Tassone v Chief Commissioner of State Revenue [2004] NSWADT 21

CITATION: Tassone v Chief Commissioner of State Revenue [2004] NSWADT 21 DIVISION: General Division APPLICANTS PARTIES: Ilario Tassone and Paula Tassone RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 033280 HEARING DATES: 22/01/2004 SUBMISSIONS CLOSED: 01/22/2004 DATE OF DECISION: 02/02/2004

BEFORE: Needham J - Judicial Member APPLICATION: first home owners grant - reversal of original decision - First Home Owners Grant Act - first home owners grant - reversal of original decision MATTER FOR DECISION: Principal matter LEGISLATION CITED : First Home Owners Grant Act 2000 CASES CITED: Re Dickeson and the Secretary, Department of Social Security (1989) 18 ALD 58 Zakariya v. Chief Commissioner, Office of State Revenue [2003] NSWADT 26 APPLICANT REPRESENTATION: In person RESPONDENT N Sharp, barrister ORDERS: The decision of the Chief Commissioner of State Revenue is affirmed

Facts 1 Mr Illario Tassone and Mrs Paula Tassone applied for a grant pursuant to s 7 of the First Home Owner Grant Act 2000. The grant was paid on 11 May 2001 in relation to a property known as 3 Coen Close, Bossley Park, New South Wales. The property purchase settled, the applicants say on 23 May 2001, and the respondent says, on 1 June 2001. From the Transfer which was tendered at the hearing, it appears that the correct date was 1 June 2001. 2 The intention of the applicants was to move into the property as their first home. Mr Tassone says he "moved into the property" after settlement to effect some repairs and renovations. At the hearing, under questioning from the Tribunal and by counsel for the respondent, it appeared that the occupation of the property was by Mr Tassone only and of a fairly informal nature. He only moved a bed into the property, and did so only for the purpose of cleaning it up as it was "unliveable". He says, and I accept his evidence generally, that he and his wife intended at all times to occupy the premises as their home. Unfortunately, before they could do this, Mrs Tassone's hours were reduced by her employer and they could no longer afford to live in their home immediately as they intended. They rented the property by way of Residential Tenancy Agreement dated 5 June 2001. 3 Mr Tassone gave evidence that the only reason for the renting out of the property was the financial predicament in which they found themselves. They originally intended the tenancy to be for only six months, but the tenant was unable to find alternative accommodation and Mr Tassone was unwilling to evict the tenant, a "single mother with three children". The Tassones did in fact occupy the premises by 5 June 2002, and still live there. There are some unanswered questions in relation to the timing of the matter, given the short period of time between the transfer and the residential tenancy agreement, and the congruence of the date of the residential tenancy agreement and their moving into the property one year later, but in general I accept the factual contentions of the applicants as to their motives and intentions. 4 The Chief Commissioner issued a notice under s 45 of the Act requiring repayment of the grant, plus a 20% penalty, on 2 May 2003, once he had become aware that the Tassones had not occupied the property until after 1 June 2002. The Tassones wrote to the Office of State Revenue ("OSR") on 2 July 2003, asking, in effect, for a review of the decision. That request was treated as a letter of objection, which was disallowed on 15 July 2003. A request for review was made by the Tassones on 31 July 2003, and that request was disallowed on 12 August 2003. The Tassones made application to the Tribunal for review of the decision to seek repayment of the grant on 9 October 2003, which application was within the time provided by s 28(4) of the Act. Consideration 5 The Act provides that a grant may only be paid to applicants meeting the "eligibility criteria". It is not contested that the Tassones meet all eligibility criteria except for Criterion 5, which appears in s 12 of the Act. That section requires:- "(1) An applicant for a first home owner grant must occupy the home to which the application relates as the applicant's principal place of residence within 12 months after completion of the [purchase of the property]. (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 the residence requirements". 6 Although Mr Tassone says that he "moved in" to the premises, it is clear that his occupation does not satisfy either sub-section of s 12. The occupation was for the purpose of renovation and cleaning. His wife did not move in with him which, although not a strict requirement by reason of sub-s (2), would certainly point to an intention to occupy as his principal place of residence. She stated from the bar table that she remained living with Mr Tassone's parents, her parents-in-law, and in fact did not move into the property until after the 12 months had expired in June 2002. 7 In the circumstances of this case, the occupation by Mr Tassone within the 12 months required by s 12 of the Act does not fulfil the requirement of being by way of "principal place of residence", that is, a permanent, regular and continuous occupation of a home (see Re Dickeson and the Secretary, Department of Social Security (1989) 18 ALD 58, Zakariya v. Chief Commissioner, Office of State Revenue [2003] NSWADT 26). While I accept that the Tassones always intended to occupy their home as their principal place of residence, unless they actually do so within the time allowed by the Act (including any extensions of that time) the intention alone is insufficient. 8 The Tassones did not apply for an extension of the period within the 14 days allowed to do so by s 20(3) of the Act. Thus, they do not fulfil the eligibility criteria in s 12 of the Act, and the decision of the Chief Commissioner is correct. 9 It is difficult not to be sympathetic to applicants such as the Tassones, who are a young family who have worked hard to purchase and move into their first home. As the Tassones seemed to be genuine in their belief that an intention to occupy during the twelve month period followed by an actual occupation shortly after the expiry should be sufficient compliance with the Act, and there was no allegation of any fraud on their behalf, I would urge the Chief Commissioner to consider any request by them for an instalment arrangement for repayment of the grant plus penalty to be put in place. Decision 10 The decision of the Chief Commissioner is affirmed.