Yang v Chief Commissioner of State Revenue

[2013] NSWADT 123

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Yang v Chief Commissioner of State Revenue [2013] NSWADT 123
Hearing dates:	6 May 2013
Decision date:	31 May 2013
Jurisdiction:	Revenue Division
Before:	Professor GD Walker, Judicial Member
Decision:	Decision under review affirmed.
Catchwords:	Land tax; principal place of residence; unoccupied land
Legislation Cited:	Land Tax Management Act 1956
Cases Cited:	Cameron v Chief Commissioner of State Revenue (CCSR) [2009] NSWADT 64; CCSR v Ferrington [2004] NSWADTAP 41; Deane v Commissioner of Stamp Duties (No. 2) (1996) 2 QdR 557; FCT v Dalco (1990) 168 CLR 614; Ma v FCT (1992) 92 ATC 4373; Tobin v CCSR [2009] NSWADT 188; Warriewood Pty Ltd v FCT (1993) 93 ATC 4653.
Category:	Principal judgment
Parties:	Mr DD Yang (applicant)
Representation:	Counsel A.Gerard (Respondent) D Yang (Applicant in person) Crown Solicitor's Office (Respondent)
File Number(s):	126053

reasons for decision

Background

1. The applicant Dong Dong Yang seeks review of a decision made by the Chief Commissioner of State Revenue under the Land Tax Management Act 1956 (LTM Act) that the applicant was not entitled to a principal place of residence exemption under clause 6 of Schedule 1A of the LTM Act in respect of his property 66 McGrath Ave, Five Dock, New South Wales.

1. The controversy revolves around whether the Chief Commissioner's decision was correct in circumstances where the applicant asserts that the property was exempt from land tax for the 2011 land tax year on the ground that it should be taken to be his principal place of residence (PPR) for the purposes of the 2011 tax year in accordance with clause 6 (1) of Schedule 1A of the LTM Act.

1. The answer to that question turns on the position as at 31 December 2010, but other time periods are also relevant to the question and on the matter of credit.

1. The applicant on or about 23 October 1998 acquired 100 percent ownership of another property, 10/11-12 North Parade, Campsie, New South Wales. Subsequently, on or about 17 December 2001, the applicant acquired 100 percent ownership of the Five Dock property. According to an RTA search, he began residing at the Campsie property around 21 May 2007.

1. On 30 December 2008, the applicant wrote to the Chief Commissioner seeking a "review" of the 2009 land tax year decision or assessment, which had not yet been made, in relation to Five Dock. In that document he indicated that he intended to move into the Five Dock property on 10 January 2009.

1. On 15 January 2009, the Chief Commissioner issued to the applicant a land tax assessment notice in relation to, at least, the Five Dock property, for the 2009 land tax year.

1. The applicant applied on 1 June 2009 for a reduction of land value on Five Dock as land partly used by the owner as PPR. In that document he indicated that he had occupied the Five Dock property for residential purposes and was either undertaking or intending to undertake complete demolition of the existing structure and rebuilding on the land.

1. On 11 August 2009, the Chief Commissioner wrote to the applicant informing him that the 1 June 2009 application had been disallowed as he was already obtaining the PPR exemption in respect of the Campsie property.

1. On 7 December 2009, the applicant lodged with Canada Bay Council a development application for the Five Dock property, which was approved. He then entered into a contract with Allcastle Homes Pty Ltd for the construction of a new house on the Five Dock land. Subsequently, on 26 December 2009, the applicant executed a 2009 land tax registration form and lodged it with the respondent. The In that document the applicant indicated that he "occupied" the Five Dock property from 20 September 2009.

2010 calendar year

1. On 14 January 2010, the applicant entered into a contract for the demolition of the existing structures on the land. On 17 March 2010, the Chief Commissioner wrote to the applicant seeking further information and documentary evidence concerning the applicant's claimed residency at Five Dock, addressing the letter to the applicant at McGrath Avenue, Five Dock. Having received no response to that letter, the Chief Commissioner repeated his request on 20 April 2010.

1. On 19 May 2010, the Chief Commissioner determined that the applicant's PPR was the Campsie property. The applicant lodged an objection to a 2010 land tax year determination by the Chief Commissioner on 13 July 2010.

1. Following that objection, the applicant and Ms Lucia Liu on 2 September 2010 swore declarations before a Justice of the Peace, Mr Henson Liang. The applicant's declaration asserted that he lived with his girlfriend Lucia Haipang Liu at her property at 11/19 -- 27 Eastbourne Rd, Homebush West, New South Wales from 10 January 2010 until the present, and that they planned to move to the Five Dock property after construction was completed that year. In her declaration, Ms Liu stated that her boyfriend Mr Dong Dong Yang had lived with her at her home at Homebush West since 10 January 2010 and that they planned to move to the Five Dock property after construction was completed.

1. On 27 October 2010, the Chief Commissioner disallowed the applicant's objection for the 2010 land tax year on the ground that the Five Dock property was not the applicant's PPR.

1. Responding to that letter on 14 December 2010, the applicant listed his address as being the Campsie property (Exhibit R1, p 46). Two days later he wrote a further letter to the Chief Commissioner, dated 16 December 2010, listing his address as the Five Dock property (Exhibit R1, p 47). By letter dated 14 January 2011, the applicant asked the Chief Commissioner to change his mailing address to Five Dock.

2011 land tax year

1. On 21 June 2011, the chief Commissioner issued to the applicant a land tax assessment notice assessing both the Campsie property and the Five Dock property as liable to land tax (Exhibit R1, p 63). The applicant did not object to that decision, but on 31 March 2011 executed two documents:

• land tax 2011 registration form, and

• an application for exemption of unoccupied land intended to be an owner's PPR.

1. In the registration document, the applicant asserted that the Five Dock land had been occupied by the applicant as his PPR since 20 September 2009. In the unoccupied land document, he asserted that the land had been unoccupied since 20 September 2009 (Exhibit R1, pp 56, 59).

1. On 14 February 2011, a final occupation certificate was issued by the Council in respect of the newly constructed house at the Five Dock property.

1. On 21 June 2011, the Chief Commissioner wrote to the applicant informing him that his claim for the unoccupied land exemption had been disallowed as the applicant was living at the Homebush West property as at 31 December 2010.

1. The applicant objected to that decision on 25 August 2011, stating that he had moved into the Five Dock property "at (in) 2010". That objection was disallowed on 15 February 2012, but the Chief Commissioner partly allowed the applicant's objection by granting a land tax exemption in respect of the Campsie property on the basis of clause 8 of schedule 1A to the LTM Act.

1. On 14 May 2012, the applicant filed in the tribunal an application for review of the Chief Commissioner's decision.

Legislative framework

1. Under ss 7, 8 and 9 of the LTM Act, land tax is chargeable on the taxable value of the Five Dock property for the 2011 land tax year on the basis of the ownership of that land as at midnight on 31 December 2010. A reasonable period on each side of 31 December may also be considered: Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867, [4]. As the land was at that time owned by the applicant, he is prima facie liable for land tax in respect of that land tax year based on the taxable value of the land, except to the extent that it can be shown that the land was exempt from land tax.

1. The present application relies on the PPR exemption. As at 31 December 2010, s 3 of the LTM Act provided that "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". Section 10 then proceeds to exempt of that place of residence from taxation.

1. As at 31 December 2010, clause 6 of schedule 1A to the LTM Act provided as follows:

6 Concession for unoccupied land intended to be owner's principal place of residence

(1) An owner of unoccupied land is entitled to claim the land as his or her principal place of residence, if the owner intends to use and occupy the land solely as his or her principal place of residence. In such a case, the owner is taken, for the purpose of the principal place of residence exemption, to use and occupy the unoccupied land as his or her principal place of residence.

Note: It is an offence under section 55 of the TaxationAdministration Act 1996 to make a statement to a tax officer, or give information to a tax officer, orally or in writing, knowing that it is false or misleading in a material particular.

(2) This clause does not apply unless:

(a) the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence, and

(b) if those building or other works have physically commenced on the land, no income has been derived from the use and occupation of the land since that commencement, and

(c) the intended use and occupation of the land is not unlawful.

(3) This clause applies in respect of the assessment of a person's ownership of land only in the period of:

(a) 4 tax years immediately following the year in which the person became owner of the land, or

(b) if the land is used and occupied for residential purposes by a person other than the owner at any time after the person became owner, 4 tax years immediately following the tax year in which the building or other works necessary to facilitate the owner's intended use and occupation of the land are physically commenced on the land.

(5) If the principal place of residence exemption applies by operation of this clause to land not actually used and occupied by a person as his or her principal place of residence on a taxing date, that exemption is revoked if the person fails to actually use and occupy the land as his or her principal place of residence by the end of the period in which this clause applies in respect of the assessment of the person's ownership of the land and to continue to so use and occupy the land for at least 6 months.

(6) The effect of the revocation is that the principal place of residence exemption is taken not to have applied to the land in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly.

(7) This clause does not apply in respect of land owned by a person if:

(a) the person or any member of the person's family (within the meaning of clause 12) is entitled to have his or her actual use and occupation of other land taken into account under section 9C or 9D or under this Schedule, or

(b) the person owns land outside New South Wales that is the principal place of residence of the person or a member of the person's family (within the meaning of clause 12), or

(c) the land, or the land if combined with any adjoining land of which the person is an owner, is capable of having more than 2 residences or residential units lawfully built on it.

(8) For the purposes of this clause:

"unoccupied land" means land that is not being used or occupied for any purpose.

1. Clause 12 of schedule 1A clarifies that only one principal place of residence may be treated as the PPR of all members of the same family.

1. As in the determination of all such applications, the tribunal is to apply s 100(3) of the Taxation Administration Act 1996 (TA Act), which provides that "The applicant has the onus of proving the applicant's case in an application for review". The tribunal has jurisdiction under s 96(1)(a) of the TA Act to review the Chief Commissioner's decision of 21 June 2011 to reject the applicant's claim for the unoccupied land exemption for the Five Dock property for the 2011 tax year.

Issues

1. As was noted above, the applicant's written statements and other evidence were fragmentary, incomplete and submitted in a piecemeal fashion. Consequently, the issues for determination were not entirely clear when the hearing commenced. As the evidence came out, however, it became apparent that the principal issue is whether Mr Yang used the Campsie property as his PPR for the 2010 calendar year and thus on the statutory date of 31 December 2010. A secondary issue is whether the applicant and Ms Lucia Liu were members of the same "family" within the meaning of that term as defined in clause 12 of schedule 1A to the LTM Act.

Applicant's evidence

1. The applicant supplied at various times a number of statements, declarations, affidavits, invoices and receipts relevant to the proceedings. For the purposes of the hearing these documents were collected, compiled and indexed by the respondent and tendered by the applicant, becoming exhibit A1. The statements, declarations and affidavits for the most part were brief and often in identical terms. Using the page numbers in exhibit A1, they may be listed as follows:

• Page 5: declaration by the applicant dated 3 September 2012 stating that Ms Lucia Liu had never lived at the Five Dock property and that she and the applicant were not husband and wife or de facto partners.

• Page 6: statement by Ms Liu dated 3 September 2012 that she had never lived at the Five Dock property.

• Page 9: statement dated 4 September 2012 by Mr Hanson Liang, member of Burwood Council, that Ms Liu had never lived at the Five Dock property and that she and the applicant were not husband and wife or de facto partners.

• Page 10: statement by Xinhua Lao dated 4 September 2012 that Ms Liu had never lived at the Five Dock property and that she and the applicant were not husband and wife or de facto partners.

• Page 14: statement dated 8 October 2012 by the applicant that Ms Liu had never lived at the Five Dock property and that they were not husband and wife or de facto partners from 1 January to April 2011.

• Page 15: statement dated 8 October 2012 by Ms Liu stating that she had never lived at the Five Dock property and that she and the applicant were not husband and wife or de facto partners from 1 January 2010 to 2011.

• Page 24: affidavit dated 5 March 2013 by Ms Liu stating that she and the applicant were not in a de facto relationship before 29 January 2013 and had no financial arrangement or agreement before that date.

• Page 25: statement dated 5 March 2013 by Jun Bian that Ms Liu had not lived at the Five Dock property before 29 January 2013 and that she and the applicant were not husband and wife or de facto partners before that date.

• Page 26: statement dated 5 March 2013 by Henson Liang that Ms Liu had not lived at the Five Dock property before 29 January 2013 and that she and the applicant had not been husband and wife or de facto partners before that date.

• Page 30: undated statement by the applicant attached to an e-mail dated 6 March 2013 stating among other things that he had met Ms Liu on 24 June 2009 and commenced a relationship with her and that they lived together for less than a year; he usually went to her [Homebush West] home on Tuesdays, Wednesdays, Fridays and Saturdays after dinner, returning to Campsie the next morning.

• Page 69: e-mail reply by the applicant dated 3 April 2013 to a request for further particulars, stating inter alia that between 10 January 2010 and 31 December 2010 he slept on average four nights at Homebush West and three at Campsie, and ceased sleeping at Homebush West on 29 January 2013 after receiving the occupation certificate, when he moved to the Five Dock property.

1. The applicant gave oral evidence with the aid of an interpreter. In it he attested to the truth of the statements contained in documents compiled in exhibit A1 and to certain documents in exhibit R2 to which Mr Gerard drew his attention. He confirmed that he had purchased the Five Dock property in October 2001, and Campsie in December 1998. He had lived at Campsie while the Five Dock property was leased out between 2003 and 2009. He had paid land tax for Five Dock during that period, but not on Campsie because it was his PPR.

1. On 30 December 2008 he had e-mailed OSR stating that he intended to live in the Five Dock property from 10 January 2009 onwards: exhibit R2, p 2. At that time he had been living at Campsie since late 1998. He agreed that he had not moved in to Five Dock on 10 January 2009 because it was still tenanted, but said he had wanted to move in but the tenants had not moved out. It was put to him that he could not have required the tenants to move out because the lease required six months' notice of cancellation. He said he did not know if the tenants had been given notice as the agents, Richardson and Wrench, had handled the property, nor did he know that the tenants were still there in March 2009. He admitted, however, that he had e-mailed OSR on 19 March 2009 confirming his e-mail of 30 December 2008 stating his intention to live at Five Dock from 10 January 2009: exhibit R2, p 1.

1. He agreed that he had sent the 19 March 2009 e-mail hoping to obtain a PPR exemption for Five Dock, but explained that he had intended to move into the property some time in 2009 and hoped to obtain a partial exemption. Nevertheless, he had not moved to Five Dock and did not so inform OSR in the 19 March 2009 e-mail.

1. The applicant admitted that in this application for reduction of land value dated 1 June 2009 he had declared that he was living at Five Dock when he was not on that date or on 31 December 2008, but claimed that the statement was correct because he had written "rebuild" opposite the use percentage. But he conceded that the tenants were still living there on 31 December 2008, the date following his e-mail to OSR. He said he had planned to rebuild the property, but when it was pointed out to him that he had declared on 1 June 2009 that he was living at the property, he referred vaguely to having to write applications, then said he was not sure when he had moved in.

1. A further inconsistency appeared in his 2009 land tax registration form dated 26 December 2009 (exhibit R2, p 4) in which he declared that he had occupied the Five Dock property as his PPR from 20 September 2009, when his application for reduction of land value had stated he was living there on 1 June 2009. He replied unconvincingly that he had discussed many things about 2009, but although he had said he was living in the property in June 2009, the form had said he planned to live at Five Dock.

1. The applicant conceded also that on his building contract agreement with Allcastle Homes (exhibit A1, p 66) dated 21 December 2009, he had given his address as Campsie, but said it was only his mailing address. While he had told OSR on 26 December 2009 in his registration form that he was living at Five Dock, it did not matter because 2009 land tax was not in issue, an unimpressive response. Similarly, his 30 November 2009 and his November-December 2009 St George Bank statement (exhibit R2, p 35, p 136) gave the Campsie address, but he said again that it was purely a mailing address and that he still used Campsie even now for his Bank of China account. When it was put to him that he had been living at Campsie for the whole of 2009, he replied that he had lived there for only half the year and had moved to Five Dock at the end of 2009 to prepare it for the construction work. His daughter had continued to live at Campsie with her boyfriend.

1. In his reply to a request for further particulars (exhibit R2, p 26) he had said he stayed with Ms Liu at Homebush West four nights a week, but that was an estimate and the number of nights varied. He had not moved his furniture to her apartment and took only the clothes he needed for his stay, leaving everything else at Campsie, except occasionally his laptop.

1. The applicant acknowledged that his 2010 and 2011 bank and Visa statements were addressed to Campsie and that in fact no mail was sent to him at Homebush West.

1. Mr Yang's attention was then drawn to his immigration arrival cards dated 21 January 2010 and 17 May 2010 (exhibit R2, p 263-4). In each case he had nominated Campsie as the address where he intended to live in Australia. He said he had meant that Campsie was one of the addresses where he lived and that as he had been spending four days a week at Homebush West, that was his address. He admitted, however, that the arrival card did not seek "one of" his addresses and that he had not offered that explanation to the Immigration Department. After a number of other documents bearing the Campsie address at the relevant period were put to him, he complained about the amount of time that was being devoted to addresses in his cross-examination.

1. Counsel then put to him his letter to OSR dated 14 December 2010 in which he had given his address as Campsie (exhibit R2, p 11). He acknowledged that he had been living there, as had his daughter, and said he had paid all the bills for Campsie, not for Homebush West. He had commenced occupation of the Five Dock property in February 2011, after receiving the occupation certificate.

1. It was pointed out to him that in his e-mail to OSR dated 25 August 2011 (exhibit R2, p 17) he had stated that he had moved into Five Dock in 2010. He admitted that was incorrect and that he should have said 2009, as the house was being built in 2010.

1. In a statement by way of re-examination, Mr Yang said he had a friend who had rented temporarily while building a house but had not been assessed for land tax. As he had been living with Ms Liu, he thought he should not be charged land tax, although he was not paying any rent to her. He was not at that time her de facto but was just like a friend who was renting while building a house.

1. He said that as regards the discrepancies in his earlier statements, when moving into a new property "there are variables". He had a plan to move but did not quite follow it. He had not given Ms Liu's address for his arrival cards and bank statements because at that stage they were not sufficiently committed to each other for him to feel that he could use her address. His 2010 PPR was with her at Homebush West, but his mailing address was the Campsie property, and still is.

Applicant's submissions

1. Mr Yang said that while construction was in progress in 2010, his main residence was at Homebush West. He had used Campsie for mail, but that did not indicate that he was living there. Just as now, he used it for mail although living at Five Dock (or, by implication, at Homebush West in 2010). It was handy to have all mail sent to Campsie because their relationship was not at such a stage of commitment that he could arrange for all mail to be sent to her address. He was still using Campsie for his Bank of China statements.

1. Although he had lived at Homebush West during 2010, that did not mean he and Ms Liu were in a de facto relationship. There was no financial arrangement or commitment between them.

1. His witnesses who had signed statements were very credible, one of them being a local councillor and another a community leader. They should be taken into account.

1. During 2009, he had lived half the year at Campsie. After the tenants had moved out in late 2009 he had moved into Five Dock to prepare it for demolition. He had to remove some things and keep some others, and liaise with removalists and demolishers.

1. In summary, his moves had been as follows:

• He had moved out of Five Dock in January 2010.

• He had moved to Homebush West in January 2010.

• He had moved into Five Dock in February 2011 and is still there.

• While the new house was under construction at Five Dock, he had moved in with Ms Liu but had intended the new property to be his PPR.

1. In reply Mr Yang said that Campsie had not been his PPR and he had spent sometimes as much as five or six days at Homebush West. He had not moved all his effects there because he had not expected construction to take more than six months, although it had taken longer. His friends who had rented while building a new house had been able to treat the new property as their PPR. Campsie had been his mailing address only, but had not been his PPR after the end of 2009 when he had moved briefly into Five Dock for two months. His intention had been to live there, so his PPR should have been Five Dock, although he had moved to Homebush West, but only on a transient basis while building the new house. Five Dock was his PPR after late 2009 and remained so.

1. He had stated that Campsie was his address on the arrival cards in 2010, but he had meant that purely as a contact address as his daughter lived there. His bank statements were sent to Campsie purely as a matter of convenience, as he had not wanted to change his mailing address again after six months when he expected construction to be completed. He had no removalists' invoices to corroborate his move to Five Dock, but he had not always obtained invoices. That did not mean he had not moved to Five Dock.

1. After the hearing the applicant faxed to the tribunal some written submissions contained in a letter dated 27 May 2013. He stated that he would like to make a final submission in support of his claim that Five Dock was his principal place of residence during the relevant period, i.e. between 10 January and 31 December 2010. He submitted that clause 6(7)(a) of schedule 1A did not apply as he remained willing to pay land tax for the Campsie property, and therefore was not entitled to have his use and occupation of other land taken into account.

1. He repeated the contention in his earlier oral submissions (although not in his statement by way of re-examination) that he had moved into Five Dock late in 2009 and had made it his PPR. He had derived no rent from that property. He also repeated his argument about friends of his, including a Mr Wei, who had demolished old houses and built new ones, while renting other properties during the construction period, and OSR had determined that the construction address was the PPR. The applicant provided no copies of those decisions or any particulars that might enable them to be identified. Consequently it is not possible to speculate on them or to identify any similarities or differences as against the present case. The submission also repeated his earlier contention that he used Campsie purely as a mailing address during the relevant period.

1. Mr Yang also submitted that it did not matter on which day in 2009 he had moved into Five Dock because the decisive date is 31 December 2010.

Principal place of residence on 31 December 2010

1. The first issue, then, is whether on 31 December 2010 the applicant's principal place of residence was the Five Dock property or the Campsie property. It will be noted that the applicant currently has the benefit of a PPR exemption for Campsie (Exhibit R1, p 132).

1. If Five Dock is the appropriate PPR, the second issue is whether the applicant and Ms Liu were a "family" within the meaning of clause 12 of schedule 1A to the LTM Act for the purposes of the 2011 land tax year.

1. Under s 100(3) of the TA Act the applicant bears the onus of proving his case to the ordinary civil standard, that is, on the balance (i.e. preponderance) of probabilities: Ma v FCT (1992) 92 ATC 4373 per Burchett J. That principle has been elaborated in a series of cases. In FCT v Dalco (1990) 168 CLR 614, the High Court pointed out that the legislation places no onus on the revenue authorities (including the Chief Commissioner) to show that assessments were correctly made. Unless the taxpayer shows by evidence that the assessment was incorrect, it will prevail, and the Chief Commissioner is entitled to rely on any deficiency of proof of excessiveness.

1. The courts have consistently warned against the unqualified acceptance of self-serving statements by taxpayers in the revenue context. See, for example, the comments of Lockhart J. in Warriewood Pty Ltd v FCT 93 ATC 4653 at 4662. This presents a particular problem for the applicant's case given the number of internal inconsistencies in his written and oral evidence, as will be outlined below.

1. If Campsie was his PPR on 31 December 2010, he will be unable to claim the Five Dock property as his PPR because under clause 6(7)(a) of schedule 1A he would be "entitled to have" his actual use and occupation of Campsie taken into account under the schedule, and accordingly clause 6 (1) would not operate. If it were to appear that he had more than one place of residence in 2010, it would be for the applicant to establish by evidence which one was his PPR. That is a question of fact and degree and is to be determined objectively: see Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188, [45].

1. In Cameron v Chief Commissioner of State Revenue [2009] NSWADT 64, Verick JM, pointing out that the conclusion is determined by considering the extent and quality of use and occupation of residence in each case, cited with approval Deane v Commissioner of Stamp Duties (Qld) No. 2) [1996] 2 QdR 557 in which Fryberg J indicated that relevant factors include intention, electricity usage, the electoral roll, and time spent and nights slept at each place. In Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41, the Appeal Panel helpfully listed the following relevant factors: (1) the intention of the person concerned, gauged objectively, (2) whether the occupation has a degree of permanence and is not transient, temporary, contingent or of a passing nature, but (3) the short length of a person's residence, while relevant, is not determinative, (4) the reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances [at 42].

1. In deciding whether the applicant has discharged the burden of proof, it is impossible to disregard the numerous inconsistencies in his written statements and oral evidence, including:

• In some statements (Exhibit R1, p 26) and the applicant asserts that he was living at Homebush West in 2010, by implication full time. In other statements he appears to aver that he only stayed with Ms Liu on occasions (exhibit A1, p 30, also in cross-examination in connection with exhibit R2, p 8).

• In some statements to the respondent, he has asserted that he "moved into" the Five Dock property in 2010 (Exhibit R1, p 68). At the same time, by contrast, he has claimed that the Five Dock property was "unoccupied" in 2010 (Exhibit R1 p 59). In two forms completed by the applicant on 31 March 2011, he asserted in one form that the Five Dock property had been "unoccupied" since 20 September 2009 and on the other that he had "occupied" that property as his PPR since 20 September 2009 (Exhibit R1, pp 56-59).

• In an e-mail to OSR he stated that he was going to live in the Five Dock property from 10 January 2009, an impossibility as the tenants were still in residence under a lease. He did not move in but in a further e-mail on 19 March 2009 he referred to his earlier missive but failed to inform OSR that he had not commenced occupancy as foreshadowed (exhibit R2, pp 1,2).

• In his application for reduction of land value dated 1 June 2009 (exhibit R2, p 3), he declared that he was living at the Five Dock property, when in cross-examination he stated that he had moved in at the end of 2009 to prepare for the demolition and construction work. When earlier pressed in cross-examination about his statement that he had been living at Five Dock on 1 June 2009, he said something about having to write applications and then stated that he was not sure when he had moved in. Then in his land tax 2009 registration form he stated that he had occupied the Five Dock property from 20 September 2009 (exhibit R2, p 5). When challenged on that statement he explained that he had discussed many things about 2009, but agreed that there was an inconsistency . He also acknowledged that he had given his Campsie address on the construction contract (exhibit A1, p 66), but said he had only given it as a mailing address, notwithstanding that in his registration form he told OSR five days later that Five Dock was both his residential and his mailing address.

• When invited to explain the inconsistency between the Five Dock address he had given on his 2009 registration form and his other statements, he replied that the inconsistency did not matter because land tax for 2009 was not in issue. That answer added little to his credit.

• Counsel then asked him if the fact that his bank statements were addressed to Campsie indicated that he had lived at Campsie for the whole of 2009, he replied that he had lived at Campsie for half of 2009 and had moved to Five Dock at the end of 2009 to prepare the building for the demolition and construction. Shortly before, he had claimed he could not remember when he had moved.

• In his declaration dated 2 September 2010 (exhibit R2 p 8) he had stated that he was living with Ms Liu at Homebush West, but in examination said he was just staying there "occasionally" but shortly afterwards said he spent four nights a week there, though the number "varied". Then in his statement by way of re-examination he said that his 2010 PPR was with her.

• In his letter to OSR dated 25 August 2011 he had said that he had moved into Five Dock in 2010 (exhibit R2, p 17). In cross-examination he admitted that was incorrect and said he should have written 2009, as construction was still in progress.

1. To begin with the first of the criteria set out in Ferrington and Cameron, it is difficult to identify a clear intention. Mr Yang said he planned to move in January 2009 but did not do so, although in June 2009 he gave OSR the impression that he had. He then said that he had moved to Five Dock in September 2009, but produced no removalist's invoices at Campsie in 2010 and admitted that his furniture, possessions and most of his clothes were still at Campsie in 2010. Further, the idea of moving to Five Dock for the sole purpose of preparing that house for demolition is implausible.

1. As regards the question of permanence, as opposed to transient, temporary, contingent or passing residence, and bearing in mind that the shortness of a stay is not necessarily a disqualification, any presence at Five Dock while preparing it for demolition could only have been of a transient and passing nature. As regards Homebush West, the applicant said at different times that he stayed there "occasionally", or that he slept there three or four nights a week but it "varied", and that he took with him only the clothes that he needed for his planned stay, and that he left his goods at Campsie as he planned to move into Five Dock when construction was finished, or that his relationship with Ms Liu had not reached such a stage of commitment that they felt ready to move in together. Homebush West could thus be regarded as one of his residences in 2010, but it was of a contingent or transient nature.

1. As to the reason for his departure from Campsie, the explanation given is unconvincing. Preparing a house for demolition is an unlikely reason for incurring the trouble, expense and inconvenience of moving out of Campsie and into the premises he intended to have pulled down. He also gave conflicting dates for the move.

1. As regards the specific indicia mentioned in Deane and adopted in Cameron, one sees first of all that all the applicant's mail was addressed to Campsie, including bank and credit card statements. His explanation was that Campsie was purely a mailing address, but his electricity and water bills show that he was paying for the utilities at Campsie during the relevant period. The fact that his daughter was living at Campsie might partly account for that, although Mr Yang was also not paying for the utilities at Homebush West.

1. He gave varying estimates of the amount of time he spent at Homebush West, saying he stayed there "occasionally", or three or four nights a week, but that it "varied". Those statements have little probative value and the kind of self-serving statement that Lockhart J. in Warriewood warned should be received with the greatest caution.

1. There is no evidence about the applicant's electoral roll entry, although the arrival cards indicate that he is an Australian citizen and holds an Australian passport. The arrival cards are, however, cogent evidence supporting the view that Campsie remained his principal place of residence. The two cards, completed five months apart, are printed in Chinese and there is therefore no possibility of misunderstanding. As the English version of the cards shows, they ask for the passenger's intended address in Australia. They do not seek a contact address or a mailing address or one of his several addresses. The declarations were made for purposes unrelated to land tax and in circumstances in which the applicant had no incentive to misrepresent the facts.

1. The applicant's written submissions of 27 May 2013 make it clear, if it was not clear before, that he has relinquished the assertion made in re-examination and at some earlier times that during 2010 his PPR was at Homebush West. He also submitted that it did not matter on which day in 2009 he had moved into Five Dock because the material date was 31 December 2010. While that is broadly correct, the evidence in this case shows that at the material date his PPR was that the Campsie property.

1. On balance, therefore, the indicia identified in earlier cases point to Campsie being the applicant's PPR in 2010.

1. Further, for the 2010 land tax year, the applicant was assessed on the basis that Campsie was his PPR. He lodged an objection to the effect that it should be Five Dock, but the respondent disallowed the objection on 27 October 2010 (Exhibit R1, p 45). The applicant sought no review of that decision and the exchange ended on the basis that Campsie was the correct PPR.

1. The applicant relies on a number of statements by independent witnesses, including a Burwood councillor and a community leader. Those statements, however, merely state conclusions on the ultimate issues and in any event say nothing about where the applicant was living in 2010 or what his circumstances were.

1. The applicant has not discharged the burden of proof that the legislation places on him. I therefore find that the Campsie property and not the Five Dock property was the applicant's PPR on 31 December 2010. Consequently clause 6 (7)(a) of schedule 1A is brought into operation. As the applicant is entitled under that paragraph to have his actual use and occupation of Campsie taken into account, clause 6 (1) cannot apply so as to treat Five Dock as his PPR on 31 December 2010 and therefore for the purposes of the 2011 land tax year.

1. Mr Yang argues that clause 6 (7)(a) does not apply because he is willing to pay land tax in respect of Campsie. That is a non sequitur as there is no inconsistency between the two propositions. It is also difficult to square that submission with his claim for the PPR exemption in respect of Five Dock.

1. In view of the conclusions reached above, it is not necessary to deal with any questions arising under clause 12 of schedule 1A.

1. The decision under review is affirmed.

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Decision last updated: 31 May 2013