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Date of judgement | 13 March 2015 |
Proceeding number | 1410427 |
Judge(s) | S Frost |
Court or Tribunal | NSW Civil and Administrative Tribunal |
STATE REVENUE – first home owner grant – First Home Plus duty concession – residence requirement – penalty and interest
The Applicant, Wissam Ibrahim Rayek, sought review of the Chief Commissioner’s assessment requiring the Applicant to repay the first home owners grant and stamp duty concession on a residential property in Greenacre (“the subject property”). The Chief Commissioner had determined that the applicant did not meet the residency requirements.
The Tribunal found that the Applicant failed to prove that he had met the residence requirement, and also determined that the Applicant did not advance any "good reasons" as to why he should be exempt from the residence requirement. The Tribunal applied principles endorsed by the Appeal Panel in earlier cases in upholding the Chief Commissioner’s decisions to impose penalties in relation to both the grant and duty, and in refusing to remit both the market and premium rates of interest imposed under the Taxation Administration Act.
In 2010, the Applicant exchanged contracts for the purchase of the subject property and received a first home plus stamp duty concession. In January 2011 the Applicants first home owner grant application was successful and he was paid $7000.
At the time of completion of the purchase, caveats were registered on the subject property. As a result, the Applicant could not become the registered proprietor until the caveats were removed. On 21 May 2012 the subject property was registered in the Applicant’s name.
In June 2012, the Chief Commissioner commenced an investigation into whether the applicant satisfied the ‘residency requirement’. Upon being notified of the delay in registration, the Chief Commissioner deferred the investigation. The Applicant was informed that he needed to start occupying the property by no later than June 2013.
The Chief Commissioner resumed the compliance investigation in February 2014 and determined the Applicant was not entitled to the first home owner grant, nor the stamp duty concession. Accordingly, assessments were issued to the Applicant requiring repayment of the first home owner grant and the stamp duty concession, together with penalties and interest. A penalty of 60% was imposed on the first home owner grant assessment. The penalty on the duties assessment was increased from the default position of 25% to 30% being an uplift of 20%.Those assessments were objected to by the Applicant and the objection disallowed.
During the investigation the Chief Commissioner’s officers found that the applicant had sold the subject property in November 2013. Enquiries with AGL indicated that the Applicant had never been recorded on the account at the subject property. Insufficient evidence was provided by the Applicant to show that he resided at the subject property.
The Chief Commissioner’s assessments were confirmed.
Rayek v Chief Commissioner of State Revenue [2015] NSWCATAD 40