Agiostratis v Chief Commissioner of State Revenue [2008] NSWADT 23

CITATION: Agiostratis v Chief Commissioner of State Revenue [2008] NSWADT 23

DIVISION: Revenue Division

APPLICANT Dimitri Agiostratis PARTIES: RESPONDENT Chief Commissioner of State Revenue

FILE NUMBER: 076102

HEARING DATES: 3 December 2008

SUBMISSIONS CLOSED: 3 December 2007

DATE OF DECISION: 23 January 2008

BEFORE: Verick A - Judicial Member

CATCHWORDS: Duties Act - First Home Plus Scheme - residence requirement - First Home Owners grant - reversal by administrator

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Duties Act 1997 First Home Owner Grant Act 2000 Taxation Administration Act 1996

Federal Commissioner of Taxation v G M Swift and Others 89 ATC 5101 CASES CITED: Gomez-Martinez v Chief Commissioner of State Revenue [2007] NSWADT 251 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985) 162 CLR 24

APPLICANT In person REPRESENTATION: RESPONDENT A H Rider, barrister

ORDERS: The decisions under review are affirmed.

REASONS FOR DECISION Introduction 1 The Applicant seeks a review of a decision made by the Chief Commissioner of State Revenue ("the Respondent") to refuse an extension of time to comply with the "residence requirement" under the First Home Owners Grant Act 2000 (NSW) ("FHOG Act") and to recall a grant of $7,000.00 made to the Applicant together with a penalty of 20 percent ($1,400.00) in relation to a unit situated at Shackel Avenue, Brookvale, New South Wales ("the Property"). 2 In addition, the Applicant seeks a review of the decision made by the Respondent to refuse to grant an extension of time to comply with the "residence requirement" and to revoke the concession granted to the Applicant in accordance with the First Home Plus Scheme ("the FHP Concession") under the Duties Act 1997 (NSW) (the "Duties Act"). The Applicant is required to pay a dutiable amount of $16,209.82 and with an interest amount. Factual Background 3 The facts were not in dispute and set out in the Respondent's written submissions as follows: "3. On 7 February 2005, the Applicant entered into a contract to purchase the Property ( Contract ) for $389,000 from a number of parties ( Vendors ) including Gittany Constructions Pty Limited ( Gittany Constructions ). At this time, the Property was leased to tenants. 4. At the time of entering into the Contract, the Applicant was 21 years old and living at home with his parents at Alfords Point, New South Wales. 5. The Applicant financed the purchase of the Property with a $350,000 loan (Loan Account) (being 90% of the purchase price) from the National Australia Bank (NAB). On 8 February 2005, the Applicant executed a mortgage over the Property in favour of NAB (Mortgage). 6. On 8 February 2005, the Applicant applied for the Grant in relation to the Property (Grant Application). In the Grant Application, the Applicant stated that he intended to commence occupying the Property as a principal place of residence on 10 March 2005. The Grant Application also stated that the date of settlement of the Applicant's purchase of the Property was 10 March 2005. The Grant Application nominated that the Grant be paid into the Applicant's bank account (Bank Account) (not being the Loan Account) with the NAB. 7. On or about 22 February 2005, the Respondent stamped both the Mortgage and the transfer of the Property from the Vendors to the Applicant (Transfer) exempt from duty under the First Home Plus provisions of the Duties Act. 8. On or about 24 February 2005, the sale of the Property to the Applicant was settled. 9. On 25 February 2005, the Respondent approved the Grant Application and paid the Grant to the Applicant. 10. The Applicant claims that at the time of purchasing the property, he had every intention of moving into the premises within the time requirement prescribed in the FHOG Act, but not immediately, as the Property was rented out. However, contrary to his statement in the Grant Application, the Applicant did not commence using the Property as a principal place of residence on 10 March 2005. 11. In or around February 2005, the Applicant states that he was working for a company, which provided scaffolding to Gittany Constructions (one of the Vendors of the Property). The Applicant states that after getting to know the principals of the company, he borrowed $25,000 to contribute to a business joint venture with Gittany Constructions (Joint Venture). 12. The Applicant claims that at or around the time he was borrowing $350,000 from NAB to buy the Property and $25,000 to contribute to the Joint Venture, his parents were in financial difficulty. The Applicant claims that for this reason, he decided to lease out the Property for a "short time" so that he could stay at home and financially help out his parents. 13. By 24 February 2006 (i.e. 12 months after settlement of the purchase of the Property), the Applicant still had not resided in the Property. The Applicant claims that he was unable to take up residence in the Property due to his "financial commitments". The Applicant claims that he considered selling the Property and repaying the Grant, but that due to the fall in the market, the Property was worth less than the amount of the Mortgage." 4 The Applicant had sought an extension of time to occupy the Property. On 30 January 2007, the Respondent in a letter to the Applicant informed him that his request for extension to reside in the Property had been denied and, consequently, the Respondent had under section 9 (1) of the Taxation Administration Act 1996 ("the TA Act") reversed the decision to offer the Applicant the First Home Plus concession. The Respondent also sent the Applicant a Duties Notice of Assessment seeking a total repayment of $16,209.82 being the duty payable on the transfer and mortgage and interest on the outstanding amounts. 5 On 1 February 2007, the Respondent wrote to the Applicant informing him that as he "did not meet the residency requirement pursuant to section 12 (1)(a) and (b) First Home Owners Grant Act 2000" his "request for extension to occupy" was denied and that the Respondent had reversed the decision to pay the grant and demanded repayment of the grant under section 45 of the FHOG Act. Attached to the Respondent's letter was an assessment requiring the Applicant to repay $7,000.00 being the grant and a penalty of $1,400.00. 6 The Applicant objected against both assessments. In summary, the Applicant's grounds were as follows: (a) he did not take "too seriously" the advice he was given that he had to live in the Property for 6 months to be eligible for the Grant; (b) he could not financially afford to move into the Property; (c) he had no choice but to stay with his parents and support them financially after they lost the business and their family home; and (d) the market had fallen quite substantially since he purchased the property and if he sold the Property the money he would receive would not be enough to pay off the mortgage. 7 The Respondent disallowed the objection on 20 June 2007. On 8 August 2007, the Applicant filed an application in the Tribunal for a review of the Respondent's objection decision. The reasons for seeking the review were: "OSR failed to take into account my change in circumstances from the time that I applied for the First Home Grant and the time following or did not give due consideration to family commitments which arose after that time or leniency on social grounds." 8 The Applicant has, to date, not occupied the Property because of his "financial commitments". He is currently employed on a casual basis earning approximately $650.00 per week and after paying the monthly repayments to the bank he is effectively left with about $350.00 each week to pay for his living, rates and other levies for the Property. The Applicant's father at the hearing described his son's conduct in purchasing the property as "naïve". Relevant Legislative Provisions 9 The FHOG Act was introduced to encourage and assist home ownership and contains a complete scheme dealing with government financial grants to enable residents of New South Wales to purchase or build their first homes. The entitlement requirements for a grant are set out in section 7 of the Act. There is no dispute that the Applicant was entitled to a grant. 10 In addition, Part 2 of Division 2 of the FHOG Act requires an applicant to satisfy 5 Eligibility Criteria to obtain a grant. This matter relates only to Criterion 5, the "Residence Requirement", which is set out in s 12 of the FHOG Act. There are, historically, a number versions of this provision. The version that applied to the Applicant in this matter was as follows: "(1) An application for a first home owner grant must occupy the home to which the application relates as the applicant's principal place of residence for a continuous period of at least 6 months. (1A) However, if the Commissioner is satisfied there are good reasons to do so, the Chief Commissioner may: (a) approve a shorter period, or (b) exempt the applicant from the requirement to comply with subsection (1). (1B) The period of occupation required under subsection (1), or the shorter period approved under subsection (1A)(a), must start within 12 months after completion of the eligible transaction or a longer period approved by the Chief Commissioner. (2) If an application is made by joint applicants and at least one (but not all) of the applicants complies with the residence requirement, the non-complying applicant or applicants are exempted from compliance with the residence requirement." 11 At the relevant time the term "residence requirement" was defined in section 3 of the FHOG Act in the following terms: " residence requirement means the requirement that an applicant for the first home grant must occupy the home to which the application relates as the applicant's principal place of residence within 12 months after the completion of the eligible transaction or a longer period approved by the Chief Commissioner." 12 Section 13 of the FHOG Act sets out what an "eligible transaction" is for purposes of section 12. There is no dispute that the purchase of the Property was an "eligible transaction" for purposes of section 12 of the FHOG Act. The Respondent in recalling the grant has taken the view that the Applicant had failed to satisfy the "residence requirement" set out in section 12 of the FHOG Act. 13 The Respondent has exercised his power under section 45 of the FHOG Act, which allows the Respondent to recover a grant and impose a penalty where an applicant fails to satisfy the eligibility requirements. Section 45 at the relevant time provided as follows: " 45 Power to require a repayment and impose penalty (1) The Chief Commissioner may, by written notice, require an applicant (or former applicant) for a first home owner grant to repay an amount paid on the application if: (a) the amount was paid in error, or (b) the Chief Commissioner reverses the decision under which the amount was paid for any other reason. (2) If, as a result of an applicant's dishonesty, an amount is paid by way of a first home owner grant, the Chief Commissioner may, by notice in which repayment is required or a separate notice, impose a penalty not exceeding the amount the applicant is required to repay. (3) If an applicant (or former applicant) for a first home owner grant fails to make a repayment required under this section or the conditions of the grant, the Chief Commissioner may, by written notice, impose a penalty not exceeding the amount the applicant is required to repay. (4) If an amount is paid in error on an application for a first home owner grant to a third party, the Chief Commissioner may, by written notice, require the third party to repay the amount to the Chief Commissioner." 14 Section 76 of the Duties Act sets out the residence requirement in relation to the First Home Plus concession as follows: "76 Residence Requirement (1) The home must be occupied by the person or persons who are acquiring it as a principal place of residence for a continuous period of at least 6 months, with that occupation starting within 12 months (or such longer period as the Chief Commissioner may approve) after completion of the agreement or transfer. This requirement is referred to as the residence requirement. (2) The Chief Commissioner may, if satisfied there are good reasons to do so in a particular case: (a) modify the residence requirement by approving a shorter period of occupation by the person or persons, or (b) exempt the person or persons from the requirement to comply with the residence requirement. …" Issues and Submissions 15 The four issues for determination were as follows: (1) whether the Respondent made the correct decision to exercise his discretions under section 76(1) of the Duties Act and section 12(1B) of the FHOG Act, respectively, to deny the Applicant further time to meet the "residence requirement"; (2) in relation to the Grant, whether the Respondent was entitled to recall the grant on the ground that the Applicant had not satisfied the principal place of residence requirement as set out in eligibility criterion 5 in section 12 of the FHOG Act; (3) in relation to the penalty, whether in recalling the grant, the Respondent was entitled to impose a penalty of 20% under section 45 of the FHOG Act; and (4) in relation to the FHP Concession, whether the Respondent was correct to require the Applicant to pay the duty and interest because the Applicant had not satisfied the "residence requirement" set out in section 76 of the Duties Act. 16 The Applicant made a "global" submission in relation to the above issues. The Applicant's submission was essentially that his financial position has changed and he is unable to fulfil the "residence requirement". This submission was expanded in his written submissions as follows: "1. In or about February 2005 I was working for a company, which provided scaffolding to Gittany Constructions Pty Limited. As I got to know the principals of Gittany Constructions Pty Limited we discussed a joint venture prospect to the effect that I will work as a contractor to Gittany Constructions Pty Limited and receive 10% of the price of each job. 2. I borrowed $25,000 and paid Gittany Constructions Pty Limited as my contribution to this joint venture. 3. On the basis of what I expected to be an increase of my income I agreed to purchase the property at … Shackel Avenue Brookvale NSW. At the time of purchasing the property I had every intention of moving to the premises albeit not immediately, as the property was rented, but within the time requirement prescribed in the FHOG Scheme. 4. During the same time my parents were in financial difficulties so I decided to continue to lease out the property for a short time, so that I could stay at home and help out financially my parents. 5. By about mid 2005 it became apparent that Gittany Constructions Pty Limited were not going to fulfil their promise to provide me with work and my expected increase in income was not forthcoming. I have not been able to get repaid to me the $25,000 which I paid that company. 6. By 2006 I was yet unable to take up residence in the subject property due to my financial commitments. I gave consideration to selling the property and repaying the amount received through the FFHOG but due to the fall in the property market, the unit was worth less than the amount of the mortgage. 7. In November 2006, I wrote to the OSR seeking an extension of time to take up residency in the unit, but the request was refused. 8. I am currently working with Safe Way Pty Limited on a casual basis and earn approximately $650.00 per week net. 9. I believe the subject property will only be sold for at best $330,000. 10. The outstanding loan for the property with the National Australia Bank is approximately $345,000.00 and the monthly repayments are approximately $2,410.00. 11. The repayment of the mortgage is made up by the net rent received of $300 and I also pay $300.00 from my pay. I am therefore left with about $350.00 per week with which I cover living expenses, rates and levies for the property and if money allows pay board and expenses for my parents' household. 12. I say that there is no funds available to me to repay the amount determined by OSR and even if the property was to be sold there would be a shortfall in the amount owed to the Bank." 17 The Respondent's submissions were quite simply that the Applicant made no attempt to take up residency at the Property and his failure was not due to circumstances beyond the Applicant's control. The Respondent further submitted "that there was no implication in the subject matter, scope or purpose of the relevant Acts that he was bound to take into account the Applicant's change in circumstance from the time he applied for the Grant, or to give any consideration to the Applicant's family commitments which arose after that time or to be lenient on social grounds". 18 The Respondent further asserted that as the Applicant had failed to meet the "residence requirement" the Respondent was entitled to withdraw the First Home Plus duty concession and recall the Grant which was approved "in advance in anticipation of the Applicant's compliance with the residence requirement" under Duties and FHOG Acts respectively. And that the Respondent was entitled to impose (a) interest in respect of the unpaid duty at the rate of 13.87 percent because the Applicant's failure to pay the duty within the timeframe required under the Duties Act constituted a tax default in terms of section 21(1) of the TA Act and (b) the 20% penalty under section 45(2) of the FHOG Act because "the Grant was paid to the Applicant as a result of the Applicant's dishonesty" relating to statements he made as to the "residence requirement" in his application. Findings and Reasons for Decision 19 This was a fairly straightforward case and the facts were not in dispute. The Applicant was clearly, as described by his father, "naïve" in proceeding to purchase the Property with a full loan from the bank and without the earning capacity to service the loan. It is remarkable that banks are willing to lend such large amounts of money to people like the Applicant, who was only 21 years at the time of the loan, without regard to their ability to repay the loans on their incomes. 20 This was a case where the Applicant took advantage of the first homeowner grant and duty concession scheme to purchase the Property. That scheme clearly required the Applicant to occupy the Property as his principal place of residence within 12 months of purchase or an extended period. The Property was purchased in February 2005 and the Applicant obtained the grant in March 2005. Both the mortgage to the bank and the transfer of the Property from the vendors to the applicant was exempted on presentation on 22 February 2005. 21 On 9 November 2006 the Applicant in a letter informed the Respondent that the tenant had vacated the Property and he would from 13 November 2006 reside at the Property "for at least 6 months … to comply with the residency requirement" and sought an extension of time to comply with the residency requirement. The request was denied and in any case the Applicant did not occupy the property as indicated in his letter. 22 At the date of the hearing, 3 December 2007, the Applicant confirmed that he had not occupied the Property since its purchase and it has remained rented out to tenants. On the facts as presented at the hearing, it is clear that the Applicant has little or any prospect of occupying and using the Property as his principal place of residence in the near future or ever. 23 The first issue that the Tribunal needs to consider is whether the Respondent has properly exercised his discretionary powers under the Duties Act and FHOG Act to refuse to grant the Applicant an extension of time to meet the "residence requirement". 24 Under section 76(1) of the Duties Act in relation to the First Home Plus scheme, to meet with the "residence requirement", the property intended to be the principal place of residence had to be occupied "for a continuous period of at least 6 months, with that occupation starting within 12 months (or such longer period as the Chief Commissioner may approve) after completion of the agreement or transfer." 25 In respect of the FHOG Act, the "residence requirement" as set out in section 12, required the Applicant to occupy the Property as his principal place of residence for a continuous period of six months commencing within 12 months after completion of the purchase, in his case 10 March 2005. The Respondent is given a discretion under section 12(1B) to extend the start date by approving a longer period. 26 The Tribunal accepts the submission made by counsel for the Respondent that both the discretions are "not qualified in any way by the terms of the relevant Acts". In those circumstances, the Respondent was not required to take into account the Applicant's change in financial circumstances unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Acts (see Mason J (as his Honour then was) in Minister For Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at p.40). It has also been suggested in Federal Commissioner of Taxation v G M Swift & Ors 89 ATC 5101 at page 5116 by French J that when the discretions of the kind under review are to be exercised, "there will be a threshold beyond which it would defeat the primary object of the legislation". Accordingly, in exercising these discretions care has to be taken to ensure that the exercise of the discretions do not undermine the primary objective of the Duties and FHOG Acts. 27 The Tribunal agrees with the Respondent's submission that "the subject matter, scope and purpose of the First Home Plus provisions of the Duties Act and the FHOG Act is clearly to provide financial assistance to eligible persons who are acquiring a home to live in as their principal place of residence and not to provide assistance to persons who fail to occupy the relevant property within the required period and who rent out the property". 28 Against the factual background, it is understandable why the Respondent has refused to exercise his discretionary powers to grant an extension of time to comply with the "residence requirement" and to recall the grant and impose duty on the mortgage and transfer. 29 The Applicant has made no attempt to take up residence at the Property since March 2005 and only responded because of the Respondent's "First Home benefits residency compliance program". The Applicant's financial position was known to him when the Property was purchased and it was clear then that he had little or no prospect of occupying the Property as his principal place of residence. The Tribunal also accepts the Respondent's submission that "there was no implication in the subject matter, scope or purpose of the relevant Acts that he was bound to take into account the Applicant's change in circumstance from the time that he applied for the Grant, or to give any consideration to the Applicant's family commitments which arose after that time or to be lenient on social grounds". 30 The respondent relied on the recent decision of this Tribunal in Gomez-Martinez v Chief Commissioner of State Revenue [2007] NSWADT 251 where in a similar fact situation, Judicial Member Block in reviewing the refusal by the Chief Commissioner to exercise the discretions under consideration, made the following comments: "It is the very clear view of this Tribunal that this is quintessentially a case in which to grant discretionary relief would be to transgress the boundary to which French J referred in Swift's case. The evidence before the Tribunal points to the fact that at the time of purchase the Applicant could not afford the property; the fact that he was obliged to borrow nearly the whole of the price and on terms as to interest which were beyond his means indicates that he did not then intend to occupy the property. His entry into the management agreement pursuant to which it was leased out and the fact that it was leased even before completion, by his vendors, reinforces this view. The fact that he was obliged to lease it yet again after the [tenants] vacated the property is also relevant. And a year later and cognisant of his statutory obligations he sought to deceive the Respondent by a false statutory declaration …" 31 In the present matter, the Applicant did not make a false statutory declaration but he did make a false statement in his letter of the 9 November 2006 in which the Applicant, to deceive the Respondent, indicated that he was moving into the property on 13 November 2006. The letter was in response to an inquiry by the Respondent dated 27 October 2006 to obtain confirmation that the Applicant had complied with the "residence requirement". In the Applicant's case, the settlement had occurred in March 2005 and the period of 12 months had expired by March 2006. The Applicant did not contact the Respondent until he received the Respondent's inquiry, some 18 months after getting the grant. In seeking his extension the Applicant made a false statement that he was moving into the property on the 13 November 2006 and sought a retrospective extension. The Applicant also had made a false statement in his original application as to the "residence requirement". 32 Against the above factual background, the Tribunal accepts that the respondent made the correct decision in not exercising his discretions under section 76(1) of the Duties Act and section 12(1B) of the FHOG Act, respectively, to grant the Applicant an extension of time to comply with the "residence requirement". 33 If, on the other hand, the discretionary relief had been given, the Respondent would have clearly "transgressed" the threshold fixed to achieve the primary objective of the relevant legislation. The primary objective of the relevant provisions of the Acts is to assist people resident in New South Wales to acquire their first home and not to purchase their first investment property. The "residence requirement" ensures that the property is used and occupied as his or her principal place of residence by an applicant getting a grant and the First Home Plus scheme duty concession. 34 Issue two in these proceedings was whether the Respondent made the correct decision to require the Applicant to pay duty on the transfer and mortgage under the Duties Act and repay the grant given to him under the FHOG Act. 35 In this regard, at the relevant time section 76A(2) of the Duties Act provided: "If an application is approved in anticipation of compliance with the residence requirement, the approval is given on condition that, if the residence requirement is not complied with, the applicant must within 14 days after the end of the period allowed for compliance: (a) give written notice of that fact to the Chief Commissioner, and (b) pay the relevant duty to the Chief Commissioner". 36 In relation to the FHOG Act, section 20(3) provided at the relevant time: "If a first home owner grant is paid before completion of the relevant eligible transaction, the payment is made on condition that, if the transaction is not completed within 12 months of the commencement of the transaction or a longer period allowed by the Chief Commissioner, the applicant must within 14 days after the end of the period concerned: (a) give notice of that fact to the Chief Commissioner, and (b) repay the amount of the grant." 37 In this matter, the Respondent approved the First Home Plus duty concession and the Grant in advance in anticipation of the Applicant's compliance with the "residence requirement". The evidence at the hearing was clear that almost three years later the Property remains rented out and there is little prospect of its occupation by the Applicant as his principal place of residence. The Applicant has not complied with the residence requirement and is clearly now required to pay the duty on the transfer and mortgage under the Duties Act and refund the grant under the FHOG Act. There is no discretion in the law for waiver of either liability and his current financial difficulties are not a relevant consideration for the Respondent to have regard to in requiring the Applicant to pay the duty and recall the grant. 38 The Respondent was accordingly entitled: (a) to reverse under section 9 of the TA Act his decision to offer the applicant the First Home Plus concession for the duty payable on the transfer and mortgage and issue a Duties Notice of Assessment demanding payment of the duty payable with interest under the Duties Act and (b) to reverse the decision to pay the Applicant the grant and to issue him an assessment under section 45 of the FHOG Act to demand repayment of the grant with a penalty. 39 The third issue in this matter relates to the imposition of interest in respect of the duty payable on the transfer and mortgage. The Applicant was required to pay the duty under section 76A(2) of the Duties Act 14 days after the end of the period allowed for compliance of the "residence requirement". The failure to pay the duty within the timeframe required by the Duties Act was a "tax default" under the TA Act. Under section 21 of the TA Act if "a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate from time to time applying". 40 Under section 22 of the TA Act the interest rate is the sum of the market rate component and the premium component. Whilst the premium component is fixed at the rate of 8 percent per annum, the market rate component is either the Bank Accepted Bill rate or the rate specified for the time being by Order of the Minister published in the Gazette. In this matter, the respondent imposed interest in respect of the unpaid duty at the rate of 13.87 percent per annum, being the sum of the prevailing market rate component of 5.87 percent plus the fixed premium component of 8 percent. 41 The Respondent was entitled to impose the interest when all the facts and surrounding circumstances are taken into account. The Applicant has not advanced any grounds that he was entitled to any remission under section 25 of TA Act of the market rate component or the premium component of interest or both. 42 Finally, the Tribunal was required to consider whether the Respondent made the correct decision to impose the 20 percent penalty in respect of the grant. 43 The Respondent was entitled to impose a 100 percent penalty under section 45(2) of the FHOG Act where he had paid the grant to an applicant as a result of the applicant's dishonesty or under section 45(3) of the FHOG Act where an applicant fails to make a repayment is required to refund the grant under an assessment. 44 In this matter the Applicant made false statements in his original application and in his letter dated 13 November 2006 that he was taking possession of the property and would be residing there as his principal place of residence for at least six months. The Applicant has never occupied the property, did not notify the Respondent that he had failed to comply with the "residence requirement" until contacted through the Respondent's compliance program, has not repaid the grant as required and has had the benefit of the grant for almost three years. The Applicant has meanwhile treated the property as his investment property and earned rental income. 45 The Respondent was, in those circumstances, entitled to impose a penalty under section 45 of the FHOG Act. The imposition of the 20 percent penalty in this matter was appropriate, particularly considering the factual background. 46 For the foregoing reasons, the correct and preferable decision on this application is to affirm the decision of the Respondent to disallow the Applicant's objection. Decision The decisions under review are affirmed.