1. On 6 January 2012, the Respondent issued a further land tax assessment (the 'January 2012 assessment' - T64) based on the finding that the house on the O'Connor property was rented for the periods:
   1. 8 September 2004 to 5 May 2005; and
   2. 30 May 2005 to 10 July 2007.

2. These periods had not been included in the November 2010 assessment in relation to the house, although land tax had been assessed for these periods in relation to the flat.
3. The January 2012 assessment:
   1. imposed further land tax for the period from the 2nd quarter of 2004/2005 to the 1st quarter 2007/2008; and
   2. comprised of land tax of $10,125.04 plus penalty tax (imposed at a rate of 50%) of $5,062.55 plus interest of $11,706.81. A total of $26,894.40 was payable by 15 February 2012.

4. On 18 January 2012, the Applicant objected to the January 2012 assessment ('objection 3003'). The Applicant objected to the land tax levied and the penalty tax and interest imposed (T66).
5. The determination to disallow objection 3003 (T74 and T4) was made on 10 February 2012 (the 'February 2012 determination').

1. Pursuant to section 107A of the TAA, the December 2011 determination and the February 2012 determination are reviewable decisions. The Applicant has applied for review by the Tribunal of both determinations -
   1. AT 4 of 2012 relates to the December 2011 determination; and
   2. AT 9 of 2012 relates to the February 2012 determination.
2. The Applicant has in her applications to the Tribunal sought review of the land tax, penalty tax and interest imposed by the determinations. An assessment of land tax under the LTA is an 'assessment' for the purpose of subsection 107A(1) of the TAA. Similarly, penalty tax decisions made under sections 31, 34 or 27 of the TAA, which by operation of section 19A of the LTA may apply, are also reviewable by the Tribunal pursuant to subsection 107A(b).
3. The transitional provisions of the LTA have the effect that the land tax, including penalty tax and interest, which is assessed as payable under the RLTA is 'taken to be payable' under the LTA. Thus, the same rights to objection and review apply as under the LTA.
4. Any interest imposed pursuant to section 19A of the LTA is not reviewable by the Tribunal. Section 19A is not included in section 38 as a matter in relation to which an objection can be lodged by a taxpayer pursuant to section 100 of the TAA. A decision by the Respondent in relation to the imposition of interest under section 19A of the LTA is not otherwise referred to in section 107A of the TAA. The RLTA did not provide for the calculation of interest when assessing land tax.
5. The calculation of interest on unpaid overdue land tax pursuant to section 19 of the LTA is not a matter which is relevant to the December 2011 determination or February 2012 determination.

1. In support of objection 2782, the Applicant submitted that:

1. she at all times regarded the property as her primary residence; 2. there were periods when the flat, house and sometimes both parts of the property were occupied by tenants, however, the rental income generated was below market value because she had retained the right to reside at the property when she returned to Canberra and stored some of her belongings there;

1. the Respondent had taken too long to make the assessment although it had sufficient information since 2007 to do so;

1. there were assessed periods when either the flat and or the house were not tenanted, or when no rent was in fact paid; 2. the Applicant had moved to South Australia to care for her ill mother; 3. due to her irregular income in South Australia, the Applicant had to rely on the rental income from the property to live; 4. the Applicant endured extreme work load while working as a Solicitor in South Australia; 5. the Applicant had to fly between Canberra and South Australia on several occasions to support her daughter who had two babies in the 4 years prior to her objection; and 6. working with Australian indigenous people had caused the Applicant to suffer 'culture shock'.
2. It was the Applicant's assertion that these factors should have been taken into account by the Respondent when assessing the land tax; and when exercising the discretion afforded by the provisions relating to penalty tax and interest.
3. The Respondent disallowed objection 2782. The Respondent determined on

12 December 2011 that: 1. the flat at the property was rented from 6 March 1997; and 2. the house at the property was rented from 23 January 2008.

4. The Respondent provided written reasons as follows.

1. The Applicant had failed to comply with the notice provisions set out in section 14 of the LTA. 2. Any delay by the Respondent in making the assessment was caused by the Applicant's failure to notify the Respondent of the rental status of the house and flat at the property at any time before the assessment.

1. The several periods during which the Applicant asserted that the flat was vacant, or occupied by the Applicant's daughter and thus was not 'rented' for the purpose of land tax assessment, were not periods which brought into operation the exclusion from land tax provided by section 8 of the LTA.

1. The period of 6 months prior to 23 January 2008 during which the Applicant said the house at the property was not rented, was not a period included in the land tax assessment. 2. The Applicant's assertion that the house at the property was not rented for the period 19 February 2010 to 8 April 2011 was viewed in light of rental statements provided by Sadil Quinlan Properties ('SQ'), the real estate agency which assumed management of the property from December 2007. Records were provided by SQ up to 10 June 2010. These indicated that the Applicant was still receiving rental income for the house from a tenant on that date. The Respondent was not satisfied that the house was vacant for the period asserted by the Applicant. 3. The Respondent found that the Applicant's failure to pay land tax for any of the period of the assessment amounted to a tax default and penalty tax was imposed pursuant to section 31 of the TAA. 4. The Respondent considered that neither the Applicant's failure to take reasonable care to meet the land tax liability in respect of the property nor the default were the result of circumstances beyond her control. Thus pursuant to subsection 31(2) of the TAA a 50% penalty tax was imposed. 5. As the Applicant made no disclosure prior to the investigation by the Respondent, which had commenced prior to the Respondent's letter to the Applicant of 8 June 2010, neither section 32 nor section 33 of the TAA operated to reduce the penalty tax amount payable. 6. The Respondent did not accept that the Applicant's actions or her circumstances were such that any or all of the penalty tax should be remitted pursuant to section 37. 7. The Respondent's representative considered the various matters raised by the Applicant which she submitted had caused or contributed to her failure to meet her land tax obligations in relation to the property. The Respondent's representative concluded that the events, including the Applicant's mother's illness and the Applicant's work situation in South Australia, did not explain the Applicant's failure to notify the Respondent in relation to the tenancy of the flat which predated these events by several years. 8. The Respondent concluded that the Applicant's circumstances did not explain or excuse the Applicant's failure to notify the Respondent of the rental status of the house and flat at the property and her consequent failure to pay land tax.

1. The Respondent did not consider the Applicant's objection to the imposition of interest. Interest was imposed and calculated pursuant to section 19A of the LTA which is not a matter in relation to which, under section 38 of the LTA, it is open to the taxpayer to lodge an objection.
2. In summary, by the determination dated 12 December 2011, the Respondent disallowed the Applicant's objection 2782 in relation to the assessment of land tax and penalty tax. The Respondent was not required to consider the Applicant's objection in relation to interest.

1. The further assessment dated 6 January 2012 was based on information provided by the Applicant at the meeting on 1 December 2011. The Applicant had provided a written statement in which she advised that the house at the property was rented for the periods 8 September 2004 to 5 May 2005; and then from 30 May 2005 to 10 July 2007. These periods had not been included in the November 2010 assessment or December 2011 determination.
2. The Applicant submitted that she had met her obligation to notify the Respondent of the rental status of the property pursuant to section 14 of the LTA. The Applicant said that she had attended at the Respondent's office in August 2004 and provided a letter to a representative of the Respondent who was working at the counter. The Applicant thought the officer's name was 'Jessany' or 'Jeffany' or something similar. The Applicant said that she had advised the counter person and had penned a letter at that time setting out that she was renting the property.
3. When considering objection 3003, the Respondent's representative made enquiries of the ACT Revenue Office and the Rental Bonds area of the Land Title's Office. However, after managers conducted a review of staff records, no employee with either of those names could be identified (T72).
4. The Respondent was able to confirm that on 7 October 1991 the Applicant did notify the ACT Revenue Office that a property in Kambah owned by the Applicant was a rental property and subject to land tax. No similar notification in relation to the O'Connor property could be located.
5. The Respondent's representative noted that the Applicant would have received information about land tax when receiving her annual general rates notice. Also, she was aware because of the Kambah property, of the need to pay land tax. The Respondent's representative concluded that the Applicant had not complied with her obligation to notify the Respondent of the rental of the house at the property for the periods 8 September 2004 to 5 May 2005 and 30 May 2005 to 10 July 2007. Land tax should therefore be assessed for this period.
6. For the same reasons as set out in the December 2011 determination, the Respondent's representative concluded that the Applicant was not entitled to lodge an objection to interest imposed and calculated pursuant to section 19A of the LTA. This aspect of her objection 3003 was not considered.
7. The Respondent's representative considered that the Applicant's failure to pay land tax and the consequent default meant that the Applicant was liable to pay penalty tax pursuant to section 31 of the TAA. The Respondent's representative concluded that:

1. the default resulted from the Applicant's failure to take reasonable care; 2. the default did not occur solely because of circumstances beyond the Applicant's control;

1. there was no voluntary disclosure by the Applicant relevant to section 32 or 33 of the TAA which may have operated to reduce penalty tax; and

1. the Applicant's actions and circumstances did not warrant the remittance of part or all of the penalty tax.
2. The Respondent's representative found that the Respondent had provided land tax information to the Applicant throughout the relevant periods. The Applicant's failure to notify the Respondent that the property was rented and to pay land tax meant that the imposition of 50% penalty tax pursuant to subsection 31(2) was appropriate.
3. The February 2012 determination disallowed the Applicant's objection number 3003 to the January 2012 assessment.

1. These matters were heard on 6 and 7 September 2012. The Applicant was self represented. Dr Jarvis of counsel appeared for the Respondent, instructed by

Ms Chandra of the ACT Government Solicitor's Office and Mr Stroud from the Respondent's office. 2. In considering these matters, the Tribunal has had regard to the Tribunal documents compiled by the Respondent, the documents including Facts and Contentions and materials in reply filed by the parties, and the evidence given, documents tendered and submissions made by and on behalf of the parties at the hearing on 6 and 7 September 2012. 3. The Applicant gave oral evidence but did not call any witnesses. Angel Marina, Manager of Revenue Accounts for the Respondent's office, gave oral evidence at the hearing for the Respondent. 4. At the hearing, the Applicant provided further information about her circumstances during the period from 2001 to 2012. Prior to and as part of her applications to the Tribunal, the Applicant prepared several documents setting out her view of the facts of this matter and her contentions. In support of her position, the Applicant provided numerous copies of documents, sometimes several copies of the same document on subsequent occasions. The Tribunal found it difficult to reconcile some of the information provided by the Applicant. The Tribunal found the Applicant to be a poor historian. This was apparent both from the documents that she prepared and also when she was giving her account of matters at the hearing. 5. The Applicant gave the impression that she had found her work and personal life experiences, since at least, 2001, quite overwhelming. It is possible that this had impacted on her actions during that period and her ability to recall events. 6. Based on the documents available to the Tribunal and the information provided by the Applicant at the hearing, the Tribunal's understanding of the chronology of events is as follows. 7. In or around 2000/2001, the Applicant was living and working in Canberra. She owned a property at in O'Connor, ACT (the 'O'Connor property'). The property had a house and self contained flat. The Applicant resided in the house which she regarded as her principal place of residence. She worked at the Australian Taxation Office ('ATO'). She also owned a rental property in Kambah, ACT (the 'Kambah rental property'). 8. The Applicant had studied law and Aboriginal languages at the Australian National University. She completed her law degree in 2000. 9. The Applicant's mother lived in South Australia ('SA'). In late 2000, the Applicant's mother, who was ill, told the Applicant that unless the Applicant returned to SA to care for her, she would 'die'. In response to her mother's request the Applicant, at short notice, travelled to SA in early 2001. The Applicant then lived with and cared for her mother until her mother's death on 15 October 2003. The Applicant said that during this time she considered her stay in SA to be a 'temporary' move and that her primary place of residence was her O'Connor property in Canberra. 10. It appears from a document prepared by the Applicant dated 6 January 2012 (filed as an attachment to her Facts and Contentions and prepared in relation to her separate application to the Respondent for exemption on compassionate grounds) that the Applicant may have already been in, and remained in, SA from December 2000 rather than travelled there from the ACT in early 2001. However, for the purpose of these applications nothing turns on that. 11. Some time early in 2001 the Applicant was able to transfer her position with the ATO from Canberra to SA. The Applicant was admitted to the Supreme Court of South Australia in about 2002, but before she would be qualified as a solicitor in SA she was required to undertake articles with a law firm. 12. The Applicant continued to live with and care for her ill mother and to work at the ATO in SA. The Applicant's mother's health did improve for some periods however, sadly, her mother died on 15 October 2003. 13. At the hearing, as I have observed in paragraph 48 above the Applicant had some difficulty recalling the sequence of events, however, she thought that she resigned from her position with the ATO after her mother's death in 2003 and before she returned to Canberra for a period in 2004. 14. The Applicant also said at the hearing that she commenced a volunteer position with the SA parliament in mid 2003, but later she said that she commenced this volunteer position when she commenced articles at a legal practice in 2005. 15. In the period after her mother's death in October 2003 and before her return to Canberra in or about June 2004, the Applicant spent time dealing with her mother's estate. The Applicant attached, to her 'Reply to the Respondent's Statement of Facts and Contentions' dated 14 July 2012 and which was filed in these proceedings, a copy of her mother's death certificate. She also attached a copy of a letter dated 15 May 2012 from her brother, Chris Fryar, confirming that the Applicant provided care for their ill mother in 2002 and 2003 and that she then spent approximately 12 months after their mother's death involved with the estate. 16. The Applicant said that she returned to Canberra in 2004 with the intention of resuming her residence here, but a friend from SA then contacted her and requested that she return to SA to assist him and she did so. The Applicant was in Canberra and resided at the property from 26 June 2004 and returned to SA on or about 08 September 2004. 17. The Applicant then remained in SA and at some stage in 2005 commenced articles with a SA law office. A letter dated 28 November 2011 from the former partner of a SA law firm (attachment 'D6' to the Applicant's 'Reply to the Respondent's Facts and Contentions') confirmed that the Applicant had been articled as a law clerk with the firm until 23 January 2009. The letter suggests the Applicant then assumed conduct of files 'as a newly admitted lawyer'. This letter suggests that the Applicant completed the articles component of her legal training in SA in or about January 2009. 18. The Applicant completed two 'Declaration in respect of Principal Place of residence' dated 7 October 1991; one for the Kambah rental property (T5) which was liable for land tax and one for the O'Connor property (T6) which she identified as her principal place of residence and thus exempt from land tax. It was agreed at the hearing that land tax was assessed and notices issued by the Respondent to the Applicant for the Kambah rental property from that time. 19. The Applicant said she believed that she was assessed for and paid land tax on the O'Connor property subsequent to August 2004. In support of her stated belief the Applicant referred to letters from the ACT Government Solicitor's office including those dated March 2004, January and June 2006. They are included in attachment D17 to the Applicant's 'Reply to the Respondent's Statement of Facts and Contentions'. The Applicant said that those letters referred to her obligation to pay 'rates and/or land tax'. She had assumed that the assessments made and payments requested related to both land tax and general rates for the O'Connor property. 20. At the hearing, the Applicant agreed that each year she had received notices from the Respondent in respect of the Kambah rental property. A 'blue' notice for land tax and a 'yellow' notice for general rates. The Applicant conceded that she had not, prior to the assessments of 11 November 2011 and 6 January 2012, received a 'blue' notice or paid land tax in relation to the O'Connor property. 21. Also at the hearing, the Applicant said she now realizes the letters from the ACT Government Solicitor's Officer were only referring to outstanding general rates in relation to the O'Connor property. 22. The Applicant asserted that in August 2004 she had attended at the Respondent's office and provided both verbal and a written 'notice' pursuant to section 14 of the LTA of her 'intention' to tenant the O'Connor property (the 'August 2004 letter'). The Applicant referred to the attendance having occurred on either the 9 or 12 August 2004. Based on her evidence, it was probably 9 August 2004 as she said it was the same day as she collected a remittance notice from the Office of Rental Bonds which was dated 9 August 2004. The Applicant said that she was prompted to go to the Respondent's office because she had been 'warned' by a Canberra neighbour that people who were not alerting the Respondent to the fact they had rental properties and thus liable to land tax, were having problems. 23. The Applicant said her neighbour had alerted her to the legislative changes which had occurred in July 2004. The Applicant said that she attended at both the Office of Rental Bonds and the Respondent's office on the same day. The Applicant said that she wrote the August 2004 letter while standing at the counter at the Respondent's office and handed it to a counter officer named 'Jessany or Jeffany'. At the hearing the Applicant advised that in the August 2004 letter she wrote words to the effect that she 'intended to rent the property' at 25 Miller Street, O'Connor ACT. 24. The Applicant said that when she attended the Respondent's office in August 2004, neither the house nor flat at the O'Connor property, were tenanted. She conceded that the flat had been tenanted for various periods prior to August 2004. The Applicant said that she had always considered the house portion of the O'Connor property to be her principal place of residence, even during the time that she was 'temporarily' in SA between 2001 and 2004, and therefore she thought that she was not under any obligation to alert the Respondent to rental of the flat. 25. The Applicant said this belief was based on the declarations she had completed in 1991 (T5 and T6). Those notices had clearly distinguished between 'principal place of residence', which was exempt from land tax, and other properties, which were not exempt. The declaration did not indicate that rental of part of a 'principal place of residence' would attract land tax liability. Consequently, the Applicant considered there was no obligation on her to notify the Respondent of rental of the flat. 26. The Applicant said that she rented the house part of the O'Connor property from 8 September 2004. She acknowledged that she was liable for land tax during periods that the house and flat were tenanted subsequent to that date. The Applicant believed that when she handed the August 2004 letter to the Respondent's counter officer she had thereby given notice to the Respondent as required by section 14 LTA. The Applicant thought she was subsequently assessed for and paid land tax in respect of the O'Connor property. 27. The Applicant asserted that when she spoke to the Respondent's counter officer in August 2004, she had been told that the Respondent would identify liability for land tax based on information held by the Rental Bond Office. The Applicant said that she was told to ensure that the Bond Office information relating to the O'Connor property was up to date. The Applicant said that she was told that she was not required to provide any further notice to the Respondent. 28. The Applicant said that she did not get a copy of the August 2004 letter. She said that the Respondent's counter officer whom she dealt with appeared to be irritated by the Applicant and the Applicant did not wish to irritate her further by asking her to make a copy of the August 2004 letter. 29. The Applicant provided considerable detail of what she did at the time of attending at the Respondent's office and immediately afterwards. The details she provided were set out in:

1. records of telephone attendances by the Applicant on the Respondent's office and included in the Tribunal Documents (e.g. T63, T65, T69, T70); 2. documents prepared by the Applicant and submitted to the Respondent (e.g. T66, T71);

1. many of the documents filed by the Applicant in the Tribunal;

1. a Statutory Declaration signed by the Applicant on 11 August 2012 attaching a copy of the Office of Rental Bonds Remittance Notice on which she had noted details about the attendance at the Respondent's office in August 2004 (Attachment D16 to Applicant's Reply to Respondent's Facts and Contentions); and 2. in oral evidence given by the Applicant at the hearing.
2. The Applicant recalled that it was windy when she left the Respondent's office. When outside she had tried to find a relatively wind free spot and had leaned against a pillar in an attempt to write a note, recording her attendance at the Respondent's office, on a document that she had collected earlier that day from the Office of Rental Bonds. The Applicant provided copies of this document with her Application to the Tribunal and also with various submissions lodged by her in these proceeding. The Applicant tendered the original of this document

(Exhibit 3) at the hearing in support of the fact that she had attended at the Respondent's office and handed over the August 2004 letter. 31. Angel Marina, Manager of Revenue Accounts for the Respondent's office, gave evidence at the hearing. He endorsed the information set out in his signed statement dated 30 August 2012. In that statement, Mr Marina confirmed that no copy of the August 2004 letter was found despite a search of records held by the Respondent relating to both the O'Connor property and Kambah rental property owned by the Applicant. 32. Mr Marina gave evidence that if the Applicant had lodged a letter which stated that a property was 'going to be rented', someone from the Respondent's office would have contacted the Applicant to obtain specific details about when the rental period would commence. 33. Mr Marina stated that the Respondent's office had never received and did not rely on information from the ACT Office of Rental Bonds as notification of, or for the purpose of, assessment of land tax. He said that in response to a section 14 notice the Respondent's office would manually update the system so that land tax liability was raised. Section 14 notification can be given, by a taxpayer or their agent, by letter or email or by completing a form. These forms, he said, had been on the website for about 8-9 years. 34. The Tribunal is unable to say what happened to the August 2004 letter of 'intent' which the Applicant says she wrote on either 9 or12 August 2004. It does not appear that the letter ever found its way to the Applicant's files held by the Respondent. It does not appear to have been processed by the Respondent as a 'notification' pursuant to section 14 of the LTA. 35. At the hearing the Respondent's counsel asked the Applicant specific questions about some periods when the Applicant asserted that although the property was vacant she had been assessed for land tax. For example, in a Statement prepared by the Applicant (T45) in November 2011, she asserted that the house portion of the O'Connor property was vacant between 19 February 2010 and 8 April 2011. In response to questions, the Applicant agreed that in fact the house was tenanted during much of this period as was evidenced by SQ rental records and a Notice to Vacate (Exhibit 10) signed by a tenant (J Tian). 36. The Tribunal accepts that the Applicant attempted to provide honest information about the tenancy of the O'Connor property. However it was apparent from documents that she prepared prior to and as part of her applications to the Tribunal, that the information she provided was not always accurate. The Applicant's poor recollection of the sequence of relevant events may have been impacted by factors in her personal and work life including:

1. the disruption caused by her move from Canberra to SA in, or about, 2001; 2. caring for her mother between 2001 and 15 October 2003 and then undertaking duties associated with her mother's estate between October 2003 and her return to Canberra in June 2004;

1. the nature of the work she was doing after 2005, particularly when she travelled a lot as part of the native title work she was doing in SA;

1. during the period 2001 until she engaged SQ as agent in December 2007, the Applicant managed the rental of the Kambah rental property and the O'Connor property while she was living in SA; and 2. her paperwork, such as documents relating to her taxation, was spread between where she was living in SA, other work locations in SA, the O'Connor property and her tax agent.
2. It was apparent when the Applicant gave oral evidence at the hearing that she was often uncertain about specific details of the rental status of the house and unit parts of the O'Connor property. The Applicant commented on several occasions that it was 'very confusing', and she expressed dissatisfaction, that the Respondent had not clarified the situation before the investigation in 2010 which led to the assessments in 2011 and 2012.
3. The Applicant gave evidence at the hearing that she decided to engage a real estate agent in December 2007 because she was concerned about land tax in relation to the O'Connor property. She said she thought 'things weren't right' and she felt 'something was amiss'. The Applicant's evidence in this regard is to be contrasted with her assertions that she had thought she was being assessed for and paying land tax after her attendance at the Respondent's office in August 2004.
4. The Applicant said that she engaged SQ and asked them to 'take on the land tax' aspect for the O'Connor property, but they advised her they were not prepared to do so. She thought that they considered it to be a 'hot potato'. The Applicant said that she was generally confused. She did not give any further instructions to SQ in relation to the land tax for the O'Connor property prior to the Respondent's letter of 8 June 2010 advising of the authorised investigation.
5. Despite her misgivings and SQ's clear advice that it would not pursue the land tax issue, the Applicant did not approach the Respondent to make further inquiries or clarify the position. Other than the declaration she completed in 1991 and her attendance at the Respondent's office in August 2004, she did not contact the Respondent in relation to land tax for the O'Connor property until after the Respondent commenced its investigation in 2010.

1. Counsel for the Respondent conceded that there had been errors in the calculation of penalty tax and interest in the November 2011 assessment. For this reason, in the event that the Tribunal finds that land tax is payable, the Respondent's counsel requested that the Tribunal remit the matter to the Respondent for appropriate calculation of the amounts payable.
2. The Tribunal accepts that the effect of the operation of Part 7, the Transitional provisions of the LTA, is that for periods which predate the operation of the LTA which came into operation on 1 July 2004, the liability to pay land tax arises and quantum is calculated under the Rates and Land Tax Act 1926. However the procedural matters, including assessment, objection and appeal are dealt with under the LTA.
3. The Respondent's counsel identified several disputed rental periods at the O'Connor property. Rather than review in detail these submissions the Tribunal has examined in detail the information available and has made the findings, set out below, as to the Tribunal's understanding of when the house and flat at the O'Connor property were rented in the period 1 January 2001 to November 2010.
4. The Respondent submitted that the decisions in Casarotto v Austalian Postal Commission [1989] FCA 116; (1989) 86 ALR 399, 112-413; East v Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518, 534-535; Touma v Commissioner of State Revenue [2012] NSW ADT 2; Jokhan and Johkan v Commissioner for ACT Revenue (Administrative Review) [2012] ACAT 15 all support the proposition that the onus, in effect, rests with the taxpayer who raises an objection to an assessment. Both Touma and Jokhan discuss the failure by the taxpayer to call evidence from a witness who might have thrown light on aspects of the taxpayer's objection.
5. The Respondent submitted that despite the Applicant's assertion that her primary residence remained in the ACT notwithstanding that she lived and worked in SA from 2001, the clear evidence was that she did not reside in the ACT for that period.
6. In January 2010 an amendment to section 14 of the LTA commenced. The amendment introduced the term 'relevant person' in relation to providing notice to the Respondent. A 'relevant person' is the owner of the land or, in this case, the owner's agent SQ. The effect of the section is that the relevant person must, within 30 days of the rental of a property beginning, notify the Respondent in writing that the property is rented and when the rental began.
7. Section 19A of the LTA relates to the imposition of interest and penalty tax where land tax is imposed and the 'owner' has failed to notify the Respondent as set out in section 14 of the LTA. The Respondent submitted that the normal rules of agency should apply so that, notwithstanding the introduction of the term 'relevant person' in section 14, a failure by the owner or agent will be sufficient to attract the imposition of interest and penalty referred to in section 19A LTA.
8. Section 22BB(2) of the RLTA also places an obligation on the owner to notify the Respondent in writing and failure to do so will give rise to penalty tax being imposed under section 22EB(1)(a) of the RLTA_._
9. In any event, the Respondent submitted, the Applicant:
   1. made no attempt to notify the Respondent before August 2004; and
   2. made no 'reasonable attempt' to notify the Commissioner since 2004.
10. The Respondent submitted that the rate of penalty tax to be imposed pursuant to section 31 of the TAA should be at least 50%. The Respondent submitted that the Applicant had neither demonstrated that she had taken reasonable care to inform the Commissioner nor had she provided an excuse for her failure to do so.
11. The Respondent suggested that the only mitigating factor that the Applicant had put forward was the need to travel to SA to care for her mother. The Respondent submitted that the Applicant's situation could not be said to be 'beyond her control'.
12. The Respondent submitted that section 31 (6) of the TAA talks about the tax default being caused 'solely' by circumstances beyond the taxpayer's control. Whatever the impact of the need to travel to SA for her mother's illness in 2001, this can not reasonably have been considered to have impacted on:
    1. her failure to notify the Respondent in relation to the flat prior to 2001;
    2. her failure to notify the Respondent in relation to the flat or house for the entire period from 2001 until the time of the investigation in 2010.
13. Further, the Respondent submitted that the house was in fact tenanted from 2003. From, at latest, 2004 the Applicant returned to SA for personal reasons and rented the house at the O'Connor property in September 2004.
14. Despite a thorough search of the Respondent's records, no copy of the Applicant's August 2004 letter could be found. The Respondent submitted that the Tribunal is entitled to find that the Applicant made no attempt to notify the Commissioner before August 2004 and, on balance, the Tribunal can not be satisfied the alleged notice in August 2004 was given.
15. The Respondent submitted that the Applicant's version of events is improbable. The Applicant made many mistakes when providing information at the hearing. When records did exist they had been found by the Respondent, such as the 1991 declarations (T5 and T6). The failure to locate the August 2004 letter or identify an employee at the Respondent's office named 'Jeffany or Jessany' was because this version of events was not accurate.
16. The Respondent said that even if the Tribunal could be satisfied that the Applicant had provided the August 2004 letter to the Respondent, the letter simply stated that the property would be rented 'soon' and was not a notice for the purpose of section 14 of the LTA. Even if the Applicant believed that she had met her obligation to notify the Respondent, she should have realised at some time after August 2004 that she was not being assessed for land tax and she took no steps to follow this up. Any effort she made in August 2004 cannot be considered to have relieved her, indefinitely, of the obligation to take further steps at a later date. Despite her assertion that she had misunderstood correspondence from the ACT Government solicitor and believed land tax wa_s_ being imposed, the fact is that no land tax was paid by the Applicant until after the November 2010 assessment was received.

1. The Applicant submitted that if any amount is payable, the Tribunal should take into account the delay by the Respondent in its consideration of her objections while it awaited the outcome of the Dataflex decision.
2. The Applicant also submitted that she did give the section 14 LTA notice as required by the August 2004 letter and thus the _p_enalty provisions of section 19A do not apply.

1. The Tribunal has reviewed all of the documents available and the information provided at the hearing. The Tribunal has relied, in particular, on documents such as copies of Tenancy Agreements, documents from the Office of Rental Bonds, electricity connection and disconnection information and the SQ ledger printed 19 July 2012 (attachment D2 to the Further Documents filed by the Applicant on 26 July 2012) in making findings as to when the flat and house at the O'Connor property were tenanted in the period from January 2001 until November 2010. Some of these documents are included in the Tribunal Documents and others were filed as attachments to the various documents filed in the Tribunal by the Applicant.
2. Although the Tribunal is reluctant to use the names of tenants who are not involved in these Applications, the Tribunal considers it is the only way to clearly identify the periods of tenancy:-
   1. the flat -
      1. 06/03/97 to 23/01/02 - tenanted by Wood and Ames
      2. 23/01/02 to 25/06/04 - tenanted by Trenholme
      3. 17/11/04 to 18/02/04 - occupied by Applicant's daughter
      4. 22/02/05 to 13/07/05 - tenanted by Issar
      5. 19/07/05 to 29/01/08 - tenanted by Li
      6. 17/01/08 to 16/12/08 - tenanted by Ma (L and M)
      7. 14/01/09 to 09/02/10 - tenanted by Jiao
      8. 10/02/10 to 11/02/11 - tenanted by Tian

2. the house:- 1. 25/02/03 to 11/05/04 - occupied by friend of Applicant 2. 26/06/04 to Aug/Sep 04 - occupied by Applicant 3. 08/09/04 to ?/05/05 - tenanted by Chen 4. 10/06/05 to Dec 07 - tenanted by Wang (aka Qui) 5. 21/12/07 to 10/01/11 - tenanted by Cui 6. 08/04/11 to 22/04/12 - tenanted by Wang
3. Periods when unoccupied:
   1. The flat:
      1. The Tribunal accepts the evidence of the Applicant that when she returned to Canberra from SA in June 2004, the tenant Trenholme had vacated the flat. Whilst the Applicant was unable to say when that occurred, the Tribunal accepts the Applicant's evidence that he was not residing at the flat or paying rent on or after 26 June 2004.
      2. The Tribunal therefore accepts that the flat was vacant, or occupied by the Applicant's daughter and thus not 'rented' between 26 June 2004 and 21 February 2005 inclusive. Pursuant to section 8(4)(d) of the LTA land tax liability does not arise in relation to the flat for the period Q1, 2004/2005 to Q3 (Quarter 3), 2004/2005.
      3. It is probable that Li vacated before 29 January 2008 as the Ma tenancy commenced on 17 January 2008, however for the purpose of section 8 of the LTA, the flat was rented in Q2 of 2007/2008 and Q3 of 2007/2008.
      4. The SQ ledger indicates that the flat was vacated by Tian on or about 11 February 2011, which is consistent with Tian's Notice to Vacate dated 21 January 2011 (Exhibit 10). It appears that the flat had not, as at the SQ ledger of 19 July 2012, been re-tenanted.

2. The house: 1. It is not clear when R Wang (aka Qui) vacated the house. A 'Change of Managing Agent' form nominating SQ as the agent was signed by the Applicant on 10 December 2007. R Wang must have vacated by 21 December 2007 when the Cui tenancy began. The Tribunal notes that R Wang's name was wrongly recorded on the form signed by the Applicant on 10 December 2007. Whilst clearly relating to R Wang (the Bond number and other information such as the tenancy agreement related to R Wang) the name 'Runqui Wang' was recorded as 'Wang Rin Qui'. For the purpose of section 8 the Tribunal finds that the house was rented in Q2 of 2007/2008. 2. The house was not occupied by a tenant between 11/01/11 and 07/04/11. This is a period of less than 91 days and thus section 8(4)(d) of the LTA does not apply and the house was therefore tenanted on the first day of the Q3 of 2010/1011 and Q4 of 2010/2011.
3. The burden of showing an objection should be sustained lies with the taxpayer pursuant to section 101(3) of the TAA. At various times, when providing written and oral information to the Respondent, the Applicant indicated that she would provide further information e.g. from her taxation agent (T28) or bank records, but she did not do so.
4. The Applicant referred to records that she relied on when providing information to the Respondent (T38) but does not specify what those records were. It is not therefore clear if these records were provided to the Respondent or the Tribunal. If so, then the information set out above is prepared based on those, and other, records. If not, then these records may have helped to clarify some of the details in relation to the rental of the house and flat at the O'Connor property.
5. The Applicant indicated that she might have called as a witness her friend, who occupied the house at the O'Connor property between 2003 and 2004. This person may have provided relevant information in relation to the tenancy of the flat and in particular when T Trenholme vacated the property. This person did not give evidence.
6. The Tribunal finds that the Applicant, who was in the best position to provide information about the rental status of the O'Connor property, was often unable to recall or provide accurate and relevant information.
7. Pursuant to s.105 of the TAA the Applicant was obliged to pay the amount of the assessments by the due date. The Respondent's letters to the Applicant acknowledging receipt of her objection 2782 (T32) and objection 3003 (T68) referred to this obligation. The Tribunal is not persuaded that any order should be made in favour of the Applicant in relation to the time taken by the Respondent to make the December 2011 determination or January 2012.
8. Between 1995 and 30 June 2004, the operation of section 22BB(b) and section 22DA of the RLTA; and from 1 July 2004, the operation of section 14 and section 15 of the LTA; required the Applicant (or her agent after January 2010) to 'tell' the Respondent 'in writing' within 30 days of the property becoming rented by a tenant. This obligation arose when either or both the flat and the house at the O'Connor property was rented. If either the house or flat were rented, this obligation arose whether or not the Applicant resided in the other part of the O'Connor property as her principal place of residence.
9. The Tribunal finds that the flat was rented for periods between March 1997 and November 2004. The Applicant did not at any time before August 2004 provide written notice to the Respondent that the flat at the O'Connor property was rented. The Applicant was apparently unaware of the amendments to section 22BB and section 22DA of the RLTA which are discussed at paragraph 9 above. The Applicant's mistaken understanding of her obligation does not relieve her of her obligation.
10. The Tribunal does not accept that the Applicant provided written notice, pursuant to section 14 of the LTA, that the O'Connor property was rented. Although the Applicant provided evidence about her attendance at the Respondent's office in August 2004 and the August 2004 letter that she said handed to the Respondent's counter officer, the Tribunal accepts the Respondent's submission that this letter has not been located and, if it existed, was at most a letter of intention rather than a notice the O'Connor property was tenanted.
11. The Applicant was aware of the Respondent's investigation into the rental status of the O'Connor property following the Respondent's letter of 8 June 2010. The Tribunal could find no mention by the Applicant of her attendance at the Respondent's office, prior to June 2010, until her telephone conversation with the Respondent's officer on 20 December 2011 (T63). In this conversation she said she had attended at the Respondent's office 'a few years ago' and been advised that if she 'lodged rental a rental bond' that amounted to 'advising the Commissioner that her property was rented'. The Applicant asserted that she did not realize until after the December 2011 determination the importance of this attendance by her at the Respondent's office and, therefore, had not previously mentioned it.
12. In telephone conversations the Applicant had with the Respondent's office and in documents she prepared subsequent to 20 December 2011, the Applicant provided several, varied and increasingly detailed descriptions of her attendance at the Respondent's office (T65, T66 at page 239 and 256-257, T69, T70). By the time of the Applicant's applications to the Tribunal she had recalled the events, as detailed earlier in this decision, which she said occurred on 12 August 2004 involving a person named 'Jeffany or Jessany'.
13. The Tribunal accepts that the Applicant attempted to provide an accurate description of what occurred. The Tribunal does not accept that the note which the Applicant said she wrote, on the Office of Rental Bonds Remittance Advice dated 9 August 2004, is evidence of the events which she says occurred on 9 or 12 August 2004. The note which the Applicant says she wrote three days after her attendance at the Respondent's office is, at best, cryptic. Although urged by the Applicant to accept the note as confirmation of her recollection of events, the Tribunal finds that the note does not provide a contemporaneous record which supports the degree of detail that the Appicant asserts and which is not otherwise proved. The August 2004 letter was not found. The Applicant stated, on several occasions including in her Statutory Declaration of 11 April 2012, that she attended at the Respondent's office on 'Friday' 9 August 2004 and that she wrote the note on the Remittance Advice on 'Monday' 12 August 2004. Whilst not otherwise relevant, the Respondent pointed out, and the Tribunal accepts, that 9 August 2004 was a Monday. The Applicant's version of events changed over time and it is possible that other details she provided were inaccurate.
14. The Tribunal is not satisfied that the Applicant told the Commissioner in writing that the flat and or the house was tenanted in the period 01 January 2001 until November 2010, as is required by section 22BB(2) of the RLTA and section 14 of the LTA,.
15. Whatever the Applicant's belief in relation to the effect of her attendance at the Respondent's office in August 2004, the Tribunal accepts the Respondent's submission that at some time subsequent to August 2004 the Applicant realized, or ought to have realized, that she was not being assessed for or paying land tax in relation to the O'Connor property and took no step to rectify this situation.
16. The Applicant gave evidence that she was aware that she was liable for land tax in relation to the O'Connor property from, at least, when she tenanted the house portion of the O'Connor property in September 2004. In an email to the Respondent on 1 February 2012 (T71), she said that she had 'the feeling all along something was wrong' and had engaged SQ 'and hoped the agent being in the ACT and knowing more about [the Respondent's] practices, would query if [the Applicant] was not doing something right'.
17. At the hearing, the Applicant said that prior to engaging SQ in December 2007, she felt something was 'amiss'. She said that she had engaged SQ in the hope that they would deal with the land tax issue for the O'Connor property. She gave evidence that they specifically told her that they would not 'take on' this aspect of the tenancy of the O'Connor property.
18. The Tribunal finds that from August 2004 the Applicant:

1. knew that she was liable for land tax in relation to the O'Connor property; 2. knew that she was not being assessed for or paying land tax in relation to the O'Connor property despite her stated belief that in August 2004 she had notified the Respondent as required by section 14 of the LTA;

1. took no action to contact the Respondent to query the fact that she was not being assessed for land tax; and

1. knew that SQ, whom she engaged in December 2007, did not take any action on her behalf in relation to land tax at the O'Connor property.
2. The O'Connor property has 'multiple dwellings' for the purpose section 22DA of the RLTA and section 15 of the LTA. At the hearing these were referred to as the 'flat' and the 'house'. For the purpose of the formula set out in section 22DA of the RLTA and section 15 of the LTA, the Respondent calculated (T26) that the 'flat' comprises 20.52% of the dwelling and the house 79.48% (T36). The Applicant did not dispute this calculation. The Tribunal accepts this apportionment for the purpose of calculation of land tax liability when only one part of the O'Connor property is rented.
3. The Tribunal notes that some confusion arose because the two parts of the O'Connor property - which at the hearing were referred to as the 'house' and the 'flat' are variously referred to throughout documentation as Unit 1, 25A and 25B.'semi detached', bedsit and so on. The Tribunal is satisfied that the rented premises referred to in the SQ ledger as 25A is the 'flat' and the rented premises referred to as 25B is the 'house'.

1. Based on the Tribunal's findings as to when the flat and house at the O'Connor property were 'rented by a tenant' the Tribunal finds that land tax liability arises as follows.

1. Under section 22A of the RLTA in relation to the flat for the period 06/03/97 - 25/06/04: 1. the Respondent's policy is not to assess land tax liability beyond 10 years before the November 2010 assessment; 2. thus land tax should be assessed for the period from Q3, 2000/2001 until to Q4, 2003/2004 inclusive; 3. the land tax liability should be calculated using the formula in section 22DA of the RLTA. The flat is 20.52% of the floor area of the dwelling; and 2. Under section 9 of the LTA: 1. in relation to the flat for the period 22/02/05 - 11/02/11; and 2. in relation to the house for the period 08/09/04 - 22/04/12.

1. Based on the findings of the Tribunal, none of the periods referred to in sub-paragraph (b) above are exempt from land tax pursuant to section 8(4) of the LTA.

1. Pursuant to section 8(3) of the LTA, land tax is to be calculated as follows: 1. For the house for the periods: * (a) Q2, 2004/2005 to Q3, 2004/2005; and * (b) Q4, 2010/2011 to Q4, 2011/2012 2. The land tax liability for these periods should be calculated using the formula in section 15(3) of the LTA. The house is 79.48% of the dwelling. 3. For the house and the flat, thus, at 100%, for Q4, 2004/2005 to Q3, 2010/2011.

1. The Applicant did not assert that she had provided written notice as required by section 22BB(2) of the RLTA. She mistakenly believed that she was not required to notify the Respondent or pay land tax during periods when she rented the flat to a tenant, provided the other part of the house was her 'principal place of residence'. As set out above, her understanding was incorrect. Her obligation to notify the Respondent and pay land tax arose when she first tenanted the flat in 1997. Pursuant to the transitional provisions of the LTA, section 22EB of the RLTA operates so that the Applicant is liable to pay penalty tax of double the amount of land tax assessed prior to 1 July 2004.
2. The Tribunal finds that land tax should be imposed on the O'Connor property subsequent to 1 July 2004 and that the Applicant did not comply with section 14 of the LTA. Section 19A of the LTA says that, in these circumstances, the Applicant is liable to pay interest and that the penalty tax provisions (Division 5.2) of the TAA apply as if the 'failure to comply with section 14' is a 'tax default' by the taxpayer.
3. Section 30(1) of the TAA says that if a tax default 'happens', then penalty tax is imposed. Section 31 deals with the amount of penalty tax.
4. If a taxpayer fails to take reasonable care 'in relation to the tax default' to fulfill their tax obligation then the rate of penalty tax is 25% if the taxpayer has a 'reasonable excuse' for the failure - section 31(1) and (3); or 50% if they do not - section 31(2). Intentional disregard of a tax law attracts a penalty of 75% - section 31(5).
5. No penalty tax is payable if the taxpayer can establish they took 'reasonable care to comply with the tax law - section 31(6)(a), or the 'tax default' happened solely because of circumstances beyond their control section 31(6)(b).
6. The Tribunal is not satisfied that the Applicant took reasonable care to comply with or to fulfil her obligations under the LTA. As a result she was not assessed for, and did not pay, land tax until after the November 2010 assessment. The Applicant's attendance at the Respondent's office in August 2004 may have been relevant to the Tribunal's consideration of section 31(6)(a) had the Applicant taken steps subsequent to that time to clarify land tax obligations in relation to the O'Connor property. However, she did not take that further action and the Tribunal does not consider her efforts can be characterized as reasonable.
7. The Applicant provided a lot of information about her circumstances in the period from 2001 until 2012. The Tribunal accepts the Respondent's submission that the 'circumstance' which can be regarded as 'beyond the Applicant's control' was her mother's illness. However, the Tribunal does not accept that this event, nor the many work related and personal decisions that the Applicant made between 2001 and 2012, was the sole cause of her failure to notify the Respondent of the rental status of the O'Connor property.
8. The Tribunal finds that the Applicant should pay penalty tax of 50% pursuant to subsection 31(2) of the TAA.
9. Under section 37 the Tribunal may remit all or part of the penalty tax if satisfied that either, the Applicant took reasonable steps to mitigate the circumstances which resulted in the liability for penalty tax, or if the circumstances resulting in the penalty were exceptional; and it would be fair and reasonable to remit all or part of the penalty tax.
10. The repeal of the RLTA as of 1 July 2004 means that the provisions relating to remission of penalty under the RLTA do not apply. Rather section section 37 of the TAA is the relevant provisions in realation to the penalty tax which the Tribubal considers should be imposed in relaition to the tax liability arising under the RLTA.
11. The Tribunal finds that the only steps that the Applicant took in relation to her obligation under the LTA was her attendance at the Respondent's office in August 2004 and her engagement of SQ in December 2007. Notwithstanding her misgivings about her land tax obligations in relation to the O'Connor property before December 2007 and even though SQ specifically advised her that they would not take any action in relation to address the land tax issue after December 2007, the Applicant did nothing. The Tribunal is not persuaded to exercise the discretion afforded by section 37 of the TAA in this matter in relation to the penalty tax under either the RLTA, referred to at paragraph 124 above, or the LTA.

1. There is no interest applicable to land tax liability under the RLTA. The Respondent concedes that interest was incorrectly applied to the land tax calculated under the RLTA and has requested this element of the November 2010 assessment be remitted to the Respondent so that the necessary adjustments can be calculated.
2. The Tribunal accepts that interest imposed pursuant to section 19A of the LTA is not a reviewable by the Tribunal.

1. Pursuant to subsection 68 (3)(c)(ii) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) the decision under review, being the December 2011 determination, is set aside and remitted to the Respondent for reconsideration in accordance with the following directions:

1. That for the flat at the O'Connor property (that is, block 12 section 83, O'Connor at 25 Miller Street, O'Connor, ACT), which occupies 20.52% of the dwelling for the purpose of section 22DA of the Rates Land Tax Act 1926 (repealed) (RLTA), 1. land tax be imposed under section 22A of the RLTA for the period Quarter 3, 2000/2001 to Quarter 4, 2003/2004, and 2. penalty tax be imposed pursuant to section 22EB of the RLTA.

2. That for the flat at the O'Connor property, which occupies 20.52% of the

dwelling for the purpose of section 15 of the Land Tax Act 2004 (LTA), 1. land tax be imposed under section 9 of the LTA for the period Quarter 4, 2004/2005 to Quarter 1, 2007/2008; 2. penalty tax pursuant to subsection 19A(5) of the LTA and subsection 31(2) of the Taxation Administration Act 1999 (TAA) be imposed at the rate of 50%.

1. That land tax be imposed pursuant to section 9 of the LTA on the flat and the house at the O'Connor property for the period Quarter 2, 2007/2008 to Quarter 2, 2010/2011.

1. That penalty tax pursuant to subsection 19A(5) of the LTA and subsection 31(2) of the TAA be imposed for the period Quarter 2, 2007/2008 to Quarter 2, 2010/2011at the rate of 50%.
2. Pursuant to subsection 68(a) of the ACAT Act, the decision under review, being the February 2012 determination is affirmed. This decision relates to the tenancy of the house portion of the O'Connor property for the period Quarter 2, 2004/2005 until Quarter 1, 2007/2008. During some of this period the flat at the property was rented and this has been included in the in the December 2011 determination.

3. At the commencement of the second day of hearing the Tribunal ordered the Applicant pay the applicable fee for day two of the hearing.

...................................Wilhelmena Corby

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )