NEGUS AND COMMISSIONER FOR ACT REVENUE
[2008] ACTAAT 12
•8 May 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:NEGUS AND COMMISSIONER FOR ACT REVENUE [2008] ACTAAT 12 (8 MAY 2008)
AT08/4
Catchwords: First Home Owner Grant – Home Buyer Concession Scheme – failure to comply with requirement to occupy property as principal place of residence – discretions available to decision-maker – extension of time for commencement of period of compliance.
Administrative Appeals Tribunal Act 1989, ss 37, 44
Duties Act 1999, s 252
First Home Owner Grant Act 2000, ss 12, 20, 25, 26, 27, 28, 31, 47
Taxation Administration Act 1999, ss 4, 100, 102, 103, 139
Comcare v Burton (1998) 50 ALD 846
Commonwealth Bank Officers’ Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 89 ALD 1
Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295
Daniell and Commissioner for ACT Revenue [2008] ACTAAT1(18 January 2008)
Re Donald and ASIC (2001) 64 ALD 717
Tribunal:Mr M H Peedom, President
Date:8 May 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/4
GENERAL DIVISION )
RE: BRETT JOHN NEGUS
ApplicantAND: COMMISSIONER FOR
ACT REVENUE
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 8 May 2008
Decision :
The decision under review is set aside and substituted by the following decision:
Pursuant to section 12(3) of the First Home Owner Grant Act 2000 (“the FHOG Act”) the period of occupation required by section 12(1) of the FHOG Act is approved to start 28 days from the date of this decision.
Pursuant to paragraph b) of the section of the Taxation Administration (Amounts payable – Home Buyer Concession Scheme) Determination 2004 (No. 5) entitled ‘Eligible Home Buyer’, the time for the applicant to meet the residency requirement (that he reside in the property for a continuous period of 6 months) be extended to commence within 28 days from the date of this decision.
…………………….
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/4
GENERAL DIVISION )
RE: BRETT JOHN NEGUS
ApplicantAND: COMMISSIONER FOR
ACT REVENUE
Respondent
REASONS FOR DECISION
8 May 2008 Mr M H Peedom, President
Background
On 19 April 2005 the applicant applied under the Home Buyer Concession scheme (“HBC scheme”) for a concession from the payment of the amount of stamp duty ordinarily payable under the Duties Act 1999 in respect of the purchase by him of a residential property at Scullin, ACT (“the property”). The application was approved and the applicant was assessed as liable to pay duty in the sum of $20 in lieu of $8,180 to which sum the transaction would have been subject without the concession. On 4 May 2005 an application by the applicant for a grant of $7,000 under the First Home Owner’s Grant Act 2000 (“the FHOG Act”) in respect of the same property was approved by the respondent. Settlement of the purchase of the property by the applicant occurred on 16 May 2005.
2. Decisions were subsequently made on behalf of the respondent that required the duty conceded to be paid and the grant to be repaid by the applicant. The decision to repay the grant is the subject of this appeal. The applicant has contended that the decision in respect of the duty has also been made the subject of his appeal but that is challenged by the respondent.
3. The circumstances that gave rise to the decisions in question are outlined in documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 (“the AAT Act”). A summary of their contents follows.
4. On 21 September 2005 the applicant wrote a letter to the respondent which was headed “Exemption request to First Home Owner Grant”. He referred to his application for the grant and said that he had been posted by his employer, the Australian Agency for International Development (“AusAID”), to Kirabati for a period of 14 months commencing on 3 October 2005. He requested an exemption from a condition of the grant that he occupy the property for a continuous period of 6 months within 12 months after settlement of the purchase on the basis that he had entered the agreement in good faith and that he intended to return to the property at the end of his 14 month posting.
5. On 6 October 2005 the respondent sent the applicant a letter which was expressed to refer to the applicant’s “request …… for an extension of the 12 month residency requirement for both the FHOG and the HBC”. It stated that the applicant had “applied for an extension of time to satisfy the residency requirement ……” The letter approved the application for an extension of time in which to occupy the property on condition that he occupy the property from no later than 31 December 2006 for a continuous period of 6 months and said that he would not have to repay either the duty conceded or the grant if he complied with that condition.
6. On 8 November 2006 the applicant sent the respondent a letter headed “Exemption Request to First Home Owner Grant ….” requesting a further extension of time to fulfil his residence requirement as his deployment to Kiribati had been extended to June 2007. It was stamped as received by the respondent on 20 February 2007.
7. On 4 June 2007 the respondent sent the applicant a letter headed “Extension of the 6-month occupancy requirement for First Home Owner Grant (FHOG) and Home Buyer Concession (HBC)”. It referred to the applicant’s letter dated 8 November 2006 “requesting an extension of the 6 month residency requirement under the FHOG and HBC Scheme”. The letter advised the applicant that the time for him to meet the residency requirement would be extended for 6 months and that, provided he resided in the property for a continuous period of at least 6 months after his 18 months overseas, he could retain the grant. The applicant was also advised that, should he not begin his occupancy on or soon after 31 December 2007, the Revenue Office would assist him in making arrangements to repay the $7,000 grant and the $8,160 HBC.
8. On 11 September 2007 the respondent received a copy of a letter from the applicant. The date of the letter had been changed from 10 August 2007 to 11 September 2007. The change was initialled by the applicant. The letter was headed “Ruling on the 6-month occupancy requirement for First Home Owner Grant (FHOG) and Home Buyer Concession (HBC)”. In the letter the applicant stated that he felt he was being disadvantaged if he was required to live in the house for a further period of 6 months as he had already lived there for 5 months and had been posted away from Canberra by his employer. He applied for “an exemption to the ruling” on the basis that he had entered the agreement in good faith and should only be required to live there for a further one month period as he had already lived there for 5 months. He apparently paid the sum of $64.00 to the Revenue Office at the time of delivery of his copy letter.
9. On 12 September 2007 the respondent acknowledged the applicant’s letter and payment of the “objection fee”. The letter stated that there could be some delay in responding depending upon the number of objections received by the respondent and the complexity of them.
10. On 9 October 2007 the applicant telephoned an officer of the respondent to enquire about the progress of his objection. He advised the officer that he had additional supporting documentation to add to his case.
11. On 10 October 2007 the applicant attended the Revenue Office to discuss the progress of his objection and to provide further supporting documentation for his objection which included a letter from AusAID which stated that the applicant was on a long term posting to Kirabati and would remain in his post until October 2007.
12. On 29 October 2007 the applicant wrote a letter to the respondent. The letter raised a number of matters regarding the applicant’s “request for exemption from the 6 month occupancy requirement for the FHOG and HBC”. He requested an explanation as to why he was granted an “extension” to fulfil the 6 month residency requirement instead of an “exemption” which he originally applied for on the basis that he had entered the FHOG agreement in good faith. He requested that his application for an exemption be reconsidered.
13. On 20 December 2007 the applicant was advised that his “objection” was disallowed. The delegate of the respondent who made the decision said that the respondent did not have a discretion to waive the provisions of the FHOG Act and that the applicant should make arrangements for the repayment of the $7,000 grant and $8,160 HBC. The letter was headed “Re: Extension of the 6-month occupancy requirement for First Home Owner Grant (FHOG) and Home Buyer Concession (HBC)” and made several references to both the FHOG and the HBC.
14. On 14 January 2008 the applicant attended the Revenue Office to discuss his objection. He told the officer he spoke to, inter alia, that he felt that it was unfortunate that his preliminary request for exemption was not specifically declined as it confused him.
15. On 14 January 2008 the applicant attended the Revenue Office and repaid the grant and the duty conceded.
16. In his appeal the applicant identified the decision of the delegate of the respondent set out in the letter to him dated 20 December 2007 as the decision which he wished to have reviewed.
The hearing
17. At the hearing of the appeal the applicant represented himself and the respondent was represented by Mr K Archer, of counsel. The applicant gave evidence on his own behalf. Evidence was given on behalf of the respondent by Ms M Pitt.
18. In a written statement of facts and contentions the applicant confirmed the circumstances in which he had obtained the FHOG and the HBC and his transfer to Kiribati. It is unnecessary to further relate that part of his evidence as the respondent did not challenge the applicant’s contention that he had entered the FHOG agreement and obtained the HBC concession in good faith.
19. The applicant was cross-examined as to the manner in which he had despatched the letter written by him to the respondent and dated 8 November 2006. He said that it would have to have been sent by internal mail or diplomatic courier. He knew the letter was important and he would have done everything necessary to ensure that it went in the diplomatic bag. He had no reason to believe that the letter was not despatched immediately. He produced in evidence a letter dated 17 January 2007 which he sent to the Revenue Office asking for a reply to his letter dated 8 November 2006 a copy of which he attached to his letter dated 17 January 2007.
20. The applicant said that he believed that his letter to the Revenue Office dated 10 August 2007 was hand delivered by him on the day or the day after it was written but when he went to the Revenue Office on 11 September 2007 to discuss his concerns he was told that it had not been received. He went to his car and got a copy of it. At the suggestion of the Revenue Office counter officer to whom he spoke he crossed out the date of the letter and wrote 11 September and initialled the alteration. He was shown a copy of the letter dated 10 August 2007 which bore a Revenue Office “Received” stamp dated 7 August 2007. He could not explain how this might have occurred.
21. After he returned to Australia at the end of June 2007 he lived in the property for just under one month after the tenants had moved out. He had then re-let the house when he left Australia to travel and it was his intention to return to live in the property.
22. Ms Pitt has worked in the Revenue Office since 5 December 2006 with responsibility for processing FHOG applications. In a written statement admitted in evidence Ms Pitt said that in January 2006 another person in her office had received a phone call from the applicant who had enquired whether the Revenue Office had received a letter from him on or around 8 November 2006 requesting “an extension”. She requested the other person to advise the applicant that it had not been received and to send another copy. She considered that it was unlikely that any letter received by the Revenue Office would be received and misfiled, misplaced or discarded.
23. In response to a question asked by the applicant, Ms Pitt agreed that it was possible that the applicant’s letter dated 8 November 2006 could have been misplaced.
The First Home Owner Grant
24. The requirement that the recipient of a grant occupy the home in relation to which the grant was given is contained in section 12 of the FHOG Act. It provides:
12 Criterion 5—Residence requirements
(1)An applicant for a first home owner grant must occupy the home to which the application relates as the applicant’s principal place of residence for a continuous period of at least 6 months.
(2) However, if the commissioner is satisfied there are good reasons to do so, the commissioner may—
(a) approve a shorter period; or
(b)exempt the applicant from the requirement to comply with subsection (1).
(3)The period of occupation required under subsection (1), or the shorter period approved under subsection (2) (a), must start within 1 year after completion of the eligible transaction to which the application relates or a longer period approved by the commissioner.
(4)The commissioner may exempt the applicant (the noncomplying applicant) from the requirement to comply with subsection (3) if—
(a)the applicant is 1 of 2 or more joint applicants for a first home owner grant; and
(b) at least 1 of the applicants complies with the requirement; and
(c)there are, in the commissioner’s opinion, good reasons to exempt the noncomplying applicant from the requirement.
25. Pursuant to section 20 of the FHOG Act, failure to comply with the residence requirement referred to in section 12 gives rise to an obligation to repay the grant. Section 20 provides:
20 Payment in anticipation of compliance with residence
requirements(1)The commissioner may authorise payment of a first home owner grant in anticipation of compliance with the residence requirements if the commissioner is satisfied that each applicant intends to comply with the residence requirements.
(2)If a first home owner grant is paid in anticipation of compliance with the residence requirements, the payment is made on condition that, if the residence requirements are not complied with, the applicant must within 14 days after the relevant date—
(a) give written notice of that fact to the commissioner; and
(b) repay the amount of the grant.
(3) The relevant date is the earlier of the following:
(a)the end of the period allowed for compliance with the residence requirements;
(b)the date it first becomes apparent that the residence requirements will not be complied with during the period allowed for compliance.
(4)If a first home owner grant is paid to a person on the condition mentioned in subsection (2), the person must comply with the condition.
Maximum penalty: 50 penalty units.
(5) An offence against this section is a strict liability offence.
26. The applicant’s objection to the decision under review was made pursuant to section 25(1) of the FHOG Act which provides:
25 Objections
(1)An applicant may give a written objection to the commissioner if the applicant is dissatisfied with the commissioner’s decision in any way.
27. The grounds of objection are required to be stated fully, in detail and in writing and the burden of showing that the objection should be upheld lies with the applicant (see section 26 FHOG Act).
28. The objection is required to be given to the respondent not later than 60 days after notice of the decision is given to the applicant (see section 27 FHOG Act) but that time can be extended in accordance with section 28 of the FHOG Act which provides:
28 Objections made out of time
(1)The commissioner may permit the applicant to make an objection after the 60-day period.
(2)If the applicant wishes to make the objection after the 60-day period, the applicant must state fully and in detail, in writing, the circumstances concerning and the reasons for the failure to make the objection within the period.
(3)The commissioner may give permission unconditionally or subject to conditions or may refuse permission.
(4)The commissioner must give notice to the applicant of the commissioner’s decision.
Note If a form is approved under s 55 (Approved forms) for a notice, the form must be used.
(5)If the commissioner does not give permission unconditionally, the commissioner must include in the notice an explanation for refusing to give permission or for imposing conditions on the permission.
29. Provision for an application to be made to the Tribunal to review the respondent’s decision is contained in section 31 of the FHOG.
30. Section 47(1) of the FHOG Act authorises the respondent to require repayment of a grant in certain circumstances. Section 47(1) provides:
47 Power to require repayment and impose penalty
(1)The commissioner may, by written notice, require an applicant (or former applicant) for a first home owner grant to repay an amount paid on the application if—
(a) the amount was paid in error; or
(b)the commissioner reverses the decision under which the amount was paid for any other reason.
31. The correspondence between the applicant and the respondent’s representatives is not expressed in terms that clearly enliven the objection and appeal provisions of the FHOG Act. Although it made reference to the respondent’s letter dated 4 June and although not expressed to be an objection made pursuant to section 25 of the FHOG Act, the applicant’s letter dated 10 August 2007 (a copy of which was subsequently altered to 11 September 2007) applied for an exemption from the requirement that he occupy the property continuously for a period of 6 months. The effect of the letter, in my opinion, was to revive the application for an exemption made on 21 September 2005 which, without explanation, had not been approved. The Revenue Office treated the letter dated 10 August 2007 as an objection by issuing the applicant with a receipt described as a payment in respect of an objection. In my opinion, the applicant’s letter dated 10 August 2007 is properly to be regarded as an objection to the respondent’s implied refusal in the letter dated 6 October 2005 to grant the applicant an exemption from the requirement to comply with the residence requirement contained in section 12(1) of the FHOG Act.
32. A difficulty for the applicant that such a conclusion gives rise to is the requirement that the objection must be given to the respondent not later than 60 days after notice of the decision objected to was given to the applicant.
33. It is to be assumed that the respondent’s letter to the applicant dated 6 October 2005 addressed to him at the property would have been received by him on or around that date. Although some uncertainty surrounds the date of receipt of the applicant’s letter originally dated 10 August 2007 and re-dated by him as 11 September 2007, another copy of the letter tendered in evidence on behalf of the respondent was recorded as having been received by the respondent on 7 August 2007. On any view of the evidence, the applicant’s objection was given to the respondent outside the 60 day period permitted by section 27 of the FHOG Act for making an objection. As noted above, however, provision is made by section 28 of the FHOG Act for the respondent to permit an objection to be made after that period has expired.
34. For the purpose of reviewing a decision the Tribunal is conferred by section 44 of the AAT Act with “all the powers and discretions that are given by any relevant enactment on the person who made the decision …..”. Section 44 is not, itself, a source of jurisdiction (see Comcare v Burton (1998) 50 ALD 846) but the Tribunal is empowered to exercise not only the power or discretion conferred on the decision-maker (in this case, the powers contained in section 12 of the FHOG Act), but also any power or discretion conferred on the decision-maker by the FHOG Act provided that it is relevant to the decision under review (Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 at 305-306). So long as the exercise of the powers and discretions by the Tribunal is for the purpose of reviewing a decision, all of the powers and discretions conferred by any relevant enactment on the decision-maker who made the decision, can be exercised by the Tribunal (see Commonwealth Bank Officers’ Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 89 ALD 1). There is no requirement that the powers and discretions exercised pursuant to section 44 of the AAT Act must lead to a decision that would itself be reviewable by the Tribunal had it been made by the decision-maker in the first instance and an application for review lodged in the Tribunal (see Re Donald and ASIC (2001) 64 ALD 717 at 728).
35. The discretion conferred by section 28 is, in my opinion, a discretion conferred on the respondent that is relevant to the decision under review and therefore available to be exercised by the Tribunal.
36. In determining whether to extend the period of time permitted by section 27 of the FHOG Act, it is to be noted that the period of time allowed for making an objection would ordinarily be adequate having regard to the nature of the objection raised by the applicant.
37. The circumstances of this case are, however, unusual. The initial request made by the applicant upon learning that his posting overseas would prevent him from complying with the residence requirement, was that he be granted an exemption from that requirement. The respondent’s response to that request was to grant him an extension of time in which to comply with the residence requirement. It did not address the applicant’s request for an exemption. The respondent’s counsel informed the Tribunal that the Revenue Office had dealt with the matter in this way because there was no provision for the applicant to be given an exemption from the same requirement as to residence that existed under the HBC scheme. Provision existed under the HBC scheme only for the time limits for the residence requirement to be extended and the concern was to preserve the right of the applicant to be granted an extension under that scheme.
38. The explanation given to the Tribunal was not provided to the applicant at any time prior to the making of his objection. The provision of advice to the applicant that his application for exemption had been rejected, the reasons for doing so and of the respondent’s inability to grant an extension of time beyond the 12 month period were clearly matters that were relevant to any consideration by the applicant as to the exercise of his right to object to the respondent’s decision. On the second occasion on which the respondent extended the period of time for complying with the residence requirement (that is, on 4 June 2007), it had no lawful authority to do so as any approval given pursuant to section 12(2)(a) is required to be given prior to the expiration of the period required for occupation (see Daniell and Commissioner for ACT Revenue [2008] ACTAAT1 (18 January 2008)). The extensions of time for compliance with the residence requirement could be expected to give rise to an expectation by the applicant that his failure to meet the residence requirement due to his posting overseas would be regarded as acceptable for the duration of any inability to satisfy it due to his employment. I accept that he would have been confused by the advice that he had been given.
39. In the circumstances, I consider that it is appropriate to extend the period of time for lodging an objection to the respondent’s decision given in the letter dated 6 October 2005 to 11 September 2007.
40. Mr Archer further submitted, however, that the power to grant an exemption under section 12(2)(b) could only be exercised prior to the commencement of completion of the eligible transaction. To interpret that provision otherwise would render section 12(2)(a) otiose. That being so, he submitted, there would have been no legal basis upon which the applicant’s application for an exemption could have been granted. Having regard to the conclusion which I have arrived at and set out below, it is unnecessary for that issue to be resolved.
41. Section 12 of the FHOG Act empowers the respondent, and hence the Tribunal, to exercise a range of discretions. In addition to the discretion conferred by section 12(2)(a) to shorten the 6 month residence requirement and the discretion conferred by section 12(2)(b) to exempt the recipients of a grant from that requirement, section 12(3) of the FHOG Act confers a discretion to approve a period longer than one year after completion of the eligible transaction for the commencement of the 6 month continuous period of residence by the applicant or any shorter period approved.
42. Although the applicant did not satisfy the residence requirement specified in section 12(1) of the FHOG Act, his evidence to the Tribunal was that it was now his intention to return to the property and to make it his principal place of residence. In the circumstances, I consider that, having regard to the inability of the applicant to satisfy the residence requirement due to his absence in the course of his employment, the period of occupation required under section 12(1) of the FHOG Act should be approved to start within a period longer than one year after completion of the transfer of the property. Pursuant to section 12(3) of the FHOG Act, I approve the period of 28 days from the date of this decision as the date of that commencement.
The Home Buyer Concession Scheme
43. The Duties Act is a “tax law” for the purposes of the Taxation Administration Act 1999 (“the Administration Act”) (see section 4(c) Administration Act). Section 139 of the Administration Act empowers the Minister to determine the amounts of duty payable under a tax law. On 14 December 2004 the Minister made a determination entitled Taxation Administration (Amounts Payable – Home Buyer Concession Scheme) Determination 2004 (No 5) – Disallowable Instrument DI2004-262 (“the determination”). The determination was expressed to apply to a transfer of a Crown lease, or if the transfer was preceded by an agreement for transfer – that agreement – first executed or entered into on or after 1 January 2005. Both the agreement for transfer (dated 15 April 2005) and the transfer occurred after 1 January 2005 and prior to the repeal of the determination on 6 July 2005 by Disallowable Instrument DI2005-157. Under the determination an eligible home buyer was entitled to a concession of the amount of stamp duty ordinarily payable if, inter alia:
b)at least one applicant named in the grant, transfer or agreement for transfer of the subject property as the grantee or transferee must:
· reside in the home for a continuous period of 6 months; and
· such period is to commencement within 12 months of:
o completion of the transfer for an eligible property; or
…………The Commissioner for ACT Revenue has the discretion to extend the time for an applicant to meet the residency requirement where applicants genuinely need an extension of time to reside in the property. The discretion is:
· limited to where an applicant is unable to reside in the property because of a compulsory or unforeseen circumstance e.g. work or health related issues; and
· exercisable only where the request for an extension of time is made when the period of time for compliance with the residency requirement has not elapsed.
44. No reference was made by the applicant in either his letters dated 21 September 2005 and 8 November 2006 to the respondent to the HBC allowed to him. Despite those omissions, the respondent treated both letters as applications for an extension of the time limits applicable to the usual residence requirement for a HBC in the replies dated 6 October 2005 and 4 June 2007 respectively and granted extensions of time to 31 December 2007.
45. The applicant’s letter of objection dated 10 August 2007 made reference in its heading to both the grant and the HBC but was otherwise expressed as a request for an exemption under the FHOG Act. In my view, despite its lack of more specific reference to the HBC, having regard to the correspondence from the respondent to which it made reference, it is to be regarded as an objection to the respondent’s refusal to grant an exemption to the need to comply with the ordinary residence requirement of the HBC scheme. The fact that there is no power under the HBC scheme to grant an exemption from that requirement and that any such application must fail, does not detract from the requirement for the respondent to determine the objection, provided that the objection is made within the period permitted by section 102 of the Administration Act (60 days) or such extended period as permitted by section 103 of the Administration Act and the objection is made in respect of a decision of the kind specified in section 100(1) of the Administration Act.
46. Section 103 of the Administration Act is in substantially the same terms as section 28 of the FHOG Act. For the same reasons as those given above in relation to the FHOG grant, the time for lodging an objection should be extended to 11 September 2007.
47. There is no specific provision in the Duties Act (see section 252) which makes provision for an objection or appeal in respect of the kind of objection referred to in the applicant’s letter dated 10 August 2007.
48. Section 100 of the Administration Act provides:
100 Objection
(1)A taxpayer may lodge a written objection with the commissioner if the taxpayer is dissatisfied with—
(a)an assessment, other than a compromise assessment, that is shown in a notice of assessment served on the taxpayer; or
(b) a decision mentioned in schedule 1 or schedule 2; or
(c)a decision under a tax law that is prescribed under the law for this section.
Note Decisions are prescribed for this section under the Land Tax Act 2004, s 38 and the Rates Act 2004, s 70.
(2)An objection must be accompanied by the fee (if any) determined under section 139A (Determination of fees) for the objection.
………..
49. The decision under consideration does not fall within the terms of a decision of the kind specified in subparagraphs (1)(b) or (1)(c) of section 100 of the Administration Act.
50. The word “assessment” (in section 100(1)(a)) is defined in the Dictionary of the Administration Act as:
assessment means—
(a)an assessment, reassessment or compromise assessment of the tax liability of a person under a tax law, made by the commissioner under part 3; or
(b) an assessment substituted by the tribunal on an appeal under part 10.
51. The delegate’s letter dated 20 December 2007 containing advice of the decision under review stated that the result of it was to require the applicant to make arrangements to repay both the FHOG and the HBC should he not begin occupancy on or soon after 31 December 2007. As the applicant’s appeal was made in respect of the decision contained in the letter dated 20 December 2007, it is clear that the appeal was made in respect of both decisions. Neither the flexibility permitted by the requirement for the commencement of occupation of the property by the applicant as specified in the delegate’s letter nor the absence of a more formal notice advising the applicant of his liability to repay the grant and the HBC detract from the effect of the letter as being an assessment of the applicant to repay the amount of the concession previously approved. It would be unconscionable, in my view, for any right of appeal to be precluded by the failure of the respondent to impose a liability to the payment or repayment of a tax in a document styled as a notice of assessment.
52. I see no reason to not accept the applicant’s evidence that he promptly despatched his letter to the respondent dated 8 November 2006 and would have been received prior to 31 December 2006. At the time the applicant made the request in his letter dated 8 November 2006 for an extension of time for compliance with the residence requirement he was, therefore, within the time for doing so prescribed by paragraph (b) of the determination, referred to above, as he had previously been given an extension of time for compliance to 31 December 2006. At that time also, there was no evidence before the Tribunal to suggest that the requirement for his posting to be extended beyond the period initially approved was foreseen.
53. In my opinion, the correct or preferable decision for the Tribunal to make is to extend the time for the applicant to meet the residency requirement (that he reside in the property for a continuous period of 6 months) with such period to commence within 28 days from the date of this decision.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/4
APPLICANT: BRETT JOHN NEGUS
RESPONDENT: COMMISSIONER FOR ACT REVENUE
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MR K ARCHER
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER:APPLICANT: SELF
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 15 APRIL 2008 PLACE: CANBERRA
DATE OF DECISION: 8 MAY 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
1
0
0