CITATION: Nguyen v Chief Commissioner of State Revenue [2009] NSWADT 289 DIVISION: Revenue Division APPLICANT Cam Loan Nguyen PARTIES: RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 086106 HEARING DATES: 1, 21 May 2009 SUBMISSIONS CLOSED: 21 May 2009 DATE OF DECISION: 24 November 2009 BEFORE: Hirschhorn M - Judicial Member CATCHWORDS: First Home Owner Grant and First Home Plus Concession - First Home Owner Grant Act 2000 LEGISLATION CITED : Duties Act 1997 Taxation Administration Act 1996 Snow v Chief Commissioner of State Revenue (No 2) [2005] NSWADT 278 Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 Sobhani v Chief Commissioner of State Revenue [2009] NSWADT 198 Larsson v Chief Commissioner of State Revenue [2008] NSWADT 208 CASES CITED: Agiostratis v Chief Commissioner of State Revenue [2008] NSWADT 23 Gomez-Martinez v Chief Commissioner of State Revenue [2007] NSWADT 251 Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor [2004] NSWADTAP 19 at [60] Giunta v Chief Commissioner of State Revenue [2005] NSWADTAP 19 The Ettamogah Mob Australia Pty Ltd & Ors v Chief Commissioner of State Revenue [2005] NSWADT 22 APPLICANT T Mullen, solicitor REPRESENTATION: RESPONDENT A Gerard, solicitor 1. The decision of the Chief Commissioner of State Revenue to recall the Grant is affirmed ORDERS: 2. The decision of the Chief Commissioner of State Revenue to revoke the FHP Concession is affirmed 3. The decision of the Chief Commissioner of State Revenue to assess interest at both the market and premium rate is varied by remitting half of the premium component of interest. REASONS FOR DECISION Introduction 1 This was an application for review of a decision of the Chief Commissioner ("the Respondent) on 2 July 2008 to recall from the Applicant a First Home Owner Grant ("the Grant") made under the First Home Owner Grant Act 2000 ("FHOG Act") as well as a decision on 27 May 2008 to reverse the First Home Plus Concession ("FHP Concession") received by the Applicant pursuant to the Duties Act 1997 ("Duties Act"). 2 The Applicant relied on a statutory declaration of the Applicant, two witness statements of the Applicant, a statutory declaration of a licensed plasterer, a statutory declaration of the mother of the Applicant, clinical notes of her daughter's doctor and a bundle of documents tendered to the Tribunal. The Applicant also prepared detailed written submissions and submissions in reply and made oral submissions at the hearing. 3 The Respondent filed the Section 58 documents, two sets of supplementary Section 58 documents, a bundle of documents entitled "Respondent's evidence", an affidavit of an employee from a mortgage broker, a further bundle of documents entitled "Respondent's further evidence" and current and historical extracts from the register of the Australian Securities & Investment Commission for a company referred to hereafter in these reasons as "LA Designs". The Respondent also filed detailed written submissions, submissions in reply and made oral submissions at the hearing. 4 The matter was heard over two days and there were several large folders of tendered documents and submissions as well as authorities upon which the parties relied. There was also an extensive cross-examination of the Applicant by the representative for the Respondent on the first day of the hearing. The Tribunal refers to this cross-examination further below. The Tribunal also requested and received from the representatives for the Applicant and Respondent, a statement of the facts that they contended ought to be found by the Tribunal. Facts 5 There were a number of factual disputes between the parties and, where relevant, the Tribunal has indicated the matters in dispute and set out its findings later in these reasons for decision. 6 On 2 February 2007, the Applicant entered into a contract to purchase the subject property ("the Property"). The purchase price was $460,000.00. 7 A deposit of $92,000 was paid in respect of the Property (half being paid on exchange and the balance on settlement). The Applicant stated in cross examination that this was made up of $20,882.00 in her bank account, the Grant of $7,000.00, an unconditional gift from her mother of $30,000, the sale of between $20,000.00-$30,000.00 of jewellery and borrowings from either her sister or a friend. 8 The First Home Owner Grant ("the Grant") was paid to the Applicant on 21 March 2007. 9 At the time that the Applicant entered into the contract for the purchase of the Property she was a part-time university student and was not employed. She was receiving benefits from the Commonwealth together with support payments in respect of her daughter (referred to hereafter in this reasons as "the daughter"). The Applicant's approximate weekly income was $550-$650. The evidence of the Applicant that her weekly income in February 2007 was $650 per week was challenged by the Respondent in cross-examination and the Applicant clarified that she did not have paid employment at that time per week and Tribunal makes a finding that her income at that time was around $550 per week. 10 The evidence of the Applicant was that before she decided to buy the Property, she spoke with her family about it and her mother and sister who were paying quite high rent at the time agreed to share two rooms at the Property. The Applicant said that this was good for her as her mother could take care of her daughter while the Applicant worked. The Applicant was expecting to receive rent from her mother of $250 per week and from her sister of $150 per week. 11 On 31 March 2007, the contract for the purchase of the Property was completed. The Applicant received the FHP Concession in respect of duty otherwise payable with respect to the transfer of the property and the mortgage. 12 The Applicant financed the balance of the purchase price of the Property with the aid of a mortgage over the Property in favour of a financier ("PT Ltd") in the sum of $368,000.00. At the time the Applicant's mortgage repayments were approximately $2,554.63 per month (i.e. $563 a week). 13 On 15 July 2007, the Applicant started working at LA Designs for 3 to 4 hours per week earning approximately $100 per week. 14 When the Applicant purchased the property, she was aware that the Property was subject to an existing lease which was due to expire on 19 September 2007. On 30 March 2007 (i.e. one day before settlement), the Applicant signed a Management Agency agreement with a real estate agent in respect of the Property. The Applicant clarified in cross examination that she signed this in respect of the existing lease over the Property. The agency rights were granted by the Applicant to the real estate agent until the agreement was terminated by not less than 60 days notice by either party. 15 Between 31 March 2007 and 20 August 2007, the existing tenants of the Property paid the Applicant approximately $400.00 per week in rent. At this time, the Applicant was herself paying approximately $200 rent per week for a property in which she was living. 16 The tenants of the Property moved out on 20 August 2007 one month early. The Applicant said that she asked the tenants to leave the Property. As stated above, the lease was only due to expire on 19 September 2007. 17 The Applicant and her daughter moved into the Property on 20 August 2007. 18 The Applicant said that when she moved in, the Property was old and dusty and the previous tenants had kept dogs in the Property which her daughter had an allergy to. The Applicant said that the Property was in a worse condition that when she first inspected it such as walls inside built in wardrobe being broken, cut floorboards under the bed and mould along the walls. The Applicant was unsure whether the damage existed when she inspected the Property or had been caused afterwards. 19 On the day the Applicant moved into the Property, she engaged a cleaner to clean the Property for $880.00. She also engaged a licensed gyprock plasterer ("Mr H") to renovate the Property. 20 A Statutory Declaration from Mr H was before the Tribunal. In that document, Mr H expressed an opinion that the Property was used to plant prohibited cannabis. He said there was mould and a strong smell in the ceiling and that he found cannabis leaves in the ceiling. These matters were in dispute between the parties and the findings of the Tribunal are set out below in the reasons for decision. 21 The renovation work performed by Mr H cost the Applicant $8,285.00. The Applicant paid Mr H in cash using part of a sum of $18,000.00 that she had been loaned from a friend in Vietnam. 22 Even though the Property had been renovated, the Applicant said that she could not get rid of the smell and the Property was not inhabitable for her family. She said in her statement that her daughter was always sick, itching as well as vomiting and could not sleep in the Property due to its existing condition. The Applicant tried using insect repellent to stop the biting and Sorbolene and vitamin E cream to stop the itching but they did not work. She said that she did not take her daughter to the doctor because she (i.e. the daughter) was scared of the doctor and the Applicant thought it was the house causing the problem and the doctor could do nothing anyway. These matters were in dispute between the parties and the findings of the Tribunal are set out below in the reasons for decision. 23 The Applicant said that she lived in the Property from 20 August 2007-10 September 2007 but to protect her daughter's health, she decided she had to move out. She also decided to sell the house because she could not afford to pay rent and mortgage repayments at the same time and because her mother and sister would not live in the house and pay her rent. These matters were in dispute between the parties and the findings of the Tribunal are set out below in the reasons for decision. 24 The Applicant annexed to her initial witness statement a copy of an electricity bill issued to her at the address of the Property and referable to 24 August 2007 and 18 September 2007, 10 March 2008-6 May 2008, council rates apparently referable to 30 April 2008 and a bank statement referable to 1 March 2008 to 28 March 2008. 25 At the time the Applicant moved out, she said the property market was slow and a real estate agent said it would be quite hard to sell the Property so she leased out the Property with a short term agreement (3 months) and restricted animals in the house hoping that the smell would improve. The Applicant leased the Property to a tenant referred to hereafter as Mr J for $400 per week. 26 The Applicant and her daughter then stayed at the house of a relative between 10 September 2007 and 27 November 2007. She paid $290 per week in rent. The Applicant said that her daughter's health was better whilst they lived there. 27 Following this, the Applicant rented another property from approximately 27 November 2007 to early March 2008 for $350 per week. 28 The Applicant then said that she knew she would lose money if she sold the Property and she thought the house may have got better with another tenant living in it so she tried to live in the Property again on 8 March 2008. The Applicant tendered a removalist invoice indicating a fee charged for moving from address of the rental property where she had been living to the address of the Property. 29 The Applicant said that on moving back into the Property, her daughter started to have the same symptoms as previously. On 1 April 2008, the Applicant said that she went to a doctor (referred to hereafter in these reasons as "Doctor D") to get some medicines for the skin problems and vomiting for her and her daughter. These matters were in dispute between the parties and the findings of the Tribunal are set out below in the reasons for decision. 30 The Applicant said that when she was living in the house again she was very worried about how she would pay for everything and her daughter's health and she couldn't concentrate and dropped out of university and had two car accidents. 31 The Applicant said that she decided to sell the Property to protect her daughter's health and as she could not live in it, she could not afford to keep it. This matter was in dispute between the parties and the findings of the Tribunal are set out below in the reasons for decision. 32 The Applicant entered into a contract to sell the Property to a purchaser ("Mr XC") on 22 March 2008 (being 14 days after she had moved back into the Property). At some point between 15 March 2008 and 22 March 2008, Mr XC inspected the Property, made an offer the next day to purchase the Property according to the evidence of the Applicant under cross-examination. 33 The sale of the Property was completed on 7 May 2008. 34 On 4 April 2008, the Applicant had received a letter from the Office of State Revenue requesting the Applicant to confirm that she had met the residence requirement. 35 On 10 May 2008, three days after the Applicant had completed the sale of the Property to Mr XC, she took her daughter to the Applicant's usual doctor (referred to hereafter as "Doctor N") who diagnosed her daughter with extensive pruritic disruption on the upper and lower limbs. The letter from the doctor stated that this may be due to some form of insect bites. The Applicant annexed to her witness statement some photographs of her daughter which showed rounds marks on her arms and legs. It was unclear to the Tribunal from the Applicant's witness statement when those photographs were taken and/or the name of the person who took them. 36 At the hearing, there was a brief examination in chief of the Applicant, an extensive cross-examination of the Applicant by the representative for the Respondent and then a re-examination of the Applicant by the Applicant's representative. The Tribunal observed the Applicant whilst she was giving evidence and noted that the Applicant often failed to answer the question that had been asked (in cross-examination in particular) and on a number of occasions, appeared to be trying to anticipate the reason for a particular question rather than answering the question frankly and to the best of her recollection. These observations together with some inconsistencies in the evidence of the witness that appeared under cross-examination and an admission, after being cross-examined in respect of a credit history document, that she had lied to a credit card provider in order to obtain a credit card, led the Tribunal to conclude that, as a witness, the Applicant was not entirely reliable and the Tribunal has approached her evidence with some caution. The decisions of the Respondent, the objections and the application for review 37 On 27 May 2008, the Respondent wrote to the Applicant informing her that it had decided to (a) reverse the decision to give the Applicant the FHP Concession and a reassessment was made under section 9(1) Taxation Administration Act 1996 ("TAA") on the basis of the failure to meet the residence requirements of Section 76 of the Duties Act. The assessment was for the relevant duty payable under Section 76A of the Duties Act and interest under the TAA. 38 On 2 July 2008, the Respondent wrote to the Applicant informing her that it had decided to reverse the decision to pay her the Grant on the grounds that she had failed to meet the residency required in Section 12 FHOG Act. The notice of assessment required the repayment of the Grant but no penalty was imposed. 39 On 12 August 2008, the Applicant objected to the decision of the Chie Commissioner not to allow a shorter period to occupy the Property pursuant to the discretion available to the Chief Commissioner under the FHOG Act. The Applicant had requested the discretion to be exercised in letters dated 21 May 2008 and 9 June 2008. 40 The Objection decision made on 1 September 2008 disallowed in full the Applicant's objection to the decision by the Respondent to recall the FHOG and the FHP Concession. 41 The Objection decision concluded that the requirements of Section 12(1) of the FHOG Act had not been met and that the Respondent was not satisfied that the Applicant's circumstances warranted the exercise of a discretion to approve a short period of occupation under Section 12(3)(b) FHOG Act. Further, the letter also concluded that the requirements of Section 76(1) Duties Act had not been met and that the reasons put forward by the Applicant did not warrant the exercise of a discretion under Section 76(2)(a) to approve a shorter period of residency. 42 On or around 2 October 2008 the Applicant made an application to the Tribunal for review of the objection decision of the Respondent dated 1 September 2008. Although the applicant sought review of the objection decision, the matter proceeded at hearing as a review of the original decisions of the Respondent referred to above which were to the same effect as the objection decision. Legislation FHOG Act 43 In this case, the Grant was paid by the Respondent to the Applicant in accordance with Section 20(1)(b) FHOG Act, that is, before but in anticipation of the Applicant occupying the Property as his or her principal place of residence and meeting the requirements of Section 12(5). 44 Section 20(3) provides that where a grant is paid to an Applicant in anticipation of compliance with the residency requirement, the payment is made on condition that if the residency requirement is not complied with the Applicant must within 14 days after the end of the period for compliance give written notice of that fact to the Chief Commissioner and repay the amount of the grant. A failure to comply with the condition in Section 20(3) constitutes an offence. Section 23 of the FHOG Act provides the Chief Commissioner with power to vary or reverse a decision he has made in respect of an application for a grant where he is later satisfied that the decision is incorrect. 45 The decision to recall the FHOG was based on the failure of the Applicant to satisfy what is sometimes referred to as the "residency" requirement in Section 12, sub clause 1 as follows: 12 Criterion 5—Residence requirement (1) An applicant for a first home owner grant must: (a) commence occupation of the home to which the application relates as the applicant's principal place of residence within 12 months after completion of the eligible transaction or the period approved by the Chief Commissioner under this section, and (b) occupy the home as a principal place of residence for a continuous period of at least 6 months or the period approved by the Chief Commissioner under this section. (2) This requirement is referred to in this Act as the residence requirement . (3) The Chief Commissioner may, if satisfied there are good reasons to do so, do either or both of the following: (a) approve the commencement of occupation by the applicant of the home to which the application relates as a principal place of residence more than 12 months after completion of the eligible transaction, (b) approve the occupation of the home as a principal place of residence for a period of less than 6 months. (4) The Chief Commissioner may, if satisfied there are good reasons to do so, exempt an applicant from the residence requirement. (5) An approval or exemption under this section may be given by the Chief Commissioner at any time, even if the period of 12 months after completion of the eligible transaction has already expired or the applicant's occupation of the home as a principal place of residence has already ceased. (6) 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. Duties Act 46 Under the First Home Plus Concession Scheme, an applicant who satisfies the relevant criteria is entitled to an exemption from liability for duty in respect of certain "eligible agreements or transfers (section 80 Duties Act). 47 At the relevant time, section 69 stated the following: 69 The nature of the scheme This scheme is intended to help people who are acquiring their first home. Under the scheme, the acquisition and any mortgage given to assist the financing of the acquisition is subject to a concession or exemption from duty. 48 Amongst other requirements (eg sections 70 and 74), an Applicant under the FHP Concession was required to comply with the requirements of section 76 which, at the relevant time provided: 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. (3) In the case of an agreement or transfer for the acquisition of a vacant block of residential land, it is sufficient that the Chief Commissioner is satisfied that the vacant block is intended to be used as the site of a home to be occupied by the person or persons who are acquiring it as their principal place of residence. (4) The residence requirement does not apply to a person who acquires an interest in the property concerned solely for the purpose of assisting the eligible persons under the scheme in financing the acquisition. (5) For the purpose of this section, an agreement or transfer is completed when a purchaser or transferee becomes entitled to possession of the home and, if the interest in the land acquired by the purchaser or transferee is registrable under a law of the State, the interest is so registered. (6) (Repealed) 49 The FHP concession was approved by the Respondent in this case in accordance with the provisions of section 76A, that is, in anticipation of the Applicant complying with the residence requirement in section 76. Section 76A(2) essentially provides that such 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 give written notice of that fact to the Chief Commissioner and pay the relevant duty to the Chief Commissioner (being the difference between the duty that would have been payable in the absence of the FHP Concession and the total amount of duty that was paid). A person who fails to comply with this condition is guilty of an offence. Jurisdiction 50 Jurisdiction to review the abovementioned decisions of the Respondent is conferred on the Tribunal by section 28(1) FHOG Act and section 96 of the TAA (refer also: Snow v Chief Commissioner of State Revenue (No 2) [2005] NSWADT 278). It is for the Applicant to prove her case (section 28(3) FHOG Act and section 100(3) TAA). Issues 51 The issues for determination by the Tribunal may be summarised as follows: A. Whether there are good reasons such that it is appropriate to approve the occupation of the Property by the Applicant as a principal place of residence for a period of less than 6 months pursuant to Section 12(3)(b) FHOG Act or to exempt the Applicant from the residence requirement pursuant to Section 12(4) FHOG Act? B. Whether there are good reasons to modify the residence requirement by approving a shorter period of occupation of the Property by the Applicant or to exempt the Applicant from the requirement to comply with the residence requirement pursuant to Section 76(2) of the Duties Act? C. Whether if there is found to be a tax default in relation to the FHP Concession, the market rate component or the premium rate component of interest or both should be remitted pursuant to Section 25 TAA? Discretion – FHOG Act & Duties Act 61 It was common ground between the parties that the Applicant failed to meet the residency requirements in section 12(1) FHOG Act and section 76(1) Duties Act. 62 The Applicant sought the exercise of the discretions in Section 12(3) FHOG Act and Section 76(2) Duties Act on the basis that the Applicant intended to occupy the Property and it was only because of a change in circumstances after the purchase of the Property that the Applicant was unable to satisfy the relevant residency requirements. 52 In summary, the change in circumstances were a deterioration in the condition of the Property, the perceived effect on the Applicant's daughter's health with the consequence that the Applicant's mother, sister and niece were no longer willing to live in the Property and pay rent to the Applicant and the financial issues that this caused to the Applicant. 53 The Respondent submitted that having regard to all the facts and circumstances of the matter, the discretionary powers should not be exercised by the Tribunal in favour of the Applicant. The circumstances, viewed in their proper light, were not "good reasons" for the purposes of those sections. Nature of the discretion 54 As the Respondent correctly pointed out, the power of the Respondent in s.12(3)(a) FHOG Act and section 76 Duties Act is a discretion and there are no express conditions or considerations in the legislation itself governing the exercise of the discretion. The Tribunal agrees with the Respondent that the circumstances that would constitute "good reasons" for its exercise and, therefore, the scope of the discretionary power, must be determined in the context of the FHOG Act or the Duties Act respectively. 55 The discretionary powers in section 12 and section 76 must also be exercised in a manner which does not "defeat the fundamental legislative objectives of the scheme of regulation within which the dispensing power is located": see Chief Commissioner of State Revenue v Pacific General Securities Ltd & Finmore Holdings Pty Ltd (No 2) (RD) [2005] NSWADTAP 54. As French J noted in Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 in relation to the dispensing power available to the Commissioner in that case (at 696): 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. 56 The Second Reading Speech of State Revenue Legislation Further Amendment Bill 2005 in respect of the Act that ultimately introduced amendments to the FHOG Act that confirmed that the discretions in sections 12(3) and 12(4) could be exercised at any time (i.e as opposed to only during the original 12 month period following completion of the eligible transaction – refer new section 12(5)) stated the following in relation to the amendments: The bill also clarifies the circumstances in which the Chief Commissioner may exercise certain discretionary powers. Eligibility for the grant includes a residence requirement, which states that the applicant must occupy the home as his or her principal place of residence for at least six months commencing within 12 months of purchase. The Chief Commissioner is given the power to extend the period of 12 months, to reduce the period of six months, or to waive the residence requirement completely. The discretions are intended to allow the grant to be retained in circumstances were the applicant genuinely intended to occupy the home as his or her principal place of residence, but failed to do so due to a change in circumstances after the purchase of the home. The legislation limits the time at which the Chief Commissioner can exercise this discretion. This could have unfair consequences, particularly where a failure to comply with the residence requirement arose from changes to the health, employment or financial situation of the applicant or the applicant's family. The bill confirms that the Chief Commissioner can exercise the discretions at any time" 57 In Sobhani v Chief Commissioner of State Revenue [2009] NSWADT 198 Judicial Member Verick stated, in the context of the relevant discretions, the following: "The discretion is intended to allow the grant to be retained under the FHOG Act and FHP Concession to apply under the duties Act in circumstances where the applicant had a real bona fide intention to occupy and use the home as his or her principal place of residence but failed to do so due to a change in circumstances after the purchase of the home. Generally speaking, an acceptable circumstance would be one outside the control of the applicant. Without placing any limitation, the circumstances would include the need for an applicant to move interstate or overseas to carry out work duties, the serious illness of an applicant after exchange of contracts preventing occupation and use of the property, or a financial difficulty, for example loss of the income-earning job, after purchase of the property." The deterioration of the Property 58 The Applicant submitted that upon moving into the Property on 20 August 2007 following the early vacation of the Property by tenants, the Applicant was confronted with a number of serious problems with the house. 59 The evidence of the Applicant was that the Property was old and dusty and the prior tenants had kept dogs which her daughter was allergic to. The Applicant also noticed damage to wardrobes and floorboards and mould along the walls. 60 The Applicant tried to clean everything but could not remove the smell in the Property so she hired a professional cleaner. She also hired a licensed plasterer, Mr H, to renovate the property. 61 Mr H made a statutory declaration on 10 August 2008 and stated that he started to fix the interior gyprock of the property on 22 August 2007 and found it to be badly damaged with holes cut in the ceiling and floor boards. He said there was mould and a strong smell in the ceiling and that he found cannabis leaves in the ceiling. He expressed an opinion the Property had been used to plant prohibited cannabis. 62 Mr H was not cross-examined and his evidence about what he saw and smelled in the Property was not challenged by the Respondent. The Tribunal accepts his evidence as to the damage he saw in the Property and the smell he observed in the ceiling and in this regard it corroborates some of the evidence of the Applicant. 63 In relation however to the Mr H's evidence and conclusions about cannabis leaves and the planting of cannabis plants in the ceiling, there was no indication that he had any expertise in such matters that would enable him to express such opinions. The statutory declaration did not meet the requirements for expert evidence set out in the Practice Note of this Tribunal. In the circumstances the Tribunal has placed little weight on his evidence in this regard. 64 The evidence of the Applicant was that an amount of $8,285.00 was paid to Mr H for gyprock, plaster, floorboard and painting. The damage that the Applicant and Mr H observed in relation to the Property appears to have been fixed by Mr H between 22 and 27 August 2007. The Tribunal concludes therefore that the damage to the Property was not something that actually prevented the Applicant occupying the Property after it was fixed on the abovementioned dates. 65 As for the smell that the Applicant and Mr H both observed in the Property, there is no evidence from which the Tribunal could find that this smell actually made the Property uninhabitable from 31 August 2007 to 8 March 2008 and/or thereafter. Indeed the evidence of the Applicant is that she leased the Property to a tenant from 8 September 2007 initially to 11 December 2007 and ultimately to early 2008 for $400 rent per week (precisely the same rent as the prior tenants had paid). 66 The Tribunal has also taken into account a contemporaneous letter from a real estate agent (referred to hereafter as "Mr P") on 31 August 2007 (tendered by the Applicant) who was engaged by the Applicant to lease and/or sell the Property. The letter refers to an inspection of the Property having taken place and refers to the repairs that are to be made to the Property. From this, the Tribunal infers that his inspection took place prior to the repairs carried out to the Property, such repairs having taken place between 22- 27 August 2007. The letter does not refer any smell in the Property that may need to be addressed before it could be sold or let. 67 The Tribunal also infers from the letter from Mr P that as his inspection must have taken place before 22 August 2008, the Applicant must have spoken to him and arranged the inspection on or before 22 August 2008 i.e. only two days after moving into the Property. The effect (or perceived effect) of the Property on the health of the Applicant's daughter 68 The Applicant gave evidence that shortly after moving into the Property on 20 August 2007, her daughter became unwell. 69 The Applicant said that her daughter was: "…always sick, itching as well as vomiting and could not sleep well while live in the property due to existing condition. I tried using insect repellent to stop the biting and Sorbolene and vitamin E cream to stop the itching but they did not work. I did not take my daughter to the doctor at this time because she is scared of the doctor and because I thought it was the house that was causing the problem and the doctor could do nothing anyway". 70 The Applicant's mother and sister also apparently formed the view around this time that the Property was the cause of the daughter's bad health. 71 The Applicant stated that her mother and sister, after seeing the daughter unwell and under the belief that the property had been used to plant cannabis (arising from the opinion of Mr H referred to above), advised the Applicant to sell the Property and informed her that they would now not move in and pay rent. 72 The Applicant's mother made a statutory declaration that was tendered by the Applicant at the hearing. The mother confirmed that she advised the Applicant to move out of the Property to protect the daughter's health. She confirmed that she agreed verbally to live with the Applicant and pay her rent of $250.00 but changed her mind after hearing that the handy man said the Property might be used to plant cannabis as she was concerned about her own health. The evidence of the mother was not challenged by the Respondent and the Tribunal makes findings in accordance with her evidence above. 73 The Applicant's sister did not give evidence. The Tribunal infers that the evidence of the sister would not have assisted the Applicant in respect of establishing that there was an agreement by the sister to pay $150 per week rent for the Property prior to its purchase by the Applicant and that this agreement changed as a result of deterioration of the Property. 74 The Applicant said that she lived in the Property until 10 September 2007 but decided that she needed to move out to protect her daughter's health. She did not take her daughter to the doctor at this time because her daughter was scared of the doctor and because, in any event, the Applicant thought that it was the Property causing the problem. 75 The Applicant said that her daughter's health improved after she moved out of the property on 31 August 2007 and stayed at the house of a relative of her ex-husband. 76 The Applicant also stated that she moved back into the Property on 8 March 2008 in the hope that her daughter's health issues would no longer exist. The Applicant said that once they moved back into the house, her daughter began to have the same symptoms as before. 77 The Applicant said in her initial witness statement that on 1 April 2008 she went to a doctor (referred to in this reasons hereafter as "Doctor D") to get some medicines for the skin problems and vomiting for her and her daughter. The Applicant said that she did not take her daughter because she was scared of doctors and the Applicant told Doctor D what the problem was. The Applicant annexed a pharmacy receipt showing the creams and tablets that were purchased on this occasion for her and her daughter. However the Tribunal notes that the clinical notes produced by Doctor D indicate that the prescriptions were for the Applicant. The Applicant clarified in a supplementary witness statement that only the cream was for her and her daughter's skin problems. The Tribunal is persuaded in respect of this matter by the clinical notes of the doctor which refer to the prescription for the cream being for the Applicant. 78 The Applicant also gave evidence in her initial witness statement that on 10 May 2008 (following she took her daughter to her usual doctor ("Doctor N") who diagnosed her daughter with extensive pruritic disruption on the upper and lower limbs. Doctor N indicated in his letter to the Applicant of the same date that it may be due to some form of insect bite. Doctor N's clinical notes, obtained by the Respondent under summons, stated: "moderate erythematous eruption on the arms, legs, nil pustules, nil signs of secondary skin infection. Clinically she has signs of insect bites". 79 The Respondent summonsed the medical records for the Applicant's daughter from Doctor D and Doctor N and submitted that these showed that the Applicant had on many prior occasions taken her daughter to the doctor for ailments and general check-ups. The Respondent submitted that on this basis it was difficult to accept the Applicant's evidence that she did not take her daughter to the doctor in respect of the symptoms she was suffering from residing in the Property simply because her daughter was scared of the doctor. 80 The Respondent also pointed to the fact that, in documents summonsed by the Respondent from Doctor D, the records showed that the Applicant had in fact taken her daughter to see Doctor BN (being a doctor from Doctor D's rooms) on 8 September 2007 which date fell squarely within the time that the Applicant said that she and her daughter were living in the Property for the first time (20 August 2007-10 September 2007) and at which time her daughter was suffering from symptoms that caused the Applicant to decide to vacate and sell the Property. 81 The Respondent submitted that firstly this cast doubt on the evidence of the Applicant that she did not take her daughter to see the doctor at this time because she was afraid of doctors. Secondly, the Respondent noted that the clinical notes of Doctor BN on 10 September 2007 indicated that the daughter presented as suffering from an injured arm and there is no mention of the symptoms that the Applicant claims her daughter was suffering from at that time. There was no mention of insect bites or symptoms of itchiness or vomiting. 82 In other matters before the Tribunal where an applicant has requested the exercise of a discretion under section 12 FHOG Act or section 76 of the Duties Act on medical grounds, there has been regard to medical evidence Larsson v Chief Commissioner of State Revenue [2008] NSWADT 208. 83 In the present case, the Tribunal does not have before it any medical evidence to establish what, if any, medical condition was suffered by the daughter in the two periods in which the Applicant says that she and her daughter resided in the Property. 84 The visit to Doctor D on 8 September 2007 only appears to have been concerned with a suspected broken arm and the notes do not record that the daughter was suffering from itching skin or vomiting. The notes do appear to refer to "poor sleep" but this follows closely in the notes from "fell onto R arm – cry last night – poor sleep" and the Tribunal infers, in the absence of any other evidence to the contrary, that it is referring to symptoms following the injury to the daughter's arm. 85 The evidence of Doctor N indicates at 10 May 2008 that the daughter was suffering from an extensive pruritic disruption on her upper and lower limbs and that he thought it may be due to insect bites. The medical evidence does not appear on its face to actually conclude for how long that condition had existed of course does not establish whether or not it was caused by residing in the Property from 8 March 2008 to approximately 7 May 2008 (when the sale of the Property to the purchaser, Mr X was settled). In the absence of further evidence from Doctor N, The Tribunal is not persuaded that the reference to the "symptoms" being "rash – 2 months" is a conclusion by the doctor that the rash had been there for two months and finds it more probable that it was something said to him by the Applicant when she took her daughter to see him. Financial issues from Applicant's mother, sister and niece not willing to live in the Property 86 The initial witness statement of the Applicant stated that before she decided to buy the house (i.e. before 2 February 2007), she spoke to her family about it and her mother and sister agreed to share two rooms at her property. The Applicant said that she earned $650 per week and she was expecting to receive from her mother $250 per week and from her sister $150. 87 The supplementary witness statement of the Applicant clarified that before 15 July 2007 the Applicant was not earning any money from paid employment as she was a student. The reference to earning $650 per week in her first witness statement was therefore only a reference to her income as at 15 July 2007 (at which time she earned $100 per week from paid employment at a company, referred to in this reasons as "LA Designs", $350 per week from certain Commonwealth benefits and $200 per week in support for her daughter). The Tribunal infers from this evidence and admissions made by the Applicant under cross-examination that the Applicant earned only approximately $550 per week in February 2007 before she purchased the Property. Under cross-examination, she admitted that the reference to $650 per week in February 2007 was merely an expectation of what she might receive in the future when she started working. 88 The Applicant's evidence was that when she purchased the house her monthly mortgage repayments were approximately $2,554.63 per month (approximately $638.63 per week). This was supported by copies of mortgage statements tendered for by the Applicant. The Tribunal notes that the statement shows that these mortgage repayments increased during the term, at one stage to approximately $2,900.00 (approximately $725.00 per week). The Applicant confirmed that this was the case under cross- examination due to increases in interest rate. 89 In submissions, the Applicant stated that the decision of the Applicant's mother and sister not to live in the property meant that the Applicant missed out on $400 expected rent from them at the time she applied for the Grant. As the Applicant only earned approximately $550.00 up to July 2007 and $650.00 thereafter, she could not afford to continue to live in the Property. The Applicant submitted that the issue was whether the Applicant could afford to keep the Property and live in it for six months so as to comply with the residence requirement and the only comparison to be made was between the applicant's expected financial circumstances at the time of the Grant/purchase of the Proeprty (i.e. $650 income pw + $400 expected rent pw = $1,050 pw total) and the financial circumstances which eventuated when her mother and sister decided not to live in and pay rent at the Property. 90 The Respondent summonsed bank statements for the Applicant and submitted that these showed that between 10 April 2007 and 3 April 2008, the Applicant received into her bank account consistent deposits (made at a post office) totalling $33,040.00. The Respondent observed that these deposits had not been referred to by the Applicant in her witness statements. 91 At the hearing, the representative for the Applicant conducted an examination in chief of the Applicant and questioned her in relation to the relevant deposits identified by the Respondent. In summary, the Applicant stated that the deposits included loans from her ex-husband, her mother, friends, the sale of jewellery, a credit from the Rental Bond Board. The Applicant also referred at one point to lots of money that she borrowed from overseas. 92 The Respondent cross-examined the Applicant at length in relation to the abovementioned deposits and obtained admissions from the Applicant that she was entirely reliant on these amounts in order to meet many of her monthly mortgage repayments in respect of the Property including at a time well before the alleged agreement between the Applicant and her mother and sister fell through (eg the April and June 2007 repayments). 93 From a close review of the bank statements, the abovementioned admissions made by the Applicant and the free admission of the Applicant that she was aware as a student (and without either currently or ever having been in paid employment) that she would not be able to obtain a home loan from a bank (referred to further below) the Tribunal has concluded that the financial issues faced by the Applicant in servicing her home loan were present from the very beginning and were not because of a change in circumstances after the purchase of the Property. 94 The financial position of an Applicant which is known to him/her at the time when the Property was purchased such that there was little or no real prospect of occupying the property as a principal place of residence was taken into account in other cases in the Tribunal (Agiostratis v Chief Commissioner of State Revenue [2008] NSWADT 23 and Gomez-Martinez v Chief Commissioner of State Revenue [2007] NSWADT 251). In the latter case, 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. 95 Whilst the facts of the Applicant's case are not on all fours with the abovementioned cases (eg in the present case, the Applicant was truthful when the OSR sent her a letter asking if she had satisfied the residency requirement), the Tribunal has concluded after reviewing the financial evidence and the admissions made by the Applicant in cross-examination that she was unable in substance to afford the repayments on the home loan at the time of the purchase of the Property. Even when the Property was being rented out to existing tenants, the Applicant needed to borrow to meet the April and June repayments. She also needed to borrow to fund part of the deposit for the Property and to pay for work done to the property (eg Mr H). This was well before she says her mother (and sister) informed her that they would not move in and pay rent. 96 The Applicant also made a clear admission in her evidence and under cross-examination that she knew that she would not have been able to qualify to obtain a home loan from a bank given her family and financial circumstances. The Applicant herself had an understanding that she would not qualify for such a loan because she was a student and was not currently employed and had never held paid employment. Intention to occupy the Property 97 The Applicant submitted that she intended to occupy the Property as her principal place of residence and did on two occasions in the 12 months following the purchase of the Property, that is for the period from 20 August 2007 to 10 September 2007 and later from 8 March 2008 to 22 March 2008. 98 The Respondent submitted that the evidence before the Tribunal confirmed that on 31 August 2007, 11 days after the Applicant stated that she moved in, the Applicant instructed a real estate agent to sell the Property. The Applicant signed an agency agreement to sell the Property which commenced on 31 August 2007 and was initially due to expire on 31 November 2007 but ultimately this agreement was extended to 30 August 2008. Accordingly, from 31 August 2007 the Respondent submitted that the Property was continually on the market to be sold and the Applicant could not have intended to occupy the home as her principal place of residence after this date. 99 The Applicant said under cross-examination that in respect of the abovementioned agency agreement, the real estate agent must have back-dated the document and that it was not extended from 31 November 2007-30 August 2008. The Tribunal notes that the Applicant admitted under cross-examination that her signature did appear on the agency agreement. Further the Tribunal notes that the placement of her signature was at an unusual place on the top right side of the page immediately above the extension of the term of the agreement (in different handwriting). The Tribunal does not consider it probable that the Applicant would sign the agreement in such an unusual place unless there was something else already written there that the Applicant wished to agree to or initial. 100 Accordingly the Tribunal finds that the Property was on the market to be sold from around 31 August 2007 and was ultimately sold by the agents in March 2008. 101 In the period prior to 31 August 2007, the Tribunal has concluded as set out above that the inability of the Applicant to meet the residency requirement was due to her financial position at the time that she purchased the Property. There was not a change in circumstances but rather a continuation of these circumstances. Other matters relating to the credit of the Applicant 102 During the hearing, there was extensive cross-examination of the Applicant in relation to the matter of her application to DH Loans (a mortgage broker) and which application was ultimately approved and a home loan provided to the Applicant by a financier (P Ltd) of $368,000.00 which enabled her to acquire the Property. 103 The clear evidence of the Applicant, as already stated above, was that she knew she could not obtain a home loan from a bank given her financial and family circumstances. She gave evidence that, despite this, she was not surprised when informed by DH Loans that her application for a loan had been approved because the broker was well known to her friends and in the community as being able to obtain home loans for people in similar situations to the Applicant. 104 The Respondent summonsed the application form pertaining to the Applicant's home loan from DH Loans and the financier/mortgagee. 105 The Respondent submitted that the documents produced by DH Loans indicate that the Applicant dealt with a female employee ("Ms T") in relation to her application. Further the Respondent submitted that the information contained in the application form was the information the Applicant provided to Ms T and that the Applicant had then signed the application forms. 106 The Respondent read an affidavit of Ms T (an employee of DH Loans). Ms T gave evidence that she was a loan consultant with DH Loans and of her role at DH Loans. She had consulted the DH Loans files and confirmed that she assisted the Applicant in making her loan application to the financier/mortgagee. Ms T said she had met with the Applicant on 6 February 2007 and received from her personal details and details of bank accounts. In keeping with her usual practice, Ms T would have typed this information in the application form and she said that the details were a true and accurate record of information the Applicant provided that day. She also said that on 8 February the Applicant returned to DH Loans offices to bring the required supporting documentation. In particular she gave evidence that the Applicant had provided her with a notice of income tax assessment for the 2006 income year in the amount of approximately $68,000.00 and details of the Applicant's employment history with LA Designs. 107 It was agreed by the Applicant in her evidence and under cross examination that the information contained in the DH Loans application form for her home loan that related to the Applicant's employment history, yearly income of $68,000.00 and lack of dependant children was untrue. The Applicant also said that a notice of assessment purportedly issued to her for the income year ended 2006 was "fake" and she produced a copy of her true notice of assessment which was in a significantly lower amount. 108 The Applicant vehemently denied however that she had made the relevant declarations or provided the relevant information to Ms T. Indeed the Applicant denied ever having met Ms T and said that she only had dealings with a male employee, (referred to in these reasons as "Mr HL") at DH Loans. The Applicant maintained her denial during the extensive cross-examination of her about these matters. The Applicant stated that the documents were "fake" and suggested that they had been created by the broker. 109 The Applicant said in her evidence and confirmed in cross-examination that her signature was on some of the loan forms but that she signed blank documents in the offices of DH Loans and that they must have later been filled in with certain information that was incorrect. 110 It is noted that the Applicant's denials that she had ever met Ms T and her claims that the documents had been created by the broker were not put to Ms T as that witness was not cross-examined. In the opinion of the Tribunal, this ought to have been done as a matter of fairness in order to then be able to properly put a proposition to the Tribunal that the broker, as opposed to the Applicant was the source of the fake information and documents. 111 However at the same time, the Tribunal notes that the evidence of Ms Tran is to the effect that she did not recall the Applicant personally and her recollections are based on her usual practices as an employee of DH Loans and in the keeping of files etc. 112 On the material before it, the Tribunal is reluctant to make a finding either way as to whether the Applicant herself was involved in any misrepresentation in obtaining a home loan. The Tribunal is mindful of the fact that this is a serious matter. As already stated above, it was clear from an admission made in cross-examination that the Applicant had misrepresented to a credit card provider that she was employed at LA Designs in 2005 in order to obtain a credit card. The Tribunal has taken this matter and admission into account in its assessment of the credit of the Applicant. 113 As indicated at the hearing of the matter, the Tribunal remains concerned about the two income tax notices of assessment addressed to the Applicant for the same income year but in differing amounts. Both have the appearance of an official document issued by the Commissioner of Taxation but the parties are in agreement that one is "fake" as they referred to it (i.e. the notice that states the taxable income of the Applicant as $68,000.00) The Tribunal raised at the hearing of the matter whether the fact of the existence of the fake document (that clearly looks like an official notice) ought to be referred in any way by the Respondent to the Commissioner of Taxation. In considering such a course, regard may need to be taken to the fact that the document in question was produced under summons to the Respondent for the purposes of the hearing and/or any privacy considerations. Interest 114 There was no penalty imposed on the Applicant under the FHOG Act in this case. 115 In relation to the FHP Concession, the Respondent imposed interest at both the market and premium rate. Market rate 116 Section 3 TAA defines a "tax default" in the following terms: tax default means a failure by a taxpayer to pay, in accordance with a taxation law, the whole or part of tax that the taxpayer is liable to pay. 117 Sections 21 and 22 TAA set out the obligation of a taxpayer to pay interest in respect of a tax default as follows: 21 Interest in respect of tax defaults (1) 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 under this Division. (2) Interest is payable under this section in respect of a tax default that consists of a failure to pay penalty tax under Division 2 but is not payable in respect of any failure to pay interest under this Division. 22 Interest rate (1) The interest rate is the sum of: (a) the market rate component, and (b) the premium component. (2) The market rate component is: (a) unless an order is in force under paragraph (b), the Bank Accepted Bill rate rounded to the second decimal place (rounding 0.005 upwards), or (b) the rate specified for the time being by order of the Minister published in the Gazette. (3) The premium component is 8% per annum. (4) In this section, the Bank Accepted Bill rate in respect of any day is the yield rate for 90-day Bank Accepted Bills published by the Reserve Bank for the month of May in the financial year preceding the financial year in which the day occurs. 118 Section 25 TAA provides for the circumstances in which the Respondent (or the Tribunal standing in the shoes of the Respondent on review) may remit interest: 25 Remission of interest The Chief Commissioner may, in such circumstances as the Chief Commissioner considers appropriate, remit the market rate component or the premium component of interest, or both, by any amount. 119 As has been expressed by the Tribunal (including the Appeal Panel of the Tribunal) on prior occasions (refer Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor [2004] NSWADTAP 19 at [60], Giunta v Chief Commissioner of State Revenue [2005] NSWADTAP 19 at [21]), in the ordinary circumstances of an omission to pay tax which is then made up later, the Government is entitled to ask for some interest in order to compensate it for the time value of money (i.e. the late payment of tax) even though it may not have arisen by the taxpayer in any way conniving to pay the tax late. 120 The Appeal Panel said in the Incise Technologies case at [60] This [the market rate component], as we see it, is a component that could rarely, if ever, be waived as otherwise tax would be paid at a devalued amount thereby discriminating against taxpayers who meet their obligations on time…. 121 In the present case, the facts do not appear to provide any basis for the remission of the market rate of interest. There was nothing in the facts to indicate that the Respondent had contributed to the tax default that occurred. Premium component 122 In The Ettamogah Mob Australia Pty Ltd & Ors v Chief Commissioner of State Revenue [2005] NSWADT 22, the Tribunal referred to the reasoning of the Appeal Panel in the Incise Technologies case as having disclosed four requirements that are relevant to consider in respect of the remission of the premium component but noted that there could be other circumstances where it would be appropriate to remit the premium component. 123 The four matters referred to in the Incise Technologies case at [62]-[63] were as follows: (1) all principal tax that is owing and not in dispute has been fully paid; (2) there has been co-operation by the taxpayer in providing relevant information to the Commissioner so as to enable the Commissioner to issue assessments; (3) such co-operation by the taxpayer has occurred prior to any investigation being commenced by the Commissioner (voluntary disclosure) or, at the very least, within reasonable time after requests for information have been made by the Commissioner – i.e. the taxpayer has taken reasonable care; and (4) there has been no wilful default by the taxpayer in not paying tax on time. 124 At paragraph [61] of the same case, the Appeal Panel observed that: 61 ... [T]he premium rate is a form of penalty. Its purpose, as we see it, is to provide an additional economic deterrent against taxpayers failing to meet their obligations on time. The 'market rate' component approximates ordinary lending interest rates. Taxpayers may withhold tax simply to invest the money in schemes and projects that have a higher potential earnings; and may be content to carry the late payment surcharge were it only at the market rate. The 'premium rate' is intended as we see it to operate as the key disincentive to delaying tax payments. For that reason, the TA Act imposes both the market rate component and the premium rate component in respect of late payment. The Commissioner is then given a discretion to remit the market rate component or the premium rate component or both by any amount (s 25). 125 In terms of the present case in examining the four matters above: (1) The evidence before the Tribunal indicates that all principal tax (the FHP Concession and interest in dispute) is subject to a payment arrangement between the Office of State Revenue ("OSR") and the Applicant and regular instalments have been paid by the Applicant. (2) The Applicant co-operated with the OSR in response to their letter of 4 April 2008 requesting confirmation of residency in relation to both FHOG and the First Home Plus Scheme. The letter noted that any information supplied in the taxpayer's declaration would also be used to determine the taxpayer's entitlement to the FHP Concession. The Applicant admitted that she had not satisfied the residency requirement. This ultimately enabled the decisions to be made the OSR to revoke the FHP Concession and the Grant. (3) The co-operation by the Applicant occurred after the Chief Commissioner sent the letter of 4 April 2008 above. Her response was received by about 21 May 2008 according to one of the Chief Commissioner's letters of 22 May 2008 included in documents tendered by the Applicant. (4) There is nothing in the facts to suggest that there was any wilful default by the Applicant in claiming the FHP concession/Grant in the first place. Whilst the Property was subject to an existing lease, it was due to expire September 2007, when the Applicant first purchased the Property it seems likely that she herself intended to occupy the Property on expiry of the lease but in reality, and although the Applicant may not have fully appreciated it at the time, the precariousness of her financial situation have led the Tribunal to conclude that it was extremely unlikely that she would be able to service the mortgage repayments and reside in the Property. There was no real change in her financial circumstances but simply a continuation of them from the time she first purchased the Property. 126 There is also no suggestion that the present case was the type of situation referred to above in paragraph [61] of the Incise Technologies case referred to above. 127 Having regard to the above, the Tribunal is of the view that half of the premium component of interest should to be remitted in the present case. Orders 128 For the reasons above, I make the following orders: 1. The decision of the Chief Commissioner of State Revenue to recall the Grant is affirmed. 2. The decision of the Chief Commissioner of State Revenue to revoke the FHP Concession is affirmed. 3. The decision of the Chief Commissioner of State Revenue to assess interest at both the market and premium rate is varied by remitting half of the premium component of interest. 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