Allam v Bhief Commissioner of State Revenue

[2006] NSWADT 127

CITATION:	Allam v Bhief Commissioner of State Revenue [2006] NSWADT 127
DIVISION:	General Division
PARTIES:	APPLICANT Mahmoud Allam RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	053326
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12/05/2005
DATE OF DECISION:	05/01/2006
BEFORE:	Hole M - Judicial Member
CATCHWORDS:	first home owners grant - reversal of original decision - First Home Owners Grant Act - first home owners grant - reversal of original decision
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	First Home Owners Grant Act 2000 Taxation Administration Act 1996
CASES CITED:	Allam v Chief Commissioner of State Revenue [2005] NSW ADT 172 Allam v Chief Commissioner of State Revenue [2005] NSW ADT 205 Ansari v Chief Commissioner of State Revenue [2005] NSW ADT 98 Bates v Chief Commissioner of State Revenue [2004] NSW ADT 13 Calcaro v Chief Commissioner of State Revenue [2004] NSW ADT 158 Marcus v Chief Commissioner of State Revenue [2005] NSW ADT 97 Pundir v Chief Commissioner of State Revenue [2005] NSW ADT 108 Tarak Adasi v Chief Commissioner of State Revenue [2004] NSW ADT 043208 Tomasian v Chief Commissioner of State Revenue [2004] NSW ADT 37 Zebedee Clifford Madex v Office of State Revenue [2005] NSW ADT 043269
REPRESENTATION:	APPLICANT In person RESPONDENT A Gerard, solicitor
ORDERS:	The imposition of a 20% penalty on repayment of the First Home Owner Grant is affirmed.

1 The applicant applied to the Tribunal for review of the decision of the Chief Commissioner of State Revenue to require refund of the First Home Owner’s Grant (Application No 053172) and the imposition of a 20% penalty (Application No 043413).

2 On 1 August 2005 the Tribunal delivered a decision in respect of Application No 043413 to the effect that “The imposition of the 20% interest payable on the First Home Owner Grant is affirmed.” – Allam v Chief Commissioner of State Revenue [2005] NSW ADT 172 (“Allam 172”). On 31 August 2005 the Tribunal delivered a decision in respect of Application No 053172 to the effect that “The decision of the Chief Commissioner of State Revenue made on 3 May 2005 is confirmed. The Grant received by the Applicant is to be repaid to the Chief Commissioner’s office.” – Allam v Chief Commissioner of State Revenue [2005] NSW ADT 205 (“Allum 205”).

3 The applicant lodged a Notice of Appeal on 19 August 2005. This appeal was in relation to both Application 043413 and 053172. The appeal in respect of Application 053172 was dealt with by delivery of the supplementary decision in Allam 205 on 31 August 2005. The appeal in respect of the decision in Application No 043413 was remitted to the Tribunal for redetermination. This is the application relating to the imposition of a 20% penalty on repayment of the First Home Owner Grant.

4 Following remission of the appeal by the Tribunal both the applicant and the respondent provided further written submissions to the Tribunal and attended at a directions hearing on 10 October 2005 when directions were made for the filing of further submissions and that following the expiry of the date for filing of those submissions on 5 December 2005 this matter would then be considered having regard to the material on the file, the material provided at the initial hearing of Application No 043413 and the further submissions received.

5 The applicant’s submissions are set out in Allam 172 and he further submitted that he was unaware that he had to notify the Chief Commissioner within 14 days after 12 months from the date of purchase that he had not complied with the Grant requirement.

6 The respondent submitted that the imposition of a penalty in respect of a First Home Owner Grant is governed by Section 45 of the First Home Owner Grant Act 2000 and that the 20% penalty was appropriate in the particular circumstances of the applicant.

7 The material provided on hearing of the application in respect of the imposition of the 20% penalty has been reconsidered. The reasons for decision as set out in Allum 172 are affirmed apart from Paragraph 7. Section 21 of the Taxation Administration Act 1996 does not apply to the imposition of a penalty on requirement to pay a First Home Owner Grant.

8 As the applicant was honest, he had an initial intent to move in and then did not do so, he has retained the Grant for more than two years and has made an arrangement to repay the Grant, then in accordance with the guidance provided by the cases set out below imposition of a penalty of 20% is appropriate.

Calcaro v Chief Commissioner of State Revenue [2004] NSW ADT 158

Tarak Adasi v Chief Commissioner of State Revenue [2004] NSW ADT 043208

Marcus v Chief Commissioner of State Revenue [2005] NSW ADT 97

Zebedee Clifford Madex v Office of State Revenue [2005] NSW ADT 043269

Ansari v Chief Commissioner of State Revenue [2005] NSW ADT 98

Tomasian v Chief Commissioner of State Revenue [2004] NSW ADT 37

Pundir v Chief Commissioner of State Revenue [2005] NSW ADT 108

Bates v Chief Commissioner of State Revenue [2004] NSW ADT 13

The imposition of a 20% penalty on repayment of the First Home Owner Grant is affirmed.