Davies v Protective Commissioner [2008] NSWADT 35 (21 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Davies v Protective Commissioner [2008] NSWADT 35


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Samuel Davies

RESPONDENT
Protective Commissioner



FILE NUMBERS:
073234

HEARING DATES:
8 November 2007

SUBMISSIONS CLOSED:
8 November 2007



DATE OF DECISION:
21 January 2008

BEFORE:
Hennessy N - Magistrate (Deputy President)





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Protected Estates Act 1983

CASES CITED:
Chief Commissioner of State Revenue v Aldridge & Anor [2003] NSWADTAP 50
McNally v Commissioner of State Revenue [2003] NSWSC 1118

TEXTS CITED:


APPLICATION:
Protected Estates Act - Protective Commissioner - powers as to property

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
APPLICANT
In person
RESPONDENT
T Tunbridge, solicitor


ORDERS:
The decision to pay the applicant an ex gratia amount of $1,686.00 is affirmed.


Reasons for Decision:

"Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person."

REASONS FOR DECISION

Introduction

1 Mr Davies has applied to the Tribunal for a review of a decision by the Protective Commissioner to give him an ex gratia payment of $1686.00. The Protective Commissioner paid Mr Davies that money as executor of his mother’s estate, to compensate the estate for the fact that the Protective Commissioner had not claimed an exemption from land tax for his mother’s principal place of residence for three years. Mr Davies says that the payment of $1686.00 was made on the assumption that his mother’s principal place of residence was in Marulan. He says that her principal place of residence for the three years was in Balmain and that on that basis, the Protective Commissioner should have given him a larger ex gratia payment.

Background

2 In July 1996 the Guardianship Tribunal appointed the Protective Commissioner to be the financial manager of Mrs Davies’ estate. Mrs Davies had dementia and her mobility was severely limited. The Public Guardian was also appointed to make decisions about issues such as where Mrs Davies should live. At that time she was living at a home owned by her in Balmain. In December 1996 she moved to another home she owned in Marulan where her adult children were living. The property that she lived in Marulan was not suitable for her needs and plans were made to renovate and repair it. In July 1997, before anything substantial was done to improve the property, Mrs Davies moved into a nursing home where she remained until she died in 2001.

3 On 17 July 1997 the Protective Commissioner advised the Office of State Revenue (OSR) of the land owned by Mrs Davies as at 31 December 1996 for the purpose of assessing her liability for land tax for the following year. As a general rule, a person is not liable for land tax on property which is used as their principal place of residence. An exemption can only be claimed for one residence. The Protective Commissioner identified the Balmain property as Mrs Davies’ principal place of residence and since the total value of Mrs Davies’ other properties did not reach the threshold, no land tax was payable. For the years from 1998 to 2001, the Protective Commissioner did not identify any of Mrs Davies’ properties as her principal place of residence and land tax of the following amounts were charged: 1998 - $4271; 1999 - $4,401.20; 2000 - $4,544,30; 2001- 4,807.30. The Protective Commissioner now concedes that he should have identified Mrs Davies "principal place of residence" to the OSR so that it was not included in her assessment for land tax.

4 On 22 August 2005 Mr Davies, who is the executor of his mother’s estate, lodged an objection to the assessment of land tax with the OSR. He told the OSR that the Balmain property was his mother’s principal place of residence and that she left it to go to a nursing home in June 1997. He also said that the Protective Commissioner had erroneously paid land tax on the Balmain property for the 1998, 1999 and 2000 tax years. Mr Davies failed to point out that his mother had lived in Marulan from December 1996 to June 1997. On 18 January 2006 the OSR reassessed land tax for the 2001 year, amended the assessment for that year, and repaid to Mrs Davies’ estate the full amount of land tax that is $4,807.30. The OSR said that it was too late for Mr Davies to object to the assessments for the previous years because an objection had to be made within 5 years of the initial assessment.

5 On 5 July 2006, Mr Davies wrote to the Protective Commissioner asking for re-imbursement of land tax for 1998, 1999 and 2000 because of his alleged mistake in not identifying the Balmain property as his mother’s principal place of residence at the relevant times. The Protective Commissioner sought advice from the OSR as to which of the properties would have been regarded as Mrs Davies principal place of residence. The OSR said that if Mrs Davies’ move to Marulan was sufficiently significant it would have meant that her principal place of residence had changed. According to the OSR, relevant factors would include whether Mrs Davies had moved her personal furniture and effects and whether she had actually occupied the Marulan property for the majority of the relevant period. The Protective Commissioner made some further enquiries and concluded that Mrs Davies principal place of residence had become the Marulan property. The Protective Commissioner asked the OSR what the tax liability would have been had the Marulan property been identified as the principal place of residence for the 1998, 1999 and 2000 tax years. The OSR advised that it would have been $1680.00 lower than the assessments that were made.

6 The Protective Commissioner decided to pay $1680.00 to Mr Davies on an ex gratia basis because of their mistake in not nominating Marulan as Mrs Davies’ principal place of residence. That is the decision that Mr Davies has asked the Tribunal to review. He says that the Protective Commissioner should have nominated the Balmain property as the principal place of residence. If that is the case, the OSR advised that Mr Davies would be entitled to a refund of the entire amount of land tax paid for those three years. He also sought interest on that amount.

Reviewable decision

7 Section 28A of the Protected Estates Act 1983 gives the Tribunal jurisdiction to review a broad range of decisions made by the Protective Commissioner. There was no dispute that the decision to make an ex gratia payment of $1680.00 to Mr Davies as executor of his mother’s estate, is a decision that the Tribunal has jurisdiction to review. The Tribunal’s role is to decide what the "correct and preferable" decision is having regard to the factual material before it and any applicable law: Administrative Decisions Tribunal Act 1997, section 63. The applicable law includes the law relating to Mrs Davies’ liability for land tax for the three years in question. The Protective Commissioner decided that Mrs Davies would not have been entitled to claim the Balmain property as her principal place of residence during the relevant period. On the basis that he regarded the Marulan property as her principal place of residence, the Protective Commissioner was only prepared to refund Mr Davies the land tax that had been overcharged as a result of the him not nominating the Marulan property as Mrs Davies principal place of residence. The Tribunal must decide whether that is the correct decision.

Relevant law

8 The law, which makes a principal place of residence exempt from land tax, has changed over the years. In the circumstances of this case, the Tribunal must apply the law as it was at the relevant time. The Land Tax Management Act 1956, section 7 provided that land tax is levied on the land value of all land in New South Wales that is owned by taxpayers other than land that is exempt from taxation under the Act. Section 8 provided that land tax is charged on land "as owned at midnight on 31 December immediately preceding the year for which the tax is levied." Mrs Davies owned both the Balmain and Marulan properties at the relevant times. Under section 10(1)(r) certain lands were exempt from tax if, relevantly, "the land is used and occupied as the principal place of residence of the owner of the land. ... and for no other purpose. ..."

9 Section 3(1) defined "principal place of residence" to mean " ... 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 that person." Section 3(3) provided as follows:

(3) For the purposes of this Act, in respect of any year in respect of which taxation is leviable or payable, land or a flat is not used or occupied as the principal place of residence of a person unless:

(a) that land or flat and no other land or flat has, since before the first day of July that last preceded the commencement of that year, been continuously used and occupied by that person for residential purposes and for no other purpose, or

(b) in any other case, the Chief Commissioner is satisfied that the land or flat is used and occupied by that person as the person’s principal place of residence.

10 In Chief Commissioner of State Revenue v Aldridge & Anor [2003] NSWADTAP 50, the Tribunal explained the scheme of the legislation at the relevant time in the following way:

(i) (to satisfy the principal place of residence definition in Section 3(1)) that land must be the one place of residence that is, among the one or more places of residence of owner within and outside Australia, the principal place of the owner (as midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied), and

(ii) (to satisfy Section 3(3)) (a) that land and no other land or flat must, since before the first day of July that last preceded the commencement of that year, have been continuously used and occupied by the owner for residential purposes and for no other purpose OR (b) in any other case, the Chief Commissioner must be satisfied that the land is used and occupied by the owner as the owner's principal place of residence (as midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied), and

(iii) (to satisfy Section 10(1)(r)) that land must be used and occupied (as at midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied) as the principal place of residence of the owner and for no other purpose except as provided in Section 10.

11 If any one of the conditions referred to above is not satisfied, Section 10(1)(r) of the Act will not apply.

Reasoning

12 The first requirement is that only the one "principal" place of residence is exempt from land tax. Mrs Davies resided in a nursing home from 1 July 1997 and remained there until she died in 2001. It does not appear that residing in a nursing home affected her entitlement to claim a tax exemption for a property that she owned but did not live in during that period. In their letter to the Protective Commissioner dated 24 July 2006, the OSR stated that, "Generally speaking, if the landowner retained the exclusive right to use and occupy the property as her principal place of residence, then the implicated land could be considered exempt even if she spent the majority of her time in a nursing home."

13 The question is which of the two properties owned by Mrs Davies at the relevant times was her principal place of residence. It is clear that the Balmain property was Mrs Davies’ principal place of residence before she moved to Marulan. In McNally v Commissioner of State Revenue [2003] NSWSC 1118 Gzell J said, at [43], that:

The Land Tax Management Act 1956 requires a decision to be made as to which of the premises so used is to be regarded as the principal place of residence. In my view, the plaintiffs have not discharged their onus of establishing that Mr McNally had relinquished Greenwich as his principal place of residence and had adopted the Noraville residence in its stead. I am of the view, therefore, that the plaintiffs have failed to establish their principal proposition.

14 When advising the Protective Commissioner, the OSR posed the question as to whether Mrs Davies’ move to Marulan was sufficiently significant to change her principal place of residence. The evidence in relation to Mrs Davies’ move was that she lived continuously in the Marulan property from December 1996 to June 1997 and received care services from an agency while she was there. Her son and her daughter both lived in Marulan at the time. The majority of Mrs Davies’ furniture and personal possessions were moved out of the Balmain property. An Occupational Therapist from St John of God Hospital in Goulburn visited Mrs Davies at Marulan on 8 and 12 May 1997 and reported that " ... Mrs Davies states very clearly during both my home visits, that she wishes to remain living in her present house and have modifications carried out to this house." Arrangements were made to have renovations carried out to the Marulan property. Before any major work was carried out, Mrs Davies moved into a nursing home.

15 Mr Davies questioned the decision made by the Public Guardian on Mrs Davies’ behalf, to move her to the property in Marulan. He said that there was ample evidence that the property was not suitable for her to live in, as there were stairs and an outside toilet. He said the Protective Commissioner was obtaining quotes to renovate the property but there had been no council approval for any renovation work. Mr Davies also submitted that the Protective Commissioner had an obligation to advise Mrs Davies of the land tax implications of moving from Balmain to Marulan under section 50 of the Protected Estates Act 1983. That provision sets out the circumstances in which the Protective Commissioner should consult with his or her relatives. According to Mr Davies if his mother had been given advice about the land tax implications of moving, she may have stayed in Balmain. The Protective Commissioner conceded that no such advice had been given but said that it was up to the Public Guardian to determine where Mrs Davies should live and it was not their role to act like a tax accountant.

Conclusion

16 The decision of the Protective Commissioner to pay an ex gratia amount of $1686.00 to Mr Davies was the correct and preferable decision. The evidence supports the Protective Commissioner’s assumption that Mrs Davies changed her principal place of residence in December 1996 from Balmain to Marulan. It is apparent that after she moved out of the Balmain property, she never intended to move back into that home permanently. The move to Marulan, although it turned out to be relatively short-lived, was not intended to be a temporary arrangement. The property in Marulan was her principal place of residence for the purpose of land tax exemption for the relevant period. The Protective Commissioner is not liable to pay Mrs Davies’ estate any further amount on the basis that it did not advise her of the land tax implications of changing her principal place of residence. The Public Guardian had the authority to determine where Mrs Davies should live and there was no breach of section 50 of the Protected Estates Act 1983 by the Protective Commissioner.

Order

The decision to pay the applicant an ex gratia amount of $1,686.00 is affirmed.