Surcharge land tax is separate from ordinary land tax
Revenue NSW states that foreign persons who own residential land in NSW can be liable to surcharge land tax in addition to ordinary land tax, and that the surcharge may apply even where the land is exempt from ordinary land tax. Do not assume the ordinary home exemption answers the surcharge question.
Who is treated as a foreign person?
Australian citizens are generally not foreign persons for this purpose. Revenue NSW’s current guidance states that a permanent resident can be treated as foreign unless the person satisfies the relevant ordinary-residence day-count test. The current guidance refers to being in Australia for 200 or more days in the relevant 12-month/calendar-year framework, depending on the statutory test being applied.
The taxing date matters
Surcharge liability is determined by reference to the statutory taxing date and the owner’s status. For historical assessments, use the law and administrative guidance applicable to the particular land tax year rather than applying today’s wording retrospectively without analysis.
Principal place of residence exemption
Revenue NSW distinguishes the ordinary land tax PPR exemption from the surcharge land tax PPR exemption. From 2023, the surcharge PPR residence requirement includes a physical-presence requirement in Australia for a continuous 200-day period, subject to statutory qualifications and the Commissioner’s limited waiver power for exceptional circumstances.
Travel records are often decisive evidence
Where the dispute turns on days in Australia, obtain official movement records, passport/travel material and a calendar calculation. Do not rely on memory. If the PPR issue is also disputed, collect evidence showing actual use and occupation of the property.
One day can matter
A threshold expressed in days is capable of producing a binary result. The legal question is not whether the owner was “mostly” resident but whether the statutory test for that year is satisfied, or whether another exemption or waiver provision applies.
Objecting to an assessment
Revenue NSW currently requires a formal land tax objection to be lodged within 60 days of the assessment notice issue date, although a late objection can be accompanied by reasons for the delay. The objection should identify the precise statutory test, the day-count calculation and the evidence relied upon.
What to assemble for advice
- Every assessment and reassessment for the affected years
- Visa or citizenship status for the relevant periods
- International movement records and travel calendar
- Evidence of occupation of the NSW property
- Any Revenue NSW correspondence and prior disclosures
- A year-by-year table of the disputed surcharge amounts
Official resources
- Revenue NSW — What is surcharge land tax?
- Revenue NSW — CPN 039 surcharge land tax and PPR
- Revenue NSW — Intended PPR exemption
- Revenue NSW — Land tax objections