Lou v Chief Commissioner of State Revenue - [2019] NSWCATOD 9 - NSWCATOD 2017 case summary — Zoe

NSWNSWCATOD

Lou v Chief Commissioner of State Revenue

[2019] NSWCATOD 9

NCAT Occupational|2017-07-11

View original source

At a glance

Source facts

Court

NCAT Occupational

Decision date

2017-07-11

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

Background

All owners of land in New South Wales must pay land tax in respect of their land unless the Land Tax Management Act 1956 (NSW) (LTM Act) exempts them from that obligation.
In 2007 Ms Lou, who then worked in Sydney, bought a property (the Land) at Empire Bay. Empire Bay is on the New South Wales Central Coast, some distance north of Sydney.
Ms Lou said she commuted daily to work from the Land. She claimed she was entitled to the principal place of residence exemption under the LTM Act in respect of the Land.
The respondent (in these reasons sometimes called the Chief Commissioner) was not satisfied that the Land was Ms Lou's principal place of residence and issued a land tax assessment notice to Ms Lou on 9 September 2015 claiming, amongst other matters, land tax for the Land for the 2011 to 2015 land tax years. Ms Lou's objection to the assessment was disallowed.
On 14 January 2016 the Chief Commissioner issued a further land tax assessment notice to Ms Lou for the 2016 tax year. This assessment included land tax on the Land.
Communications took place between Revenue NSW, then known as the Office of State Revenue (OSR) and Mr Yikun Lou (who represented Ms Lou at that time and in these proceedings) concerning the assessments and payment.
On 8 May 2017 the Chief Commissioner issued a further land tax assessment notice to Ms Lou in respect of the 2011 to 2017 tax years. On 5 July 2017 Ms Lou formally objected to the 8 May 2017 assessment in respect of the 2012 tax year, although referring in her reasons to both the 2011 and 2012 tax years (usually referred to in these reasons as the "Relevant Period" or the "Tax Years") In her objection Ms Lou outlined what she saw as her history with the Land, communications with Revenue NSW, attempts she had made to satisfy Revenue NSW's requirements, why she thought she had provided sufficient information for land tax exemption, and she referred to financial difficulties she suffered having regard to certain recovery action taken by the OSR.

[4]

Written submissions on behalf of Ms Lou and Mr Lou's facts

Mr Lou provided written submissions to the Tribunal as Ms Lou's representative. Those submissions were submissions in reply dated 31 May 2018 (ASR), closing submissions dated 8 August 2018 (ACS) and closing submissions in reply dated and filed 5 September 2018 (ACSR).
During the hearing Mr Lou was asked whether he would give evidence to the Tribunal. He was informed that if he gave evidence, he would be subject to cross-examination. Mr Lou informed me that he would not give evidence.
Substantial parts of ASR, ACS and ACSR are irrelevant to the issues before the Tribunal. Those parts have not affected my reasons.
Other parts of ASR, ACS and ACSR comprise statements of fact (Mr Lou's facts) which are not included in any of the statements or documents provided by Ms Lou, her witnesses or the Chief Commissioner, nor are they included in Ms Lou's oral testimony. As Mr Lou declined to give evidence, Mr Lou's facts are not admitted in evidence. Some of ASR, ACS and ACSR are submissions in relation to Mr Lou's facts. Those submissions have not been taken into consideration except to the extent that they relate to evidence accepted in the proceedings.
Mr Lou attached to ACSR a letter, apparently from Ms Lou's tax agent, Helen Zhao Accountants & Co. which Mr Lou wanted me to take into consideration in making my decision. If that letter had been provided at an appropriate time the Chief Commissioner would have had the opportunity to both require the author of the letter to attend for cross-examination and to investigate the matters referred to in the letter. The Chief Commissioner did not have the opportunity to do either. I also note that Mr Lou informed me at the end of the hearing that Ms Lou would not be relying on any other evidence.
In the normal course I would not admit Ms Zhao's letter into evidence and not take it into consideration in making my decision. However, I have had regard to the letter and as, in my opinion, it does not unreasonably assist Ms Lou nor does it detract from the Chief Commissioner's position, I admit it into evidence and comment briefly on it below.
In summary, and with the exception of Ms Zhao's letter, I have only had regard to those parts of ASR, ACS and ACSR which relate to either evidence properly before the Tribunal or relevant legal arguments.
Mr Lou, representing Ms Lou, made oral submissions during the hearing. I have had regard to those submissions to the extent that they are based on evidence properly before the Tribunal or relevant legal arguments. Otherwise I have not had regard to those submissions.
Except where the context otherwise requires all references to submissions by Ms Lou containing a paragraph number are from ACS.

[6]

Onus and the procedure in Tribunal hearings

Section 100(3) of the Taxation Administration Act 1996 (NSW) (TA Act) relevantly states "The applicant has the onus of proving the applicant's case in an application for review."
Mr Lou did not expressly dispute that onus. However as will be apparent from these reasons, substantial parts of Ms Lou's submissions disregarded the onus on her and indicated a misunderstanding of the role of the Tribunal and the function of the proceedings.
Ms Lou submitted at [2] and [3]: 2. … The whole process of land tax assessment is like someone were punished by a much stronger powerful 'group' who then make up an excuse for their violence. 3. … [the Chief Commissioner's] legal representative … build (sic) his argument on presumption or prejudice …
The submissions at [2] and [3] above exemplify several emotional submissions in ASR, ACS and ACSR. They do not advance Ms Lou's case and I do not propose to otherwise refer to them in these reasons.
Ms Lou submitted at [3]: … according to our communication during the mediation … the Chief Commissioner's use of his discretionary power regarding land tax has put Olivia in an impossible position.
This submission raises two specific matters. Firstly a reference to mediation and secondly a reference to Ms Lou's claim in these proceedings.
I note in relation to the reference to mediation that s 37 of the CAT Act and Part 2 of Schedule 1 of the Civil and Administrative Tribunal Regulation 2013 (NSW) (CAT Reg) deal with resolution processes in general and mediation in particular. As a general rule, evidence of anything said or admission made or document prepared in relation to a mediation session is not admissible in evidence in any proceedings, cl 10 CAT Reg. I am not aware of any relevant exception. Accordingly, I do not propose to have regard to the references to mediation in Ms Lou's written submissions.
The submission at ACS [3] above in relation to Ms Lou's "impossible position" does not explain how Ms Lou has attempted to satisfy her statutory onus by failing to provide: 1. statements from relevant former employers as to their records of her home address during relevant periods; 2. statements from neighbours of the Land regarding Ms Lou's presence in residence at the Land during relevant periods; 3. statements from unidentified persons, with whom she said she shared accommodation at Bondi during relevant periods, as to their recollection of her residing at Bondi; nor 4. any explanation as to why she provided no statements from the employers, neighbours or persons referred to in the three immediately preceding paragraphs.
The onus lies on Ms Lou to satisfy me on the balance of probability of her case. Failing to provide any of the information referred to in the previous paragraph does not assist her.

[9]

Jurisdiction of the Tribunal

The Tribunal's authority is derived from the Civil and Administrative Act 2013 (NSW) (CAT Act) which established the Tribunal. Section 28(1) of the CAT Act states "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation." Relevantly s 96 of the TA Act provides that under certain circumstances a taxpayer may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision. A prerequisite for the exercise of the review powers by the Tribunal is that the taxpayer has lodged an objection with the Respondent and is not satisfied with the determination of the objection or the Respondent has not determined the objection within 90 days.
Ms Lou's application to the Tribunal sought a review of the objection determination, which had not itself been the subject of an objection. In Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 the Court of Appeal said at [28]: … the right of review under s 97 is given by reference to the operative decision of the Chief Commissioner and not to a ruling made on an objection. Although the existence of an objection is a necessary precondition to the power of review by the Court, and it is the taxpayer's dissatisfaction with the determination of the objection which provides standing to seek review, it is the initial decision which is the subject matter of the review.
There is no dispute that the assessment, not the disallowance of the objection to the assessment, is the subject of review by the Tribunal in these proceedings.
In Yen-Cheng Chuang & Anor v Chief Commissioner of State Revenue [2009] NSWADT 160 the late Verick JM provided at paragraphs 19 to 23 a range of matters to be considered in determining whether a place of residence of a person is the principal residence of that person. He said: 19 The Act does not provide any technical or legal meaning for the expression "principal place of residence" and accordingly, the expression has its ordinary meaning. A person's place of residence is usually understood as "the place where he eats, drinks and sleeps" (per Ridley J in Stoke-On-Trent Borough Council v Cheshire County Council [1915] 3 KB 699 at 706). The use of the term "principal" in the expression suggests that a person may use and occupy more than one residence but that the exemption is only available for the principal place of residence of the person. 20 In ascertaining whether a particular residence of a person is the principal place of residence of that person it is necessary to use an objective test and the conclusion is determined by considering the extent and quality of use and occupation of the residence in each case (per Fryberg J in Dean v Commissioner of Stamp Duties (Qld)(No 2) [1996] 2 Qd R 557 in considering the meaning of the expression "principal place of residence" found in the Stamps Act 1894 (Qld)). 21 The onus to establish one's principal place of residence is usually discharged on the basis of various matters. It is important to note, as observed by the Victorian Civil and Administrative Tribunal in Re Ziino and Commissioner of State Revenue [2004] VCAT 1707 that: "… while sleeping by itself in a place can be an indication of a principal place of residence, it is not the sole matter to be taken into account. One needs to look at a whole indicia of matters …One needs to look as well at where the applicant ate; her use of electricity and the furniture and fittings and other matters such as entertainment of friends in the house… Sleeping in a place does not make a residence. It has got to be the whole indicia of things that are done in a home which are described in the cases…" 22 Other indicia of matters would include evidence of an applicant's use of the address of the property as the residential address for purposes of her or her mail, driving licence, on the electoral roll, in immigration records, income tax returns and telephone bills. 23 In Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41 the Appeal Panel of the Tribunal agreed that "to occupy a home as her 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 occupation for any other reason". The Appeal Panel also held that "the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue". (Also see Zakariya v Chief Commissioner of State Revenue [2003] NSWADT 26).
Ms Lou's case relies on that part of the material referred to at [12] to [21] which I allowed into evidence together with submissions concerning that evidence and submissions as to matters of law.
Focussing on alleged inconsistencies in reasons given by Revenue NSW for the disallowance decision disregards the statutory requirements as to how the Tribunal makes its decision in these proceedings.
In determining Ms Lou's application, the Tribunal is required to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, s 63 ADR Act.
The Tribunal may confirm or revoke the assessment or other decision to which the application relates or make a decision in place of the reviewable decision and make orders as to costs or otherwise as it thinks fit, s 101(1) of the TA Act.

[11]

Clause 2(2)(a)

To satisfy cl 2(2)(a) Ms Lou must prove that the Land was continuously used and occupied by her for residential purposes and for no other purpose for the 6 month periods from 1 July to at least 31 December in each of 2010 and 2011 (the six month periods).
A major focus of the communications between the parties, and of the submissions, relates to the information provided by Ms Lou to third parties, in particular, Commonwealth and State government agencies, as to her address for various purposes. The two main purposes are her postal address or her address for service of notices on the one hand and her residential address on the other.
The Chief Commissioner referred at [44] to: ... inconsistencies in Ms Lou's evidence as to the reason that she had arranged for mail to be sent to the Forest Lodge Property over the years in question are not to her credit. In this respect: (a) In the Application, Ms Lou stated that the reason for her having mail sent to the Forest Lodge Property, after her purchase of the Empire Bay Address, was that she had fallen into the habit of using that address when she lived with her father; (b) By contrast, in an email to the Office of State Revenue in December 2016, Ms Lou stated that the reason that mail ("insurance letters, utility bills" and so on) were sent to Mr Lou at the Forest Lodge Property was that she had entrusted Mr Lou "to handle all issues in respect to" the Empire Bay Property; (c) However, in her statement dated 15 April 2018, Ms Lou now claims that she had mail sent to her father's address (that is, the Forest Lodge Property) because of uncertainties in respect of the post code that applies to the Empire Bay Property (and straddling suburbs) and her experience in losing letters and parcels by reason of those uncertainties."
I have checked the Chief Commissioner's references in [44] and I am satisfied that they are accurate.
At [45] the Chief Commissioner submitted that the Tribunal should prefer various categories of contemporaneous documents, to Ms Lou's above explanations, and the inference available on those documents is that Ms Lou did not reside at the Land during the two six month periods.
To take Ms Lou's explanations in context I note that: 1. item (a) relates to the first four years of Ms Lou's ownership of the Land, from 2008 to 2012, when she worked in Sydney city and it was very convenient for her to stay at her father's place at Forest Lodge when she occasionally needed to be at work early and stay late. 2. Item (b) relates to the death of Ms Lou's mother in 2004 when Ms Lou was 17 and had a 4 year old brother. Ms Lou says that Mr Lou took an early retirement to take care of his two children. An email dated December 2016 from Ms Lou to Revenue NSW states that she received an investment property from her late mother's estate, her father was in charge of all dealings in relation to that property and she entrusted him to handle all issues in respect of the Land "Hence the reason that insurance letters, utility bills for [the Land] are addressed to him." 3. Item (c) from Ms Lou's statement is supported by copies of multiple envelopes showing the street address of the Land with two different suburbs and two different postcodes. I note that two of the envelopes appear to be water consumption accounts from Gosford City Council less than six months apart, one addressed to "O Lou" at the Land, "Bensville NSW 2251" and the other to "O Lou" at the Land, "Empire Bay NSW 2257".
I have no reason to doubt the accuracy of the context of all three situations nor do I have any reason not to accept to the reasons given by Ms Lou in each case to the extent that her father's address at Forest Lodge was used for postal or package deliveries. I deal below with the issue of using Forest Lodge as a residential address. I also deal below with a potential discrepancy between Ms Lou's reasons in item (a) and Ms Li's statement.
Another major focus relates to the collection of documents by Ms Lou to provide to Revenue NSW to prove her use and occupation of the Land as her principal place of residence in respect of the Tax Years.
Mr Lou has sought to provide evidence to show the efforts that have been made to prove Ms Lou's case. As mentioned above, to the extent that Mr Lou makes statements of fact which did not appear elsewhere in the evidence they have not been considered nor have any submissions by him in respect of those statements. Submissions by Mr Lou as to facts properly in evidence or as to law have been considered.

[13]

Residential address on income tax returns

At [4(g)] in RS the Chief Commissioner submitted: In her tax returns for the financial years ended 30 June 2010, 2011, 2012 and 2013, Ms Lou recorded her home and postal addresses as the Forest Lodge Property address (and identified the Umina Property as a rental property);"
Firstly, I find that the inclusion by the Chief Commissioner of a reference to a property, other than the Land, owned by Ms Lou as a "rental property" is irrelevant to the issues before me.
On the more substantive point I note ASR included at E. In reply to the assessment using 'objective factors' doctrine [1] an explanation concerning the addresses set out in Ms Lou's income tax returns. That explanation comes under the category 'Mr Lou's facts' and is not admitted into evidence for reasons given above. ACS contains at [25] more of 'Mr Lou's facts' concerning income tax returns which are also not admitted into evidence.
I have referred above to the attachment to ACSR of a letter from Helen Zhao Tax Accountant. That letter, dated 1 August 2018, states that Ms Zhao certifies that Ms Lou whose "Main residential address" is at the Land has been her client since 2010. Ms Zhao was notified that Ms Lou "wants to use her father's home address as her post address for taxation purposes".
Income tax returns have a requirement for two addresses, a postal address for notices and a home address to be inserted if it differs from the postal address. The Tax return for individuals for the 2018 financial year is found on the ATO website at https://www.ato.gov.au/uploadedFiles/Content/IND/Downloads/Tax-return-for-individuals-2018.pdf.
There is a clear difference between a postal address (for receipt of mail, documents and parcels) and a home address (at which one resides). Ms Zhao has referred in her 1 August 28 letter to the use of Mr Lou's home address as Ms Lou's "post address for taxation purposes". I find that Ms Zhao's letter does not evidence that the Land was Ms Lou's principal place of residence at any relevant date and reject any submission to the contrary.
The Chief Commissioner referred at [6] to Ms Lou's evidence In cross-examination in relation to her substantial qualifications and experience including audit, finance, commerce, accounting and as an analyst as follows: Ms Lou is a chartered accountant, having obtained an undergraduate Bachelor of Commerce degree (majoring in finance and accounting) from the University of Sydney and then a post-graduate degree in chartered accounting (completed in about 2008)." Between February 2008 and February 2009, Ms Lou worked as an auditor at KPMG; and was then employed, between March 2009 and September 2010, as an analyst at Rodgers Reidy Chartered Accountants." Ms Lou was then employed at National Australia Bank, between September 2010 and June 2013, as a product control analyst (for rates, credit and equities, until August 2011; and thereafter in foreign exchange and commodities)." She currently works for Barclays in Singapore.
Ms Lou did not challenge any of the contents of the above paragraph.
Ms Lou also gave evidence that Ms Zhao had been the family's tax agent since 2010. Ms Zhao prepared drafts of Ms Lou's income tax returns having regard to information Ms Lou sent to her. Ms La did not recall specific dates specific income tax returns. She acknowledged that declarations to the Commonwealth in income tax returns are a serious matter. She could not recall whether she checked the final income tax returns in respect of the relevant period. However final returns were provided to her for signing.
I find it implausible that a person with Ms Lou's academic qualifications and practical experience who was provided drafts by her tax agent of her personal income tax returns and to whom the returns went for signing would not notice that her home address on the front page of those returns for several years was the same as a postal address at which she is now stating she did not reside.

[20]

1 Difficulties obtaining evidence … they [Revenue NSW] chose to ignore all our efforts to get evidence and explanation and continue to push us to get evidence of 8 years ago that even government organisation would not keep any documents for that long.

The above submission is one of a continuing theme of similar submissions for Ms Lou. The submission is to the effect that the relevant period expired so long ago that it is unreasonable to expect that Ms Lou, having provided evidence of attempts to obtain details requested by Revenue NSW, should not have to prove anything else in order to obtain the land tax exemption she seeks.
The law places an onus on the taxpayer to prove her case on the balance of probability. For reasons best known to Ms Lou, but not provided to the Tribunal, Ms Lou has relied on her own evidence and evidence from two other persons neither of whom state that they have visited the Land.at any time. No evidence has been provided to the Tribunal by any other persons such as her neighbours at the Land, which she said she used and occupied as her principal place of residence for several years.
While claiming that the Land was her principal place of residence for the Tax Years, Ms Lou's driver licence history states that from 22 December 2011 until 17 August 2016 her residence was an address at Bondi Road, Bondi.
Ms Lou's explanation was that between 2012 and 2013 she shared a property at Bondi Road Bondi with friends as somewhere she could stay when working overtime. She states that for parking purposes she had to change the address of her driver's licence to the Bondi address and after no longer living there she did not change the address of her licence. New South Wales law provides requirements for the address to be used on a driver's licence. I am not aware of any statutory requirement that the address on a driver's licence is to be varied for parking purposes. Ms Lou has not provided any authority to support what she says was her obligation to change the address on her licence nor any reason why she failed to again change the address when she no longer stayed at Bondi.
I also observe that Ms Lou has not provided the Tribunal with statements from any of her friends with whom she said she shared the Bondi Road property, nor has she provided any explanation for failing to obtain any such statements nor of any attempts she made to obtain statements.
Ms Lou went to some length to provide evidence of attempting to obtain utility bills and the documents from certain companies and agencies. However, there is no evidence that she made any similar attempts to obtain statements from employers, neighbours or friends with whom she said she lived. This unexplained gap in her evidence does not assist Ms Lou to satisfy her statutory onus.

[26]

Mr Lou's English language skill and problems of interpretation

Mr Lou requested that an interpreter be available to assist him throughout the hearing and an official interpreter was provided for that purpose.
At [19] in ACS Ms Lou, through Mr Lou, made disparaging comments concerning the official interpreter and his interpretation of what Mr Lou said in the hearing. Mr Lou also said he "felt very disappointed and helpless during the whole hearing".
In RCS the Chief Commissioner submitted: … the Tribunal went to significant lengths to ensure that procedural and substantive matters were, as they arose, understood by Mr Wu and the interpreter … In addition, Ms Lou attended the whole hearing by video-link from Singapore, and, in cross-examination, demonstrated that she is sophisticated and confident in her use of English. Ms Lou and Mr Lou were provided various opportunities through the hearing to engage with the Tribunal, and neither suggested, at the hearing, that they did not understand any of the matters that were presented or were being addressed.
At [27] in ACSR Ms Lou, through Mr Lou, made further negative comments concerning the interpreter and submitted that Mr Lou was "deprived of a fair opportunity to understand the words used by [the Chief Commissioner's] barrister clearly … and express [himself] especially when [he] tried to cross-examine (sic) Ms Lou. The submission also claims that there was a problem allowing Mr Lou to speak English with no assistance of the interpreter and this was unfair.
The recording of the hearing shows that Mr Lou agreed at its commencement that he was comfortable with my understanding, derived from a prior directions hearing before me at which Mr Lou had represented Ms Lou, that he "spoke and understood English quite well". Mr Lou agreed that if and when he did not understand anything during the course of the hearing he would say to the interpreter in Mandarin whatever he wanted to say to me and the interpreter would express Mr Lou's words in English to me. If Mr Lou wished, the interpreter would translate into Mandarin anything said during the hearing in English. I informed Mr Lou that he was not permitted to merely ask questions of the interpreter.
At no time during the hearing did I observe Mr Lou express any dissatisfaction with the manner in which the hearing was conducted or the interpreter carried out his duties.
I reject both the negative submissions in respect of the interpreter and in respect of any alleged unfairness concerning the conduct of the hearing.

[31]

Clause 8

Ms Lou included the following extract of part of cl 8 in ASR. 8 Concession for absences from former residence (1) A person is taken, for the purpose of the principal place of residence exemption, to continue to use and occupy land formerly used and occupied by the person as a principal place of residence (a former residence), after the person ceases to so use and occupy the former residence, if the Chief Commissioner is satisfied that: (a) the person used and occupied the former residence as a principal place of residence for a continuous period of at least 6 months, and (b) the person does not own any other land used and occupied by the person as a principal place of residence. 2.
Clause 8(1) was mentioned by Revenue NSW in communications with Ms Lou representative on the basis that it may be of some assistance to her in certain circumstances.
Clause 8 provides a conditional land tax concession for absences from a former principal place of residence. However, in order for the cl 8 concession to apply if requires, as one of several prerequisites, that the Chief Commissioner, or in these proceedings, the Tribunal, must be satisfied that at a relevant date Ms Lou has used and occupied a former residence as a principal place of residence for a continuous period of at least six months.
In ASR Ms Lou referred to Mesiti 1. With respect I find that Ms Lou has misconstrued the quotation she extracted from par [28] of Mesiti 1 by disregarding the above precondition from cl 8(1). As I am not satisfied on the balance of probability on the material before me that at any date or for any period Ms Lou used and occupied the Land as her principal place of residence, that precondition has not been satisfied in relation to the Tribunal..
I also find that the Chief Commissioner's disallowance of Ms Lou's objection and submissions in the proceedings evidence the Chief Commissioner's failure to be so satisfied.
Accordingly I find that Ms Lou is not entitled to the clause 8 concession.

Lou v Chief Commissioner of State Revenue

At a glance

Court

Decision date

Source

Judgment (34 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (6)