Heckenberg v Chief Commissioner of State Revenue

The land tax assessments

1. The five land tax assessments are concerned with land tax liabilities of the applicants in respect of the Land as at 31 December in each of the years 2003 through to 2016 (tax years 2004 to 2017).
2. There were considerable gaps in time between many of the dates of a claimed tax liability and the dates when an assessment of that liability was issued by the Commissioner. Most strikingly, in September 2015 a notice of assessment was issued in respect of seven prior tax years.
3. It is also apparent that assessments shown in a notice of assessment issued in July 2007 in respect of four prior tax years (2004, 2005, 2006 and 2007) include reassessments by the Commissioner in respect of the applicants' tax liability position as at 31 December 2003 (tax year 2004) and 31 December 2004 (tax year 2005). This is because two previous assessments for those dates had been issued showing that the applicants had no tax liability in respect of the Land at those times.
4. As explained below, no tax liability is claimed by the Commissioner in respect of the Land for the first tax date after the Land was purchased by the applicants, namely 31 December 2002

The issues

1. The review as to the principal amounts of land tax is concerned with whether a concession to the principal place of residence exemption from land tax came to expire. That concession applied where the land in issue was not actually used and occupied as a principal place of residence. If the concession, when applied to the facts in this case, did come to expire, there is no dispute as to the consequences, namely that the concession is revoked and all relevant tax years prior to the expiry of the concession become subject to the tax.
2. The precise terms of this concession varied somewhat from time to time throughout the period with which we are concerned. However, these variations are inconsequential either because of the facts or because of transitional provisions that make a variation inapplicable in the circumstances.
3. Ultimately, the Commissioner came to accept that the owners' intentions concerning the Land, namely to occupy the Land as their principal residence and to build such residence on the Land, satisfied the terms of the elements of the concession that were concerned with these intentions.
4. As a consequence, the real issue concerning the principal amounts of tax came to be whether the applicants had discharged their onus of proving that at each relevant tax date the delay in completion of the building of the proposed residence on the Land was primarily due to reasons beyond their control.
5. As to the question of interest, the issue is whether the Tribunal should decide to remit all or some of the premium and/or market interest components of the interest shown in the assessments the subject of this review.

The nature of the review

1. This application is made pursuant to s 96(1) of the Taxation Administration Act 1996 (TAA). Under that section a taxpayer may apply to the Tribunal for a review under the Administrative Decision Review Act 1997 (ADRA) of a decision of the Commissioner that has been the subject of an objection. Accordingly, the decision under review is not the determination of the taxpayers' objection - it is the decision the subject of the objection: Metricon Qld Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 982 at [26].
2. I agree with the Commissioner that the decisions under review in this case are the assessments of both principal and interest amounts shown in the five notices of assessment described below. Whilst, subject to the operation of an exemption, a liability for these amounts arises by force of the relevant statutory provisions without any involvement of the Commissioner the relevant notices of assessment reveal assessment decisions by the Commissioner about the imposition and extent of that liability: see Paliflex Pty Ltd v Chief Commissioner of State Revenue [2003] HCA 65 at [8]; 219 CLR 325; Tooth & Co Ltd v Newcastle Developments Limited [1966] HCA 57; 116 CLR 167 (at 170): see also s 14 of the Land Tax Management Act 1956 (LTMA) and s 8 of the TAA.
3. It is these assessments, including, where applicable, reassessments under s 9 of the TAA, that are the administratively reviewable decisions.
4. The task of the Tribunal on the review is to decide what is the correct and preferable decision: s 63(1) of the ADRA. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it: s 63(1). Hence, the review is in the nature of a fresh consideration de novo of the merits of the relevant decisions.
5. The applicants' and respondent's cases upon review are not limited to the grounds of objection (s 100(2) of the TAA) nor by the reasons for decision on the objection: Metricon at [26]. The standard of proof is the ordinary civil standard upon the balance of probabilities: B&L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [104].
6. Importantly, upon this review the applicants have the onus of proving the applicants' case: s 100(3) of the TAA.
7. Consistently with s 63 (3)of the ADRA, in dealing with the application for review, the Tribunal may make a variety of orders, including to confirm or revoke the assessment and to make an assessment in place of the assessment to which the application relates: s 101(1)(a) of the TAA.
8. A taxpayer who is dissatisfied with an assessment that is shown in a notice of assessment served on the taxpayer may lodge a written objection with the Commissioner: s 86(1) of the TAA. The Commissioner must consider an objection and either allow the objection in whole or in part or disallow the objection: s 91(1) of the TAA
9. Correctly, in the Tribunal's opinion, the Commissioner accepts that the objection that was made by the applicants' written objection dated 4 December 2017 was an objection in respect of all assessments in respect of the 14 tax years in issue, including objections to both principal and interest. This is so, even though the objection makes no specific reference to any particular assessment nor to assessments of interest.
10. Correctly, in the Tribunal's opinion, the Commissioner also accepts that because the objection was broad enough to cover both principal and interest the Tribunal has jurisdiction to review the assessments of interest even though there was no specific application by the applicants for remission of interest and questions concerning interest were not addressed in the determination of the objection.
11. The Commissioner takes no issue about delay in the making of the objection.

The notices of assessment

1. The relevant notices of assessment (in Tab 4 of the s 58 documents) are 1. Issue date 15 July 2007 for the 2004, 2005, 2006 and 2007 tax years, with a due date of 24 August 2007. The notice included the statement with respect to the 2004 and 2005 tax years that the assessment replaced the applicants' previous notification (which had been nil assessments); 2. Issue date 24 January 2008 for the 2008 tax year, with a due date of 4 March 2008. No amounts for interest were included in this notice; 3. Issue date 25 September 2015 for the 2009, 2010, 2011, 2012, 2013, 2014 and 2015 tax years, with a due date of 4 November 2015. Included within the total amount claimed was a smaller amount in respect of the prior year assessments for the tax years from 2004 to 2008. Included in that smaller amount was an amount of $2,841.68 for interest in relation to the 2008 tax year. This was the first assessment to include any amount for interest. 4. Issue date 4 February 2016 for the 2016 tax year, with a due date of 15 March 2016. In addition to the amount assessed for the 2016 tax year, there was included an amount in respect of prior year assessments for the tax years from 2004 to 2015. In this latter amount there was included small interest amounts relating to the tax years from 2009 to 2015 as well as an increased amount of interest relating to the 2008 tax year. 5. Issue date 2 February 2017 for the 2017 tax year, with a due date of 14 March 2017. In addition to the amount assessed for the 2017 tax year, there was included an amount in respect of prior year assessments for the tax years from 2004 to 2016. In this latter amount there was included a small amount of interest relating to the 2016 tax year and increased amounts of interest relating to the tax years from 2004 to 2015.
2. The Tribunal also notes the following earlier notices of assessment: 1. Issue date 13 September 2004 for, relevantly, the 2004 tax year in the sum of $678. 2. Issue date 9 February 2005 for, relevantly, the 2004 tax year being a nil assessment. This included the statement that the assessment replaced the applicants' previous notification for the reason that the Land was unoccupied but intended to be the owners' principal place of residence. 3. Issue date 15 February 2005 for the 2005 tax year in the amount of $3,306. 4. Issue date 14 February 2006 for the 2005 tax year being a nil assessment. This included the statement that the assessment replaced the applicants' previous notification for the reason that the unoccupied Land was intended to be an owner's principal place of residence.

The applicants' objection to the assessments and its determination

1. Mr Heckenberg, one of the applicants, signed a land tax objection form dated 4 December 2017 included in the s 58 documents lodged by the Commissioner with the Tribunal: s 58 of the ADRA. The objection form identified that the applicants relied upon the concession for unoccupied land intended to be the owners' principal place of residence. The objection also included a statement from Mr Heckenberg that if the applicants were liable for land tax they requested that a substantial amount be waived and that they be able to pay off the tax.
2. By letter dated 5 February 2018, the applicants were given notice of a determination to disallow the objection along with reasons for that determination.

The administrative review application

1. On 16 August 2018, the applicants lodged an application in the Tribunal for administrative review.
2. That application made reference to a letter to the applicants from the Commissioner dated 18 June 2018 which responded to an email from Mr Heckenberg dated 16 February 2018 in which he requested a further review of his objection.
3. The letter dated 18 June 2018 said: 1. At the time of the applicants' purchase of the Land on 18 September 2002, the now repealed s 10T of the LTMA applied and provided for an exemption from land tax for two years for land intended to be the owners' principal place of residence. That section had been replaced by cl 6 of Schedule 1A of the LTMA from the 2004 tax year. 2. The applicants' concession period was extended due to issues with the Council and State Planning but from about 2014, when the applicants received confirmation that the development application was current, it was determined that any delay was not beyond the applicants' control. 3. As the applicants had not resided at the Land since 2014, the concession for unoccupied land had been revoked.
4. The administrative review application set out the grounds as follows: I liaised with officers of the NSW Revenue since 2014 (approx.) and not one officer told me the rules until last year when Ms Susan Parsons told me and suggested that I start paying the land tax to which we did. I think that it would be an obligation upon the officers to inform me of the rules. I spoke to a Chris in the beginning, he told me if the Land wasn't included in the development I may have to pay some land tax.
5. At the hearing, after some discussion with Mr Richardson, Counsel for the Commissioner, the Tribunal was informed that the Commissioner did not rely upon the making of some payments of land tax by the applicants in any way in the determination of the application for review.

The applicants' case at the hearing

1. The applicants did not have legal representation in these proceedings (Mr Heckenberg appeared at the hearing for the applicants) but based upon the applicants' grounds of objection to the assessments, the grounds set out in the administrative review application and what Mr Heckenberg told the Tribunal at the hearing, the applicants' case at the hearing can be summarised as follows: 1. The applicants always intended that the Land house their principal place of residence. 2. The only reason construction of the residence ceased in 2004, after building work had commenced, was because the applicants were advised by a Council officer (Ms Connolly) that she wanted the Land included in the proposed Edmondson Park Urban Release Area precinct (EPURA) and that if this meant the Land was to be resumed for park land they would only be given land value upon resumption - as a consequence it was not "economically viable" to continue with construction. 3. After 10 years (in 2014) it became clear that the Land would not be included in the EPURA. 4. After those 10 years the Council "reinstated" the applicants' development application approval. By that time the applicants' financial circumstances and Mr Heckenberg's health situation had changed for the worse. 5. From approximately 2014, Mr Heckenberg liaised with the Office of State Revenue (OSR) but no-one told him the rules. 6. The applicants hoped to eventually complete construction of their family home on the Land but their financial capacity to do so depended upon successful litigation in respect of ruptured discs suffered by Mr Heckenberg. 7. For these reasons the concession in respect of unoccupied land applied in all the relevant tax years. 8. In any event, the applicants should not be required to pay all of the amount that had been assessed going back all these years.

Narrowing of the Commissioner's case

1. So far as the principal amounts of tax were concerned, up until the second day of hearing, including at the time when Mr Heckenberg gave his evidence in chief, it was part of the Commissioner's case that the concession in respect of unoccupied land was not applicable because of a want of the requisite intention of the applicants to carry out the building work to make the Land their principal place of residence: written submissions of the Commissioner dated 12 March 2019 at [72]-[82].
2. Before the second day of hearing, the Commissioner indicated that he no longer relied upon a case about whether the applicants had established the requisite intention in respect of building upon the Land: Commissioner's Summary of Issues for Determination dated 17 April 2019 at [3].
3. As a consequence, the Commissioner came to rely solely upon the ground that an extension of the two year period after purchase for building (see further below) was not or became unavailable for the benefit of the applicants because they had not established that the delay in completion of the building was due primarily to reasons beyond their control.
4. In this regard, in cross examination of Mr Heckenberg and in submissions, the Commissioner focussed upon the facts as at 31 December 2004 and as at 31 December 2014.
5. Accordingly, for the purpose of this review, the Tribunal proceeds on the basis that it is accepted by the Commissioner that the applicants, at all material times, had the intention in respect of the Land required by the concession.
6. As a result, the scope of the evidence the Tribunal needs to consider and facts needed to be found is considerably reduced from what was required at the commencement of the hearing.
7. As to questions of interest, the Commissioner's case is that the applicants have not established that there should be any remission of any component of the interest that has been assessed.
8. The Tribunal deals first with the case about the principal amounts of tax.

The statutory provisions - principal amounts of tax

1. Because of the passage of time, there have been some changes to the applicable provisions but these are not significant to the outcome of this review.
2. Mr Richardson has accurately summarised the statutory position in his written submissions. Some transitional provisions are applicable. Except where otherwise indicated, there is no material difference between the current state of the relevant statutory provisions and the applicable historical version of these provisions.
3. Section 3 of the Land Tax Act 1956 provides for land tax to be levied under the provisions of the LTMA on the taxable value of land owned by any person as at 31 December for the period of 12 months commencing on the first day of January in the next succeeding year.
4. Section 7 of the LTMA provides: 7 Land tax on taxable value of land Land tax at such rates as may be fixed by any Act is to be levied and paid on the taxable value of all land situated in New South Wales which is owned by taxpayers (other than land which is exempt from taxation under this Act).
5. Section 8 of the LTMA provides: 8 Date of ownership for purposes of land tax Land tax shall be charged on land as owned at midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied. In this section year means the period of twelve months commencing on the first day of January.
6. Section 10(1)(r) of the LTMA provides: 10 Land exempted from tax (1) Except where otherwise expressly provided in this Act the following lands shall….be exempted from taxation under this Act: … (r) land that is exempt from taxation under the principal place of residence exemption, as provided for by Schedule 1A,
7. Clause 2 of Schedule 1A of the LTMA, relevantly, provides: 2 Principal place of residence exemption (1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, …. ….. (4) The exemption conferred by this clause is referred to as the principal place of residence exemption. …..
8. For the 2004 and 2005 tax years, the terms of cl 6 of Schedule 1A that applied were, relevantly: 6 Concession for unoccupied land intended to be owner's principal place of residence (1) If the Chief Commissioner is satisfied that the owner of unoccupied land intends to use and occupy the land solely as his or her principal place of residence, the owner is taken, for the purposes of the principal place of residence exemption, to use and occupy that land as his or her principal place of residence. (2) This clause does not apply unless the Chief Commissioner is satisfied that: (a) the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence, and ….. (3) This clause applies in respect of the assessment of a person's ownership of land only in the period of: (a) 2 tax years immediately following the year in which the person became owner of the land, or ….. (4) The Chief Commissioner may extend the period in which this clause applies if satisfied that: (a) there is a delay in the completion or, in a case referred to in subclause (3)(b), the commencement of the building or other works necessary to facilitate the owner's intended use and occupation of the land, and (b) the delay is due primarily to reasons beyond the control of the owner. (5) If the principal place of residence exemption applies by operation of this clause to land not actually used and occupied by a person as his or her principal place of residence on a taxing date, that exemption is revoked if the person fails to actually use and occupy the land as his or her principal place of residence by the end of the period in which this clause applies in respect of the assessment of the person's ownership of the land and to continue to so use and occupy the land for at least 6 months. (6) The effect of the revocation is that the principal place of residence exemption is taken not to have applied to the land in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly. …..
9. From 7 December 2005 sub-clause (4) was altered so as to require that applicants for an extension of the two year period in sub-clause (3) "demonstrate" that the conditions for the extension are satisfied rather than that the Commissioner be satisfied of those matters.
10. This altered version of cl 6 applied for the remainder of the tax years in issue. This is so, despite the change to cl 6 from 28 June 2010 under which the two year period in sub-clause (3) was increased to four years but with no further extension permitted (sub- clause (4) was repealed). The two year period and the associated ability to extend beyond that two year period continued to apply in this case by virtue of the transitional provision in cl 51 of Schedule 2.
11. It should be noted that: 1. In this case, as submitted by the Commissioner, nothing turns upon the change in language in cl 6(4) from and after 7 December 2005 concerning the extension of the two year building period. 2. If the revocation provision concerning the principal place of residence exemption in cl 6(5) was triggered because the taxpayer failed to actually use and occupy the Land as his or her principal place of residence by the end of the period in which the cl 6 concession applied, then the principal place of residence exemption is taken not to have applied to the Land in respect of any tax year to which, but for the revocation, it would have applied: see cl 6(6). Accordingly, in this case, if such circumstances occurred, land tax liability, in effect, related back so that it arose at each of the prior year end tax dates commencing on 31 December 2003. 3. This relating back did not extend back to 31 December 2002 (the first tax date after the applicants' purchase) because at that time the principal place of residence exemption applied by virtue of then existing s 10T of the LTMA and not by reason of cl 6. It was only when it applied by reason of cl 6 that the revocation and relation back provisions in cl 6(5) and (6) applied.

Evidence at the hearing

1. The applicants' evidence at the hearing consisted of the following material from Mr Heckenberg: 1. A letter received by the Tribunal on 9 November 2018 (Exhibit A), 2. A written statement by him (Exhibit C), 3. Oral evidence from him at the hearing. In the first instance, this consisted of evidence given, largely, in response to questions from the Tribunal about the applicants' intentions for the Land and reasons for delay in the completion of the building of a residence on the Land. Mr Heckenberg was cross-examined about his evidence.
2. In submissions, the Commissioner accepted that Mr Heckenberg was a truthful witness. The Tribunal agrees with that assessment.
3. Mr Heckenberg was the only witness to give evidence at the hearing.
4. The respondent's evidence consisted of the s 58 documents.

Facts concerning delay in completion of building

1. From the evidence from Mr Heckenberg and the documentary evidence the following facts are uncontroversial: 1. Mr Heckenberg was an architectural draftsman, a building surveyor and held a building licence. He is now totally disabled from working. He stopped work in 2009 because of his health. He receives workers compensation. 2. The applicants became the registered proprietors of the Land in September 2002. They purchased the Land with the intention of building on it a large two storey, five bedroom family home with an attached granny flat for Mrs Heckenberg's mother to live in. The Land was zoned 7(d5) Environmental Protection under the prevailing Local Environment Plan. This limited development to a 1 hectare subdivision and rural style development. 3. At all material times the Land was unoccupied within the meaning of cl 6(1) of Schedule 1A. 4. By letter from Ms Connolly at Campbelltown City Council dated 23 April 2003 Mr Heckenberg was informed that the Council had granted consent to the development application for the home, subject to conditions. 5. In the first half of 2004 some building work for the home was carried out. Principally, this was all the major earthworks. The cost of building the planned home at this time was about $200,000.00. 6. By about the middle of 2004 all building work had ceased. Initially, the work stopped because of the emotional impact of the death Mr Heckenberg's mother in law - an event referred to in a statutory declaration Mr Heckenberg signed for an application for land tax exemption for unoccupied land dated 7 December 2004. But the applicants were not dependent upon her for funding and this was not the reason the work stopped altogether and for years afterwards. This happened because of uncertainty about the future status of the Land in the light of the proposed EPURA relating to government planning for urban growth and associated parkland in the area. 7. In January 2005, the applicants, along with the owners of a block neighbouring the Land (Mr and Mrs Migus), in accordance with Ms Connolly's wishes referred to below, signed a submission for the inclusion of both of these properties into the proposed EPURA from which the properties had been omitted. The terms of the submission were prepared by Mr Migus. 8. The two properties were the only two lots north of Zouch Road between the F5 and Camden Valley Way to be omitted from the proposed precinct. They formed part of the buffer zone between the freeway and parkland. 9. Prior to the submission, Mr Heckenberg and Mr Migus were told by Ms Connolly at the Council that she would like the Land, and the adjacent block owned by Mr and Mrs Migus, to be incorporated into this precinct. Ms Connolly told them that if that was to happen it may involve resumption of these properties in which event the applicants (and Mr and Mrs Migus) would only receive land value as compensation. For this reason, the applicants stopped building on the Land until they had clarity about what was to happen. 10. The submission the applicants signed presented three options for the two properties, namely that they be either incorporated into the open space corridor and be compulsorily acquired or be zoned residential 2(c) for medium density residential development or be zoned for commercial purposes. It was submitted that inclusion of the properties in the overall rezoning associated with EPURA would eliminate a remnant of an odd shaped parcel of land that did not currently serve as a satisfactory planning outcome for the proposed precinct. 11. From about early 2005 there were protracted dealings with the Council and with the Department of Planning (Ms Connolly had moved there by late 2005) about what was to happen to the Land. These dealings went on for many years. There was also correspondence with the Minister for Planning seeking to enlist his support for the inclusion of these properties in the precinct. Such a request was also made to the Premier in December 2005. 12. Despite Ms Connolly's recommendation for approval of incorporation of these properties into the proposed precinct, this step was rejected by the Council before the end of 2005. In January 2006, Mr Heckenberg was informed that the request to include the properties in the precinct had not been supported by the NSW government. 13. Nevertheless, the applicants (and Mr and Mrs Migus) continued for many years to pursue incorporation of these properties into the precinct, or that they be included in future planning for the precinct, with the various avenues that were open to them. 14. Throughout the whole of this period in which the applicants pursued incorporation of the Land into the precinct or to be included in future planning for the precinct, what Mr Heckenberg wanted, principally, was clarity one way or the other as to what was to occur. 15. At various times during the years from 2004 to September 2015 (when the assessment for seven prior tax years was issued) Mr Heckenberg had communications with employees within the OSR. This included communications with Chris Harrison and, subsequently, with Scott Tyrrell. Later, in 2017, he had communications with Susan Parsons of the OSR. It was not until speaking with Ms Parsons that he had the relevant rules about liability for land tax explained to him. 16. From about the beginning of 2009, Mr Heckenberg's health deteriorated badly. In that year he was in hospital for about six months after he contracted a golden staph infection. Despite this, he would still have been able to organise building of the home on the Land to be completed, if he had decided to take that course. This was so, even though he came to stop work altogether because he was disabled following knee operations. 17. Because of the serious impact from his health on his financial position, Mr Heckenberg was forced to carry out a fire sale of all of the real estate assets controlled by him, including the home that the applicants lived at in Casula - a property that was owned by a company he controlled. This led him to go and live with his daughter as from about the end of 2010. He still lives with his daughter. 18. Following the sale in 2009 of a townhouse development he controlled, he became involved in drawn out court proceedings with the purchaser of that development in order to recover the full purchase price. He was successful at trial, then on appeal to the Court of Appeal in 2012, and on an application by the purchaser for special leave to appeal to the High Court, which was dismissed. 19. Mr and Mrs Migus sold their adjacent property in November 2012, having become fed up with the Council's inability to review the zoning so as to include their properties in the overall development of land associated with the precinct. 20. In 2014, Mr Heckenberg gave up on the attempts to have the changes made affecting the Land. He wished to complete the building of the home. Accordingly, in the middle of 2014 he requested the Council to "reinstate" the original development approval. 21. In a letter from Campbelltown City Council dated 18 December 2014, Mr Heckenberg was informed that it was the Council's opinion that the development consent had been activated and was, therefore, still current. 22. However, the applicants did not then proceed to complete the building of the home due to financial considerations. At that time, the home would have cost about $300,000 to $350,000 to complete. 23. Mr Heckenberg turned 55 in 2013 but by the end of 2014 all of his superannuation had been used to pay out the ANZ bank. He did receive a lump sum payment of about $90,000 in 2014 or 2015 for his permanent disability. 24. At the time of hearing, no further building work had been carried out on the Land since the work done in 2004. However, the applicants still intend to complete the building if funds can be obtained from planned litigation against Mr Heckenberg's chiropractor. The Land is the only property the applicants own. Mr Heckenberg wants to make the Land his home rather than continue to depend on his daughter for a place to live.
2. In addition, the following important facts were established by the cross-examination of Mr Heckenberg: 1. In late 2004 he had no real financial issues and before 2007 his health was alright. 2. At the end of December 2004, whilst he was fairly confident that the Land would be included in the EPURA precinct because Ms Connolly wanted it included, nothing was set in stone as to what was going to happen. Mr Heckenberg accepted that it was within the applicants' control to proceed to complete the building at that time. 3. By December 2014, the applicants had certainty that the changes sought affecting the Land would not occur. 4. After he received the letter from Council that it viewed the development consent as still current, it was not his health that got in the way of completing the building. He could call on his sons to do that. 5. As at the end of 2014, whilst he thought he could have raised the funds needed to complete the building work at this time, Mr Heckenberg did not want to use the capacity he had to do so for that purpose because he knew he would have to pay his solicitors a large amount for their work on the court case. 6. Ultimately, after having the solicitors' costs taxed, in late 2017 he mortgaged the Land in order to finance the payment of his solicitors' costs of about $340,000.
3. Mr Heckenberg was critical of the accuracy and completeness of the respondent's client notes report included in the s 58 documents (Tab 36). He said he had more communications with the respondent over the period from 2004 to 2018 than are included in that report and that the entries were not always accurate.
4. Mr Heckenberg also said that the record as revealed by the s 58 documents was incomplete because most of the documents were sourced from him and these documents are incomplete because Mr Migus disposed of his records, including correspondence with the Council and the Department of Planning. The Tribunal notes that on occasions documents referred to in other documents which are included in the s 58 documents are not in the material supplied to the Tribunal.
5. However, because of the uncontroversial facts outlined above, the Tribunal does not regard Mr Heckenberg's criticisms of the documentary material suppled to the Tribunal as significant.

Law - delay in building completion for reasons beyond the control of the taxpayer

1. The requirement that the delay in completion be primarily for reasons beyond the control of the taxpayer will not be satisfied where the taxpayer has made a choice: see, for example, Re Hayward and Chief Commissioner of State Revenue [2011] NSWCATAP 17; 84 ATR 433 at 445 - 446; Chapman v Chief Commissioner of State Revenue [2009] NSWADT 207 at [83]; Re Sagovac and Chief Commissioner of State Revenue [2005] NSWADT 91 .
2. That is the case despite the fact that the alternatives to delay may be unpalatable; Hayward at 446.61.
3. The beyond control requirement may be satisfied where the funds required to pay for construction of a home could not be raised: BBLT Pty Limited v Chief Commissioner of State Revenue [2003] NSWSC 1003 at [95] - [99]. In saying this, the taxpayer may need to demonstrate that the delay could not have been avoided by the choice of a more modest home: Chapman at [69], [79],[84].
4. The beyond control condition will be satisfied where the physical or mental health of the taxpayer precluded the carrying out of the works: Sagovac at [22].
5. The beyond control requirement will not be satisfied where delay occurs because the taxpayer is ignorant of the land tax rules: Chapman at [86].

Conclusion - whether delay in building was beyond the applicants' control

1. The Tribunal concludes that the applicants have not established that at any relevant tax date the delay in completion of the building before the expiry of the two year period was due primarily to reasons beyond their control.
2. The building work ceased by about the middle of 2004 and there is no basis upon which it could be concluded that completion did not occur by 31 December 2004 because of reasons that were beyond the control of the applicants.
3. In any event, for many years from, at least, the end of 2004 the building work did not proceed because the applicants wished to know whether the Land would be included in the EPURA precinct and, if so, whether that would result in the Land being resumed. There was a risk that the Land might be resumed and if this occurred the applicants understood they would only be compensated for unimproved land value.
4. Understandably, the applicants chose not to expose themselves to the risk of such an adverse consequence. However, this involved a choice by the applicants even though the alternative to proceed to complete the building was an unattractive one in light of that risk. At no stage, did the proposed changes associated with the precinct provide any legal or practical obstacle that prevented the applicants from completing the building.
5. It was not until about 2009 or 2010 that financial pressures start to intrude on completion of the building, as a consequence of Mr Heckenberg's poor health.
6. But the continuing delay in the completion of the building from the time affected by financial pressures from about 2009 or 2010 up to and including 31 December 2016 was not due to reasons beyond the control of the applicants because completion of the building well before 2009 or 2010 was within their control. It was through choice, not compulsion, that the building had not been completed before these later times.
7. In view of this conclusion, the Tribunal can deal relatively shortly with the respondent's separate contention about the position from 31 December 2014 to 31 December 2016 based upon the uncontroversial fact that the resumption issue was no longer a factor in proceeding with the building work in this period.
8. In essence, the respondent submits that in respect of this later period the applicants have not, in any event, discharged their burden of proving that completion of the building in this period was prevented by their financial circumstances.
9. It is clear that by about the middle of December 2014 any resumption issue was not affecting the applicants' plans for the Land. At that time they applied for what Mr Heckenberg described as reinstatement of the original development approval to build their home. By 18 December 2014, the Council had confirmed that they regarded the development approval as still being current.
10. The applicants would have liked to proceed to build in accordance with that approval. However, Mr Heckenberg was concerned about their financial situation. He believed that they could not afford to fund the building work and then be in a position to pay their solicitors' costs of the litigation they were pursuing in respect of the sale of the townhouse development, when, ultimately, they would be required to do so.
11. As a consequence, the applicants held off from carrying out the building work during the period from 31 December 2014 to 31 December 2016.
12. Subsequently, the applicants' financial situation worsened to the point that, by the time of the hearing, it seems that the only potential source of funds for building would be through successful litigation against Mr Heckenberg's chiropractor.
13. The Tribunal is not persuaded that, on any view, by, at least, 31 December 2015 (bearing in mind that confirmation about the development approval being current was not provided until 18 December 2014) the delay in completion building was not due primarily to a choice to pursue litigation rather than preserve financial capacity to do the building work or that the delay was not due to financial prudence rather than financial compulsion.
14. In this regard, the Tribunal has been provided with a broad account from Mr Heckenberg about the relevant financial circumstances without supporting detail concerning these circumstances, including such detail about the demands and constraints faced by the applicants during this period.
15. These conclusions about the beyond control requirement are not altered in any way by the applicants' ignorance of the tax rules. In the first place, it was not the applicants' case that they would have completed the building had they known the tax rules and Mr Heckenberg gave no evidence to this effect. Secondly, as the Tribunal has already mentioned, such ignorance is not capable of satisfying this requirement.

The tax consequences of these facts (excluding the issue of interest)

1. The conclusions about the operation of the principal place of residence exemption which follow from these facts and the Commissioner's acceptance that at all material times the applicants did have requisite intention in respect of the Land as described in cl 6(1) and (2) of Schedule 1A are: 1. The entitlement of the applicants to claim the Land as their principal place of residence pursuant to cl 6(1) expired on 31 December 2004 because of the expiry of the two year period in cl 6(3)(a) unless extended under cl 6 (4). 2. The beyond control requirement for an extension of that two year period beyond 31 December 2004 under cl 6 (4) has not been satisfied as at 31 December 2004 or, in any event, in respect of any relevant tax date after 31 December 2004. Accordingly, there is no power to grant an extension of the two year period in which the applicants are entitled to claim the Land as their principal place of residence beyond. 3. Accordingly, 31 December 2004 was the end of the period during which the concession in cl 6 applied, within the meaning of cl 6(5). In any event, the concession in cl 6 had ended by each relevant tax date after 31 December 2004 up to and including 31 December 2016. 4. The applicants failed to actually use and occupy the Land as their principal place of residence by 31 December 2004, within the meaning of cl 6(5). In any event, they failed to so use and occupy the Land by each relevant tax date after 31 December 2004 up to and including 31 December 2016. 5. As a consequence of (3) and (4), the circumstances in which the principal place of residence exemption was revoked, as specified in cl 6(5), were satisfied. 6. Accordingly, in accordance with cl 6(6), the principal place of residence exemption is taken not to have applied to the Land in respect of any tax year in which, but for the revocation, it would have applied. Whether revocation first occurred on 31 December 2004 or, at the latest, occurred on 31 December 2016, this means that the principal place of residence exemption was inapplicable in any of the tax years with which this review is concerned.

Remission of interest

1. There are three decisions about interest under review, namely, those reflected in the following notices of assessment: 1. Issue date 25 September 2015, with a due date of 4 November 2015, containing interest in the sum of $2,841.68 relating to the 2008 tax year. That 2008 assessment had a due date for payment of 4 March 2008. The Tribunal infers that this interest amount is a calculation of interest incurred from 5 March 2008 to 25 September 2015. 2. Issue date 4 February 2016, with a due date of 15 March 2016, containing an increased interest amount referable to the 2008 tax year assessment ($2,989.70), as well as seven interest figures, in small amounts, referable to each of the tax years the subject of the 25 September 2015 assessment (2009 to 2015). The Tribunal infers that all of these interest amounts are calculations of interest incurred (additional interest in the case of the 2008 tax year) from 5 November 2015 (the due date for payment of the 25 September 2015 assessment being 4 November 2015). 3. Issue date 2 February 2017, with a due date of 14 March 2017, containing an interest amount referable to the 2016 tax year assessment ($94.16), as well as increased amounts of interest for each of the prior tax years going back to the 2008 tax year. The Tribunal infers that all of these interest amounts are calculations of interest incurred (additional interest for each except the 2016 tax year) from 16 March 2016 (the due date of the 4 February 2016 assessment being 15 March 2016).
2. It needs to be borne in mind that the Tribunal is not being asked to make an order for payment of an amount of interest upon the principal amounts of tax that the applicants are found to be liable to pay from the date when payment was due up to the date of the order.

Interest - the statutory provisions

1. Liability for interest is governed solely by the TAA against the background that s 39 of the LTMA, relevantly, provides: 39 Date for payment of land tax (1) Land tax payable by a taxpayer is due and payable as required by the relevant notice of assessment served on the taxpayer concerned. …..
2. The TAA makes general provisions with respect to the imposition of interest; s 7(3)(c).
3. The provisions of the TAA set out below are relevant here.
4. The definition section (s 3(1)) includes the following: tax means a tax, duty, contribution or levy under a taxation law, and includes: (a) interest and penalty tax under Part 5, and taxation law has the meaning given by section 4. tax default means a failure by a taxpayer to pay, in accordance with a taxation law, the whole or part of tax that the taxpayer is liable to pay. taxpayer means a person who has been assessed as liable to pay an amount of tax, who has paid an amount as tax or who is liable or may be liable to pay tax.
5. The LTMA is a taxation law for the purposes of the TAA: s4.
6. Because the definition of tax in the TAA extends to interest (see above) the general power of the Commissioner to make assessments of tax in s 8 of the TAA extends to the assessment of interest.
7. Section 21 of the TAA, relevantly, provides: 21 Interest in respect of tax defaults (1) If a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate from time to time applying under this Division.
8. Section 22 of the TAA, relevantly, provides: 22 Interest rate (1) The interest rate is the sum of: (a) the market rate component, and (b) the premium component. (2) The market rate component is: (a) unless an order is in force under paragraph (b), the Bank Accepted Bill rate rounded to the second decimal place (rounding 0.005 upwards), or (b) the rate specified for the time being by order of the Minister published in the Gazette. (3) The premium component is 8% per annum….
9. Section 25 of the TAA provides: 25 Remission of interest The Chief Commissioner may, in such circumstances as the Chief Commissioner considers appropriate, remit the market rate component or the premium component of interest, or both, by any amount.

Interest - the case law

1. The following approach by the Appeal Panel in the former Administrative Decisions Tribunal in Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19; 56 ATR 82 has been generally adopted in this Tribunal: 60 In our view the primary interest rate (the market rate component) is intended to compensate the Commissioner (on behalf of the Government of New South Wales) for not having the benefit of the tax payment from the time it was due. So a rate is set which fluctuates, and is connected to an external rate, the Reserve Bank's Accepted Bill rate. This, as we see it, is a component that could rarely, if ever, be waived as otherwise tax would be paid at a devalued amount thereby discriminating against taxpayers who meet their obligations on time. The Tribunal made the observation at [50] that to justify any remission of the market rate component of interest, it would be necessary to show that in some way the Commissioner contributed to the default. We agree with this observation. 61 On the other hand, the premium rate is a form of penalty. Its purpose, as we see it, is to provide an additional economic deterrent against taxpayers failing to meet their obligations on time. The "market rate" component approximates ordinary lending interest rates. Taxpayers may withhold tax simply to invest the money in schemes and projects that have a higher potential earnings; and may be content to carry the late payment surcharge were it only at the market rate. The "premium rate" is intended as we see it to operate as the key disincentive to delaying tax payments….
2. Prior to that decision, it had also been said that another circumstance which would warrant remission of market rate interest would be if the situation was completely out of the control of the taxpayer: Trust Co of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21 (at [27]).
3. Relying on the following passage in the Trust Co of Australia case, the Commissioner submits that the relevant test for remission of market rate interest is whether the tax default was entirely the fault of the respondent: 27 In cases where an amount of interest is imposed by the application of the market rate, only exceptional circumstances would justify any remission. The narrow category of circumstances would include cases where the "tax default" is entirely due to a fault of the Chief Commissioner. Other circumstances would include situations completely out of the control of the taxpayer, such as postal strikes, serious illness of the taxpayer and natural disasters (bush fires, floods and earthquakes).
4. The Tribunal does not accept that the test in respect of the remission of market rate interest is so confined. In the first place, the Tribunal in the decision relied upon was not setting out an exhaustive list of the circumstances for remission. Secondly, it is clear that the discretion to remit both market and premium rates is a broad one. Thirdly, the Appeal Panel in Incise referred to a less strict circumstance as being relevant, namely that the respondent had "some way contributed to the default".
5. In Madikian v Chief Commissioner of State Revenue [2017] NSWCATAD 263 Senior Member Boxall summarised the approach to remission of both market rate and premium rate interest according to that taken in Incise, including that with respect to premium rate interest the Appeal Panel in Incise had: explained the function of the premium rate as "… a form of penalty …" whose purpose "….. is to provide an additional economic deterrent against taxpayers failing to meet their obligations on time"; and identified the circumstances in which it might be appropriate for the Respondent to remit the premium component of interest, namely where: 1 all principal tax that has been assessed and is not in dispute has been fully paid at the time of the request for remission of interest; 2 there has been co-operation by the taxpayer in providing relevant information to the Respondent so as to enable the Respondent to issue assessments; 3 such co-operation by the taxpayer has occurred prior to any investigation being commenced by the Respondent (voluntary disclosure) or, at the very least, within a reasonable time after requests for information have been made by the Respondent - i.e. the taxpayer has taken reasonable care; and 4 there has been no wilful default by the taxpayer in not paying tax on time.
6. These same four criteria were applied by Emmett AJA in Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773 (at [81]) on the basis that both parties accepted these "cumulative" criteria as being the circumstances in which premium rate interest should be remitted.
7. Accordingly, the Tribunal applies the approach outlined in these cases to the remission of interest in this case. In so doing, the Tribunal does not accept that reasonable care by the taxpayer in meeting the tax obligation is by itself the test to be applied to the remission of premium rate interest, as is suggested by the respondent's further written submissions on interest.

The parties' submissions about interest

1. As an unrepresented litigant, Mr Heckenberg took the general position that the applicants should not, in any event, have to pay the whole of the amount that had been assessed but did not otherwise make any detailed submissions which addressed the factors concerning the remission of interest.
2. Initially, the Commissioner made some short written and oral submissions against the remission of interest. Subsequently, after some debate with the Tribunal, the Commissioner came to make further written submissions about interest after the hearing, in accordance with directions made by the Tribunal.
3. The Tribunal has considered all of the respondent's submissions about interest but, in short, as to the premium rate of interest, the Commissioner came to submit that it was open to the Tribunal to remit the premium rate component of interest if the Tribunal was satisfied that the applicants had taken reasonable care and there was information Mr Heckenberg had from the respondent that was relevant to that issue. The Tribunal has already outlined the criteria that it proposes to apply in respect of the discretion to remit the
4. As to the market rate of interest, the Commissioner came to submit that whilst it was difficult to test whether the respondent entirely caused the tax default and that this was a weighing exercise for the Tribunal, the evidence did not suggest that payment of land tax was entirely out of the control of the applicants and that the applicants had not discharged their onus in this regard.

Interest - the evidence

1. The facts bearing upon the remission of interest are found to be as follows, based, as they are, upon Mr Heckenberg's undisputed evidence: 1. Contrary to what he first indicated to the Tribunal, after speaking with his wife, Mr Heckenberg accepted that they had received the notice of assessment with an issue date of 24 January 2008. It was in respect of this assessment that the Commissioner first came to impose interest over seven and a half years later in September 2015. 2. On each occasion that they received a notice of assessment prior to the 25 September 2015 notice, he spoke to Chris Harrison and, subsequently, Scott Tyrell, within the OSR. They each told him he could disregard any assessments because the issue about resumption had not been resolved one way or the other and Mr Heckenberg did not have clarity. 3. When he received the notice of assessment with an issue date of 25 September 2015 - the next notice after the January 2008 notice - he nearly fell off his chair. He spoke to Mr Sam Imseis within OSR about it. He told Mr Imseis he would have his accountant write them a letter saying he was compliant. His accountant was Ambrish Diwaker at A&D Taxation Services. He spoke to his accountant who told him he would do the letter. 4. Just prior to Christmas 2015 he spoke again with Mr Imseis who said to him that "everything was taken care of". 5. After that, he never heard anything further from the OSR until the end of 2016 when he first spoke to Sue Parsons within the OSR. She told him they had not heard from his accountant. 6. He had a number of conversations with Sue Parsons from late 2016 and during 2017. In one of these conversations Sue Parsons told him that he had or should have four years to build his house after the development application was confirmed in December 2014. 7. Mr Heckenberg believes they did receive the two notices of assessment with issue dates of 4 February 2016 and 2 February 2017.
2. As submitted by the Commissioner, the following correspondence with Mr Heckenberg is also relevant; 1. On 10 July 2012, Chris Harrison from the OSR sent an email to Mr Heckenberg requesting advice as to the current situation regarding his intention to build on the Land. The email went on to say that the applicants would be "liable for the 2004 to 2012 tax years should you eventually decide not to build or are unable to build as a result of the decision regarding the zoning of the land". The figure of $23,101.25 in tax for those years was given. The email also said that if the matter is not resolved and construction of the house undertaken by 31 December 2012 the Commissioner would have no option but to refuse any further extension - the concession would be revoked and payment of the tax would be requested which would include the 2013 year. 2. Mr Heckenberg replied by email sent on 18 July 2012 saying that everything was still at a standstill, that the Council had been slack in making a decision and that it was out of his hands. 3. There was an exchange of emails between Mr Heckenberg and Scott Tyrell in September and October 2013 about the status of the Land. Mr Tyrell informed Mr Heckenberg (email sent on 30 October 2013) that if no decision had been reached (a reference to Council's consideration of absorbing the Land into the precinct as stated in Mr Heckenberg's email) and the applicants had not progressed the building then it was intended to issue the 2009 to 2013 assessments and seek payment of the prior outstanding assessments for the 2004 to 2008 tax years. 4. In a letter from Scott Tyrell to the applicants dated 25 September 2015, which attached the notice of assessment for the 2009 to 2015 tax years, it was noted that the OSR had not been provided with any update as suggested in the applicants last email in November 2013 (the Tribunal has not been provided with such email). It was said that the applicants had failed to provide any evidence that they cannot build on the Land. The letter also said that: 1. the delays in building could no longer be considered to be beyond their control and the deferment of land tax assessments could no longer be justified. 2. Mr Tyrell did not believe that they still met the criteria for any concession or exemption that could be applied.

Interest for the period from end of 4 March 2008 to 25 September 2015

1. All of the interest (both market and premium rates), namely, the amount of $2,841.68, referable to the 2008 tax year, as set out in the 25 September 2015 notice of assessment, should be remitted.
2. As to the premium rate of this interest, all of the four criteria for remission are satisfied. There was no failure by the applicants to pay undisputed tax (the first criteria).
3. There are four matters that are significant to the other three criteria.
4. First, Mr Heckenberg was, in effect, told by Chris Harrison and Scott Tyrell that the applicants could disregard the requirement to pay the amount set out in the 24 January 2008 notice, at least, whilst the resumption issue was unclear.
5. Second, the email from Chris Harrison to Mr Heckenberg sent on 10 July 2012, which was consistent with what he had been told by Chris Harrison and Scott Tyrell, conveyed that payment of prior years' tax was dependent upon the concession being revoked should specified future events occur and there was an associated request from the Commissioner for payment.
6. Third, such revocation and associated request for payment of prior years' tax did not occur until the letter from the OSR dated 25 September 2015 attaching the 25 September 2015 notice of assessment.
7. Fourthly, the thrust of some of Mr Heckenberg's evidence was that he was open and cooperative with the OSR about the position with the Land. Clearly enough, there were communications between the applicants and the OSR about the status of the Land throughout this relevant period (from 24 January 2008 to 25 September 2015). The Commissioner does not submit otherwise. In this regard, the Tribunal notes the reference to the lack of an update from the applicants in the letter from the OSR dated 25 September 2015 but there is no suggestion that there had been requests from the OSR for such an update that the applicants had failed to meet.
8. Based upon these matters, the Tribunal concludes that the second and third criteria concerning cooperation have been satisfied and that there was no wilful default (the fourth criteria).
9. There was no wilful default because in view of what they were told by the OSR the applicants were justified in thinking they could defer payment of the tax assessed for the 2008 tax year until the Commissioner revoked the concession and called for payment.
10. It also follows from these reasons about wilful default that the market rate interest for this period should be remitted. This is because the applicants were justified in not paying the tax because of what the OSR communicated to them (as summarised above). In the circumstances, it would be wrong to conclude that the Commissioner should have had the benefit of the payment of this tax during this period.

Interest for the period from end of 4 November 2015 to 2 February 2017

1. The question of remission of interest for the period from the end of 4 November 2015 (the due date under the 25 September 2015 notice) to 2 February 2017 (the issue date for the 2017 tax year - the latest decision with which the Tribunal is concerned) is affected by different facts.
2. The Tribunal concludes that none of the interest referable to this period should be remitted, except for all interest incurred in the period from 1 January 2017 to 2 February 2017 which interest should be remitted.
3. As to the premium rate, the first three criteria for remission are satisfied but not the fourth.
4. Again, in this period, there was no failure by the applicants to pay any undisputed tax (the first criteria).
5. As to the second and third criteria (concerning cooperation), the same reasons concerning the earlier period from the end of 4 March 2008 to 25 September 2015 continue to apply. The Tribunal notes that the Commissioner does not suggest that absence of communication from the applicants' accountant should be attributed to the applicants in the events that occurred - it would seem very difficult, if not impossible, to do so given the conversation with Mr Imseis in which Mr Heckenberg was told that everything was taken care of.
6. However, the Tribunal is not satisfied there has been no wilful default by the applicants with respect to this period, except for the short period that followed the conversation with Ms Parsons about a four year building period.
7. In saying this, it should immediately be said that wilful default does not equate to default in paying tax that the applicants knew they were liable to pay. The Tribunal does not consider that the applicants had such knowledge.
8. As to wilful default, the problem for the applicants is that they knew the tax had been assessed and had not been paid but they have not demonstrated that during this period before the conversation with Ms Parsons they had a basis for believing they had no liability to pay. It was because of a like problem in Winston-Smith, that Emmett JA decided that there should be no remission of the premium rate; see at [84] - [86].
9. Nor have the applicants shown that during this period before the conversation with Ms Parsons the respondent caused or contributed to the tax default or that payment was beyond their control. For this reason, the market rate in respect of this period should not be remitted.
10. The following facts and matters are behind these conclusions concerning this period: 1. As a result of the OSR's letter dated 25 September 2015 and notice of assessment of the same date, the applicants were made aware that the Commissioner was treating the concession as no longer applicable and was now claiming payment of all relevant prior years' taxes. 2. Such knowledge was against the background that by December 2014 Mr Heckenberg knew that uncertainty about the resumption issue was no longer a reason for extending the period in which the building had to be completed. 3. Such knowledge was also against the background that by the correspondence in 2012 and 2013 the applicants had been warned by the OSR that if the concession was revoked the prior year taxes would be claimed. 4. Not long after the 25 September 2015 notice, Mr Heckenberg told the OSR his accountant would be writing saying he was compliant and he spoke to his accountant about this. It may be inferred that for a lengthy period after this time Mr Heckenberg understood that his accountant had written to the OSR. However, there is no record of any written or oral communication between the applicants and the accountant outlining why he was compliant which might establish a basis for believing they were compliant. 5. The communication from Mr Imseis at the OSR to Mr Heckenberg just before Christmas 2015 that "everything was taken care of" is too vague to amount to a communication that the applicants could disregard the assessment or that the OSR was treating the applicants as compliant with the concession. It was open to the applicants to confirm in writing with the OSR what they understood the position to be and why, but they did not do so. Furthermore, not long afterwards, the applicants were sent the 4 February 2016 notice of assessment which included in the amount due the amount assessed in the 25 September 2015 notice. 6. There is no suggestion that the information given by Ms Parsons about a four year period was anything other than the first time Mr Heckenberg was given such incorrect information. Until that information was given it could not have caused or contributed to the tax default. Mr Heckenberg was not specific about the date of the conversation other than from his evidence the earliest it could have occurred was at the end of December 2016. After that conversation, and for the balance of the relevant period with which the Tribunal is concerned, the applicants did have a sufficient basis for believing they had no tax liability and the conversation can be seen to have caused the continuing default. 7. The Tribunal notes that it is not concerned in this review with any assessments about interest made in respect of the 2018 tax year which would have occurred after the conversation with Sue Parsons.

Outcome

1. For the above reasons, each of the assessments the subject of this review as shown in the notices of assessment described in paragraph 28 above should be confirmed in orders made by the Tribunal, save that: 1. the assessment of interest in the sum of $2,841.68 referable to the 2008 tax year as shown in the notice of assessment with issue date 25 September 2015 should be revoked. 2. the assessment of interest in the sum of $2,989.70 referable to the 2008 tax year as shown in the notice of assessment with issue date 4 February 2016 should be revoked and substituted with the sum of $148.02, being the sum of $2,989.70 less the sum of $2,841.68. 3. all of the assessments of interest shown in the notice of assessment with issue date 2 February 2017 should be revoked and substituted with reduced amounts determined by the need to deduct interest in the sum of $2,841.68 in respect of the 2008 assessment and all amounts of interest incurred on all principal amounts of tax from 1 January 2017 to 2 February 2017.
2. The parties should lodge with the Tribunal a form of orders which gives effect to these reasons.

Direction

1. For the above reasons, the Tribunal directs that, within 14 days of the date of these reasons, the parties are to provide the Tribunal with a form of orders which gives effect to these reasons.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2019