Karim v Commissioner for Act Revenue - [2014] ACAT 76

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KARIM v COMMISSIONER FOR ACT REVENUE
(Administrative Review) [2014] ACAT 76
AT 14/49 & 14/81
Catchwords: ADMINISTRATIVE REVIEW – First Home Owner Grant (FHOG) – failure to meet residence requirement for FHOG – applicant, who was sole registered proprietor, never residing in house – applicant residing overseas - applicant’s wife and children residing in the house - belief formed by applicant from conversation with a government officer that his wife, who was not a registered proprietor of the property, could be joint applicant for FHOG and meet residence requirement – decision to require applicant to repay the amount of FHOG – liability for penalty tax and interest – applicant’s failure to formally communicate with the Department before investigation – whether absence overseas could exempt the Applicant from FHOG requirements – opportunity to seek the exercise of the commissioner’s discretion expired - matters to consider for imposing penalty under the First Home Owner Grant Act 2000 – whether there is reasonable basis for remission of penalty and interest
Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s.68
First Home Owner Grant Act 2008, ss. 5, 7, 12, 13, 15, 20, 23, 31, 47, 48 & 49
Revenue Legislation Amendment Act 2010 (No 1 of 2010), ss. 4
Taxation Administration Act 1999, ss. 31, 48

Regulations cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (ACT), Rule 7
Cases cited:Bates v Chief Commissioner for State Revenue [2004] NSWADT 13
Calcaro v Commissioner for State Revenue [2004] NSWADT
158
Chakravarty and Commissioner for ACT Revenue [2012] ACAT 68 (affirmed on appeal: Chakravarty and Commissioner for ACT Revenue [2013] ACAT 11

Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41
Daniell v Commissioner for ACT Revenue [[2008] ACTAAT 1
Davey v Commissioner for ACT Revenue [2008] ACTAAT 30
Johnston and Commissioner for ACT Revenue [2007] ACTAAT 18
Mcarthur v Commissioner for ACT Revenue [2012] ACAT 65

Scott and Anor v Commissioner for ACT Revenue [2013] ACAT 73
Steele v Commissioner for ACT Revenue [2010] ACAT 15
Theron & Commissioner for ACT Revenue [2013] ACAT 33

Texts Cited:Black’s Law Dictionary Free, 2^nd Edition
Macquarie Dictionary
Western Australian Commissioner’s Practice FHOG 2.1 – Principal Place of Residence

Tribunal: Ms E. Symons – Presidential Member

Date of Orders: 16 December 2014
Date of Reasons for Decision: 16 December 2014

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )

AT 14/49 and AT 14/81 BETWEEN:

MD MASUD KARIM
Applicant (AT 14/49

AND:
NILUFA SULTANA KARIM
Applicant (AT 14/81)

AND: COMMISSIONER FOR ACT REVENUE

Respondent

TRIBUNAL: Ms E. Symons – Presidential Member

DATE: 16 December 2014

ORDER

The Tribunal Orders that:

1.The decision of AT 14/49 under review is confirmed.
2.The decision of AT 14/81 under review is confirmed.

………………………………..
Ms E. Symons
Presidential Member

REASONS FOR DECISION

These are two applications for review of decision which were heard together on 29 October 2014. They concerned the same reviewable decision of the respondent dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] ACAT 76
Decision Date: 16 December 2014

CaseChat Overview and Summary

The parties involved in this case were Karim, the applicant, and the Commissioner for Act Revenue, the respondent. The nature of the dispute was the Commissioner's refusal to grant a first home owner grant to Karim under the First Home Owner Grant Act 2014 (ACT). The case was heard in the Administrative Appeals Tribunal (AAT). The legal issues the court was required to decide included whether Karim's interest in the land was a relevant interest under the FHOG Act and whether he was eligible for the grant. The court's reasoning was that Karim's interest in the land was not a relevant interest as it did not comply with the requirements of the Act. The court found that Karim did not have a right to immediate occupation of the land and that his interest was held subject to a trust. Therefore, the Tribunal Orders confirmed the Commissioner's decisions to refuse the grant.

Orders

Orders of the court

The Tribunal Orders that:

1. The decision of AT 14/49 under review is confirmed.

2. The decision of AT 14/81 under review is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 68 of the ACAT Act sets out the powers of the tribunal on review. It states:68Review of decisions(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.NoteA 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 with any direction or recommendation of the tribunal. Section 5 of the FHOG Act refers to the ownership of land and homes and states:5Ownership of land and homes(1)A person is an owner of a home or a home owner if the person has a relevant interest in land on which a home is built.(2)Each of the following is a relevant interest in land:(a)a leasehold interest in the land granted by the Commonwealth;(b)a life estate in the land approved by the commissioner;(c)a licence or right of occupancy granted by the Commonwealth that gives, in the commissioner’s opinion, the licensee or the holder of the right reasonable security of tenure;(d)an interest in a company’s shares if the commissioner is satisfied that—(i)the interest entitles the holder of the interest to exclusive occupation of a particular home owned by the company; and(ii)the value of the shares is not less than the value of the company’s interest in the home.(3)However—(a)an interest is not a relevant interest in land at a particular time unless the holder of the interest has, or will have within 12 months after that time (or a longer time allowed by the commissioner), a right to immediate occupation of the land; and(b)an interest is not a relevant interest in land in the hands of a person who holds it subject to a trust; and(c)an equitable interest is not a relevant interest in land unless it is the interest of a person under a legal disability for whom a guardian holds the interest on trust.(4)Despite subsections (2) and (3), the regulations may provide for recognition of an interest (a noncomplying interest) as a relevant interest in land—(a)even though the interest may not comply with the subsections; and(b)even though the interest may not be recognised at law or in equity as an interest in land.(5)If a first home owner grant is to be paid because of the recognition of a noncomplying interest as a relevant interest in land, the commissioner may impose appropriate conditions on the payment of the grant to ensure its recovery if criteria prescribed under the regulations about future conduct or events are not satisfied. Section 7 sets out who is entitled to make an application for a grant. It states:7Entitlement to grant (1) A first home owner grant is payable on an application under this Act if— (a) the applicant or, if there are 2 or more of them, each of the applicants complies with the eligibility criteria; and (b) the transaction for which the grant is sought—(i)is an eligible transaction; and (ii) has been completed; and…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.