Min v Chief Commissioner of State Revenue [2026] NSWCATAD 64;

1. The Applicant's bank statements record two transactions in Hurstville during the statement period from 11 April 2019 to 11 October 2019 (on 4 June 2019 and 27 September 2019), and two transactions during the statement period from 11 October 2019 to 9 April 2020 (on 11 October 2019).[52] The Applicant filed some receipts of purchases made in Hurstville during the relevant period,[53] There are multiple transactions in the Hurstville area recorded on the Applicant's bank records from late 2020 to 2022.[54]

1. The Applicant's evidence is that during the period from June 2019 to May 2021, while she was living in the Hurstville Property, she rented out one room of the Property to assist her to meet the mortgage repayments.[55] During cross-examination, the Applicant said that during this period she had tenants live with her at the Hurstville Property on a short-term basis for between one and three months.
2. The Applicant's evidence is that from approximately November 2019 to April 2020, she rented the study of the Hurstville Property to Qingsen Zhao and Zheng Liu.[56] In her oral evidence, the Applicant said that there was no formal tenancy agreement between her and the tenants, and she cannot recall exactly when they moved into the Hurstville Property. Transport for NSW records show that Qingsen Zhao listed the Hurstville Property address as their address on their driver's licence from 27 November 2019 to 1 July 2020.[57]
3. The Applicant's bank records show that between 11 October 2019 and 9 October 2020 she received several rental payments from Zheng Liu at two weekly intervals generally for the amount of $1160,[58] indicating that Zheng Liu was paying rent of $580 per week to the Applicant. During cross-examination, the Applicant was asked about a deposit made to her bank account of the amount of $1160 by Zheng Liu on 18 November 2019.[59] She said that this was for two weeks' rent of $580 per week.
4. In her oral evidence at the hearing, the Applicant explained that before Covid, there was high demand for furnished short-term accommodation by visitors and students, and this is why she was able to rent one room in the Hurstville Property for in excess of $500 per week. However, after Covid, it became harder to find a tenant.
5. The Applicant's evidence is that in or around July 2020, her relative, Jiahao Hou, rented one room at the Hurstville Property. A bank statement shows that Jiahao Hou made a payment of $1160 to the Applicant on 27 July 2020. The Applicant's evidence is that Jiahao Hou contacted AGL to request a bill and was informed that the electricity and gas services had been disconnected. Following this, the Applicant asked Jiahao Hou to connect the electricity and gas services under his own name for the duration of his stay. She contributed to the utility expenses during his occupation by transferring half of the AGL invoice amount to him in Chinese Yuan (RMB) via WeChat on 12 December 2020.[60]
6. Between 27 April 2020 and 5 October 2020, the Applicant received further rental payments from Jiahao Hou in the amount of $2320 on 7 September 2020 and 5 October 2020,[61] indicating that Jiahao Hou was paying rent of $580 per week to the Applicant.

Listing of Hurstville Property for sale and lease

1. A Domain report on the Hurstville Property shows that it was listed for sale on 7 May 2020, and that it was listed for rent in May 2020.[62] The listing on the leasing agency's website, My Sole Agency, shows that the Property was advertised for lease fully furnished.[63] During cross-examination, the Applicant was asked about the listing of the Hurstville Property for rent on the Domain website from 7 May 2020 for a period of 96 days through My Sole Agency.[64] She said that she does not recall the Property being listed for lease or sale at this time.
2. The Applicant was asked about a series of WhatsApp messages produced under summons by an agent, Danny Liu of My Sole Agency.[65] These messages show that the Applicant agreed to meet the agent at the Hurstville Property on 5 May 2020 and at the time she was in Chatswood. They refer to an open home of the Hurstville Property scheduled on 6 May 2020 and the agent asked the Applicant to please inform her friend about the open home.[66] The Applicant said that at this time her friend Mandy was had moved into the Hurstville Property temporarily for a few days after having an argument with her housemate. The Applicant was asked about another WhatsApp conversation with the agent on 13 May 2020 during which it was agreed that the open home would be delayed because Mandy wished to stay at the Hurstville Property until 26 June 2020.[67] In a WhatsApp conversation on 6 June 2020, the Applicant informed the agent that the Property would be vacated in two weeks' time on 23 June 2020.
3. The Applicant's evidence is that only one room was being advertised for rent, and it was this room that was to become vacant on 23 June 2020. In the 6 June 2020 WhatsApp conversation, the agent informed the Applicant that there is another property available for rent in the same building for $500 per week. The Applicant told the Tribunal that she advertised one room only for rent at $550 per week. A WhatsApp message on 23 June 2020 refers to the tenant moving out of the Hurstville Property and professional cleaning being required. On 30 June 2020, a WhatsApp message refers to a bond of $2400 and damage to a countertop. The Applicant said that she cannot recall which tenant damaged the countertop although she was living at the Hurstville Property at this time.
4. Prior to departing Australia on 9 May 2021, the Applicant arranged to lease the Hurstville Property as she intended to remain overseas for an extended period of time.[68] In her oral evidence at the hearing, the Applicant said that from November 2021 she leased the Property for $520 per week. The Applicant's bank records in the late 2021 period show that she was receiving monthly rent payments of between $1225.05 and $2011.36,[69] indicating that the whole property was leased at around $500 per week after deductions by Elders Real Estate for its management fee and payments of strata and water fees.

1. The Applicant's evidence is that she never resided at the Roseville Property. When she purchased a new car in May 2019, she updated her address to the Roseville Property where her friend (Wang Yijia) lived as he told her that registering her car at his address would result in her paying lower car insurance premiums.[70] Property records show that the Roseville Property was tenanted from May 2019 and then again in January 2020.[71]
2. The Applicant listed the Roseville Property as her address on the Purchaser/ Transferee Declaration dated 3 May 2019.[72]
3. In the webchat conversation with AGL, the Applicant is recorded as advising AGL that the Roseville Property was her residential address as at 14 April 2020.
4. The Applicant's bank statements during the Relevant period list her residential address as either the Chatswood Property or the Roseville Property.[73] The Applicant's address on her Westpac bank account from 27 September 2019 to 1 March 2021 was the Roseville Property. The Applicant updated her contact/ address details with Westpac to the Hurstville Property address on 1 March 2021.[74]
5. ATO records show that the Roseville Property was listed as the Applicant's address from 27 September 2019 to 7 September 2022. Prior to that date, the Applicant's address was recorded as the Chatswood Property from 18 February 2018 to 26 September 2019. The Applicant updated her address with the ATO to the Hurstville Property on 8 September 2022.[75]
6. Records obtained from Transport for NSW show that the Applicant listed the Chatswood Property as her address from 6 November 2017 to 23 October 2019 and the Roseville Property was listed as her address from 23 October 2019 to 1 March 2021. The Applicant updated the address on her driver's licence to the Hurstville Property address on 1 March 2021.[76].

1. The inconsistencies in the Applicant's evidence are merely a consequence of her being new to the country and having to rely on others to assist her with administrative tasks. It is possible that someone may have changed records held by the authorities or cancelled accounts the Applicant held without her authority.
2. The evidence, when considered holistically, demonstrates that the Applicant's use and occupation of the Hurstville Property was not transient or for another purpose, but had the requisite degree of permanence and was her settled or usual abode.[77]
3. The Tribunal in Raissis v Chief Commissioner of State Revenue (Raissis)[78] and Sarros v Commissioner of State Revenue (Sarros)[79] makes clear that the test is not met by intention alone, nor by mere sleeping at the property, but by the totality of the indicia of home life, which is present on these facts.[80]
4. The Applicant acknowledges the onus under s 88 of the TA Act and submits that, on the balance of probabilities, the evidence provided is sufficient to discharge this onus.[81]
5. The Applicant submits that the period covered by utility bills is not the sole evidence, and that the Tribunal must consider all available evidence, including statutory declarations, payslips, government records, and other corroborating material.[82]
6. The Tribunal is required to take a holistic view of all the evidence, not just utility bills, and to consider the totality of the Applicant's circumstances.[83]
7. The Applicant submits that she has established, on the balance of probabilities, that she occupied and used the Hurstville Property as her principal place of residence for a continuous period of at least 200 days within 12 months of acquisition, as required by s 104ZKA of the Duties Act and she is entitled to the permanent resident exemption.[84] The assessment of surcharge purchaser duty, penalty, and interest should be set aside.[85]

1. The Applicant as not established that she resided in the Hurstville Property for a continuous period of 200 days from 3 June 2019 to 3 June 2020.
2. The Applicant has provided limited objective evidence to establish that the Hurstville Property was her principal place of residence during the Relevant period. There are inconsistencies in the Applicant's evidence as provided in her Affidavit, her oral evidence, and the objective evidence before the Tribunal.
3. The Applicant has failed to discharge her onus of proving that the Respondent's Decision was incorrect and the Decision should be affirmed.

1. A taxpayer who is dissatisfied with a decision made by the Respondent in relation to an objection may apply to the Tribunal for administrative review of the Respondent's decision: ADR Act, s 9; TA Act, s 96(1). The application for review was made within the 60 day time limit prescribed in s 99(1) of the TA Act. The Tribunal has jurisdiction to hear and determine the application.
2. The Tribunal's role on administrative review is to determine the correct and preferable decision having regard to the material before it, including the relevant factual material and the applicable written and unwritten law: ADR Act, s 63(1). For this purpose, the Tribunal may exercise all the functions conferred or imposed by any relevant legislation on the Respondent in making the decision he made: ADR Act, s 63(2).
3. The Applicant bears the onus of proving that the assessment was incorrect: TA Act, s 100(3). The Applicant must prove, on the balance of probabilities, all matters necessary for the Tribunal to answer the statutory questions in her favour: Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD)[86] at [36]. The Act does not place any onus on the Respondent to show that the assessment was correctly made. Unless the Applicant can show, by evidence, that she is not liable to pay surcharge purchaser duty, the Decision will prevail: Gauci v Federal Commissioner of Taxation[87] at 89.
4. After reviewing the Respondent's decision, the Tribunal may do one or more of the following under s 101 of the TA Act:

(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Respondent of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Respondent for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit.

1. The Applicant objected to the Decision, and the objection was disallowed. Accordingly, the Tribunal has jurisdiction to hear this matter: TA Act, s 96; ADR Act, s 9 and s 30 of the Civil and Administrative Tribunal Act 2013 (NCAT Act).

The Tribunal's task is to decide what the correct and preferable decision is having regard to the material before it at the time of the hearing: ADR Act, s 63(1). Legal principles

1. The term "principal place of residence" is not defined in the Duties Act and the term has been given its ordinary meaning. The ordinary meaning of "principal" encompasses "main" as well as "only", and does not exclude a person from having another, subsidiary place of residence: Single v Chief Commissioner of State Revenue (Single)[88] at [16]. A person's principal place of residence is generally their "settled or usual abode": Raissis at [65].
2. In Chief Commissioner of State Revenue v Ferrington (GD),[89] the Appeal Panel of the Administrative Decisions Tribunal explained at [42] that:

(a) the words "principal place of residence" should be given their ordinary meaning in the context in which they appear;

(b) consideration of whether a person has been residing or occupying premises as their principal place of residence is a question of fact to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling;

(c) the intention of the person concerned, gauged objectively, is relevant but not determinative;[90]

(d) to occupy a home as a principal place of residence, a person's occupation must have a degree of permanence to it; a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient. Nor is occupation for some other purpose;

(e) the short length of a person's residence, while relevant, is not determinative, but the fact that a period of actual occupation is short will in practice make it harder for a person to show that the occupation was as his or her principal place of residence.

1. The test of whether a property is a person's principal place of residence is an objective one, which calls for a consideration of the extent and quality of use and occupation of the residence in each case: Yen-Cheng Chuang & Anor v Chief Commissioner of State Revenue (Yen-Cheng) [91] at [20].
2. The following matters have been identified in the authorities as relevant to the assessment of whether a property is a person's principal place of residence:

(a) whether the applicant has another, subsidiary place of residence (Single at [16]) and, if so, the respective amount of time each residence is occupied (Lo v Chief Commissioner of State Revenue[92] at [39], [42]-[47]), the respective rights in relation to the two properties (Chief Commissioner of State Revenue v Mesiti (Mesiti)[93] at [61]), and the strength of ties and connection with the residence, including where family members reside (Mesiti at [61]; Chief Commissioner of State Revenue (RD) v Mcllroy (McIlroy)[94] at [46]);

(b) the listing of the applicant's address for official purposes, such as on a licence or an electoral roll (Mesiti at [50], [61]; Mcllroy at [47]), or the address to which bills are sent (Tobin v Chief Commissioner of State Revenue (Tobin)[95] at [48]);

(c) utilities usage at the property (Tobin at [49], Yen-Cheng at [21]);

(d) whether the applicant intended to occupy the property as their principal place of residence (although, without more, a subjective intention is insufficient) (Zakariya v Chief Commissioner of State Revenue (Zakariya)[96] at [14]);

(e) whether the applicant established the property as a permanent principal place of residence by introducing furniture, clothing and personal belongings and making changes consistent with permanent occupation. Merely sleeping at a place will not be sufficient if other indicia - such as where the person ate, their use of electricity, the furniture and fittings, and whether they had essential items such as a refrigerator or stove - point against the conclusion that the place is the person's principal place of residence (Ziino v Commissioner of State Revenue (Ziino)[97] at [10]; Nakhoul v Chief Commissioner of State Revenue;[98] Deverich v Chief Commissioner of State Revenue[99] at [39]);

(f) how the applicant occupied the property, including the amount of time spent there, where they ate, slept, showered, and where they entertained friends (Zakariya at [14]; Ziino at [10]). "Occasionally visiting" a place is not "occupying" a home, because a home is likely to be a "place where persons ordinarily eat, morning and night, and where they sleep, and in the case of adults have the characteristics of permanency" (Ziino at [17]); and

(g) whether the person has made changes to the property consistent with permanent occupation (Single at [19]).

1. Occupation requires possession and control over the property. If a lease has been granted over the property under consideration, the lessee - and not the lessor - has possession and control: Khalil v The Chief Commissioner of State Revenue (Khalil)[100] at [31]. In some cases, where the owner remains at the property while giving a person a licence to occupy one room, the owner remains in control of the premises and may be seen to continue to "occupy" the premises: Khalil at [33], quoting Flaracos v Chief Commissioner of State Revenue.[101] The extent to which the owner retains control of the property is a question of fact.

Does the Applicant qualify for the exemption in s 104ZKA of the Duties Act?

Did the Applicant satisfy the residence requirement?

1. For the reasons that follow, and in accordance with the indicia identified by the Tribunal in previous decisions outlined in [84]-[88] above, I find that evidence does not support a finding that the Hurstville Property was the Applicant's principal place of residence for a continuous period of at least 200 days between the period of 3 June 2019 and 3 June 2020.
2. The evidence supports a finding that the Applicant moved to the Hurstville property on or around 3 June 2019 but did not reside there for a continuous period of 200 days. I make the following findings of fact based on the evidence before the Tribunal outlined in the following paragraphs.
3. The Applicant ended her lease and vacated the Chatswood Property on 4 June 2019 and used the services of a removalist to move her personal items to the Hurstville Property where she resided as her principal place of residence until she travelled to China on 16 June 2019. These findings are supported by the following evidence:

(a) A CoreLogic Property Report for the Chatswood Property indicating that the Chatswood Property was listed for rent on 6 June 2019.[102]

(b) An email from Brenda Chai of Holly Properties dated 11 June 2019 confirming that the Applicant had recently moved out of the Chatswood Property.[103]

(c) The text message between the Applicant and a removalist dated 4 June 2019 and a receipt from Z H Removals dated 9 June 2019 showing the Hurstville Property address.[104]

(d) A tax invoice from Rainbow Star Furniture & Bedding in Hurstville evidencing furniture purchases on 12 June 2019.[105]

(e) The Applicant's payslip from Overseas Union Finance for the pay period from 10 June 2019 to 16 June 2019 listing the Hurstville Property as her address.[106]

1. Following her return from China on 29 July 2019, the Hurstville Property was not occupied by the Applicant, and was likely unoccupied, until early November 2019. These findings are supported by the following evidence:

(a) In the incoming passenger card the Applicant completed when she returned to Australia on 29 July 2019, the Applicant did not provide the Hurstville Property as her residential address indicating that she did not intend to reside there on her return.

(b) Between the period June to November 2019 there were no utilities connected to the Hurstville Property linked to an account in the Applicant's name or the name of any other person.[107]

(c) Sydney Water bills were not issued for the Hurstville Property until 1 October 2019 indicating it was unoccupied until the last quarter of 2019.

(d) The Applicant's bank statements record only two transactions in Hurstville during the statement period from 11 April 2019 to 11 October 2019 (on 4 June 2019 and 27 September 2019).[108]

1. I do not accept the Applicant's evidence that she could not remember the address of the Hurstville Property due her limited English, and this is the reason why she provided the Chatswood Property as her residential address on the incoming passenger card she completed on 29 July 2019.
2. On 4 November 2019, the Applicant entered into an informal tenancy agreement with Qingsen Zhao and Zheng Liu who occupied the Property and the Applicant lived elsewhere, most likely the Roseville Property. This finding is supported by the following evidence:

(a) Electricity and gas were connected at the Hurstville Property in the Applicant's name for the period from 4 November 2019 to 17 April 2020.[109]

(b) Transport for NSW records show that Qingsen Zhao listed the Hurstville Property address on their driver's licence from 27 November 2019 to 1 July 2020.[110]

(c) The Applicant's bank records show that between 11 October 2019 and 9 October 2020 she received payments from Zheng Liu at two weekly intervals generally for the amount of $1160,[111] indicating that Zheng Liu was paying rent of $580 per week to the Applicant.

(d) ATO records show that the Roseville Property was listed as the Applicant's address from 27 September 2019.

(e) Transport for NSW records show that the Applicant listed the Roseville Property as her address from 23 October 2019.

(f) The Applicant's bank statements record only two transactions in Hurstville during the statement period from 11 October 2019 to 9 April 2020 (on 11 October 2019).[112]

(g) The Applicant requested AGL to disconnect the utilities at the Hurstville Property with the final reading on 17 April 2020.

(h) The Applicant advised AGL that the Roseville Property was her residential address as at 14 April 2020.

1. I do not accept that the Applicant rented one room only to tenants Qingsen Zhao and Zheng Liu and that she remained living at the Property and occupied the bedroom. Having regard to the objective evidence of rental prices of comparable properties at the time,[113] the rent of $580 per week is consistent with the entire property being rented to the tenants.
2. I do not accept that the Applicant did not engage in the webchat conversation with the AGL representative on 14 April 2020. The Applicant's affidavit evidence that she did not request AGL to disconnect the electricity and gas at the Hurstville Property is inconsistent with the objective evidence comprised in AGL's records.[114] The reference in the AGL records to the Applicant giving the reason for the disconnection of the utilities as being because a lease had ended is consistent with the evidence that the Applicant had an informal tenancy agreement with Qingsen Zhao and Zheng Liu.
3. At the end of the tenancy agreement with Qingsen Zhao and Zheng Liu, the Applicant arranged for the Hurstville Property to be listed for sale and for lease fully furnished. In or around July 2020, the Property was leased to Jiahao Hou and Cao Li for $580 per week. This finding is supported by the following evidence:

(a) A Domain report on the Hurstville Property shows that it was listed for sale on 7 May 2020, and that it was listed for rent in May 2020.[115] The listing on the leasing agency's website, My Sole Agency, shows that the Property was advertised for lease fully furnished.[116]

(b) The series of WhatsApp messages produced under summons by Danny Liu of My Sole Agency which record conversations between him and the Applicant about open homes for the Hurstville Property from May 2020 and include a message on 6 June 2020 in which the agent informed the Applicant that there is another property available for rent in the same building for $500 per week.

(c) A bank statement shows that Jiahao Hou made a payment of $1160 to the Applicant on 27 July 2020 and the Applicant subsequently received monthly rental payments from Jiahao Hou in the amount of $2320,[117] indicating that the tenants were paying rent of $580 per week to the Applicant.

(d) The Applicant asked Jiahao Hou to connect the electricity and gas services with AGL under his own name.[118]

1. I do not accept that the Applicant rented one room only to tenants Jiahao Hou and Cao Li and that she remained living at the Property and occupied the bedroom. Having regard to the objective evidence of rental prices of comparable properties at the time,[119] the rent of $580 per week is consistent with the entire property being rented to the tenants.
2. I have had regard to the letters and statutory declarations provided by friends and colleagues of the Applicant set out at [41] above which she claims support her assertion that she resided at the Hurstville Property during the Relevant period from 3 June 2019 to 3 June 2020. I find that, with the exception of the letter from Aonan (Aaron) Shen dated 15 February 2025, which states that the Applicant lived at the Hurstville Property from June 2019 to December 2020, these refer to the Applicant having lived at the Hurstville Property from 2019 to 2020. No specific dates are identified, and they therefore do not support the Applicant's claim that she resided at the Hurstville Property as her principal place of residence during the Relevant period. I therefore have given these letters and statutory declarations limited weight. The statement of Cao Li and Hou Jiahao dated 15 July 2025 states that they rented one room at the Hurstville Property short-term from July to December 2020, paid weekly rent of $580, and opened electricity, gas and internet accounts in their name rather than the Applicant's due to her limited English proficiency. I have found that the Applicant rented the entire property to Cao Li and Hou Jiahao from July 2020, and I therefore give this statement no weight.
3. I further note that while statutory declarations can carry weight in explaining the circumstances of a person's occupation of a property where there is limited independent evidence, the test as to whether a property is a person's "principal" place of residence is a question of fact and degree, to be determined on an objective view of the evidence, having regard to the extent and quality of the person's use and occupation of the property: Sarros at [106] citing Paspaley v Chief Commissioner of State Revenue[120] at [61]; Cameron v Chief Commission of State Revenue[121] at [46].
4. The objective evidence in this case is insufficient to establish that the Hurstville Property was the Applicant's principal place of residence for a continuous period of at least 200 days between the period of 3 June 2019 and 3 June 2020 in accordance with the indicia identified by the Tribunal in previous decisions. The Applicant has failed to discharge her onus of proving that she is entitled to the permanent resident exemption in s 104ZKA of the Duties Act.
5. I therefore find that the residence requirement was not satisfied, and no principal place of residence exemption applies under s 104ZKA of the Duties Act.
6. The correct and preferable decision is that the Applicant was liable to surcharge purchaser duty as assessed by the Respondent in the Decision.

1. The Applicant sought remission of penalties and interest.
2. Surcharge purchaser duty is required to be paid within three months after the liability to pay the duty arises: Duties Act, s 104W.
3. A taxpayer's failure to pay the whole or part of tax that the taxpayer is liable to pay in accordance with the Duties Act is a "tax default" within the meaning of s 3(1) of the TA Act (read with the definition of "taxation laws" in s 4). As the Tribunal has found that the Applicant was liable to pay the surcharge purchaser duty, her failure to do so by 3 September 2019 (three months from the transaction date of 3 June 2019) constitutes a tax default.

1. If a tax default occurs, the taxpayer is liable to pay interest on the amount of unpaid tax, calculated on a daily basis from the end of the last day for payment until the day it is paid: TA Act, s 21(1). The interest rate is the sum of the market rate component and an 8% premium component: TA Act, s 22(1).
2. Section 25 of the TA Act, as it applies in this case, provides for the remission of interest. Interest may be remitted either in part or in full. Section 25 confers a broad and unfettered discretion on the Respondent to be exercised in light of all the circumstances. The discretion is confined only by reference to what expressly or impliedly is required to be taken into account, or is forbidden to be taken into account, in light of the subject matter, scope and purpose of the TA Act. The discretion must also be exercised in a legally reasonable way: Chief Commissioner of State Revenue v Uber Australia Pty Ltd (Uber)[122] at [390].
3. The Respondent set out in Practice Note CPN 024 (CPN 024) his guidelines as to how he will exercise his powers of remission. Relevantly, they provide as follows:

"When a tax default occurs, interest is calculated on the amount of unpaid tax calculated on a daily basis from the end of the last day for payment until the day it is paid.

The Chief Commissioner may remit the market rate component or the premium component of interest, or both, by any amount depending on the circumstances affecting the tax default. Where the remission of interest is warranted, the amount remitted will, generally, be either both the premium and market rate or the premium rate only.

........

Circumstances outside the control of a taxpayer

Where there is evidence that the default was outside the control of the taxpayer (or their representative), the Chief Commissioner may remit interest. Events over which a taxpayer has no control include but are not limited to:

a. natural disasters such as fire or flood

b. computer system breakdowns including third party systems such as electronic funds transfer systems

c. illness or death of a principal taxpayer

d. Revenue NSW fault affecting receipt of payment, including processing problems

e. circumstances where it is impossible to lodge or pay on time (excluding financial incapacity including hardship)

In cases of financial incapacity, taxpayers may apply for relief in the form of an extension of time to pay, including an instalment arrangement

Reasonable care taken by the taxpayer

Where there is sufficient evidence to prove that the default was within the control of the taxpayer (or their representative), but reasonable care has been taken to ensure the payment of the tax, the Chief Commissioner will usually remit the premium rate component of the interest. Events that may indicate that the taxpayer took reasonable care include (but are not limited to):

a. being honest and forthright when dealing with the Chief Commissioner

b. cooperation with the Chief Commissioner

c. the default is attributable to calculation errors

d. making diligent efforts to understand and comply with the law

e. maintaining appropriate and proper recording systems in accordance with normal practice i.e., systems that minimise the risk of tax default, allow reconciliation of the tax paid or payable with returns required to be lodged and fulfil the taxpayer's obligation under the taxation laws to maintain records for the purposes of Revenue NSW investigations or audits

f. taking reasonable steps to be aware of and comply with his/her taxation obligations and to be familiar with the legislative requirements

g. applying any relevant revenue rulings in good faith

h. seeking professional advice or private rulings for uncertain or complex matters where no revenue ruling applies, or where circumstances differ from those described in a revenue ruling

i. acting promptly to seek advice or provide information once made aware, from any source, that the taxpayer might have a tax liability

j. the taxpayer has used and reasonably relied on data, statements or other information provided by a third party.

Meeting one or more of these examples does not necessarily mean that reasonable care has been taken; all relevant factors leading to the tax default will be taken into consideration.

Note: Remission of the premium rate will only occur in special circumstances".

1. The authorities have drawn a distinction between the market rate component of interest and the premium component of interest.

1. The purpose of the market rate component is to compensate the Respondent, on behalf of the State, for having been deprived of the benefit of payment the tax when due: see Adams Bidco Pty Ltd v Chief Commissioner of State Revenue[123] at [163]; Antegra Pty Ltd v Chief Commissioner of State Revenue[124] at [171]; Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor (RD)[125] (Incise Technologies)at [60].
2. The rationale for the market rate of interest and why it should only rarely be waived was explained by the Tribunal in _Incise Technologies_at [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."

1. The approach of the Respondent, set out in CPN 024, is that where the circumstances of non-payment were beyond the control of the taxpayer, remission of interest assessed at the market rate may be justified. The Tribunal in Incise Technologies relied on fault on the part of the Respondent as grounds for remission. This was a factor that was also found to be relevant in Trust Co. of Australia Ltd v Chief Commissioner of State Revenue[126] at [27].
2. It is only in exceptional circumstances that a remission of the market rate component is justified. Exceptional circumstances include where the tax default is the fault of the Respondent, or by reason of situations outside the control of the taxpayer, such as postal strikes, serious illness of the taxpayer and natural disasters: see Incise Technologies at [60]; Lease A Leaf Property Pty Ltd v Chief Commissioner of State Revenue (RD)[127] at [34]-[35].
3. The Applicant remained responsible at all times to discharge her liabilities for taxation, including surcharge purchaser duty. There is no evidence of circumstances outside of the Applicant's control giving rise to her tax default. There is also no evidence of fault on the part of the Respondent. I find there are no exceptional circumstances in this case that warrant the remission of the market rate component of the interest.

1. The purpose of the premium rate component of interest differs from that of the market rate component. Its purpose is to provide an additional economic deterrent against taxpayers failing to meet their obligations on time. It is intended to operate as a key disincentive to delaying tax payments: Incise Technologies at [61]; Southern Cross Community Healthcare Pty Ltd v Chief Commissioner of State Revenue[128] at [443] (Emmett AJA); Golden Age and Hannas the Rocks Ply Ltd v Chief Commissioner of State Revenue[129] at [101], [102] (Richmond J).
2. Whether the premium rate component of interest should be remitted turns on whether an applicant has personal circumstances that go to their level of culpability in committing the tax default. The Tribunal may consider any matters relevant to the degree of the applicant's culpability, such as their personal circumstances, understanding, awareness and any other matters that may have set their case apart from the "usual situation" so as to warrant remission of interest: Wan v Chief Commissioner of State Revenue (NSW) (Wan)[130] at [81]-[82], [86].
3. In Uber, the Court of Appeal referred to earlier authorities on the premium rate component and explained at [397]-[398], that the following (non-exhaustive) factors may be relevant to a decision under s 25 of the TA Act whether to remit some or all of the premium rate component of interest:

(a) all principal tax that has been assessed and is not in dispute has been paid in full (see Incise Technologies at [62]-[63]);

(b) there has been timely cooperation by the taxpayer in providing relevant information so as to enable the Chief Commissioner to issue assessments (see Incise Technologies at [62]);

(c) there has been no wilful default by the taxpayer in not paying tax on time (see Incise Technologies at [62]; Wan at [88]);

(d) the taxpayer took reasonable care in relation to complying with their tax obligations (see Wan at [81]-[82], [86]); and

(e) the taxpayer acted reasonably in all the circumstances, including in light of any explanation offered for why the default occurred.

1. The Applicant has not established that any of her personal circumstances set her situation apart from the "usual situation" so as to warrant remission of interest. The Applicant has not, for example, established that she was unaware of her liability to pay surcharge land tax, did not intentionally disregard the law, or took reasonable care in complying with her tax obligations.
2. The Applicant has not explained why the default occurred. The Applicant said that she would meet the residence requirement but failed to do so, and she did not notify the Respondent of the default, although there was no impediment to her doing so. The Applicant's circumstances do not justify the remission of the premium rate component of interest.
3. The Applicant is liable for interest as assessed by the Respondent in the Decision.

1. The Respondent's power to assess penalty tax arises under s 26 of the TA Act. The amount of penalty tax payable for a tax default is relevantly set at a default rate of 25% of the amount of tax unpaid (TA Act, s 27). The Respondent has the power to reduce the amount of penalty tax to 20% if, after the Respondent informs the taxpayer that an investigation relating to the taxpayer is to be carried out and before it is completed, the taxpayer discloses to the Respondent, in writing, sufficient information to enable the nature and extent of the tax default to be determined (TA Act, s 29). In this case, the Respondent reduced the penalty tax to 20%.
2. The Respondent, and the Tribunal on review, has a power to determine that no penalty tax is payable in respect of a tax default under s 27(3)(a) of the TA. This power may be exercised if the Tribunal is satisfied that the taxpayer or a person acting on behalf of the taxpayer, took "reasonable care" to comply with the taxation law. Section 27(3)(b) of the TA provides that the Respondent, and the Tribunal on review, may determine that no penalty tax is payable if the tax default occurred solely because of circumstances beyond the control of the taxpayer or a person acting on their behalf. It explicitly requires that the tax default be "solely" caused by circumstances beyond the taxpayer's control. The Tribunal may be justified in refusing to interfere with the Respondent's decision not to exercise the s 27(3) discretion where the acts and omissions of the taxpayer (and any person acting for them) prevented the Respondent from being able to make a proper assessment of duty because the relevant behaviour includes a failure to take reasonable care or a failure to provide complete and accurate information: Nhem v Chief Commissioner of State Revenue[131] at [63].
3. The Applicant has provided no evidence to establish that she took reasonable care or that the default was outside her control. There is, for example, no evidence that the Applicant sought professional advice or made enquiries with Revenue NSW with a view to ensuring that she would meet any tax liability: see Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue; International Hotel Services Pty Ltd v Chief Commissioner of State Revenue[132] at [299] (Ward CJ in Eq).
4. On the evidence before the Tribunal, I am not satisfied the Applicant took reasonable care, or that the tax default was beyond her control, and therefore I am unable to determine under s 27(3) of the TA Act that no penalty tax is payable.
5. A separate power to remit penalty tax is provided under s 33 of the TA Act. The Court of Appeal in Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd[133] considered that the power of remission under s 33 is not limited either expressly or by necessary implication by the mandatory reductions required by ss 28 and 29 of the TA Act. Bathurst CJ stated at [149]-[150]:

".... it does not seem to me that the power in s 33 of the TAA to remit penalty tax "in such circumstances as the Chief Commissioner considers appropriate" is limited either expressly or by necessary implication by the mandatory reductions required by ss 28 and 29. These mandatory reductions are a relevant matter for the Commissioner to take into account in considering whether to exercise the power to remit in s 33 but they do not limit that power.

As the Chief Commissioner pointed out, in Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue Ward CJ in Eq stated at [301] that except in special circumstances, the general discretion under s 33 should not be exercised beyond the limits in ss 27(3) and 29 when the circumstances giving rise to a remission under s 27(3) of the TAA had not been made out. However that was a matter of discretion not power."

1. The Respondent may issue guidelines on the circumstances in which he may determine that no penalty tax is payable in relation to a tax default: see TA Act, s 33A. CPN 024 continues to apply to penalty tax and relevantly provides:

"Where there is evidence that the taxpayer (or their representative) took reasonable care to comply with the taxation law, or the tax default occurred solely because of circumstances beyond their control (excluding financial incapacity), the Chief Commissioner will usually determine that no penalty tax is payable."

1. In Xin v Chief Commissioner of State Revenue (Xin),[134] the Tribunal noted at [51] that, while the discretion in s 33 of the TA Act appears on its face to be unfettered, it must be exercised in a manner that is guided by the underlying purpose of the legislation and not in a way that would defeat the objectives of the legislative scheme.
2. The Tribunal has emphasised that the legislation establishes a system of self- assessment and "there is no duty on the Commissioner to warn a taxpayer regarding their liability to [surcharge purchaser duty]": Denton v Chief Commissioner of State Revenue[135] at [74]. As the Tribunal explained in Xin at [53]:

"The legislation relies on people assessing their own liability and telling the Chief Commissioner what it is. In surcharge purchaser duty cases where the principal place of residence exemption is claimed, the self-assessment nature of the provisions requires taxpayers to monitor their use of a property to see whether they have met the residence requirement, and to notify the Chief Commissioner in a timely fashion if it turns out the requirement has not been met. "

1. Having regard to the authorities and based on the evidence before the Tribunal, I find that nothing in the Applicant's circumstances is unusual or out of the ordinary and, like the applicant's circumstances in Xin, this is a case where the Applicant said she would meet the residence requirement but failed to do so, and she did not inform the Respondent of her failure, although there was no impediment to her doing so. In these circumstances, to excuse the Applicant from or reduce the penalty tax "would be to undermine the very purpose of the penalty provision in the first place": Xin at [54].
2. The Applicant is liable for penalty tax as assessed by the Respondent in the Decision.

1. The correct and preferable decision is that the Applicant is liable to surcharge purchaser duty, interest, and penalty tax as assessed by the Respondent in the Decision.

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.

[2] RB, 30, 34; Applicant Affidavit (LM Affidavit) [5].

[19] RB, 568-579, 581-582. The Applicant forwarded the objection to the appropriate email address within Revenue NSW a day later, on 19 February 2025: RB, 585-587.

[21] RB, 602. See s 91 of the Taxation Administration Act 1996 (NSW) (TA Act).

[23] RB, 570; Applicant bundle of evidence (AB), 70.

[43] See RTB, 42 (AGL Account Statement showing charges were made from 5 November 2019 to 17 April 2020. See also RB, 422-423, 453, 455-458, 447-449, 481, 493.

[45] Respondent bundle of evidence (RTB), 483.

[54] See for example RB, 182ff - 11 April 2022 to 11 October 2022 bank statement.

[58] RB, 145, 149, 150, 152, 153, 155, 157, 161, 163, 164.

[61] RB, 134, 137. See also 122, 125, 128, 130 and 132.

[70] LM Affidavit [15]. RB, 168; The Applicant's bank records show that she purchased a BMW car on 1 May 2019.

[73] RB, 96-181, 223-230, 236-251. See eg the statement period 11 April 2019 to 11 October 2019, which lists the Applicant's postal address as the Roseville property.

[77] Applicant submissions (AS) [26].

[78] [2021] NSWCATAD 99

[79] [2022] WASAT 102

[86] [2013] NSWADTAP 25.

[87] [1975] HCA 54; (1975) 135 CLR 81.

[88] [2006] NSWADT 334.

[89] [2004] NSWADTAP 41.

[91] [2009] NSWADT 160.

[92] [2013] NSWCA 180.

[93] [2003] NSWADTAP 57.

[94] [2009] NSWADTAP 21.

[95] [2009] NSWADT 188.

[96] [2003] NSWADT 26.

[97] [2004] VCAT 1707.

[98] [2009] NSWADT 103.

[99] [2010] NSWADT 268.

[100] [2011] NSWADT 276.

[101] [2003] NSWSC 68.

[107] With the exception of the AGL record of an account in the name of Dariush Adybeik opened for six days, from 3 July 2019 to 8 July 2019.

[109] See RTB, 42 - AGL Account Statement showing charges were made from 5 November 2019 to 17 April 2020. See also RB, 422-423, 453, 455-458, 447-449, 481, 493.

[111] RB, 145, 149, 150, 152, 153, 155, 157, 161, 163, 164.

[114] Cf LM Affidavit, [16]; AS, [17].

[117] RB, 134, 137. See also 122, 125, 128, 130 and 132.

[120] [2014] NSWCATAD 217.

[121] [2009] NSWADT 64.

[122] [2025] NSWCA 172.

[123] [2019] NSWSC 702.

[124] [2021] NSWSC 107.

[125] [2004] NSWADTAP 19.

[126] [2002] NSWADT 21.

[127] [2011] NSWADTAP 41.

[128] [2021] NSWSC 1317.

[129] [2024] NSWSC 249.

[130] [2025] NSWCATAP 54.

[131] [2024] NSWCATAD 9.

[132] [2019] NSWSC 657.

[133] [2020] NSWCA 126.

[134] [2024] NSWCATAD 333.

[135] [2024] NSWCATAD 206.