Wang v Chief Commissioner of State Revenue

Material before the Appeal Panel

1. In support of their appeal the appellants relied on the written submissions they filed and served on 8 May and 1 June 2023. They also relied on the material they had provided to the Tribunal which was contained in the respondent's paginated Appeal Book.
2. Included in the respondent's paginated Appeal Book was a copy of: 1. the appellants' administrative review application. Attached to their application was a copy of the respondent's surcharge land tax assessments for Ms Wang and Mr Chen, 2. the respondent's s 58 documents, 3. the material relied on by the appellant and the respondent at the hearing before the Tribunal; and 4. the transcript of the hearing before the Tribunal.
3. In addition to the material contained in the paginated Appeal Book the respondent relied on his written submissions provided on 23 May 2023.

Undisputed facts

1. In its decision, at [8] to [18] the Tribunal provided the following summary of the undisputed evidence of Mrs Wang: 8 … [In summary], she said that in about 2012, she and Mr Chen migrated from Shanghai to Sydney. It is common ground that they jointly purchased the house in question and lived in it. Mrs Wang said that from 2016 to 2018, she and Mr Chen moved out of the house in order to live nearer the child's school, returning to live in their house in 2018. While living in rented accommodation, they rented their house to others. 9 The evidence indicates that from 8 August 2015 to 1 August 2018 the house was leased to various tenants, …. I accept that both spouses considered this a temporary arrangement, and that they lived elsewhere from about 8 August 2015 to about 1 August 2018. 10 She said that in 2019 they upgraded their kitchen, as they did not propose to rent the property out again. 11 In March 2017, she said, Mr Chen's mother had passed away in Australia, while visiting from China. She suffered from cancer. 12 In early 2020, Mrs Wang and Mr Chen travelled to Shanghai with their children in order to visit their surviving parents, who live there but have no other children living there. Mrs Wang explained that her parents were living in her brother's house in Shanghai, while her brother lived in the United States. Both parents, she said, are elderly, have serious health conditions and are in need of care. 13 She said that she and her husband had planned to return to Sydney in 2020, but flights were cancelled due to the COVID-19 pandemic. She produced an airline certification that her flight on 2 July 2020 had been cancelled for that reason. 14 She said that, rather than leave the Sydney house vacant while they were stranded in China, they caused their belongings to be stored, and rented it out on a temporary basis. 15 In September 2021, she and their child managed to secure a flight back to Sydney, and returned to live in their Sydney home. 16 Mr Chen, meanwhile, remained in Shanghai to look after Mrs Wang's parents, as it is the custom for children to look after their parents, the parents were in need of care, there was no other family member available to look after them, and if either of them was admitted to hospital, it might not be possible to return to China in time to see them before he or she passed away. Mrs Wang observed it might not even be permissible, given the strict quarantine requirements which persist in China. 17 At all times, Mrs Wang said, she and Mr Chen regarded the house in Sydney as their home, and intended to occupy and use it as their permanent residence. 18 Mr Chen has since remained in China, looking after Mrs Wang's parents.
2. At [20], the Tribunal noted: 20 Mrs Wang attended the hearing in Sydney in person. Mr Chen attended by telephone from China. For the Tribunal's assistance, they indicate that a table of days spent by each of them in Australia and overseas in each year from 2016 to 2021, reproduced in the Chief Commissioner's written submissions, was accurate. In summary, the table provided that: (1) Mr Chen had spent less than 200 days in Australia in 2016, 2017, 2018, 2019 and 2020, none at all in 2021, and none at all from 1 January 2022 to 30 June 2022, and (2) Mrs Wang had spent only 20 days in Australia in 2020, and 107 days in 2021.
3. A copy of that table is included in the written submissions of the respondent in this appeal. In this regard, we note that it is not disputed that in 2019, Mrs Wang was in Australia for 339 days. Prior to this, Mrs Wang was in Australia for 310 days in 2016, 317 days in 2017 and 315 days in 2018.
4. Mr Chen, on the other hand, was in Australia in 2016 for 51 days, in 2017 for 132 days, in 2018 for 76 days, 2019 for 93 days, 2020 for 18 days and did not return to Australia until sometime after November 2022.

The Tribunal's appeal jurisdiction

1. The decision of the Tribunal is an internally appealable decision that may be made as of right on a question of law or with the leave of the Appeal Panel on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 80(1) and 80(2)(b).
2. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) provides that an internal appeal must be lodged with the Tribunal within 28 days from the day on which the appellants were notified of the decision of the Tribunal, unless the Tribunal grants an extension of time to lodge the appeal at a later time, under s 41 of the NCAT Act.
3. In this case, the appellants say that they received notice of the Tribunal's decision on the same day it was published: 9 January 2023. Their appeal was lodged on 8 March 2023, which is more than the 28 days prescribed in rule 25(4)(c) of the NCAT Rules. Hence, they require an order, under s 41 of the NCAT Act, for time to be extended to 8 March 2023.

Should time be extended for the appellants to lodge their Notice of Appeal?

1. As the Appeal Panel has no jurisdiction to hear and determine the appellants' appeal without an order extending time within which they are to lodge their appeal, it is necessary to first deal with the appellants' application for an extension of time to lodge their appeal.

Relevant law

1. Section 41 of the NCAT Act provides: (1) The Tribunal may, of its own motion or on an application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
2. The principles to be applied by the Appeal Panel on applications for an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel relevantly said (citations omitted): 18 Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". … 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal); and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.

Period of delay and reasons for delay

1. In this case there is a 30-day delay in the appellants having lodged their appeal. In our view, this is not an insignificant delay.
2. In their Notice of Appeal, the appellants gave the following reason for the delay in lodging their appeal: I am asking for the help of a solicitor to apply for an exemption from REVENUE.
3. We understood from the appellants that they were unable to obtain any assistance from a solicitor. However, it was unclear what efforts, if any, were in fact made to consult a solicitor.

Prejudice - if any

1. The respondent did not oppose time being extended for the appellants to lodge their appeal. At the same time, the respondent submitted that the Tribunal must nevertheless be satisfied that an order extending time should be made. In this regard, the respondent referred to the decision of the Appeal Panel in Monisse v Chief Commissioner of State Revenue [2023] NSWCATAP 27, where, after considering the factors in favour of extending time, at [40], the Appeal Panel said that it would not be appropriate to extend time because the appeal had not demonstrated any merit.

Does the appeal demonstrate any merit?

1. As we have noted above, the appellants have a right to appeal on a question of law, and, otherwise, with the leave of the Appeal Panel: NCAT Act s 80(2)(b). This does not include, as we explained to the appellants at the hearing, a right to have their case before the Tribunal re-heard and determined. Instead, the onus is on them to identify: (a) an error by the Tribunal that raises a question of law; or (b) some other error warranting a grant of leave to appeal.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [12], the Appeal Panel said that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
3. We have carefully considered the appellants' grounds of appeal, and for the reasons we are about to give we find that no questions of law are raised. We are also not satisfied that the appellants have identified any other error by the Tribunal for which leave to appeal should be granted under the principles set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84].

Notice of Appeal

1. In their Notice of Appeal, the appellants said that they accept that they were liable for surcharge land tax during the time they rented out the Property.
2. As we have noted above, they contend that 'we can get an exemption for the period our family occupies in 2019, 2020, 2022.' In this regard the appellants said: For our family in the land tax years 2017, 2018 and 2021 due to the land tax during the rental of the house, we can only reluctantly accept, but in 2019 and 2020, and 2022, our family was living in the property, and this property, as the sole residence of our family should be exempted. As an arbitral tribunal, it is unfair that [it] did not mention in our case the multiple cases that we have raised that have been exempted. For example [2022] NSWCATAD 329, Mrs Du is also [exempted] because [her] parents are old, so she has been stranded in China for many years to take care of her parents … Mr Ji Chen, is also stranded in China entirely because of our elderly parents, and I have also provided their medical reports in China to explain their physical health, but unfortunately the arbitral tribunal did not admit this important evidence from us in its decision. …
3. The cases to which the appellants referred were: Du v Chief Commissioner of State Revenue [2022] NSWCATAD 329 (Du), Chan v Chief Commissioner of State Revenue [2021] NSWCATAD 266 (Chan), and Lawrence v Chief Commissioner of State Revenue [2022] NSWCATAD 266 (Lawrence).

Reply to Appeal

1. In his Reply to Appeal, the respondent noted that in the administrative review proceedings before the Tribunal, the appellants bore the onus of proving that the respondent's assessments should be set aside. Furthermore, that onus was borne by the appellants having regard to the provisions of the relevant statutory criteria in the Land Tax Act.
2. In regard to the appellant's grounds of appeal the respondent contended: 1. the Tribunal did consider the decision in Du and Chu and correctly determined that these cases were not relevant to the issues before the Tribunal; 2. the appellants did not refer to the decision in Lawrence in their submissions before the Tribunal - in any event it was not a decision to which the Tribunal was required to have regard to; 3. the Tribunal correctly applied the relevant authorities in respect of considering whether the Property was used and occupied as a principal place of residence of each applicant during the relevant land tax years; 4. the Tribunal was correct in determining that Mr Chen had not satisfied the requirements of s 5B of the Land Tax Act.

Relevant law

1. We note that in determining the appellant's administrative review application, the Tribunal was exercising its administrative review jurisdiction, where the onus was on the appellants to prove their case: NCAT Act s 30; Administrative Decisions Review Act 1997 (NSW) (ADR Act), ss 7, 8 and 9 and the Taxation Administration Act 1996 (NSW) ss 96 and 100(3).
2. We also note that the role of the Tribunal on administrative review is to sit in the shoes of the administrator (in this case the respondent) and determine afresh the correct and preferable decision having regard to the applicable law and the relevant factual material before it: ADR Act s 63.
3. In this case the relevant law is that contained in s 5B of the Land Tax Act. However, to understand the terms and application of that section it is necessary to also deal with the relevant provisions of the Land Tax Management Act 1956 (NSW) (LTM Act) and some of the other provisions of the Land Tax Act.
4. First, section 7 of the LTM Act provides that land tax is to be levied and paid on the taxable value of all land situated in New South Wales which is owned by taxpayers (other than land that is exempt from taxation under that Act). It is unnecessary to deal with the LTM Act exemptions in this case as the appellants had not been assessed liable for land tax as their respective half interest in the land did not exceed the tax threshold in Division 4 (formerly Part 4A) of Part 7 of the LMT Act.
5. Section 8 of the LTM Act provides that land tax is charged on land owned at midnight on 31 December (that is, the 'taxing date') in the year immediately preceding the year on which land tax is levied. A 'year' is defined in that section to mean the period of 12 months commencing on the first of January (that is, the 'levying date').
6. In Matiushenko v Chief Commissioner of State Revenue [2023] NSWCATAD 25, the Tribunal observed at [19] and [20]: 19 The liability to land tax, including surcharge land tax, arises by the direct operation of the Land Tax Management Act; it is not a tax imposed by the Chief Commissioner, rather the Chief Commissioner is obliged due to his general administration of the taxation laws to assess liability to land tax; Gunast v Chief Commissioner of State Revenue [2012] NSWADT 218 at [24]-[34]. 20 There is also no general discretion in the Land Tax Management Act allowing the Chief Commissioner to take account of circumstances that are not the subject of a specific exemption; Volpatti v Chief Commissioner of State Revenue (2007) 67 ATR 312; [2007] NSWADT 222 at [27].
7. Parliament introduced the imposition of surcharge land tax on residential land in 2016, by inserting s 5A into the Land Tax Act. As we have already noted, s 5A(1) of the Land Tax Act provides that surcharge land tax is payable in respect of residential land owned by a 'foreign person'.
8. As noted above, the meaning of the expression 'foreign person' is to be found in s 104J (1) of the Duties Act and ss 4 and 5 of the Commonwealth Foreign Acquisitions and Takeovers Act. In summary these provisions, to the extent they apply to the LTM Act and Land Tax Act, provide that: 1. a 'foreign person' is an individual not 'ordinarily resident' in Australia: Foreign Acquisitions and Takeovers Act s 4; and 2. an individual who is not an Australian citizen is not 'ordinarily resident' in Australia as at the 'taxing date' (midnight on 31 December immediately preceding the year for which land tax is levied) because the individual has actually been in Australia during 200 or more days in the 12 months immediately preceding that date: Foreign Acquisitions and Takeovers Act s 5 and Land Tax Act s 5A.
9. For example, in this case, as at midnight on 31 December 2016, Mr Chen, was a 'foreign person' because as at this date he was not an Australian citizen and he had not actually been in Australia during 200 days or more in the 12 months before this date (that is, during 2016).
10. Section 5A(2) of the Land Tax Act provides that surcharge land tax is to be charged, levied, collected and paid under the provisions of the LTMA: in respect of the taxable value of all the residential land owned by the foreign person at midnight on 31 December in any year (commencing with 2016), … for the period of 12 months commencing on 1 January in the next succeeding year …
11. Section 5A(3) of the Land Tax Act provides that surcharge land tax is payable in addition to any land tax payable in respect of residential land under the provisions of the LTM Act, and is also payable even if no land tax is payable under those provisions.
12. Section 5A(4) of the Land Tax Act makes provision for the application of surcharge land tax in respect of residential land that is partly owned by a person who is not a foreign person and that which is jointly owned by two or more foreign persons as follows: (4) The Principal Act applies to surcharge land tax in respect of residential land owned by a foreign person subject to the following - (a) surcharge land tax is payable as if the residential land were the only land owned by the foreign person, (b) if the residential land is also owned by a person who is not a foreign person, the taxable value of the land is to be reduced to the proportionate value of the interest in the land of the foreign person, (c) if the foreign person is a joint owner of the residential land, the person is to be individually (and not jointly) assessed and is liable in respect of the value of the person's proportionate interest in the land as if the person were the owner of a part of the land in proportion to the person's interest (and accordingly section 27 (2)-(4) of the Principal Act does not apply), … (g) the person is exempt from liability to pay surcharge land tax in respect of the land for a land tax year because the land is the principal place of residence of the foreign person (and accordingly sections 9C and 9D of the Principal Act operate to reduce the land value of the land if it is the principal place of residence of the person) only if the person is eligible for the exemption under section 5B, (h) the tax thresholds under Division 4A of Part 7 of the Principal Act do not apply to surcharge land tax, … (i) any other modification prescribed by the regulations under the Principal Act applies to surcharge land tax.
13. In this case, in accordance with s 5A(4)(c), the respondent separately assessed Mrs Wang and Mr Chen in accordance with their notional 50% interest in the Property.
14. Section 5A(5) of the Land Tax Act makes provision for the circumstances where the 'foreign person' defaults in the payment of surcharge land tax. In such cases where the defaulting 'foreign person' is a joint owner of the land, any other owner (whether a foreign person or not), will be responsible for the payment of that tax, on being served with a notice by the respondent requiring payment of the surcharge land tax.
15. In 2017, s 5B was inserted into the Land Tax Act by cl 4 of Sch 2 of the State Revenue and Other Legislation Amendment (Budget Measures) Act 2017 (NSW), which provided for the principal place of residence exemption to apply to the assessment of land tax in respect of the 2018 land tax year and subsequent years.
16. In May 2022, Parliament inserted sub-sections 5B(2A) and (2B) into the Land Tax Act: see State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022 (NSW) Sch 5 cl 1. While these subsections came into effect upon royal assent (19 May 2022) to that Act, this post-dates the date on which Mr Chen and Mrs Wang's liability for surcharge land tax arose for that land tax year and were not relied on by the respondent before the Tribunal or in these proceedings. Hence, we have not considered these any further, other than to note that they do not alter the findings made by the Tribunal.
17. As can be seen from the terms of s 5B(1) the requirements (only requirements) to be eligible for the exemption to surcharge land tax in any relevant land tax year are: 1. the person is a permanent resident at midnight on 31 December of the previous year. In this case there is no dispute that Mr Chen was a permanent resident at midnight on 31 December of the year immediately prior to the 2019, 2020 and 2022 land tax years; 2. the respondent is satisfied that, during the land tax year, the person intends to use and occupy the land as the principal place of residence of the person in accordance with the residence requirement (the latter being a continuous period of 200 days in the land tax year). Regarding this requirement, we note: 1. a land tax year commences on 1 January of that year; 2. on its proper construction, a person's intention in s 5B(1)(b) is to be objectively assessed having regard to the specific terms of that section; 3. an intention to use and occupy the land as the principal place of residence in accordance with the residence requirements means an intention to actually use and occupy the land as the principal place of residence in accordance with the residence requirements; and 4. where a person has not actually used and occupied the land as the principal place of residence in accordance with the residence requirement, the person is to be assessed or re-assessed for surcharge land tax; and 1. the person lodges a declaration with a land tax return required to be furnished under s 12 of the LTM Act. The provision of a declaration was not a matter in issue in the proceedings before the Tribunal.
18. The term 'principal place of residence' is defined in s 3(1) of the Land Tax Management Act to mean: 'the one place of residence that is, among the one or more places of residence of the person within and outside of Australia, the principal place of residence of the person.'
19. As noted by the Tribunal, at [45], citing Chief Commissioner of State Revenue v Ferrington [2004] NSWCATAP 41, a person's principal place of residence is ultimately a question of fact that is to be determined objectively from the material before the Tribunal: see also Yen-Chen Chuang v Commissioner of State Revenue [2009] NSWADT 160 at [19]-[22].

The appellants' grounds of appeal

1. At the hearing, Mr Chen pressed on us that the Property was his home and that of Mrs Wang and their child. It was their only home and as noted above, he asserted that his family was living there during 2019, 2020 and 2022.
2. Mr Chen also pressed on us the importance, in his culture, and that of Mrs Wang, of a child's duty to care for and look after his/her parents when they are elderly and in need of care. He stressed that it was for this reason, together with the COVID-19 restrictions which prevented him from returning to Australia and his home for the required 200 days in 2019, 2020 and 2022. This he said was unfair, when similar circumstances had been taken into account in the cases they had presented to the Tribunal.

Do the appellants' grounds of appeal demonstrate any merit? Ground 1 - In 2019, 2020 and 2022 the Property was the sole residence of the appellants and should be exempt

1. The Tribunal accepted that the Property was the only property owned by the appellants. However, it did not accept that it was the sole, or principal place of residence of Mr Chen or Mrs Wang during the relevant land tax year because Mr Chen or Mrs Wang did not use and occupy the Property as their principal place of residence in accordance with 'the residence requirement' in s 5B.
2. As we have already noted, on its proper construction, there are two aspects to the application of the s 5B exemption. These are: 1. an intention to use and occupy the Property as the principal place of residence for a continuous period of 200 days in the land tax year (s 5B(1)(b)); and 2. to use and occupy the Property as the principal place of residence for a continuous period of 200 days in the land tax year (s 5B(3)).
3. In this case, for the 2019 and 2022 land tax years, the Tribunal accepted that Mr Chen had a 'desire' and 'intention' to reside in the Property with his family 'as soon as his family circumstances allowed': see at [6] above. This acceptance, however, is not a finding that Mr Chen had the requisite intention to use and occupy the Property as his principal place of residence for a continuous period of 200 days in the 2019 and 2022 land tax years.
4. In our view, it is no more than an acceptance of subjective views of Mr Chen which were conditional on his family circumstances. These circumstances, the Tribunal found, did not force Mr Chen to remain in China during the 2019 and 2022 land tax years: Tribunal's decision at [51]. Instead, the Tribunal found that Mr Chen had chosen to remain in China to look after his parents-in-law and on this basis, the Tribunal it found that Mr Chen did not use and occupy the Property as the principal place of residence for a continuous period of 200 days during the 2019 and 2022 land tax years.
5. While the Tribunal's approach might be criticised in that it is well established that the personal circumstances of the person is of no relevance to determining whether the resident requirements in ss 5B(1) and (3) are met (see Lawrence at [38]), in our view, the conclusion reached by the Tribunal is correct. We have dealt with the issue of personal circumstances in more detail below.
6. Regarding the 2020 land tax year, it is difficult to see how, for that land tax year, that there are any grounds on which Mr Chen could appeal the Tribunal's decision that the s 5B exemption applied. The undisputed evidence was that from about 18 January 2020 to the end of that year the Property was rented/leased to tenants. At [57] and [58] of its decision the Tribunal correctly found that the 2020 tenancy of the Property was inconsistent with a use and occupation of the Property by Mr Chen and Mrs Wang as their principal place of residence during that land tax year: see Chief Commissioner of State Revenue v Aldridge [2003] NSWCATAP 50.
7. We understand Mr Chen to also assert that as his family (Mrs Wang, and his son) did use and occupy the Property as their principal place of residence for a period that exceeded 200 days during the 2019 land tax year and again in the 2022 land tax year, he as a member of his family should be entitled to claim the exemption in s 5B.
8. As explained above, Mr Chen and Mrs Wang were each assessed individually, under s 5A(4)(c) of the Land Tax Act, in accordance with their respective proportionate interest in the Property. Hence, Mrs Wang's intended use and occupation and actual use and occupation of the Property during a land tax year, is of no relevance to Mr Chen's intended use and occupation and actual use and occupation of the Property during the same land tax year: Song v Chief Commissioner of State Revenue [2023] NSWCATAD 301 at [59]
9. Accordingly, we find that this ground of appeal by the appellants does not demonstrate any merit. The conclusions reached by the Tribunal were clearly open to it on the evidence and the applicable law. Ground 2 - Failure to take into account the personal circumstances of the appellants
10. The Tribunal dealt with the appellant's circumstances in some detail. These circumstances being the reasons why Mr Chen had remained in China and not returned to Australia to use and occupy the Property as his principal place of residence for a period of 200 days during each land tax year. These circumstances, including the very poor health of his parents-in-law, were not disputed. The Tribunal found that the appellants' conduct was understandable, and they were commended for the choices they had made.
11. We understand that the appellants may have misunderstood the remarks of the Tribunal concerning their personal circumstances and the relevance of these to the issues for determination by the Tribunal. Nevertheless, at [23] to [25] of its decision, the Tribunal clearly identified what these issues were. Simply put, they were whether Mr Chen and Mrs Wang were entitled to claim the s 5B exemption for the land tax years for which they had been assessed to be liable for surcharge land tax under s 5A. As we have noted, the s 5B exemption only became available for the 2018 land tax year.
12. At [24] of its decision, the Tribunal went to say, that the specific issue for determination was whether the appellants had failed to satisfy the eligibility criteria in s 5B(1)(b), because the residence requirement in s 5B(3) had not been met and no intention to meet it had been proven.
13. As we have already noted, the principal place of residence exemption from surcharge land tax is available 'only if' the requirements (eligibility criteria) of s 5B(1) are met. These requirements include the matters prescribed in s 5B(1)(b), which must be read together with s 5B(2) and (3). As can be seen from the terms of these subsections they are very specific in their terms and are limited to an intent to use and occupy the land as the person's principal place of residence in accordance with 'resident requirement' and an actual use and occupancy of the land as the person's principal place of residence in accordance with 'resident requirement'. If these terms are not satisfied, neither the LTM Act, nor the Land Tax Act make provision for a person's personal circumstances to be taken into account.
14. Hence, it is for this reason that the Tribunal has held a number of times that the personal circumstances of the tax-payer are of no relevance in determining whether s 5A or 5B apply: see for example; Sjarifudin v Chief Commissioner of State Revenue [2021] NSWCATAD 347 at [47], Wei v Chief Commissioner of State Revenue [2023] NSWCATAD 161 at [27(2)], Song at [80], Chu at [30], Lawrence at [38], Du at [47] and Matiushenko at [20].
15. Accordingly, we find that this ground of appeal by the appellants does not demonstrate any merit. Ground 3 - It was unfair that the Tribunal did not mention the cases they had presented where circumstances similar to the appellants had been taken into account
16. The Tribunal's reasoning answers Mrs Wang's submission that it should 'reduce the amount of tax payable and impose a 'fair amount' having regard to the circumstances in which the spouses found themselves'. The Tribunal said at [35] in its decision: 35 The legislation does not provide a discretion to the Chief Commissioner, or to the Tribunal on review, to exempt a taxpayer from the payment of surcharge land tax in respect of any tax year, or to reduce the amount of tax payable. That is so, even if the taxpayer is absent from Australia either for reasons beyond his control, or for other good reason. There is likewise no discretion to exempt a person from tax, or to reduce the tax payable, on the grounds of unfairness, or failure by the Chief Commissioner to warn the taxpayer in advance that surcharge land tax is or might become assessable: Du v Chief Commissioner of State Revenue [2022] NSWCATAD 329; Galle v CCSR [2022] NSWCAD 285, Chu v CCSR [2021] NSWCATAD 238.
17. While this remark was made in the context of Mr Chen's liability for surcharge land tax, under s 5A of the Land Tax Act, for the 2017 land tax year, for the reasons we have already given the remark equally applies to the exemption in s 5B of the Land Tax Act: see at [67] and [68] above.
18. Again, the appellants have not pointed to any provision in the Land Tax Act or the LTM Act that makes provision for the Tribunal (or the respondent before it) to take into consideration fairness when determining whether Mr Chen was entitled to the exemption to surcharge land tax under s 5B for the 2019, 2020 or 2022 land tax years.
19. Regarding the contention of the appellants that the Tribunal failed to mention the cases they had presented at the hearing, it is well established that the Tribunal is not bound to deal with these if they are not relevant to the matters in issue before it.
20. In this case, the Tribunal did deal with the decision in Chu at [54] and [55] in its decision and found that the Tribunal's decision in Chu was not authority for the proposition that a person who is unable to meet the 'residence requirements' in s 5B due to work commitments overseas is immune from surcharge land tax. As explained by the Tribunal, the issue for determination by the Tribunal in Chu was whether a cost order should be made in favour of Ms Chu when the respondent had conceded two days before the hearing, that Ms Chu was entitled to claim the exemption. That entitlement arose after Ms Chu had provided her evidence. What that evidence was, is not explained in the decision.
21. We can see no error in the Tribunal's reasoning in this regard. The decision of the Tribunal in Chu was clearly of no relevance to the issues for determining by the Tribunal in this case.
22. We make the same finding regarding the decisions of the Tribunal in Du and Lawrence. While the decisions in Du and Lawrence are relevant to a person's liability to surcharge land tax, under s 5A of the Land Tax Act, they are of no relevance to a person's entitlement to the exemption to surcharge land tax under s 5B of that Act.
23. In Du, to which the Tribunal referred at [35], the applicant was the owner of two residential properties, in New South Wales, during the relevant land tax years. After the applicant had lodged her application for administrative review, the respondent accepted that one of the properties was exempt under s 5B. Why and on what basis the respondent accepted that property as being exempt is not dealt with by the Tribunal in the decision. Nor was the Tribunal required to do so, as Ms Du's liability for surcharge land tax regarding that property was no longer a matter in issue.
24. The applicant in Lawrence was also an owner of two residential properties, in New South Wales, during the relevant land tax years, where, prior to the hearing before the Tribunal the respondent accepted that one of the properties was exempt under s 5B. Again, why and on what basis the respondent accepted that property as being exempt is not dealt with by the Tribunal in the decision. Nor was the Tribunal required to do so.
25. Accordingly, we find that this ground of appeal by the appellants also fails to demonstrate any merit.

Conclusion as to whether the appellants have demonstrated that their appeal has merit

1. That the appellants are dissatisfied with the outcome of the hearing before the Tribunal, is understandable.
2. However, for the reasons set out above, we find that the appellants' grounds of appeal do not demonstrate any merit.
3. While the Tribunal might be criticised for not finding that Mr Chen's reasons for not meeting the 'resident requirement' in s 5B(1) were irrelevant, the conclusions reached by the Tribunal in regard to the 2019, 2020 and 2022 land tax years were, in our view, correct having regard to the task that was before the Tribunal in determining the correct and preferable decision: ADR Act s 63(1). That is, even if we were to grant an extension of time for the appellants to lodge their appeal on the grounds that the Tribunal erred in this regard, an appeal would be futile as it would not alter the conclusion reached by the Tribunal that Mr Chen was not entitled to claim the s 5B exemption because he did not meet the 'resident requirement' during the relevant land tax years.
4. Hence, we find that the appellants' grounds of appeal do not demonstrate any merit.

Conclusion as to an order extending time within which the appellants are to lodge their appeal

1. For the reasons set out above, we have found that: 1. the delay in the appellants lodging their appeal is not insubstantial, 2. the reasons for the delay have not been satisfactorily explained, and 3. while the respondent does not object to time being extended, the appellants have not demonstrated that their appeal has merit.
2. Hence, on this basis, we are not satisfied that the appellants have demonstrated that we should exercise our discretion, under s 41 of the NCAT Act and extend time and we make an order accordingly.

Orders

1. For the reasons set out above, we order: 1. The appellants' application for an extension of time to lodge their appeal is refused.

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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023