Thomas Love v CSR [2014] VCAT 476
This land tax matter concerned whether the subject land, of which a mortgagee was in possession, qualified for a primary production land (PPL) exemption, and whether that land should be aggregated with the applicant’s other properties for the purpose of calculating land tax for the 2012 land tax year.
The Tribunal found in favour of the Commissioner on the basis that the subject land was not being used as PPL at the relevant time, being midnight 31 December 2011. After termination of an agistment agreement in place between the applicant and his bank (as mortgagee in possession), the applicant had no right to carry out further activities on the subject property. The Tribunal also affirmed that whether or not primary production is being conducted is to be determined objectively, and not by reference to the subjective attitude of the applicant.
Further, s. 43 deals only with the ‘rate’ of land tax to be paid when a mortgagee is in possession. It does not deal with what the use and tax consequences may have been had the mortgagor remained in possession.
Notwithstanding a mortgagee was in possession, there was no reason for the subject land not to be aggregated with the applicant’s other landholdings for the calculation of land tax in accordance with s. 36.
