Coulpasis v Chief Commissioner of State Revenue [2006] NSWADT 27

CITATION: Coulpasis v Chief Commissioner of State Revenue [2006] NSWADT 27

DIVISION: General Division

PARTIES: APPLICANT Temi Coulpasis

FILE NUMBER: 053093

HEARING DATES: 15/07/2005

SUBMISSIONS CLOSED: 09/12/2005

DATE OF DECISION: 01/31/2006

BEFORE: Hole M - Judicial Member

CATCHWORDS: first home owners grant - reversal of original decision - First Home Owners Grant Act - first home owners grant - reversal of original decision

MATTER FOR DECISION: Prinicpal matter

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

Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158 CASES CITED: Tarak Adasi v Chief Commissioner of State Revenue [ADT File 043208 – Decision dated 27 September 2004] Yucel v Chief Commissioner of State Revenue [2004] NSWADT 53

APPLICANT In person REPRESENTATION: RESPONDENT S Benjamin, solicitor

ORDERS: That the application is dismissed. The decision of the Chief Commissioner of State Revenue to recall the First Home Owners Grant is affirmed together with the imposition of 10% penalty.

REASONS FOR DECISION 1 This is an application to have the decision of the Chief Commissioner of State Revenue made on 30 September 2004 to reverse the decision to pay the applicant the First Home Owner Grant ("the Grant") reviewed. 2 The applicant purchased a property at Arncliffe, the purchase was completed on 21 February 2003, the applicant expected to occupy the property on 28 April 2003. An application was made for the Grant which was successful. 3 The property required renovations before the applicant could occupy it, she believed that these could be completed by 28 April 2003. Unfortunately the renovations required were considerably more extensive than anticipated and also the cost was greater than the applicant could afford. It was, in the view of her accountant, an "unrealistic expectation" that she could move into the property as she had anticipated. 4 The applicant has attempted to have the repair work completed. She is still saving money to complete the repairs and as at the date of hearing (15 July 2005) she was staying with her parents, although some of her belongings have been moved into the property. The applicant has a bed at the property and occasionally stays there. She also has a lounge and TV there as at 25 July 2005. 5 The applicant knew the provisions relating to the Grant, although she was not aware that she should have advised the Chief Commissioner of State Revenue of the delay in occupying the home. The applicant had every intention to occupy the property and the property had not been tenanted to the date of hearing. 6 On 20 August 2004, a letter was forwarded to the applicant by the Chief Commissioner of State Revenue. The applicant responded on 3 September 2004 disclosing that the property was unoccupied and that she was saving to complete the renovations and move in. This material was considered on behalf of the Chief Commissioner of State Revenue and subsequently on 30 September 2004 the Chief Commissioner of State Revenue issued a notice requiring repayment of the Grant and a penalty of $1,400.00. Following submissions by the applicant the Chief Commissioner of State Revenue reduced the penalty to 10%, being in the sum of $700.00. 7 Following the refusal of the Chief Commissioner of State Revenue to extend the time for compliance with the residence requirement sought in her letter dated 24 November 2004, the applicant has sought review of the decision to recall the Grant and the imposition of the penalty (10%). 8 The criteria to be satisfied to enable a person to obtain the Grant includes a residency requirement. In this case where the application was made prior to 1 January 2004, the criteria is that the applicant must occupy the property within 12 months after completion of purchase or a longer period if approved by the Chief Commissioner of State Revenue. If the recipient of the Grant did not so occupy the property then the recipient was required to advise the Chief Commissioner of State Revenue and then the Grant is repayable. 9 The applicant believed she understood the provisions relating to the Grant and if she had understood that she could seek extra time then she would have done so. 10 The applicant has expressed her intention to live in the property. She expected to do so on 28 April 2004. Her intentions have been frustrated because of the difficulties she has had in organising finance to complete renovations, delays in respect of the unanticipated extensive repairs to make the property habitable and increase in her interest rate on mortgage impacting on her ability to service the mortgage. 11 The applicant has repaid the Grant in full and the 10% penalty. 12 The applicant, notwithstanding her intention, has not satisfied the residency requirement and accordingly the decision of the Chief Commissioner of State Revenue to recall the Grant is affirmed. 13 In view of the frustration of the applicant's intention to occupy the property, that the applicant has not let the property and her lack of intention to deliberately mislead the Chief Commission of State Revenue, and taking into account the various decisions of the Tribunal relating to the imposition of a penalty including Tarak Adasi v Chief Commissioner of State Revenue [ADT File 043208 – Decision dated 27 September 2004], Yucel v Chief Commissioner of State Revenue [2004] NSWADT 53 and Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158 the imposition of a penalty of 10% is appropriate. The applicant had the use of the Grant money for 19 months, and was able to use it as part payment of the stamp duty on the purchase. ORDER That the application is dismissed. The decision of the Chief Commissioner of State Revenue to recall the First Home Owners Grant is affirmed together with the imposition of 10% penalty.