, last renewed two or three years ago, listing his address as the Giralang property, and does not hold a NSW licence.

26 Mr Tobin was asked about the utilities usage for the two properties with reference to the comparison prepared by the Respondent. He said while the Watsons Bay property is the more used of the two properties, the utilities usage is greater for the Giralang property. This is not because he and his wife spend more time there. Rather it is because the Giralang property is two and a half times the size of the Watsons Bay property. With respect to gas usage, the Giralang property has gas heating while the Watsons Bay property has a single gas stove for cooking. With respect to water, the Giralang property has a 600 square metre garden, while the Watsons Bay property only has a very small garden. With respect to electricity usage, the reverse cycle air conditioning and kitchen lighting in the Giralang property use as much electricity as the whole of the Watsons Bay property. Moreover, the office equipment at the Giralang property is on 24 hours a day and the water heating is also always on.

The Respondent’s Evidence

27 In addition to the documents produced pursuant to s 58 of the Administrative Decisions Tribunal Act 1997, the Respondent provided a folder of evidence principally relating to utilities usage for the Watsons Bay and Giralang properties, but including Council Rates notices for the Watsons Bay property. The Respondent also provided a Sydney Water table for efficient water usage for households of one to six people according to the size of a property, a print out of a Telstra ‘Flexcab System’ notes page recording to a communication with Peter Heaney on 10 August 2006, and Commonwealth Bank Visa Gold transaction statements for Mr Tobin’s account for which Mrs Tobin also holds a card.

The Respondent’s Submissions

28 Mr Gerard, for the Respondent, identified the issue in dispute as whether the PPR exemption applies in respect of Mrs Tobin’s Watsons Bay property. This turns on whether, as a question of fact, the Watsons Bay or Giralang properties were Mr and Mrs Tobin’s PPR for the 2006 to 2008 Land Tax years. Mr Gerard submitted that they used both properties as residences during the relevant period. The Land Tax exemption will, however, only apply to the property that is their PPR. This is a question of fact and degree to be determined on an objective view of the facts before the Tribunal.

29 Mr Gerard submitted that, in this case, there is a total lack of independent evidence that the Watsons Bay property was Mrs Tobin’s PPR from 2005. The evidence of the utilities bills and the rates notices for the properties indicates that the Giralang property was Mr and Mrs Tobin’s PPR at that time. The utilities bills and rates notices were all addressed to the Giralang property at the relevant time. The fact that Mr and Mrs Tobin changed the address to which such bills were sent after becoming aware of Mrs Tobin’s Land Tax liability is not as significant as it might have been if the change of address had occurred in other circumstances: McNally & Anor v Commissioner of State Revenue [2003] NSWSC 1118, at [38]. In any event, the change of address post-dated the taxing dates for the Land Tax years in issue.

30 Mr Gerard noted that Mrs Tobin held an ACT driver’s licence until early 2009 and that Mr Tobin continues to do so. His car, purchased after Mrs Tobin became the owner of the Watsons Bay property, is registered in the ACT, and the car is listed as garaged at the Giralang property for insurance purposes. Mr Gerard said such evidence and, for example, that of electoral enrolment, is evidence that must be considered in relation to the issue of a person’s PPR: Mesiti v Chief Commissioner of State Revenue [2003] NSWADTAP 57, at [30]. Mrs Tobin electoral enrolment in relation to the Watsons Bay property took place on 29 September 2007.

31 Mr Gerard referred to appendices to the Respondent’s written submissions filed on 10 June 2009, showing a comparison of utilities usage for the two properties. He said there is a significant disparity for the water, electricity and gas usage, which, he contended, cannot be explained by the difference in climate between Sydney and the ACT. He said the water usage for the Watsons Bay property shows that very little water (138 kl) was used in the 2005 to 2007 calendar years when compared with the Giralang property (1203 kl). Taking into account the average water usage for a small water efficient household of two persons estimated by Sydney Water, the Watsons Bay property usage was only a fraction of what could be expected. With regard to electricity usage, approximately five times more electricity was used in the Giralang property (28,656 kwh) than in the Watsons Bay property (5,784 kwh) over the same period. And the gas usage for the Giralang property was 986 gas units over this period compared with 32 gas units for the Watsons Bay property. Mr Gerard said the evidence infers that the Giralang property and not the Watsons Bay property was Mr and Mrs Tobin’s PPR.

32 Mr Gerard referred to the transaction statement for Mr Tobin’s Commonwealth Bank Visa Gold account for which Mrs Tobin is a dual card holder. The transaction history for the account shows that in 2005 the only transactions that would place Mr or Mrs Tobin in Watsons Bay occurred in the period 9 to 14 January 2005 and on 9 July 2005. Otherwise, there was almost daily use of the card in the ACT. Similarly in 2006 and 2007, there was very little use of the card in Sydney: the card was used approximately seven times in 2006 and 15 times in 2007. During these years, there continued to be consistent use of the card in the ACT.

33 Mr Gerard said, pursuant to s 100(3) of the Taxation Administration Act 1996, the Applicant bears the onus of proof in these proceedings. He referred to the High Court decision in Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614, at 624, where Brennan J approved the statement of principle set out by Mason J in Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 (‘Gauci’), at 89, that an assessment will prevail “unless the appellant shows by evidence that the assessment is incorrect”. Mr Gerard submitted that there is no independent objective evidence showing that the Watsons Bay property was Mrs Tobin’s PPR for the relevant Land Tax years. Rather, it can be inferred from the independent evidence that the Giralang property was her and her husband’s PPR.

34 Mr Gerard said that while Mr and Mrs Tobin may use the Watsons Bay property as a residence and may subjectively consider the property to be their PPR, this is not determinative of the issue: see, for example, Chief Commissioner of Taxation v Ferrington [2004] NSWADTAP 41 (‘Ferrington’), at [42]; Chief Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21 (‘McIlroy’), at [44] ff. There is no direct evidence of the actual dates of their use of the two properties during the relevant years. Indeed, the independent evidence before the Tribunal strongly suggests that the Giralang property was their PPR during those years. The Respondent submits that Mrs Tobin has not discharged the onus upon her to establish that the Watsons Bay property was her PPR for the purposes of the 2006 to 2008 Land Tax years, and the Respondent’s assessment of Land Tax liability for the property for those years should therefore be confirmed.

The Applicant’s Submissions

35 Mrs Tobin provided written submissions dated 16 April 2009 and 25 June 2009, and she and Mr Tobin made oral submissions at the hearing. Mrs Tobin noted that she received a request from the OSR to submit a Land Tax registration form in September 2006, which she completed and lodged, stating that the Watsons Bay property was her and her husband’s PPR. The OSR Information Sheet stated that any land owned outside NSW was not subject to tax in NSW. As she and her husband lived at the Watsons Bay property and believed there was no reason why the Watsons Bay property would not be considered their PPR, they truly believed they had correctly stated their position. They had never previously owned any property in NSW and had no experience in dealing with the OSR about Land Tax or any other matter.

36 The OSR first issued an assessment dated 17 November 2006 showing an amount of $0.00 payable for the 2006 Land Tax year. It was therefore a shock when, on 30 April 2008, she received an assessment of $46,057.25 for the 2006 to 2008 Land Tax years. It was following discussions with the OSR, when she and her husband were told they would have to establish proof of residency at the Watsons Bay property, that they changed the address to which their utilities bills, rates notices etc were sent from that of the Giralang property to the Watsons Bay property. Mrs Tobin said they felt disadvantaged and put under undue stress by the actions of the OSR. Had she been assessed for payment of Land Tax earlier, they could have taken appropriate steps to establish proof of residency earlier and avoided the Land Tax assessments.

37 Mrs Tobin said she has a strong connection with the Watsons Bay property having been born there and it being her sole residence until her marriage. It was always her and her husband’s intention that the Watsons Bay property should eventually become their home (Mrs Tobin being an only child.) The property has never been anything other than a family home. After Mrs Tobin inherited the property from her mother, she and her husband investigated the demolition and rebuilding of the house, since the house is in a run down condition, and hope this will proceed when the current financial situation improves. Since making the Watsons Bay property their home in 2005, the Giralang property has become nothing more than somewhere to stay in Canberra and a location for Keenyear’s office. Assuming there is no change in Mr Tobin’s conditions of employment with Keenyear, the office will be relocated to the Watsons Bay property on completion of the rebuild.

38 With regard to the addressing of utilities bills, rates notices etc, Mr and Mrs Tobin considered they had valid reasons for using the Giralang property as their mailing address. This was where Mr Tobin worked and where, because of the office facilities there, it was convenient to manage their financial affairs. Since their intention is to use the Giralang property as temporary accommodation while the Watsons Bay property is being rebuilt, this avoided having to redirect correspondence to the Giralang property from the Watsons Bay property once construction work commenced.

39 With regard to Mr Tobin’s car registration, since the greater part of their car usage is for travel between Sydney and the ACT and for transport in Canberra, they thought it reasonable to maintain ACT driver’s licenses and vehicle registration. Having the benefit of NSW Seniors Cards, they find it easier and cheaper to use the concessions available for public transport in Sydney rather than to drive.

40 With regard to the usage of utilities for the two properties, Mr and Mrs Tobin contend the two properties are completely different and in completely different climate zones, meaning that like-to-like comparisons cannot be reasonably made. With the Watsons Bay property, the block size is 263 square metres, the house footprint about 112 square metres, with gardens/grounds of about 151 square metres. The climate is “moderate seaside” with no requirement for heating or cooling. By contrast, the block size of the Giralang property is 905 square metres, the house footprint is about 277 square metres, with gardens/grounds of about 628 square metres. The climate includes extremes of high and low temperatures, with a need for high levels of heating/cooling. Canberra has experienced drought conditions for at least seven years.

41 Water usage at the Watsons Bay property is limited almost exclusively to house use, there being only a small garden with a few mature shrubs and a small patch of lawn. Consistent coastal rainfall with a mild climate means no outside watering is necessary. By contrast, Mr and Mrs Tobin have considered it essential to maintain the gardens and lawns of the Giralang property in order to maximise its value when the property is sold to finance the rebuilding of the Watsons Bay property. Mr Tobin noted that the size of the block for the Watsons Bay property (263 square metres) is smaller than the smallest block to which reference is made in the Sydney Water estimates for average water usage for a water efficient household (301 to 500 square metres).

42 With regard to electricity usage, the Giralang house is more than twice the size of the Watsons Bay house and is equipped with appliances such as reverse cycle air conditioning and office equipment, some of the latter operating 24 hours a day, and which have a much higher demand for electricity than anything in the Watsons Bay house. Gas usage at the Watsons Bay house is for cooking only. Gas usage at the Giralang property, which is open plan, is 99% by ducted gas central heating.

43 With regard to use of the Commonwealth Bank Visa Gold card, Mr Tobin said that since, when he is in Canberra, his wife has no private transport in Sydney, it is unlikely that she will do very much grocery shopping. He often does the shopping in Canberra and takes the shopping to Watsons Bay by car. They do not often use the Visa Gold card in Sydney because they do not shop there to any significant degree except for the purchase of fuel.

Consideration.

44 The issue for the Tribunal is whether Mrs Tobin has satisfied the onus of proof imposed on an applicant pursuant to section 100(3) of the Taxation Administration Act 1996 to prove the applicant’s case in an application for review; in this instance, to satisfy the Tribunal that the Watsons Bay property is her PPR. The courts have said that where an assessment of liability for taxation is made, “unless the appellant shows by evidence that the assessment is incorrect, it will prevail”: Gauci, at 89, cited above.

45 The Appeal Panel of the Tribunal has emphasised that “consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of circumstances relating to the occupation of the dwelling”, and that “the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue”: Ferrington at [42], and see McIlroy at [44].

46 I have no doubt that Mr and Mrs Tobin were open and frank in their dealings with the OSR and responded to all requests. It is clear that they were not aware of their potential need to provide independent evidence to support their claim that the Watsons Bay property is their PPR until they spoke with the OSR in about May 2008.

47 The Land Tax years in question are the 2006, 2007 and 2008 years and, therefore, the relevant taxing dates are 31 December 2005, 31 December 2006 and 31 December 2007. The relevant issue is whether, on those dates, I should be satisfied on the objective evidence that the Watsons Bay property was Mrs Tobin’s PPR. The words ‘principal place of residence’ are to be interpreted according to their ordinary meaning, and occupation as a PPR must have a degree of permanence to it.

48 The Respondent relies in part on the evidence that the address of the Giralang property was utilised by Mr and Mrs Tobin for utilities and rates bills for the Watsons Bay property until about May 2008 when they became aware of Mrs Tobin’s liability for Land Tax and the need to provide independent evidence to support their claim. I am satisfied from Mr and Mrs Tobin’s evidence that they used the address of the Giralang property for this purpose as a matter of convenience since Mr Tobin was performing his work from the office in the Giralang property and he used the facilities there for the management of their finances. I also note their plans to demolish the Watsons Bay house and rebuild, and that Mr and Mrs Tobin thought it convenient to use the Giralang property address for utilities since it would otherwise be necessary to change the address to which bills were sent during the period when the house was being rebuilt and Mr and Mrs Tobin were temporarily residing in the Giralang property.

49 With regard to utilities usage – water, gas and electricity - for the two properties, I accept Mr and Mrs Tobin’s evidence that there are significant differences between the two properties in terms of their size and climatic location which are likely to have a significant effect on consumption. I am, nevertheless, surprised at the extent of the disparity. The Respondent’s analysis, referred to above, shows that water usage for the Watsons Bay property is a total of 138 kl in the 2005 to 2007 calendar years, compared 1203 kl for the Giralang property. Electricity usage for the Watsons Bay property is a total of 5,784 kwh over the same period compared with 28,656 kwh for the Giralang property, and gas usage for the Watsons Bay property over this period was 32 gas units compared with 986 gas units for the Giralang property. While I accept the different utility consumption requirements of the two properties about which Mr and Mrs Tobin have given evidence, I am not satisfied that the extent of the disparity can be entirely explained by this. The evidence suggests Mr and Mrs Tobin spent a not insignificant amount of time in the Giralang property over this period.

50 I also find the lack of Commonwealth Bank Visa Gold card usage in Sydney surprising when compared with its usage in the ACT. Even if Mr Tobin does much of the shopping in Canberra as he stated, the almost total lack of usage of the card in Sydney for significant periods indicates less time spent in Sydney than Mr and Mrs Tobin’s evidence suggests.

51 There is also evidence of Mrs Tobin not changing her electoral enrolment to the Watsons Bay property until 27 September 2007, and her not obtaining a NSW driver’s licence until early 2009. Mr Tobin retains his ACT driver’s licence, his car is registered in the ACT, and the recorded address for car insurance purposes is that of the Giralang property. However, I acknowledge Mr Tobin’s evidence as to his using the car more in Canberra and for travel between Canberra and Sydney. I note Mr and Mrs Tobin retain their doctor and dentist in Canberra. They continue to use the address of the Giralang property for Medicare registration purposes.

52 The picture presented by this objective evidence suggests Mr and Mrs Tobin’s connection with the Giralang property is still a significant one. While I accept their evidence that they intend to make the Watsons Bay property their permanent home, I am not satisfied from the evidence they have presented that as at the three taxing dates referred to above – that is 31 December 2005, 2006 and 2007 – the Watsons Bay property was their PPR. The objective evidence relied on by the Respondent to which I have referred is, in my view, sufficient to cast significant doubt on their contention that the Watsons Bay property was their PPR on those dates. Their intention to make the property their permanent home and PPR – which is necessarily subjective in nature - is not in itself sufficient, in the absence of other independent objective evidence, to persuade me otherwise.

Decision

53 Thus, in my view, Mrs Tobin has not satisfied the onus of proof she bears to establish that the Respondent’s assessment is incorrect. The Land Tax assessment under review must therefore be confirmed.