Chakravarty & Commissioner for ACT Revenue
[2013] ACAT 11
•25 February 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CHAKRAVARTY & COMMISSIONER FOR ACT REVENUE
(Administrative Review) [2013] ACAT 11AA 12/51
Catchwords: ADMINISTRATIVE REVIEW – considerations in dealing with an appeal from the decision of the Original Tribunal: whether incorrect principle was applied, whether weight was given to irrelevant matters or whether insufficient weight was given to relevant matters; and whether the decision involved Wednesbury unreasonableness - First Home Owner Grant – Home buyer concession duty reassessment penalty tax – whether the appellant identified a question of fact or law
Legislation:ACT Civil and Administrative Act 2008, ss. 68, 79 & 82
First Home Owner Grant Act 2000, ss. 12, 20, 23, 47, 48 & 49
Taxation Administration Act 1999, ss. 29, 30, 31& 37
List of Regulations: Taxation Administration (Amounts Payable – Eligibility-Home Buyer Concession Scheme) Determination 2008 (No1)
List of cases: ACT Human Rights Commission v Raytheon Australia Pty Ltd [2009] ACTSC 55
Ansari v Chief Commissioner of State Revenue [2005]
NSWADT 98
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B.223
Australian Coal & Shale Employees Federation v
Commonwealth (1953) 94 CLR 621Calcaro v Commissioner for State Revenue [2004] NSWADT
158Chief Commissioner of State Revenue (NSW) v Ferrington (GD) [2004] NSWADTAP 41
Das v A & A Airconditioning (Civil Disputes) [2011] ACAT 52
Davey v Commissioner for ACT Revenue [2008] ACTAAT 30
House v King (1936) 55 CLR 499
McArthur v Commissioner for Act Revenue (Administrative
Review) [2012] ACAT 65
Pesi v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 61
Pundir v Chief Commissioner of State Revenue [2005]
NSWADT 108
Rauf v Chief Commissioner of State Revenue [2005] NSWADT
176
Spresian v Chief Commissioner of State Revenue [2006]
NSWADT 239
The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63
Tomasian v Chief Commissioner of State Revenue [2004]
NSWADT 37
Zhang & anor v Chief Commissioner of State Revenue [2005]
NSWADT 178
Tribunal: Ms E Symons – Presidential Member
Date of Orders: 25 February 2013
Date of Reasons for Decision: 25 February 2013AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: AA 12/51
RE:SUBHANGI CHAKRAVARTY
Applicant
AND:COMMISSIONER FOR ACT REVENUE Respondent
ORDERS
Tribunal : Ms E Symons - Presidential Member
Date : 25 February 2013
The Tribunal orders that:
1. The appeal is dismissed.
...............................
Ms E Symons
Presidential Member
REASONS FOR DECISION
1.On 6 November 2012 the appellant, Ms Chakravarty, lodged an Application for Appeal from an ACAT decision dated 9 October 2012 (the Original Tribunal) [1].
[1] Chakravarty & Commissioner for ACT Revenue (Administrative Review) [2012] ACAT 68
2.The Original Tribunal’s decision confirmed two decisions; namely the decision of a delegate of the Commissioner for ACT Revenue on 7 November 2011 (the FHOG decision) to reverse the FHOG grant and to impose penalty tax and interest as the appellant had not complied with the residency requirement relating to a grant to her under the First Home Owner Grant Act 2000 (the FHOG Act) and the decision to reassess ( the Tax Act decision) the duty payable by the applicant under the Taxation Administration Act 1999 (the Tax Act) and the Taxation Administration (Amounts Payable – Eligibility-Home Buyer Concession Scheme) Determination 2008 (No1) (the Determination) and to impose interest and penalty tax.
3.The background history is not in dispute. The Appeal Tribunal refers to and adopts that history from the decision of the Original Tribunal.
BACKGROUND HISTORY
The Tax Act Decision4.On 16 October 2008, the appellant entered into a contract to purchase the property, 10/25 Totterdell Street, Belconnen, (the property), which was settled on 10 December 2008 when the property was transferred to her.
5.On 13 November 2008, she signed an application for a home buyer concession (HBC) under the Determination. This application contained a declaration to the effect that the appellant would reside in the property as her principal place of residence for a continuous period of 6 months - that period to commence within one year of the transfer of the property to her, namely by 10 December 2009 (the residency requirement).
6.The initial non-concessional assessment of duty payable as at 19 November 2008 was $10,875.00. The appellant’s application was approved and concessional duty of $20.00 was assessed. The Notice of Reassessment included a statement that the concession was made on condition of the observance of the above residency requirement.
7.The appellant had not taken up residence in the property at the time of the Original Tribunal hearing or at the time of the Appeal Tribunal hearing. The appellant had initially licensed the property to a friend and then leased it to tenants.
8.On 5 October 2011, the appellant was told of an investigation into her compliance with the conditions of the grant of the concessional assessment of duty.
9.By letter dated 26 October 2011 to the Commissioner’s office, the appellant requested exemption from the residency requirements. She agreed that the requirement had not been complied with.
10.On 7 November 2011, a delegate of the Commissioner decided to re-assess the duty payable by the appellant. The basis of this decision (the first decision) was that the appellant had not complied with the residency requirement noting that any request for extension or exemption from that requirement had to be made before 10 December 2009. In addition to reassessing the duty payable, penalty tax was imposed on the appellant pursuant to section 30 of the Tax Act at the rate specified under subsection 31(1) of the Act. Interest was also imposed.
11.The appellant objected to the first decision and it was considered at an internal review. In a decision dated 20 March 2012, the appellant’s objection was disallowed in full and the first decision was confirmed. The delegate’s reasons for the first decision pointed out that a decision to refuse to remit interest under section 29 of the Act is listed in Schedule 2 of the Act as a decision that can only be reviewed by the Commissioner. Therefore, this part of the decision was not reviewable by the Original Tribunal.
12.The appellant’s application to the Original Tribunal for review of the first decision challenged the home buyer concession (HBC) duty reassessment under the Tax Act, the imposition of penalty tax and the imposition of interest.
The FHOG Act decision
13.The appellant signed an application for a grant under the FHOG Act on 16 October 2008 in respect of the above property transaction. She signed this application on the same day as she signed the contract for purchase of the property.
14.In the signed application form the appellant ticked a box ‘yes’ to the following eligibility criterion:
6. Will each applicant be occupying the home as their principal place of residence for a continuous period of 6 months commencing within 12 months of completion of the eligible transaction?
15.The application form contained a declaration to the same effect just before the signature.
16.On 2 December 2008, payment of the First Home Owner Grant (FHOG) was approved in the sum of $14,000 made up of $7,000 (the grant) and $7,000 (FHOG Boost).
17.The letter of approval stated that the grant was conditional on compliance with the residential requirement. It also stated that there was no provision for extension of the residency requirement once the relevant period expired.
18.On 5 October 2011, the appellant was told of an investigation into her compliance with the conditions upon which the grant was made.
19.In her letter of 26 October 2011 (referred to above), the appellant requested exemption from the residency requirement of the FHOG Act and agreed that the condition had not been complied with.
20.In the decision (the second decision) dated 7 November 2011 the delegate of the Commissioner reversed, pursuant to section 23 of the FHOG Act, the earlier decision to make the grant and the grant boost to the appellant. The delegate relied on section 20 of the Act. He found that the appellant had not complied with the residency requirement and had applied for exemption outside the time limit specified.
21.A penalty was also applied pursuant to section 47(2) of the Act, and interest imposed pursuant to section 48. Section 47(2) permits the respondent to impose a penalty in the case of an applicant’s dishonesty.
22.A review was conducted following the appellant’s objection. The review decision was dated 20 March 2012 and confirmed the original decision with one variation. The delegate relied on section 47(3) to impose a penalty rather than section 47(2) of the Act, pointing out that the obligation to pay had arisen under section 47(1)(b) of the Act. The variation of the second decision removed any suggestion that dishonesty on the part of the appellant had been the basis for the imposition of the penalty.
23.The appellant’s application to the Original Tribunal for review of this decision challenged the reversal of the grant and the grant boost and the imposition of penalty tax and interest.
THE APPEAL
24.In the Application for Appeal the appellant did not specifically identify questions of law and questions of fact for consideration by the Appeal Tribunal. In response to the question in the application for an appeal:
Any question of law or fact involved?
the appellant stated:
I am unable to provide any. I am not conversant with the legal system.
25.The appellant pointed to what she described as ‘flaws’ in the Original Tribunal’s rationale and attached, under “Reasons why the appeal should succeed” in her submissions dated 26 October 2012 (entitled “RE: Appeal against decision in the matter of Ms Subhangi Chakravarty v Commissioner for ACT Revenue”), detailed submissions which the Tribunal has referred to in paragraph 30 below.
26.The appellant asked the Appeal Tribunal “to review its decision [as] I do not agree with the ACT revenue’s decision and want the amounts waived on the basis of my circumstances.”
27.The appellant then asked if her request in the previous paragraph “is not possible due to the stifling legislation which refuses to treat each case individually then I would like the Tribunal to remain consistent with the list of authorities I have provided and reduce the penalties imposed by the ACT revenue.”
28.On 16 November 2012 a Directions Hearing was held and the following orders were made:
1The appellant is to file and serve any further list of questions of fact she is relying on including any summary of existing questions of fact contained in her appeal by close of business Friday 7 December 2012.
2The respondent is to file and serve their response by close of business Friday 14 January 2013.
3The appellant is given liberty to file her response by close of business Friday 1 February 2013.
4Parties can serve their appeal material in orders 1, 2 and 3 by email.
5The matter was listed for hearing on Friday 15 February 2013.
29.The Tribunal also made orders on16 November 2012 that the appeal would proceed as a review of the original decision pursuant to section 82(b) of the ACAT Act.
30.The appellant lodged a summary of the reasons (the reasons) for her appeal in accordance with the above orders. The Appeal Tribunal sets out these reasons:
1ACT Revenue’s treatment of my case:
o ACT Revenue has not acted as a model litigant while I have co-operated at every juncture. The Commissioner called and threatened me in November 2011. This should be taken into consideration by the Tribunal.
o Legislation allows ACT revenue to reconsider the penalties at least but it is refusing to do so. I view this attitude from the ACT Revenue as being disrespectful of legislative structures.
o ACT revenue refuses to treat my case individually. Every case is different and should be treated on merit.
2Further evidence;
ACT revenue stated I had not made enough effort to find employment in Canberra. In Appendix B I explained I cannot provide evidence of my efforts to find employment in Canberra since my computer hard drive was damaged in 2011. If my hard drive wasn’t damaged, I would have been able to prove I had made concerted but unsuccessful efforts to find employment in Canberra all through 2009.
3 Inconsistent with decisions in my list of authorities:
In my list of authorities every case I cited had the penalties reduced even though none had the combination of circumstances that hindered my efforts to move back to Canberra or informing ACT revenue within the time frame. In keeping with these cases, my penalties should have been reduced if not waived by the Tribunal.
4Inaccurate conclusions:
The Tribunal’s decision is based on several inaccurate conclusions. In this submission I am only listing these. For details of these, please refer to Appendix B of my submission of 26 October 2012.
o Point 44 (pg 10 of the Tribunal decision)
[In Appendix B to the appellant’s application for appeal she states that it is incorrect to say that she accepted a job in Melbourne that had the same income as the job available in Canberra, and also stated that the Melbourne job had a higher salary and greater superannuation.]o Point 46 (pg 11 of the Tribunal decision)
[In Appendix B to the appellant’s application for appeal she states that it is not accurate to say that she made a considered decision to accept employment out of Canberra in order to advance her career, and that she accepted the offer because the salary was greater. She also states that this decision was made under duress because she was stagnating in her career, the salary wasn’t improving either, and that for her own finances and career advancement she was forced to make this decision. According to her, in reference to this decision being voluntary ACT Revenue’s circulars clearly state that a ‘voluntary’ move made for career advancement is acceptable. She queries why was this a reason for the Tribunal’s decision and states that it is not relevant to her case and should not be a matter of contention.]o Point 47 (pg 11 of the Tribunal decision)
[In Appendix B to the appellant’s application for appeal she states that the statement she did not provide evidence to back up her claims that her solicitor failed to guide her was incorrect, and that she provided the letter her solicitor had provided to the Law Society in which he stated that he did not deem it necessary to guide her since he assumed she was an articulate person to understand the legal system.]o Point 48 (pg 11 of the Tribunal decision)
[In Appendix B to the appellant’s application for appeal she states that it is inaccurate to state that there was insufficient information to draw any conclusions of the applicant’s submissions about her solicitor to the decisions that have been made. She also claims that she provided her solicitor’s letter as evidence and that she was surprised that the Tribunal deemed this as ‘insufficient’. She asks what more does she need to provide and thinks maybe if the Tribunal had told her what was considered ‘sufficient’ she would know.]o Point 49 (pg 11 of the Tribunal decision)
[In Appendix B to the appellant’s application for appeal she states that it was stated that the nature of her mother’s illness nor its severity was clear. She submits that she provided extensive test results to back her claims and had explained how because no one could ascertain what was wrong with her mother she had to go overseas to take control and find a resolution. She further states that if she had known what was wrong with her mother, she would not have had to visit her to take matters into her own hands. “Further the Tribunal questions the timings of my flight bookings to India. It insinuates that I had ‘no emergency’ since the tickets were booked on 15 June 2009 while her test results were at a later stage. The issue of my mother’s health surfaced in April 2009; the tickets were booked in June. Between June & when I arrived in India my mother was still unwell. Hence tests were continuing. I don’t see any reason how the Tribunal expects that we shouldn’t have done any further tests to try and find out what was wrong with her health. This point in the decision insinuates that I am using my mother’s health as an excuse….”]o Point 50 (pg 12 of the Tribunal decision)
[In Appendix B to the appellant’s application for appeal she states that the Tribunal was of the opinion that her mother being evidently fit to travel to Melbourne in early 2010 in spite of her health conditions had no significance to her case. She states that she differs with the Tribunal. “I had stated this to explain how I was in depression and not functioning to the extent that I had to ask my mother to come to Australia to take care of me – feed me and nurse me back to stability. How can this, in light of my depression, not be significant? My mother wasn’t fit but had no option. I was suicidal....”]o Point 53 (pg 13 of the Tribunal’s decision) [In Appendix B to the appellant’s application for appeal she states - “I am stunned by the Tribunal statement that my telephone records do not show the frequency of calls to the counselling service. I made 6/7 calls a day to Lifeline and highlighted these in the phone records I submitted as evidence, I simply cannot fathom what else the Tribunal wants.....
“It is also stated that I was able to remain ‘at work and there is no evidence of dislocation ‘of my routine – I had to get a salary. What else was I supposed to do I had a mother to support and loans to pay off – did I have a choice? This statement by the Tribunal is a slap in the face of anyone who has encountered depression”…I did take days off work but I felt worse at home. Going to work was a distraction and I didn’t feel useless.......I am very disappointed at the Tribunal’s statements about my depression.... I want to (sic) Tribunal to explain why it has treated my claims of depression with such utter disdain.”]
“In view of the above mentioned dot points, I request the Tribunal to review
its decision and waive the entire amount imposed by ACT revenue on me. If
that is not possible, at least the penalties should be waived. And in case this
latter too is not possible, the penalties should be reduced. Legislation
allows the Tribunal to exert this power even if ACT revenue refuses to.”
31.The Respondent submitted that both decisions of the Original Tribunal are correct as:
1The Original Tribunal considered and applied the relevant statutory provisions governing both decisions under the FHOG Act and the Tax Act; and
2The Original Tribunal heard and considered the appellant’s evidence and submissions against those statutory provisions; and
3The Original Tribunal made findings in relation to the appellant’s evidence and submissions, which it was entitled to do; and
4The Original Tribunal exercised the discretion available to it under section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
32.The Respondent also submitted that the appeals are borne out of the appellant’s discontent with the Original Tribunal’s decision rather than some error being evidenced in the Original Tribunal’s decisions.
33.The Appeal was heard on 15 February 2013. The appellant represented herself and Ms Katavic of Counsel represented the respondent. At the conclusion of the hearing the Appeal Tribunal reserved its decision.
THE LAW
34.Section 79 of the ACAT Act states:
79 (1) This section applies if—
(a) the tribunal has decided an application (the original application); and
(b) the original application was not an appeal from a decision by the tribunal.
...
(3)A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
35.Section 68 of the ACAT Act applies to review of decisions and states:
68 (1) This section applies if the tribunal reviews a decision by an entity.
(2) The tribunal may exercise any function given by an Act to the entity
for making the decision.
Note A reference to an Act includes a reference to the statutory instruments
made or in force under the Act, including regulations (see Legislation Act, s 104).
(3) The tribunal must, by order—
(a) confirm the decision; or
(b) vary the decision; or
(c) set aside the decision and—
(i) make a substitute decision; or
(ii) remit the matter that is the subject of the decision for
reconsideration by the decision-maker in accordance withany direction or recommendation of the tribunal.
36.An appellant does not have standing to an appeal as of right and is required to identify a question of fact or law (section 79(3)). An appellant cannot merely request the re-exercise of a discretion.
37.In ACT Human Rights Commission v Raytheon Australia Pty Ltd[2] Master Harper stated, in relation to the Administrative Appeals Tribunal:
“A decision of the Tribunal is not intended to be open to appeal generally, as is the case, for example, with a judgment of this Court. It must be accepted that there are sound reasons for public policy for this limitation, notwithstanding some who fail in the Tribunal will have a sense of grievance about it.”
[2] [2009] ACTSC 55 at [48]
38.Acting President Chenoweth also stated in Das v A & A Airconditioning (Civil Disputes)[3]:
“The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision; if that were so there would be no point in the original hearing…”
[3] [2011] ACAT 52 at [19]
39.Pursuant to subsection 79(3) of the ACAT Act, there must be a question of law or fact identified on appeal that enables the Appeal Tribunal to consider whether the Original Tribunal made an error as to the law or facts raised in those questions.
40.Notwithstanding that the appellant stated in her appeal that she was unable to provide any questions of law or fact involved, as she was self represented, the Appeal Tribunal, for the purposes of the Appeal considered the matters set out in paragraph 30(iv) above as questions of fact.
CONSIDERATION
41.To be successful on appeal, the appellant must show, firstly, there was a mistake or incorrectness in the Original Tribunal decision. It would be necessary for her to establish that the Original Tribunal acted on an incorrect principle, gave weight to extraneous or irrelevant matters; or gave no weight or insufficient weight to relevant considerations. Secondly, the appellant would need to satisfy the Appeal Tribunal that the decision of the Original Tribunal, in all the circumstances, was one which no reasonable Tribunal could ever have come to.
42.In this regard, the Appeal Tribunal noted that it is well recognised that an appellate tribunal should not disturb a discretionary decision as there is a presumption that the discretion was exercised correctly and should therefore be affirmed unless clearly wrong.[4] It is not sufficient to set aside a discretionary decision simply because another view could have been taken or a different decision reached.[5]
[4] Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621, at 627
[5] House v King (1936) 55 CLR 499 cited in Pesi v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 61.
43.The role of the Appeal Tribunal is limited to addressing errors in the original decision.[6]
[6] The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63, at 31
44.The appellant referred to and took issue with the Original Tribunal’s factual findings set out above and the weight attributed to the evidence as well as the Original Tribunal not reducing the penalty tax imposed in the decisions under review, by reference to the authorities she relied on at the hearing.[7] She said she is fighting this matter because the Tribunal has the ability to exercise discretion about the penalties and that is why she is here.
[7] The appellant relied on Ansari v Chief Commissioner of State Revenue [2005] NSWADT 98, Pundir v Chief Commissioner of State Revenue [2005] NSWADT 108, Rauf v Chief Commissioner of State Revenue [2005] NSWADT 176, Spresian v Chief Commissioner of State Revenue [2006] NSWADT 239, Tomasian v Chief Commissioner of State Revenue [2004] NSWADT 37, and Zhang & anor v Chief Commissioner of State Revenue [2005] NSWADT 178
45.The Appeal Tribunal considered these submissions on the basis that the appellant was raising them as questions of fact. The Appeal Tribunal also considered the ‘reasonableness’ of the original decision as this appeared to underline the appellant’s submissions.
46.The respondent submitted that the Original Tribunal made no erroneous factual findings in paragraphs 44, 46 -50 and 53 of the Original Decision and that what the appellant has done is highlight findings which were not favourable to her.
47.The appellant also referred to the respondent’s conduct (see paragraph 30(i) above) in her appeal, although, as submitted by the respondent, it was not made clear in the appellant’s submissions or at the hearing how this amounted to a question of fact or law.
48.The respondent submitted that Commissioner for ACT Revenue was exercising its statutory functions as part of its responsibility for administering both the FHOG Act and the Tax Act. While the decisions resulting from this exercise of statutory functions have adversely affected the appellant, the respondent submitted that the Appeal Tribunal cannot be satisfied that such an exercise of statutory functions is inconsistent with model litigant guidelines. The appellant sought a review of those decisions, as she was entitled to. The Appeal Tribunal concurs with the respondent’s submission in relation to the respondent’s conduct and will not further consider the matter in this decision.
49.The appellant produced fresh evidence with her appeal which was a receipt for the payment of the computer part which she said had caused her own hard drive crash. She wanted to rely on this receipt to support her evidence that she was unable to provide evidence of job applications during the relevant period due to the failure of her hard drive. She also brought the hard drive to the hearing. The respondent submitted that the receipt and the hard drive were not relevant and did not assist the appeal in any way.
50.The Appeal Tribunal has considered, below, how the Original Tribunal came to the findings in its decision. In doing so, it examined the evidence available to, and the process of the hearing in, the Original Tribunal to determine whether that Tribunal took into account matters which ought not to be taken into account, or, conversely, neglected to take into account matters which ought to be taken into account. The Appeal Tribunal, bearing in mind the test as to unreasonableness set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[8], (the Wednesbury test) then considered and determined whether in all the circumstances the Original Tribunal decision was one which no reasonable Tribunal could ever have come to.
[8] [1948] 1 K.B.223 at 233
51.The Wednesbury test[9] states:
“....The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority has kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”
[9] At page 233
52.The court in the Wednesbury case stressed that the issue of unreasonableness is not to be addressed by an appeal court asking what the appeal court thought was reasonable, but by asking whether the original decision was made where the decision-maker took into account all things that ought to have been taken into account and did not take into account something which was not relevant.
The factual findings
Paragraph 44 of the Decision
53.It is true that the Original Tribunal stated that “a possible opening in the ACT was not on terms that were acceptable to her” and “[t]he job in Melbourne had the same income as the job available in Canberra”. The respondent[10] submitted that the “job available” referred to by the Tribunal was as an Executive Level 1 (EL1) which the appellant, who was then an APS 6, had been offered and the salary for an EL1 was $2,605 p.a. more than the job which the appellant accepted in Melbourne.
[10] Respondent’s submissions, paragraph 26 (a)
54.The appellant reiterated, in her submissions lodged on 8 February 2013 that the statement in relation to the “same income” was incorrect. She submitted that when she was offered the EL1 promotion with Department of Immigration and Citizenship (DIAC) in Canberra she accepted it and did not turn it down. The Department of Human Services (DHS) Victoria offered her $1,000 per annum more than the salary she was on at DIAC along with superannuation incentives. She accepted the DHS employment in Victoria.
55.While it appears that the “job in Melbourne” offered the appellant $1,000 more annual salary along with superannuation incentives and the Original Tribunal made an error of fact, the Appeal Tribunal has considered this particular finding in the context of the whole of the evidence in relation to the appellant’s moving interstate for her employment and remaining there.
56.The Appeal Tribunal notes, relevantly, that the Original Tribunal also found that the appellant “opted to move to Melbourne to pursue what she thought was a career with long term advantages.” This finding was open to the Original Tribunal and was compelling.
57.The appellant alleges the Original Tribunal also made other “incorrect” statements and findings about her employment in the decision, at paragraph 46. The Appeal Tribunal has considered these claims in the following paragraph.
Paragraph 46 –
58.The appellant has taken issue with the Original Tribunal variously finding that:
i)she made a considered decision to accept employment outside Canberra in order to advance her career – the appellant submitted that this was incorrect; she had accepted the offer because the salary was greater than what she was then being paid in Canberra;
ii)she was not under duress to move – the appellant submitted that this was incorrect as the decision was made under duress as she was stagnating in her career; financially and for career advancement, she submitted, she was forced to make this decision; and
iii)her decision to move was ‘voluntary’ – while not disputing this finding she submitted that it is not relevant as ACT revenue circulars recognise voluntary moves for career advancement.
59.The appellant did not refute or respond to the respondent’s submissions that the move was the appellant’s choice; that she accepted the Melbourne position in July 2008, well before she entered into the contract to purchase the ACT property on 16 October 2008; that she commenced employment in Melbourne on 27 October 2008; that she continued with the purchase of the ACT property and that she completed the necessary documents for the FHOG and concessional duty in November 2008.
60.The Appeal Tribunal, in considering the issues raised above in paragraph 58(i) and (ii), is satisfied that these findings were open to the Original Tribunal on the evidence as was the finding that the appellant’s move was voluntary. The latter finding is part of a series of findings the Tribunal was entitled to make, upon considering the available evidence, in relation to the reasons surrounding her decision to move to Melbourne. Whether or not it is referred to in ACT revenue circulars does not, of itself, make it irrelevant. It appears that the appellant has not opened her mind to the possibility of the available evidence being reasonably interpreted other than in accordance with her own opinion. Apart from the finding in relation to the income being the same, the Appeal Tribunal agrees with the Original Tribunal’s findings. The finding in relation to income, of itself, does not diminish the other findings.
Paragraph 47
61.It is not in dispute that the appellant did provide the Original Tribunal with a copy of her solicitor’s letter to the Law Society. Paragraph 47 refers to the lack of evidence or information as to what, if anything, the Law Society did in response to this letter. As the respondent submitted, the Original Tribunal had no evidence of whether any adverse findings were ever made in relation to the appellant’s solicitor’s conduct. The Appeal Tribunal is satisfied that there was no error of fact in paragraph 47.
Paragraph 48
62.It appears to the Appeal Tribunal that the appellant misunderstood the role of both the Original Tribunal and the Appeal Tribunal. The Tribunal concurs with the respondent’s submissions that ‘it is not the role of the Tribunal to advise the appellant as to the sufficiency of evidence regarding the relevance of her solicitor’s knowledge and conduct to the decisions under review. No error exists in this regard.’ [11]
[11] Respondent’s submissions paragraph 26 (d)
63.The Tribunal agrees that there was insufficient evidence in the solicitor’s letter to support the appellant’s submissions. If the appellant was unsure of the legal process, including the provision of relevant evidence, in seeking a Tribunal review of a decision by the Commissioner for ACT revenue, she could have sought, at least, advice from a solicitor as to how to prepare and present her case.
Paragraph 49
64.The appellant appears to have interpreted the Original Tribunal’s statements in this paragraph as “insinuat[ing] that I am using my mother’s health as an excuse.” The Appeal Tribunal finds that this paragraph is not reasonably open to such an interpretation. This paragraph identifies a number of relevant matters that the Original Tribunal relied on to be satisfied that the appellant’s mother’s health, and the appellant’s response to her mother’s health, did not prevent the appellant from residing in the property. The resulting findings were open to the Original Tribunal on the available evidence. There was no error.
65.In her most recent submissions the appellant asserted that she “was constantly distracted and worried whether I’d be able to reach her [mother] on time and before she might get fatally ill.”[12] She also stated that she could not go to India earlier because of her personal leave constraints, she was also looking for work in and trying to move back to Canberra and hoping to have it all done before leaving for India.
[12] Appellant’s submissions 8 February 2013, paragraph 6
66.It is indisputable that the appellant had 12 months from settlement in December 2009 in which to commence residing in the ACT property for a period of six months. She did not commence residing in the property within that period. She had a further period in which to seek an exemption or extension of the compliance period. She did not make such an application within time. Indeed, it is also indisputable that the appellant did not take any action to disclose voluntarily that she had not complied with the residency requirement or of her change in circumstances. Her subsequent applications only came about as the result of her being made aware of the respondent’s investigations in October 2011.
67.The Original Tribunal had to consider the appellant’s evidence that her mother’s health was of concern; that she needed to travel overseas urgently to take control of the management of her mother’s health and these concerns prevented her complying with the residency requirements with the evidence that the appellant’s mother’s health concerns arose in April 2009, the tickets were booked in June 2009 and the appellant travelled to India in November 2009.
68.The Original Tribunal had to weigh up all of the evidence when considering the appellant’s failure to take up the residency requirement within 12 months of settlement of the purchase of the property. It found that, in considering when the tickets were booked and the travel occurred, there was no emergency involved. On the available evidence this finding was clearly open to it. [13]
[13] Respondent’s submissions, paragraph 26 (e)
69.The Appeal Tribunal noted the appellant’s statement [14] “I know my mother was seriously ill and that’s a fact. In my eyes she was very ill. Others might disagree.” The appellant’s opinion does not make the Original Tribunal’s findings of fact incorrect. The Original Tribunal had the benefit of the evidence and hearing and seeing the appellant. Its role was to weigh up that evidence. The Appeal Tribunal is satisfied that it did so and in so doing did not err.
[14] Appellant’s submissions 8 February 2013, paragraph 7
Paragraph 50
70.The appellant takes issue with the Original Tribunal’s finding that the evidence she supplied in relation to her mother’s health does not indicate a serious condition and that her mother was evidently well enough to travel to Melbourne in early 2010. The Original Tribunal was considering this evidence together with all of the other evidence before it in relation to the appellant’s failure to take action in relation to the residency requirements within time and to the imposition of penalty and interest, and found that these matters did not seem to be significant. The Original Tribunal did not base its decision solely on its findings in relation to the appellant’s mother’s health in 2010 and her ability to travel overseas.
71.As stated above, in considering the evidence provided as to why the appellant did not comply with the residency requirements within time, and in reaching its findings the Original Tribunal considered the appellant’s own evidence of her employment at the time she applied for the grant and stamp duty concession, her evidence of her mother’s health in 2009, her evidence of the timing of the booking of the tickets in June 2009, her evidence of her subsequent travel to India to take control of her mother’s care some five months later in November 2009 and her evidence of her ongoing employment in 2009 and 2010. The Appeal Tribunal is satisfied that the findings of the Original Tribunal were reasonably open to it on the evidence. There was no error fact.
72.The appellant now states that she provided this evidence about her mother, whom she said was not fit at that point, travelling to Australia to explain that in 2010 she, the appellant, was depressed and not functioning and she asked her mother to come to Australia to look after her. The Appeal Tribunal will consider this further below.
Paragraph 53
73.The appellant submits, correctly, that the Original Tribunal was incorrect to state that “The records do not show the frequency of calls to the counselling service asserted by the applicant.” A perusal of these records shows when these calls were made. The question for the Appeal Tribunal is was this finding relevant to the Original Tribunal’s decision.
74.The respondent submitted that these events occurred after the time for residency compliance had expired and, therefore, were of little probative value.
75.The Original Tribunal found that, while this was a distressing time for the appellant, she remained at work and there was no evidence of other dislocation of her routine. In her submissions the appellant explained that she had to work to get a salary, going to work was a distraction and doing so did not make her feel useless.
76.The finding of fact was that the appellant remained at work – this finding was available on the evidence. The further finding of fact was that there was no evidence of other dislocation of her routine – this was also available on the evidence.
77.The Appeal Tribunal is satisfied that the Original Tribunal was not treating the appellant’s claims of depression with ‘utter disdain’ as alleged by the appellant. The appellant is obviously discontented with these findings of fact, but her discontent does not diminish the fact that both of these findings were available on the evidence. There is no error of fact in relation to this evidence.
78.The Appeal Tribunal concurs with the respondent’s submission[15] that, in considering the evidence in relation to the appellant’s failure to meet the residency requirement, the statements in paragraph 53 did not comprise the only matters considered.
[15] Respondent’s submissions Paragraph 26(g)
The receipt
79.The appellant referred, in her submissions, to statements made by ACT Revenue that she had not made enough effort to find employment in Canberra. She explained in Appendix B to the Appeal that she could not provide evidence as her job applications were on her hard drive which had been damaged. It appears that the damage was such that the information on it was not recoverable. The appellant said she provided the receipt as evidence for the purchase of the computer part which she alleged caused the damage and insisted this evidence be taken into account. The appellant also brought the hard drive to the appeal hearing.
80.The Appeal Tribunal is considering an appeal from the Original Tribunal’s decision. In that decision the Original Tribunal stated, at paragraph 45:
“She said that she had unsuccessfully attempted to find employment in the ACT since that time [when she moved to Melbourne in 2008].”
81.The Original Tribunal accepted this evidence. It did not criticise the appellant or make any findings adverse to her in relation to her evidence about attempting to find work in Canberra. The Original Tribunal accepted that she had made efforts to do this. The Original Tribunal then balanced all of the factors in relation to the appellant not returning to Canberra before making its findings. The Appeal Tribunal is satisfied that it was open to the Original Tribunal to make the findings it did. There is no error.
82.It was not necessary for the appellant to provide corroborative evidence of the damage to her hard drive. Notwithstanding the appellant’s statement - “I insist that this [the receipt for the computer hard drive which could have been relied on to show how hard the appellant tried to find work in the ACT and to relocate] be taken into account.”[16] the Appeal Tribunal concurs with the respondent’s submission in this regard. At best, such evidence could only explain why the appellant was unable to provide evidence of job applications made in the relevant period.
[16] Submissions dated 8 February 2013, paragraph 2
83.In considering the Original Tribunal decision, the Appeal Tribunal has considered whether the Original Tribunal took into account matters which ought not to be taken into account, or, conversely, neglected to take into account matters which ought to be taken into account.
84.It is clear to the Appeal Tribunal that the Original Tribunal considered all of the evidence in relation to the appellant’s employment that was before it. The appellant has not referred the Appeal Tribunal to other matters which the Original Tribunal failed into account. It appears that the thrust of the appellant’s appeal is that the Original Tribunal did not accept her submissions and that that Tribunal should have. She wants the penalties removed and has appealed because the Tribunal has power to remove these penalties.
85.The Appeal Tribunal is satisfied that it was open, on the evidence, for the Original Tribunal to find that the appellant made a considered decision to accept employment out of Canberra, away from the residential property purchased by her which was partly funded by an ACT scheme; that decision was not made under duress; that it was a voluntary decision made in the interests of her career and that notwithstanding her subsequent attempts to find employment in Canberra she never returned.
86.It also appears to this Tribunal that the appellant had, notwithstanding the residency requirements of the grant and concessional stamp duty, continued to be selective in pursuing her career path without being prepared to acknowledge that this was her choice and the decision was voluntary. She appears to have convinced herself that this decision was made under duress. Duress is defined as ‘compulsion, threats or violence, illegally used to force a person to act against his or her will.’[17] The Original Tribunal found that it ‘cannot agree that her decision was made under duress.’[18] The Appeal Tribunal is also satisfied that this finding was open to the Tribunal on the evidence.
[17] The Australian Concise Oxford Dictionary 3rd edition
[18] Decision paragraph 46.
87.The Original Tribunal also considered all of the evidence before it in relation to the appellant’s mother’s health in 2009 and the planning and implementation of the appellant’s travel plans to take control of her mother’s health management as well as the appellant’s health and her mother’s health in 2010. The Appeal Tribunal has already found that the Original Tribunal’s findings of fact on these matters were open to it on the evidence. The appellant has, throughout her submissions, insisted that the Appeal Tribunal take into account her perspective on this evidence. The Appeal Tribunal is satisfied that the Original Tribunal afforded the appellant a reasonable opportunity to be heard and then it considered all of the evidence. Ultimately, while this was not the outcome the appellant sought, the Original Tribunal was not persuaded by the appellant’s argument. The Appeal Tribunal is not satisfied that the Original Tribunal fell into error in not finding in accordance with the appellant’s argument.
88.The appellant told the Appeal Tribunal that she did not resile from her concession that she did not read the FHOG application when signing it and that she did not mentally revisit the FHOG grant at any time. She confirmed that she was not relying on her failure to read the FHOG application which she signed as a ground to change the decisions being considered by the Original Tribunal. She maintained that she always thought she would return to Canberra and, therefore, proceeded with the purchase of the property. She saw working in Victoria as leverage to get higher paying employment.
89.However, the Appeal Tribunal also noted that the appellant said that she kept thinking she needed to get back to Canberra. It would be open to the Appeal Tribunal to infer from this statement that the appellant must have been conscious of her obligation to reside in the property. Given that statement it is difficult to reconcile her not contacting anyone about her not being able to commence the residency or to seek an extension or exemption until after she had been notified in October 2011 of the investigation which has resulted in the decisions which the Original Tribunal reviewed.
The appellant’s authorities (see footnote 6)
90.The appellant relied on this list of authorities in support of her claim that the Original Tribunal erred in not following them and reducing the penalty tax imposed. It is clear to the Appeal Tribunal that these authorities appropriately, subjectively dealt with penalty tax and considered whether to reduce that tax on each case’s individual facts. The appellant, herself, acknowledged that every case is different. In the light of that acknowledgement, it is difficult to understand why the appellant is relying on this ground of appeal. These authorities are not binding on the Original Tribunal.
91.The respondent submitted[19] that the Appeal Tribunal was not bound to follow the authorities advanced by the appellant in support of reducing penalty tax.
[19] Respondent submissions, paragraph 19
92.The Original Tribunal had discretion to consider whether the appellant’s case fell within any of the authorities advanced. The appellant conceded her case did not. In conducting a merit review, the Original Tribunal was entitled to consider the case independently on its merits rather than explore subjective cases advanced by either party.
93.The Appeal Tribunal is satisfied that the Original Tribunal did not err in not following the subjective authorities relied on by the parties. It was open to the Original Tribunal, when considering afresh the respondent’s decisions at first instance, to take a subjective approach by identifying established principles in considering penalty tax and applying the evidence in the appellant’s case to those principles.
94.It is clear, from reading the Original Tribunal decision[20] that that decision was, appropriately, not based on any of the subjective authorities relied on by the parties, but rather the Original Tribunal referred to and considered already established principles in considering penalty tax and then, subjectively, applied the evidence in this case to those principles. The source of these principles is Calcaro v Commissioner for State Revenue [21]; these principles are referred to in Davey v Commissioner for ACT Revenue[22].
[20] Paragraph 56
[21] [2004] NSWADT 158
[22] [2008] ACTAAT 30;
95.The Appeal Tribunal is satisfied that the Original Tribunal appropriately considered the principles that are relevant to considering whether a penalty should be applied in this case, namely – the deterrent effect of the penalty, the nature and extent of the contravention and any loss or damage suffered or gain made as a result of the contravention. The Original Tribunal findings are important. They are:
In relation to the Tax Act decision:
1the period open to the applicant to ask the respondent to give an extension or exemption was long gone by the time she made her request;
2it was appropriate that a penalty be imposed for its deterrent effect;
3the appellant had never resided in the property;
4the appellant’s default was unearthed by an investigation;
5the appellant had, only recently, taken any practical steps to recognise her obligations;
6the appellant had put forward a number of personal matters which she submitted either prevented compliance with the residence requirement or justified or explained her non-compliance;
7the Original Tribunal did not agree that the difficulties the appellant referred to had made it impossible to comply with the condition;
8her attempts to find satisfactory employment in the Territory did not seem to amount to reasonable steps to comply with the residential requirement for section 31 of the Tax Act nor to mitigate the effects of the circumstances leading to non compliance provided for in section 37;
9the triggers for the circumstances which the appellant submitted were beyond her control and drove her non compliance, namely her mother’s illness and her partner’s behaviour were beyond her control but they did not actually prevent her compliance and appear to have been less intrusive than stated;
10the circumstances the appellant referred to were not exceptional, however defined, being of a type not uncommonly encountered by people during their life time; and
11there is no jurisdiction to remit interest under the home buyer concession; once duty is repayable interest accrues.
In relation to the FHOG decision:
·pursuant to section 20 of the FHOG Act, the grant having been paid, the appellant was obliged to advise the respondent of her failure to comply with the requirements and repay the grant within 14 days of the expiration of the 18 month period in section 12;
·the period expired before her request for action by the respondent pursuant to section 12(2);
·it was not possible to comply with the appellant’s request made in her letter of 26 October 2011;
·it is appropriate that a penalty be imposed;
·the appellant took no steps to repay the grant until the investigation was instituted;
·the imposition of the penalty will have a deterrent effect;
·the rate at which the penalty was imposed under the FHOG Act by the delegate is consistent with the rate imposed under the Tax Act;
·the rate is also consistent with the rates imposed in other jurisdictions;
·in regards to the interest, it is payable under section 48(1) of the FHOG Act since the grant is repayable as the result of reversal under section 47(1)(b);
·the matters advanced by the appellant do not provide a reasonable basis for remission of interest pursuant to section 49(6); and
·the appellant has had the benefit of the capital amount of the grant and has earned income from the property by renting it out.
96.The Appeal Tribunal is satisfied that the 25% penalty imposed in both decisions is appropriate as it is the minimum default tax paid for both duty and FHOG grants and is consistent with the ACAT’s decision in McArthur v Commissioner for Act Revenue (Administrative Review)[23]. It is not outside the scope of the penalty tax imposed by the Respondent at first instance.
[23] [2012] ACAT 65
97.The Original Tribunal, at paragraph 55, referred to and relied upon the decision in Chief Commissioner of State Revenue v Ferrington (GD)[24]as establishing that an intention to reside in the property does not satisfy the residential requirements under the FHOG Act and that actual residence is required. The respondent submitted, and the Appeal Tribunal is satisfied, that the appellant did not provide any authorities to the contrary.
[24] [2004] NSWADTAP 41
CONCLUSION
98.The Original Tribunal was not satisfied that the appellant’s evidence of her situation after 10 December 2008 justified it acceding to the appellant’s claims. The appellant essentially reiterated her evidence in the documents supporting her appeal and in her submissions at the appeal hearing. The Appeal Tribunal, bearing in mind the test as to unreasonableness set out in the Wednesbury case, is satisfied and determines that, for the reasons set out above, in all the circumstances the Original Tribunal decision could not be found to be one which no reasonable Tribunal could ever have come to.
99.The Original Tribunal was entitled to exercise the discretion in section 68 of the ACAT Act and in doing so to confirm the decisions under review.
100.The Appeal Tribunal is not satisfied that the appellant has raised any question of law or fact which has satisfied this Tribunal that the Original Tribunal, in its decision, made any error of law or fact.
101.The appellant states in her submissions dated 26 October 2012 that “I will not accept a decision where I haven’t been given ample opportunity to prove my innocence.” This is not a criminal matter. It is not a question of guilt or innocence. While the respondent’s first decision on 7 November 2011 imposed a penalty pursuant to section 47(2) of the FHOG Act on the basis of dishonesty, on 20 March 2012 the respondent’s delegate varied that decision to remove any suggestion that dishonesty on the part of the Appellant had been the basis for the imposition of the penalty.
102.In her submissions dated 7 December 2012, the appellant requests that this Tribunal review its decision and, sequentially, waive the entire amount imposed by Act revenue, or waive the penalties or reduce the penalties. The Tribunal has considered the Original Tribunal’s decision pursuant to the Tribunal’s statutory appeal provisions.
103.Given that the Tribunal has found that the Original Tribunal’s decision was open to it on the evidence, and will not be set aside it follows that the decision and penalties confirmed by the Original Tribunal stand. In this regard the Appeal Tribunal noted that there was some dispute at the hearing about the number of instalment payments which the appellant had made which the appellant needs to follow up with the respondent.
104.The Appeal Tribunal refers to the comments by Master Harper and Acting President Chenoweth above. An appeal hearing is not an opportunity to retry issues which have been considered by an Original Tribunal because the appellant is unhappy with the earlier decision.
105.The Appeal Tribunal will dismiss the appeal.
...............................
Ms E Symons
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER:
AT 12/57
PARTIES, APPLICANT:
Suhangi Chakravarty
PARTIES, RESPONDENT:
Commissioner for ACT Revenue
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
E. Symons – Presidential Member
DATES OF HEARING:
15 February 2013
PLACE OF HEARING:
ACAT
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
28
17
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