Allam v Chief Commissioner of State Revenue

[2005] NSWADT 205

CITATION:	Allam v Chief Commissioner of State Revenue [2005] NSWADT 205
DIVISION:	General Division
PARTIES:	APPLICANT Mahmoud Allam RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	053172
HEARING DATES:	04/07/2005
SUBMISSIONS CLOSED:	07/04/2005
DATE OF DECISION:	08/31/2005
BEFORE:	Hole M - Judicial Member
APPLICATION:	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
CASES CITED:	Ansari v Chief Commissioner of State Revenue [2005] NSWADT 98 Bates v Chief Commissioner of State Revenue [2004] NSWADT 13 Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158 Marcus v Chief Commissioner of State Revenue [2005] NSWADT 97 Pundir v Chief Commissioner of State Revenue [2005] NSWADT 108 Tarak Adasi v Chief Commissioner of State Revenue [2004] NSWADT – 043208 Tomasian v Chief Commissioner of State Revenue [2004] NSWADT 37 Zebedee Clifford Madex v Office of State Revenue ADT 21 January 2005
REPRESENTATION:	APPLICANT In person RESPONDENT B Baker, solicitor
ORDERS:	The decision of the Chief Commissioner made on 3 May 2005 is confirmed. The Grant received by the Applicant is to be repaid to the Chief Commissioner’s office.

1 This matter was heard at the same time as Matter No 043413 and the evidence and submissions made in that former matter is also the evidence in this matter.

Introduction

2 The Applicant has applied for a review of the decision of the Chief Commissioner of State Revenue to require a refund the First Home Owners Grant which had previously been granted to the Applicant.

Background

3 On 18 September 2002 the Applicant purchased a property at 57/18 Facey Street, Lurnea. On 18 August 2002 the Applicant signed an application for the First Home Owners Grant. This Grant was approved and paid to the Applicant on 18 September 2002. Settlement of the purchase of the property occurred on 23 September 2002.

4 On 1 November 2002 the Applicant commenced leasing the property and it has been continuously leased since that date. The Applicant has not resided in the property.

5 On 29 July 2004 the Office of State Revenue wrote to the Applicant advising him that under Section 45(1) of the First Home Owners Grant Act 2000 the Chief Commissioner of State Revenue was authorised to require an applicant to repay the amount granted if:

i) the amount was paid in error

ii) the Chief Commissioner of State Revenue reverses the decision under which the amount was paid for any other reason.

6 The Applicant was advised by the Office of State Revenue that based on his reply to the ‘Confirmation of Residency’ letter he was obliged to repay the Chief Commissioner of State Revenue $7,000 for the repayment of the grant. The reasons given included:

he had failed to advise the Office of State Revenue that he would not reside in the property within the required period of time

7 To the date of the hearing of the matter the Applicant had not resided in the property.

8 The Applicant submitted that he had every intention of moving into the property but due to financial difficulties was unable to do so and felt it necessary to lease the property. He is also looking into undertaking further studies. The Applicant has repaid $500.00 as a gesture of good faith and asked that his payments be made periodically over a 12 to 18 month period. The Applicant would seem not to have had dishonest intent in his contravention of Section 12 of the provisions of the First Home Owners Act 2000 which provides:

“12 (1) An applicant for a first home owner grant must occupy the home to which the application relates as the applicant’s principle place of residence within 12 months after completion or a longer period approved by the Chief Commissioner of State Revenue.”

9 The Applicant submitted an executed declaration at the time of the purchase of the property to the Office of State Revenue. He gave evidence that he did not read the declaration prior to signing it. The form sets out that if the circumstances of the applicant change as e.g. “where the residency requirement is not met,” then the applicant should notify the Chief Commissioner of State Revenue in writing.

10 The Applicant is attempting to improve his position and is seeking further education to that end. He embarked on an ambitious project to commence a business and purchase his home at the same time. He did not seek assistance from a professional for his tax requirements. He fell behind with various commitments and the business failed.

11 The Applicant had intended to move into the house. Circumstances, financially and personally, precluded him from doing so. Initially he intended to lease the house only for the first 9 months although the lease was for 6 months. He stated on the declaration that he expected to occupy the house on 27 September 2002.

12 The Applicant encountered financial difficulties and as noted the business venture was unsuccessful. When he received the notice to repay he indicated to the Office of State Revenue that he would lodge an objection to the assessment of penalty tax and interest. He also sought agreement to repay by instalments and made an initial repayment of $500.00 on 30 August 2004. The balance of the repayments remain outstanding.

13 The various cases that provide guidance in relation to situations where a First Home Owner Grant are required to be repaid are:

Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158

Tarak Adasi v Chief Commissioner of State Revenue [2004] NSWADT – 043208

Marcus v Chief Commissioner of State Revenue [2005] NSWADT 97

Zebedee Clifford Madex v Office of State Revenue ADT 21 January 2005

Ansari v Chief Commissioner of State Revenue [2005] NSWADT 98

Tomasian v Chief Commissioner of State Revenue [2004] NSWADT 37

Pundir v Chief Commissioner of State Revenue [2005] NSWADT 108

Bates v Chief Commissioner of State Revenue [2004] NSWADT 13

14 I find that:

The decision of the Chief Commissioner made on 3 May 2005 is confirmed. The Grant received by the Applicant is to be repaid to the Chief Commissioner’s office.