Zimmermann v Commissioner for Act Revenue (Administrative Review)

[2018] ACAT 93

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ZIMMERMANN v COMMISSIONER FOR ACT REVENUE (Administrative Review) [2018] ACAT 93

AT 26/2018

Catchwords:              ADMINISTRATIVE REVIEW – land tax – adult son residing in former family home and regularly paying money to the registered proprietor, his mother, who was living interstate – whether there was a tenancy agreement – whether family arrangement – whether premises were rented as defined in section 7 of the Land Tax Act 2004 – they were not

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 s 68

Land Tax Act 2004 ss 7, 8, 9, 17, 19, 19A, 38

Residential Tenancies Act 1997 s 6A
Taxation Administration Act 1999 ss 4, 7, 14, 25, 100, 101, 103, 107, 107A

Cases cited:               Ashton v Pratt [2015] NSWCA 12

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Johnson and Davenport v Commissioner for ACT Revenue [2016] ACAT 146
Mastoris v Commissioner for ACT Revenue [2010] ACAT 75
Scott & Anor v Commissioner for ACT Revenue [2013] ACAT 73
Zimmermann v Commissioner for ACT Revenue [2017] ACAT 75

Tribunal:Presidential Member E Symons

Date of Orders:           21 September 2018

Date of Reasons for Decision:         21 September 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 26/2018  

BETWEEN:   

RUBY ZIMMERMANN

Applicant

AND:  

COMMISSIONER FOR ACT REVENUE

Respondent

TRIBUNAL:Presidential Member E Symons

DATE:21 September 2018

ORDER

The Tribunal orders that:

1.The decision under review is set aside.

2.The property at block 45 section 25 Hughes was not subject to land tax under the Land Tax Act 2004 from 1 July 2009 to 31 December 2014.

………………………………..

Presidential Member E Symons

REASONS FOR DECISION

Background

1.This application to the ACT Civil and Administrative Tribunal (Tribunal) seeks review of a decision (reviewable decision) made by an objections officer of the Commissioner for ACT Revenue (respondent) on 19 March 2018.[1] The reviewable decision disallowed Ruby Zimmerman’s (applicant) objection to assessments of land tax issued on 5 December 2014 in respect of the applicant’s property located at block 45 section 25 Hughes (property). The land tax was assessed at $31,239.90 together with interest of $11,026.22.

[1] Exhibit A3 T Documents (T) at pages 10 - 17

2.The applicant seeks an order that the respondent’s reviewable decision be quashed and substituted with an order that the applicant is not liable to pay land tax during the assessment periods. The applicant submits that the property was not rented within the meaning of the land tax legislation during the period of the assessments; this was a family arrangement; Mr Zimmermann’s payments were voluntary and not in consideration for living in the property; he would not be evicted if he stopped making the payments and he was not liable to make these payments.

3.The matter was heard on 25 August 2018. The applicant was represented by Mr Bill Piper, lawyer. Mr Marcus Hassall of counsel, instructed by Ms Susan Lane of the office of the ACT Government Solicitor appeared for the respondent. The applicant and her son, Michael Zimmerman, gave evidence and were cross examined. After hearing submissions the Tribunal reserved its decision at the conclusion of the hearing. This is the Tribunal’s decision.

4.In these reasons for decision the Tribunal hearing this matter is referred to as Tribunal. References to tribunal or ACAT in these reasons refer to the ACT Civil and Administrative Tribunal generally.

Relevant facts

5.The applicant and her former husband purchased the property in 1977. It was their family home. The applicant became the sole owner of the property on 9 November 2000. She was residing there with her three children.

6.In 2004 the applicant moved to Darwin and left her three adult children residing in the property.

7.By 2009, the applicant’s son, Michael Zimmermann, who was then aged 28 years, was the sole occupant of the property. On or about 11 June 2009 Mr Zimmermann offered to and commenced making regular payments to the applicant of $600 per fortnight. Mr Zimmermann said he made these payments because of his mother’s then poor financial circumstances.

8.Mr Zimmermann made these payments by fortnightly electronic transfers to the applicant’s bank account. Mr Zimmermann described these payments in his bank records as “rent”.

9.In September 2010 Mr Zimmermann increased the amount of his fortnightly payments to the applicant to $1,000. From about 2011, the applicant, via separate bank transactions, returned a sum of about $200 a fortnight to Mr Zimmermann.

10.Mr Zimmermann’s fortnightly payments to the applicant continued until 29 June 2017. Mr Zimmermann resided at the property throughout this period. His payments were in excess of $140,000 during this period.

11.Mr Zimmermann also received payments totalling approximately $33,000 from an additional person residing at the property during the following periods:

(a)From May 2013 – September 2013: around $190 per week;

(b)From November 2013 – February 2016: $165 per week; and

(c)From March 2016 – January 2017: $195 per week.

12.In 2017 Mr Zimmermann described the arrangement in the previous paragraph as a “subletting” arrangement.[2]

[2] In his witness statement dated 8 June 2017, at [5] in Zimmermann v Commissioner for ACT Revenue [2017] ACAT 75

13.Between about July 2004 and about October 2014 the respondent sent ‘Rates Assessment Notices’ to the applicant by sending the notices to the property. A proportion of the total amount of the rates was paid by or on behalf of the applicant. As at 28 October 2014 the applicant owed an accumulated total of $6,345.32 in outstanding rates to the respondent.

14.When the applicant became aware of the rates arrears she sought the assistance of a financial counsellor with Anglicare in Darwin on 28 October 2014. The financial counsellor prepared and lodged on her behalf with the respondent a ‘Hardship Arrangement Request’ to pay the outstanding rates by instalments. The supporting documents provided with the Hardship Arrangement Request included a spread sheet titled ‘My Budget’ which showed, as an item of income, ‘rent’ of $1,000 per fortnight.

15.On 29 October 2014 the respondent sought clarification, by email, from the financial counsellor of the rental status of the property. The respondent set out in that email the applicant’s obligation to notify the respondent of the rental status of the property.

16.On 4 December 2014 the applicant emailed to the respondent a completed ‘Notification of rental status of a residential property’ form in which she stated that the property had been rented since 11 June 2009.

17.On 5 December 2014 the respondent assessed the applicant liable to pay land tax for the period 1 July 2009 to 31 December 2014 in the sum of $31,239.90 together with interest of $11,026.22.

18.On 29 March 2015 the respondent notified the applicant by email that the arrears of rates and land tax totalled $49,651.15 and requested the applicant’s up to date postal address.

19.On 15 April 2015 the respondent posted a land tax assessment notice to the applicant at her Darwin postal address showing a total amount payable of $26,198.43. On the reverse side of that notice was a boxed section ‘Objection Rights to Land Tax Assessment’ which provided advice as to the process for lodging an objection to the assessment.

20.The applicant did not lodge an objection to the land tax assessment until 23 May 2016. She then lodged a declaration sworn by her on 9 June 2016 explaining her reasons for the delay.

21.Pursuant to section 103 of the Taxation Administration Act1999 (TA Act) on 9 September 2016 the respondent declined to permit the applicant to lodge the objection out of time. On 3 November 2016 the applicant requested internal consideration of this decision and on 14 March 2017 the respondent affirmed its decision of 9 September 2016.

22.On 12 April 2017 the applicant applied to the tribunal for review of the decision made on 14 March 2017. After a hearing on 17 July 2017, the tribunal published its decision[3] on 21 September 2017 and ordered that:

[3] Zimmermann v Commissioner for ACT Revenue [2017] ACAT 75

1.       The decision under review is set aside.

2. Pursuant to section 103 of the Taxation Administration Act 1999 the applicant is granted permission to lodge an objection out of time to the land tax assessments issued on 5 December 2014.

3.       The applicant’s objection of 23 May 2016 and subsequent information provided shall form that objection.

23.On 22 September 2017 the respondent advised the applicant’s solicitors that it accepted the late objection.

24.On 12 October 2017 the applicant’s solicitors lodged a written objection to the assessments with the respondent.

25.On 19 March 2018 the respondent disallowed the applicant’s objection because the Delegate considered that the land tax and interest were correctly imposed.[4]

[4] T page 17

26.On 3 April 2018 the applicant filed an application with the tribunal seeking review of the 19 March 2018 decision referred to in the previous paragraph.

27.The application was listed for a directions hearing on 7 May 2018 at which the matter was set down for hearing on 24 August 2018 and directions were made for the further conduct of the matter.

28.The applicant filed two written statements from Ruby Zimmerman, the first dated 5 June 2018 (Exhibit A1) and the second dated 10 July 2018 (Exhibit A2) and a witness statement from Michael Zimmerman dated 4 June 2018 (Exhibit A4). In the earlier proceedings for an extension of time the applicant had filed a written statement dated 8 June 2017 and a written statement by Michael Zimmermann also dated 8 June 2017. The applicant’s solicitor also filed submissions dated 5 June 2018 in the present matter. The respondent filed its statement of facts and contentions and a witness statement from Dennis Duermeier, an Objections Officer with the respondent, dated 2 July 2018 (Exhibit R2) on 3 July 2018.

Applicable law

25.By virtue of Part 2 of the Land Tax Act 2004 (ACT) (LT Act) land tax is payable in the ACT, on a quarterly basis, on each parcel of rateable land that is “rented residential land” in that quarter.[5]

[5] Section 9 of the LT Act

26.Section 7 of the LT Act, as at December 2014, provides the following definitions for the purpose of Part 2:

7.     Definitions for pt 2

In this part:

rent means valuable consideration for which a tenant is liable under a tenancy agreement in relation to the tenancy or a period of the tenancy.

Residential tenancy agreement—

(a)means an agreement under which a person grants to someone else for value a right of occupation of a parcel of land for use as a residence—

(i)whether the right of occupation is exclusive or not; and

(ii)whether the agreement is express or implied; and

(iii)whether the agreement is in writing, is oral, or is partly in writing and partly oral; but

(b)does not include an agreement giving a right of occupation only as a boarder or lodger.

tenant means a person with a right of occupation under a tenancy agreement.

27.Section 6A of the Residential Tenancies Act 1997 (RT Act) states:

What is a residential tenancy agreement?

(1)     An agreement is a residential tenancy agreement if, under the agreement—

(a)a person gives someone else (the tenant ) a right to occupy stated premises; and

(b) the premises are for the tenant to use as a home (whether or not together with other people); and

(c) the right is given for value.

(2)     The agreement may be—

(a)express or implied; or

(b)in writing, oral, or partly in writing and partly oral.

(3)     The right to occupy may be—

(a)exclusive or not exclusive; and

(b)given with a right to use facilities, furniture or goods.

(4)     This section is subject to the following sections:

•section 6D (Certain kinds of agreements not residential tenancy agreements)

•section 6E (Certain people given right of occupation not tenants)

•section 6F (Certain kinds of premises mean no residential tenancy agreement).

28.Section 17 of the LT Act refers to the payment of land tax and provides:

Payment of land tax

(1)     Land tax in relation to a parcel of land is payable to the commissioner by the owner of the parcel.

(2)     A person who is the owner of the parcel of land is liable to pay to the commissioner any unpaid land tax payable in relation to the parcel, whether the amount became payable before or after the person became the owner.

(3) However, if the owner of the parcel is a person to whom the Taxation Administration Act, section 56H (3) (Tax payable is charge on land) applies in relation to the unpaid land tax, the amount is payable by the person who was the owner of the parcel for the period to which the liability relates.

(4)     The assessment notice for the land tax payable for a quarter for a parcel of land must state a date for payment of the land tax (the payment date ).

(5)     The payment date must not be earlier than 4 weeks after the date of the notice.

(6)     A person may pay the land tax in relation to which an assessment notice has been given—

(a)if the amount payable is for a quarter and any arrears of land tax in relation to previous quarters have been paid in full—by paying, on or before the date for the payment of the land tax, the amount of the land tax; or

(b)by paying the amounts on the days that the person wishes, but so that the amount owing on the date for payment is paid no later than the date for payment.

(7)     In this section:

“assessment notice”, in relation to land tax, means a notice of assessment under the Taxation Administration Act, section 14 in relation to the land tax.

“land tax” includes a foreign ownership surcharge.

29.The LT Act is a ‘tax law’ for the purposes of the Taxation Administration Act 1999 (TA Act).[6] Pursuant to section 7 of the TA Act the Commissioner for ACT Revenue has power to make an assessment of a taxpayer’s liability. It provides:

[6] Section 4(e) of the TA Act

7        General power to make assessment

(1)The commissioner may make an assessment of the tax liability of a taxpayer.

(2)An assessment of a tax liability may—

(a)consist of a determination that there is not a particular tax liability; or

(b)include an assessment of the value of anything for the purpose of assessing tax liability.

(3)The commissioner has the same powers of assessment in relation to a trustee of a deceased person as the commissioner would have in relation to the person if the person were alive.

30.Pursuant to subsection 14(1) of the TA Act the Commissioner has the power to issue a notice of assessment in relation to a taxpayer’s liability. It provides:

14     Notice of assessment, reassessment or withdrawal of assessment

(1)The commissioner may issue a notice of assessment, showing the amount of the assessment.

Note An assessment is an internally reviewable decision (see s 107, def internally reviewable decision), and the commissioner must give an internal review notice to the taxpayer (see s 107B).

31.Pursuant to sections 19 and 19A of the LT Act interest is payable on an amount of unpaid land tax for each month that the land tax remains.

32.Part 5.1 of the TA Act provides that if a tax default happens, the taxpayer is liable to pay interest on the amount of tax unpaid calculated in accordance with the provisions of Part 5.1. It states:

25 Interest in relation to tax defaults

(1)If a tax default happens, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate from time to time applying under this division.

(2)Interest is payable under this section in relation to a tax default that consists of a failure to pay penalty tax under division 5.2 but is not payable in relation to any failure to pay interest under this division.

33.Decisions about interest and any remittal are not reviewable by the tribunal.[7]

[7] Scott & Anor v Commissioner for ACT Revenue [2013] ACAT 73 at [11]; section 38 of the LT Act and section 107A, Schedule 1, item 1.2 of the TA Act

34.Section 100 of the TA Act provides that a taxpayer may lodge a written objection with the Commissioner in relation to a land tax assessment.[8]

[8] Section 100(a) of the TA Act

35.Pursuant to subsection 101(3) of the TA Act, when reviewing a decision of the respondent to which a taxpayer objects:

The burden of showing that an objection should be sustained lies with the taxpayer making the objection.

Tribunal jurisdiction and powers

36.Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides:

68     Review of decisions

(1)     This section applies if the tribunal reviews a decision by an entity.

(2)     The tribunal may exercise any function given by an Act to the entity for making the decision.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

(3)     The tribunal must, by order—

(a)confirm the decision; or

(b)vary the decision; or

(c)set aside the decision and—

(i)make a substitute decision; or

(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal

Issue

37.The issue for determination is whether the property was rented within the meaning of the Land Tax Act 2004 for the period 1 July 2009 to 31 December 2014.

Contentions

Applicant’s contentions

38.The applicant contends that the respondent’s decision to impose land tax on the payments Mr Zimmermann made to his mother, the applicant, latches on to the fact that the applicant and Mr Zimmermann have called the payments ‘rent’ at various times.

39.Mr Zimmermann said he described the payments as ‘rent’ in his bank statements as he wanted to demonstrate a history of regular payments once he was applying for rental housing. The applicant’s financial counsellor with Anglicare, whom she had consulted in relation to her financial circumstances including overdue rates, stated on the budget she prepared for the applicant, and provided to the respondent, that she was receiving ‘rent’ of $1,000 a fortnight in 2014. The applicant also completed the section of the ‘Notification of Rental Status of a Residential Property’ requiring her to insert the date from which the property has been rented.

40.The applicant contends[9] that in focussing on the applicant’s and her son’s use of the word ‘rent’ the respondent paid no or insufficient regard to the technical meaning of the word in the LT Act.

[9] Applicant’s Submissions 5 June 2018 at [5]

41.Section 9 of the LT Act provides that land tax is to be imposed on rateable land that is (a) rented residential land. The definition section, section 7 of the LT Act, relevantly states:

rent means valuable consideration for which a tenant is liable under a tenancy agreement in relation to the tenancy or period of tenancy.

And, as at December 2014:

Tenancy agreement – a. means an agreement under which a person grants to someone else for value a right of occupation the parcel of land for use as a residence …

42.Mr Piper contended that the LT Act is clear that there is a requirement that payment of rent is a “quid pro quo”[10] for residing at the property; otherwise it is not rent within the meaning of the LT Act. In this matter Mr Zimmermann’s voluntary payments to the applicant did not constitute consideration for being permitted to reside at the property. His occupation of the property was not contingent upon his payments to her.

[10] something given or received for something else (Miriam Webster online dictionary)

43.The applicant and Mr Zimmermann gave evidence of how the payments commenced and that there was no contemplation that he would be evicted if he did not make the fortnightly payments. He was living in the family home where he had lived since a baby; he enjoyed a good relationship with the applicant and he told her and the Tribunal that he made the voluntary payments because his mother was experiencing financial stress and he was helping his mother out by making the payments to her. He was not paying her this money in consideration for living in the property.

44.For these reasons the applicant contended that there is not a rental agreement between the applicant and her son for the purposes of section 9 of the LT Act by reference to section 7 of the LT Act.

45.The applicant contended, as in Mastoris v Commissioner for ACT Revenue (Mastoris)[11], the arrangement in the present matter was an arrangement between family members that falls short of meeting the criteria required for land tax to be imposed.

Respondent’s contentions

[11] [2010] ACAT 75

46.The respondent seeks that the decision under review be confirmed.

47.The respondent contends that the applicant and Mr Zimmermann, on becoming aware of the land tax implications, now seek to re-characterise Mr Zimmermann’s payments to his mother.

48.Evidence of their characterisation of the payments before December 2014 is found in Mr Zimmermann’s bank transaction reports between June 2009 and December 2014 where he described these payments as ‘rent’. The applicant also described the payments as ‘rent’ in her discussions with the Anglicare Financial Counsellor in October 2014 and in the ‘Notification of Rental Status of a Residential Property’ dated 4 December 2014. The respondent contends that this is the true nature of the payments.

49.The applicant and her son were free to enter into and did enter into a tenancy agreement within the meaning of section 7 of the LT Act. It was an oral, implied residential agreement with a non-exclusive right of occupation. Its commercial features included the substantial amount of money Mr Zimmermann paid; the regularity of the payments between 2009 and 2017 and Mr Zimmermann not missing a payment. The tenancy agreement was voluntarily entered into. Mr Zimmermann subsequently entered into sub-letting arrangements with other persons between 2013 and 2016 which reflected the commercial nature of the arrangement between the applicant and himself.

50.The respondent disputed the applicant’s proposition that if her son declined to make any of the payments she could have afforded to allow him to continue living at the property ‘rent-free’ whilst she resided in Darwin or that she would have permitted him to continue to live at the property ‘rent-free’.

51.The respondent contended that the applicant’s and Mr Zimmermann’s evidence as to what would have occurred if he had ceased making the payments was speculative and coloured by their mutual desire to avoid the imposition of land tax.

52.In interpreting ‘liable’ in the definition of rent in section 7[12] of the LT Act, the respondent submitted that the Tribunal should follow the interpretation adopted by the tribunal in Johnson v Davenport v Commissioner for ACT Revenue[13] (Johnson), namely “not necessarily a legal liability … an agreed or assumed responsibility for payment of the items of the type listed in the subsection.”

[12] See [5] above

[13] [2016] ACAT 146

53.While noting that Johnson concerned the interpretation of section 8 of the LT Act, the respondent urged that Johnson was persuasive authority, when considering section 7 of the LT Act, for the Tribunal to find that the payments by Mr Zimmermann were rent payments. The respondent noted that the occupants’ payments in Johnson were $600 a month and then $820 a month, substantially less than the fortnightly payments Mr Zimmermann had made and only over a period of three and a half years as opposed to the period of eight years in the present matter.

54.The respondent submitted that when Mr Zimmermann commenced making the payments to the applicant he was aged 28, in paid employment and the fact that he was staying in the property stopped the applicant from utilising the property as a financial resource available to her. While he had lived at the property since he was a baby, he was not a baby in 2009, when he commenced making these payments.

55.The respondent also submitted that the case of Mastoris was of limited assistance to the Tribunal as although that tribunal found that there was no tenancy agreement or rent payable in the terms of the LT Act it did not find, as a fact, that there had been any rental payments.

56.The respondent referred the Tribunal to decision of the New South Wales Court of Appeal in Ashton v Pratt (Ashton)[14] in relation to the role of presumptions concerning contractual and non-contractual effects of family arrangements.

[14] [2015] NSWCA 12

57.In Ashton the Court of Appeal said at [73]:

… in my opinion the effect of the decision of the High Court in Ermogenous[15] was that in considering the issue recourse should not be had to any presumption concerning the contractual or non-contractual effects of family arrangements. That does not mean that the relationship of the parties and the circumstances in which the arrangement was entered into are irrelevant to the question. To the contrary, these factors form part of the surrounding circumstances from which it will be determined whether or not a contract came into existence.

[15] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, where the High Court decided that there should not be a general rule or presumption. Rather, each case must be decided on its own facts.

58.The respondent also submitted, if the Tribunal determined that the property was not rented because Mr Zimmermann was making payments to his mother, then Tribunal should consider whether, when the additional occupants resided there and paid money to Mr Zimmermann, if the premises became ‘rented residential land’ within the meaning of section 9 of the LT Act at that time.

59.The respondent submitted that the Tribunal should find that the property was then rented residential land as there was no evidence of a personal relationship with the additional occupants, Mr Zimmermann described the arrangement in his June 2017 statement as ‘sub-letting’; the additional occupants had occupation of the whole house and not just part of it; and it was not a boarding or lodging arrangement within the meaning of section 7 of the LT Act. In these circumstances land tax would be payable by the applicant.

Applicant’s reply

60.The applicant submitted that the payments made by the additional occupants to Mr Zimmermann were not the subject of the Tribunal’s review, adding that it was overreach to ask the Tribunal to have jurisdiction over this issue and to claim tax on it. The arrangements for boarders and lodgers are excluded from land tax pursuant to section 7(b) of the LT Act.

61.The applicant further submitted that the respondent was selectively taking words from the applicant’s statements where she described the payments as ‘rent’ and ignoring the other words and statements made by her, namely “I am his mother”, “I would never kick my kids out” and “I would never rent my house to strangers.”

62.Lastly, the applicant submitted that the respondent described the applicant’s evidence as speculative when asked what would have happened if her son had not made the payments and having heard her say she would not evict him, then speculated, itself, about what she would do.

Consideration

Was the property rented within the meaning of the Land Tax Act 2004 for the period 1 July 2009 to 31 December 2014?

63.The applicant has the onus of proof. She provided six statements either to the respondent or to the Tribunal between 23 May 2016 and 10 July 2018.[16] Her evidence was that she continued to regard the property as her family home while she was living in Darwin. Many of her possessions, including warm clothes and personal effects remained in the property throughout the relevant period, and up until the property was sold earlier this year. She continued to return to Canberra at least once a year and she stayed with her children in the family home.[17]

[16] Letter to respondent dated 23 May 2016, statutory declaration 9 June 2016, statement 8 June 2017, evidence 13 July 2017, statement 5 June 2018 and statement 10 July 2017

[17] Exhibit A1 at [8]

64.At no time did she enter into a residential tenancy agreement, express or implied, in writing or pursuant to a verbal agreement, with her son. She did not ask him to pay rent. She did not consider the payments by Mr Zimmermann as rent or consideration for his continuing to reside in the property. The property was his family home, he had lived in it all his life and he was permitted to live in it whether he paid the applicant money or not. She said:

There was no obligation to my son to pay any money to me. If he did not pay, he could have continued to live there.[18]

[18] Exhibit A1 at [11]

65.Section 9 of the LT Act imposes the liability to pay land tax on rented residential land. Rent is defined in section 7 of the LT Act as ‘valuable consideration for which a tenant is liable under a tenancy agreement in relation to the tenancy or a period of the tenancy’. Tenancy agreement was defined as at December 2014 as “an agreement under which a person grants to someone else for value a right of occupation the parcel of land for use as a residence.”

66.The respondent submits that, notwithstanding their relationship as mother and son, the applicant and Mr Zimmermann were free to enter into and did enter into a ‘tenancy agreement’ within the meaning of section 7 of the LT Act; the agreement was express and implied; Mr Zimmermann was liable to make payments within the meaning of the definition of ‘rent’ in section 7; therefore the property was ‘rented residential land’ within the meaning of section 9 of the LT Act and the applicant was liable to pay land tax.

67.The respondent refers to and relies upon Mr Zimmermann’s description of his own payments to his mother as ‘rent’ and to the applicant’s use of the word ‘rent’ in the budget prepared by the financial counsellor in Darwin and in the notification of the property being rented as the truthful description of these payments.

68.The respondent urges the Tribunal to find that the applicant and Mr Zimmermann ceased using the word ‘rent’ once they became aware of the land tax implication. Further, the respondent submitted that the fact that the applicant said she would not evict Mr Zimmermann from the property if he stopped the payments does not alter the fact that she would have a right to evict him under the Residential Tenancies Act 1997.

69.In considering the meaning of ‘liability’ in section 7 of the LT Act the respondent referred the Tribunal to the earlier tribunal decision of Johnson in which that tribunal considered the meaning of ‘liability’ in section 8 of the LT Act. At [14] that tribunal said:

What is, therefore, the meaning of ‘liability’ in subsection 8? In my view, within its context, it is not necessarily a legal liability. For the purpose of this case I take it to mean an agreed or assumed responsibility for payment of the items of the type listed in the subsection. …

70.In the present matter the Tribunal is not considering section 8 of the LT Act. It is considering sections 7 and 9 of the LT Act. Mr Piper contended that the above statement in Johnson does not ameliorate the definition in section 7 of the LT Act. Section 7 requires ‘quid pro quo’; the meaning of rent denotes not just a liability but the grant of a right to occupy to someone for value. The Tribunal notes that Johnson concerned a non-family relationship and that that tribunal’s statement in [57] above is clearly prefaced by the statement “For the purposes of this case. …”

71.The applicant is not a sophisticated litigant. Her former husband had handled their financial matters during their marriage. The Northern Territory does not have land tax. The applicant and Mr Zimmermann have put on record numerous times the circumstances in which the payments were made. The applicant has always said that she does not believe what she was receiving from Mr Zimmermann was rent within the meaning of the LT Act. The property has been her children’s home since 1977.

72.When she was in financial difficulty Mr Zimmermann had the capacity and desire to help his mother. He had finished university and was working and living at the property. It was an arrangement between family members. Mr Zimmermann was not living at the property because he was paying the applicant rent.

73.Mr Piper contended that their evidence leads to the natural conclusion that there was not a tenancy agreement between the applicant and Mr Zimmermann within the meaning of the LT Act. The applicant has met the onus of proof; her evidence was not undermined and it should be accepted.

74.The Tribunal has considered the decision in Johnson. While that tribunal found that the applicants, who were the owners of the property, and the occupants were friends paying an amount of rent that was less than a commercial sum and voluntary, relevantly, it found that that amount was payable as intended to cover certain of the owners’ liabilities whilst the owners were living elsewhere and that these payments were being claimed by the owners as rent for tax purposes.

75.When considering the meaning of ‘liability’ in section 8(1) of the LT Act which is an exclusionary provision, that tribunal, for the purposes of that case, took it to mean an agreed or assumed liability and not necessarily a legal liability. In the present matter, unlike the Johnson matter, there was no evidence that Mr Zimmermann had an agreed liability to the applicant let alone a legal liability to pay rent. The Tribunal agrees with Mr Piper that each case needs to be determined on its merits and that the Johnson decision can’t be waved around as authority for “liability in the LT Act not meaning legal liability.”

76.The parties also referred the Tribunal to the tribunal decision of Mastoris. That tribunal considered two references to the payment of money, (i) a lump sum $4,000 to the applicant, the property owner, by his sister who subsequently lived at the property and (ii) a reference to the applicant’s sister paying the applicant $350 a week rent.

77.That tribunal found that the lump sum payment of $4,000 was a gift to the applicant with no expectation of anything in return and irrelevant in relation to the rent. The evidence in relation to the suggested payment of rent of $350 a week was found in a loan application not completed by the applicant and in evidence of a conversation the applicant’s partner had had with the respondent. That tribunal found that the respondent could not rely on the loan application and that the applicant’s partner’s understanding of whether or not the applicant’s sister had agreed to or was meant to be paying rent were unable to be relied on due to the level of emotions within the applicant’s family, the language barrier and the difficulty the applicant’s partner had in understanding what had occurred. That tribunal did not find that rent of $350 a week had been paid. It found that there was no tenancy agreement or rent payable in the terms of the LT Act.

78.The Tribunal found the applicant’s evidence and Mr Zimmermann’s evidence cogent and believable. The Tribunal is not satisfied from the evidence before it that either the applicant or her son were discussing a rental agreement when, in 2009, he volunteered to make payments to her. The impetus to make these payments came from Mr Zimmermann. He was aware that his mother, the applicant, was then experiencing financial stress and he said he wanted to help her. It was a family arrangement.

79.While Mr Zimmermann saw a benefit for himself in having a regular payment history, the Tribunal is satisfied and finds that it was his sole decision to make the payments and to describe the payments as rent in his own records. His characterisation of his payments as ‘rent’ in his own records does not denote that he was paying rent in consideration for a right of occupation. There was no credible evidence that Mr Zimmermann’s payments were in consideration of him residing at the property.

80.There was, however, credible evidence from the applicant that she would not remove Mr Zimmermann if he did not make any payment to her. She said[19]:

I repeat my previous explanations that my son made these payments to me as a son seeking to assist his mother. If he did not make these payments to me, I would not have removed him from the home, or let the property to any other tenants. It was his decision to assist me, knowing that I was under financial hardship. I was grateful to him. At no stage would I have held him liable to make any payment to me at any point in time.

[19] Exhibit A1 at [13]

81.There was also no evidence, as the Tribunal would expect if parties were discussing entering into a residential tenancy agreement, that Mr Zimmermann should pay a bond or in fact paid a bond. There was no evidence that the applicant had claimed the property as a rental property for taxation purposes before the land tax was assessed. She said she had never treated the property as an investment before the land tax was assessed.

82.While the applicant did not deny that she had referred to the payments as ‘rent’ in the budget prepared by the financial counsellor and in the notification of rental status she said[20]:

… The Notice said I would be committing a serious offence if I gave misleading information. It did not provide information as to the meaning of “rent” or “rental status” for the purpose of the Land Tax Act. I thought it appropriate to disclose the payments made by my son as a precaution.

Had I been aware that ‘rent’ and ‘tenancy agreement’ were defined in the Land Tax Act, as I now understand they are, as meaning “valuable consideration for which a tenant is liable under a tenancy agreement”; and “valuable consideration for which a person grants someone else for value a right of occupation …”, respectively, I say today that I would not have described the payments that I received from my son as rent, as I don’t believe his payments meet that description.

[20] Exhibit A1 at [19], [20]

83.In his statement dated 4 June 2018[21] Mr Zimmermann stated:

3.       In about 2009, I was living in the family home and not contributing to my mother’s mortgage, when I became aware my mother had some financial stresses. She was living in Darwin, which is very expensive. She has not re-partnered since separating with my father, and she was having trouble making ends meet, including her expenses associated with the family home in Canberra. I told her that I would start giving her regular money to help her out, I was also thinking at this time that it would be in my interest to demonstrate I had an ability to have a positive rental history for the day that I leave home. As (sic) I was concerned that lessors and agents would look upon me unfavourably if I did not have a rental history.

and

10.    It was always my understanding that my mother would return to live at the family home at some stage. In the meantime, we all treated it as our family home. My siblings would come and go as they pleased and kept personal effects at the home. My mother would come and go as she pleased and would leave her warm clothes and other personal effects at the home, while she was away in Darwin.

11.    I promise it was my decision to offer money to my mother to help her out financially, and I did not consider my payment in exchange for living in my family home.

[21] Exhibit A4

84.Mr Zimmermann agreed that he had had another person boarding at the property and sharing the house between May 2013 and January 2017. That person changed during this period but there was only one other person at the property at any one time. Mr Zimmermann rejected the respondent’s suggestion that he changed the description of this arrangement from ‘sub-letting’ in his June 2017 statement to “receiving payments from sharing the house from boarders”[22] in his subsequent statement because he was trying to avoid the land tax for his mother.

[22] Exhibit A4 at [5], [6]

85.While Mr Piper correctly identified that the payments made to Mr Zimmermann were not the subject of the Tribunal’s review, as this issue was raised during submissions the Tribunal has considered it.

86.There was a dearth of evidence in relation to this issue. The Tribunal did not have any evidence from any of the occupants during the period referred to above. While the applicant said she knew that her son was getting money from the occupant during that time there was simply no credible evidence that the applicant initiated or was involved in her son entering into this arrangement. The Tribunal finds that it was not a commercial arrangement for the applicant or involving her. Having considered Mr Zimmermann’s limited evidence in this regard it appears to the Tribunal that it is possible that the arrangement was more likely than not a boarding arrangement. If that is the case then the property would not become rented premises.

87.The respondent has now had the opportunity to cross examine the applicant and Mr Zimmermann in relation to their numerous written statements in relation to the payments to the applicant. While some words may have changed in the statements over time the fact is that the applicant’s position has not changed. She put her position succinctly in her last statement where she said:[23]

… I have only ever tried to make it clear to anyone hearing my objection that the impetus for making the payments came from my son. He was able to help me out for the very reason that he was not living somewhere else and paying rent. He was living in his family home, where he had lived since he was a baby. He could afford to and wanted to help me out. There is no way I would have removed him from the home for failure to pay rent. All I have asked is that this be taken into account when deciding whether I should be liable to pay land tax.

[23] Exhibit A2 at [5]

88.Having considered all of the evidence and the parties’ submissions and for the above reasons, the Tribunal is satisfied and finds that Mr Zimmermann’s payments to the applicant were voluntary and not in consideration for the right to live in the property, or as Mr Piper put it, there was no ‘quid pro quo’.

89.The Tribunal finds that the payments do not meet the definition of ‘rent’ and there is not a residential tenancy agreement as defined in section 7 of the LT Act at the relevant time. The applicant has discharged the onus of proof.

Conclusion

90.The decision under review is set aside.

………………………………..

Presidential Member E Symons

HEARING DETAILS

FILE NUMBER:	AT 26/2018
PARTIES, APPLICANT:	Ruby Zimmermann
PARTIES, RESPONDENT:	Commissioner For ACT Revenue
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Mr Marcus Hassall
SOLICITORS FOR APPLICANT	Piper Ellis Lawyers
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Presidential Member E Symons
DATES OF HEARING:	25 August 2018