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In March 2020, the taxpayers let a property in Bentleigh East for a 12-month period and rented another property within a particular school zone in order to enrol their daughter in their preferred secondary school.


The issue was whether the taxpayers’ absence from the Bentleigh East property between March 2020 and March 2021 was temporary within the meaning of s56 of the Land Tax Act 2005 (LTA), and whether they satisfied the condition in s56(5) of the LTA that a person has not let the subject property for 6 months or more in the preceding calendar year.

The taxpayers did not dispute that the Bentleigh East property was let for approximately 9 months during the 2020 calendar year. However, they contended that there should be a discretion to apply the exemption on the basis that they wished to return to the Bentleigh East property within the 6-month period and would have done so if not for COVID-19-related restrictions imposed on them as landlords under the Residential Tenancies Act 1997.

The Commissioner submitted, among other things, that there is no discretion to vary the operation of s56(5) of the LTA.


By written reasons dated 9 September 2022, the Tribunal confirmed the Commissioner’s assessment of land tax for the 2021 land tax year and agreed that there is no discretion to vary the operation of s56(5) of the LTA.

The Tribunal also referred to its decision in Pitard and Others v Commissioner of State Revenue [2019] VCAT 1074 to confirm that the Tribunal cannot exercise any discretion on review about whether to assess a person to tax under the Taxation Administration Act 1997.

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