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Date of judgement | 19 June 2013 |
Proceeding number | 126076 |
Judge(s) | NS Isenberg, Judicial Member |
Court or Tribunal | Administrative Decisions Tribunal |
First Home Owners Grant - First Home Plus Scheme - residence requirement - reversal by administrator - penalty and interest
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Philpott v Chief Commissioner of State Revenue [2008] NSWADTAP 18
Trust Co. of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21
The Applicant sought review of a decision of the Chief Commissioner of State Revenue (the Chief Commissioner) requiring him to repay a First Home Owner Grant paid under the First Home Owner Grant Act 2000, together with a penalty of 20%. The Applicant also sought review of a decision of the Chief Commissioner to revoke the duties exemption granted to him in accordance with the First Home Plus Scheme under the Duties Act 1997 (the Duties Concession).
The Applicant entered into a tenancy agreement with the vendors of the property for a period of 10 months, commencing 2 days after completion of the purchase, and entered into a second tenancy agreement with another tenant after the vendor vacated the property. During the first tenancy, the Applicant claimed to have lived in the property with the vendor’s family in order to fulfil the respective statutory requirements.
Judicial Member Isenberg confirmed the Chief Commissioner’s decisions to recall the First Home Owner Grant and charge a 20% penalty. Judicial Member Isenberg also upheld the Chief Commissioner’s decision to revoke the Duties Concession and to charge both the market and premium rates of interest on the duty payable.
On 4 November 2009, the Applicant purchased a residential property in Minchinbury (“the property”). The Applicant applied for and received the First Home Owner Grant (“the Grant”) of $14,000 and a Duties Concession of $13,500 in relation to the property on the basis of fulfilling the statutory residence requirements under s.12 of the First Home Owners Grant Act 2000 and s.76 of the Duties Act 1997.
The Applicant entered into a tenancy agreement with the vendors of the property for a period of 10 months (commencing on 6 November 2009) and commenced a second tenancy agreement with another tenant on 19 January 2011 after the vendor vacated the property. During the first tenancy, the Applicant claims to have lived in the property with the vendor’s family in order to fulfil the respective statutory requirements.
The Chief Commissioner contended that the Applicant failed to meet the statutory residency requirement, which provides that the Applicant must commence occupation of the residence within 12 months of settlement and occupy the home for a continuous period of at least 6 months. As such, the Chief Commissioner sought repayment of the Grant and the concession.
Judicial Member Isenberg confirmed the Chief Commissioner’s decisions to recall the First Home Owner Grant and charge a 20% penalty. The Tribunal also upheld the Chief Commissioner’s decision to revoke the Duties Concession and to charge both the market and premium rates of interest.
Kozman v Chief Commissioner of State Revenue [2013] NSWADT 143