Full v Chief Commissioner of State Revenue [2005] NSWADT 190

CITATION: Full v Chief Commissioner of State Revenue [2005] NSWADT 190 DIVISION: Revenue Division APPLICANT PARTIES: Damien Kenneth Ross Full RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 056002 HEARING DATES: 04/07/2005 SUBMISSIONS CLOSED: 07/04/2005 DATE OF DECISION: 08/12/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: Duties Act - principal place of residence MATTER FOR DECISION: Principal matter Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth) LEGISLATION CITED : Duties Act 1997 Land Tax Management Act 1956 FCT v G M Swift and others 89 ATC 5101 CASES CITED: Giris Pty Ltd v Commissioner of Taxation (Cth) (1968) 119 CLR 365 Bellinz v Commissioner of Taxation (Cth) (1998) 84 FCR 154 Doney v Chief Commissioner of State Revenue [2005] NSWADT 133 APPLICANT REPRESENTATION: In person RESPONDENT R Seiden of counsel instructed by B Sarkissian, solicitor, Crown Solicitor's Office ORDERS: Decision under review is set aside

REASONS FOR DECISION 1 The applicant (the Vendor) has applied for review of the decision by the respondent (the Commissioner) to disallow an objection to a vendor duty assessment made under the Duties Act 1997 (the Act). 2 The case turns on the interpretation and application of the provisions relating to relief from the vendor duty imposed by s 146 of the Act, which commenced operation on 1 June 2004. 3 In May 2002 the Vendor bought a residential property (the Property) at Prestons in Sydney. His initial intention was not to occupy the Property and hold it as an investment. He let the Property from May 2002 to February 2003. Now married, he and his wife decided to make the Property the family home, and moved in. They resided at the property from February 2003 to the end of December 2003. In December 2003 they decided to relocate to Canberra, having each accepted new positions based there with their common employer (the Australian Federal Police). The Vendor placed the Property on the market at the end of December. He and his wife moved to Canberra in January 2004. While it remained on the market the Property was left unoccupied, with the couple returning regularly from Canberra to maintain it. The Vendor contracted to sell the Property on 16 October 2004, subsequently completed by transfer. 4 One other event in this period was seen as significant by the Commissioner. On 15 March 2004 the Vendor had agreed to sell. The purchasers did not proceed because they could not obtain finance. They renewed their offer in April, but on this occasion the offer came through a second agent engaged by the Vendor. The previous agent expressed concern, and indicated that it would be claiming a full commission on any sale that resulted. The second agent, understandably, was also claiming a full commission. The Vendor tried to sort out the commission dispute. During this time the prospective purchasers bought elsewhere. Had the Vendor sold during this period vendor duty would not have been applicable. The April events occurred not long after the Government's announcement of its intention to introduce the new tax (made 5 April 2004). 5 The Commissioner's position is that, in the circumstances, vendor duty is payable. In particular the contract of sale post-dated the commencement date for the duty; and none of the provisions found in the legislation dealing with exceptions and qualifications to the general principle were applicable. The Vendor disputes this view, and contends that it is a case where the Commissioner should relieve him from the duty otherwise payable, in the exercise of the relief discretion given to the Commissioner by s 162B(4). Relevant Law 6 The first provision to note is s 162A which defines a principal place of residence as: ' principal place of residence of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person.' 7 The whole of s 162B is relevant: ' 162B Principal place of residence exemption (1) A vendor duty transaction is not chargeable with vendor duty in relation to land to which the principal place of residence exemption applies. (2) Subject to this Division, the principal place of residence exemption applies to land used and occupied by the vendor as the principal place of residence of the vendor, and for no other purpose, if the land: (a) is a parcel of residential land, or (b) is a strata lot, or (c) is assessed as if it were a strata lot under section 21A or 21B of the Land Tax Management Act 1956. (3) For the purpose of this Chapter, land is not used and occupied as the principal place of residence of a person unless: (a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes for a period of at least 2 years ending immediately before the date on which, but for this Division, a liability for vendor duty would arise, or (b) the land has been used and occupied by the person for residential purposes and for no other purposes for a total period of at least 3 years in the 5 years ending immediately before the date on which, but for this Division, a liability for vendor duty would arise and during those 3 years no other land was used and occupied by the person for residential purposes, or (c) if the vendor became an owner of the land less than 2 years before the date on which, but for this Division, a liability for vendor duty would arise, the Chief Commissioner is satisfied that the land has been used and occupied by the person as the person's principal place of residence since the vendor became an owner of the land. (4) Despite any other provision of this Act, the principal place of residence exemption is also taken to apply to any land used and occupied as a principal place of residence if the Chief Commissioner is satisfied that it is fair and reasonable for the exemption to apply in the particular case. (5) For the purposes of the principal place of residence exemption, a vendor of land that is owned by 2 or more persons is not considered to be used and occupied by the vendor as the principal place of residence of the vendor unless the land is used and occupied as the principal place of residence of: (a) at least one of the owners who is a natural person and whose ownership share is 50% or more, or (b) each of 2 or more of the owners who are natural persons and whose combined ownership share is 50% or more.' 8 The Vendor accepts that his circumstances do not satisfy the primary rule found in s 162B(3)(a) – the requirement of continuous use and occupation for two years. He also accepts that paras (b) and (c) of s 162B are not applicable. The position is obvious in relation to (b), and in the case of (c) he is also disqualified because he rented out the Property for a few months after purchase. 9 The question is whether, nonetheless, it would be 'fair and reasonable for the exemption to apply' the principal place of residence exemption. 10 The Commissioner's delegate's original reasons for rejecting the Vendor's request for relief, and the reasons given later for rejecting his formal objection, gave the following explanation for declining to grant relief: · The purpose of the discretion was to deal with 'unintended consequences' of the legislation; · The short period of use and occupation, 10 to 11 months; · The fact that the Vendor had lost the opportunity of a sale under a contract dated 15 April 2004; · The publicity given to the new legislation; · The likelihood that the Vendor had remained in the market, in the hope of it rising, and had taken the risk of payment of vendor duty; · The need to ensure that a discretion of this kind is not exercised unequally as between taxpayers in like circumstances; and · The fact that the Vendor had received some investment return from the property, from the period of 8 months when it was rented out. 11 At hearing the Tribunal had before it written submissions from the Commissioner and a bundle of relevant cases. The Vendor also made detailed written submissions. The Vendor and his wife gave further explanations of the background to the matter from the Bar table. There was no challenge by the Commissioner to their version of the matter. 12 The Commissioner's position at hearing differed in one significant respect from that reflected in his office's primary decision and decision at internal review. In particular the Commissioner acknowledged that the period of use and occupation for the purposes of the Act can extend beyond the actual period of use and occupation. The relevant provisions have the effect of deeming the Vendor to have been in occupation for 20 months. 13 Two provisions are relevant. The first is cl 41(5) of Schedule 1 to the Act, which provides: '(5) The occupation by a vendor of land to which a vendor duty transaction applies as his or her principal place of residence that ceased not more than 6 months before 1 June 2004 is, for the purposes of the application of clause 4 of Schedule 2 in respect of the transaction, to be treated as having ceased immediately before 1 June 2004.' 14 This provision has the effect, in the present circumstances, of extending the period of occupation for the purposes of the Act to 31 May 2004. 15 The second provision is found in cl 4 of Schedule 2 to the Act. Schedule 2 is made pursuant to s 162E which permits for the making of other restrictions and concessions in applying the exemption for principal place of residence. 16 Clause 4 provides: ' 4 Concession for sale of former principal place of residence (1) If the Chief Commissioner is satisfied that land to which a vendor duty transaction relates has been occupied by the vendor as his or her principal place of residence for a period ending within 6 months before the liability date, that use and occupation is taken, for the purpose of the principal place of residence exemption, to have continued until the liability date. (2) The liability date, in respect of a vendor duty transaction, is the date on which, but for this clause, a liability for vendor duty would arise in respect of the transaction. (3) This clause applies in respect of land only if the Chief Commissioner is satisfied that no income has been derived from the use or occupation of the land since the actual use or occupation of the land by the vendor ceased. (4) The Chief Commissioner may, if satisfied that there is a good reason for doing so, extend the period of 6 months referred to in subclause (1) in a particular case.' This clause has the effect of further extending the period of use and occupation to 16 October 2004. 17 The result is that the period of use and occupation to be credited to the Vendor is 20 months, not 10 months as asserted in the Commissioner's reasons for decision. So, ultimately, the Vendor fell 4 months short of satisfying the two year rule. Assessment 18 The Vendor argues that his circumstances are not the kind to which the vendor duty provisions are directed. They are directed, in his submission, to the investment property sector. While the Property had a brief life as an investment property, upon marriage he and his wife decided to occupy it as their family home. Had they not decided to move to Canberra to advance their careers, they would have continued to occupy the home. 19 In the Tribunal's opinion, their behaviour at the time of the move to Canberra is clearly consistent with these statements. They immediately placed the home on the market for sale, they left it unoccupied, they continued to maintain it, and they bought a family home in Canberra. They were under great financial strain as a result, with mortgage payments having to be paid on the unsold Property, as well as the new home in Canberra. They said they had to get help from their wider family pending sale of the Property. 20 The Act is clearly directed at investment properties. However the Act does not totally exempt sales of the primary residence from duty. The rules leave exposed to liability those that buy and sell the primary residence under two years (after taking account of the provisions covering deemed periods of use and occupation, already mentioned). 21 As already noted, there are relatively detailed provisions covering the operation of the principal place of residence exemption. In addition to the ameliorating provisions found in s 162B(3), already noted, Schedule 2 deals, for example, with the effect of minor incidental business use of the residential premises; sale of former principal place of residence (already mentioned); effect of long period of absence from former residence; right of executor or heir to count prior use and occupation of the deceased; position of former spouses of vendor; and the position in cases where the family occupies more than one residential property. 22 The discretion conferred by s 162B(4) is broad and unfettered. Nonetheless the Commissioner, and the Tribunal on review, must exercise the discretion in a manner which does not defeat the primary revenue objectives of the legislation. It is a discretion which allows the decision-maker to dispense with the strict application of the ordinary rules. A dispensing power must always be interpreted as being subservient to the principal objectives of legislation, and not so as to defeat or seriously impede those objectives. But it will not always be easy to draw the line as to the point at which it is inappropriate to exercise the dispensing power. The Tribunal agrees with the passages from various authorities relied upon by the Commissioner to that effect: see for example, French J in FCT v G M Swift and others 89 ATC 5101 at 5116 and 5118 dealing with a similar provision in the context of the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth): 'The dispensing power is incidental and ancillary to the primary object of the legislation. On the spectrum of cases in which it could conceivably be exercised, there will be a threshold beyond which it would defeat the primary object of the legislation.' See also Giris Pty Ltd v Commissioner of Taxation (Cth) (1968) 119 CLR 365 at 380-381 per Menzies J; and at 384 per Windeyer J. 23 The Tribunal also accepts that an approach is to be adopted which fosters equality of treatment as between taxpayers. As the Federal Court (Full Court) observed in Bellinz v Commissioner of Taxation (Cth) (1998) 84 FCR 154 at 167: '[E]quality of treatment of taxpayers is an aspect of unreasonableness of decision making. There is little difficulty in accepting that, where a decision-maker, including the Commissioner, has a discretion, a principle of fairness will require that that discretion be exercised in a way that does not discriminate against taxpayers: [various authorities cited].' 24 Ms Seiden for the Commissioner submitted: 'It would defeat the intention of [the] legislation if the discretion were exercised in circumstances other than exceptional circumstances, or for unforeseen anomalies.' In the Commissioner's opinion, the present circumstances were not exceptional or anomalous. Assessment 25 The Tribunal accepts that the rules found in s 162B read in light of the restrictions and concessions contained in Schedule 2 are intended to set the usual and ordinary parameters for the imposition of vendor duty. In particular a dispensing power like s 162B(4), one of a kind typical of tax legislation, should not be read so as to thwart or subvert the ordinary operation of the primary rules. 26 As the Tribunal sees it, a primary role for a dispensing power is to permit relief to be afforded in relation to cases of a kind which, had they been known to exist at the time the law was being framed would, in all likelihood, have been given exemption. 27 The dispensing power also provides a means for dealing with minor non-compliance with the strict rules: for example, a case that just falls short of the statutory period, and about which there are other extenuating circumstances. 28 As examples of anomalous situations to which the dispensing power might be relevant, the Commissioner referred to amendments to the Act that took effect on 15 December 2004. First of all, s 162B(4) was repealed, and two further concessions were incorporated into Schedule 2. The Commissioner's contention was that the dispensing power should only be applied to cases of the kind that were the subject of these later amendments. 29 The new concessions are found in cll 9 and 10 of Schedule 2: ' 9 Concession for construction of new residence (1) If the Chief Commissioner is satisfied, in relation to land to which a vendor duty transaction relates, that the vendor was unable to use and occupy the land as a principal place of residence for part of the PPR qualification period because, during that part of the period, the vendor's residence was being constructed on that land, the vendor is taken, for the purpose of the principal place of residence exemption, to have used and occupied the land as a principal place of residence during the period in which he or she was so unable to use and occupy that land as a principal place of residence. (2) This clause applies only if the Chief Commissioner is satisfied that: (a) the vendor actually used and occupied the land, and no other land, as a principal place of residence for a continuous period of at least 6 months starting after completion of the vendor's residence, and (b) no income was derived from the use or occupation of the land during any part of the PPR qualification period. (3) In this clause: liability date in relation to a vendor duty transaction means the date on which, but for this clause, a liability for vendor duty would arise in respect of the transaction. PPR qualification period means: (a) if the vendor became an owner of the land less than 2 years before the liability date, the period during which the vendor has been an owner of the land, and (b) in any other case, the period of 2 years ending immediately before the liability date. 10 Concession for persons under legal disability (1) If the vendor in respect of a vendor duty transaction is the guardian of a person under a legal disability (the protected person), and the transaction relates to land used and occupied by the protected person as his or her principal place of residence, the following provisions apply: (a) the use and occupation of the land by the protected person is taken, for the purpose of the principal place of residence exemption, to be the use and occupation of the land by the vendor, (b) the principal place of residence exemption applies in respect of the vendor duty transaction in the same way as it would apply if the protected person were the vendor in relation to the transaction. (2) Section 162D does not apply in respect of a vendor duty transaction if this clause applies. (3) In this clause: guardian of a person under a legal disability includes a trustee who holds property on trust for the person under an instrument of trust or by order or direction of a court or tribunal.' 30 To ensure that it was not overlooked, the Commissioner drew to the Tribunal's attention a then recent Tribunal decision (Tribunal constituted by Judicial Member, His Honour Acting Judge Block) in Doney v Chief Commissioner of State Revenue [2005] NSWADT 133. There the Tribunal set aside the Commissioner's decision; and applied s 162B(4). (The Commissioner disagrees with the decision, and filed a notice of appeal on 14 July 2005.) 31 The circumstances in that case were different in significant respects from the circumstances of the present case. 32 In Doney the vendors had bought a property early in the year 2000 after moving from Canberra. They occupied it as the family home 21 months until September 2002. They moved out of the home because they were dissatisfied with it, and had decided to renovate it. Pending approval of plans, the making of development applications and the like, they decided to rent elsewhere, and in turn rented their home out. Various difficulties arose, including with architects. The upshot was that by early 2004 they had started looking around to buy elsewhere. They bought elsewhere in May 2004, and sold their former home on 25 June 2004. They could not satisfy the primary two year rule. Moreover, as they were not in occupation at the time of sale, the rule that came closest to their circumstances was that contained in s 162B(3)(b) – the mixed investment/residential use provision. It applies if there is continuous use and occupation of the subject property for three of the previous five years. Theirs was a case of 21 months' occupation over the previous five years. So they remained 15 months' short, and turned to the discretion given by s 162B(4). The Commissioner refused to exercise the discretion. The Tribunal, setting aside the Commissioner's discretion, decided that it should be applied. 33 The Tribunal saw the renting out of the property as no more than a necessary domestic response to the economics of having to maintain the home while renting elsewhere. It was not being treated as an investment property in the way that term is usually used, as a second owned property, the first being the family home. 34 The Tribunal said at paras [31-32]: '31 In the result and on analysis it is my view that the Applicant when she sold the Residence did in substance, if not in strict fact, sell her PPR. It is true that she was not living in it at the time because, for good and proper reasons she had vacated the Residence in order to live firstly in the Rental Home and thereafter (for a short period prior to sale of the Residence) in the second Artarmon property. It is also true that she rented out the Residence for a short term which in the result proved to be longer than first anticipated, and that she received rental in consequence. That too is explicable on the basis that it did no more than minimise the cost in rent of the Rental Home. The fact that she claimed deductions evidences nothing more than that she claimed what in law she was entitled to claim. The period of occupation of 21 months was more than half the period of 3 years prescribed by section 162B (3) (b). 32 The discretionary power conferred by section 162B (4) was clearly given to enable the Respondent to relieve taxpayers where the relevant provisions applied in a manner which was unreasonable or harsh. It cannot be sufficient for the Respondent in denying relief to recite the provisions and then to deal with the matter by denying relief because there was not compliance with those provisions. On this basis the discretion itself is denied meaning and effect. To grant the relief sought would in my view be fair and reasonable; to do so would accord with the underlying policy and would not go beyond the threshold described by French J in Swift's case; to exercise the discretion in favour of the Applicant is in my view the correct and preferable decision. It is my view moreover that this is the type of case envisaged by the provision and where because of factors (reasonable in all the circumstances) there was not strict compliance with relevant time provisions.' 35 The present case is, the Tribunal considers, a clearer case that Doney: (i) Perhaps the only negative in this case as compared to Doney is that there was a period immediately after purchase when the Property was used as an investment vehicle, while the Vendor continued to live at home with his parents. He occupied it as his domestic residence upon marriage as from February 2003. From that point onwards until its ultimate sale in October 2004 there was no further use of the home to earn income, in contrast to the situation in Doney . (ii) In the long period during which the Property was on the market there was no attempt to reduce the impact of the double costs the couple now faced (having not sold in Sydney and having bought in Canberra), in contrast to the situation in Doney. (iii) The actual time of occupation of the Property as the principal place of residence was only 11 months, a little less than half the allowed time, but when the deeming provisions are taking into account (clearly intended to provide some relief for people who were caught up in the transition to the new law), they 'occupied' the property for the purposes of the Act for 20 months, and were 'in occupation' in the deemed sense at the date liability first attached (October). Arguably, the net result puts their position in a stronger position than that found in Doney. They fell short of the time requirement by less than four months, compared to Doney where it was 15 months. (iv) The situation that led the couple to vacate the Property was one of their own making, but arguably one with a basis deserving of greater consideration than the situation in Doney, where it was done simply because the house had proved not to be satisfactory to live in. The vendor in Doney could have stayed on, at least until the renovation commenced. 36 The present case is also a much stronger one in so far as the social or domestic factors leading to inability to satisfy the usual exemption provision is concerned. This is a young couple looking to advance their careers, and to that end making a joint move to Canberra. The Tribunal accepts that the case is not as strong as ones where the Vendor is compelled to take a transfer. Interestingly the new cl 10 in Schedule 2 addresses one species of compelled removal from the family home short of the two year period (removal into care under a guardianship order). But surprisingly, now that the dispensing power has been removed, there seems to be no mechanism for dealing with (arguably) parallel examples where people have no practical choice such as, for example, the employee (teacher, police officer, the court officer, there are many examples) who is directed to move to another part of the State or the country. The Tribunal would have thought that these are 'exceptional circumstances', to use Ms Seiden's words, that could be allowed for without undermining the fundamental objective of this taxing measure. 37 There are indications in the legislative scheme itself that tend to support favourable consideration being given to this case. 38 As noted earlier, cl 4 of Schedule 2 provides a concession in calculating the relevant time period in cases of the sale of a former principal place of residence. The vendor can be gone from the home for 6 months prior to sale. Those 6 months will be counted to the two year period. 39 Moreover cl 4(4) allows the Commissioner to extend that period further back if 'there is a good reason for doing so … in a particular case'. 40 So the Commissioner can make an adjustment in cases where the property was left vacant for more than 6 months prior to the eventual sale. It is therefore possible for a person to fall well short of the two year rule and through this discretion have a long vacant period counted. 41 Two factors in this case are, in the Tribunal's opinion, significantly favourable to the Vendor's case (especially as compared to Doney): (i) their clear intention, had they not relocated for job purposes, to continue to occupy the property as their family home long-term; and, consistent with that (ii) the non-earning of income, once they vacated it to move to Canberra. 42 Some account should also be taken of the period, including the deemed periods, of occupation – a total of 20 months. It is reasonable, the Tribunal thinks, to employ the general discretion to allow for a further four months to be added post-sale. This is not so different from the principle found in cl 4(4) as it relates to long pre-sale periods. 43 The Tribunal disagrees with the Commissioner, and does not think that it is a factor of any great significance that the Vendor lost a potential sale in the March/April 2004 period. The couple have said that they believe they lost the sale because of the uncertainty that was caused in the minds of the prospective purchasers by the dispute with them by the two agents over the commission issue. The Commissioner has criticised them over this occurrence, and suggested that they only had themselves to blame in delaying because of the commission dispute, and in the process losing the deal with the prospective purchasers. The key point, the Tribunal considers, is that they were genuinely in the market and trying to sell. It may or may not be the case that the delay caused by the commission dispute led to the loss of the sale. 44 In any case, the Tribunal would be loath to make any specific findings around the circumstances of the lost sale. It may well be that, had the prospective purchasers given evidence, it would have turned out that the reason they gave to the Vendor for not pursuing the sale (the uncertainty created by the commission dispute) may not have been the motivator for their decision to pull out during the cooling-off period and go elsewhere. 45 It was suggested that some regard should be had to the publicity that surrounded the vendor tax initiative, and the Vendor should be assumed to have had some understanding of the implications that he faced if he let the April offer go. The possible sale fell over only a few days after the Government announcement. The Vendor, especially one in the present circumstances who is not selling an investment property, could hardly have been expected to have a precise understanding of the measure. 46 The Vendor may well have thought from the publicity that family homes were totally exempt. That was very much the rhetoric of the day, as is reflected in the following comments of the Treasurer to Parliament (6 April 2004): 'An overheated property market is no good for the economy, it's no good for young people and families who are battling to buy their first home and are priced out of the market. … An overheated property market is only good for people like me – people who, besides owning their own home, have made good profits by owning an investment or second property.' 47 Here we are dealing with a young family battling to deal with the cost implications of a job move. They are not people who, besides owning their home, have an investment or second property. 48 The Tribunal accepts the Commissioner's submission that the equitable treatment of taxpayers in like circumstances is important. But this factor can not be taken so far as to preclude from just treatment a case brought to the Tribunal simply because there have been instances in the past where comparable cases were treated differently by the Commissioner, and did not find their way to the Tribunal for review. 49 Moreover, while the Commissioner asserted that to dispense the Vendor from compliance would lead to inequitable results, nothing was placed before the Tribunal as to how many like cases had been considered by the Commissioner, and what their outcome was. No detailed picture was provided of the way the Commissioner has exercised this discretion. 50 A dispensing power will, it seems to the Tribunal, have an important role to play in the early stages of implementation of any new tax. During this period cases will come to light which, as previously noted, had they been thought about in advance may well have received concessional treatment. As time passes and the way the new tax operates becomes better understood, it may be that a dispensing power will have a reduced role. The dispensing power may even be repealed, as occurred here after 6 months. 51 This is very much a transition period case. The Vendor and his wife moved to Canberra at a time when they could not have factored in to their thinking the possibility of having to pay vendor tax. They did not, as they might have, take any steps to convert the home back to use as an investment property. The house took longer to sell than they had hoped. No doubt they would say, with the understandings that hindsight provide, that they would have been better off to have sold in April 2004. 52 There are indications, as noted, at various points of the legislative scheme as well as in the extrinsic material, that the Parliament was not keen to impose any undue burden by way of vendor duty on ordinary home owners, especially young, new owners. The primary rules do not quite cover this case. But the Tribunal thinks this is the kind of case where relief can be given under the dispensing power without in any way derogating from the primary objectives or rationale for the imposition of the duty. 53 Presumably, there were other cases in the June-December 2004 period where, prior to the two year period of occupation being achieved (after taking account of the deeming rules), sale was necessitated by a move to take up a new job. In the Tribunal's view it would be a harsh application of this discretion for people in circumstances like these not to be given relief from the tax – young people building their careers who have made a job move short of two years of continuous occupation. 54 In the Tribunal's view the most important factor in applying the discretion is that of intention as to occupation and then the degree to which the two year rule was met, allowing for the deeming provisions. The Vendor, on a reasonable assessment of the evidence viewed overall, would have continued in the subject property as the principal place of residence for the whole two year period but for the domestic exigencies that arose. Order Decision under review is set aside.