(a) is designed and constructed primarily for residential purposes; and

(2) In determining whether land is used or occupied as the principal place of residence of a person, account must be taken of every place of residence of the person, whether in Victoria or elsewhere.

(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;

1. The Taxation Administration Act 1997 ("the TAA") provides:

(a) the taxpayer's case is limited to the grounds of the objection; and

(b) the Commissioner's case is limited to the grounds on which the objection was disallowed -

On a review or appeal, the taxpayer has the onus of proving the taxpayer's case.

1. The applicant stated In her affidavit dated 22 January 2015 that:

The basis of my appeal is that I was residing at both 32 Fernhill Road Sandringham . . . and at 13 Bass Court Balnarring . . . for the calendar years 2010 to 2014 inclusive (Relevant period) and was not residing at any other property. I believe that the Sandringham Property was my principal place of residence for the Relevant Period. If I am wrong, then the Balnarring Property must have been my principal place of residence for the Relevant Period. I believe that I am entitled to the principal place of residence exemption for each of the years in dispute and that the land tax assessments are excessive.

I lived alone for the Relevant Period. I have been financially and physically separated from my ex-husband Tom Robbins since 1987. We have lived apart since separating but have continued a friendly and working relationship. We have a son together who used to live at 3 Capitol Avenue, Balnarring and from 25 May 2015 has lived at 5 Kalimna Drive, Mornington.

My ex-husband runs a surgical practice from consulting rooms at 6 Plowman Place, Frankston and has done so since July 2003. I work full time at the practice although I have flexible hours. Up until May 2014 I worked at the practice as a nurse as well as doing secretarial and clerical duties. I have stopped nursing but continue to work full time at the practice doing secretarial and clerical duties.

The Balnarring Property was my principal and only place of residence until I acquired the Sandringham property in 2000.

I had lived in Sandringham before around the corner from the Sandringham Property and when it went on the market I decided to buy it. Sandringham is only 20 minutes drive to the city and that also attracted me to the Sandringham Property. After I acquired the Sandringham Property I furnished it with basic furniture, and gradually acquired more over time.

In the Relevant Period both the Sandringham Property and the Balnarring Property were fully furnished and had water, gas and electricity connected

1. Both in her affidavit and in oral evidence given to the Tribunal the applicant stated how she resided at the Sandringham Property from Monday to Friday and "spent Friday and Saturday nights at the Balnarring property as well as most of Saturday and Sunday."
2. "[F]rom Monday to Friday", the applicant stated,

I ate a breakfast of cereal at the Sandringham Property before leaving for work at approximately 7.30am . . . I would return home to Sandringham between 7 and 8 pm. Generally I would eat something very simple like eggs or something. Sometimes I would buy a frozen dinner and heat it in the microwave.

Sandringham has a garden but I have someone do the garden for me every three weeks because I couldn't keep up. I do the gardening myself at Balnarring. I have garden tools at both places.

I shower every two days so I generally shower two or three times per week at the Sandringham Property. There is a dishwasher at the Sandringham property but I don't ten to use it because I only have a couple of dishes each day.

I do my clothes washing on weekends so rarely if ever use the washing machine at the Sandringham Property. I generally do my clothes washing at the Balnarring property.

When I leave the Sandringham Property on Friday mornings I turn off all appliances other than the fridge.

1. Illustrating her intention to use the Sandringham Property as her PPR, the applicant gave evidence that the Sandringham Property was nominated as her address for the purposes of income tax, Medicare, driver's licence and car registration. In answer to a question in cross-examination, the applicant said that she was not enrolled to vote. Perhaps this was understood by her as a reference to Federal elections. A Victorian electoral enrolment document exhibited by the Commissioner, dated 27 May 2015, cites the applicant's address as "Kalimna Drive, Mornington."
2. The applicant then described some of her responsibilities. First, she said that she visited her mother in a Frankston nursing home before her mother died in 2013. Secondly, she provided services to her ex-husband's brother before he moved into a nursing home in 2013. Thirdly, she made regular visits to her son at the 5 Kalimna Drive, Mornington house which he acquired in 2012.
3. In relation to the Balnarring Property, the applicant argued that as both the Sandringham Property and the Balnarring Property were owned and occupied by her during the relevant period, the applicant must be entitled to a PPR exemption for one or other property. A finding that the Sandringham Property was not the applicant's PPR was said to entail a finding the Balnarring Property was her PPR.

1. The Commissioner contended that aspects of the applicant's proof raised significant questions about her PPR claim.
2. In her affidavit (above extracted), the applicant said that she "acquired the Sandringham property in 2000." She had "always liked the house" and, in that year, "when it went on the market", she "decided to buy it".
3. Counsel for the Commissioner showed the applicant a copy of a transfer of land registered in the Office of Titles, Victoria. The document indicated that the Sandringham Property was purchased in September 1999 by a company named Timcal Pty Ltd, the registered office of which was the Balnarring Property. The applicant then admitted that Timcal Pty Ltd was an investment vehicle used by her former husband and herself.
4. The applicant was shown a further copy transfer of land registered in the Office of Titles. This showed that on 25 May 2000 Timcal Pty Ltd, presumably as trustee, transferred the Sandringham Property to the applicant by way of "distribution in specie". The applicant did not "buy" the Sandringham Property. It was given to her. Company extract details for Timcal Pty Ltd exhibited for the Commissioner indicate that at the time that the Sandringham Property was transferred to the applicant, directors of the company were the applicant, her son Paul Robbins and "Thomas Robbins 9 Kalimna Drive Mornington Vic 3926".
5. Timcal Pty Ltd also acquired a Frankston apartment for the Robbins family superannuation fund, the applicant admitted. This was in order to derive capital gains, counsel for Commissioner suggested, after the applicant was unable to explain why there were lengthy gaps in letting-out the Frankston property and the fact that it was "on the market" for over two years.
6. In her affidavit, the applicant denied ever having rented the Sandringham Property and then admitted the existence of a two-week period when the property was "advertised for rent." Counsel for the Commissioner took her to a Core Logic RP Data document dated 15 January 2015, which indicated that the Sandringham Property was "on the market" for rent with a named estate agent in January and February 2013.
7. The Core Logic RP Data document also showed that the Sandringham Property was almost continuously on the market for sale between 2011 and the present. It is still for sale.
8. Regarding her intention to sell the Sandringham Property, the applicant admits in her statement that "I put the Sandringham Property on the market from 28 July 2011 until December 28 2013" and from 14 November until now. The applicant's counsel emphasized that an intention to sell a house is not inconsistent with an intention to make the same house one's PPR. No finding is made on the point. I was not taken to relevant authority.
9. The applicant was asked about the circumstances whereby the Balnarring Property was acquired. In her affidavit, the applicant stated that "I acquired the Balnarring Property in 1983". Title particulars shown to her indicated that she and her former husband acquired the property as tenants in common in July 1981. The applicant became sole proprietor on 14 November 1983.
10. Counsel for the Commissioner directed the applicant to the relationship she enjoyed with her former husband, Thomas Robbins. She acknowledged that he was a plastic surgeon with consulting rooms in Frankston. Whilst the applicant said that she was employed at the practice, she did not enlarge on what she meant by saying that she was "financially separated" from Thomas Robbins.
11. Nor did the applicant explain why she had been for over 30 years and was still a director of TH Robbins Pty Ltd - the entity which runs her former husband's medical practice. Company extract details for TH Robbins Pty Ltd exhibited for the Commissioner indicate that the applicant has been a director of the company since 1986. "Thomas Robbins 9 Kalimna Drive Mornington", the only other current director of the company, has been a director since 2000. Counsel for the Commissioner suggested and the applicant did not deny that she was "a 50% owner" of her former husband's medical practice.
12. Usage of utilities in relevant years is a significant objective indicator of whether the applicant used either the Sandringham Property or the Balnarring Property as her PPR.
13. Quarterly water usage at the Sandringham Property in records of South East Water exhibited by the Commissioner indicated that between 18 November 2009 and 14 August 2014 there were five quarters where the water usage was zero. Many other quarters recorded a low or very low usage, inconsistent with the use of a shower or toilet facilities. As the Commissioner submitted, in a total of only three quarters over the whole period was the water usage consistent with a single individual living at the Sandringham Property.
14. Electricity supply details for the Sandringham Property supplied by the Commissioner also indicated a comparably low rate of usage. The Commissioner exhibited AGL records for the Sandringham Property which indicated:
    • In 2010, a total consumption of 850 kWh (approximately 2.3 kWh per day)
    • In 2011, a total consumption of 490 kWh (approximately 1.3 kWh per day)
    • In 2012, a total consumption of 290 kWh (approximately 0.8 kWh per day)
    • In 2013, a total consumption of 320 kWh (approximately 0.9 kWh per day)

The applicant provided a record for the 2014 year which indicated:

• a total consumption of 320 kWh (approximately 0.9 kWh per day).

1. The Australian Government benchmark for electricity consumption cited at https://www.energymadeeasy.gov.au/benchmark (supplied by the applicant) indicates that average usage is 2714 kWh per year (7.4 kWh per day) for a 1-person household in Sandringham with mains gas connected and no pool - appropriately for the Sandringham Property. The applicant's usage was far below that benchmark.
2. At or before the hearing, neither the applicant nor the Commissioner supplied gas supply details in relation either to the Sandringham Property or the Balnarring Property. I have declined to accept further evidence on the point tendered by the applicant some days after the hearing.
3. The Commissioner denied the applicant's assumption that one or other of the Sandringham Property or the Balnarring Property must be the applicant's PPR. Instead, the Commissioner contended that it was possible that the applicant might not satisfy the terms of the PPR exemption for either property. New South Wales authority which the applicant relevantly relied on were specific to the terms of different New South Wales legislation. Further, a principle cited by Dixon J in Richardson v Federal Commissioner of Taxation [1932] HCA 67; (1932) 48 CLR 192 at 206 precluded the applicant from arguing for the alternate PPR exemptions.

1. I find that the applicant did not reside in the Sandringham Property as her PPR in years relevant to this appeal. Mainly, this is because water and electricity usages at the Sandringham Property were not consistent with the applicant's occupation of that property on a permanent basis.
2. In Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41; (2004) 57 ATR 170 at 183, the Appeal Panel of the New South Wales Administrative Appeals Tribunal held that the ordinary meaning of the words "principal place of residence" was appropriate and referred to a residence which a person occupies with a "degree of permanence". Such a residence was to be distinguished from one which was of a "transient, temporary, contingent or passing nature". The appeal in Ferrington involved a first home buyer's grant under New South Wales legislation. Both parties before me based arguments on this case. Neither party treated Ferrington's different statutory context as significant.
3. As to proof, the Ferrington Appeal Panel stated at 183 that whether a person has been residing or occupying premises as a PPR "is to be assessed objectively", in light of the circumstances of that person's actual occupation. Counsel for the Commissioner drew attention to photographs of the Sandringham Property which indicated that it consisted of a large house with a substantial garden, submitting that the Tribunal should take these matters into account in considering objective residence indicia. I noted these facts.
4. Utility usage is a significant means of assessing actual occupation. The Tribunal has held on a number of occasions that zero water use means that an applicant is not living at the premises at all: see Patel v Commissioner of State Revenue [2012] VCAT 913 at [13] and Alexander v Commissioner of State Revenue [2013] VCAT 860 at [13]. On this basis, for extended periods over several years, the applicant was not residing at the Sandringham Property. I do not accept the applicant's explanation that her frugal mode of occupation accounted for the minimal utility use at the Sandringham Property over a five-year period. Nurses in regular employment wash their hands and take regular showers, as counsel for the Commissioner put to the applicant in cross-examination.
5. I did not find that the applicant's figures for amalgamated electricity usage at the Balarring Property and the Sandringham Property of assistance. The applicant admitted that

electricity usage at Sandringham and Balnarring combined over the Relevant Period is generally less than half this figure (viz. the Australian Government benchmark for electricity consumption).

1. Another PPR indicium is the occupant's intention. This is of limited value. Uncorroborated evidence of the applicant's intention was not verified before the Tribunal.
2. Nor was it possible for the Commissioner or the Tribunal to verify the applicant's statement that the premises were furnished at relevant times.
3. Other occupation evidence relied on by the applicant was within her exclusive control. That the applicant supplied the address of the Sandringham Property as her address for a driver's licence, for income tax and for other civic responsibilities is probative of the applicant's PPR only to a limited extent. Residence addresses are not normally verified by relevant authorities and nearly all inquiries can be attended to by post. I note that the applicant's address for ordinary mail was changed from Sandringham to be Frankston during the years in question. Frankston, she explained, was more convenient because it was closer to her place of work.
4. In assessing the applicant's stated intention that the Sandringham Property should be her PPR, I regard as relevant that the property was on the market for sale between 28 July 2011 and 28 December 2013 and again between 11 November and the end of 2015 and that the applicant attempted to let out the property by listing it with an agent in January and February 2013.
5. Croft J in CDPV Pty Ltd v Commissioner of State Revenue [2016] VSC 332 stated a relevant principle in a Victorian land tax decision which concerned the primary production exemption. I find it of assistance in this case. "In relation to evidentiary matters generally, the onus is on the appellants to establish [an entitlement to the exemption]", his Honour said.

The Commissioner is, as observed in the Commissioner's submissions, at an evidentiary disadvantage inasmuch as those who are seeking an exemption have within their control almost all the evidence in relation to what is occurring on the Land and why things were or were not done on the Land. The Commissioner can only point to objective circumstances with a view to determining the position. Consequently, I accept that when a court is faced with a case of this nature, and particularly where, as in this case, the Court is faced with very uncertain evidence, a focus must be maintained on whether the onus has been met.

1. The applicant has not satisfied the burden which s110 of the TAA imposes on her to establish that the Sandringham Property was her PPR during the relevant period.

1. I find that the applicant is not entitled to the PPR exemption in respect of the Balnarring Property.
2. The applicant led limited evidence of utilities usage at the Balnarring Property. None of the evidence was from utility suppliers in authenticated form.
3. Counsel for the applicant supplied a table of water usage at the Balnarring Property and conceded that the water usage was very low. Recorded amounts were zero in some quarters. In the majority of quarters, the total usage only slightly exceeded usage at the Sandringham Property. Significantly, in view of the applicant's explanation of these facts, water usage was never zero or very low in the same months at both properties. Zero usage was apparently not caused by the applicant's absences on holiday or overseas.
4. I do not believe that the applicant should be precluded from arguing that the Balnarring Property is her PPR in the event that that Tribunal finds the Sandringham Property is not her PPR.
5. The Commissioner contended that the applicant was prevented from arguing for a PPR at the Balnarring Property by a principle which prevents a person from setting up a state of affairs in order to obtain an advantage and then arguing for an inconsistent state of affairs in order to obtain a different advantage. I will call this the inconsistency principle.
6. The main authority for the inconsistency principle was an obiter dictum of Dixon J in Richardson v Federal Commissioner of Taxation [1932] HCA 67; (1932) 48 CLR 192 at 206. The Federal Commissioner in that case was not allowed to maintain an assessment of tax against the taxpayer's nominee and retain tax that the nominee paid whilst bringing a further assessment against the taxpayer in respect of the same income. His Honour said at 207 (in obiter dictum):

It is enough for present purposes to say that the general rule is that no person may, after obtaining an advantage by the assertion of rights in relation to another and whilst retaining it, set up and rely upon other rights against the same person inconsistent with the existence of those already asserted.

1. In Richardson's case, the person precluded by the inconsistency principle sought to retain an advantage already obtained. The present facts are different. The applicant does not seek to retain a PPR exemption in respect of the Sandringham Property. On the contrary, the Balnarring Property PPR exemption is argued on the basis that the Sandringham exemption has been denied.
2. On this point the Commissioner referred to three cases. First, Massey v Crown Life Insurance Co [1977] EWCA Civ 12; [1978] 1 WLR 676 (CA), at 681 per Denning MR, where the inconsistency principle was applied to prevent a person from claiming damages as a dismissed employee where he previously agreed to become an independent contractor. The benefit of a previous status was retained.
3. Secondly, the VCAT decision in Re Harper and the Commissioner of State Revenue [2005] VCAT 325; (2005) 58 ATR 432 per RW Davis SM was cited on the inconsistency principle. Re Harper was a land tax decision which concerned the primary production exemption. With respect, the learned Senior Member at [36] extended the Richardson inconsistency principle in the following formulation:

Dixon J's statement is a clear statement of principle which prevents parties from changing their minds to take whatever position best suits them from time to time.

1. In Harper, a taxpayer asserted that her brother used land in a primary production business, when, for income tax purposes, she claimed to conduct a primary production business on the land herself. I do not find the decision persuasive on the inconsistency principle. There was no evidence that an existing advantage was retained.
2. The third case referred to by the Commissioner was not in point. The decision in Kloester v Commissioner of State Revenue [2016] VCAT 16 per Judge Jenkins concerned the assertion of beneficial ownership on the creation of inconsistent express and resulting trusts. Law on the sufficiency of trust-making intention for express trusts is not relevant to this case. See recent High Court authority in Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253.
3. Short of the inconsistency principle, the Commissioner asserted that evidence adduced by the applicant in favour of the PPR exemption for the Cheltenham Property counts as evidence against a PPR exemption for the Balnaring Property. Evidence of the applicant's PPR intention to make the Cheltenham Property her PPR and quasi-objective evidence as to the Cheltenham Property being her address for driver's licence and federal tax purposes cannot be ignored for this part of the appeal.
4. In support of the assertion that the applicant was entitled to a PPR somewhere and that if the Sandringham Property was not the PPR then it must have been the Balnarring Property, the applicant placed reliance on the decision of the New South Wales Administrative Appeals Tribunal in Yen-Cheng Chuang v Chief Commissioner of State Revenue [2009] NSWADT 160 ("Yen-Cheng"). I do not find the decision persuasive.
5. Yen Cheng was an appeal against land tax assessments and the disallowance of a PPR exemption in respect of land in New South Wales. Charging provisions of the Land Tax Management Act 1956 (NSW) and corresponding provisions of the LTA are similar. However, the definition of "principle place of residence" is different. Section 3 of the NSW Act provides.

"Principal place of residence" of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person.

1. Possibly, there is an implication in the NSW Act's PPR definition that there is, for each person, a residence which is that person's PPR.
2. By contrast, the corresponding s53 of the Victorian LTA headed "What is a principal place of residence?" contains no such implication. Sub-section (2) contemplates that none of a person's several residences may satisfy the PPR criteria.
3. Virtually no objective evidence was led in favour of the applicant having a Balnarring PPR in relevant years. Some objective evidence had a contrary effect. I do not accept the applicant's argument that a Balnarring PPR must be found if the Sandringham PPR is denied.