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[2026] NSWCATAD 133
General information, not legal advice.
NCAT Administrative and Equal Opportunity
2026-05-06
J Redfern PSM, Senior Member
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Gervais v Chief Commissioner of State Revenue [2026] NSWCATAD 133
Hearing dates: 21 January 2026
Date of orders: 06 May 2026
Decision date: 06 May 2026
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern PSM, Senior Member
Decision: (1) The time to lodge the application for review is extended to 10 July 2025.
(2) The decision under review is affirmed.
Catchwords: ADMINISTRATIVE LAW – Revenue – surcharge land tax − foreign person −absence from Australia – use and occupation – principal place of residence – need for physical presence – exemption based on residence requirement – discretion where exceptional circumstances − brief absence – how measured
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Duties Act 1997 (NSW).
Foreign Acquisitions and Takeovers Act 1975 (Cth)
Land Tact Act 1956 (NSW)
Land Tax Management Act 1956 (NSW)
State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022 (NSW)
Taxation Administration At 1996 (NSW)
Cases Cited: Cecere v Chief Commissioner of State Revenue [2022] NSWCATAD 350
Chen v Chief Commissioner of State Revenue [2025] NSWCATAD 189
Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57
Chief Commissioner State Revenue v Ferrington (GD) [2004] NSWADTAP 41
Commissioner of Land Tax v Christie [1973] 2 NSWLR 526
Feng v Chief Commissioner of State Revenue [2024] NSWCATAD 56
Gao v Chief Commissioner of State Revenue [2020] NSWCATAD 216
Ghali v Commissioner of State Revenue [2103] NSWCA 340
Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22
Lei v Chief Commissioner of State Revenue [2024] NSWCATAD 28
Texts Cited: State Revenue and Fines Legislation Amendment (Miscellaneous) Bill 2022 (NSW), Explanatory Note
Second Reading Speech State Revenue and Fines Legislation Amendment (Miscellaneous) Bill 2022 (NSW), Legislative Council Hansard, 10 May 2022
Category: Principal judgment
Parties: Leslie-Ann Gervais (Applicant)
Chief Commissioner of State Revenue (Respondent)
Representation: Applicant (Self Represented)
Solicitors:
Crown Solicitor (Respondent)
File Number(s): 2025/00266262
Publication restriction: Nil
The applicant, Leslie- Ann Gervais, seeks a review of the decision made by the respondent on 1 November 2023 to assess her as liable for surcharge land tax for the 2019, 2020 and 2023 land tax years.
The review is sought under s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
The applicant contends she is not a foreign person and in any event should be exempt from surcharge land tax as the property owned by her from 2017 until 2023 was her principal place of residence or, in the alternative, the surcharge land tax should be waived due to COVID pandemic and the applicant’s personal, financial and medical struggles that caused her to be absent from Australia. The respondent contends that the applicant is liable for the surcharge land tax because she was a “foreign person” within the meaning of the legislation when she owned the property and did not use and occupy the property as her principal place of residence for a continuous period of 200 days during the relevant tax years.
I have decided to affirm the decision under review. The applicant is a non-Australian citizen and is therefore liable to pay surcharge land tax on residential land she owned in the relevant land tax years, and I am not satisfied she meets the criteria for an exemption from surcharge land tax. There is no discretion in this matter.
The applicant is a Canadian citizen who has permanent residency in Australia, which she has had since 2015. She married an Australian citizen and has two children from the marriage, both born in Australia. They are Australian citizens. The applicant and her former partner were divorced in March 2017, although they continued to live together under one roof with the children. The applicant claims that the relationship was abusive and this is one of the reasons why she spent extended periods outside Australia. She claims that the relationship continued to be abusive despite the fact they had divorced. She also claims that her ex-husband’s parents were abusive and not supportive.
In May 2017 she purchased a property in a Sydney suburb (the property). She owned the property until 9 November 2023 when it was sold as part of a family law settlement. The contract for sale was entered into on 13 September 2023. The applicant, her children and her ex-husband lived in the property during this period. The applicant’s ex-husband lived there while she was overseas and the property, or part of the property, was occasionally made available for short-term rental.
The applicant was an athlete who originally competed in modern pentathlon then in fencing, competing internationally and at elite levels, including representing Canada. This necessitated travel overseas for training and competing from time to time. She won a bronze medal at the 2018 Commonwealth Games on the Gold Coast in fencing representing Canada.
According to records from the Department of Home Affairs, and this is not in dispute, the applicant was granted a permanent partner visa on 23 February 2015. She was granted several residence return visas in recognition of her permanent resident status and between 2018 and 2023 (referred to as “the relevant period” in these reasons), the applicant travelled in and out of Australia on six occasions as follows:
Date of arrival: 12 May 2018, date of departure: 9 June 2018;
Date of arrival: 12 November 2018, date of departure: 1 December 2018;
Date of arrival: 5 January 2019, date of departure: 4 May 2019;
Date of arrival: 14 November 2019, date of departure: 6 January 2020;
Date of arrival: 17 December 2020, date of departure: 14 January 2022;
Date of arrival: 6 May 2023.
Having regard to the above, it is apparent the applicant spent 49 calendar days in Australia in 2018, 168 calendar days in 2019, 20 calendar days in 2020 (although the respondent submits 31), 365 calendar days in 2021, 14 calendar days in 2022 and 240 calendar days in 2023. At the time she sold the property on 23 November 2023, the applicant had been residing in the property for 187 days. These matters are not in dispute.
In 2019 the applicant resided with her parents in Canada and in 2020 and 2023, she resided with her mother in Canada. At that time, the children lived with her and either went to school or were home schooled in Canada. Her parents had periods of serious illness and her father died during COVID pandemic. Prior to this, he was in care in a nursing home. Like many others, the applicant’s travel to and from Australia was restricted during COVID pandemic.
According to the applicant, the relationship between her and her ex-husband became very abusive during the course of their marriage, including after their separation and then following their divorce. She was a victim of domestic violence, and this had a profound impact on her health and well-being. The applicant states that she became increasingly isolated and unwell and this drove the need to escape her situation and to return to Canada. She also needed to return to Canada because of her parents’ ill health. Her father had a fall during COVID pandemic and following a deterioration in his condition, had to be admitted to a nursing home. He subsequently passed away during COVID pandemic, but she was unfortunately unable to return to Canada at that time. The applicant was able to return to Canada in 2022 to assist her mother who had a stroke in that year.
The applicant states that, in additional to these personal and family struggles, she was diagnosed with Central Sensitisation Syndrome (CSS) which caused significant pain. While she was in Canada she travelled to Iceland for treatment of her CSS. The applicant also states that she has a painful eye condition, caused by an injury to her eye in 2021, which continues to compromise her sight.
The applicant provided to the Tribunal a detailed account of her professional career, her ongoing struggles in her relationship with her marriage and with her ex-husband and her life in Australia and travels overseas. Other than the periods when she returned to Canada or travelled overseas to compete, the applicant states that she and the children lived in Australia and resided in the property. The children attended the local school. These matters do not appear to be in dispute. When she travelled to Canada, she generally resided with her parents (and later just her mother), except when she was training or competing or when she travelled to Iceland for a short period for treatment of her CSS.
The applicant contends that during the periods that she was overseas, the property was occupied, rent free, by her ex-husband. The applicant accepts that the property was listed for rent during some of the periods she was overseas but contends that the property was not actually leased for longer periods through agents and was instead rented out from time to time for short term stays on Airbnb. The applicant says she has adopted a similar practice with her current home on the Central Coast, which is now her principal residence.
On 1 November 2023, the applicant was issued with a land tax assessment notice for the land tax years 2019 to 2023 in the sum of $99,334.50. This included land tax and surcharge land tax. The land tax and surcharge land tax were deducted from settlement, which the applicant claims caused significant financial strain – she says this almost jeopardised her ability to complete the settlement of the purchase of her new home. The applicant also claims, and I accept, that this was a very difficult time for her because her mother, with whom she was very close and spoke to on the telephone regularly, died on her farm in Canada around this time.
On 6 November 2023, the applicant wrote to the respondent requesting an exemption on the basis that the property was her home and she was not a foreigner. On 8 November 2023, the respondent advised the applicant that she was not liable for surcharge land tax for 2022 because she was ordinarily resident in Australis in 2021 but was still liable for surcharge land tax for 2019, 2020, 2021 and 2023. The applicant lodged an objection to the assessment on 29 November 2023.
On 19 January 2024, the respondent partly allowed the objection, determining:
The applicant was ordinarily resident in Australia in 2021 and was not liable for surcharge land tax for the 2022 land tax year:
The applicant used and occupied the property as her principal place of residence for a continuous period of 200 days in 2021 and was therefore exempt from surcharge land tax under s 5B of the LTA for the 2021 land tax year;
The applicant was not ordinarily resident in Australia in 2018, 2019, 2022 or 2022 and was therefore liable for surcharge land tax for the 2019, 2020 and 2023 land tax years; and
The applicant was not exempt for surcharge land tax for the 2019, 2020 and 2023 land tax years.
The surcharge land tax for the 2019, 2020 and 2023 land tax years has been paid by the applicant on settlement and is the subject of the dispute and this review.
The applicant made an application to the Hardship Review Board for a review of the respondent’s decision refusing to write off the applicant’s surcharge purchaser duty and penalty notices and refusing to refund the surcharge land tax debt paid by the applicant on settlement in November 2023. By letter dated 30 June 2025, the Hardship Review Board wrote to the applicant and advised the Board was unable to review her liability or to direct the Revenue NSW to write off a newly issued penalty notice. The Board further advised as follows:
“Surcharge Purchaser Duty
The board reviewed your case at its meeting on 30 May 2025 and determined to decline your request to write off your Surcharge Purchaser Duty Debt.
They further direct Revenue NSW to negotiate a payment plan with you taking your current circumstances into consideration.
You are invited to submit a new application to the board in 12 months’ time.
The Board acknowledges the medical and domestic circumstances described in your current application and in the documentation that has been previously provided to Revenue NSW. Unfortunately, the financial documentation you provided did not contain sufficient details for the Board to determine you are in ongoing financial hardship.
The applicant was advised to provide further financial statements to assist the Board in assessing her claim.
In relation to the applicant’s request for a refund of her surcharge land tax, the Board advised as follows:
“Unfortunately, the Board is unable to review your application in regard to Revenue NSW’s refusal to refund your surcharge land tax. The legislation under which the Hardship Review Board operates limits its scope to unpaid taxes only and the board has no authority to direct Revenue NSW to refund previously paid taxes. However, in view of the issues you raised in your application I have made contact with Revenue NSW and asked that they provide advice as to your options for further review of your refund application.
Revenue NSW advised that they have reviewed your application and advise that they are unable to approve your request for a refund. They further advise that the only review option available is to apply for an external review to NSW Civil and Administrative Tribunal (NCAT). You can find out how to lodge your request and information about the review process by contacting the registrar of the Tribunal...”
The applicant lodged a review with the Tribunal on 10 July 2025. The respondent to the application was the Hardship Review Board.
The matter came before the Tribunal for directions on 2 September 2025. At the directions hearing, the Tribunal noted that it had no jurisdiction to deal with a decision made by the Hardship Review Board to reject the applications made by the applicant for debts to be written off and for the surcharge land tax to be refunded. The Tribunal also noted that the decision made by the Board also concerned surcharge land tax applying to a foreign person.
The matter was listed for further directions on 16 September 2025. In the directions on this date, the Tribunal noted that consideration was being given to dismissing the application for want of jurisdiction. However, it was further noted by the Tribunal that, rather than dismissing the application and inviting the applicant to make a fresh application to review the land tax assessments, the more convenient course was to treat the application is a valid application, subject to the granting of an extension of time for review of the land tax assessments. Relevantly, the Tribunal stated:
For completeness, the Tribunal notes that the true substance of the Administrative review application form in this matter, lodged with the Tribunal on 10 July 2025, is a request to review, among other things, the applicant’s “surcharge land tax refund appeal”, despite the applicant having indicated that the “Respondent” is a representative of the Hardship Review Board. It is appropriate, in the circumstances, to change the name of the respondent to “Chief Commissioner of State Revenue.”
The Tribunal further stated that this application, as properly characterised, had been lodged out of time and it would be necessary for an extension of time be given to allow for the application to proceed.
The proceedings again came before the Tribunal on 30 September 2025. Directions were made about the filing of evidence, and it was noted that the respondent did not object to leave being granted for the applicant to bring these proceedings out of time. It was further noted that the matter would be considered the hearing of the matter, together with other matters in dispute.
At the commencement of the hearing, the legal representative for the respondent confirmed that the respondent would not object to the applicant being given an extension of time to lodge a review of the 2019, 2020 and 2023 surcharge land tax assessments. I decided to extend the time for lodging the application for review to 10 July 2025, being the date that the applicant erroneously lodged an application for review of the Hardship Review Board decision dated 30 June 2025. Decisions of the Board are not reviewable by this Tribunal and, as such, there is no jurisdiction for the Tribunal to consider an application for review of Board decisions. However, decisions of the Chief Commissioner of State Revenue to assess and levy surcharge land tax are reviewable.
In this case, the applicant intended to seek a review of the surcharge land tax but misunderstood the basis of Tribunal’s jurisdiction. There is no prejudice to the respondent, particularly as the surcharge land taxes have already been paid. The applicant and the respondent have lodged all documents, evidence and submissions dealing with the matter and the respondent does not object to the extension of time. If she is not given an extension of time, the applicant would otherwise lose the opportunity to have the Tribunal review a decision which has the impact of imposing a significant liability. Taking this matters into account, and consistent with the principles in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22, I have decided to extend the time for lodging the application pursuant to s 41 of the NCAT Act.
Following the hearing, the applicant provided to the Tribunal a further letter from the Hardship Review Board dated 10 April 2026. The letter referred to the applicant’s request for review of Revenue NSW's decision not to refund paid surcharge land tax for 2019, 2020, 2022 and 2023 land tax years. It was noted that the Board had reviewed her case at its meeting on 25 March 2026 and had decided it would not be appropriate to refund the amount to her. The reasons are set out as follows:
“The Board agreed that you have experienced difficult circumstances, however, also noted that a significant amount of time had passed since the liability had been paid.
While the Board also found that there was some evidence of financial insecurity in your case, a finding of severe or significant hardship linked to the amount paid could not be made.
We recognise that you are awaiting a decision by the NSW Civil & Administrative Tribunal relating to this matter. The Board’s determination, however, is independent to that of the Tribunal process.
The Hardship Review Board and Revenue NSW are unable to consider further reviews of this matter.”
The Land Tax Management Act 1956 (NSW) (LTMA) is the governing legislation and makes provision relating to the imposition, assessment and collection of a land tax upon unimproved values of certain land. Section 7 provides for land tax to be levied and paid on taxable land. The date for ownership of land for the purposes of land tax is midnight on 31 December immediately preceding the year for which the land tax is levied (the land tax year): s 8 LTMA
Surcharge land tax is charged on properties owned by foreign persons under s 5A of the Land T**ax Act 1956 (NSW) (LTA). The applicant owned the property from 2017 to 2023 and, because she was a foreign person for the purposes of the LTA, she was potentially liable to pay surcharge land tax in respect of the property. The respondent assessed that the applicant was liable for surcharge land tax for the 2019, 2020 and 2023 land tax years.
Section 5A, as in force during the 2019 and 2020 land tax years stated:
5A Levy of surcharge land tax on residential land owned by foreign persons—2017 and subsequent land tax years
(1) Land tax is payable under this section in respect of residential land owned by a foreign person (surcharge land tax).
(2) In respect of the taxable value of all the residential land owned by the foreign person at midnight on 31 December in any year (commencing with 2016), surcharge land tax is to be charged, levied, collected and paid under the provisions of the Principal Act and in the manner prescribed under that Act for the period of 12 months commencing on 1 January in the next succeeding year at the rate of:
(a) in the case of all residential land owned by the foreign person at midnight on 31 December 2016—0.75% of that taxable value as assessed under the Principal Act, and
(b) in the case of all residential land owned by the foreign person at midnight on 31 December in any other year (commencing with 2017)—2% of that taxable value as assessed under the Principal Act.
(3) Surcharge land tax is payable in addition to any land tax payable in respect of the residential land under the other provisions of this Act, and is so payable even if no land tax is payable under those other provisions.
(4) The Principal Act applies to surcharge land tax in respect of residential land owned by a foreign person subject to the following:
(a) surcharge land tax is payable as if the residential land were the only land owned by the foreign person,
(b) if the residential land is also owned by a person who is not a foreign person, the taxable value of the land is to be reduced to the proportionate value of the interest in the land of the foreign person,
(c) if the foreign person is a joint owner of the residential land, the person is to be individually (and not jointly) assessed and is liable in respect of the value of the person’s proportionate interest in the land as if the person were the owner of a part of the land in proportion to the person’s interest (and accordingly section 27 (2)–(4) of the Principal Act does not apply),
(d) if the Chief Commissioner is satisfied that the residential land is used for purposes other than residential purposes, the taxable value of the land is to be reduced by the apportionment factor determined in accordance with section 104ZB of the Duties Act 1997 in relation to the land,
(e) if the foreign person is the trustee of a fixed trust (within the meaning of section 3A of the Principal Act) in relation to the residential land, the person is not liable to surcharge land tax,
(f) the provisions of the Principal Act relating to the persons who are taken to be owners of the residential land apply to surcharge land tax, except that section 23 of the Principal Act does not operate to make a mortgagee in possession an owner of the land unless the mortgagor is a foreign person,
(g) the person is exempt from liability to pay surcharge land tax in respect of the land for a land tax year because the land is the principal place of residence of the foreign person (and accordingly sections 9C and 9D of the Principal Act operate to reduce the land value of the land if it is the principal place of residence of the person) only if the person is eligible for the exemption under section 5B,
(h) the tax thresholds under Division 4A of Part 7 of the Principal Act do not apply to surcharge land tax,
(i) any other modification prescribed by the regulations under the Principal Act applies to surcharge land tax.
(5) If a foreign person defaults in the payment of surcharge land tax then, without releasing the foreign person from his or her liability, the following provisions apply as long as the default continues:
(a) if the foreign person is a joint owner of the land concerned—any other joint owner (whether or not a foreign person) is, on being served with a notice by the Chief Commissioner requiring payment of the unpaid surcharge land tax, responsible for its payment and the unpaid tax may be recovered from that other joint owner as if he or she were the defaulting taxpayer,
(b) if the foreign person is a beneficiary of a trust relating to the land concerned—the trustee (whether or not a foreign person) is, on being served with a notice by the Chief Commissioner requiring payment of the unpaid surcharge land tax, responsible for its payment and the unpaid tax may be recovered from that trustee as if he or she were the defaulting taxpayer,
(c) all payments made under this subsection by that other joint owner or that trustee are taken to be made on behalf of the defaulting taxpayer,
(d) that other joint owner or that trustee may recover from the foreign person any amount paid by that other joint owner or that trustee under this subsection.
(6) (Repealed)
The reference in the LTA to the “Principal Act” is a reference to the LTMA.
Section 2A of the LTA provides that foreign person has the same meaning as in Chapter 2A of the Duties Act 1997 (NSW) (Duties Act). Section 104J of the Duties Act (which is within Chapter 2A) states:
104J Meanings of “foreign person” and “foreign trustee”
(1) In this Chapter—
foreign person means a person who is a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth, as modified by this section.
foreign trustee means a person who is a foreign person because of the person’s capacity as the trustee of a trust.
(2) The definition of foreign person in the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth is modified as follows—
(a) an Australian citizen is taken to be ordinarily resident in Australia, whether or not the person is ordinarily resident in Australia under that definition,
(b) a New Zealand citizen who holds a special category visa, within the meaning of section 32 of the Migration Act 1958 of the Commonwealth, at any particular time is taken at that time to be an individual whose continued presence in Australia is not subject to any limitation as to time imposed by law.
Note.
Section 5 of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth provides that an individual who is not an Australian citizen is ordinarily resident in Australia at a particular time (and is therefore not a foreign person) if and only if—
(a) the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time, and
(b) at that time—
(i) the individual is in Australia and the individual’s continued presence in Australia is not subject to any limitation as to time imposed by law, or
(ii) the individual is not in Australia but, immediately before the individual’s most recent departure from Australia, the individual’s continued presence in Australia was not subject to any limitation as to time imposed by law.
(3) For the purposes of charging surcharge purchaser duty on a surcharge duty transaction, a person is taken to be a foreign person if the person is a foreign person when a liability for duty charged by Chapter 2 on the transaction arises (or would arise but for section 53A or a concession or exemption from duty under that Chapter).
Note.
See section 12.
(4) When assessing whether a sub-fund of a CCIV is a foreign person for the purposes of this chapter, the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth must be read subject to section 5A.
(5) To avoid doubt, subsection (4) also applies for the purposes of the definition of foreign person in the Land Tax Act 1956.
(a) an individual not ordinarily resident in Australia; or
……………..
(g) any other person, or any other person that meets the conditions, prescribed by the regulations.
The Foreign Acquisitions and Takeovers Regulation 2015 (Cth) (FAT Regulation) contains particular definitions and/or provisions relating to “foreign persons” under regs 18, 41A, 46, 47, 58K and 58KB. However, none of these regulations apply to the applicant to exclude or modify the definition in s 4(a).
Section 5 of the FATA provides:
5 Meaning of ordinarily resident
(1) An individual who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if:
(a) the individual has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and
(b) at that time:
(i) the individual is in Australia and the individual’s continued presence in Australia is not subject to any limitation as to time imposed by law; or
(ii) the individual is not in Australia but, immediately before the individual’s most recent departure from Australia, the individual’s continued presence in Australia was not subject to any limitation as to time imposed by law.
(2) Without limiting paragraph (1)(b), an individual’s continued presence in Australia is subject to a limitation as to time imposed by law if the individual is an unlawful non‑citizen within the meaning of the Migration Act 1958.
Thus, surcharge land tax is payable on residential property in New South Wales owned by a person who is not an Australian citizen if the person does not meet the residence requirements set out in s 5 of the FATA unless the foreign person is able to establish that the property is their “principal place of residence” within the exemption set in s 5B of the LTA.
Section 5B provides a residence requirement for a principal place of residence exemption from surcharge land tax for the purposes of s 5A(4)(g) of the LTA. Section 5B, as in force during the 2019 and 2020 land tax years, stated:
5B Surcharge land tax—residence requirement applying to principal place of residence exemption
(1) A person is eligible for an exemption from liability to pay surcharge land tax in respect of residential land for a land tax year because the land is the principal place of residence of the person only if:
(a) the person is a permanent resident at midnight on 31 December of the previous year, and
(b) the Chief Commissioner is satisfied that, during the land tax year, the person intends to use and occupy the land as the principal place of residence of the person in accordance with the residence requirement, and
(c) the person lodges a declaration with a land tax return required to be furnished under section 12 of the Principal Act for the land tax year to the effect that the person has that intention.
(2) The person must use and occupy the land as the person’s principal place of residence for a continuous period of 200 days in the land tax year. This requirement is referred to as the residence requirement.
(3) If the residence requirement is not complied with by the person, surcharge land tax liability is to be assessed or reassessed as if the person’s exemption from liability to pay surcharge land tax for the land tax year had never applied.
(4) The failure of the person to comply with the residence requirement is taken to be a tax default for the purposes of Part 5 of the Taxation Administration Act 1996.
(5) Any interest that is payable on the tax default in accordance with Part 5 of the Taxation Administration Act 1996 accrues on the amount of surcharge land tax assessable to the person for the period commencing on the last day allowed for furnishing the land tax return for the land tax year and ending on the day when the assessment or reassessment referred to in subsection (3) is made.
5B Surcharge land tax—residence requirement applying to principal place of residence exemption
(1) A person is eligible for an exemption from liability to pay surcharge land tax in respect of residential land for a land tax year because the land is the principal place of residence of the person only if—
(a) the person is a permanent resident at midnight on 31 December of the previous year, and
(b) the Chief Commissioner is satisfied that, during the land tax year, the person intends to use and occupy the land as the principal place of residence of the person in accordance with the residence requirement, and
(c) the person lodges a declaration with a land tax return required to be furnished under section 12 of the Principal Act for the land tax year to the effect that the person has that intention.
(2) The person must use and occupy the land as the person’s principal place of residence for a continuous period of 200 days in the land tax year. This requirement is referred to as the residence requirement.
(2A) A person does not use and occupy land as the person’s principal place of residence during a period of the person’s physical absence from Australia.
(2B) The Chief Commissioner may, in exceptional circumstances, waive the requirement in subsection (2A) in relation to a person’s brief physical absence from Australia.
(3) If the residence requirement is not complied with by the person, surcharge land tax liability is to be assessed or reassessed as if the person’s exemption from liability to pay surcharge land tax for the land tax year had never applied.
(4) The failure of the person to comply with the residence requirement is taken to be a tax default for the purposes of Part 5 of the Taxation Administration Act 1996.
(5) Any interest that is payable on the tax default in accordance with Part 5 of the Taxation Administration Act 1996 accrues on the amount of surcharge land tax assessable to the person for the period commencing on the last day allowed for furnishing the land tax return for the land tax year and ending on the day when the assessment or reassessment referred to in subsection (3) is made.
For a person to be eligible for an exemption from surcharge land tax for land on the basis that the land is the person’s principal place of residence, the person must use and occupy the land for a continuous period of 200 days in a land tax year. Schedule 5[1] clarifies that a period during which a person is physically absent from Australia does not count towards the 200 day period. The amendment also permits the Chief Commissioner of State Revenue to waive this requirement in exceptional circumstances.
The final surcharge amendment concerns the principal place of residence exemption from surcharge land tax for permanent residents. The exemption applies to permanent residents in respect of residential land that they "use and occupy" as their principal place of residence for a continuous period of 200 days in the land tax year. This is called the "residence requirement".
The meaning of the words "use and occupy" has become subject to dispute in recent years, with some taxpayers arguing that it does not require a close physical connection to the property for the 200 days. In one case, a permanent resident was only in Australia for less than half a year due to work yet maintained that the property was their principal place of residence. This uncertainty poses a revenue risk.
The amendments clarify the exemption so as to require that the permanent resident be physically in Australia for the 200‑day period, except in limited circumstances where a brief period of absence may be permitted at the discretion of the Chief Commissioner, such as attending a funeral overseas. The Chief Commissioner will issue guidelines outlining the types of limited circumstances where an absence may be allowed.
These amendments will ensure that the exemption applies as originally intended, whilst allowing the Chief Commissioner to deal with exceptional circumstances as they arise.
Section 96 of the Taxation Administration At 1996 (NSW) (TAA) provides that a taxpayer may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision of the Chief Commissioner that has been the subject of an objection under Division 1 of Part 10 of the TAA. On an application for review, a party’s case is not limited to the grounds of the objection, however, the applicant has the onus of proving the applicant’s case in an application for review: ss100(2) and (3) LTA.
Division 5 of Part 10 of the TAA deals with the jurisdiction of the Hardship Review Board. Section 106A provides that the Board may exercise its functions under the Division in relation to tax but only on the application of the taxpayer. Section 106B provides that the Board may, either wholly or in part, waive the payment of tax, if the Board is satisfied that payment would result in serious hardship for the person or the person’s dependence. Section 106C provides that the Board may direct the Chief Commissioner to write off tax under s 110 of the TAA. Section 106CA provides that the Chief Commissioner is to make such refund of tax already paid as is necessary to give effect to a decision of the Hardship Review Board. Section 110 provides that the Chief Commissioner may write off the whole or any part of an unpaid tax. The Tribunal does not have jurisdiction to review a decision made by the Hardship Review Board.
Section 63 of the ADR Act provides that the Tribunal must make the “correct and preferable” decision based on the material before it at the time of the decision. In determining the application for review, the Tribunal may decide to affirm or vary the decision or set aside the decision and make a decision in substitution or set aside the decision and remit the matter for reconsideration by the administrator, in this case the respondent, in accordance with any directions or recommendations of the Tribunal.
The applicant submits that Australia is her home and when she purchased the property, this was intended to be her principal place of residence. The only reason why she did not stay in this residence for continuous periods was because she was the victim of domestic violence and she needed to return to Canada. She did not want to leave. The applicant also submitted that she was very unwell during 2023. She said that she had to get medical treatment overseas for her illness. She did not understand about the additional tax liability she would be facing but, unfortunately, had no choice because of her circumstances.
The applicant also submits that her children are Australian born. They resided for much of their lives in the property and went to the local school. When she was overseas, her ex-husband was living at the property. She always intended to return. Her property was rarely rented out although, on occasion, part of the property was rented for short term rentals on Airbnb. She has taken the same approach at her new property on the Central Coast where she lives and which has been her principal place of residence, despite occasional short-term stays by others through Airbnb.
The applicant contends that the fact that she was being charged surcharge land tax as a “foreign person” was unfair. She does not consider she is a “foreign person”. This is her home; she has permanent residence in Australia and had intended to stay in Australia but was forced to leave. The applicant submitted the consideration should be given to her personal circumstances.
In summary, the applicant submits that the property was her principal place of residence, her absences from Australia during the relevant land tax years were due to COVID pandemic, and the resultant restrictions on travel, health issues of her and her family in Canada, domestic violence and financial hardship. It is further submitted that the periods that she was overseas should be waived under s 5B of the LTA, which applies to the surcharge land tax for the 2023 land tax year.
The respondent submits that the applicant’s personal circumstances are not relevant to her liability to pay surcharge land tax, which is dependent on the legislative provisions of the LTA.
Under the LTA, surcharge land tax is charged on residential land owned by foreign persons. The property owned by the applicant is residential land and the applicant is not an Australian citizen. According to the respondent, the applicant is therefore liable to pay surcharge land tax unless she can establish she was ordinarily resident in Australia at the relevant time and thus not classified as a foreign person.
The liability for surcharge land tax is assessed by reference to the taxable value of all residential property owned by the foreign person as at 31 December in the preceding year: s 5A(2). The question of whether the property owner is a “foreign person” will be assessed by reference to whether they were ordinarily resident in Australia in the preceding year for the purposes of surcharge land tax in a land tax year.
The definition of “ordinarily resident” is governed by s 5 of the FATA. There are two requirements to that definition. A person must actually be in Australia for a period of 200 days or more in the preceding year and the person's continued presence in Australia must not be subject to any limitation as to time imposed by the law. The respondent accepts that the second requirement is not in dispute and the applicant’s continued presence in Australia was not subject to a limitation as to time imposed by the law − she had permanent residency given her visa status which allowed her to stay in Australia indefinitely. However, the respondent contends that the applicant does not satisfy the first requirement of the “ordinarily resident” test for the relevant tax years. The words “has actually been in Australia” requires physical presence in Australia: Gao v Chief Commissioner of State Revenue [2020] NSWCATAD 216 (Gao) at [59]. This is because she was not actually in Australia for 200 days in the 12 months preceding the taxing date for 2019, 2020 and 2023 land tax years. The respondent submits s 5A is only concerned with whether the applicant was in Australia for a specified period of time, without having regard to the circumstances of her absence. As such, if the applicant cannot satisfy the Tribunal that she is actually been in Australia for 200 days or more for the purposes of the 2019, 2020 or 2023 land tax years, she will be liable to pay surcharge land tax as a foreign person pursuant to s 5A unless the exemption under s 5B applies.
The respondent submits the applicant is not exempt from surcharge land tax under s 5B(2A) because she did not actually use and occupy the property as her principal place of residence for a continuous period of 200 days during the 2019, 2020 or 2023 land tax years. The concepts of “use” and “occupation” are discussed in numerous Court and Tribunal decisions and these authorities make it clear that physical use and occupation, not just the right to possession and control, is the determinative issue: Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 (Christie); Ghali v Commissioner of State Revenue [2103] NSWCA 340 (Ghali) and Feng v Chief Commissioner of State Revenue [2024] NSWCATAD 56 (Feng).
The Appeal Panel set out the relevant criteria in respect of what is required to establish a principal place of residence in Chief Commissioner State Revenue v Ferrington (GD) [2004] NSWADTAP 41 (Ferrington). The formulation set out by the Appeal Panel has been applied in number of cases in the Tribunal, including more recently in Cecere v Chief Commissioner of State Revenue [2022] NSWCATAD 350. Relevantly, The respondent submits that where a person has more than one place of residence, which of those residences will be considered the principal place of residence is dependent upon the respective rights in respect of those two properties, the strength of ties in connection with the residence, including where family members reside, the nature and quality of the occupation of the residences and the amount of time that each residence is occupied. For instance, a residence can be a principal place of residence even though the person does not own it.
The respondent contends that periods of physical attendance in a residence are of considerable significance in determining whether a property is used and occupied as a principal place of residence. In the applicant’s case, she has spent continuous periods of 193 and 345 days in the property in Canada during the 2019 and 2020 land tax years and minimal time has been spent in the property in Australia, namely 120 days between January and May 2019, a further 48 days between November and 31 December 2019 and 6 days in January and 15 days in December 2020. It is submitted that it would be incongruous to assert that the New South Wales property was the applicant's principal place of residence in the 2019 and 2020 land tax years.
The respondent further contends that, in respect of the objective evidence, the applicant entered into an exclusive management agency agreement with Clark and Humel Pty Limited on 21 March 2019 authorising the property to be leased for a term of 6 or 12 months and the property was subsequently listed as available for rent. The property was rented out for short term stays on Airbnb. This was also the case for the 2020 land tax year. It is submitted that the rental of the property, albeit short term, is not consistent with the applicant intending to maintain the property as her principal place of residence. While the applicant has provided copies of water bills issued to her for the property in 2020, these bills show water consumption for periods when the applicant was overseas. This does not demonstrate that the applicant resided at the property.
In summary, the respondent submits in respect of the 2019 and 2020 land tax years, that the applicant has not established a sufficient nature or degree of permanent occupation of her property to make it her principal place of residence during either the 2019 or 2020 land tax years. Properly characterised, the applicant’s occupation of the property was transient, temporary or passing and not sufficient to constitute use an occupation as a principal place of residence in 2019 and 2020. The principal place of residence was the property she resided at in Canada with her children.
In respect of the 2023 land tax year, the applicant was only in Australia from 6 May 2023 and even if she used and occupied the property as her principal place of residence from that date, she could have only done so for a period of 187 days, until the property sold in November 2023. She therefore did not use and occupy the property as her principal place of residence for a continuous period of 200 days, as required by s 5B of the LTA.
In response to the applicant submissions regarding the reason she was not in Australia during the 2019, 2020 and 2023 land tax years, the respondent submits there is no discretion in the LTA to grant an exemption from surcharge land tax if the statutory criteria are not met. Appeals to leniency are not relevant in considering the validity of assessments and there is no general discretion available to the Tribunal to waive the surcharge land tax if these statutory criteria are not met: Lei v Chief Commissioner of State Revenue [2024] NSWCATAD 28. Section 5B(2B) allows the Chief Commissioner to waive the requirement under s 5B(2A) where there has been a “brief physical absence from Australia”. This does not apply to the 2019 and 2020 land tax years because the amendment only came into force in May 2022 but does not assist the applicant for the 2023 land tax year as her absence from Australia was not a “brief physical absence” (C**hen v Chief Commissioner [2025] NSWCATAD 189).
The issue for determination is whether the applicant is liable for surcharge land tax for 2019, 2020 and 2023, or any of these years, because she is a foreign person for the purposes of the LTA and, if so, whether she is exempt from surcharge land tax under s 5B of the LTA because she meets the residence requirement.
While I have sympathy for the applicant’s personal circumstances and accept she has faced several serious personal struggles, particularly over the period relating to the relevant land tax assessments, these matters do not of themselves overcome her burden of proof to establish she is not liable for surcharge land tax. However, these matters give important context to her absences from Australia and may nonetheless be relevant to any application for hardship, over which the Tribunal has no merits review jurisdiction.
The determinative issues essentially raise legal questions based on the statutory criteria under the LTA, although factual findings are relevant to the determination of these issues. As submitted by the respondent, there is no discretion in this matter – the critical question is whether the applicant meets the statutory criteria, firstly, for the imposition of surcharge land tax and, secondly, if so, whether she is exempt. These questions are considered below.
The applicant contends she is not a foreign person because she has permanent residency in Australia, this has been her home for many years, and it has always been her intention to settle and reside in Australia. Her children are Australian citizens. She accepts that she has returned to Canada during the relevant years but these visits, which became extended over the relevant land tax years, related to matters outside her personal control.
Despite this, and as the respondent contends, the definition of foreign person for the purposes of the LTA and surcharge land tax, is a statutory definition contained in the LTA, the Duties Act and the FATA.
The applicant is not, and was not at the relevant time, an Australian citizen. She was not “ordinarily resident” within Australia in the 2019, 2020 and 2023 land tax years, because she was not “actually” in Australia during 200 or more days in the 12-month period immediately preceding the relevant land tax year.
According to SM Frost in Gao at [58]:
“The word ‘actually’ is defined in the Macquarie Dictionary to mean ‘as an actual or existing fact; really’. In light of that meaning, it is difficult to see how the phrase ‘has actually been in Australia’ in s 5(1)(a) of the FAT Act differs from the alternative ‘has been in Australia’, other than perhaps as a matter of emphasis, to reinforce the requirement that a person be in Australia, rather than on the way to Australia, bound for Australia, or in some other way close to but not quite in Australia.”
I agree with this conclusion.
The reasons for a person not actually being in Australia for the 200-day period are not relevant in assessing liability for duty under s 5A of the LTA and the Chief Commissioner does not have discretion to exempt a taxpayer from surcharge land tax if the statutory criteria are not met: Chu at [29] – [30].
I accept the conclusions of the Tribunal in both these cases.
As such, I am satisfied the applicant is a foreign person for the purposes of the LTA and is liable for surcharge land tax in the 2029, 2020 and 2023 land tax years unless she can establish the exemption.
Section 5B provides an exemption where the person “uses and occupies” the residential land as a “principal place of residence” in accordance with the residence requirement. The residence requirement is that the person must use and occupy the land as a person's principal place of residence for a continuous period of 200 days in the land tax year: s 5B(2) LTA. The amendments to s 5B in force for the 2023 land tax year make it clear that a person does not “use and occupy” land as the person’s principal place of residence during a person’s physical absence from Australia.
The respondent submits that despite the amendment to s 5B in force for the 2023 land tax year, court and tribunal authorities make it plain that there cannot be “deemed” presence or use and occupation when the person is not physically present and actually uses and occupies the property.
The respondent relies on the Court of Appeal’s judgment in Ghali*,* relevantly Basten JA at [24] in discussing the meaning of “use” and “occupation”, as follows:
“To say that two concepts are "not synonymous" is not to say much: however, to say that occupation includes possession, but also something more, may be misleading. Land may be occupied by a licensee who does not have legal possession. Further, the phrase "used or occupied" may well indicate that different concepts are envisaged, whereas the phrase "used and occupied for [a specified] purpose" may better be understood as a single concept in which each element is governed by the specified purpose.”
“…an intention to use and occupy land in the future does not by itself demonstrate present physical use and occupation. So far as the second view is concerned, the statutory reference to use and occupation of the land as a residence is to use and occupation by the owner as his or her residence, not use and occupation by another person with his or her consent. Were it otherwise, an owner would always use and occupy residential premises as a residence, but that would not conform to the statutory purpose.”
“The use and occupation referred to in s 5B(2) is physical use and occupation: Ghali v Chief Commissioner of State Revenue [2013] NSWCA 340 at [45]. But it is more than that: it is physical use and occupation of the land as the owner’s principal place of residence. Of course, it may be possible for a person to be using and occupying land, such as a house or apartment, by doing nothing more than filling it up with furniture and household effects. But that doesn’t mean it is being used and occupied as the person’s place of residence. To answer that description the person must also live there: the house or apartment must be their place of residence. And it can’t be their place of residence if they don’t live there.
Also noting that at [39], how long a person had to live at the residence would depend on the statutory language, which in this case, was clear:
“But the relevant statute in this case, the LTA, does specify a time requirement. That requirement is that the land must be used and occupied as the owner’s principal place of residence for a continuous period of 200 days in the land tax year. There is no ambiguity in that requirement, and there is no room for an outcome reflecting the notion that ‘near enough is good enough’. In a broadly similar context, the applicant in Gao v Chief Commissioner of State Revenue [2020] NSWCATAD 216 needed to spend 200 days in Australia in a specified period. He only spent 199 days in Australia in the period, so he was one day short, but that was enough for his application to fail.”
First, the words "principal place of residence" should be given their ordinary meaning in the context in which they appear. Thus the Commissioner’s reference to the provisions of the Land Tax Management Act 1956 is of no assistance. Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling. Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue: Fourthly, 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 is occupation for some other purpose. Fifthly, the short length of a person’s residence, while relevant, is not determinative of the issue. This is so since a recipient’s occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one's principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible, as Gaines demonstrates. Sixthly, the reasons for a person’s departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances: In Bates the Tribunal said that "whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant" was a factor to be considered. While that is undoubtedly correct, it should not be read as stipulating a requirement that the reasons for departure must be entirely out of that person’s control. The facts in Gaines illustrate that there are circumstances, peculiar to the individual concerned, which may, objectively viewed, adequately and reasonably explain a person’s decision to move out of a property, but which are not entirely out of the person’s control.
[citations omitted]
Drawing on these principles, the respondent submits that where there is more than one place of residence, which of those residences will be considered the principal place of residence is dependent on the respective rights in respect of the two properties, the strength of ties and connection with the residents including where family members reside, the nature and quality of the occupation of the premises and the amount of time each residence is occupied: Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57. It is implicit in this submission that a residence can be a principal place of residence even though the person does not own it.
Having regard to the principles from the authorities and the statutory provisions, I am not satisfied the exemption applies to any of the disputed land tax years. My reasons for this follow.
In line with the authority of Ghali, followed in Feng*,* I am not satisfied the applicant used and occupied the property as a residence, let alone as a principal residence, for a continuous period of 200 days. She was not actually present in Australia for a continuous period of 200 days and a legal entitlement to possession without actual use and occupation is not enough. There cannot be deemed or inferred use and occupation, which has now been put beyond doubt by the amendment to the LTA in force for the 2023 land tax year (also referred to later in these reasons). Relevantly, the waiver provision under s 5B(2B) in respect of physical presence commenced on 19 May 2022 and can only apply to the 2023 land tax year.
The respondent also submits that the applicant has failed to establish that the property was her principal place of residence in the period as she spent 193 days in Canada (she left Australia on 4 May 2019 and returned on 14 November 2019), she authorised the property to be leased for 6 or 12 months and it was subsequently leased for short term stays. The applicant says that despite living in Canada for just over 6 months, her ex-husband was living at the property rent free, she had many of her possessions there, her children attended the local school before they left and on their return, it was her intention to return and the purpose of her travel was to visit her parents (her father was ill), to train for competition in Toronto (she was back and forth between her parent’s home and Toronto) and to escape from the abusive relationship with her ex-husband.
The length of the period a person resides in a property is persuasive – in this case the applicant and her children were in Canada living in her parent’s home for just over 6 months. Other relevant factors include that her children were residing at her parent’s home while she was travelling. They were being schooled in Canada. The applicant’s time in Canada during 2019 cannot be described as “transient, temporary or passing”. However, nor can her residency in the NSW property in 2019, both before 14 May 2019 and, to a lesser extent after 14 November 2019, be described as such. She and her children spent about 6 months in Australia residing in the property. They returned to school there. Against this, within 2 months of arriving back in Australia, the applicant again left Australia and her home to live in Canada with her mother.
This issue is finely balanced. The applicant spent 168 days living in the property. However, findings about this issue are somewhat complicated by the applicant’s personal circumstances as outlined above. I accept that a person cannot have two principal residences in one calendar year and, on one view, as submitted by the respondent, the onus is on the applicant to satisfy the Tribunal the her principal residence remained the NSW property for the 2019 calendar year, even though she lived in Canada at her family’s home for over 6 months of the year and offered the property for short-term rentals.
Taking the various factors into account, I am not satisfied, on balance, that the NSW property can be characterised as the applicant’s principal place of business in the 2019 calendar year.
While the respondent and the applicant have addressed the exemption by reference to the separate factors within s 5B(2), namely the requirement to “use and occupy” land as a “principal place of residence” for a “continuous period in the land tax year”. This approach over-complicates what is essentially one requirement with three elements, all of which must be met. Even if I was satisfied the property remained the applicant’s principal place of residence during her absence overseas, for the reasons already outlined, I am not satisfied the applicant used and occupied the property or that she did so for a continuous period of 200 days.
I therefore reject the applicant’s contention that she meets the exemption for the 2019 land tax year.
The applicant is unfortunate in relation to this land tax year because she returned to Australia on 6 May 2023 and resided in the property as her principal place of residence but because the property was sold, she only resided there for 187 days. As such, she did not use and occupy the property for a continuous period of 200 days – she is 13 days short to meet the exemption.
Section 5B(2B) provides that the respondent may, in exceptional circumstances, waive the requirement in subs (2A) in relation to a person's brief physical absence from Australia.
In this case, the applicant was physically absent from Australia from 1 January 2023 to 6 May 2023, when she returned. Section 5B(2) provides that a person must use and occupy land as a principal place of residence for a continuous period of 200 days. Section 5B(2A) provides that a person does not use and occupy land for the purposes of s 5B(2) during a period of the person’s physical absence from Australia. The applicant was physically absent from Australia in the 13 days prior to her arrival and, as such, s 5B(2) does not apply to exempt the applicant from surcharge land tax unless the Chief Commissioner waives the requirement for the applicant in subs (2A) to be physically present in Australia.
The respondent submits that the applicant’s absence in 2023 was not a brief physical absence and an absence from Australia cannot be severed into separate parts, relying on Chen.
In Chen*,* SM MacIntyre considered whether an applicant, who had had travelled to China to assist her sister in circumstances where her brother-in-law was suffering from terminal cancer. He passed away and the applicant remained for a further six weeks to assist her sister with funeral arrangements and other necessary matters. The applicant’s physical presence in Australia on her return was 191 days. It was accepted by the Chief Commissioner that there were “exceptional circumstances”, but it was contended the exemption did not apply as the absence was not “brief”. The absence in that case was 87 days. SM MacIntyre observed at [37] that what is “brief” needs to be determined “having regard to the benchmark required by the legislation”. There were two alternative measures of time against which a determination may be made – the full calendar year or the 200-day benchmark. In his view, the measure should be against the 200-day benchmark, not the entire calendar year.
I agree with this conclusion.
The exemption under s 5B only applies if the applicant can meet the residence requirement. This requires, by reasons of ss 5B(2) and (2A), physical presence in Australia for a continuous period of 200 days. This is the benchmark. To assess whether an absence is “brief” by reference to a more generous period than the period identified by the legislature as being the minimum period to meet the residence requirement, dilutes the benchmark. In this case it is self-evident that the absence is not “brief”. The applicant had not been in Australia since January 2022 and in the 2023 land tax year, she was absent for just over 4 months before her return on 6 May 2023 – 126 days.
The second issue raised in Chen was whether the concept of “brief physical absence in Australia” in s 5B(2B) could capture the discrete 9-day period that preceded the 191 days during which the applicant was physically present in Australia or whether the whole period of absence must be considered.
The Tribunal stated at [41]:
“I do not think that the words “brief physical absence from Australia” lend themselves to allow for a severance of an actual period of physical absence into different parts. The words in my opinion mean what they say, namely a “brief physical absence from Australia”. They do not allow the Tribunal to carve out of the period of actual physical absence a shorter period, such as the 9 day period preceding the 191-day period when the Applicant was physically present in Australia, even if that 9-day period taken in isolation can answer the description of “a brief physical absence from Australia”. What is a brief physical absence from Australia must be determined having regard to the actual period of physical absence.”
I agree with these observations. The absence must be taken as a whole; it cannot be severed into separate parts to allow an applicant to tack on days at the beginning or the end of the continuous presence in Australia to meet the benchmark.
Accordingly, I find the applicant is not exempt from surcharge land tax.
Cases such as this may result in a harsh outcome for non-Australian citizens, particularly when they have made Australia their home, have cause to travel overseas for extended periods, sometimes in circumstances outside their control, and are not familiar with the land tax legislation. However, the land tax legislation is clear, unambiguous and provides a limited exemption based on the concept of a residence requirement of a continuous period of 200 days.
There is not discretion, although an applicant can apply for relief by the Hardship Review Board. The Board has now rejected the applicant’s application under Division 5 of Part 10 of the TAA on two occasions. On the first occasion, the Board stated it could not review her application because the surcharge land tax had been paid. At the hearing the legal representative for the respondent said that it was still possible to make a hardship application, which is consistent with s 106CA of the TAA, although I note this is in potential conflict with s 110 of the TAA. Ultimately, this is not an issue I can consider because NCAT has no merits review jurisdiction over this, suffice to say many of the issues raised by the applicant in her evidence, particularly relating to her claims of domestic violence, are compelling and my findings in relation these issues may be of assistance to the applicant in further pursuing favourable review of her hardship application.
The Tribunal makes the following orders:
The time to lodge the application for review is extended to 10 July 2025.
The decision under review is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar
Gervais
Chief Commissioner of State Revenue