In relation to each of the applications, the assessment of the respondent is confirmed.

1. On 29 September 2016, the Commissioner of State Revenue (Commissioner) referred three applications to the Tribunal at the request of the applicant, Mrs Susan Roach, under the Taxation Administration Act 1997 (Vic) (TA Act).
2. Mrs Roach seeks review of the Commissioner's decision[1] to disallow her objection[2] to the Commissioner's assessments of land tax under the Land Tax Act 2005 (Vic) (LT Act) in respect of a property formerly owned by Mrs Roach at 669 Great Ocean Road, Eastern View (Eastern View Property):-

1. On a review or appeal of a land tax determination, the taxpayer has the onus of proving his or her case.[3]
2. Mrs Roach contends that the Eastern View Property was her principal place of residence during the relevant periods, and so exempt from land tax.[4]
3. The Commissioner's case is that Mrs Roach has failed to discharge her onus of proof that she resided at the Eastern View Property as her principal place of residence, and that her principal place of residence during each of the relevant periods was in Melbourne, although as explained below the identity of the particular property changed over time.
4. On 27 February 2017, I heard Mrs Roach's application. Her husband, Mr Lance Roach, appeared on her behalf. She did not attend. The Commissioner was legally represented. I heard evidence and submissions and reserved my decision.

1. The LT Act imposes land tax in respect of each year on all taxable land in Victoria, with the owner of taxable land being liable to pay land tax.[5]
2. A taxpayer is to be assessed for land tax on the total taxable land of which he or she was the owner on midnight on 31 December immediately preceding that year.[6]
3. Taxable land is defined in the Act to mean all land that is not exempt land.[7]
4. The applicant relies upon the exemption known as the principal place of residence exemption contained in section 54(1) of the LT Act that, so far as relevant, reads as follows:
   • (1) Subject to this Division, the following land is exempt land -
     • (a) land owned by a natural person that is used and occupied as the principal place of residence of that person;

(2) Subject to section 55, subsection (1)(a) or (b) only applies if the land has been used and occupied as the principal place of residence of the owner or vested beneficiary -

• (a) since 1 July in the year preceding the tax year;

1. The LT Act does not define the expression 'principal place of residence'. However, in Chief Commissioner of State Revenue v Ferrington,[8] the New South Wales Administrative Decisions Tribunal Appeal Panel identified a number of common principles in determining a person's principal place of residence, as follows:-

'Firstly, the words "principal place of residence" should be given their ordinary meaning in the context in which they appear...

Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling...

Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue...

Fourthly, to occupy a home as his or her place of principal 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...

Fifthly, the short length of a person's residence, while relevant, is not determinative of the issue...

Sixthly, the reason for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances...' [9]

1. Although that decision was made in the context of the first home owners grant in New South Wales, those principles have also been applied in a number of VCAT decisions concerning the principal place of residence exemption for land tax.[10]
2. Two further relevant principles should be mentioned.
3. First, in considering whether particular land is used or occupied as the principal residence of a person, account must be taken of every place of residence of the person.[11] It follows from that, and the ordinary meaning of the word 'principal', that 'where a taxpayer has access to two or more properties it will be a question of fact and degree to determine if a particular property has been proven to be the principle (sic) place of residence of that taxpayer'.[12]
4. Second, the use of the land must be considered for each particular year in question rather than aggregating its use over all of the years in contention.[13]

1. Before discussing the parties' submissions, it is useful to set out some background as to the ownership of various properties used by Mrs Roach and her husband over the relevant periods, principally based on the documentary evidence filed by the Commissioner.
2. Mr and Mrs Roach acquired the Eastern View Property on 8 April 1984. It was transferred to Mrs Roach's sole ownership on 12 May 2004. By ticking the relevant box in the notice of acquisition of an interest in land dated 6 October 2004, it was indicated that the property would not be occupied as Mrs Roach's principal place of residence.
3. However, on 2 December 2007, W. J. Gilbert & Co wrote to the Commissioner advising that, following settlement of the sale of a property located at 189 Were Street, Brighton (Were Street Property), the principal place of residence of their client (ie. Mrs Roach) was now the Eastern View Property.
4. On 18 October 2012, Mrs Roach transferred the Eastern View Property to a third party.

1. During the relevant periods, Mr Roach owned or rented a number of properties in Melbourne at which (on his uncontradicted evidence) he lived in order to look after the couple's nursery business as follows:-

1. Mr Roach acquired the Burwah Avenue Property on 8 February 2008. By a notice of acquisition of an interest in land dated the same date, it was indicated that the property would be used as his principal place of residence. On 4 August 2010, Mr Roach transferred the property to a third party.
2. Based on a bond summary issued by the Residential Tenancies Bond Authority, it appears that the Grenville Street Property was leased by Mr Roach from 27 July 2009 to sometime in July or August 2010.
3. The Farnham Street Property was formerly owned by Mrs Roach's aunt, Mrs Roma Mole and Mr Roach commenced to occupy the premises on or about 19 August 2010 when Mrs Mole entered an aged care home. On 29 August 2011, Mr Roach entered a contract with Mrs Mole to acquire the Farnham Street Property. That contract was completed on 24 October 2013, with Mr and Mrs Roach acquiring the property as joint proprietors. The Notice of acquisition of an interest in land dated 22 October 2013 records that the property acquired was to be the principal place of residence of Mr and Mrs Roach.
4. One other property that is relevant to the proceeding is a property located at 2780 Cape Otway Road, Winchelsea (Winchelsea Property) which was used for growing plants for the family's nursery business and owned by Otway Views Pty Ltd. Otway Views Pty Ltd (which is now known as On Main Ridge Pty Ltd) was and remains owned and controlled by the Roach family. The Winchelsea Property was acquired by Otway Views Pty Ltd on 24 November 2005, and transferred to a third party on 22 June 2015.

1. The only documents filed by Mrs Roach in support of her claim were a short and unsigned statement of two pages, a letter from W. J. Gilbert & Co to the Commissioner dated 18 June 2015, financial statements for Gills Nursery & Landscape Pty Ltd and the Roach Family Trust, seven photos of growing plants at the Winchelsea Property and a print out from google maps showing different routes of travel from the Eastern View Property to the Winchelsea Property.
2. At the hearing, the applicant was represented by her husband, and did not appear to give evidence. Mr Roach explained that Mrs Roach did not attend because the matter was causing her a lot of stress, although she was not unwell.
3. In his oral evidence, Mr Roach principally sought to rely on the submissions of the family solicitor who wrote a letter to the Commissioner dated 18 June 2015. That letter was to the effect that the applicant resided at the Eastern View Property to be in close proximity to the Winchelsea Property, in order to be able to water - 'on an almost daily basis' - plants held as stock for a nursery operated by Mr Roach in Melbourne. Mr Roach explained that he was required to stay in Melbourne to operate the nursery as it had been losing money, although he would also stay at the Eastern View Property on the weekends.
4. Mr Roach said Mrs Roach spent one or two nights per week at the Melbourne properties at which he lived over the relevant periods in order to care for her elderly aunt, but he maintained that she spent most of her nights at the Eastern View Property.

1. The Commissioner tendered a folder containing some 78 documents in support of the land tax assessments which had been raised.
2. Ms O'Gorman submitted that there was no credible evidence of Mrs Roach residing at the Eastern View Property as her principal place of residence given:
   • Her initial response to the State Revenue Office inquiries indicated that Farnham Street Property was her current residential address, which she had entered on 19 August 2010.[14]
   • She had only indicated the Eastern View Property was her principal place of residence after the Commissioner issued the land tax assessments.
   • She had not identified the Eastern View Property as a place of residence in any official documentation, including when buying and selling various properties and in providing her residential address to VicRoads.
   • The evidence that her full time occupation was as a caregiver, with primary responsibility for caring for her aunt, and that it was more likely that her brother and sister in law, who resided at the Winchelsea Property, were responsible for watering the plants.
   • Mr Roach's oral evidence that decisions about what information should be given to the State Revenue Office were taken having regard to the family business interests, and that he paused or had difficulty in answering questions about where Mrs Roach resided at particular points in time.[15]
   • The anomaly between the evidence that the principal place of residence was claimed by Mrs Roach from 2007,[16] and the oral evidence of Mr Roach that Mrs Roach had been using the Eastern View Property as her principal place of residence for some period prior to that time.
3. Ms O'Gorman further submitted that, even if Mrs Roach resided at the Eastern View Property, her principal place of residence was with her husband at the various locations in Melbourne referred to in paragraph [20] above.
4. At the end of her submissions, Ms O'Gorman invited the tribunal to draw an adverse inference - from Mrs Roach's failure to attend the hearing - that any evidence she may have given would not have been favourable.[17]

1. In my view, Mrs Roach has failed to discharge the onus of proof to show that, on the balance of probabilities, the Eastern View Property was her principal place of residence during the relevant periods.
2. While Mrs Roach may have spent a few nights a week at the Eastern View Property and subjectively regarded it most fondly among the residences available to her, the objective evidence strongly favours a conclusion that she spent most of her time elsewhere, most likely at the same residence as Mr Roach.
3. In coming to this conclusion I take into account the following matters:
   • The absence of any contemporaneous documentary evidence to demonstrate that Mrs Roach had informed any authorities or other third parties that the Eastern View Property was her residence. This may be contrasted with the existence of various items of contemporaneous documentary evidence provided by the respondent which would suggest to a third party that she in fact resided at the properties listed at paragraph [20].
   • The implausibility of Mr Roach's suggestion that, when Mrs Roach informed VicRoads of her residential address at various points in time, she would provide her husband's residential address rather than her own so that if she was injured in an accident, the police would know where to find him. This explanation is contradicted by Mr Roach's use of his business addresses for his own drivers' licence, rather than the Eastern View Property, such that the police might have difficulty contacting Mrs Roach if he was involved in an accident.
   • Mrs Roach's initial response to the State Revenue Office of 15 April 2014 indicating that her residential address was at the Farnham Street Property and that she had entered into occupancy of that property on 19 August 2010. This may be contrasted with the implausibility of the explanation that, in drafting the response for Mrs Roach, Mr Roach had made a mistake in referring to his own residence. The questions asked by the State Revenue Office were clear and unambiguous, and other responses in that letter could only have referred to Mrs Roach (eg. 'I am joint owner of the [Farnham Street] property with my husband' and 'purchased [the Farnham Street] property from my aunt').
   • Mr Roach's evidence that Mrs Roach held medical and financial powers of attorney granted by, and was the primary care giver for, her aunt who lived in Melbourne. This needs to be considered in light of the suggestion in the W. J. Gilbert & Co letter of 18 June 2015 that Mrs Roach would water the plants at the Winchelsea Property 'almost on a daily basis'. Having regard to the distance from the Eastern View Property to the Winchelsea Property (involving an average return trip of one and a half hours) and the further distance from the Eastern View Property to Melbourne where her aunt lived, it is inconceivable that she could have properly attended to both duties.
   • The oral evidence given by Mr Roach that Mrs Roach had resided at the Eastern View Property as her principal place of residence for some years prior to December 2007 (when the respondent was notified by W. J. Gilbert & Co that the property had become Mrs Roach's principal place of residence), contrasted with his inability to explain why this had not been brought to the respondent's attention. While there is insufficient evidence to draw a firm conclusion, a possible inference from the letter of W. J. Gilbert & Co is that, prior to December 2007, the principal place of residence exemption was being claimed in respect of the Were Street Property.
   • Mr Roach's acceptance under cross-examination that the manner in which he dealt with issues, including the response he prepared for Mrs Roach to the inquiries being made the State Revenue Office, was influenced by the family's business interests and the evidence that, at least between August 2010 (when the Burwah Street Property was sold) and October 2013 (when the Farnham Street Property was acquired), Mr and Mrs Roach did not own any other residential property for which the principal place of residence exemption could have been claimed.
   • The difficulty that Mr Roach had, under cross-examination, in confirming that Mrs Roach's current principal place of residence was at the Farnham Street Property, and whether the land tax exemption was being claimed in respect of that property.
   • Mr Roach's explanation that the reason Mrs Roach lived at the Eastern View Property was in order to water the plants at the Winchelsea property, which may be contrasted with the absence of evidence as to who was attending to the watering between 18 October 2012 (when the Eastern View Property was sold) and 22 June 2015 (when the Winchelsea Property was sold).
4. Accordingly, I confirm the land tax assessments made by the respondent in each of the three applications before me.
5. Having regard to the conclusions above, it is unnecessary for me to draw the adverse inference referred to in paragraph [32].

[3] TA Act s 110. The standard of proof is the balance of probabilities: Rainn Pty Ltd v Commissioner of Land Tax [2016] VCAT 402 [8].

[4] LT Act ss 3, 8, 36(1), 54(1). The relevant periods are as follows: 2010 land tax year (1 July to 31 December 2009); 2011 land tax year (1 July to 31 December 2010); and 2012 land tax year (1 July to 31 December 2011).

[8] [2004] NSWADTAP 41; (2004) 57 ATR 170.

[9] Ibid para [42] (references omitted).

[10] See, for example, Ward v Commissioner of State Revenue [2016] VCAT 1307.

[12] Luxon v Commissioner of State Revenue [2016] VCAT 1466 [55].

[13] Ward v Commissioner of State Revenue [2016] VCAT 1307 [33].

[14] Letter from Mrs Roach to Ms Smith of the State Revenue Office dated 15 April 2014.

[15] For instance, Mr Roach denied the principal place of residence exemption was claimed in respect of the Farnham Street Property following the sale of the Eastern View Property, until pointed to evidence of this by Ms O'Gorman.

[16] Letter from W. J. Gilbert & Co to the Commissioner dated 2 December 2007.

[17] Jones v Dunkel (1959) 101 CLR 298.