Hu v Commissioner of State Revenue (Review and Regulation) [2025] VCAT 143

Background

This matter concerns the taxpayers’ (Mr Hu and Ms Chen) use and occupation of land they own in Box Hill for the 2020 and 2021 land tax years.

The taxpayers became the joint registered proprietors of the land on 27 December 2019. Following an investigation by the SRO in 2021, land tax assessment notices were issued to the taxpayers for the 2020 and 2021 tax years.

The taxpayers objected to the assessments on the grounds the land should be exempt from land tax because they intended to use and occupy it as their principal place of residence (PPR), but were prevented from doing so by COVID-19 restrictions, health concerns and later by storm damage to the property.

Issue

Whether the land was eligible for the PPR exemption in the 2020 and 2021 land tax years in:

• s54 (PPR) and/or s56(1A) (temporary absence – intending to resume occupation after the absence)
• s58 (exemption continues if land becomes unfit for occupation if previously exempt under s54 as the PPR, e.g. because of damage or destruction caused by various events, including a storm).

Decision

The Tribunal provided written reasons on 13 February 2025, finding in favour of the Commissioner, confirming the assessments under review.

The Tribunal found the PPR exemption in s54 of the Land Tax Act 2005 did not apply to the land for the 2020 and 2021 land tax years as on the taxpayers’ own evidence, they did not use and occupy the land as their PPR during any of the relevant liability periods.

Consequentially, the exemptions in ss56(1A) and 58(1) of the Land Tax Act were not enlivened in the circumstances because they are preconditioned on the land having been exempt under s54 or used as the taxpayers’ PPR for at least 6 months immediately before the absence.

The Tribunal also agreed with the Commissioner’s contention he was not required to give effect to any tax relief measure in the taxpayers’ circumstances.

The Tribunal also found that regardless, it does not have jurisdiction to consider the applicability of any such tax relief measure or to re-exercise the Commissioner’s general discretion to make or withdraw an assessment.