Simmons v Chief Commissioner of State Revenue

[2007] NSWADT 178

CITATION:	Simmons & anor v Chief Commissioner of State Revenue [2007] NSWADT 178 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Revenue Division
PARTIES:	APPLICANTS Peter Russell Simmons and Tania Margret Simmons RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	076031
HEARING DATES:	28 May 2007
SUBMISSIONS CLOSED:	18 June 2007
DATE OF DECISION:	3 August 2007
BEFORE:	Seve J - Judicial Member
CATCHWORDS:	Duties Act - First Home Plus Scheme - reassessment
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Duties Act 1997 Duties Amendment (FIrst Home Plus One) Act 2007 First Home Owner Grant Act 2000 Real Property Act 1900 State Revenue Legislation Amendment Act 2004 State Revenue Legislation Amendment Act 2006 State Revenue Legislation Further Amendment Act 2003 Taxation Administration Act 1996
CASES CITED:	Aoun Investments Pty Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1394 BBLT Pty Ltd v Chief Commissioner of the Office for State Revenue [2003] NSWSC 1003 Chief Commissioner of State Revenue v Aldridge & Anor (RD) [2003] NSWADTAP 50 Chief Commissioner of State Revenue -v- Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19 Choudhury & Anor v Chief Commissioner of State Revenue [2007] NSWADT 150 ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 Scurry v Chief Commissioner of the State Revenue [2006] NSWADT 28 Snow v Chief Commissioner of the State Revenue [2005] NSWADT 278 Stature Pty Ltd v Chief Commissioner of State Revenue [2002] NSWADT 271
REPRESENTATION:	APPLICANT P Simmons, In person and as agent RESPONDENT H El Hage, Solicitor
ORDERS:	The decision to reassess is affirmed.

1 This application is for review of a decision of the Respondent (“the Commissioner”) to reassess the duty payable on a contract for purchase (“the Contract”). The Contract was dated 26 May 2006 and was for the purchase by the Applicants of part of 80 Chandos Road, Yanderra, NSW from MM Goodenough and DJ Goodenough (collectively “the Vendors”). The Contract was originally assessed by the Commissioner with nil duty under s 80 of the First Home Plus Scheme in Division 1 of Part 8 of the Duties Act 1997 (“the Act”). The decision of the Commissioner was to reassess the Contract for transfer duty in the amount of $9,215.

2 The Tribunal had before it, the application for review with attached submissions, documents lodged by the Commissioner pursuant to s 58 of the Administrative Decisions Tribunal Act1997 (“ADT Act”) and written submissions of the Commissioner and the Applicants, including photographs annexed to the Applicants’ submissions. The Tribunal also heard oral submissions on behalf of each of the parties at the hearing.

Background Facts

3 The background facts to this matter are as follows:

(1) 80 Chandos Road, Yanderra (“the Land”) is a 5 acre parcel of land comprised in one title deed under the Real Property Act 1900 having title reference 100/629146.

(2) Immediately prior to the Contract:

(a) the Land was registered in the joint names of two couples, namely, RS Simmons and CY Simmons (collectively “PS Parents”) and the Vendors, as tenants in common in equal shares (with each of the couples owning their respective half interests as joint tenants);

(b) PS Parents and the Vendors were a party to a Deed dated 6 June 1991 (“the 1991 Deed”) under which:

(i) Clause 1 provided that in consideration of $75,000 paid by PS Parents to the Vendors, the Vendors, as the then beneficial owners of the Land, transferred a one half interest in the Land to PS Parents;

(ii) it was recited that the Land had been approved for dual occupancy (E.1) and that PS Parents and the Vendors would jointly reside at and cohabit the Land as dual occupants (F.1) and co-operate to develop and implement a site plan (F.1.2) with the purpose of keeping pre dual-occupancy assets and future assets separate (F.2) in order to promote harmony between them and to reduce the possibility of litigation (F.3);

(iii) PS Parents and the Vendors agreed (under Clauses 2.2 and 2.3) to contribute to the cost of construction of a dual occupancy building and all other improvements on the Land in agreed proportions; and

(iv) PS Parents and the Vendors agreed (under Clause 5.2) that if either PS Parents or the Vendors wished to sell, transfer or otherwise dispose of part or the whole of the Land then they must give the other party notice in writing and grant to the other party an option to purchase. Clause 5.3 provided that Clause 5 is binding on each party and in the event of death on their estate.

(3) On the same date as the Contract, PS Parents and the Vendors entered into a Deed of Release and Indemnity under which PS Parents released and discharged the Vendors from Clauses 5.2 and 5.3 of the 1991 Deed.

(4) Prior to the date of the Contract, the Applicants and PS Parents signed a document dated 8 February 2006, which stated that the Applicants have agreed to purchase the Vendor’s property at the Land and that the home being purchased will be separate from PS Parents’ home and will be the Applicants’ sole dwelling and that the Applicants will be responsible for all mortgage payments, electricity, telephone, insurance and all other accounts for their home.

(5) At the time of the Contract, the Land had 2 separate dwellings on it, joined by a carport, with one dwelling occupied by PS Parents and the other dwelling occupied by the Vendors.

(6) The Applicants allege that prior to entering into the Contract, one of the Applicants, Peter Simmons phoned the Office of State Revenue at Wollongong to discuss the proposed purchase and to find out if the Applicants would be entitled to first home buyer’s benefits. It is alleged that in that phone call:

(a) Peter Simmons discussed the circumstances of the proposed purchase of a freestanding dual occupancy dwelling on 5 acres, with his parents living in the other dwelling and there being one title deed, with one half of the title owned by his parents and the other half owned by the Vendors; and

(b) Peter Simmons was told by the Office of State Revenue at Wollongong that there was “a 95% chance you’ll get the exemption and grant”.

(7) The Applicants allege that based on the verbal phone advice of the Office of State Revenue at Wollongong, the Applicants made a firm offer to purchase and entered into the Contract.

(8) The Contract described the Land the subject of the contract for sale as “Part 80 Chandos Road, Yanderra” and the price as “$305,000”. There was no dispute that $305,000 was the dutiable value of the dutiable property the subject of the Contract.

(9) After the Contract was made, the conveyancer for the Applicants applied to the Commissioner, at the Office of State Revenue at Wollongong, for a First Home Owner Grant under the First Home Owner Grant Act 2000 and exemption from duty under the First Home Plus Scheme. In the letter from the conveyancer to the Commissioner, the conveyancer advised that the Applicants were “purchasing a freestanding home, part of a dual occupancy development, co-owned by their parents” and that “There is one title deed (being the land referred to in 100/629146) with two freestanding homes on it”.

(10) The Applicants were granted a First Home Owner Grant and also, exemption from duty under the First Home Plus Scheme and the Contract was stamped with “nil” duty.

(11) Following settlement of the Contract:

(a) a transfer of the interest of the Vendors in the Land to the Applicants was registered and the Applicants (as joint tenants between the Applicants in half share) and PS Parents (as joint tenants between PS Parents in half share) were registered as the proprietors of the Land, as tenants in common; and

(b) the Applicants moved into the residence on the Land previously occupied by the Vendors and PS Parents continued to occupy the other residence on the Land.

(12) By a letter dated 9 October 2006 from the conveyancer for the Applicants to the Commissioner, a refund was sought of $1,141 duty paid on a mortgage of the Land made between the Applicants and PS Parents as mortgagors and St George Bank as mortgagee.

(13) By letter dated 10 October 2006, the Commissioner informed the Applicants’ conveyancer as follows:

“On review of this matter following your refund request for the related mortgage, it has come to our attention that the above contract was not assessed correctly.

As Peter and Tania Simmons did not purchase the whole of the property which is required under Section 74(2) of the Duties Act they do not qualify for the First Home Plus exemption.

Therefore could you please re-lodge the stamped contract for reassessment and duty of $9,215 will be payable.”

(14) The Applicants’ conveyancer lodged an objection dated 24 October 2007 to the Commissioner’s decision to reassess the Contract.

(15) By letter dated 15 January 2006 to the Applicants’ conveyancer, the Commissioner notified the Applicants of the Commissioner’s decision to disallow the objection, for the reason that the Contract did not satisfy s 74(2) of the Act. That letter enclosed a notice of assessment dated 15 January 2007 for duty of $9,215 plus interest of $479.73. No evidence of any objection to the interest in the notice of assessment was before the Tribunal and interest is not a subject of the review in this case.

4 At the hearing, the Tribunal raised with the parties a preliminary issue concerning s 9(2) of the Taxation Administration Act 1996 (“TAA”). Section 9 of the TAA (including s 9(2)) provides as follows:

“(1) The Chief Commissioner may make one or more reassessments of a tax liability of a taxpayer.

(2) A reassessment of a tax liability is to be made in accordance with the legal interpretations and assessment practices generally applied by the Chief Commissioner in relation to matters of that kind at the time the tax liability arose except to the extent that any departure from those interpretations and practices is required by a change in the law (whether legislative or non-legislative) made after that time.

(3) The Chief Commissioner cannot make a reassessment of a tax liability more than 5 years after the initial assessment of the liability, unless: ...

(4) The initial assessment of a tax liability remains the initial assessment of the liability for the purposes of this Act even if it is withdrawn under section 13.”

5 Section 9(2) of the TAA was considered in ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 (“ISPT Case”). Mr Justice Gzell held (at 139) in the ISPT Case:

“139 … Section 9 involves conditions and limitations that find no place in s.37 ( of the Stamp Duties Act 1920 ). A reassessment under s.9 may not be made more than five years after the initial assessment except in certain circumstances and may only be made in accordance with interpretations and practices referred to in s.9(2) . The power to form an opinion under s.9 is therefore a qualified and limited power . Under s.37, by contrast, the Chief Commissioner may act in any way and without regard to particular interpretations and practices. In addition, there are distinctions corresponding with those discussed in relation to the interaction of s.37 with the 1992 provisions. A reassessment under s.9 does not, of itself, give rise to any payment liability, although it may have a bearing on the question whether an instrument may still be regarded as duly stamped. Section 37 contemplates the imposition of a new and direct payment obligation upon a particular person (“the person on whose behalf the instrument was presented for assessment”), while s.9 is, at best, concerned with the expression of a revised official opinion as to the quantum of the pre-existing tax liability of the person whose liability has already been established. And importantly, s.37 creates a new and independent debt due to the Crown, whereas a s.9 reassessment has no such effect” (emphasis added).

6 In the ISPT Case, there was no dispute as to non-compliance with s 9(2) of the Act. The taxpayer there only asserted that the validity of the notices of reassessment was affected by failure to recite in them that the opinion on which they were based had been formed by reference to the particular interpretations and practices referred to in s 9 (2) of the TAA (at 143). Mr Justice Gzell held that the failure to recite that the reassessment was made in accordance with the interpretation of the law used at the time of the original assessment was not significant and did not affect the validity of the notices of reassessment.

7 At the hearing, the Tribunal expressed the preliminary view that the submissions of the Applicants raise a prima facie inference that the legal interpretations and assessment practices applied by the Commissioner in relation to matters of the kind the subject of this matter, at the time the tax liability arose, were as reflected in the original assessment of the Contract. That is, the alleged advice given by phone by the Office of State Revenue in Wollongong to one of the Applicants before the Contract was made, coupled with the stamping of the Contract with nil duty after full disclosure of the dual occupancy, raises the prima facie inference that, at the time the tax liability arose (namely, 26 May 2006):

(1) the Commissioner (through the Office of State Revenue in Wollongong) interpreted the First Home Plus Scheme provisions of the Duties Act as applicable to transactions of the kind the subject of the Contract; and

(2) the original assessment of the Contract evidenced the assessment practices applied by the Commissioner at that time.

8 As s 9(2) was unaddressed in the written submissions of the Commissioner, at the hearing, the Tribunal offered the Commissioner opportunity to make submissions on that section. The Commissioner made oral submissions at the hearing and requested a period of 21 days within which to file and serve written submissions and evidence in respect to s 9(2) of the TAA. The Tribunal ordered accordingly. The Tribunal also offered the Applicants opportunity to make submissions in reply but the representative for the Applicants, Peter Simmons (one of the Applicants), advised that the Applicants would not have anything more to add and declined the invitation. Therefore, no further order was made.

9 The Commissioner filed a written submission and evidence in respect to s 9(2) of the TAA with the Tribunal on 18 June 2007. The evidence filed was a written statement signed by Mr Robert G Smith, Commissioner of State Revenue, dated 18 June 2007 (‘the Statement”). The following is an extract from the Statement:

“4. Officers and staff at OSR are required to follow the instructions and guidelines in the Internal Training Manual for the Grant and the Concession (‘the Manual”) when dealing with or processing an application for the Concession. The instructions and guidelines in the Manual contain, inter alia, the Chief Commissioner’s interpretation of the requirements of the Concession scheme in the Duties Act 1997. The Manual is updated as the legislation changes.

5. As at May/June 2006, the Manual listed as a requirement of eligibility for the Concession that the “agreement or transfer must be for the whole of the property”. This was based on the Chief Commissioner’s interpretation of s 74(2) of the Duties Act 1997. Annexed hereto and marked “A” is a copy of the relevant parts in chapter 2 of the Manual which set out this requirement as at May/June 2006.

6. The Chief Commissioner’s general practice is that where an applicant for the Concession is purchasing the whole of a property and meets the criteria in the legislation, they would be assessed as being eligible for the Concession. This was the practice at the time Mr and Mrs Simmons purchased their home.

7. As per the instructions and guidelines set out in the Manual at the time, when the applicants contacted the Wollongong office, they should have been told that they were not entitled to the concession because they were not purchasing the whole of the property. The applicants should have also been assessed as liable to pay stamp duty.

8. The initial assessment to grant the Concession to the applicant was contrary to the Chief Commissioner’s interpretation of the legislation and general practice in relation to the Concession at the time. When the request for an exemption from mortgage duty was received from the solicitor for Peter and Tania Simmons, the previous error was identified and a reassessment was issued.”

10 The annexure marked “A” attached to the Statement was headed “Chapter 2 First Home Plus [Sections 69-80A]” and included the following:

“3. Eligible agreements or transfers [Section 74]

(a) Acquisition of first home or site of first home

The agreement or transfer must be for the acquisition of a home or the acquisition of a vacant block ...

Under the Dictionary a home means a private dwelling and includes a private dwelling which is a company title dwelling and a farming property on which a private dwelling is erected ...

(b) Whole of the property

The agreement or transfer must be for the whole of the property [sec 74(2)].

(c) The dutiable value of the dutiable property that is the subject of the agreement or transfer must be less than….”

11 The submission of the Commissioner was that the evidence in the Statement establishes that the reassessment in this matter was in accordance with the Commissioner’s interpretation of the legislation and general practice in relation to the First Home Plus Scheme at the time the Applicants purchased their home and confirms that the Commissioner had power to issue the reassessment.

12 The matter of the kind referred to in s 9(2), in the context of this matter, might be specifically, the matter of a dual occupancy in the context of the exemption/concession under the First Home Plus Scheme under the Act or, more generally, the matter the exemption/concession under the First Home Plus Scheme under the Act. In either case, in the context of this matter, I find that the Statement (with annexed extract from the Internal Training Manual for the Grant and the Concession as at May/June 2006), rebuts the prima facie inference from the Applicants’ submissions abovementioned. Based on the Statement, the original assessment of the Contract and the alleged phone advice given by the Office of State Revenue in Wollongong were exceptions to the assessment practices generally applied by the Commissioner at the time the liability to duty on the Contract arose and were not made in accordance with the legal interpretations generally applied by the Commissioner at that time.

13 Accordingly, the evidence in this case does not support a finding that s 9(2) of the TAA was not complied with. Since under s 100(3) of the TAA, the Applicants have the onus of proving the Applicants’ case in an application for review, I find that that Applicants have not established that s 9(2) of the TAA was not complied with in connection with the decision of the Commissioner to reassess.

Legislation

14 Section 74 of the Duties Act (as applicable at the date of the Contract and still current) provides as follows:

“(1) The agreement or transfer must be for the acquisition of a first home or for the acquisition of a vacant block of residential land intended to be used as the site of a first home (emphasis added).

(2) The agreement or transfer must be for the whole of the property.

(3) The dutiable value of the dutiable property that is the subject of the agreement or transfer must be less than:

(a) $600,000 if the property has a private dwelling built on it, or

(b) $450,000 if the property comprises a vacant block of residential land.”

15 As referred to in the extract annexed to the Statement filed by the Commissioner, "home" is defined in the Dictionary to the Act to mean “a private dwelling and includes a private dwelling which is a company title dwelling and a farming property on which a private dwelling is erected”.

16 Section 79 of the Duties Act as it relevantly applied at the date of the Contract, provided that: “An application is to be determined solely at the discretion of the Chief Commissioner whose decision is final”. However, s 79 was repealed by the State Revenue Legislation Amendment Act 2006 with effect from 20 June 2006 and accordingly, did not exist as at the date of the decision of the Commissioner to reassess the Contract on 10 October 2006. As such, s 79 has no application to this matter, although, it was conceded by the Commissioner in the Commissioner’s submissions, that s 79 did not prevent the Tribunal from reviewing a decision of the Commissioner to revoke a First Home Plus Scheme concession previously granted (Snow v Chief Commissioner of the State Revenue [2005] NSWADT 278 and Scurry vChief Commissioner of the State Revenue [2006] NSWADT 28 at 11).

Submissions

17 The Applicants submitted that:

(1) There are two separate dwellings on the Land with separate living facilities, kitchens, bathrooms, hot water services, water supply, electricity supply, backyards and general living quarters.

(2) The Applicants are genuine first home buyers and purchased their own dwelling with the confirmation from the Wollongong Office of State Revenue that the Applicants would be exempt from stamp duty.

(3) The Applicants received exemption prior to settlement and budgeted accordingly and have since had to borrow money in order not to incur interest on the stamp duty payable on the reassessment.

(4) In June 2006, one of the Applicants, Peter Simmons, had to have an intensive operation on his nose which placed a financial burden on the Applicants and early in 2007, the Applicants found out that that operation was unsuccessful and that the operation had to be repeated in April 2007, adding to the financial burden of the Applicants as they struggle as first home buyers.

(5) The other of the Applicants, Tania Simmons, is also unwell, suffering from Lupus disease and rheumatoid arthritis.

(6) The combination of being newly married and both suffering considerable health problems, the stress and financial burden the Office of State Revenue has placed upon the Applicants, changing its original decision to exempt the Applicants from duty and forcing the Applicants to take out a second loan, has affected the health of the Applicants, stress levels and financial position considerably.

18 The Commissioner submitted that:

(1) The Applicants did not satisfy the requirement in s 74(2) of the Act that the relevant agreement or transfer “must be for the whole of the property”. An agreement or transfer that is for part of a property is not eligible for the First Home Plus Scheme.

(2) There is no dispute that the Applicants purchased a half share of the Land. The Contract and transfer were for the half share owned previously by the Vendors. For that reason, having purchased part of the property only, the Applicants are not eligible for the First Home Plus Scheme and must pay duty in respect of their purchase.

(3) The Commissioner (and in turn the Tribunal) does not have a discretion to grant the First Home Plus Scheme Concession to applicants where they fail to meet the requirement in s 74(2). Section 74(2) is mandatory and there is no power to depart from the requirement of that section.

(4) Although the Applicants were initially granted the First Home Plus Scheme concession in error, the Commissioner cannot be estopped from administering the Act in accordance with its terms and, in turn, reversing the earlier decision to grant the First Home Plus Scheme Concession: see Commissioner of Taxation v Ryan (2000) 201 CLR 109 at 124; see also Chief Commissioner of State Revenue v Aldridge & Anor (RD) [2003] NSWADTAP 50 at 33; Ambience (Arncliffe) Pty Ltd v Chief Commissioner of State Revenue[2002] NSWADT 2006 at 32-34. Under the Act, the Applicants are not eligible for the First Home Plus Scheme concession because they fail to satisfy all the relevant criteria. The Act requires the Commissioner to refuse the application for the First Home Plus Scheme Concession: see McTackett v Chief Commissioner of State Revenue [2003] NSWADT 154 at 22-23.

19 The Commissioner noted that the Applicants were entitled to the First Home Owners Grant under the First Home Owner Grant Act 2000 because that Act provides for the payment of a grant where there are two or more homes on the land (s 6B of the First Home Owner Grant Act 2000).

Decision

20 For the reasons which follow, I agree with the Commissioner’s submissions and find that the original assessment of the Contract with nil duty under s 80 of the Act was wrong and that the decision of the Commissioner to reassess the Contract with transfer duty of $9,215 was correctly made.

21 Section 74(2) has been in the Act in its current form (and as applicable at the date of the Contract), continuously since original enactment of the Act which commenced on 1 July 1998. Although the whole of s 74 was substituted by the State Revenue Legislation Amendment Act 2004 with effect from 4 April 2004, s 74(2) remained unchanged under that substitution.

22 Subsection (1) of s 74 of the Act requires that the agreement or transfer must relevantly be for the acquisition of “a first home”. Subsection (2) requires that the agreement or transfer must be for the whole of “the property”. Subsection (3)(a) requires that the dutiable value of “the dutiable property” that is the subject of the agreement or transfer must be less than $600,000 if “the property” has “a private dwelling” built on it. Within s 74, four different expressions are used, namely, “a first home”, “the property”, “the dutiable property” and “private dwelling”.

23 What is “the property” referred to in s 74(2) of the Act? Is it “the dutiable property” the subject of the agreement or transfer? If that was intended, the expression “the dutiable property” instead of “the property” could easily have been used, as it is used in s 74(3). In my view, the expression “the property” instead of “the dutiable property” is deliberately used in s 74(2), to make it clear that although an interest in dutiable property can itself be dutiable property (s 11(1)(l) of the Act), to qualify under s 74(2) of the Act, “the dutiable property” the subject of the agreement or transfer must be the whole of the property that is the “first home” referred to in s 74(1).

24 In this case, there was no dispute that the dwelling on the Land to be occupied by the Applicants was “a first home” within the meaning of s 74(1) of the Act. On this basis, the issue for s 74(2) of the Act is whether the Contract is for the “whole of” the private dwelling on the Land to be occupied by the Applicants.

25 The expression “whole of” has an ordinary meaning of “entire” that does not embrace “part of”. That the ordinary meaning of “whole of” is intended in s 74(2) of the Act, is supported by the following.

26 Section 74 of the Act was not amended under the latest amendments to the Act (not applicable to the Contract) effected by the Duties Amendment (First Home Plus One) Act2007, which introduced a special concession for the First Home Plus Scheme under s 80AA of the Act, for certain shared equity arrangements. Section 80AA(1) provides:

“If there is more than one purchaser or transferee under an agreement or transfer, and one or more of them is a first home owner, but the agreement or transfer is not eligible under the scheme because one or more of the other purchasers or transferees is not eligible under the scheme, the agreement or transfer may still be eligible for a duty concession under the scheme (a shared equity concession ).”

27 The absence of any amendment to s 74 (2) of the Act by the Duties Amendment (First Home Plus One) Act2007, coupled with the wording of s 80AA(1) of the Act, which limits it to: “If there is more than one purchaser or transferee under an agreement or transfer…”(emphasis added), indicates that even the shared equity concession that is now available under the Act, requires that the relevant agreement or transfer must be for the “whole of” the property and not part of it. This highlights that the requirement in s 74(2) of the Act, that the agreement or transfer must be for the “whole of” the property, is a deliberate policy requirement of the First Home Plus Scheme.

28 The State Revenue Legislation Further Amendment Act 2003 (“SRLFAA”) amended the First Home Owner Grant Act 2000 to introduce, among other things, s 6A and s6B into the First Home Owner Grant Act 2000, dealing with multiple occupancy contracts and multiple occupancy land. Paragraph (c)(i) of the Explanatory Note to the Bill for the SRLFAA relevantly describes the object of the amendment as: “to allow more than one grant to be paid in cases where multiple homes are purchased by or built for separate purchasers under a single contract or where multiple homes on a single parcel of land will be separately occupied”. The amendment applies to contacts made on or after 1 July 2002 (Clauses 7 (2) and 7(3) of Part 4 of Schedule 1 to the First Home Owner Grant Act 2000) and applied to the Contract in this case. In this case, the Commissioner was satisfied that the dwelling to be (and now) occupied by the Applicants was an exclusive occupancy and that the other eligibility criteria for the First Home Owner Grant were satisfied and accordingly, the Commissioner did not purport to reverse his decision to pay the First Home Owner Grant to the Applicants.

29 The SRLFAA did not amend s 74(2) or any other of the First Home Plus provisions in the Act. Neither has any subsequent amendment Act amended the First Home Plus provisions in the Act to address multiple occupancy contracts and multiple occupancy land as the First Home Owner Grant Act 2000 was amended by the SRLFAA so to do.

30 Although the Applicants submitted that they purchased their “own dwelling” and “first home” under the Contract, what the Applicants purchased under the Contract was the Vendors’ share or interest in the Land (including the two dwellings on the Land) which was not the whole of Land or the whole of either of the two dwellings on the Land. The Vendors’ share or interest in the Land (including the two dwellings on the Land) at the time of the Contract, was as tenant in common with PS Parents, in equal shares.

31 In Aoun Investments Pty Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1394, Mr Justice Gzell defined the interest of a tenant in common as follows (at 22):

“22 A tenant in common has an undivided share and a right to occupy the whole of the property in common with others. In Nullagine Investments Pty Ltd v Western Australian Club Inc (1992-1993) 177 CLR 635 at 643-644, Brennan J analysed the concept thus:
“The share or interest which a tenant in common has in land is an “undivided” share, that is to say, “a distinct share in property which has not yet been divided among the co-tenants”. A division of the property is repugnant to the nature of a tenancy in common, for it is an essential characteristic of a tenancy in common that each of the tenants has the right to occupy the whole of the property in common with the others. Like joint tenants, tenants in common have a unity of possession; unlike joint tenants, they need not have a unity of interest, nor a unity of title, nor need there be a unity in the time when the interests of the co-owners vest. Each tenant in common has a separate and individual title to the property, limited according to the estate or term granted to or acquired by the tenant. Thus one tenant in common may be seised of an estate in fee simple, another seised of an estate for life, while a third may be a tenant for term of years, each of their interests being separately acquired at different times. There is no right of survivorship among tenants in common.” (footnotes omitted).”

32 I find that that the arrangements between the Vendors and PS Parents under the 1991 Deed, regarding occupation of the dual occupancy building on the Land, did not affect the legal ownership of the Land (including the two dwellings on the Land) registered in the joint names of the Vendors and PS Parents as tenants in common in equal shares, under the Real Property Act 1900 (pursuant to the transfer in Clause 1 of the 1991 Deed).

33 Similarly, I find that that the arrangements between the Applicants and PS Parents under the document dated 8 February 2006 did not affect the legal ownership of the Land (including the two dwellings on the Land) registered in the joint names of the Vendors and PS Parents as tenants in common in equal shares, under the Real Property Act 1900 (pursuant to the transfer in Clause 1 of the 1991 Deed).

34 The arrangements between the Applicants and PS Parents regarding occupation of the two respective dwellings on the Land do not alter the fact that the Applicants acquired legal title to an interest in the Land (including the two dwellings) on the Land as tenant in common with PS Parents in equal shares pursuant to the Contract.

35 Under the Contract, the Applicants did not purchase the whole of the dwelling on the Land which they intended to (and now do) occupy. Under the Contract, the Applicants purchased a share or an interest in the Land, including the two dwellings on the Land, as tenant in common with PS Parents in equal shares.

36 The Contract did not satisfy the requirement in s 74(2) of the Act that the relevant agreement or transfer must be for “the whole of the property”. Although the First Home Owner Grant under the First Home Owner Act 2000 was available to the Applicants, the First Home Plus concession under the Act was not.

Estoppel

37 The Applicants submitted that they entered into the Contract based on the verbal phone advice of the Office of State Revenue at Wollongong, however, the verbal advice that was alleged to have been given was only that there was “a 95% chance” of the Applicants getting the exemption. Based on such advice, the Applicants would have been aware, at the time of entering into the Contract, that there was at least some risk that the exemption from duty might not be available.

38 Although the Commissioner originally assessed the Contract with nil duty, that assessment was wrong and the Commissioner can not be prevented from correctly administering the law and making a correct reassessment under s 9 of the TAA in this case, where s 9(2) of the TAA is satisfied and s9(3) of the TAA is inapplicable. It is well established that the Commissioner cannot be estopped from administering the law in accordance with its terms (ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 at 32 to 77; BBLT Pty Ltd v Chief Commissioner of the Office for State Revenue [2003] NSWSC 1003 at 111; Chief Commissioner of State Revenue v Aldridge & Anor (RD) [2003] NSWADTAP 50 at 33; Stature Pty Ltd v Chief Commissioner of State Revenue [2002] NSWADT 271 at 11 and 12 and Choudhury &Anor v Chief Commissioner of State Revenue [2007] NSWADT 150 at 14).

39 The submissions by the Applicants regarding their health and financial position are not relevant to the matter in respect to which the Tribunal has jurisdiction in this case. However, such submissions may be relevant to the Hardship Review Board constituted under the TAA, should an application for waiver of duty be made by the Applicants to that Hardship Review Board (s 106A and s106B of the TAA and s 310 of the Act).

Conclusion

40 For the foregoing reasons, the Applicants have not established that the decision of the Commissioner to reassess was incorrect.

41 The correct and preferable decision is to affirm the decision of the Commissioner to reassess the Contract.

Order

The decision to reassess is affirmed.

09/08/2007 - To amend 10 October 2007 to 10 October 2006 - Paragraph(s) 16