Applicant At 130/2024 v Commissioner for Act Revenue (Administrative Review)
[2025] ACAT 69
•18 August 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT AT 130/2024 v COMMISSIONER FOR ACT REVENUE (Administrative Review) [2025] ACAT 69
AT 130/2024
Catchwords: ADMINISTRATIVE REVIEW — Duty concession under the Home Buyer Concession Scheme- Disallowable Instrument DI2022-157- Usual Income – Penalty Tax – Interest – Employment Termination Payment – Hardship - Unused Annual Leave Payment
Legislation cited: ACT Civil and Administrative Tribunal Act2008 s 59
Human Rights Act2004
Income Tax Assessment Act 1997 (Cth) ss 82-130 and 82-135
Taxation Administration Act 1999 schedule 2, ss 31, 32, 33, 34, 37, 107A(2)
Subordinate
Legislation cited: Explanatory statement to the Taxation Administration (Accounts Payable – Home Buyer Concession Scheme) Determination 2022
Taxation Administration (Amounts Payable-Home Buyer Concession Scheme) Determination 2022 ss 6(1)(c) and 6(3)
Cases cited: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14
Project Blue Sky Inc v Australia Broadcasting Authority [1998] HCA 28
R v Brown [1996] AC 543
SGHLtdvFederalCommissionerofTaxation [2002] HCA 18
Tribunal:Senior Member P Hatami
Date of Orders: 18 August 2025
Date of Reasons for Decision: 18 August 2025
Date of Publication: 8 October 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT130 of 2024
BETWEEN:
Applicant AT 130/2024
Applicant
AND:
COMMISSIONER FOR ACT REVENUE
Respondent
TRIBUNAL:Senior Member P Hatami
DATE:18 August 2025
ORDER
The Tribunal orders that:
The decision under review is affirmed.
……………Signed…………..
Senior Member P Hatami
REASONS FOR DECISION
Background
This is an application for administrative review filed by applicant AT 130/2024 (the applicant) with the Tribunal on 27 November 2024 in relation to a decision by the Commissioner for ACT Revenue (the Commissioner) dated 30 October 2024, disallowing her objection following a re-assessment of her eligibility for a grant of a duty concession under the Home Buyer Concession scheme (Established House) Concession (HBCSC).
The reassessment concerned a decision by the Commissioner made on 11 January 2023 granting the applicant an HBCSC of the entire payable duty on the purchase of her property in Kambah, ACT. The property was purchased for $855,000.00, the duty payable was $28,395.00, the HBCSC reduced the duty payable on the property to Nil.
The applicant’s eligibility for HBCSC was subject to Disallowable Instrument DI2022-157. That instrument set the income threshold for eligibility for HBCSC for an applicant without any dependants at $170,000.00. In the financial year ending on 30 June 2022 the applicant earned a gross income of $172,274.00.
On the 28 May 2024, the Commissioner wrote to the applicant informing her that her eligibility for the HBCSC was being investigated and asking her to:
(a) respond to three questions:
1.Do you believe you meet the income threshold criterion (Criterion 2) for the HBCS for the property? Provide supporting arguments.
2.Were you in a domestic partnership or married on 19 November 2022? If so provide the full name of your partner.
3. How many dependent children did you have as of 19 November 2022?
(b) submit her tax return for the financial year ending 30 June 2022.
The applicant responded to this notice and on 7 June 2024 by way of email attaching her tax return for 2021-2022. She did not respond to the Commissioner’s questions in her email.
On 11 June 2024 the Commissioner wrote to the applicant with a Notice of Reassessment. The reassessment determined that there was a taxation shortfall of $26,235.00 being the original claimed concession of $28,395.00 minus $2,160.00, the Commissioner having assessed the applicant as eligible for the Owner Occupier Concession. The reassessment also imposed a penalty of $6,558.75 and interest for the period 25/01/2023-6/6/2024 at $4,224.94. The notice of reassessment found that the applicant owed a total of $37,018.69.
The applicant’s position
The applicant does not dispute that in the financial year ending 30 June 2022 that she earned gross income of $172,274.00. She also does not dispute that this amount is above the income threshold set by DI2022-157. What she says is that the amount earned does not represent her ‘usual income’. She makes her case as follows:
In the financial year ending 30 June 2021 her total gross income was $115,084.00.
During the financial year ending on 30 June 2022 she was working for [redacted]. As of 30 May 2022 she had accrued 183.64 hours of annual leave. She had been saving her annual leave to travel overseas to be with her family during a period when her father was very ill.
On or around 30 May 2022 the applicant’s employer changed payroll entities. The transition of payroll entities was an administrative process which did not affect the terms and conditions of her employment. However, it required a payout of her unused leave in the sum of $17,530.24 from this employer. She also received an employment termination payment of $2,752.50.
During this period, the applicant also worked as an aged care worker. At the hearing, she said that she had been dismissed from one of those roles and had continued to be paid for the work. She undertook to submit evidence of this following the hearing as her submission was that these payments should be assessed as Employment Termination Payments.
She says that without the unused annual leave payout her earnings would have been well below the income threshold for eligibility for HBCSC. She says that the unusual circumstances for the payout mean that the income she received does not represent her ‘usual income’ as stipulated by section 6 (1)(c) of DI2022-157. She says that the leave payout was an “involuntary extraordinary payment which inflated her Gross Income”.
Penalty Tax
Section 37 of the Taxation Administration Act 1999 (TAA Act) provides that:
The commissioner may, if the commissioner considers it appropriate in the circumstances, remit penalty tax by any amount.
In relation to penalty tax the applicant says that it should be remitted in circumstances where the tax default has been incorrectly applied. In other words, given that the reassessment has incorrectly concluded that she was not entitled to the HBCSC, the penalty tax should be remitted.
The applicant refers to the Commissioner’s decision which states that:
No penalty tax would be payable if the Commissioner is satisfied that you took reasonable care to comply with the tax law and the tax default occurred solely due to circumstances outside of your (or your agent’s) control
She says that the forced annual leave payout which occurred due to the administrative change in payroll providers was beyond her control so it would be unnecessarily harsh to impose penalty tax in the circumstances.
Interest
In relation to interest the applicant acknowledges that the decision to impose interest is not reviewable by the Tribunal but seeks the Tribunal’s recommendation to the Commissioner that interest be remitted under section 29 of the TAA Act on the basis that the Commissioner cannot claim interest if there was no default.
The applicant also asks the Tribunal to take the burden of interest into consideration when making its determination.
Applicant’s supplementary material
In her supplementary material filed with the Tribunal on 17 July 2025, the applicant says that her income during this period was also not ‘usual’ because it reflected extended working hours that she undertook as a nurse in aged care to support elderly residents during the Covid 19 pandemic. She says these extra hours undertaken out of professional duty caused her income to temporarily increase. She asks the Tribunal to disregard the additional pay she received during these increased work hours given the circumstances which gave rise to the additional work and the impact of this pay rise on her eligibility for HBCSC.
She says that in October 2021 she was suspended from one of her employers in aged care. After her suspension she received a pre-rostered overtime payment of approximately $5,500.00. In support of this submission, the applicant has provided a letter from her aged care employer dated 7 October 2021. The letter informs the applicant that she is suspended from her duties with that employer while an investigation is conducted into an allegation that she has breached “the code of conduct”. She then attaches two payslips from the same employer dated 4 October 2021 to 17 October 2021 showing total gross income of $3,532.73 and 18 October 2021 to 31 October 2021 showing a total gross income of $3788.48. The combined gross income from these payslips is $7,321.21.
The applicant also asserts that she received $21,000.00 employment termination payment, though she has not provided any clear evidence in relation to this assertion. She says that these payments were ‘non-negotiable and unavoidable’. She says that but for these payments she would have been eligible for the HBCSC.
Hardship
The applicant’s father was ill and she says that she had to make multiple overseas trips during this period. She has provided evidence of this through travel bookings, a document containing a medical diagnosis and a death certificate.
She says that part of her hardship was also the tax liability imposed by the Commissioner and the legal fees that she paid to prepare her case for ACAT. She says that she had to borrow money to meet these financial obligations. She had to discontinue her studies, she suffered from mental health issues and continues to access support for the ongoing impact of these circumstances on her mental health.
She asserts that despite these challenges she has met her financial obligations including tax obligations and her mortgage payments.
Disproportionate and unintended penalty
The applicant repeats her submissions as previously asserted, that her income in the relevant financial year was ‘artificially inflated’ by the unused annual leave payment made by her employer when there was a change in payroll entities. She also asserts that the income threshold is now $250,000.00 for individuals without dependants acknowledging the increasing cost of living.
Exceptional, Compassionate or Unintended Consequences
The applicant repeats her previous submissions in her supplementary document by re-characterising the issues as falling into what she says are the Commissioner’s discretion to remit tax liabilities where ‘exceptional, compassionate or unintended consequences arise’. She says that the following situations should be considered in assessing this discretion:
(a) Public interest and community service during Covid-19
(b) Involuntary and irregular payments,
(c) Financial and emotional hardship.
She says that the application of the income threshold criteria for the HBCSC:
punishes a frontline healthcare worker who acted in good faith. Creates a disincentive for public service during crisis. Is contrary to the public interest, especially in light of my contribution during Covid-19. The decision fails to take into account relevant and mitigating factors, as required under administrative law principles (including proportionality, procedural fairness and public policy). This outcome does not reflect the intent of the legislation, which was not designed to penalise minor technical breaches caused by emergency national service.
She finally asserts that “under Natural Justice and Human Rights Act 2004 (ACT)” that ACT laws must be consistent with human dignity, equality and fairness.
The respondent’s position
The Commissioner says that determination provides a two limbed test:
(a) That the total gross income must reflect ‘income’ which is below the threshold, and
(b) That income is further confined to ‘usual’ income.
The Commissioner says that if income is above the threshold or not ‘usual income’ the homebuyer is not eligible for the concession. The Commissioner states that the annual leave payout is income – given that the determination defines income as “income from all sources – except for termination payments as defined in section 6(3)(a)” and section 82-135 (c) of the Income Tax Assessment Act 1997 (ITAA) expressly excludes ‘unused annual leave payment’ from being treated as Employment Termination Payments. So, the unused annual leave payment cannot be included in the category of termination payments and subsection 83-10(2) of the ITAA provides that unused annual leave payments are assessable income.
In discussing the ‘usualness’ or otherwise of the applicant’s income for the relevant financial year, the Commissioner refers to the explanatory statement which echoes the list of examples given at section 6(3)(a):
Temporary or short-term increases in income such as income from short-term higher duties, a short-term second job, and back pay received in the 12 months prior to the grant, transfer or agreement are included as income.
The Commissioner asserts that:
The inclusion of back-pay as a form of temporary or short-term income is instructive. Back-pay reflects annual income, but is clearly not a usual salary payment. Its inclusion as income therefore indicates that only the usualness of the income as a form of ongoing employment is relevant, rather than the usualness of the payment.
In relation to penalty tax the Commissioner states the applicant has not shown that she took reasonable care to comply with the tax law and that the default did not occur solely because of circumstances beyond her control. Moreover, that the applicant did not voluntarily disclose the tax default to qualify for a reduction under section 32 nor did she inform the commissioner before the investigation commenced to have a 20% reduction considered under section 33.
The Commissioner’s supplementary submissions
The Commissioner addresses the applicant’s supplementary material by repeating previous submissions and responding to the new arguments raised by the applicant as follows:
Public service during the Covid-19 crisis
The Commissioner says that while the applicant engaged in important work during the Covid-19 pandemic, there is no provision for consideration in the income thresholds set by the Taxation Administration (Amounts Payable-Home Buyer Concession Scheme) Determination 2022.
Involuntary and irregular payments
The Commissioner acknowledges that some of the applicant’s payments during the relevant period occurred in the context of irregular working circumstances, however, the payments were made as gross income and must be assessed as such. The Commissioner further asserts that the payments that the applicant received while suspended from her work with the aged care provider, were paid in the usual manner- that is they were payments that she would have received as wages.
The Hearing
The matter was heard on the 23 May 2025. The applicant was self-represented and the Commissioner was represented by ACT Government Solicitor and Mr Ben Game of Counsel.
The matters raised in the parties' submissions were presented and discussed. The Commissioner attempted to reach a settlement with the applicant outside of the hearing room. The matter did not settle.
The applicant became increasingly more distressed as the hearing progressed. She said that her income was above the threshold for reasons beyond her control. She said that in addition to the issue of the annual leave payout, she had worked additional hours as a nurse in aged care to assist the elderly during the Covid 19 pandemic. She said that her father was recently deceased and she was devastated by this loss.
The applicant reiterated her position that the tax default and the resulting penalty tax and interest were manifestly unfair. She said that her income was only above the threshold because she had agreed to work more hours to support the elderly during the Covid pandemic. That if she had not worked the additional hours she would not have been over the income limit and now facing a significant financial deficit as a result.
She said that the leave payout she received was beyond her control, particularly as she had been saving that leave to visit her father who was dying, and who subsequently did pass away.
The applicant became increasingly more distressed until the Tribunal reached the conclusion that the applicant could no longer properly participate in the proceedings and decided to end the hearing and obtain any further submissions from the parties in writing.
The Tribunal made directions at the conclusion of the hearing giving parties leave to submit further submissions with the applicant required to submit her material by 13 July 2025 and the Commissioner by 24 June 2025.
On 13 June 2025 the applicant wrote to the Tribunal requesting additional time to submit her further evidence. Orders were made allowing the applicant to file her further material by 27 June 2025 and the Commissioner by 11 June 2025. The applicant submitted her further material on 30 June 2025 and the respondent on 17 July 2025.
Decision
Usual Income
Section 6 (1)(c) of DI2022-157 defines eligible transaction. The part of the provision subject of these proceedings reads as follows:
In this instrument:
eligible transaction means a transfer with a transaction date on or after 1 July 2022 that meets the following requirements....
(c)the total gross income of all eligible home buyers and their domestic partners (if any) in the previous financial year—
(i) is less than or equal to the income threshold; and
(ii) reflects the usual income of each person;…
Section 6(3) of DI2022-157 defines the term ‘income’.
(3) In this section:
income means income from all sources—
(a)other than employment termination payments under the Income Tax Assessment Act (Cwlth), section 82-130, if the payments are made for years of service under a genuine redundancy payment; and
(b)for a self-employed person—including the net trading profit or gain made in the ordinary course of carrying on the person’s business, but not including the business’ turnover.
Examples—sources of income
• benefits from a salary packaging arrangement
• exempt income under the Income Tax Assessment Act 1997 (Cwlth),
• section 6-20
• maintenance payments
• short-term higher duty payments• short-term second job payments
The applicant has maintained in her pre and post hearing submissions as well as during the hearing, that there is an inherent unfairness in assessing her eligibility for the HBCSC to include the unused leave payment that she received and the pay she received by virtue of working overtime in essential services during the Covid-19 pandemic. She says that this spike in her pay was beyond her control. That given her lack of control over these payments and the unusual circumstances in which they arose, the payment should not count towards her gross income. In the alternative, she says that her income was inflated by an ‘involuntary extraordinary payment’ and does not represent her ‘usual income’.
The applicant asked the Tribunal to interpret her ‘usual income’ based upon what her income was in the previous financial year without the annual leave payout and without the additional pay she received as a consequence of working extra hours during the Covid-19 pandemic.
Section 6(1)(c) requires the gross income of an eligible home buyer to be less than the threshold and to reflect their usual income. The applicant has asked the Tribunal to read the second limb of this provision as though it is a stand-alone consideration. The applicant has asked the Tribunal to apply the ‘ordinary’ meaning of the word ‘unusual’ to these circumstances and to find that because her pay increased due to the two ‘unusual’ payments the Tribunal ought to disregard these payments for the purposes of assessing whether her gross income meets the income threshold for the purposes of the HBCSC.
It is an improper approach to consider the word ‘unusual’ here in isolation. The proper approach requires the Tribunal to derive the meaning of the words from the legislative context in which the words appear. The Tribunal must examine the sentence, the paragraph and the surrounding provisions to properly identify the meaning of the words and the context in which it is used.[1]
[1] CollectorofCustomsvAgfa-GevaertLtd [1996] HCA 36, 396–7 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ), quoting RvBrown [1996] 1 AC 543, 561 (Lord Hoffmann); MinisterforImmigrationandMulticulturalAffairsvKhawar [2002] HCA 14 at [109] (Kirby J); SGHLtdvFederalCommissionerofTaxation [2002] HCA 18 at [88] (Kirby J).
The presence of the word ‘and’ between Section 6(1)(c)(i) and (ii) means that they are to be read as a two-step process. That is if an applicant’s income is below the threshold, it must reflect their usual income. What this provision does not do is create a stand-alone criterion requiring the decision maker to determine whether the applicant’s income was ‘unusual’ or unusually high compared to previous financial years because of unforeseen circumstances.
It is a matter for the legislature to draft instruments which reflect the consideration of circumstances such as those put by the applicant. This has not occurred here. The overall objective of statutory construction is to give effect to the purpose of Parliament as expressed in the text of the statutory provisions.[2] The Tribunal must interpret legislation to give effect to this purpose. The language of DI2022-157 is clear.
[2] ProjectBlueSkyIncvAustralianBroadcastingAuthority [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ)
The applicant’s suggestion that the Tribunal should read section 6(c)(ii) as a stand-alone criterion to be considered on its own in determining whether a home buyer’s income is unusually inflated, is simply incorrect. There is no mechanism in the instrument for such a consideration.
The Tribunal finds that the Commissioner has correctly applied section 6(c) to the applicant’s circumstances in finding that unused annual leave payout and additional working hours comprise gross income and thereby are assessable for the purposes of the income threshold imposed by DI2022-157.
Employment Termination Payment
The applicant says that in October 2021 she was suspended from one of her employers in aged care. After her suspension she received a pre-rostered overtime payment of approximately $5,500.00. In support of this submission, the applicant has provided a letter from her aged care employer dated 7 October 2021. The letter informs the applicant that she is suspended from her duties with that employer while an investigation is conducted into an allegation that she has breached ‘the code of conduct’. She has attached two payslips from the same employer dated 4 October 2021 to 17 October 2021 showing total gross income of $3,532.73 and 18 October 2021 to 31 October 2021 showing a total gross income of $3788.48. The combined gross income from these payslips is $7,321.21.
56.An employment termination payment is defined by section 82-130 of the Income Tax Assessment Act 1997 as follows:
82‑130 What is an employment termination payment?
(1) A payment is an employment termination payment if:
(a) it is received by you:
(i) in consequence of the termination of your employment; or
(ii) after another person’s death, in consequence of the termination of
the other person’s employment; and
(b) it is received no later than 12 months after that termination (but see subsection (4)); and
(c) it is not a payment mentioned in section 82‑135.
Note 1: If a payment would be an employment termination payment but for paragraph (b), see subsection (4) and section 83‑295.
Note 2: The holding of an office is treated as employment for this Part: see section 80‑5. Also, the termination of employment is treated as including the termination of employment by retirement or by death: see section 80‑10.
Types of employment termination payment
(2) A life benefit termination payment is an *employment termination payment to which subparagraph (1)(a)(i) applies.
(3) A death benefit termination payment is an *employment termination payment to which subparagraph (1)(a)(ii) applies.
Exemption from 12 month rule
(4) Paragraph (1)(b) does not apply to you if:
(a) you are covered by a determination under subsection (5) or (7); or
(b) the payment is a *genuine redundancy payment or an *early retirement scheme payment.
Note: The part of a genuine redundancy payment or an early retirement scheme payment worked out under section 83‑170 is not an employment termination payment: see section 82‑135.
(5) The Commissioner may determine, in writing, that paragraph (1)(b) does not apply to you if the Commissioner considers the time between the employment termination and the payment to be reasonable, having regard to the following:
(a) the circumstances of the employment termination, including any dispute in relation to the termination;
(b) the circumstances of the payment;
(c) the circumstances of the person making the payment;
(d) any other relevant circumstances.
(6) A determination under subsection (5) is not a legislative instrument.
(7) The Commissioner may, by legislative instrument, determine that paragraph (1)(b) does not apply to either or both of the following, as specified in the determination:
(a) a class of payments;
(b) a class of recipients of payments.
(8) A determination under subsection (7) may provide for paragraph (1)(b) not to apply in circumstances relating to any (or all) of the following, as specified in the determination:
(a) a class of employment termination (including a class described by reference to disputes of a specified type);
(b) a class of payments;
(c) a class of persons making payments;
(d) the period after the employment termination until payment is received;
(e) any other relevant circumstances.
57.Payments that are not employment termination payments are defined by section 82-135 of the Income Tax Assessment Act 1997.
82‑135 Payments that are not employment termination payments
The following payments you receive are not employment termination payments:
(a) a *superannuation benefit (see Divisions 301 to 307);
(b) a payment of a pension or an *annuity (whether or not the payment is a superannuation benefit); and
(c) an *unused annual leave payment (see Subdivision 83‑A);
An employment termination payment is received ”in consequence of the termination of your employment”.[3] The payments received by the applicant following her suspension are payment of salary for days that she was scheduled to work but did not work because she was suspended from work. They are a payment made because she remained in active employment with this employer albeit suspended from her duties while an investigation was carried out. Though the payments were made during a period when she was not attending to her duties, she remained employed. These payments were not employment termination payments and remain an assessable part of her gross income for the purposes of the HBCSC.
[3] Income Tax Assessment Act 1997 (Cth) s 82-130(1)(a)(i)
The applicant also asserts that she received $21,000.00 employment termination payment. Though she has not provided any clear evidence or explanation in relation to this assertion, the Tribunal assumes that this figure is the combination of the leave entitlements and the employment termination payment made by her employer being $17,530.24 leave entitlement and $2,752.50 employment termination payment when a payroll entity change occurred.
These payments were also discussed in her previous submissions, though in the first submissions the leave entitlements were characterised as an ‘involuntary extraordinary payment which inflated her Gross Income’, she has in her subsequent submissions characterised them as an Employment Termination Payment.
As stated earlier, the $17,530.24 that the applicant received as a lump sum for unused leave entitlements, is assessable as gross income for the purposes of DI2022-157. Section 83-135 of the Income Tax Assessment Act expressly states that annual leave payouts are not Employment Termination Payments. The $2,752.50 Employment Termination Payment that was received by the applicant has already been disregarded by the Commissioner for the purposes of calculating the applicant’s gross income.
Penalty Tax
62.The relevant provisions of the TAA Act are as follows:
31 Amount of penalty tax
(1) The amount of penalty tax payable in relation to a tax default is 25% of the amount of tax unpaid, subject to this division.
(2) The commissioner may increase the amount of penalty tax payable in relation to a tax default to 50% of the amount of tax unpaid if the commissioner is satisfied that the tax default—
(a) was caused wholly or partly by the taxpayer (or a person acting on behalf of the taxpayer)—
(i) delaying the payment of tax; or
(ii) delaying the provision of information required for the assessment of tax; or
(iii) providing information required under a tax law that is incorrect, incomplete or misleading; or
(b) is the taxpayer’s second or subsequent tax default in relation to a tax liability, or in relation to a similar or related tax liability.
(3) Subsection (2) applies to a tax default in the same way whether the tax default happened before or after the subsection commenced.
(4) The commissioner may increase the amount of penalty tax payable in relation to a tax default to 75% of the amount of tax unpaid if the commissioner is satisfied that the tax default was caused wholly or partly by the intentional disregard by the taxpayer (or a person acting on behalf of the taxpayer) of a tax law.
(5) No penalty tax is payable in relation to a tax default if the commissioner is satisfied that—
(a) the taxpayer (or a person acting on behalf of the taxpayer) took reasonable care to comply with the tax law; or
(b) the tax default happened solely because of circumstances beyond the taxpayer’s control (or if a person acted on behalf of the taxpayer, because of circumstances beyond either the person’s or the taxpayer’s control) but not amounting to financial incapacity.
Note The commissioner’s decision to impose penalty tax is an internally reviewable decision (see s 107, def internally reviewable decision), and the commissioner must give an internal review notice to the taxpayer (see s 107B).
32 Reduction in penalty tax for voluntary disclosure
The amount of penalty tax determined under section 31 is reduced by 80% if, before the commissioner informs the taxpayer that an investigation relating to the taxpayer is to be carried out, the taxpayer discloses to the commissioner, in writing, sufficient information to enable the nature and extent of the tax default to be determined.
33 Reduction in penalty tax for disclosure before investigation
The amount of penalty tax determined under section 31 is reduced by 20% if, after the commissioner informs the taxpayer that an investigation relating to the taxpayer is to be carried out and before it is begun, the taxpayer discloses to the commissioner, in writing, sufficient information to enable the nature and extent of the tax default to be determined.
The Home Buyers Concession Scheme through the ACT Revenue Office is self-assessed. This means that applicants lodge their paperwork directly with the ACT Revenue Office and are assessed based upon the information they submit. The applicant has incorrectly reported her gross income and obtained the concession based on inaccurate information. The Commissioner in this instance has elected to impose the minimum tax penalty of 25%. The Commissioner can increase this penalty amount to 50% where the taxpayer has provided incorrect, incomplete or misleading information.[4]
[4] Taxation Administration Act 1999 s 34, table 34
The HBCSC is a self-reporting scheme, this means that home buyers submit their own paperwork with the ACT Revenue Office and the assessment is automatically completed based upon the information the home buyer has provided. It is a matter for each taxpayer to ensure that the information they submit is correct. In this instance, the applicant has supplied incorrect information with ACT Revenue Office and thereby was incorrectly assessed as being eligible for the HBCSC. The onus is on the home buyer to provide the correct information, failure to do so carries a penalty tax. The applicant’s gross income was beyond the threshold for eligibility for the HBCSC therefore the Tribunal finds that the penalty tax has been correctly applied.
Moreover, there is no evidence before the Tribunal to indicate that the applicant has met either of the threshold requirements for the finding she took reasonable care to comply with the tax law nor that the default happened because of circumstances beyond her control.[5]
[5] Taxation Administration Act 1999 s 34, table 34
The applicant submits that the payment of accrued leave was beyond her control, be that as it may, the test here is not whether the payment was beyond her control but that the incorrect reporting of the gross income was beyond her control. She has not provided any evidence to satisfy this Tribunal that her failure to correctly report her income occurred because of circumstances beyond her control.
The Tribunal also finds that the applicant has not met the requirements for reduction of the penalty tax as there is no evidence before the Tribunal to indicate that at any stage prior to the commencement of the investigation, the applicant took steps to voluntarily disclose that she had incorrectly reported her gross income to the Commissioner.[6]
[6] Taxation Administration Act 1999 s 32
Interest
The decision to apply interest is not reviewable by this Tribunal. The Commissioner may review its decision to remit interest.[7] This decision is only reviewable by the Commissioner.[8] The Tribunal does not have jurisdiction to review this decision.
[7] Taxation Administration Act 1999 Schedule 2, s 2.1
[8] Taxation Administration Act 1999 Schedule 2, s 2.2(a)
Financial Hardship, Personal Circumstances, Disproportionated and Unintended Penalty and Human Rights considerations
The applicant has made submissions setting out her difficult personal circumstances and how they might inform the decision of this Tribunal. The Tribunal stands in the shoes of the original decision maker when reviewing a decision under the authorising law,[9] in this case being tax law.[10] The Tribunal cannot deviate from the authorising law that gives it the power to review decisions.
[9] ACT Civil and Administrative Tribunal Act 2008, s 59
[10] Tax Administration Act 1999 s 107A(2)
The applicant has not pointed the Tribunal to any legislative mechanism to support her arguments insofar as the matters she has raised under these headings.
Though the Tribunal accepts that the applicant, has found herself facing a considerable personal tragedy, there is no mechanism through which the Tribunal can apply these circumstances to the legislative provision that guides the review of the Commissioner’s decision.
The Tribunal is sympathetic to the applicant’s circumstances and is pleased to receive submissions from the applicant that she remains in ownership of the property she purchased, continues to meet her mortgage obligations and is receiving counselling for the mental health challenges she has faced since the passing of her father.
Orders
The Tribunal orders that:
1. The decision under review is affirmed.
…………Signed…………..
Senior Member P Hatami
Date of hearing: 23 May 2024
Applicant: In person
Respondent: ACT Government Solicitor
Mr Ben Game of Counsel
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Amendment
1 October 2025 Replacing the name of the applicant with “applicant AT 130/2024” and de-identifying the names of her employers
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