Cecere v Chief Commissioner of State Revenue

Judgment (8 paragraphs)

[1]

Introduction

This is an application to the Tribunal under s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for a review of an assessment of land tax for the 2017 land tax year issued to the Applicant on 10 May 2021 in respect of property owned by him in Cabarita (Assessment).
The Applicant claims that he is entitled to an exemption from land tax in respect of that property as he used and occupied that property as his principal place of residence for the 2017 land tax year. He claims that during 2016 he moved from his previous residence in Concord into the Cabarita property. The Respondent has granted the Applicant the principal place of residence exemption for the 2017 year for the Concord property. The Applicant accepts that, if the Tribunal were to find that the principal place of residence exemption applied to the Cabarita property for the 2017 year, land tax will be payable by him for that year in respect of the Concord Property.
The Respondent's case is that the Applicant has not established that the Cabarita property was his principal place of residence for the 2017 year.
The Applicant objected to the Assessment and the Respondent disallowed that objection by notice dated 31 August 2021.
The decision is administratively reviewable by the Tribunal by virtue of s 96 of the Taxation Administration Act 1996 (NSW) (TA Act).
It is the decision to assess land tax, not the decision on the objection, which is the subject of the review: Singh v Chief Commissioner of State Revenue [2016] NSWCATAD 9 at [10] - [13].
In conducting the review, the Tribunal is required to determine the correct and preferable decision having regard to the material before it and the applicable law: s 63 of the ADR Act.

[2]

The Evidence

The Applicant says he moved into the Cabarita property during the course of 2016. However, the Applicant's evidence as to precisely when he had moved into the Cabarita property permanently was somewhat confusing.
The statutory declaration which the Applicant made in identical terms in November 2021 before two different witnesses states: Vince Cecere [address] -unemployed Make the following declaration under the Statutory Declarations Act 1959: Since early 2016, to present day - have been domiciled at [street address] cabarita. This abode has been my permanent and primacy address
It is not clear why the Applicant made this declaration twice, but it may have been under a mistaken belief that those witnessing his declaration were attesting to the truth of the statement made in the declaration. That is not the case. All that the witnesses attest to is that the Applicant made the declaration in their presence.
In a Land Tax Questionnaire the Applicant completed on 14 February 2021, the Applicant indicated that he had occupied the Cabarita property from "Jan 14". The Applicant conceded in cross-examination that this was incorrect.
In the Applicant's objection in respect of the Assessment he states: In February 2016, I discussed with OSR my move from my then primary residence to my new primary residence.
In the Respondent's files there is a file note of a conversation between the Applicant and a Ms Sherritt of the Office of State Revenue on 24 February 2016 which states: TCC - Vince …adv he is doing a knock down rebuild on [the Cabarita property] but is living in [the Concord property] as PPR. Adv can only receive on(sic) PPR per family
When the Applicant was taken to the file note in cross-examination, he said that this was a paraphrase of the conversation, it was not his phraseology. He said that he was not doing a knock down rebuild of the Cabarita property and would not have advised that he was. He said he was doing a material refurbishment of the property and in early February 2016 he was in transition between the Concord and Cabarita properties.
In the Respondent's files there is a file note of a further conversation between the Applicant and a Ms Cull of the Office of State Revenue on 30 November 2016. That note states: Spoke with: Vince (Land Owner) Customer updated property address to [Cabarita property]…client will update online himself. Advd how to use online service
The Respondent took the Applicant to a Land Tax Variation Return dated 30 November 2016. That document records "Submitter's details" as "Vincenzo Cecere" and under the heading "Exemptions (New)" the following is recorded in respect of the Cabarita property: Exemption Type Sch 1A Clause 2(1)(a) - residential land - Principal Place of Residence Start Date 30-Nov-2016
The Applicant said that he had never seen this document before. He said that on 30 November 2016 he filled out an online form and that must have generated this return.
There is also in evidence an undated letter addressed to the Office of State Revenue which the Applicant provided to the Respondent together with his objection. In one instance he said that he had sent it in "circa May/June" 2016. Elsewhere the Applicant has stated that the letter was sent "sometime during Mar 16".
The undated letter states: Following some discussions with your organisation, I wish to formally inform the OSR, that as of end of Feb 2016, my new house in [Cabarita], will be legally and from an insurance perspective be deemed "liveable". That is; it has a kitchen, bedroom and toilet, and the insurance company will offer cover. So my residence of many years [Concord] will stop being my primary residence, over the coming weeks. The property will remain vacant, until a decision is taken as to its fate: sell or lease
Elsewhere, the Applicant has indicated that the letter contained a typo, and "Feb 16" should have been a reference to "Feb 15" and that this letter was provided to the Office of State Revenue in "early 2015".
In cross-examination, I understood the Applicant to say that in fact the reference to "Feb 16" should have been a reference, not to Feb 15 but, to late 2015 because "definitely by the end of 2015 the Cabarita property was liveable".
The Applicant was taken by the Respondent to a number of aerial photographs of the Cabarita property at November 2015, January 2016, May 2016 and November 2016.
The November 2015 photos show the property as not having a roof. The Applicant said that did not mean the property was not liveable. He said it was a two storey property and at that time, the kitchen, bathroom and toilet were on the lower level.
The May 2016 photograph shows the property as having a roof. The Applicant agreed that there were still some works being carried out at that time, in particular the garage was still in progress. However, he said that he was living in the property while the renovations were being completed. He said he started to live in the property in "early 2016".
In his evidence given at the hearing, the Applicant said that he did not do "one big move". The only things he really needed to move were his study and some infrastructure. Everything else he abandoned in Concord. He said that he did the move himself with his car - he moved clothes, books and pots and pans himself.
The Applicant leased the Concord property to a tenant on or around 20 September 2017. The Applicant says that between the time he moved into the Cabarita property and the time he leased the Concord property it was vacant as he was deciding whether to sell or lease that property.
The Respondent asked the Applicant on a number of occasions (during the course of the investigation giving rise to the Assessment and during the course of determining the objection) for documents which would help support the Applicant's claim that the Cabarita property was his principal place of residence, such as electricity bills, telephone bills, gas bills, contents insurance policies or removalists receipts.
The Applicant said at the hearing that he hadn't been given direction in relation to the type of evidence the Respondent wanted. However, I do not accept that was the case.
In response to these various requests the Applicant has provided copies of the following documents: 1. An Energy Australia invoice dated 1 February 2016 in respect of electricity for the period 27 October 2015 to 28 January 2016 in an amount of $ 79.37 (not taking into account the balance carried forward). This shows an average daily use of 0.49kWh compared to a "same time last year" as 0 kWh and an average daily consumption for households of one without a swimming pool as 10.6kWh; 2. An Energy Australia invoice dated 29 April 2016 in respect of electricity to the Cabarita property for the period 29 January 2016 to 27 April 2016 in an amount of $73.80. This shows an average daily use of 0.39kWh compared to a "same time last year" as 4.96 kWh and an average daily consumption for households of one without a swimming pool as 10.5kWh; 3. An Energy Australia invoice dated 28 July 2016 in respect of electricity to the Cabarita property for the period 28 April 2016 to 27 July 2016 in an amount of $80.15; 4. An Energy Australia invoice dated 27 October 2016 in respect of electricity to the Cabarita property for the period 29 July 2016 to 26 October 2016 in an amount of $98.73; 5. Payment reminder notices from Sydney Water which do not disclose on their face the period of time they relate to; 6. An insurance Policy from NRMA which covers the period 1 January 2017 to 1 January 2018 which covers building and contents. (The Applicant also provided to the Tribunal a current insurance policy for the property which notes the building as having been built in approximately 2015.); 7. A copy of a memorandum of agreement (MOA) dated January 2015 between the Applicant and the then tenant of the Cabarita property whereby the tenant agreed to vacate the property for a period of "circa 40 weeks" and "after the refurbishment" agreed to return to the premises and sign a new lease. The Applicant says that the MOA was never executed because of the change in circumstance whereby he moved into the property; 8. A copy of the undated letter to the OSR referred to above at paragraphs [34] - [35].
The Applicant has stated that he did not have a landline at the property and did not have a removalist receipt because he made the move incrementally himself.
The results of the Respondent's search of electoral roll records show that the Applicant's address on the electoral roll was changed to the Cabarita property on 13 November 2017. The Applicant says that this is because he did not update his details until some time after he had moved in and this does not reflect that he was not in fact living at the Cabarita property earlier than November 2017.
The Respondent has also put into evidence copies of the following documents: 1. A warranty certifying that insulation product was installed at the property on 9 August 2016; 2. A certificate of compliance for electrical work for a "new installation" including switchboards, circuits, lighting and appliances which certifies that tests were carried out and the installation work was visually checked on 25 February 2017 (although I note that the Date of Testing appears to have been superimposed on a date which had earlier been written which is unclear but appears to be sometime in November 2016); 3. A certificate of compliance for plumbing and drainage work which describes the work carried out as including connection to water supply and connection to sewer certifying the work was completed on 15 December 2016; 4. A certificate of compliance for a new installation of natural gas supply which notes the date work commenced as 6 June 2016 and certifies, as at 5 June 2017, that the installation is in safe working order; 5. RMS information which indicates that the Applicant changed his address for his driver's licence purposes from Concord to Cabarita on 9 November 2017. When asked in cross-examination whether this was the date that he advised a change of address to RMS he said "I cannot recall, that is probably right". 6. Invoices from Sydney Water in respect of the Cabarita property which show estimated water usage: 1. For the period 30 October 2015 to 1 February 2016 of 22KL; 2. For the period 1 February 2016 to 3 May 2016 of 12KL; and 3. For the period 3 May 2016 to 29 July 2016 of 14KL; 1. A Sydney Water information leaflet headed "Average daily water use" which states that the average daily water usage for a single lot dwelling is 623 metric litres/day; 2. The final occupation certificate certified by Pyramid Building Services in respect of the property dated 19 June 2018 (TB p 465).

Consideration

Section 100(3) of the TA Act makes it clear that in reviews of this nature by the Tribunal the Applicant has the onus of proving his case. This requires him to prove all matters necessary for the Tribunal to answer the statutory question in his favour on the balance of probabilities: Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [28] - [31]; Raissis v Chief Commissioner of State Revenue [2021] NSWCATAD 99.
Clause 2 of Schedule 1A to the LTMA sets out the statutory question which the Tribunal is required to answer in this case. In order for the principal place of residence exemption to apply the Tribunal must be satisfied that, as at 31 December 2016, either: 1. the Cabarita property, and no other land, had been continuously used and occupied by the Applicant for residential purposes and for no other purposes since 1 July 2016; or 2. that the Cabarita property was used and occupied by the Applicant as his principal place of residence.
In Yen-Cheng Chuang v Chief Commissioner of State Revenue [2009] NSWADT 160 at [19] - [23] the Administrative Decisions Tribunal summarised the general principles to be applied in determining a person's principal place of residence as follows: 19 The Act does not provide any technical or legal meaning for the expression "principal place of residence" and accordingly, the expression has its ordinary meaning. A person's place of residence is usually understood as "the place where he eats, drinks and sleeps" (per Ridley J in Stoke-On-Trent Borough Council v Cheshire County Council [1915] 3 KB 699 at 706). The use of the term "principal" in the expression suggests that a person may use and occupy more than one residence but that the exemption is only available for the principal place of residence of the person. 20 In ascertaining whether a particular residence of a person is the principal place of residence of that person it is necessary to use an objective test and the conclusion is determined by considering the extent and quality of use and occupation of the residence in each case (per Fryberg J in Dean v Commissioner of Stamp Duties (Qld)(No 2) [1996] 2 Qd R 557 in considering the meaning of the expression "principal place of residence" found in the Stamps Act 1894 (Qld)). 21 The onus to establish one's principal place of residence is usually discharged on the basis of various matters. It is important to note, as observed by the Victorian Civil and Administrative Tribunal in Re Ziino and Commissioner of State Revenue [2004] VCAT 1707 that: "… while sleeping by itself in a place can be an indication of a principal place of residence, it is not the sole matter to be taken into account. One needs to look at a whole indicia of matters …One needs to look as well at where the applicant ate; his use of electricity and the furniture and fittings and other matters such as entertainment of friends in the house… Sleeping in a place does not make a residence. It has got to be the whole indicia of things that are done in a home which are described in the cases…" 22 Other indicia of matters would include evidence of an applicant's use of the address of the property as the residential address for purposes of his or her mail, driving licence, on the electoral roll, in immigration records, income tax returns and telephone bills. 23 In Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41 the Appeal Panel of the Tribunal agreed that "to occupy a home as his or her principal place of residence a person's occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor occupation for any other reason". The Appeal Panel also held that "the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue". (Also see Zakariya v Chief Commissioner of State Revenue [2003] NSWADT 26).
The Applicant's evidence was that he was domiciled at the Cabarita property since sometime in 2016 and that he considered it his permanent and primary address. However, the Applicant's evidence as to precisely when he moved into the property permanently is confusing. In various places, he has mentioned several different possible times ranging between early 2016 and November 2016.
Other than the evidence the Applicant gave at the hearing as to moving in his clothes, books and pots and pans, and that at the time he moved in there was a kitchen, bathroom and toilet on the lower level of the property there is also no evidence before the Tribunal as to the nature or quality of the Applicant's use and occupation of the property.
The Applicant explained that the inconsistencies in his evidence as to the timing of matters should be put down to him fumbling with his English and with the technicalities as he is 71 years old and asked the Tribunal to show him some leniency.
However, it is not a question of showing leniency. The question is whether the Applicant has satisfied his onus of proof. There is no legislative provision or authority which gives the Respondent or the Tribunal a discretionary power to grant the exemption if it is not satisfied that the statutory criteria are met: Chu v Chief Commissioner of State Revenue [2021] NSWCATAD 238. The Respondent and the Tribunal are required to administer the law in accordance with its terms.
It is clear from the correspondence in evidence that the Applicant considered that the Respondent's requests for documentation supporting his claim to the exemption were unreasonable. In response to the Objection team's request for further information he said that if the request for further information was to test the veracity of his integrity, he took "material issue with that". He said that he considered he had provided "fair and reasonable" information.
I accept that the Applicant moved items into the property himself which explains why he did not have a receipt from a removalist company. However, it is more difficult to understand his failure, even now, to provide other supporting documents such as utilities bills. While the Applicant said that he could not locate them, he does not say whether any attempt was made by him to obtain copies from the relevant service providers.
The limited information the Applicant has provided does not support his claim and it is not sufficient for the Applicant merely to state that he lived at the property as his principal place of residence even if by way of statutory declaration.
While I am not suggesting the Applicant has been deliberately untruthful or has sought to mislead the Respondent or the Tribunal in any way, there are numerous authorities which caution against the unqualified acceptance of self-serving statements directed towards the ultimate issue in revenue cases, particularly where there is evidence that points in a different direction: Chapman v Chief Commissioner of State Revenue [2010] NSWADT 124 at [130]. As the Tribunal stated in Hashim v Chief Commissioner of State Revenue [2020] NSWCATAD 67 at [76]-[77]: 76 In those circumstances I must exercise substantial caution in accepting in any unqualified manner the statements by Mr Hashim or Ms Abbassi which assert that she made contributions to the purchase price for the Mays Hill property or which assert her ownership or equitable interest in that property. That is because such statements appear to be self-serving statements relevant directly to the issue of the validity of the Second FHOG Application and which therefore go directly to the resolution of the issue of Ms Abbassi's ownership and also to the duty exemption issue. In Warriewood Pty Ltd v FCT 93 ATC 4653, Lockhart J observed that: "Statements by taxpayers.. must be scrutinised with care, weighed against the objective facts and inferences to be drawn from the taxpayer's activities generally. 77 In that matter, Justice Lockhart also relied particularly on the observations and findings of the High Court in Pascoe v Commissioner of Taxation (1956) 30 ALJ 402 at 403, per Fullagar J, that statements of the kind described above must "be considered most closely and received with the greatest caution".
The Tribunal has no evidence before it as to how much time the Applicant spent at the property, how many nights the Applicant slept there, whether he ate there, the furniture he used there or whether he entertained there. There is no evidence as to utilities usage for much of the 2016 year, including over the relevant taxing date, 31 December 2016. The insurance policy that the Applicant has provided does not relate to the 2016 year. It relates to the 2017 year and I note that it is addressed to the Applicant and his wife at their Concord address. The fact that the 2022 insurance policy notes that the building was built in 2015 also does not assist the Applicant as that would have been information provided by the Applicant to the insurer. Further, even if the building had been completed in 2015 (which based on the photos in evidence is clear was not the case), that still would not establish that the Applicant lived there at or since that time.
The evidence provided by the Applicant's two neighbours also does not assist him. Neither could say when in 2016 the Applicant moved to the Cabarita property or whether they went inside the property at any time in 2016. Nor has the Applicant called any family members to give evidence.
The MOA that the Applicant provided to the Respondent assists neither the Applicant nor the Respondent.
There are a number of facts which do not tend to support a conclusion that the Applicant used and occupied the Cabarita property as his principal place of residence: 1. While the Applicant said that nothing should be read into utilities usage as "how he lives his life is his business", electricity usage at the Cabarita property for the periods in respect of which invoices are available was significantly below the daily average electricity usage for a one person household; 2. Similarly, estimated water usage at the Cabarita property for the periods in respect of which invoices are available was also well below the daily average (although I accept this is an estimated usage only and so less weight should be afforded to this matter); 3. While the Applicant says that he did not get around to changing it for some time, nevertheless the fact remains that the Applicant did not change his electoral address from the Concord Property to the Cabarita property until November 2017; 4. Similarly, the Applicant did not change his address with RMS for his driver's licence until November 2017.
I do not consider the fact that construction work may have been ongoing and certificates of compliance in respect of electricity, water and gas were not issued until December 2016 or sometime in 2017 as necessarily pointing against a conclusion that the Applicant lived in the property during 2016. The Applicant said that he lived there while the renovations were continuing. The legislation does not require that the use and occupation must be lawful, in the sense of complying with requirements of relevant planning legislation: De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86.
The Applicant said that when he moved into the property there was a kitchen, bathroom and toilet on the lower level so that the absence of a roof did not preclude him living there. I note that plans for the property show the kitchen located on the top floor of the property (TB pp 152, 179 and 180). However, in any event, the roof was in place by May 2016.
I accept that the Applicant may have spent time at the Cabarita property from some point in 2016 while the renovations were ongoing. However, I cannot be satisfied on the basis of the evidence before the Tribunal that he used and occupied the property continuously for residential purposes from 1 July 2016 onwards.
As to the second limb of the statutory test, the question is not whether the Applicant merely resided at the property, but whether he resided there as his principal place of residence. A person may reside at more than one place, but only one of those places can be their principal place of residence for the relevant tax year: Black v Chief Commissioner of State Revenue [2011] NSWADT 66 at [81].
The Applicant had another property at Concord which he had been residing at before he moved to Cabarita, it was not tenanted until 2017 and it was listed as the Applicant's address in official records. The Respondent has granted the Applicant the principal place of residence exemption in respect of that property. As the Respondent correctly submits, it is not for the Respondent to prove that the Concord property was the Applicant's principal place of residence. It is for the Applicant to establish that the Cabarita property was.
While it may have been the Applicant's intention that the Cabarita property would be his principal place of residence, and he may even have considered it to be so, subjective intention is not enough. Intention is relevant but not determinative. The legislation requires an actual occupation with the requisite degree of permanence, not merely an intention: Zakariya v Chief Commissioner of State Revenue [2003] NSWADT 26 at [14].
I do not consider that the Applicant has established on the evidence that his occupation of the Cabarita property had the requisite degree of permanence to establish that it was his principal place of residence. It is the quality and nature of the occupation which determines that element of permanence and there is simply insufficient evidence before the Tribunal to be satisfied as to the quality or nature of the Applicant's occupation of the property during the relevant period.
Accordingly, there is insufficient evidence to be satisfied either: 1. that the Cabarita property, and no other land, had been continuously used and occupied by the Applicant for residential purposes and for no other purposes since 1 July 2016; or 2. that the Cabarita property was used and occupied by the Applicant as his principal place of residence.
It follows that I find that the correct and preferable decision is that the Applicant is not entitled to the principal place of residence exemption in respect of the Cabarita property for the 2017 land tax year and that the Assessment should be confirmed.
The Applicant indicated that he also took issue with the interest which has been imposed in respect of the unpaid tax. However, there was no evidence before the Tribunal as to the interest which has been imposed, whether it has been imposed at the market rate or the market rate and the premium rate and no submissions were made as to the basis upon which interest should be remitted. The question of interest was also not raised by the Applicant's application. Accordingly, I make no findings with respect to interest.

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (4)

Cases Cited (6)

Cited By (1)