|Date of judgement||9 September 2014|
|Judge(s)||NS Isenberg, Senior Member|
|Court or Tribunal||NSW Civil and Administrative Tribunal|
Regional relocation grant. Discretion of the Chief Commissioner. Distance requirement.
The Taxpayers sought review of the Chief Commissioner’s decision disallowing an application for the payment of a regional relocation grant.
The Tribunal confirmed the Chief Commissioner’s decision on the basis that the property purchased by the Taxpayers was less than the statutory minimum requirement that it must be at least 100 km in a straight line from the property they sold. The Tribunal found that the Taxpayers did not satisfy the onus of proving that the Chief Commissioner had a discretion to allow the grant application if this statutory requirement was not met.
On 14 September 2013 John Alexander Steber and Charmian Steber (“the Taxpayers”) exchanged contracts to sell their residence at Wyong (“the metropolitan home”). On 15 October 2013 the Taxpayers exchanged contracts to purchase land at Bonnells Bay (“the regional home”). The distance between the two homes is 22.211km.
On 5 December 2013 the Taxpayers signed an application for a grant. On 30 December 2013 the Registrar general issued a Certificate of title certifying that the Taxpayers owned the regional property. On 13 January 2014 the grant application was received by the Office of State Revenue (“the OSR”).
On 21 January 2014 the OSR advised the conveyancing firm acting for the Taxpayers that the application was denied because the Taxpayers did not meet the eligibility criteria requiring that the metropolitan home was at least 100km in a straight line from the regional home.
In 2013 the Regional Relocation (Home Buyers Grant) Amendment Act 2011 (“the Act”) was amended witheffect from 1 January 2014. One of these amendments changed the eligibility criteria, requiring the regional home to be at least 100km in a straight line from the metropolitan home. This distance requirement applied to all applications received on or after 1 January 2014.
On 12 May 2014, by an Order made under s.26A of the Act, the 100km distance requirement was reduced to 50km, subject to several conditions including that the grant application was not made before 12 May 2014. The Taxpayers could not benefit from the Order as they did not comply with the 50km distance requirement and their application was received by the Chief Commissioner before 12 May 2014.
The Taxpayers submitted that they had satisfied all the requirements for the grant, other than lodging the application, before 1 January 2014; both the settlement and registration of their regional home satisfied the criteria in the Regional Relocation Grants Act 2011 (“the RRG Act”).
Further, the Taxpayers submitted that it is unfair for the grant application to be disallowed on this basis considering that at the end of the year Land and Property Information were ‘inundated‘ with lodgements, in addition their conveyancer closed its office from 20 December 2013 to 6 January 2014. These were circumstances outside their control.
The Tribunal noted that the onus of proof is on the Taxpayers to establish the facts on which they rely under s.100(3) of the Taxation Administration Act 1996. (B & L Linings v Chief Commissioner of State Revenue  NSWCA 187 at ).
Senior Member Isenberg found that the Taxpayers did not comply with the eligibility criteria as set out in s15 of the RRG Act; the distance between the two properties is considerably less than 100km. In addition, sections 26 and 26A of the RRG Act do not provide the Chief Commissioner with any discretion to vary the distance requirement.
With respect to submissions of the Taxpayers as to general fairness and discrimination, the Tribunal stated that it would be unfair to grant an exception to the Taxpayers when other individuals did not receive the grant in similar circumstances. Senior Member Isenberg accepted the Chief Commissioner’s submission that setting aside the Chief Commissioner’s decision would result in a decision that did not comply with the law and would be incorrect.
The Tribunal found that the Taxpayers did not satisfy the onus of proving that the Chief Commissioner had discretion to allow the grant application.
The decision under review was affirmed.