Australia, June 7 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. This is an application for review of a decision of the Chief Commissioner of State Revenue ("the Respondent") to assess surcharge land tax for land tax years 2020 to 2023 on Wai Ping Sun. She is the applicant in this matter ("Applicant").

2. The Applicant says that she is not liable for surcharge land tax. She says that she benefits from the exemption for land tax applying to a taxpayer's principal place of residence allowed under the Land Tax Management Act 1956 (NSW) ("LTMA"). In the Applicant's submission, the consequence is that she is also exempt from surcharge land tax. The Applicant also says that she qualifies for exemption by reason of s 5B of the Land Tax Act 1956 (NSW) ("LTA") because she is a "permanent resident".

3. The Respondent disagrees. The Respondent says that exemption from surcharge land tax can only apply if it can be claimed under s 5B of the LTA, regardless of exemption applying under the LTMA. The Respondent's further submission is that exemption does not apply under s 5B of the LTA because the Applicant was not a "permanent resident" during the relevant land tax years.

4. It was not disputed that the Applicant had satisfied the requirements of s 5B, other than that of being a "permanent resident".

5. Whether exemption from surcharge land tax can apply therefore depends on the answers to two questions. These questions are:

1) whether exemption under the LTMA for a taxpayer's principal place of residence has the consequence of also allowing exemption from surcharge land tax with nothing more;

2) if not, whether the Applicant was a "permanent resident" within the meaning of s 5B of the LTA during the land tax years in issue, such that she could claim exemption from surcharge land tax for those land tax years.

Background

6. On 30 June 2015, the Applicant was granted a Student (Class TU) Student Guardian (Subclass 580) visa. Subsequently, she came to Australia with her husband and daughter.

7. On 17 September 2015, the Applicant had obtained the approval of the Foreign Investment Review Board to purchase a residence pursuant to the Foreign Acquisitions and Takeover Act 1975 (Cth).

8. On 22 January 2016, the Applicant purchased land in New South Wales. That land contained a residence.

9. The Applicant moved to the residence on that land on 22 January 2016. It remained her only residence until 31 December 2024. It was used for no purpose other than as the residence of the Applicant, her husband and daughter.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196a39a6c5db92ad44953bc8)

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