1. To be entitled to the PPR exemption under section 54 of the LT Act, it is ordinarily necessary that a person uses and occupies a property as their principal place of residence from 1 July to 31 December of the year preceding the applicable land tax year.[3] However, in the case of a property acquired after 1 July of the year, the period of use and occupation need only commence from a later date in the preceding year.
2. Given their admission that they remained living in their son's Camberwell home until December 2021, Mr Hu and Ms Chen do not (and could not) contend that they used and occupied the Relevant Property as their principal place of residence at any time:
   • between 27 and 31 December 2019, for the 2020 land tax year; or
   • between July and December 2020, for the 2021 land tax year.
3. Accordingly, it is clear that the Relevant Property was not exempt land under section 54, notwithstanding the intention of Mr Hu and Ms Chen to use and occupy it as their principal place of residence as soon as they could.
4. Both sections 56(1A) and 58(1) of the LT Act allow an owner of land to claim the PPR exemption during a period of absence in specified circumstances. However, the entitlement to do so is, in each case, preconditioned on a requirement that the relevant land was exempt land under section 54 or had been used as the person's principal place of residence for at least six months immediately before the absence.[4]
5. As Mr Hu and Ms Chen did not use and occupy the Relevant Property prior to the introduction of the COVID-19 Directions or the storm damage, and the property never became exempt land under section 54, those provisions (i.e. sections 56(1A) and 58(1)) were not enlivened.
6. For this reason, it is unnecessary for me to determine whether the applicants have satisfied their onus of proof to establish that the other requirements set out in sections 56(1A) and/or 58(1) were met.[5]
7. For completeness, in the parties' oral submissions, an issue was raised as to whether or not the COVID-19 Directions prevented Mr Hu and Ms Chen moving from their son's home to the Relevant Property. It is unnecessary for me to resolve this because there is nothing in section 54 of the LT Act that extends its operation in situations where a person is prohibited from moving into or returning to a property as a result of some other law or restriction.

1. Section 95B of the Taxation Administration Act 1997 (Vic) ('TA Act') requires the Commissioner to give effect to an emergency tax relief measure.
2. An 'emergency' is defined in section 3(1) of the Emergency Management Act 2013 (Vic) as:

an emergency due to the actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of any person in Victoria ... including, without limiting the generality of the foregoing -

...

(e) a plague or an epidemic or contamination

1. There is little doubt that, at the relevant time, the COVID-19 pandemic met the definition of an emergency. Further, a tax relief measure to which the provision applies could include a waiver, refund or deferral of tax in whole or in part.[6]
2. However, a precondition to the obligation of the Commissioner under section 95B is that 'the State has publicly announced any tax relief measures' and 'the Treasurer ... direct[s] the Commissioner to take any action that is necessary to give effect to those measures'.
3. In his written submissions, the Commissioner submitted that no such direction was issued by the Treasurer in relation to land tax liabilities for the 2020 or 2021 land tax years.[7] While the applicants have not identified any relevant waiver of land tax, in the applicants' submissions of 2 February 2024, there is a reference to a waiver of the vacant residential land tax in 2020 and 2021 'as an example to follow the State of Emergency where the laws are in conflict'.[8]
4. During the COVID-19 pandemic, a range of tax relief measures were announced in Victoria (and other jurisdictions around Australia). As accepted by Ms Meyrick (counsel for the Commissioner), this included the then Premier's announcement, on 15 April 2020,[9] that 'eligible landlords' would be entitled to:
   • a 25% reduction of their 2020 land tax; and
   • a deferral of their remaining 2020 land tax liability until 31 March 2021.
5. Further, it seems that on 20 August 2020,[10] the government announced an increase in the reduction of land tax to 50% for landlords who allowed a waiver of 50% of the rent payable by their tenants for a period of at least three months. In addition, a 25% reduction was also made available in relation to:
   • properties that were tenanted in March 2020, but became vacant for at least three months because of COVID-19; and
   • commercial properties that were owner-occupied and used for an active business that participated in the Commonwealth government's JobKeeper payment program.
6. These measures were extended to the 2021 land tax year, including, where relevant rent relief was provided, a 25% discount on land tax and an ability to defer the remaining land tax (including any under any previous 2020 deferral) until 30 November 2021.[11]
7. There appears not to be any publicly accessible record of Treasurer's directions given in relation to those announced reductions and deferrals. However, the absence of any similar announcement in relation to land tax on residential properties that were not being leased, but were unable to be used or occupied as a result of the COVID-19 pandemic, supports the Commissioner's contention that he was not required to give effect to any waiver of land tax in the applicants' circumstances.
8. Further, any debate about the applicability of any tax relief measure is a matter beyond the jurisdiction of the Tribunal.[12]
9. To the extent that the applicants' submissions raise any wider power of the Commissioner to afford relief, this does not advance matters further.
10. In Motticant Pty Ltd atf Property Developments Trust v Commissioner of State Revenue ('Motticant')[13] and Pitard & Ors v Commissioner of State Revenue ('Pitard'),[14] the Tribunal accepted that sections 8 and 9 of the TA Act - which provide that the Commissioner may make an assessment or reassessment of a taxpayer's tax liability - included a discretion not to do so.
11. Similarly, in Wilkinson v Commissioner of State Revenue ('Wilkinson'),[15] the Commissioner was also found to have a discretion in relation to the withdrawal of an assessment under section 13 of the TA Act.
12. However, in each of those cases, the Tribunal found that VCAT does not have the power to re-exercise the relevant discretion on review of an assessment.
13. Those decisions are not strictly binding on the Tribunal in this proceeding. However, they should continue to be applied as a matter of consistency in the absence of anything to suggest they are plainly wrong, such as a decision of the Supreme Court to the contrary.[16] Relevantly, while the applicants in Pitard and Wilkinson filed applications for leave to appeal to the Supreme Court from the decisions in those proceedings, each appeal was discontinued without a hearing.
14. Further, in circumstances where:

(a) the legislature has turned its mind to the appropriate mechanisms for granting tax relief in the event of an emergency like the COVID-19 pandemic (i.e. requiring a public announcement of the relief followed by a direction from the Treasurer to the Commissioner to implement it); and

(b) the government has provided some specifically targeted relief (i.e. in relation to rental properties and owner-occupied business premises) which does not apply in this case,

it seems to me that this would not be a case in which it was appropriate to exercise a discretion to provide relief, even if the Tribunal could do so.

1. In Motticant,[17] I described the Tribunal's role on review of a tax assessment as being to make the correct or preferable decision, observing that where there is only one decision available on the application of the law to the relevant facts, that will be the correct decision. It is only where there is a discretion, of a kind that the Tribunal can exercise on review, that it is incumbent on the Tribunal to make the preferable decision among the possible decisions available.
2. For the reasons I have given:
   • the PPR exemption (and any extension of its operation) did not apply to the Relevant Property for the 2020 and 2021 land tax years and, as such, the decision to assess Mr Hu and Ms Chen to land tax was the correct decision; and
   • there was no relevant discretion available to be exercised by the Tribunal to relieve them from that land tax.
3. It follows that the Assessments which were issued were the correct or preferable decision and, as such, the Assessments must be confirmed.

[2] The Tribunal Book ('TB') includes a removalist invoice dated 20 December 2021, for moving things from the property in Camberwell to the Relevant Property: TB, 81.

[4] LT Act, ss 56(4) and 58(1) and see Luxon v Commissioner of State Revenue [2016] VCAT 1466 [83].

[5] For example, there is a question as to whether the applicants were in fact living with their son as a result of losing the ability to live independently (LT Act, s 56(1A)(a)) or any damage to the Relevant Property was caused by a storm and, if so, whether it rendered that property unfit for occupation (LT Act, s 58(1)).

[6] Paragraph (a) of the definition of tax relief measure in TA Act, s 95A.

[7] Written Contentions of the Respondent dated 12 April 2024 ('RSLC') [79].

[8] This appears to be a reference to the Treasurer's media release of 10 September 2020, 'More Tax Relief For Victorian Businesses And Property Owners': Available at https://www.premier.vic.gov.au/more-tax-relief-victorian-businesses-and-property-owners. A second press release applied to 2021: Premier D Andrews, 13 September 2020, 'Supporting Victorian Businesses On Our Road To COVID Normal', available at https://www.premier.vic.gov.au/supporting-victorian-businesses-our-road-covid-normal.

[9] Premier D Andrews, Media Release: 15 April 2020, 'Supporting Tenants and Landlords Through Coronavirus': Available at https://www.premier.vic.gov.au/supporting-tenants-and-landlords-through-coronavirus.

[10] Premier D Andrews, Media Release: 20 August 2020, 'Pause On Evictions Extended And Extra Renter Protections'. Available at https://www.premier.vic.gov.au/pause-evictions-extended-and-extra-renter-protections.

[11] Victorian Budget 2020/2021, Budget Paper No 4 'Statement of Finances', 177 and Victorian Small Business Commission, 'Commercial Tenancy Relief Scheme (1 January 2021 to 28 March 20210 - FAQs, available at https://www.vsbc.vic.gov.au/wp-content/uploads/2023/06/CTRS-FAQs\_1-January-2021-to-28-March-2021.docx.

[12] Liu v Commissioner of State Revenue [2023] VCAT 936 [9].

[13] [2017] VCAT 1820.

[14] [2019] VCAT 1074.

[15] [2024] VCAT 807.

[16] Hartman v Commissioner of State Revenue [2022] VCAT 28 [42]-[43].

[17] [2017] VCAT 1820 [9].