Tax Files: Is a home residential? By Paul Tanti

Is a home residential?

PAUL TANTI, PARTNER, THOMSON GEER

Under section 71DC of the Stamp Duties Act, no stamp duty is payable on transactions involving what is commonly referred to as ‘commercial land’. Technically, no duty is payable on ‘Qualifying Land’. Qualifying Land is land that is not used for residential or primary production purposes.

Issues constantly arise regarding land which does not fit neatly into the ‘used for residential or primary production’ categories? One such issue involves land which is used to provide accommodation for people with various forms of physical or mental disability or whose circumstances requires them to reside in purpose-built accommodation. In this article, such facilities are referred to as ‘residential facilities’.

At one extreme a residential facility would include a prison. On one view, it provides accommodation (short, medium or long term) for people who are required to reside there. Even though it is where people reside, it is generally accepted that a prison would constitute an institution, rather than a residence, and therefore the transfer of a prison would constitute the transfer of Qualifying Land.

Residential facilities are becoming more common. Such facilities are often located in the general community rather than in isolated, old fashioned, large institutions (such as mental hospitals or homes for physically or mentally disabled).

Such facilities can be small, 3-4 residents, which are specially designed to accommodate the residents’ requirements. For example, ramps rather stairs, larger doorways to accommodate beds and wheelchairs, supports in bathrooms and walkways and the provision of 24/7 live-in carers. Commonly, personal management services are also provided. These may include arranging travel to and from doctor’s appointments, hairdressers and work, assisting with arranging personal finances and a range of other requirements depending on the resident’s needs.

Other residential facilities can be much larger. These large facilities vary. Resident’s rooms may be just a bedroom or may include a private bathroom and a separate kitchen. Often there are large common areas which provide kitchen and recreation areas. A range of personal services are also provided. Such facilities are often operated by a profit-making business.

Questions arise as to which, if any, of such properties, would be exempt from stamp duty on the basis that they are not used for residential purposes and therefore, are Qualifying Land.

Section 71DC refers to the use of land for residential or primary production purposes. However, the section does not refer to which entity’s use is relevant. Depending on the circumstances, the relevant use could be that of the owner of the land, the lessee of the land, the operator of the business conducted from the land and the resident themselves. Arguably, the resident uses the facility for residential purposes but the others use it for a profit making or altruistic purpose.

If there is a distinction to be drawn between a smaller 3-4 person specially designed house compared to a larger 50+ room facility, what are the relevant factors to be taken into account if one is found to be used for residential purposes and one held to be Qualifying Land? Is it the number of residents, the size of the facility, the level of services provided or a combination of these factors?

RevenueSA has released Information Circular 103 which provides some assistance. If the land on which the residential facility is situated comes within certain Land Use Codes (LUC), it will be exempt from duty.

However, the more common circumstances are that residential facilities are situated on land which allows both residential and non-residential use and must be submitted to the Commissioner for assessment.

It is understood that RevenueSA’s current view is that it is the use by the resident which is the determining factor and therefore, such facilities would be held to be used for residential purposes and therefore subject to stamp duty.

Some of these facilities may be subject to the Supported Residential Facilities Act 1992 (SA). Query whether this would be a determining factor in deciding whether the land was being used for residential purposes.

It is understood these issues are being considered and may result in the Supreme Court considering the matter. Hopefully this will provide some clarity on what type of facilities will constitute Qualifying Land and what the relevant factors are. B

Raising the bar for respectful behaviour

WELLBEING & RESILIENCE COMMITTEE

It is well understood that bullying and harassment is prevalent in the legal profession. In a survey conducted by Lawyers Weekly, one in three respondents stated that law firm partners are particularly prone to bullying junior staff.1 More than two thirds stated that they had witnessed bullying at their firm.

Several surveys and inquiries have revealed unacceptable bullying and harassment behaviour by lawyers and judges. Victorian Supreme Court, Justice Anne Ferguson, responding to a Victorian Bar Association survey into judicial bullying.2 said courts were no different to other workplaces and “should be safe and respectful”. The same obviously goes for law practices.

Not only is bullying and harassment completely unacceptable, but it is specifically prohibited in the Australian Solicitors’ Conduct Rules.

THE COST OF BULLYING AND HARASSMENT

The impacts on the individual can be severe, which ripples out to impact the profession. Everyone is affected by bullying and harassment.

More than half of bullied respondents have left, or are considering leaving their workplace. One in seven bullied respondents have left, or are considering leaving, the profession altogether.3

Beyond Blue have conducted extensive research into bullying and harassment in Australian workplaces. They found that the victims have greater risk of both physical health problems (such as headaches, obesity, stomach aches and chest pains) and mental health problems (such as depression, anxiety, chronic stress and thoughts about suicide).4 Victims reported feeling exhausted, afraid, sad, angry, unmotivated, upset and isolated. Many have symptoms of Post-Traumatic Stress Disorder. One study concluded that 10-20% of employees who had experienced bullying either contracted a serious illness or committed suicide.

There can also be somewhat of a vicious cycle at work too – victims of bullying may engage in health compromising behaviours as a way of coping with the stress and trauma of what has happened. This might mean increased use of alcohol and other drugs or perhaps withdrawal from colleagues, friends and activities the person once enjoyed. It would be surprising if the victim’s work performance did not suffer which, somewhat predictably, may then lead to further bullying and harassment. They might manage the situation by cutting back their work hours or changing jobs, potentially to their own financial detriment, and this may produce a range of other stressors. Obviously, these experiences can flow into negative impacts on family and other parts of life.

SPEAK UP

If you have experienced or witnessed bullying behaviour or harassment in your workplace, there are a range of reactions you might have had and, as you can see from the studies cited above, these reactions are all normal.

If you have current or past experiences of bullying and/or harassment, managing and addressing your wellbeing is key to your management strategy. Ideally, you might be able to address your situation with the support of your manager, HR Department, or Health & Safety Representative. Of course, there can be many factors which prevent people from reporting these experiences within their workplace. But even if you decide not to raise it internally, there are still lots of support options available.

WHERE TO GET HELP

If you are dealing with mental health issues as a result of being mistreated at work, or for any others issues, there are a range of support services: • Refer to the Heads Up website – a joint initiative of Beyond Blue and the

Mentally Healthy Workplace Alliance • Access a mental health care plan through your GP to receive subsidised sessions with a psychologist • Contact Beyond Blue by phone (1300 22 4636), online chat, email or online forum • Employee Assistance Program at your workplace (if you have one) • Law Care – free and confidential sessions • Contact Ms Deslie Billich at the Office of the Legal Profession Conduct

Commissioner for an informal, confidential (or anonymous) enquiry (08 8456 8870 or bdh@lpcc.sa.gov.au) • Contact Mensline by phone (1300 78 99 78), chat or video call • Suicide Call Back Service by phone (1300 659 467), chat or video call • For advice and information, contact

Safe Work SA or the Fair Work

Commission • Resources on the Law Society website.

BE PART OF THE CHANGE

The 2016 Australian of the Year, Lieutenant General David Morrison once said: “The standard you walk past, is the standard you accept”.

It is incumbent on all of us, as members of this profession, to look out for each other, even when doing so is uncomfortable.

The Wellbeing and Resilience Committee is committed to creating a community of support in the South Australian legal sector, through education, initiatives and support. There are no innocent bystanders when it comes to bullying and harassment. We each have choices to call out bad behaviour and to lead by example. With each voice that is heard, whether it be a victim or a bystander, we can overcome the wrongs of the past and set higher standards of behaviour for our current and future selves.

Endnotes 1 ‘Bullying ‘pandemic’ in law firms’, Lawyers

Weekly (4 March 2013), https://www. lawyersweekly.com.au/news/12295-bullyingpandemic-in-law-firms. 2 Freya Michie, ‘Almost Two Thirds of Victoria’s

Barristers Say They’re Bullied in the Courtroom’,

ABC News (Sydney, 18 October 2018), https://www.abc.net.au/news/2018-10-18/ barristers-complain-of-bullying-judges-andmagistrates/10393470. 3 Us Too? Bullying and Sexual Harassment in the

Legal Profession (May 2019), International Bar

Association 4 https://www.headsup.org.au/healthyworkplaces/workplace-bullying