Koh v Chief Commissioner of State Revenue [2025] NSWCATAD 242;

1. The provisions of section 100 of the TAA apply to this review. Notably:

(1) sub-section 100(2) of that Act provides that neither the Applicant nor the Respondent is limited in the present application to the grounds of the Objection; and

(2) sub-section 100(3) of that Act provides that the Applicant has "... the onus of proving the applicant's case in an application for review", an onus which is discharged by reference to the ordinary civil standard: B&L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481.

1. Under section 63(1) of the ADRA, in conducting a review the Tribunal ".. is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law".

1. Moreover, under section 63(2) of that Act 1997, in doing so the Tribunal "... may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision".

1. The evidence shows (and there is no dispute) that:

(1) The Property was residential property for purposes of section 5A of the LTA at all material times.

(2) The Applicant:

(a) was resident in Singapore at all material times;

(b) was at all material times a citizen of the Republic of Singapore only; and

(c) during only one relevant period of 12 months, being from 1 January 2016 to 31 December 2016, spent more than 200 days in Australia, but did so under an immigration status that legally limited the time he was allowed to spend in the country;

He was thus in relation to all relevant land tax years a foreign person for purposes of section 5A of the LTA.

1. It follows that subject to any exemption the Applicant was liable to surcharge land tax under section 5A of the LTA in respect of the Property for each of the 2017, 2018, 2019, 2020, 2021, 2022, 2023 and 2024 land tax years.
2. The exemption provided for in section 5B of the LTA does not apply. That section was only enacted with effect from 1 July 2017 and applies only to the 2018 and subsequent land tax years. Since after 1 January 2017 the Applicant has spent a total of 50 days in Australia, it is impossible for him to have met for any of the 2018 to 2024 (inclusive) land tax years the requirement of section 5B that he occupy the Property as his principal place of residence for a continuous period of 200 days in the relevant land tax year. In nay event, the evidence indicates that the Property has been at all relevant times leased out to tenants.
3. The Applicant's submission that the Assessments are flawed by reason of a lack of communication from the Respondent is unconvincing, for several reasons:

(1) The Assessments, together with ancillary and follow-up correspondence concerning surcharge land tax was sent to the Applicant care of the Property's managing agent, with the first piece of correspondence concerning surcharge land tax being sent on 11 December 2020[5];

(2) At least some relevant communications sent as early as January 2021 from the Respondent were sent on to the Applicant by the agents, as the Applicant's wife's email dated 19 May 2024 to the Respondent confirms[6]; this follows since the Applicant's wife refers in her email of 20 June 2024 to the Respondent to having enquired of the Respondent on 18 January 2021 whether certain communications purportedly from the Respondent concerning liability to surcharge land tax, dated between 11 December 2020 and 13 January 2021, were in fact genuine; and

(3) The onus is on the taxpayer to inform himself of his obligations and to meet them[7]; it is not the responsibility of the Respondent to make enquiries or ascertain the liability of the Applicant[8].

(4) No conduct or representation on the part of the Respondent can operate to establish an estoppel against him discharging his duty to administer a taxation law[9].

1. Neither the Respondent nor this Tribunal has any discretion to waive, or to grant a "one off" exemption from, surcharge land tax for which a taxpayer is liable. This is the case even though the imposition of the tax may impose hardship or a perceived unfairness on the taxpayer or result to some degree from circumstances that deprived the taxpayer of effective choice in relation to his absence from Australia. The position is set out clearly in the Tribunal's reasons for decisions in Sjarifudin v Chief Commissioner of State Revenue [2021] NSWCATAD 347 at [45] to [48], Chu v Chief Commissioner of State Revenue [2021] NSWCATAD 238 at [32] to [34], Lawrence v Chief Commissioner of State Revenue [2022] NSWCATAD 266 at [38] and Du v Chief Commissioner of State Revenue [2022] NSWCATAD 329, at [39] to [47]. These decisions in turn rely, at least in dismissing the proposition that general notions or fairness or justice should allow the adjustment of tax liabilities, on the High Court of Australia's unambiguous rejection of such a proposition in Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109, at 123.
2. Nothing on the face of the Assessments or in the supporting calculations appended to them raise any concerns as to the process by which the Assessments were calculated.
3. The correct and preferable decision, therefore, is that the Assessments be confirmed, taking into account the remission of all interest on 19 August 2024.

1. The Tribunal confirms under section 101(a) of the Taxation Administration Act 1996 the Respondent's Assessments dated 6 September 2021, 6 January 2022, 6 January 2023 and 4 January 2024 listed in Column A below of surcharge land tax for the corresponding land tax years listed in Column B below in the amounts respectively set out in Column C below:

Amount assessed for the Land Tax Year concerned ($)

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.

[4] Section 58 Documents, Tab 26

[5] Section 58 Document, Tabs 1 to 14.

[6] Section 58 Documents, Tabs 15 and 18.

[7] Gupta v Chief Commissioner of State Revenue [2006] NSWADT 187 at [33]; Giunta v Chief Commissioner of State Revenue [2005] NSWADTAP 19.

[8] EK Anderson Investments Pty Ltd ATF Cacs Property Trust v Chief Commissioner of State Revenue [2012] NSWADT 132.

[9] BBLT Pty Ltd v Chief Commissioner of the Office for State Revenue [2003] NSWSC 1003