Weinstein -v- Chief Commissioner of State Revenue [2002] NSWADT 109

CITATION: Weinstein -v- Chief Commissioner of State Revenue [2002] NSWADT 109 DIVISION: General Division APPLICANT PARTIES: Stephen Weinstein RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 023050 HEARING DATES: on the papers SUBMISSIONS CLOSED: 05/13/2002 DATE OF DECISION: 06/27/2002

BEFORE: Hennessy N (Deputy President) APPLICATION: first home owners grant - approval of application - First Home Owners Grant Act - first home owners grant - approval of application MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : First Home Owners Grant Act 2000 Income Tax Assessment Act 1936 (Cth) CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT D Martin, agent ORDERS: The Chief Commissioner's decision not to approve the applicant's application for a First Home Owners Grant is affirmed.

1 On 28 February 2002 Mr Weinstein lodged an application with the Tribunal requesting a review of a decision of the Chief Commissioner, Office of State Revenue (the Chief Commissioner). The decision was not to approve his application under the First Home Owners Grant Scheme (FHOGS). The Commissioner refused Mr Weinstein's application because he did not meet a requirement of the First Home Owners Grant Act 2000 (FHOG Act) that he has not been the owner of residential property before 1 July 2000. Mr Weinstein did own property in Queensland before that date but says that he should still be eligible for the grant because he did not occupy the property. 2 Section 25 of the FHOG Act authorises an applicant to object to a decision of the Chief Commissioner if he or she is dissatisfied with that decision. Section 25(1) states that: (1) An applicant who is dissatisfied with the Chief Commissioner's decision on the application (including a decision to reverse or vary an earlier decision) may lodge a written objection with the Chief Commissioner. 3 On 22 January 2002, Mr Weinstein wrote to the Chief Commissioner objecting to the decision and seeking a review of that decision. On review, the Chief Commissioner affirmed that Mr Weinstein was not eligible for the grant. 4 With the consent of the parties, this matter was decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Jurisdiction 5 The FHOG Act authorises the applicant to apply to this Tribunal for a review of the decision. Section 28 states that: (1) An objector may apply to the Administrative Decisions Tribunal for a review of the decision (the original decision ) to which the objection was made if: (a) the objector is dissatisfied with the Chief Commissioner's determination of the objection Relevant legislation 6 The FHOG Act requires an applicant to comply with certain eligibility criteria. Section 11 relates to previous interests in residential property in New South Wales or in another State or Territory. That section states that: 1) An applicant for a first home owner grant is ineligible for the grant if the applicant or the applicant's spouse has, before 1 July 2000, held: (a) a relevant interest in residential property in New South Wales, or (b) an interest in residential property in another State or a Territory that is a relevant interest under the corresponding law of that State or Territory. (2) In working out for the purposes of subsection (1) whether an applicant held a relevant interest (within the meaning of this Act or a corresponding law) in residential property at a particular time, any deferment of the applicant's right of occupation (because the property was subject to a lease) is to be disregarded. (3) An applicant is ineligible if the applicant or the applicant's spouse has, on or after 1 July 2000 and before the date on which the application is made, held an interest in property (other than property to which the application relates) used at any time on or after 1 July 2000 as the residence of the applicant or the applicant's spouse, being: (a) a relevant interest in residential property in New South Wales, or (b) an interest in residential property in another State or a Territory that is a relevant interest under the corresponding law of that State or Territory. 7 The issue in this case is whether the Chief Commissioner made the correct and preferable decision in refusing to authorise the First Home Owner Grant to Mr Weinstein. (See s 63 Administrative Decisions Tribunal Act 1997.) The applicant has the onus of proving his case. (FHOG Act s 28(3).) Applicant's submission 8 Mr Weinstein made written submissions to the Tribunal dated 15 April 2002. He wrote that he purchased a home unit in Queensland on 26 November 1991. The unit was rented out on a permanent basis. 9 Mr Weinstein drew the Tribunal's attention to various parts of the FHOG Act including s 3 which sets out the definition of "residence requirement." "Residence requirement" is defined to mean "the requirement that 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 the completion of the eligible transaction or a longer period approved by the Chief Commissioner (see section 12)." "Home" is defined in section 4 to mean "a building (affixed to land) that may lawfully be used as a place of residence, and is, in the Chief Commissioner's opinion, a suitable building for use as a place of residence." 10 On the basis of these definitions Mr Weinstein submitted that there is one rule about occupancy in relation to the home to which the grant is attached and another rule about occupancy in relation to the eligibility criterion. Mr Weinstein also submitted that the home unit which he bought as an investment was not a "residential property" because he had never lived in that property. 11 Mr Weinstein also relied on s 82 of the Income Tax Administration Act 1936 Cth. (I presume Mr Weinstein is referring to the Income Tax Assessment Act 1936 Cth.) His point was that assets which produce income are classified under that Act as income producing property and not as residential property. This is inconsistent with the definitions in the FHOG Act. 12 Mr Weinstein stated that he has tried to explain "how an ordinary person would understand the FHOG Act." Respondent's submission 13 The Chief Commissioner submitted that the unit in Queensland is a building that may lawfully be used as a place of residence and therefore comes within the definition of "home" in s 4 of the FHOG Act. 14 The ownership of the unit in Queensland is a "relevant interest" under the First Home Owner Grant Act 2000 (Qld). Under s 8 of that Act a "relevant interest" is defined to include "an estate in fee simple in the land". Consequently that interest is a "relevant interest" under the FHOG Act. The undisputed facts demonstrate that Mr Weinstein had a relevant interest prior to 1 July 2000 and is therefore not entitled to the grant. Reasons and decision 15 There is no dispute that Mr Weinstein had an interest in property in Queensland prior to 1 July 2000, namely an estate in fee simple in a home unit. Despite the fact that Mr Weinstein did not live in the property it was a "residential property." Mr Weinstein's interest in that property is a "relevant interest" under the FHOG (Qld). The definition of "home" is not relevant when interpreting s 11(1)(b) of the FHOG Act. 16 Pursuant to s 11(1)(b) Mr Weinstein is ineligible for the grant because he had an interest in residential property in Queensland that is a "relevant interest" under the FHOG (Qld). Alleged internal or external inconsistencies in the legislation do not affect the clear meaning of the words in s 11(1)(b). 17 While I can understand that Mr Weinstein feels aggrieved by the fact that he is not eligible for the first home owner grant, the legislation which I have to interpret is clear and unambiguous. Parliament has provided clear rules as to who is eligible for the first home owner grant. This Tribunal has no discretion to change those eligibility requirements. In those circumstances, the Tribunal affirms the Commissioner's decision not to authorise the payment of the grant to Mr Weinstein. Orders The Chief Commissioner's decision not to approve the applicant's application for a First Home Owners Grant is affirmed.