Australia, June 5 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. On 10 July 2024 the applicant was assessed by the respondent as being liable for surcharge purchaser duty, market interest and premium interest ("the Decision") in respect of the purchase of his interest in a property in Panania ("the Property").

2. The applicant has lodged an application for review on the basis that he could not return to Australia to reside at the Property due to Covid-19 lockdowns, his medical condition and because his children would have had to leave their school if the family was required to move.

3. The respondent's submission is that the applicant is liable to pay surcharge as he was a foreign person at the time he purchased the Property and did not satisfy the requirement for exemption by using and occupying the Property as his principal place of residence for a continuous period of 200 days within 12 months after the purchase. Further, that there is no basis to remit the market and premium interest imposed as the applicant has not established that the tax default was due to exceptional circumstances or that he took reasonable care to comply with his tax obligations.

4. The issues for determination are whether the applicant can claim exemption from the surcharge purchaser duty and is liable for the market and premium interest imposed.

Background

5. The applicant is a citizen of Vietnam. He is a permanent resident of Australia on an employer nomination visa. On 29 February 2020 the applicant and his wife, Ms Ha entered into a contract to purchase the Property. On 6 March 2020 the contract to purchase the Property was processed under the Electronic Duties Return System. No foreign interest was declared in the Property. Settlement occurred on 20 April 2020.

6. In the twelve month period prior to 29 February 2020 the applicant spent 159 days outside of Australia. In the twelve month period following 29 February 2020 the applicant spent 12 days in Australia.

7. On 11 April 2024 the respondent issued a notice of investigation to the applicant in respect of a potential liability for surcharge purchaser duty for the purchase of the Property. The respondent advised the applicant that he was liable for surcharge purchaser duty in respect of the purchase of the Property and issued a Duties Notice Of Assessment. On 10 July 2024 the respondent withdrew the assessment issued on the 4 July 2024 and issued a new assessment in the amount of $55,368.38 being surcharge purchaser duty of $39,600 and interest of $15,700.38. The new assessment recognised that the applicant was liable for surcharge purchaser duty on his 50% interest in the Property not on the 100% as initially assessed. The new assessment was made based on an error raised by Ms Ha, the applicant's wife who is an accountant. On 31 July 2024 the applicant lodged an objection to the assessment. On 8 August 2024 the respondent disallowed the applicant's objection.

8. The evidence before the Tribunal was not contentious. It consisted of an affidavit made by the applicant on 19 November 2024 and numerous annexures to it. The respondent relied on material filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1969db374ad3f20710e33578)

Disclaimer: Curated by HT Syndication.