Wilkinson v Chief Commissioner of State Revenue
[2011] NSWADT 121
•26 May 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Wilkinson v Chief Commissioner of State Revenue [2011] NSWADT 121 Hearing dates: 15 November 2010 Decision date: 26 May 2011 Jurisdiction: Revenue Division Before: R Perrignon, Judicial member Decision: The respondent's decision to decline the applicant's application for the First Home Owner Grant is confirmed
Catchwords: Application for First Home Owner Grant - applicant had previously applied for a grant - grant previously made - whether disqualified from applying for further grant - whether applicant had derived a benefit from previous purchase and grant - whether benefit required by section 10(1) First Home Owner Grant Act 2000 - whether applicant held share in previous house on resulting trust Legislation Cited: First Home Owner Grant Act 2000
Conveyancing Act 1919Cases Cited: AGC (Investments) Ltd v FC of T 91 ATC 4180
Calverley v Green (1984) 155 CLR 242
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502;
Chief Commissioner of State Revenue v Aldridge & Anor [2003] NSWADTAP 50
Daghero v Chief Commissioner of State Revenue (2010) NSWADT 119
Federal Commissioner of Taxation v ANZ Savings Bank Ltd (1994) 181 CLR 466
Federal Commissioner of Taxation v Ryan (2000) 168 ALR 704
Stature Pty Limited v Chief Commissioner of State Revenue [2002] NSWADT 271Category: Principal judgment Parties: Applicant - Mark Wilkinson
Respondent Chief - Commissioner of State RevenueRepresentation: Applicant - In person
Respondent - Caroline Spruce, Counsel
For respondent - Crown Solicitors Office
File Number(s): 106027
REASONS FOR DECISION
The Applicant, Mr Wilkinson, applies for review of a decision of the Chief Commissioner of State Revenue to deny him the First Home Owner Grant. He had applied for it in November 2009, after completing the purchase of a home unit at Lane Cove in Sydney.
The Commissioner says he had no power to make the grant, because in 2006, Mr Wilkinson and his sister Nicole had jointly applied for, and received, the First Home Owner Grant, in respect of their purchase of a house at Umina. They became registered proprietors of the property as tenants in common. Section 10 of the First Home Owner Grant Act 2000 provided relevantly:
'10 Criterion 3-Applicant (or applicant's spouse) must not have received an earlier grant
(1) Subject to subsection (2), an applicant for a first home owner grant is ineligible for the grant if:
(a) the applicant or the applicant's spouse has been a party to an earlier application under this Act or a corresponding law, and
(b) a grant was paid on the application.
(2) An applicant is not ineligible if the grant was paid but later paid back, together with any penalty payable under section 45.'
Before the Tribunal, Mr Wilkinson submitted that neither his application for the grant in 2006, nor the fact that the grant was paid, ought make him ineligible for a grant now, for two reasons.
First, he said that he derived no personal benefit from the grant in 2006, because he was not the real owner of the Umina property. He held his share as tenant in common on trust for his sister. He suffered his name to be placed on the title, because the bank insisted upon it as a condition of lending the moneys for the purchase to them jointly. They had to borrow the moneys jointly, because the bank would not lend to his sister alone. Their common intention was that Nicole would be the real owner of the property, despite their names appearing on the title as co-owners.
Secondly, he submitted that he had signed the application for grant in 2006 in reliance on advice from the Office of State Revenue, transmitted by his mother, to the effect that his eligibility for a future grant would not be adversely affected by his being a registered proprietor, so long as he did not live in the property.
He also submitted that, prior to signing the contract for purchase of the Lane Cove property on 14 September 2009, he had personally telephoned the Office of State Revenue, and obtained advice from an officer there. The officer confirmed the correctness of the previous advice in 2006. Mr Wilkinson says he relied on that further advice in executing the contract. The purchase was settled on 26 October 2009. He did not apply for the grant until 29 November 2009, at the earliest. With the proceeds of the grant, he hoped to repay amounts borrowed from family members for the purchase.
The issues for determination may be summarised as follows.
(1) Whether in 2006, the office of State Revenue had advised Mr Wilkinson, through his mother, as alleged.
(2) If so, whether that advice was false or misleading.
(3) If so, whether he relied on it in deciding to apply for the grant.
(4) If so, whether that circumstance would prevent the Chief Commissioner relying on the criterion in section 10 of the Act to deny the grant in respect of the Lane Cove property.
(5) Whether Mr Wilkinson's interest in the Umina property was (and still is) held on trust for his sister.
(6) If so, whether it follows that he received no personal benefit from the grant in 2006.
(7) If he did not, whether that prevents the Chief Commissioner from relying on section 10 in denying his application for a grant in 2009.
Evidence
The Tribunal heard oral evidence from Mr Wilkinson, his sister Nicole Wilkinson, and their mother, Mrs Susan Wilkinson.
Mr Wilkinson
Mr Wilkinson told the Tribunal that, in about 2006, he and his sister were both living with their parents. He was then about 22 years old. His sister expressed a desire to purchase a house at Umina. The purchase price was $340,000. The bank would not lend her enough money to purchase it on her own. Mr Wilkinson offered to help with the finance. The two had a number of conversations at home.
They ultimately agreed to this effect: Mr Wilkinson would jointly borrow the purchase moneys with his sister and, if required, put his name on the title as registered proprietor with his sister. He would make repayments on the loan to the bank from time to time, equally with his sister, so long as she needed his assistance. When she was able, she would repay to her brother all the money he had expended in paying off the loan and otherwise contributing to the cost of purchase.
The two agreed that Mr Wilkinson would not profit from the purchase or sale of the property in any way. Nicole would not pay interest on any of the moneys which he contributed. If Mr Wilkinson needed to be repaid before she could afford to do so, she would have to sell the Umina property.
After purchase, the property was occupied by Nicole as her residence. Mr Wilkinson never lived at the property. There was no requirement for Nicole to pay rent to him. On the sale of the property, all moneys owing to Mr Wilkinson would be repaid, but he would not share in the value of any capital appreciation.
Mrs Wilkinson was aware of the discussions between her children. She expressed concern that her son, by his generous act toward his sister, might prejudice his eligibility for the First Home Owner Grant if he wished later to apply for it to purchase his own home. She rang a 'help line' operated by the Office of State Revenue. She spoke to an officer. She informed Mr Wilkinson that she was advised that, provided that he did not live in the house, his future eligibility for the grant would not be compromised by his name appearing on the title.
In reliance on that advice, Mr Wilkinson:
1) signed an application for the First Home Owner Grant jointly with his sister on 21 July 2006,
2) entered into a contract to purchase the Umina property jointly with his sister on 4 August 2006,
3) provided $12,300 of the deposit of $17,000, plus $10 for the cost of the bank cheque, and
4) entered into two loan agreements with the bank, jointly with his sister, to fund the balance of the purchase price.
Bank statements were in evidence. They showed that the bank had advanced two loans, in each case to Mark and Nicole Wilkinson jointly. The principal amount of one was $164,932 ('account 39') and of the other, $164,932.49 ('account 40'). All scheduled repayments on account 39 had been and were still being met by Mark Wilkinson. All repayments on account 40 had been and were still being met by his sister, Nicole.
In addition, Nicole had made extra payments from time to time in equal amounts into each of the two loan accounts. This permitted her to re-draw amounts from time to time. Mr Wilkinson told the Tribunal that she had done so, and applied the moneys to repay him part of the moneys she owed him.
Mr Wilkinson could not recall why there had been two loan agreements with the bank. He thought it must have been a requirement of the bank. In the absence of evidence to support that hypothesis, the Tribunal considers it unlikely. It is more likely that the loans were split to give effect to an agreement between Mr Wilkinson and his sister that they would make the scheduled repayments in equal shares - as they did - and that Nicole would eventually repay her brother the amounts that he paid in this way. The making of payments by Mr Wilkinson and his sister into separate loan accounts would make it ease to ascertain the total of amounts paid by Mr Wilkinson, which would indicate the amount owing by Nicole to her brother from time to time under their mutual arrangement. The Tribunal makes findings accordingly.
Mr Wilkinson had signed a statutory declaration on 7 August 2010, in the context of his objection to the Chief Commissioner's decision. In it, he described the agreement he had entered into with his sister prior to the purchase of the Umina property in 2006. He then declared:
'I contacted the FHOG helpline and they advised that my own future application wouldn't be affected if I was to enter into this agreement. I wouldn't have entered into this agreement with my sister if it was going to put my own personal FHOG application at risk.'
In cross-examination, his attention was drawn to this passage. He said that it related, not to a conversation in 2006, but one in 2009 just before entering into the contract to purchase the Lane Cove property. He said he advised the officer concerned that his name was on the title of his sister's property, and was advised that this would not adversely affect his eligibility for a grant in respect of the Lane Cove property.
The Tribunal is not persuaded by that evidence. The terms of the declaration are clear. They can only relate to a conversation in 2006, about the time Mr Wilkinson entered into the agreement with his sister. There was no oral evidence of such a conversation. The only evidence of such a conversation in 2006 was of one between his mother and officers of the Office of State Revenue, whose terms were allegedly relayed to him.
It follows that the conversation now alleged to have taken place in 2009 was not mentioned in the statutory declaration. There is no evidence that it was recorded, in writing or otherwise. In Mr Wilkinson's submission, that conversation was relevant to the question of whether section 10 operated to exclude him from eligibility. No reason has been advanced as to why it was omitted from the declaration made for the benefit of the Chief Commissioner's reconsideration.
In those circumstances, though it makes no positive finding that the conversation did not occur, the Tribunal is not persuaded that the conversation did occur in 2009, at least in the terms now suggested by Mr Wilkinson.
The Tribunal had the opportunity to observe Mr Wilkinson giving his evidence, both in chief, and under skilful cross-examination. But for the one matter referred to in the preceding paragraphs, his evidence was internally consistent, and consistent with the documentary evidence before the Tribunal. It was not so improbable as to raise any doubt as to its truth. The Tribunal was impressed by the forthright manner in which Mr Wilkinson gave his evidence. By and large, his evidence was corroborated by the evidence of his sister, Nicole, which is examined below. The Tribunal finds Mr Wilkinson to be a witness of truth and, with the one exception noted above, makes findings in accordance with his evidence.
Mrs Wilkinson
Mrs Wilkinson also gave oral evidence. She said that, in 2006, her children had discussed the purchase by Nicole of the house at Umina with financial assistance from her brother, Mark. She was concerned that Mark's eligibility for a future grant might be compromised. She twice rang the 'help line' operated by the Office of State Revenue. On the first occasion, she informed an officer that her son intended to render financial assistance to his sister in the purchase of a property. She was advised that this would not render him ineligible for a future grant, provided that he did not occupy the property as his permanent residence.
On the second occasion, she spoke to an administrative officer, but was so concerned to ensure that the advice was correct that she spoke also to a supervisor. The supervisor told her that Mark's eligibility would not be adversely affected if his role was confined to providing finance.
She took no notes of either conversation. There was no evidence that, prior to the decision the subject of these proceedings, she had ever had cause to recall the conversations. She was relying, it seems, unaided, on her memory of conversations with persons whose names she could not recall which had occurred about four years ago.
The Tribunal had the opportunity to observe Mrs Wilkinson giving her evidence. It was impressed by her forthright manner, and finds her to be a witness of truth. The accuracy of her recollection after so many years, however, is another issue. Mrs Wilkinson was not sure whether, when she made the first call, she was aware of the bank's requirement that Mark's name be on the title. When asked about the second call, she said she 'may have had knowledge' of the requirement. However, as she gave her evidence, she became certain that she was aware of it, by the time of the second call.
There was before the Tribunal a statutory declaration signed by Mrs Wilkinson on 29 September 2010. In it, she declared that she was aware, by the time of the second call, of the bank's requirement that Mr Wilkinson be a registered proprietor, and that she 'was assured that Mark's eligibility would not be affected'. Though she did not say in the declaration that she informed the officers concerned that her son would be on the title, the context makes it reasonably clear that that was her meaning.
Her evidence on this issue must be considered in light a number of factors. These include the following. (1) The conversations occurred many years ago. (2) They were not recorded, in writing or otherwise. (3) When Mrs Wilkinson initially made her declaration, and later gave evidence before the Tribunal, she did not have the benefit of any notes of the conversations. (4) In oral evidence, she was initially prepared to say no more than that, by the time of the second call, she 'may have' been aware of the bank's requirement. Her answer suggests that she was not sure, at that stage, whether she was so aware in 2006. (5) The answers alleged to have been given by the officers concerned, if they knew that Mr Wilkinson was to be registered as proprietor, were so obviously wrong as to make such answers glaringly improbable. (5) As Mrs Wilkinson did not identify the officers concerned - presumably, because she could not - the Chief Commissioner was not in a position to bring contrary evidence, or even to test her evidence with the benefit of instructions from the relevant officers.
Having regard to all those factors, despite the favourable view the Tribunal has formed of Mrs Wilkinson's honesty, the Tribunal is not satisfied, on the balance of probabilities, that her recollection is accurate, and that the second conversation occurred in the terms alleged. It may have, but the onus lies on the Applicant to prove his case, and the Tribunal must be satisfied of the truth of each allegation of fact on the balance of probabilities. The degree of doubt attending this aspect of the case is sufficiently high to prevent the Tribunal from making a positive finding that Mrs Wilkinson advised the officers concerned that her son's name was likely to be on the title, and that she was advised that this would not prejudice his future eligibility for a grant.
The Tribunal is otherwise satisfied with the accuracy of Mrs Wilkinson's evidence, and makes findings in accordance with it.
Though Mr Wilkinson has failed to persuade the Tribunal of the accuracy of his mother's recollection in the one respect outlined above, for reasons which are given below, it does not affect the outcome.
Nicole Wilkinson
Mr Wilkinson's sister, Nicole, also gave oral evidence. She confirmed that, in 2006, she made an oral agreement with her brother, over the course of number of conversations, with respect to the purchase of the Umina property. The terms of that agreement were consistent with the terms described in evidence by her brother, referred to above. She thought the agreement had been reached about two weeks before the contract was signed for the Umina property. That is consistent with it being reached at about the time the application for the grant was signed on 21 July 2006.
She said that her brother agreed that he would make no profit from the purchase of the property. He did not live there. She paid him no rent. He would not be entitled to any moneys on sale beyond those he had contributed to the original deposit (which, on the evidence, had already been repaid), and to the loan repayments. It was her intention that she be the real owner of the property.
She said that, in her view, she would have been able to repay the loans without assistance, but the Bank had refused to lend to her alone. To satisfy the Bank's prudential requirements, she obtained her brother's assistance. On one aspect of her evidence, the Tribunal is left in some doubt. The fact that Mr Wilkinson has continued, since 2006, to make scheduled repayments on one of the loans suggests that his assistance is genuinely needed. It draws that inference, in part, because of the favourable view it has taken of each of the witnesses. From their obvious concern for each other, and willingness to help each other, the Tribunal infers that Ms Wilkinson would not burden her brother financially, or in any other way, without good reason. The bank's unwillingness to lend to her alone also suggests that, at least in its view, she would have had difficulty in repaying the entire debt without assistance. Having regard to these factors, it seems likely that Ms Wilkinson genuinely required her brother's assistance with repayments, and has continued to do so.
She also corroborated her brother's evidence that he had made the scheduled repayments in respect of account 39, and that she had done so in respect of account 40. She said that she had made repayments above and beyond the scheduled repayments. She did so, to become entitled to re-draw principal from time to time. She has re-drawn principal, and applied it to repay her brother in part the moneys she owed him. For instance, she repaid him a sum in excess of $10,000 to assist in the purchase of the Lane Cove property.
After purchasing the Umina property, she lived there with her partner. Her brother never lived there. She has now rented the property. She intends to sell when the market recovers, as she finds it too difficult to commute to her work as a registered nurse in Sydney.
The Tribunal had the opportunity to observe Ms Wilkinson give evidence, both in chief and under skilful cross-examination. Her evidence was internally consistent, and corroborated that of her brother. Its finds her to be a witness of truth, and - excepting only her view as to her ability to repay the loans without assistance - makes findings in accordance with her evidence.
Consideration
Section 10 of the Act renders an applicant ineligible for the First Home Owner Grant if he or she has previously made application for one, and the grant has been paid. It is common ground that Mr Wilkinson applied for a grant in 2006, and that the grant was paid. The circumstances are summarised above.
On the face of it, that is sufficient to render Mr Wilkinson ineligible for a further grant.
Benefit
He submits that it should not, because he derived no personal benefit from the grant, as he was not the true owner of the property. Section 10 does not require as a precondition to its operation that an applicant personally benefit from a grant, or that he be the beneficial owner of a property in respect of which the grant is paid. It is attracted wherever a person had made application - as Mr Wilkinson has - and the grant is paid, as it was in this case.
Even if, contrary to the Tribunal's view, section 10 is not enlivened where an applicant for a grant did not receive a benefit from it, Mr Wilkinson did in fact derive a benefit. The grant assisted him to achieve his proper and selfless desire to help his sister purchase a home. That is so, even if the home was not intended to be his, or available for his use, and even if his interest in it was held on trust for her. For those reasons, it is unnecessary to determine whether Mr Wilkinson's share in the Umina property was held in trust for his sister.
However, as it has been the subject of written and oral submissions, and involves questions of fact, it is appropriate to determine that issue.
Trusts
There can be no finding of an express trust, because there was in evidence no instrument in writing evidencing such a trust, satisfying the requirements of section 23C of the Conveyancing Act 1919. No reliance was placed on implied or constructive trusts.
Instead, Mr Wilkinson argued that a resulting trust was to be inferred, for reasons similar to those expressed by the Tribunal in Daghero v Chief Commissioner of State Revenue (2010) NSWADT 119. In that case, the Miss Daghero and her father were registered proprietor's of his home as joint tenants. Each had provided a portion of the purchase price in unequal shares. The Tribunal applied the presumption, enunciated by the High Court in Calverley v Green (1984) 155 CLR 242, that in those circumstances the joint tenants were presumed to hold their shares on trust for themselves in the proportion in which they had contributed to the purchase price. However, by reason of their mutual arrangement at the time of purchase, the Tribunal was satisfied that the presumption was rebutted, and that the common intention was for Miss Daghero to hold her share on trust entirely for her father.
In Calverley v Green , a couple living in a de facto relationship had jointly purchased a home at Baulkham Hills in Sydney. Mr Calverley provided the entire deposit of $9,250. He and Ms Green had jointly borrowed the balance of the purchase price in the sum of $18,000, and granted a mortgage over the house as security for the loan. They purchased the property and borrowed the balance of the purchase price in their joint names, only to satisfy the requirements of their lenders. They intended that all repayments of principal and interest should be made by Mr Calverley, as they were.
The High Court found that Ms Green had provided the sum of $9,000, being one half of the moneys borrowed, notwithstanding that Mr Calverley ultimately made all the repayments. Gibbs CJ held [at 268]:
'The amount of $18,000 borrowed under the mortgage was provided equally by the parties, for its was lent to them jointly, on terms which made them jointly and severally liable for its repayment, and, having thus been borrowed, was applied by them in part payment of the purchase price.'
He continued [at 258]:
'The extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created. The fact that the mortgage debt was repaid by [Mr Calverley] is therefore not relevant in determining the extent of the interests of the parties in the land, although it may be relevant on an equitable accounting between the parties. The parties each contributed $9,000 of the amount borrowed, and it appears that the remainder of the price, $9,250, was provided by [Mr Calverley] ... If [Mr Calverley] did provide the whole of the deposit, [Ms Green's] proportionate interest in the land was 9,000/27,250.'
Gibbs CJ expressed the equitable presumption in favour of a resulting trust as follows [at 246]:
'Consistently with these principles it has been held that if two persons have contributed the purchase money in unequal shares, and the property is purchased in their joint names, there is, again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money: Robinson v Preston (15); Ingram v Ingram (16) and Crisp v Mullings (17) ( a decision of the English Court of Appeal).'
Mason and Brennan JJ likewise held [at 258]:
'When two or more purchasers contribute to the purchase of property and the property is conveyed to them as joint tenants the equitable presumption is that they hold the legal estate in trust for themselves as tenants in common in shares proportionate to their contributions unless their contributions are equal ...'
Gibbs CJ continued [at 251]:
'However, both the presumption of advancement, and the presumption of a resulting trust, may be rebutted by evidence of the actual intention of the purchaser at the time of the purchase: see Charles Marshall Pty Ltd v Grimsley (47). Where one person alone has provided the purchase money it is her or his intention alone that has to be ascertained. In the present case however, both purchasers contributed the purchase money. ... Where there are two purchasers, who have contributed unequal proportions, but have taken the purchase in their joint names, the intentions of both are material. Even if the parties had no common intention, the intentions of each may be proved, for the purpose of proving or negating that one intended to make a gift to the other.'
Similarly, Mason and Brennan JJ held [at 262]:
'The Court of Appeal correctly took the time of the acquisition of the Baulkham Hills property as the material time for determining the beneficial interests of the parties. The evidentiary material from which the court might have drawn an inference as to the intention of the parties include their acts and declarations before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction.'
Deane J held [at 269]:
'In these circumstances, the starting point for the determination of the extent of the respective beneficial interests of Mr Calverley and Miss Green in the Baulkham Hills property was a presumption that the property was held upon resulting trust for them according to their respective contributions to the purchase price. That presumption could be rebutted or qualified by admissible evidence which indicated either that Miss Green was intended to have a full half beneficial interest in the property or that Mr Calverley was intended to have the whole beneficial interest.'
In the absence of any evidence of a contrary intention, the High Court found that the presumption in favour of a resulting trust prevailed, and the parties held their interests as joint tenants on trust for themselves as tenants in common, in shares equal to their respective contributions to the purchase price. The principles in Calverley v Green were affirmed by the High Court in Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278, and applied by the Supreme Court of NSW in Buffrey v Buffrey [2006] NSWCSC 1349, in which the Supreme Court considered whether the presumption of a resulting trust had been rebutted by an alleged intention of a husband to confer a greater beneficial interest on his wife in an investment property than the proportion in which she had contributed to its purchase price.
In the present case, Mr Wilkinson and his sister had contributed to the purchase price in unequal shares. Mr Wilkinson provided most of the deposit, even though the two had borrowed (and thus provided) the balance of the purchase moneys in equal shares. They are presumed to hold their shares in trust for themselves in the proportions in which each contributed to the purchase price.
However, I am satisfied that, at the time of purchase, the two had a common intention to the contrary, expressed in the form of their mutual agreement described above. Though the term 'trust' formed no part of that arrangement, it was in substance an agreement that Nicole would be the true owner of the property, that Mr Wilkinson's acquisition of the legal estate - as evidenced by his registration on title - would be no more than an act to satisfy the prudential requirements of the bank, and that on sale of the property, the only benefit that he would derive was repayment of any amounts outstanding to him, which he had expended on the purchase or on loan maintenance. The stipulations that he would not share in the proceeds of any capital appreciation, or otherwise benefit from ownership or occupation of the house, are compelling evidence that this was their mutual intention.
This arrangement differed from that in Daghero's case . In that case, Miss Daghero agreed to transfer her interest to her father when he had discharged the loan and mortgage over the property. No such express agreement was in evidence before me, though I am satisfied that, in all the circumstances, such an intention may be inferred, subject only to Miss Wilkinson discharging her obligations to repay her brother. Even without such an inference, I would be satisfied that it was their mutual intention that Nicole be the true owner, and that a resulting trust should be inferred.
In those circumstances, I am satisfied that it was the common intention of Mr Wilkinson and his sister that he would hold his share as registered proprietor on trust for his sister. For that reason, I am satisfied that a trust resulted from the purchase of the Umina property.
However, the fact that Mr Wilkinson held his interest on resulting trust does not overcome the finding that he was ' a party to an earlier application [for a grant] under this Act', within the meaning of section 10(1) of the First Home Owner Grant Act 2000. The fact that he was an applicant, coupled with the fact that the grant was paid, renders him ineligible for a further grant, whether or not the purchase for which the grant was paid resulted in his holding his share on trust for his sister.
Estoppel
It remains to determine whether the Chief Commissioner is estopped or otherwise prevented from relying on section 10, because he gave Mr Wilkinson incorrect advice in 2006 and again in 2009, in reliance on which Mr Wilkinson applied for the grant in 2006 and purchased the Umina property, and purchased the Lane Cove property in 2009 respectively.
For the reasons given, the Tribunal is not satisfied that in 2006 Mrs Wilkinson advised the office of State Revenue that her son would be a registered proprietor of the Umina property. It is satisfied that she sought advice by telephone on two occasions, but it cannot be certain of the contents of either conversation. On the balance of probabilities, it is satisfied that Mrs Wilkinson informed the relevant officers that her son was intending to provide financial assistance on the purchase by his sister. It is also satisfied that she was advised that this would not prejudice any later application for a grant, provided he did not live in the property.
So far as it went, that advice was not misleading.
For reasons also given above, the Tribunal is not satisfied that in 2009 Mr Wilkinson told an officer of the Office of State Revenue that he was a registered proprietor of residential property, or that he was advised that this would not prejudice his application for a further grant. Though it has not found that a conversation did not take place in 2009, it is not satisfied that one did take place, nor is it satisfied of the terms of any such conversation, if it did take place.
In any event, the giving of incorrect advice or information to a taxpayer by a taxation authority does not estop or otherwise prevent that authority from administering the taxing statues in accordance with their terms: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; Federal Commissioner of Taxation v ANZ Savings Bank Ltd (1994) 181 CLR 466; Federal Commissioner of Taxation v Ryan (2000) 168 ALR 704; AGC (Investments) Ltd v FC of T 91 ATC 4180; Stature Pty Limited v Chief Commissioner of State Revenue [2002] NSWADT 271; Chief Commissioner of State Revenue v Aldridge & Anor [2003] NSWADTAP 50.
Even if the Office of State Revenue did give incorrect oral advice to Mr Wilkinson in 2006 or 2009 or both, and he relied on that advice in contracting to purchase the Umina and Lane Cove properties, and in applying for the grant on both occasions, the Commissioner would not be prevented from administering the First Home Owner Grant 2000 in accordance with its terms. Nor would he be empowered to disregard the exclusionary provisions of section 10 which, on the facts of this case, render Mr Wilkinson ineligible for the grant.
For those reasons, the issues are determined as follows.
(1) The Tribunal is not satisfied that, in 2006, the Office of State Revenue advised Mr Wilkinson, through his mother, that his being on a title of the Umina property would not disentitle him to a later grant.
(2) It is satisfied that the advice given to his mother was not misleading - namely, that his assisting in financing the purchase of the Umina property would not disentitle him to a grant in future, provided he did not reside in the property.
(3) It is satisfied that he relied on this advice in deciding to apply for the grant in 2006, to purchase the property with his sister, and to undertake loan obligations for that purpose.
(4) Even if the advice given by the Chief Commissioner to Mrs Wilkinson had been misleading, he would neither be prevented from applying the criterion in section 10 of the Act, nor entitled to pay the grant in circumstances where - as here - the applicant had already applied for a grant, and the grant had been paid.
(5) Mr Wilkinson's interest in the Umina property was held on resulting trust for his sister, Nicole.
(6) Even if Mr Wilkinson's interest in the Umina property was held on trust for his sister, it does not follow that he received no personal benefit from the grant in 2006. In any event, the Tribunal is satisfied that he did derive a benefit - namely, assistance for his sister in the purchase of a home.
(7) Even if - contrary to the Tribunal's view - he did not benefit from the grant, that circumstance would neither prevent the Chief Commissioner from applying the criterion in section 10 of the Act, nor entitle him to pay the grant in circumstances where - as here - the applicant had already applied for a grant, and the grant had been paid.
It follows that the decision of the Chief Commissioner was correct. His decision to decline Mr Wilkinson's application for the First Home Owner Grant is confirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
Decision last updated: 26 May 2011
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