First home benefits decision summaries

Tribunal

First Home Owner Grant Scheme

Eligible Transactions

2017 Decision Summary
Kameleddine v Chief Commissioner of State Revenue [2017] NSWCATAD 42
Date of Decision: 30 January 2017

Orders:
  1. The Tribunal has no jurisdiction in respect of the application under the Duties Act 1997 and that application is refused.

  2. The decision under review in respect of the application under the First Home Owner Grant (New Homes) Act 2000 is confirmed.

Catchwords: FIRST HOME OWNER GRANT – merits review - new home - residence requirement - not previously sold as a place of residence - jurisdiction if no prior objection – eligible transaction

Case summary: Kameleddine v Chief Commissioner of State Revenue [2017] NSWCATAD 42

New Home Definition

2016 Decision Summary
Wang v Chief Commissioner of State Revenue [2016] NSWCATAD 61
Date of Decision: 07 April 2016

Decision: Senior Member Isenberg preferred the Commissioner's interpretation, and held that the words 'has not been previously' serve to qualify the words 'occupied' and 'sold', such that if the home has been previously occupied or previously sold as a place of residence, the home no longer fits within the definition of a new home contained within section 4A(1) of the Act. Senior Member Isenberg affirmed the decision of the Commissioner, and concluded that because the property had been previously sold as a place of residence, it could not meet the definition of a new home for the purposes of the Act.

Further, Senior Member Isenberg concluded that there was no authority to entitle the Applicant to a grant to which he was not otherwise entitled pursuant to the Act, irrespective of whether he had been relevantly misled by the Commissioner. Therefore, Senior Member Isenberg held that it was not necessary to make a finding in relation to whether or not the Applicant had been misled, since the Applicant would nevertheless be ineligible for the Grant.

Catchwords: ADMINISTRATIVE LAW – first home owners grant – new home – entitlement to grant - misleading action by OSR – estoppel

Case summary: Wang v Chief Commissioner of State Revenue [2016] NSWCATAD 61

Residency Criteria

2015 Decision Summary
Bulgak v Chief Commissioner of State Revenue [2015] NSWCATAD 237
Date of Decision: 17 November 2015

Orders: The following orders were made:
  1. The decision of the Chief Commissioner of State Revenue dated 26 February 2014 requiring repayment of the grant and any penalty is set aside.
     
  2. The decision of the Chief Commissioner of State Revenue, disallowing the Applicant's objection, is set aside.
     
  3. The decisions of the Chief Commissioner to reverse the decision to pay the grant and to reassess the stamp duty exemption or concession are also set aside.
     
  4. Any relevant Notices of Assessment, including the assessment issued on 26 February 2014 and any penalty assessments, are set aside.
Catchwords: First home owner grant - stamp duty concession - principal place of residence

Case summary: Bulgak v Chief Commissioner of State Revenue [2015] NSWCATAD 237
2014 Decision Summary
Payne and Simpson v Chief Commissioner of State Revenue [2014] NSWCATAD 11
Date of Decision: 10 February 2014

Decision: The decisions of the Chief Commissioner to reverse the decision to pay the Grant and to reassess the stamp duty exemption or concession are set aside.

Catchwords: First Home Owners Grant – First Home Plus Scheme – relevant interest in residential property – evidence of constructive trust

Case summary: Payne and Simpson v Chief Commissioner of State Revenue [2014] NSWCATAD 11
2013 Decision Summary
Kozman v Chief Commissioner of State Revenue [2013] NSWADT 143
Date of Decision: 15 August 2012

Decision: The decision of the Chief Commissioner is affirmed including as to penalty and interest.

Judicial Member Isenberg confirmed the Chief Commissioner’s decisions to recall the First Home Owner Grant and charge a 20% penalty. The Tribunal also upheld the Chief Commissioner’s decision to revoke the Duties Concession and to charge both the market and premium rates of interest.

Catchwords: First Home Owners Grant - First Home Plus Scheme - residence requirement - reversal by administrator - penalty and interest

Case summary: Kozman v Chief Commissioner of State Revenue [2013] NSWADT 143
2012 Decision Summary
Mohamed v Chief Commissioner of State Revenue [2012] NSWADT 169
Date of Decision: 15 August 2012

Decision: Respondent's decisions, seeking to recover first home owner grant and additional duty, are revoked.

Catchwords: First home owner grant - First Home Plus Concession Scheme - residence requirement - property occupied as principal place of residence

Case summary: Mohamed v Chief Commissioner of State Revenue [2012] NSWADT 169
2011 Decision Summary
O'Hara v Chief Commissioner of State Revenue [2011] NSWADT 289
Date of Decision: 07 December 2011

Decision: The decision under review is affirmed

The Tribunal did not accept that the applicant ever had a genuine intention to meet the terms of the grant and the duties exemption by taking up residence in the property. The applicant had continuously leased the property since its purchase, which categorises it as an investment property. The applicant had returned to Germany after the purchase of the property for personal and career reasons, and had not returned to Australia to take up residence, nor did she have a genuine intention to do so.

The Tribunal found that the applicant had failed to inform the Chief Commissioner of her failure to meet the residence requirement. She also failed to repay the grant, and made false assertions in a statutory declaration. The Tribunal found that this case was one in which to grant discretionary relief by waiving the residency requirement would run counter to the underlying policy and purpose of the relevant legislation.

The Tribunal affirmed the decisions under review, finding that the applicant was not entitled to the First Home Owner Grant nor to the First Home Plus duty concession. The Tribunal affirmed the decisions to impose a 20% penalty in respect of the First Home Owner Grant, and to impose both the market and premium rates of interest in respect of the unpaid duty.

Catchwords: Failure to comply with residency requirements - Discretionary relief and principles involved - Penalty - Interest

Case summary: O'Hara v Chief Commissioner of State Revenue [2011] NSWADT 289

First Home Plus Scheme

Residency Criteria

2015 Decision Summary
Rayek v Chief Commissioner of State Revenue [2015] NSWCATAD 40
Date of Decision: 13 March 2015

Decision: The Chief Commissioner's assessments are confirmed.

Catchwords: STATE REVENUE – first home owner grant – First Home Plus duty concession – residence requirement – penalty and interest

Case summary: Rayek v Chief Commissioner of State Revenue [2015] NSWCATAD 40
2014 Decision Summary
Payne and Simpson v Chief Commissioner of State Revenue [2014] NSWCATAD 11
Date of Decision: 10 February 2014

Decision: The decisions of the Chief Commissioner to reverse the decision to pay the Grant and to reassess the stamp duty exemption or concession are set aside.

Catchwords: First Home Owners Grant – First Home Plus Scheme – relevant interest in residential property – evidence of constructive trust

Case summary: Payne and Simpson v Chief Commissioner of State Revenue [2014] NSWCATAD 11
2012 Decision Summary
Mohamed v Chief Commissioner of State Revenue [2012] NSWADT 169
Date of Decision: 15 August 2012

Decision: Respondent's decisions, seeking to recover first home owner grant and additional duty, are revoked.

Catchwords: First home owner grant - First Home Plus Concession Scheme - residence requirement - property occupied as principal place of residence

Case summary: Mohamed v Chief Commissioner of State Revenue [2012] NSWADT 169
2011 Decision Summary
O'Hara v Chief Commissioner of State Revenue [2011] NSWADT 289
Date of Decision: 07 December 2011

Decision: The decision under review is affirmed

The Tribunal did not accept that the applicant ever had a genuine intention to meet the terms of the grant and the duties exemption by taking up residence in the property. The applicant had continuously leased the property since its purchase, which categorises it as an investment property. The applicant had returned to Germany after the purchase of the property for personal and career reasons, and had not returned to Australia to take up residence, nor did she have a genuine intention to do so.

The Tribunal found that the applicant had failed to inform the Chief Commissioner of her failure to meet the residence requirement. She also failed to repay the grant, and made false assertions in a statutory declaration. The Tribunal found that this case was one in which to grant discretionary relief by waiving the residency requirement would run counter to the underlying policy and purpose of the relevant legislation.

The Tribunal affirmed the decisions under review, finding that the applicant was not entitled to the First Home Owner Grant nor to the First Home Plus duty concession. The Tribunal affirmed the decisions to impose a 20% penalty in respect of the First Home Owner Grant, and to impose both the market and premium rates of interest in respect of the unpaid duty.

Catchwords: Failure to comply with residency requirements - Discretionary relief and principles involved - Penalty - Interest

Case summary: O'Hara v Chief Commissioner of State Revenue [2011] NSWADT 289
Last updated: 20 March 2017