Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Khalil v The Chief Commissioner of State Revenue [2011] NSWADT 276 Hearing dates: 7 November 2011 Decision date: 22 November 2011 Jurisdiction: Revenue Division Before: A Verick, Judicial Member Decision: 1. The decision and assessment requiring the applicant to repay the Chief Commissioner the $14,000 first home owner grant is affirmed. 2. The penalty of 60% ($8,400) imposed in the assessment to recover the grant is reduced to 20% ($2,800). 3. The decision and assessment to recover the duty of $11,242 payable on the transfer with interest ($568.03) is affirmed. 4. The penalty tax assessed at 60% ($8,430) to recover the duty on the transfer is remitted in full. Catchwords: First Home Owner Grant and First Home Plus Concession - residence requirement Legislation Cited: First Home Owner Grant Act 2000 Duties Act 1997 Taxation Administration Act 1996 Administrative Decisions Tribunal Act 1997 Land Tax Management Act 1956 Cases Cited: Deverich v Chief Commissioner of State Revenue [2010] NSWADT 268 Bates v Chief Commissioner of State Revenue [2004] NSWADT 13 Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41 Zakariya v Chief Commissioner of State Revenue [2003] NSWADT 26 City of Heidelberg v The Baptist Union of Victoria and Anor. (1974) 34 LGRA 328 Radaich v Smith (1959) 101 CLR 209 Stuart v Marshall (1958) 75 WN (NSW) 252 Lewis v Bell (1985) 1 NSWLR 731 Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 R v St Pancras Assessment Committee [1877] 2 Q.B.D. 581 Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57 Chief Commissioner of State Revenue v Aldridge & Anor [2003] NSWADTAP 50 Flaracos v Chief Commissioner of State Revenue [2003] NSWSC 68 Taylor v Caldwell (1863) 3 B&S 826 Philpott v Chief Commissioner of State Revenue (RD) [2008] NSWADTAP 18 Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor. [2004] NSWADTAP 19 Trust Co. of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21 Category: Principal judgment Parties: Ali Khalil (Applicant) The Chief Commissioner of State Revenue (Respondent) Representation: Counsel D Tynan (Applicant) Fay Rose Legal (Applicant) Crown Solicitor (Respondent) File Number(s): 106101 REasons for decision Introduction 1The applicant is the registered proprietor of a house situated at 84 Henry Street, Old Guildford, New South Wales ("the property"). He purchased the property on or about 22 December 2008 and settlement occurred on 2 February 2009. 2The applicant applied for and received a $14,000 first home grant under the First Home Owner Grant Act 2000 ("the FHOG Act") in respect of the purchase of the property. By virtue of the First Home Plus Concession Scheme under the Duties Act 1997 ('the Duties Act"), no duty was paid by the applicant on the transfer of the property. 3On 17 June 2010, following an investigation, the respondent proceeded to recall the grant under s 45 of the FHOG Act and issued an assessment to recover the $14,000 grant (with a penalty of $8,400, calculated at a rate of 60%). The respondent also proceeded to reverse his decision to offer the applicant the First Home Plus Concession and issued on 17 June 2010 an assessment under s 9 of the Taxation Administration Act 1996 to recover the duties ($11,242) payable on the transfer including a penalty of $8,430 at 60% and with interest of $568.08. 4The respondent made the above decisions on the basis that the applicant failed to comply with the 'residence requirement' under the FHOG Act and Duties Act to occupy the property as his principal place of residence for a continuous period of at least six months starting within 12 months after completion of the agreement to purchase the property. 5On 25 June 2010, the applicant objected to both the Notices of Assessments issued to him by the respondent. 6The applicant's objections were disallowed by the respondent on 3 November 2010. 7On 23 December 2010, the applicant filed an application for review in the Tribunal. Factual Background 8The basic factual background, as set out in the applicant's written submissions, is as follows: 6 Prior to moving into the Property, Mr Khalil lived at home with his parents at 54 Irrigation Road, Merrylands NSW, which is close to the Property. 7 On 2 February 2009, Mr Khalil commenced moving his belongings into the Property. On 3 February 2009, a removalist delivered Mr Khalil's furniture and other belongings to the Property and from that date until 31 August 2009 Mr Khalil lived at the Property. 8 The Property is a free-standing house with 3 bedrooms and lounge, dining and entertainment areas. 9 Shortly before Mr Khalil moved into the Property, he was approached by a family friend, Ms Ali, about renting the Property for her and her young family. Ms Ali and her family (her husband and their young son) were having difficulty finding affordable rental accommodation in the area. Mr Khalil told Ms Ali that he needed to satisfy the terms of the FHOG and therefore needed to live in the property for at least six months. Mr Khalil agreed that Ms Ali and her family could move into the Property with him and suggested an informal arrangement whereby Ms Ali would pay him rent to live at the Property and when he eventually moved out they could enter into a tenancy agreement. 10 Given Ms Ali's difficulties securing rental accommodation for her and her family, she was concerned to have in place a residential tenancy agreement (RTA) including terms that she and her family could not be asked to leave the Property without notice. At Ms Ali's insistence, Mr Khalil agreed to enter into a RTA to provide Ms Ali with that security. 11 On 6 February 2009, after Mr Khalil and moved out of his parent's (sic) and into the Property, Mr Khalil entered into a RTA with Ms Mariam Ali. 12 Although the RTA provides Ms Ali with a right to occupy the Property, Mr Khalil and Ms Ali made an oral agreement whereby he and the Ali family would reside in the property together. The basis upon which Mr Khalil agreed that Ms Ali and her family could live at the Property included that: Mr Khalil would occupy one of the three bedrooms in the house and Mr Khalil and Ms Ali and her family would share the use of the kitchen, the bathroom, lounge and family room. As part of this arrangement, Mr Khalil agreed to pay all utilities and expenses. 13 ... 14 On 31 August 2009, Mr Khalil move (sic) out of the Property and returned to live at his parent's (sic) house. 9Some further relevant factual background was included in the written submissions filed by the respondent - 7 Settlement of the applicant's purchase of the grant property took place on 2 February 2009. 8 On the same day, 2 February 2009, the applicant entered into a (sic) "Exclusive Management Agency Agreement (Residential)" (Managing Agency Agreement) with Starr & Duggan (Real Estate) Pty Limited t/a Starr Partners Real Estate Merrylands in relation to the grant property. 9 By Clause 2 of the Managing Agency Agreement the applicant appointed Starr Partners to have the " exclusive rights to let and manage all or any part of the premises " (the grant property). In addition, by Clause 12(d) of the Managing Agency Agreement, Starr Partners was " authorised and directed on behalf of the applicant to enter into and sign Tenancy Agreements in respect of all or any part of the premises ". By the combined effect of Clauses 9 and 10 of the Managing Agency Agreement Starr Partners were exclusively authorised to let all of the premises for a period of 26-52 weeks at current market rent and at the end of any such tenancy let all of the premises again for a period of 26-52 weeks. 10 On the Managing Agency Agreement the applicant recorded his address as 54 Irrigation Road, South Wentworthville, NSW, 2145. 11 On 6 February 2009, the applicant, via his legally appointed agent Starr Partners, entered a Residential Tenancy Agreement (the Agreement) with Ms Mariam Ali. The agreement entered into between Ms Ali and the applicant was the standard form "1997 Edition" residential tenancy agreement. 12 On Page 2 Part 1 of the lease under the title "Terms of Agreement" the following term is stated: " PREMISES: The landlord gives the tenant the right to occupy the premises at 84 HENRY STREET, GUILDFORD, NSW 2161 and the following parking space garage" 13 The Agreement contained four (4) "Special Conditions" as addendums to the RTA. Those special conditions related to: the agents right to inspect periodically the property (with the landlord); the combustion fireplace, the air-conditioner; and the agent's right to use the tenants (sic) information. 14 There was no special condition contained in the agreement to any right of the applicant to reside in the grant property. ... 17 Ms Ali and her family moved into the grant property on the weekend commencing 6 February 2009. 18 On 6 February 2009, a Rental Bond Lodgement Form was completed in relation to the grant property. ... 24 Ms Ali still resides in the grant property. Evidence 10The following affidavits on behalf of the applicant were admitted: 1. Applicant's two affidavits - sworn on 8 May 2011 and 23 September 2011; 2. Mariam Ali's affidavit (tenant at the property) sworn on 30 April 2011; 3. Mani Edmonds' affidavit (removalist) sworn on 3 May 2011; 4. Fouadi (Faye) Khalil's affidavit (sister of the applicant and the principal solicitor of the firm Fay Rose Legal) sworn on 23 September 2011; 5. Allan O'Connor's affidavit (employed as a solicitor in the firm of Fay Rose Legal from 6 February 2007 until 27 February 2009) sworn on 6 may 2011; 6. Charlotte Campbell's affidavit (domestic cleaner) sworn on 9 May 2011; 7. Amine Haddad's affidavit (a childhood friend of the applicant) sworn on 28 September 2011; and 8. Kelly Pahuta's affidavit (employed solicitor in the firm Fay Rose Legal) sworn on 22 September 2011. 11In addition to the documents filed by the respondent pursuant to s 58 of the Administrative Decisions Tribunal Act 1997 , a folder containing the respondent's documentary evidence and a copy of the applicant's application for the first home owner grant were also admitted as exhibits. 12The respondent cross-examined the applicant and Ms Ali, the tenant, but the matter was not taken any further. Relevant Legislative Provisions 13Historically, the FHOG Act was introduced to encourage and assist home ownership and to offset the effect of the Goods and Services Tax (GST) on the acquisition of a first home by a resident of New South Wales. The scheme has been continued to assist first home buyers to purchase or build their first homes. 14The entitlement requirements for a grant are set out in s 7 (1) of the FHOG Act and, relevantly, is in the following terms: 7 Entitlement to grant (1) A first home owner grant is payable on an application under this Act if: (a) the applicant or, if there are 2 or more of them, each of the applicants complies with the eligibility criteria, and (b) the transaction for which the grant is sought: (i) is an eligible transaction, and (ii) has been completed. 15The eligibility criteria are found in Division 2 of Part 2 of the FHOG Act, which requires an applicant to satisfy five eligibility criteria to obtain a grant. For the present purposes, the relevant eligibility criterion at issue was the fifth criterion, set out in s 12(1), and the relevant version is 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 requirement. 16Subject to certain conditions, a grant can be paid to an applicant under s 20 of the FHOG Act in advance in anticipation of the residence requirement. 17Section 23 of the FHOG Act gives the Chief Commissioner power to vary or reverse a decision made in respect of an application for a grant where he is later satisfied that the original decision was incorrect. Power to require repayment and impose penalties is given to the Chief Commissioner under s 45 of the FHOG Act. 18In tandem with the grant scheme under the FHOG Act, the government also introduced the First Home Plus Concession scheme under s 69 of the Duties Act in the following terms: 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. 19Section 70 sets out the transactions and instruments eligible for consideration under the First Home Plus Concession scheme and includes agreements for sale or transfers entered into after 4 April 2004. 20Under the First Home Plus Concession scheme an applicant is required to comply with s 76(1) of the Duties Act which, provides is as follows: 76 Residence requirement (1) The home must be occupied by the first home owner or one of the first home owners who is acquiring it as a principal place of residence for a continuous period of at least 6 months, with the 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 . Applicant's contentions 21Mr Tynan, counsel for the applicant, submitted that the terms 'occupy' and 'principal place of residence' found in s 12 of the FHOG Act and s 76 of the Duties Act "should be given their ordinary meaning having regard to the objects and purpose of these Acts: Deverich v Chief Commissioner of State Revenue [2010] NSWADT 268" and that "that purpose, relevantly, which is common to both Acts, is to assist first home owners with the cost of purchasing their first home". 22Mr Tynan submitted that the 'relevant legal principles' that had to be taken into account to define these terms were as follows: 24 'Occupy' means to 'reside in the property': Bates v Chief Commissioner of State Revenue [2004] NSWADT 13 at [39] (Bates). Determining whether an applicant has 'occupied' the premises is a question of fact: Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41 (Ferrington) at [42]. 25 An intention to occupy is not sufficient to satisfy the requirement of section 12 of the FHOG Act. Actual occupation is required. However, an applicant's subjective intention is still relevant: Chief Commissioner of State Revenue Aldridge & Anor [2003] NSWADTAP 50 at [14]; Zakariya v Chief Commissioner of State Revenue [2003] NSWADT 26 at [14]. 26 In Ferrington , the Appeal Panel reviewed the authorities that had considered the terms 'occupy' and 'principal place of residence', at least in relation to their application under the FHOG Act, and identified a number of principles relevant to the present case. The Appeal Panel held at [42] (with references omitted) that: First, the words "principal place of residence" should be given their ordinary meaning in the context in which they appear. Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assesses objectively, in the light of the circumstances relating to the actual occupation of the dwelling. Thirdly, the intention of the person, gauged objectively, is relevant but not determinative of the issue. Fourthly, to occupy a home as his or her principal place of residence a person's occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose. Fifthly, the short length of a person's residence, while relevant is not determinative of the issue. This is so since a recipient's occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one's principal place of residence. It is the nature of that occupation which provides the element of permanence . The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible, as Gaines demonstrates. (emphasis added) 23It was also Mr Tynan's case that, to satisfy the 'residence requirement' under the relevant provisions, it was not necessary for an applicant to have exclusive occupation of the property in the absence of any specific qualification in the legislation. He placed some reliance on the decision of the Supreme Court of Victoria in City of Heidelberg v The Baptist Union of Victoria and Anor. 1974 LGRA 328. 24It was submitted that the evidence produced "reveals" that the applicant occupied the property as his principal place of residence. The evidence, Mr Tynan submitted included the following: (1) The applicant's own evidence that he had an intention to live at the property. (2) The applicant "moved his belongings into the Property" on 2 February 2009 and the following day "he moved his furniture" into the property. This evidence was supported by the removalist, O'Connor and his sister in their affidavits. (3) He slept at the property, travelled and to and from work from the property. (4) He "engaged a cleaner, Ms Campbell to clean the property, and requested that she pay particular attention to his room and toilet". (5) The applicant, on 2 February 2009 "established an electricity account with Integral Energy addressed to him at the property" which was paid by him. (6) The applicant "arranged and paid for the lawns to be mowed whilst he was living at the property". (7) "He had the council rates notices and water rates issued to him at the property, which he paid". (8) "He moved out of the property and returned to his parent's (sic) house on 31 August 2009" and "he had his furniture removed from the property and taken to his parent's (sic) home on 31 August 2009". 25Mr Tynan in his written submissions also stated that - 32.20 He never sought to rent part of the Property and only did so at the request of his family and at the insistence of Ms Ali to assist Ms Ali and her family (First Khalil Affidavit at [3]-[5]; Fouadi Khalil Affidavit at [8]). 33 Although Mr Khalil did not change the address on his driver's licence or have all of his mail addressed to the Property, he explains quite frankly, that he only intended to stay at the Property for about six months and would only have to change them back again when he moved back to his parent's (sic) house (First Khalil Affidavit at [15]-[16]). Respondent's contentions 26Mr Gerard appeared on behalf of the respondent to contend for an affirmation of the respondent's decisions and assessments. His case was essentially "that having granted exclusive possession of the grant property to Mariam Ali, via the lease, for the duration of the lease, the applicant could not and did not occupy the grant property in accordance with the requirements of s. 12(1) of the FHOG Act and s.76(1) of the Duties Act ". 27Mr Gerard submitted that the High Court in Radaich v Smith (1959) 101 CLR 209 "has described 'exclusive possession' as the sole criterion as to whether a lease or licence has been created" and that the "question as to whether exclusive possession has been granted in the relevant instrument is one of construction: Stuart v Marshall (1958) 75 WN (NSW) 252". On the facts, he submitted as follows: 47 It is clear that in this case the applicant, through his agent, and Ms Ali entered a lease agreement (a pro forma standard residential tenancy agreement) whereby Ms Ali acquired an exclusive interest in the grant property for the duration of the lease. 48 The lease conferred the right on Ms Ali to exclusive possession of the grant property. That is clear from the terms (which are the first point of reference: Lewis v Bell (1985) 1 NSWLR 731) of the agreement. To this end, on Page 1 Part 1 of the lease under the title "Terms of Agreement" the following term is stated: " PREMISES : The landlord gives the tenant the right to occupy the premises at 84 HENRY STREET, GUILDFORD, NSW 2161 and the following parking space garage." 49 No reservation or limit is placed by the contract on the tenants right to occupy "the premises", being the entirety of the premises. 50 By the combined effect of the above and clauses 6, 7 and 9 of the lease the applicant granted Ms Ali, under the terms of the lease, exclusive possession of the grant property for the duration of the lease. 51 The verbal side arrangement reached between the applicant regarding the applicant's use of a room in the property is properly regarded to be a licence arrangement, from which exclusive possession is not granted. 28Mr Gerard also submitted that although "not synonymous with legal possession, occupation requires possession and control of possession: see Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 at 533 and 534 per Bowen JA; see also R v St. Pancras Assessment Committee [1877] 2 Q.B.D. 581, at 588, per Lush J; see also Mesiti at para. [45]." 29He further submitted that as "outlined by the Appeal Panel in Chief Commissioner of State Revenue v Aldridge & Anor [2003] NSWADTAP 50 ... at common law, a lease is a demise of real property that vests in the tenant the right to exclusive possession of the property". And that the decision of Gzell J in Flaracos v Chief Commissioner of State Revenue [2003] NSWSC 68 "is instructive for two reasons" - Firstly, the decision confirms the inquiry to be made when determining whether a person has occupied a property. Secondly, the decision is instructive so far as the distinction between the circumstances in Flaracos and the circumstances of this case are concerned. In Flaracos the fact that the plaintiff had not handed exclusive possession to the tenant via lease was decisive. Equally decisive in the instant case is that the applicant did hand exclusive possession of the grant property to the tenant thereby making legal occupation of the property, by the applicant, impossible during the term of the lease. Consideration 30The essential issue for determination is whether the applicant complied with the 'residence requirement' for purposes of both FHOG Act and the Duties Act. The 'residence requirement' required the applicant to occupy the home as a principal place of residence for a continuous period of at least 6 months. There are strictly two tests to be satisfied. Firstly, the applicant has to demonstrate that he or she occupied the property for a period of at least six months. Secondly, and more importantly the property must be occupied during the relevant period as the principal place of residence of the applicant. 31I agree with the submissions made by Mr Gerard that the authorities are clear that occupation requires possession and control over the property. In this matter it is not in dispute that a lease was granted to Ms Ali by the applicant. Ms Ali and her family had both the possession of and control over the property under the lease during the period the applicant claims he occupied the property as his principal place of residence. 32I also agree with the submission made by Mr Gerard that the arrangement between Ms Ali and the applicant that allowed the applicant to use one bedroom and an attached entertainment area could best be described as a 'licence'. As observed by the Appeal Panel in Aldridge , a "transaction under which a person takes merely the right to use premises, without exclusive possession is a licence and not a lease ( Taylor v Caldwell (1863) 3 B&S 826)". 33In the Flaracos case, Gzell J had to consider whether an owner had ceased to have possession of his property. The owner in that case had a tenant and the owner was absent from his principal place of residence on several occasions. The Commissioner's case was that, in those circumstances the owner was not entitled to the principal place of residence exemption under the Land Tax Management Act 1956. In finding for the owner, Gzell J held that the "inference open to the Chief Commissioner that, in leasing his home, he had parted with the possession of it in favour of the tenant was countered by the plaintiff's evidence that he remained in the dwelling, sharing it with the tenant", that "he was away on trips looking for work" and that at the end of the trips "he returned to take up residence in the dwelling". His Honour in conclusion said: On the findings I have made I am of the view that the plaintiff was in occupation of the Peakhurst premises. Notwithstanding the contemporaneous presence of a tenant, it was the plaintiff who maintained control over the premises. This was not a case in which the premises were handed over to a tenant who thereby obtained exclusive possession of them. 34In this matter, the applicant had given Ms Ali the possession and control of the property under the lease and by an informal arrangement he was able to use one bedroom and the attached entertainment area for a period that the applicant thought would satisfy the 'residence requirement'. But because the applicant did not have exclusive possession of the property during the relevant period he did not satisfy the occupation requirement under both the FHOG Act and the Duties Act. 35In my opinion, the applicant also did not satisfy the second test to comply with the 'residence requirement'. The various indicia referred to in the cases require more than merely sleeping at the property to satisfy this test. In this matter, on the applicant's own evidence was that "he had intended to stay at the property for about six months" and then move back to his parents' house. Against the background, that he had let the property on a lease soon after its purchase and continues to lease the property to Ms Ali, the only reasonable inference that can be made is that he purchased the property as an investment property and not as a property for its occupation as his home. 36His effort to satisfy the residence requirement was fairly structured when viewed against all the evidence. There was no element of permanence in the stay. The stay was not for purposes of establishing his principal place of residence but as observed by the Appeal Panel in Ferrington "for some other purpose". Here that other purpose was to be able to get the grant and the First Home Plus Concession. The six months rule was introduced because there were cases where after short periods of some days applicants moved out of the properties on various grounds and were able retain the grant. The six months period, although an arbitrary period, allows a fairer assessment of the nature and quality of the occupation of a property by an applicant. In this matter, the evidence was very clear that the applicant had no intention of making the property his principal place of residence and perhaps got the impression that by merely sleeping at the place for six months the 'residence requirement' would be satisfied. An applicant has to do more to establish that a property was occupied as his or her principal place of residence. His claim that he occupied the property as his principal place of residence must also fail. 37I do not think the grant and First Home Plus Concession are intended to assist first home buyers to buy investment properties. The law recognises that in some cases, circumstances may change and first home owners may have to let the properties, for example if they are required for work reasons to move elsewhere. But that is not the case in this matter. Penalties and Interest 38At the hearing, the respondent indicated that he was prepared to reduce the penalty in respect of the grant to a 20% penalty and remit in full the penalty of 60% imposed in respect of the duties payable on the transfer of the property. Effectively, only the 20% penalty in respect of the grant and the interest imposed at market rate in the assessment to recover the duty payable on the transfer remain in issue. 39The applicant did not occupy the property as his principal place of residence nor had any intention to do so. The grant has not been refunded. On the facts of this case, I think a 20% penalty to recover the grant is fairly modest and reasonable (see: Philpott v Chief Commissioner of State Revenue (RD) [2008] NSWADTAP 18). I do not propose to make any further adjustment to the proposed 20% penalty. 40The interest imposed in the assessment to recover the duty payable was at the market rate and it is well established that it can only be remitted in exceptional circumstances (see Chief Commissioner of State Revenue v Incise Technologies Pty Ltd & Anor. [2004] NSWADTAP 19 and Trust Co. of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21). In this matter, no exceptional circumstances were before the Tribunal to warrant any remission of the interest imposed. Orders 1. The decision and assessment requiring the applicant to repay the Chief Commissioner the $14,000 first home owner grant is affirmed. 2. The penalty of 60% ($8,400) imposed in the assessment to recover the grant is reduced to 20% ($2,800). 3. The decision and assessment to recover the duty of $11,242 payable on the transfer with interest ($568.03) is affirmed. 4. The penalty tax assessed at 60% ($8,430) to recover the duty on the transfer is remitted in full. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2011