Zaher v Chief Commissioner of State Revenue

[2004] NSWADT 120

CITATION:	Zaher v Chief Commissioner of State Revenue [2004] NSWADT 120
DIVISION:	Revenue Division
PARTIES:	APPLICANT Vladimir Zaher RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	036045
HEARING DATES:	24/03/2004
SUBMISSIONS CLOSED:	03/24/2004
DATE OF DECISION:	06/17/2004
BEFORE:	Hole M - Judicial Member
APPLICATION:	Land tax exemption - principal place of residence
MATTER FOR DECISION:	Principal
LEGISLATION CITED:	Land Tax Management Act 1956 Taxation Administration Act 1996
CASES CITED:
REPRESENTATION:	In person S Benjamin, solicitor
ORDERS:	That the imposition of land tax as assessed be confirmed. Any interest or penalties to be refunded to the applicant.

REASONS FOR DECISION

Introduction

1 The applicant has applied on behalf of himself and his wife for a review of the decision by the Commissioner of State Revenue not to exempt their property, not being their principal residence, from assessment for land tax for the year 2003.

Background

2 The applicant and his wife lived in a property at Naremburn which had been leased by them for 12 months; the lease being due to expire on 9 July 2003. A property had been purchased by the applicant and his wife at Castlecrag with a view to them residing there; settlement of this purchase took place on 4 October 2002.

3 The applicant and his wife rented the subject property to tenants as and from 2 December 2002. The applicant submitted that they did this as they could not afford to break the lease of the property at Naremburn and, as they had a mortgage over the property at Castlecrag, economically and for security they rented out that property.

4 The applicant and his wife have a child with Asperger’s Syndrome and have a continuing concern that the child particularly needed a stable secure and settled home life to best alleviate the child’s resulting difficulties.

5 On 2 June 2003 the applicant and his family commenced moving into the property at Castlecrag and paid rent for the property at Naremburn up to and including 7 July 2003 and they had effectively moved into Castlecrag at that date.

6 The applicant was assisted in the purchase of the Castlecrag property by a conveyancer. He did not have the assistance of an accountant. He was aware of income tax provisions and he was aware of the land tax provisions set out in the Taxation Administration Act 1996 in respect of investment property only. He did not regard Castlecrag as an investment property.

7 The submissions of the applicant related to the unfairness of the imposition of land tax on Castlecrag as the applicant and his wife had purchased that property as their primary place of residence and that if they had broken the lease that they had entered into for the property at Naremburn they would have been responsible for paying out the lease which continued through to 9 July 2003. The applicant submitted that he and his wife would have been liable for an amount exceeding $6,193.65 if they had broken this lease.

8 As soon as the issue was brought to the attention of the applicant he responded to the Commissioner’s request for information and then subsequently promptly attended to payment of the tax assessed.

9 The applicant has paid the full amount of the tax including interest on the assessed amount of land tax.

10 The applicant and his family moved into the property that they had purchased as their principal place of residence some eight months after the date of purchase. The delay in the move to the property at Castlecrag was primarily for economic purposes although the applicant and his wife were concerned not to disrupt their children unduly.

11 The operation of the provisions of the Land Tax Management Act 1956 are clear in this regard and the Office of State Revenue has undertaken steps to bring the attention of liability of land tax to the general public including providing a telephone advisory service.

12 The applicant had the assistance of professional services in terms of his conveyance and then later the renting of his property.

Decision

13 For the above reasons the decision of the Commissioner of State Revenue to impose land tax is confirmed. Any interest or penalties to be refunded to the applicant.