Wilkinson v Commissioner for Act Revenue (Administrative Review)
[2016] ACAT 20
•16 March 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WILKINSON v COMMISSIONER FOR ACT REVENUE
(Administrative Review) [2016] ACAT 20
AT 53/2015 and AT 54/2015
Catchwords: ADMINISTRATIVE REVIEW – Home Buyer Concession and First Home Owner Grant – eligibility– relevant date for eligibility assessment – applicant ineligible due to circumstances of a domestic partner – residency condition met – taxpayer did not exercise reasonable care and did not have reasonable excuse – statutory interest and 50% penalty tax appropriate – interest payable under Home Buyer Concession decision is not a reviewable decision – circumstances of the applicant are not exceptional
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Duties Act 1999 ss 7, 8, 11, 16, 16A
First Home Owner Grant Act 2000 ss 10, 12, 21, 26, 47, 48, 49
Legislation Act 2000 s 169
Taxation Administration Act 1999 ss 9, 25, 26, 30, 31, 37, 101, 107A, 108, sch 1
Subordinate
Legislation:Taxation Administration (Amounts payable – Eligibility – Home Buyer Concession Scheme) Determination 2008 (no 1) (D12008-76), cl 3, 4, 5
Cases cited:Belconnen Premier Inn Pty Ltd v Commissioner for ACT Revenue (Administrative Review) [2014] ACAT 68
Bray v Commissioner for ACT Revenue [2007] ACTAAT 15
Bullivant v Holt [2012] FamCA 134
Hay v Commissioner for ACT Revenue (Administrative Review) [2014] ACAT 23
Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner for ACT Revenue (Administrative Review) [2015] ACAT 3Jokhan and Jokhan v Commissioner for ACT Revenue [2012] ACAT 15
Kahlia Boyd v Belconnen Concrete Pty Ltd ATF Spinelli Trust Fund [2013] ACTMC 10
Lynam v Director-General of Social Security (1983) 1 AAR 197
Phillip and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135Photo Corporation of Australia Pty Ltd v Commissioner for ACT Revenue [1994] ACTAAT 91
Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) FCAFC 26
RVO Enterprises Pty Ltd v Chief Commissioner of State Revenue [2004] NSWADT 64
Scott and Anor v Commissioner of ACT Revenue (Administrative Review) [2013] ACAT 73
Stanford v Stanford [2012] HCA 52
Steele v Commissioner for ACT Revenue (Administrative Review) [2010] ACAT 15Theron v Commissioner for ACT Revenue [2013] ACAT 33
Touma v Chief Commissioner of State Revenue (NSW) [2012] NSWADT 2Wade & Tan v Commissioner for ACT Revenue (Administrative Review) [2014] ACAT 79
Tribunal: Senior Member L Beacroft
Date of Orders: 18 March 2016
Date of Reasons for Decision: 18 March 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 53/15 and 54/15
BETWEEN:
NICHOLAS WILKINSON
Applicant
AND:
COMMISSIONER FOR ACT REVENUE
Respondent
TRIBUNAL: Senior Member L Beacroft
DATE: 18 March 2016
ORDER
The Tribunal Orders that:
The decision dated 9 July 2015 about the Home Buyer Concession reassessment is confirmed.
The decision dated 9 July 2015 about the First Home Owner Grant reversal is confirmed.
………………………………..
Senior Member L Beacroft
REASONS FOR DECISION
Background
The applicant, Mr Nicholas Wilkinson, purchased a property (Unit 101 Block 16-19 Section 109 Bruce) (‘the Bruce property’). He received a Home Buyers Concession (‘HBC’) on duty otherwise payable on the purchase under the Duties Act1999 (‘the Duties Act’) and a Determination[1] (‘the HBC Determination’) under the Taxation Administration Act1999 (‘TA Act’). As a result he paid significantly reduced duty of $20. He also was granted a First Home Owner Grant (‘FHOG’) under the First Home Owner Grant Act2000 (FHOG Act) of $21,000. The Commissioner for ACT Revenue (‘the respondent’ or ‘the Commissioner’) administers the legislation for the HBC and FHOG in the ACT.
[1] Taxation Administration (Amounts payable – Eligibility – Home Buyer Concession Scheme) Determination 2008 (no 1) (D12008-76)
The matter is essentially a dispute about whether the applicant was eligible for and met conditions for the HBC and FHOG. If he was not eligible and/or did not meet conditions, there was also a dispute about the appropriate interest and penalty tax that should be imposed.
Assessment and Objection
Following an investigation by the Commissioner, on 4 February 2015 the Commissioner notified the applicant that the FHOG was reversed[2], and that the FHOG was repayable with interest and penalty tax, totalling $42,114.74 ($10,614.74 interest[3] and $10,500 penalty tax at the rate of 50%[4]). It needs to be noted that the Commissioner’s decision about the most appropriate penalty in regard to the FHOG reviewable decision was not based on a finding of dishonesty under section 47(2) of the FHOG Act.[5]
[2] In the proceedings before the Tribunal the Commissioner advised that the reversal was under section 21(2) of the FHOG Act, which reflected what was stated in the Notification of Decision dated 4 February 2015 (page 6, Respondent’s Statement of Facts and Contention’s dated 29 October 2015; T750-751); however in the Reasons the Objection Officer noted that “ it is not obvious what the ‘notice…’ would be”, and concluded that a better approach “is that the FHOG reversal was made under s47(1)(b) FHOG Act” (page 10, Reasons dated 9 July 2015)
[3] In the proceedings before the Tribunal the Commissioner advised that the interest was imposed under s48 (2) FHOG Act, and the Notice states that the interest is imposed under section 48 of the FHOG Act (page 8, Respondent’s Statement of Facts and Contention’s dated 29 October 2015; T750-751); however in the Reasons the Objection Officer stated that it was imposed under s48(3)(c) FHOG Act (page 10-11, Reasons dated 9 July 2015)
[4] In the Reasons the Objection Officer noted that “in the objection it is assumed that the penalty [of 50%] is imposed because of …[the applicant’s] dishonesty provided for in s47(2), but this was not the case” (page 9, Reasons dated 9 July 2015). The Notice sent to the applicant stated that the penalty had been imposed under s47(3) FHOG Act, which is confirmed in the Respondent’s Statement of Facts and Contentions (T750-751; page 8, Respondent’s Statement of Facts and Contention’s dated 29 October 2015)
[5] Refer to footnote 4 above
On the 4 February 2015 the applicant was also notified of a reassessment of his HBC,[6] with the reassessment totalling $21,392.46 ($6,141.21 interest[7] and $5,083.75 penalty tax at the rate of 50%).[8]
[6] Section 9 of the TA Act
[7] Sections 25-26 of the TA Act
[8] Sections 30-31 of the TA Act
On 6 August 2015 the applicant applied to the Tribunal for review of two determinations by the Commissioner both dated 9 July 2015 (‘the reviewable decisions’). The two determinations disallowed two objections by the applicant in regard to the assessment of the HBC, (AT/53, Objection 3792, the HBC reviewable decision) and the reversal of the FHOG (AT/54, Objection 3793, the FHOG reviewable decision).
The Hearing
A hearing was held on 18 November 2015 and finalised on 8 December 2015. The applicant was represented by My Rory Markham, Boettcher Law. Ms Katavic appeared for the respondent, instructed by Ms Mohindra of the ACT Government Solicitor.
Prior to the hearing, the parties lodged and exchanged a number of statements of facts and contentions and lists of the authorities on which the parties relied. The Commissioner prepared a folder of relevant documents which are known as the T-Docs.
On the date of the hearing the Tribunal heard sworn evidence from both applicants, the alleged domestic partner of the applicant (Ms E) and relatives of the applicant and Ms E, including the applicant’s father Mr W. The Tribunal accepted various material submitted by the applicant as follows:
Exhibit A1: Contract for Sale of the Bruce property by the Applicant, dated 6 November 2015
Exhibit A2: Documents relevant to the Applicant’s submissions about his length of residency in the Bruce property
Facts were agreed as follows:
(a)If the applicant on the relevant date for the HBC was in a domestic partnership with Ms E, then he was not eligible for the HBC since Ms E in fact owned another property other than the Bruce property (contrary to section 5(c) of the HBC Determination).[9]
(b)If the applicant on the relevant date for FHOG was in a domestic partnership with Ms E, then he was not eligible for the FHOG since Ms E in fact had received an earlier FHOG grant (contrary to criteria 3, section 10(1) of the FHOG Act).[10]
(c)The relevant date for the HBC was the date of the applicant’s contract for the Bruce property, 28 October 2008.[11]
[9] Page 2, applicant’s letter to Commissioner dated 2 April 2015
[10] Oral evidence of Ms E, 18 November 2015; T193
[11] Email submission from the applicant dated 17 February 2015; email submission from the respondent dated 17 February 2015
The three contested issues are set out below:
(a)Relevant to the applicant’s eligibility for the HBC (AT53/15), was the applicant in a domestic partnership on the relevant date, and did he meet the residency condition?
(b)Relevant to the applicant’s eligibility for the FHOG (AT54/15), was the applicant in a domestic partnership on the relevant date, and did he meet the residency condition?
(c)If the applicant was ineligible and/or did not meet condition/s, are the penalties and interest, where reviewable, appropriate in his circumstances?
Legislative Frameworks for the Reviewable Decisions
The legislation relevant to the two reviewable decisions differs in some respects and is summarised below (see extracts of relevant legislation and the HBC Determination at end of these reasons).
The HBC reviewable decision (AT53/15) relates to the purchase by the applicant of a property off the plan, the Bruce property, for which he paid a significantly reduced duty. The applicant’s contract for the property dated 28 October 2008 constituted an agreement to transfer under the HBC Determination which applied at that time[12], and the liability for any duty arose when the agreement for sale was entered into.[13] The applicant lodged the contract and various forms including the application for the HBC with the Commissioner on 4 November 2009, the Commissioner then sought further information on 9 November 2009 and issued the reduced assessment of duty on 5 February 2010.
[12] Clause 3(2) of the HBC Determination
[13] While there was some inconsistency in the Commissioners evidence about the relevant date for the HBC (refer to footnote 18 below), during the proceedings the relevant date for the HBC matter was advised by the Respondent to be 28 October 2008 (refer to sections 7(1)(b)(i), 11 and section 8, item 1, table 8 Duties Act 1999 cited on page 6 of the Respondent’s Statement of Facts and Contentions dated 29 October 2015)
A range of eligibility criteria applied including criteria concerning residency of the Bruce property and ‘domestic partners’.[14] Domestic partner is defined in the Determination[15] with reference to indicators set out in the Legislation Act2001 (‘Legislation Act’).[16]
[14] Clauses 5 (1)(b)(i) and 5(1)(c) of the HBC Determination respectively
[15] Clause 4 of the HBC Determination
[16] Section 169 of the Legislation Act 2001
The HBC reviewable decision relates to a decision by the Commissioner to reassess the duty for the Bruce property on the basis that the applicant did not meet eligibility criteria, due to his being in a domestic partnership on the relevant date. During the proceedings the Commissioner further contended that the reviewable decision for HBC were justified since the applicant had not met the residency condition for the HBC, being to reside in it for a minimum of six months.[17]
[17] Page 8 Respondent’s Facts and Contentions dated 29 October 2015; T139, HBC Reassessment dated 5 February 2010
Despite various dates being presented by both parties as the relevant date over the history of the HBC matter[18], at the hearing the parties agreed that the relevant date for eligibility for the HBC was 28 October 2008 (refer to paragraph 9 above).
[18] Refer to page 1, Applicant’s Statement of Facts and Contentions, dated 6 October 2015 where relevant date is proposed to be 9 November 2009 and see also page 5, Respondent’s Reasons dated 9 July 2015 where it is acknowledged that prior documents issued by the Commissioner indicated that the relevant date was 4 November 2009
Failure of the taxpayer to pay duties by the time prescribed by legislation[19] is treated as a tax default under the TAA.[20] The amount of penalty tax is payable at a statutory rate depending on the circumstances of the default,[21] and in some circumstances is not payable,[22] can be reduced,[23] and/or can be remitted.[24]
[19] In this case, being a purchase off the plan, see sections 16A(1)(c)(ii) and 16A(2)(a) of the Duties Act 1999 set out the time to pay
[20] Section 16 of the Duties Act 1999
[21] Section 31 of the TA Act
[22] Section 31(6) of the TA Act
[23] Sections 31(3), 32, 33 of the TA Act
[24] Section 37 of the TA Act
For unpaid duties, the default rate of penalty tax is 25%[25] of the unpaid tax. The Commissioner can increase the rate to various higher levels depending on the circumstances. In this case, in the HBC reviewable decision the Commissioner imposed a 50% rate of penalty tax, which applies if the default was “caused wholly or partly by a failure by the taxpayer…to take reasonable care.”[26] This rate applies unless there is a ‘reasonable excuse’,[27] the tax default “happened solely because of circumstances beyond the taxpayer’s control”[28] or the penalty tax is remitted.[29]
[25] Section 31(1) of the TA Act
[26] Section 31(2) of the TA Act
[27] Section 31(3) of the TA Act
[28] Section 31(6)(b) of the TA Act
[29] Section 37 of the TA Act
The amount of interest payable for a tax default is set out in the legislation.[30] For the HBC reviewable decision, the Commissioner can remit all or part of the interest in certain circumstances,[31] however the Commissioner did not remit the interest in this case.
[30] Section 26 of the TA Act
[31] Section 37 of the TA Act
The FHOG reviewable decision (AT54/2015) relates also to the purchase of the Bruce property. However the FHOG reviewable decision was made in a legal framework that differs in some respects to that of the HBC reviewable decision, as summarised below.
The FHOG application was dated 4 June 2010, completed and lodged with the Commissioner on 7 July 2010[32] and a letter dated 19 July 2010 notified the applicant of the FHOG payment in the sum of $21,000.[33] The FHOG was subject to certain eligibility criteria, including one related to whether any domestic partner had received a FHOG.[34] The FHOG was made on certain conditions, including one that related to minimum residency at the Bruce property.[35]
[32] T141-156
[33] T166
[34] Criteria 3, sections 6 and 10(1) of the FHOG Act; T166
[35] Section 21 of the FHOG and Criteria 5, section 12 of the FHOG Act; T166
The Commissioner later reversed the FHOG grant decision[36] upon re-considering the applicant’s eligibility in regard to the criteria about a domestic partner.[37] The Commissioner imposed a penalty of 50% of the FHOG and also statutory interest,[38] and declined to remit the interest given the circumstances.[39] During the proceedings the Commissioner further contended that the reviewable decision for FHOG was justified since the applicant had not met the six month residency condition for the FHOG.[40]
[36] Refer to footnote 2 above
[37] Criteria 3, sections 6 and 10(1) FHOG Act
[38] Sections 48 FHOG Act and section 26 of the TA Act
[39] Section 49(6) of the FHOG Act
[40] Criteria 5, section 12 of the FHOG Act; T166
The parties did not agree on the relevant date for assessing the applicant’s eligibility for the FHOG. The applicant contended it was 7 July 2010, the date that the application was completed and submitted by the applicant to the Commissioner. The Commissioner contended it was the 4 June 2010 which was the date that the applicant signed the FHOG application. Given the absence of agreement, both these dates are considered in this statement of reasons.[41]
Tribunal’s jurisdiction and powers
[41] Early in the proceedings the applicant proposed that the relevant date for the FHOG was 21 July 2010 (page 1, Applicant’s Statement of Facts and Contentions dated 6 October 2015), however the applicant’s final submission was that it was the date that the applicant completed and submitted the form, ie 7 July 2010 (email submission from the applicant dated 17 February 2015); likewise early in the proceedings the Commissioner said that that relevant date for FHOG was 7 July (refer to page 5, Reasons attached to letter disallowing Objection dated 9 July 2015, repeated page 7 Respondent’s Statement of Facts and Contentions dated 29 October 2015.), however the Commissioner’s final submission stated that the relevant date for FHOG was the date of the signed application for FHOG, 4 June 2010 (T154; email Submission from the respondent dated 17 February 2015)
The decisions being reviewed by the Tribunal are the two determinations made by the Commissioner to disallow two objections. The burden of showing that an objection should be sustained is with the taxpayer, the applicant in this case.[42] The Tribunal’s task in this case is to decide if the taxpayer has shown that the objections should be sustained.[43]
[42] Section 101(3) of the TA Act; 26(2) of the FHOG Act
[43] Rawson Finances Pty Ltd v Commissioner of Taxation (2013) FCAFC 26; Touma v Chief Commissioner of State Revenue [2012] NSWADT 2
The Tribunal may confirm, vary or set aside the decision being reviewed. In reviewing the decision about an objection, the Tribunal is not limited to the grounds in the objection.[44] If the decision is set aside, the Tribunal may make a substitute decision or remit the matter for decision back to the decision-maker in accordance with any directions or recommendations of the Tribunal.[45]
[44] Section 108B of the TAA
[45] Section 68 of the ACT Civil and Administrative Tribunal Act 2008
Where a taxpayer defaults, interest is payable, and may be remitted by the Commissioner. However, in regard to interest payable under the HBC reviewable decision, interest and any remittal of interest are not reviewable by the Tribunal.[46] In regard to the FHOG reviewable decision, interest is reviewable by the Tribunal.[47]
Applicant’s contentions
[46] Scott and Anor v Commissioner of ACT Revenue [2013] ACAT 73 at [11]; section 107A and schedule 1, item 1.2 of the TAA
[47] Section 49(6) and Division 2.6 of the FHOG Act
The applicant’s submissions on the three contested issues listed in paragraph 10 above are summarised below.
(a) Relevant to the applicant’s eligibility for the HBC, was the applicant in a domestic partnership on the relevant date, and did he meet the residency criteria?
The applicant contended that the applicant was not in a domestic partnership on the agreed relevant date for the HBC, being 28 October 2008.
The applicant argued that the Commissioner failed to “consider the balance of indicia” for a domestic partnership as set out in the Legislation Act, the Commissioner “has isolated certain factors, namely that the Applicant and the girlfriend of the Applicant lived together ... and appears to have made no genuine attempt to draw a composite picture.”[48]
[48] Page 4, Applicant’s Statement of Facts and Contentions dated 6 October 2015 citing Bray v Commissioner for ACT Revenue [2007] ACTAAT 15
The Applicant also argued that the Commissioner had relied on authority inappropriately (the case of Bullivant v Holt [2012] FamCA 134):
The reasons for decision seek to apply the test for domestic relationship only (not partnership), as set out in the decision of Bullivant & Holt …Whereas [the Bullivant and Holt judgement]…expressly states at paragraph 7 that the parties do not claim a domestic partnership.[49]
The applicant also disputed the relevance of an authority cited by the respondent, namely Phillip v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs[50], because it involves legislation other than that involved in this case. The applicant contended that unlike in the Phillip case, ‘pooling or subsidising of assets’ was not the test under section 169(2) of the Legislation Act[51] which is the relevant provision in this case.[52]
[49] Page 2, Applicant’s Application for Review of a Decision dated 6 August 2015 for HBC and FHOG reviewable decisions, referring to Bullivant v Holt [2012] FamCA 134
[50] Page 10, Respondent’s Statement of Facts and Contentions dated 29 October 2015 citing Phillip v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135 which was about whether a person was part of a couple for the purposes of the aged pension, under sections 4(2) and (3) Social Security Act1991 (Cth)
[51] See example 5
[52] Page 2, Applicant’s Response dated 4 November 2015
The applicant contended that the relationship was not a domestic partnership because it lacked “financial dependence, common property, mutual commitment to a shared life, shared domestic care, or public and social acceptance.”[53] The applicant provided further information during the Tribunal proceedings relevant to whether there was a domestic partnership. In particular, he provided information about ‘the length of the relationship’, whether they were living together ‘and ‘how long and under what circumstances they lived together’, ‘their degree of financial dependence’ and ‘the ownership, use and acquisition of their property’, ‘their degree of mutual commitment to a shared life’, ‘performance of household duties’ and ‘the reputation, and public aspects, of the relationship’.[54] The applicant’s contentions in regard to domestic partnership are summarised below.
[53] Page 8, Applicant’s Statement of Facts and Contentions dated 6 October 2015
[54] Pages 5 and 6, Applicant’s Statement of Facts and Contentions dated 6 October 2015
The applicant agreed that he and Ms E (referred to by the applicant as the girlfriend) had lived together in various properties, but they treated their arrangements up to the relevant dates as “shared accommodation.”[55] In their oral evidence the applicant and Ms E both said they had lived together since 2007, which is consistent with the written statement submitted by Ms E’s parents, dated 30 April 2015, and the applicant’s written statement, undated. However in Ms E’s written statement, undated, she said it was from April 2008. The applicant contended that information about the arrangements between the applicant and Ms E after the relevant dates for HBC and FHOG is irrelevant as the “dates of assessment are a point in time analysis and cannot be used to predict or colour the ‘composite picture’ of the relationship”.[56]
[55] Page 5, Applicant’s Statement of Facts and Contentions, dated 6 October 2015
[56] Page 3, Applicant’s Response dated 4 November 2015
From April to November 2010 Ms E was ill and this “forced her to move to her parent’s house for four days per week”, the applicant contended that they “were effectively living separated and the relationship was very unstable.”[57] During Ms E’s illness she “decided to return to her family home for domestic and care support from her parents”,[58] and there she had a “complete bedroom.”[59]
[57] Page 5, Applicant’s Statement of Facts and Contentions dated 6 October 2015
[58] Page 6, Applicant’s Submission dated 6 October 2015
[59] Page 2, Applicant’s Response dated 4 November 2015
At the relevant date the applicant and Ms E “had no financial dependence or interdependence”, as evidenced by “personal wills, binding superannuation nominations, and insurance details”, and they had separate bank accounts.[60] The applicant had only 6.2% of the benefit from the will of Ms E’s estate.[61]
[60] Page 5 and various Attachments to Applicant’s Statement of Facts and Contentions dated 6 October 2015
[61] Page 4, Applicant’s Response dated 4 November 2015
The applicant further submitted that the applicant or his father, Mr W, had provided the finance for his purchase of the Bruce property and also another property. The applicant contended that he alone was legally liable for the mortgage and Ms E was not involved in the applicant obtaining the mortgage and did not provide any financial support for the “ongoing mortgage expenses connected to the [Bruce] property.”[62] Ms E had merely witnessed the mortgage documents because she travelled with the applicant to a place nearer to his parents on the day they needed to be signed, 3 July 2010.[63] She paid rent to the applicant while residing at the Bruce property, starting on 15 July 2010 and concluding on 13 January 2011.[64] She paid for furniture for the Bruce property on a fifty-fifty basis.[65]
[62] Page 5 Applicant’s Statement of Facts and Contentions dated 6 October 2015
[63] T209
[64] T716; page 3 Applicant’s Response dated 4 November 2015
[65] Page 4, Applicant’s Response dated 4 November 2015; Ms E paid $4430 to the applicant for ‘furniture’, T244 NAB Statement
The applicant and Ms E entered a contract for purchase of a Braddon property on a “fifty-fifty basis” on 19 March 2010, and this was their only “shared ownership/acquisition of property.”[66] This property was purchased as joint owners, however the oral evidence provided by the applicant and Ms E at the hearing is that they didn’t understand the implications of this ownership. In any case the property was sold before settlement in 2014-15.
[66] Page 5, Applicant’s Statement of Facts and Contentions dated 6 October 2015
The applicant and Ms E “saw marriage as the moment when a relationship progressed into a domestic partnership”, and this “belief was based on their religious, social and family values.”[67] They expressed “no intention to live within a defacto relationship”, and this was “communicated to both family and friends.”[68] They did not rely on each other for the performance of household duties.
[67] Page 6, Applicant’s Statement of Facts and Contentions dated 6 October 2015
[68] Page 7, Applicant’s Statement of Facts and Contentions dated 6 October 2015
The applicant’s father, Mr W, in his oral evidence said that the applicant and Ms E jointly visited both families from time to time. He agreed that they travelled to Bathurst to visit the applicant’s father at times and they took turns in jointly attending Christmas events at each other’s family home. The applicant’s oral evidence confirmed that they went on holidays together, for example, a trip to Hawaii in late 2009 for a wedding, and also holidayed together in Kiama and Gerringong. Ms E said in her oral evidence that that she had a trip to Italy with her family and without the applicant in December 2009 to January 2010.[69]
[69] Oral evidence of Ms E, 18 November 2015
The applicant’s father, Mr W, in his oral evidence described the relationship between the applicant and Ms E, up until they announced their engagement in mid-June 2011, as “rocky.”[70] He gave oral evidence about an incident in mid-December 2009 where the applicant had come home to his then residence with Ms E and “smashed things up”, Ms E had rung the applicant’s father and advised him that she was going to her parent’s house.[71] The applicant gave oral evidence that following this incident he didn’t live with Ms E for one week, and there were conversations about ending the relationship.[72]
[70] Oral evidence applicant’s father, Mr W, 8 December 2015
[71] Oral evidence applicant’s father, Mr W, 8 December 2015
[72] Oral evidence Applicant, 18 November 2015
In regard to the condition for residency, the applicant contended that he moved into the Bruce property on the date of settlement, being 8 July 2010. He had difficulties with keys and had a locksmith fix the problem on 8 July 2010[73] and he took annual leave to undertake the move on 9 July 2010.[74] He opened an electricity account for the Bruce property in his and Ms E’s names on 30 July 2010.[75] The electricity for their previous accommodation ended on 19 August 2008[76] and the bond refund was dated 20 July 2010.[77] The applicant gave oral evidence that the electricity was on when he moved in on 8 July and couldn’t recall why the electricity at his previous residence was stopped in mid-August.[78] He took out insurance for the Bruce property in his name beginning on 13 July 2010.[79] He gave evidence that he then resided in the Bruce property with Ms E until 25 January 2011, a period exceeding six months.[80] A lease in his and Ms E’s names for his next residential property began on 18 January 2011, and they moved out of the Bruce property a week later.[81]
[73] Receipt Canberra Locksmiths dated 8 July 2010, Exhibit A2
[74] Page 1, Applicant’s Reply dated 4 November 2015; Exhibit A2
[75] T185, ACTEWAGL Electricity Account, Exhibit A2
[76] T203, ACTEWAGL Electricity Connection Search for O’Connor residence
[77] T214, Bond Refund Form for O’Connor residence
[78] Oral evidence Applicant, 18 November 2015
[79] NRMA Certificate Insurance 2010-2011 for the Bruce property, Exhibit A2
[80] Page 1, Applicant’s Reply dated 4 November 2015
[81] Residential Tenancy Agreement dated 18 January 2011 for the Applicant and Ms E, Exhibit A2
The applicant and Ms E confirmed that the applicant had continued to pay rent to Ms E for the property that they rented prior to the Bruce property until 22 July 2010.[82] They both suggested in their oral evidence these payments were likely to be a direct debit which the applicant omitted to stop. Ms E began to pay rent to the applicant for the Bruce property on 15 July 2010 and her final rent payment was on 13 January 2011.[83]
(b) Relevant to the applicant’s eligibility for the FHOG (AT 54/15), on the relevant date was the applicant in a domestic partnership?
[82] T661-663, Statement St George 111 for Ms E
[83] T716, Summary of St George Statements for Ms E
The applicant contended that the relevant date for the FHOG matter was 7 July 2010, as explained above. The applicant contended he was not in a domestic partnership as set out in paragraphs 27 to 38 above. He contended that he had met the residency requirement as set out in paragraphs 39 to 40 above.
(c) If the applicant is ineligible, are the penalties and interest where reviewable appropriate in his circumstances?
The applicant contended that he took reasonable care and was not dishonest. He contended that his view at the relevant dates that he was not in a domestic partnership was “reasonably open to him”.[84] In his oral evidence at the hearing the applicant said that he had checked the relevant website and read the criteria at the time he was applying for the HBC and FHOG and had not concluded he was ineligible. He had engaged legal professionals to assist with his purchase of the property and applications for HBC and FHOG. He couldn’t recall if he advised the legal professionals assisting him about the circumstances of his relationship with Ms E or what he was advised about the eligibility criteria by them. In his oral evidence, the applicant said he was a person who reads things that he signs. He provided no evidence from his legal professionals about what if anything they advised him about his eligibility for the HBC and FHOG.
[84] Page 8, Applicant’s Submission dated 6 October 2015
The applicant contended that:
No criticism can be made of the Applicant for any failure to provide information. The question put by way of letters from the Respondent dated 15 October 2014 concerning a domestic partnership was vague and not readily understood outside of legal training.[85]
Respondent’s Contentions
[85] Page 4, Applicant’s Submission dated 6 October 2015
The respondent’s submissions against the three issues listed in paragraph 10 above are summarised below.
(a) Relevant to the applicant’s eligibility for the HBC, was the applicant in a domestic partnership on the relevant date, and did he meet the residency criteria?
The respondent contended that at the time that the applicant entered in to the contract for sale of the Bruce property on 28 October 2008, when he lodged the HBC Application on 4 November 2009 and when he responded to the Commissioner’s queries on 9 November 2009, he did not meet the eligibility requirement in the Determination regarding domestic partnership (contrary to clause 5(c) of the Determination). He had a domestic partner, Ms E, and that domestic partner owned another property. During the proceedings the Commissioner also raised that the Applicant did not reside in the Bruce property for the required six months (contrary to clause 5(b) of the Determination).
In relation to the issue of whether the applicant was in a domestic partnership, the respondent contended that “the issue…is to be determined objectively and not based on how the applicant and [any partner]… viewed the relationship.”[86] Further the “composite”[87] picture of the applicant’s relationship on the relevant date is that the applicant was in a domestic partnership. Even a girlfriend and boyfriend residing together may constitute a domestic partnership.[88]
[86] Page 9, Respondent’s Statement of Facts and Contentions, dated 29 October 2015, citing Kahlia Boyd v Belconnen Concrete Pty Ltd ATF Spinelli Trust Fund [2013] ACTMC 10 at [10]
[87] Page 9, referring to section 169 of the Legislation Act and citing Bray v Commissioner for ACT Revenue [2007] ACTAA 15; Lynam v Director-General of Social Security (1983) 1 AAR 197 at 200
[88] Page 12 Respondent’s Statement of Facts and Contentions citing Kahlia Boyd v Belconnen Concrete Pty Ltd ATF Spinelli Trust Fund [2013] ACTMC 10
The respondent relied on authorities that considered the term domestic partnership and the indicia for domestic partnership[89] and also cases that considered other terms in other legislation which involved the same or similar indicia.[90]
[89] Bray v Commissioner for ACT Revenue [2007] ACTAA 15 which was a case about eligibility for a FHOG in the ACT under the FHOG Act
[90] Kahlia Boyd v Belconnen Concrete Pty Ltd ATF Spinelli Trust Fund [2013] ACTMC 10, which was a case about eligibility as a dependent, a term that included being a domestic partner, under section 77 of the Workers Compensation Act 1951 (ACT); Bullivant v Holt [2012] FamCA 134, which was a case about a domestic relationship, a term that included domestic partnership, under section 3 of the Domestic Relationships Act1994 (ACT); Phillip v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135, which was a case about whether a person was part of a couple for the purposes of the aged pension, under sections 4(2) and (3) of the Social Security Act 1991 (Cth)
The respondent contended that the applicant and Ms E were in a continuous domestic partnership since 2007. They began to live together in Ms E’s then Braddon property in 2007-08. They were in a sexual relationship which was exclusive. From August 2008 they rented jointly and resided in an O’Connor property, after which they resided together in the Bruce property. From early 2011 they resided together in a Watson property. Since 2008, on a number of occasions they “relocated residences together without interruption.”[91] The relevant date for the HBC reviewable decision, 28 October 2008, occurred when the applicant had moved with Ms E into the O’Connor property and it was a one bedroom unit.[92]
[91] Page 12 Respondent’s Statement of Facts and Contentions dated 29 October 2015
[92] Page 10, Respondent’s Statement of Facts and Contentions dated 29 October 2015
When Ms E was ill from April to November 2010, she did not reside exclusively away from the applicant, and in her oral evidence she and the applicant confirmed that she took limited personal property for the days she was away. This illness and related circumstances did not change the nature of the domestic partnership[93], and during the period of her illness the applicant and she relocated together from O’Connor to the Bruce property.[94] She travelled with the applicant to a regional center, signing the mortgage document for the Bruce property as a witness on 3 July 2010.[95] The respondent contended that this line of argument is also relevant to the incident where the applicant and Ms E lived apart for one week in late 2009 - this incident did not change the legal nature of the domestic partnership.
[93] Bray v Commissioner for ACT Revenue [2007] ACTAAT 15 at [60]
[94] Page 10, Respondent’s Statement of Facts and Contentions, dated 29 October 2015
[95] T209
The respondent contended that the applicant and his partner had a degree of financial dependence, by jointly meeting rent, household expenses and the mutual benefit of living together. The respondent contended that maintaining separate bank accounts and other separate financial and estate arrangements as set out by the applicant did not preclude there being a degree of financial dependence or interdependence.
The respondent contended that the applicant and his partner had arrangements with property consistent with a domestic partnership, for eg they entered into a contract to purchase a Braddon property on 19 March 2010 as joint tenants and they purchased furniture for joint use. His partner “made provision for the applicant in her Last Will and Testament dated 26 August 2009”, and on “14 October 2010 Mrs Wilkinson nominated the applicant as 60% beneficiary of death benefit direction.”[96]
[96] Page 12 Respondent’s Statement of Facts and Contentions dated 29 October 2015
In regard to the residency requirement, the respondent contended that the applicant resided in the Bruce property from 30 July 2010 to 25 January 2011.[97] The respondent argued that the date that the arrangements for electricity at the Bruce property[98] and the previous residence,[99] and his continuing to pay rent to his partner for the previous property to mid-July, provided evidence that the applicant began to reside in the Bruce property on 30 July 2010. The date of the lease for the next residence, 18 January 2011,[100] and the cancelling of electricity for the Bruce property on 25 January 2011,[101] provided evidence that the applicant was not residing in the Bruce property from 25 January or earlier.
(b) Relevant to the applicant’s eligibility for the FHOG (AT54/2015), on the relevant date was the applicant in a domestic partnership?
[97] Page 8 Respondent’s Statement of Facts and Contentions (FHOG Decision) dated 29 October 2015
[98] T185, ACTEWAGL Electricity Connection Search Bruce property
[99] T203, ACTEWAGL Electricity Connection Search O’Connor property
[100] Exhibit A2
[101] T185
The respondent contended that the relevant date for the FHOG reviewable decision was 4 June 2010, as explained above (refer to paragraph 22). The Commissioner contended that the applicant was in a domestic relationship on this date for the reasons summarised in paragraphs 45 to 51 above.
In regard to the residency requirement, the respondent contended that the applicant resided in the Bruce property from 30 July to 25 January[102] which was less than the required six months for the FHOG, as set out in paragraph 52 above.
(c) If the applicant is ineligible, are the penalties and interest, where reviewable, appropriate in his circumstances?
[102] Page 8, Respondent’s Statement of Facts and Contentions (FHOG Decision) dated 29 October 2015
The respondent cited various authorities in support of the contention that there is a positive obligation on the taxpayer to make enquiries about their tax liabilities and there is no positive obligation on the Commissioner to do so.[103] Ignorance and oversight by the taxpayer does not justify a reduction in interest and/or penalty tax.[104] This obligation remained with the taxpayer even where they engaged third parties to assist them eg lawyers or paralegals.[105]
[103] Steele v Commissioner for ACT Revenue (Administrative Review) [2010] ACAT 15
[104] Steele v Commissioner for ACT Revenue (Administrative Review) [2010] ACAT 15
[105] Steele v Commissioner for ACT Revenue (Administrative Review) [2010] ACAT 15; Jokhan and Jokhan v Commissioner for ACT Revenue [2012] ACAT 15
The respondent contended that the applicant failed to take reasonable care and had no reasonable excuse. The circumstances of his relationship and the information available to him, for example on websites he perused and also information available to him as he undertook the application processes, should have caused him to make proper enquiries. The Objection Officer in the Reasons stated:
…it would have been prudent for him or his legal representative at the time of application to make an enquiry with this Office as to its view of his relationship.[106]
[106] Page 9, Reasons (FHOG) dated 9 July 2015, and a similar statement is made in Reasons (HBC) dated 9 July 2015
The respondent raised that the applicant had made declarations, that is, in regard to HBC on 4 November 2009 in an application form and in regard to FHOG in an application lodged 7 July 2010.[107] The FHOG application form had a question “do you have a partner” and the applicant answered “no”.[108] In regard to the FHOG Application, the respondent contended that the applicant’s answer to the question in the FHOG Application about whether he had a partner and also the declaration in Item 9 about having read, understood and accepted the eligibility criteria etc were “not true and correct.”[109]
[107] Pages 2-4 Respondent’s Statement of Facts and Contentions (FHOG Decision) dated 29 October 2015: TT141-165 (FHOG) and T121-123 (HBC)
[108] Page 4 Respondent’s Statement of Facts and Contentions(FHOG Decision) dated 29 October 2015; T151
[109] T141-165
FHOG penalties under section 47(3) of the FHOG Act may be imposed up to a rate of 100%. The respondent contended that both the circumstances to trigger imposition of a penalty are enlivened ie fails to repay as required and to meet a condition of the grant (section 47(3) of the FHOG Act).[110] The Commissioner contended that it was appropriate for the Commissioner to use the scale for penalties set out in the TA Act as a guide to the penalties to be applied in this case for the FHOG matter.
[110] Pages 12 Respondent’s Statement of Facts and Contentions (FHOG Decision) dated 29 October 2015 and refer to footnote 4
The respondent submitted that the applicants did not have circumstances to justify a reduction or remittal of the penalty tax and it would not be fair and reasonable to do so.
Findings and Decision
(a) Relevant to the applicant’s eligibility for the HBC, was the applicant in a domestic partnership on the relevant date, and did he meet the residency criteria?
Considering all the evidence and the composite picture that emerges about the nature of the relationship between the applicant and Ms E, the Tribunal finds that the applicant was in a domestic partnership on the HBC relevant date, being 28 October 2008. At that date he and Ms E shared a one bedroom residence and they had moved together there from a previous residence they had resided in together. They had resided together since at least April 2008 ie 6 months, with the weight of evidence provided by the applicant being that they resided at Ms E’s Braddon property from an earlier date (refer to paragraph 31 above), by the HBC relevant date. They visited their respective families as a couple and were in an exclusive sexual relationship. The Tribunal notes that the test for a domestic partnership is an objective test and not determined by the views of the applicant or his domestic partner (refer to paragraph 46 above).
While the relevant date for the HBC is 28 October 2008, circumstances of the relationship after that date can be relevant to understanding the nature of the relationship on the relevant date; if it were otherwise applicants for the HBC could appear to meet the criteria for not being in a domestic partnership on the relevant date and then change their circumstances, even marry, the day after the relevant date with no effect on their eligibility. The Tribunal rejects the contention of the applicant that circumstances after the relevant date are never relevant (refer to paragraph 31 above). The relevance of matters after the relevant date is reinforced in this case by the fact that the applicant finalised and submitted his documentation for the HBC on 4 November 2009, including writing N/A (not applicable) against the box for the name of a domestic partner.[111]
[111] T121
On this basis the Tribunal accepts the relevance of the matters raised by the Commissioner in paragraphs 45 to 51 above. In summary, in this case within ten months of the HBC relevant date, Ms E made provision for the applicant in her will and an international holiday was planned together which occurred in late 2009. By March 2010 the applicant had discussed and raised sufficient finance within the family in order to purchase another property as joint tenants with Ms E. I do not accept that the applicant and Ms E were ignorant of the nature of joint tenancy ownership, given their professions and experience to that date of property.
The authorities relied on by the respondent in considering whether a domestic partnership existed are appropriate (refer to paragraph 47 above). As Walker CM said in the Boyd case:
there is significant guidance in the case law as to the approach to be taken to determination of the existence of a domestic partnership. While some caution needs to be exercised in relation to different legislative provisions, the concept, or its like, it is considered in various contexts, including Social Security Act 1991 applications, defacto relationship applications under the Family Law Act 1975, as well as workers compensation jurisdictions throughout the country.[112]
[112] Kahlia Boyd v Belconnen Concrete Pty Ltd ATF Spinelli Trust Fund [2013] ACTMC 10 at [9]
The Tribunal finds that the applicant’s and Ms E’s financial affairs were interdependent, since they were continuously living together in one bedroom residences without other persons from 2007-08 and benefitted from the sharing of resources achieved by couples, and for the other reasons set out by the Commissioner in paragraphs 48, 50 to 51 above. The Tribunal notes that the arrangements for money to be paid to each other for what the applicant and Ms E characterised as ‘rent’ were not tight. Ms E continued to receive a payment from the applicant for a time after they moved into the Bruce property and Ms E stopped her payment to the applicant for a time before they moved out of the Bruce property (refer to paragraphs 34 and 40 above) – the Tribunal finds this is indicative of financial interdependence and their relationship not being one of shared accommodation.
In regard to residency the Tribunal accepts the contentions of the applicant and finds that he did meet the condition of residing in the Bruce property for a minimum of six months.
(b) Relevant to the applicant’s eligibility for the FHOG, was the applicant in a domestic partnership on the relevant date, and did he meet the residency criteria?
The Tribunal finds that the applicant was in a domestic partnership on both of the different dates contended by the parties to be the relevant FHOG dates, namely 4 June 2010 and 7 July 2010 (refer to paragraph 22 above). The Tribunal accepts the contentions of the respondent at paragraphs 45 to 51 in this regard. The evidence that the applicant was in a domestic partnership on these date is stronger than that for the HBC, indeed overwhelming, due to the longer term of the relationship; by June/July 2010 they were contemplating another move together into the Bruce property, the joint purchase of furniture, and opening of more joint utility accounts.
The Tribunal accepts the contentions of the respondent in regard to the period of illness experienced by Ms E and the incident that occurred at the end of 2009 (refer to paragraph 49 above). The Tribunal notes the authority about involuntary or temporary separation not necessarily ending a marriage-like relationship.[113] During her illness Ms E was so much part of the applicant’s life that she travelled with him and witnessed his mortgage for the Bruce property, they continued to be joint parties to a contract to purchase another property and Ms E nominated the applicant as 60% beneficiary of death benefit direction (refer to paragraph 51 above). The Tribunal finds that the applicant’s domestic partnership did not end, indeed they continued to live together during Ms E’s illness with care being done by the parents as required.
[113] Stanford v Stanford [2012] HCA 52 at [44]-[45]; Kahlia Boyd v Belconnen Concrete Pty Ltd ATF Spinelli Trust Fund [2013] ACTMC 10 at [52]
In regard to residency, the Tribunal accepts the contentions of the applicant at paragraphs 39 to 40, and finds that he did meet the condition of residing in the Bruce property for a minimum of six months.
(c) If the Applicant is ineligible, are the penalties and interest, where reviewable, appropriate in his circumstances?
While the legislative frameworks for the HBC and FHOG differ (refer to paragraphs 11 to 22 above), the Tribunal accepts the Commissioner’s contention that it was appropriate for the Commissioner to use the scale for penalties set out in the TA Act as a guide to the penalties to be applied in this case for the FHOG matter.
The Tribunal finds that the applicant did not take reasonable care. The Tribunal accepts the respondent’s submissions that there is a positive obligation on the taxpayer to make enquiries about their tax liabilities and there is no positive obligation on the Commissioner to do so. The cases of Theron[114] and Steele[115] held that there is an onus on landlords to enquire about tax obligations. The principle that the onus is on the taxpayer was set out in relation to payroll tax in the Photo Corporation[116]case, and confirmed by the Tribunal in Belconnen Premier Inn.[117]
[114] Theron v Commissioner for ACT Revenue [2013] ACAT 33
[115] Steele v Commissioner for ACT Revenue (Administrative Review) [2010] ACAT 15
[116] Photo Corporation of Australia Pty Ltd v Commissioner for ACT Revenue [1994] ACTAAT 91
[117] Belconnen Premier Inn Pty Ltd v Commissioner for ACT Revenue (Administrative Review) [2014] ACAT 68
The onus for compliance falls on the applicant even though he engaged various professionals. Any duty or liability of a professional person engaged by the taxpayer does not necessarily relieve the taxpayer of their duty or liability regarding land tax or any associated penalty tax or interest. There is consistent authority for this finding.[118] Taxpayers are at liberty to take action against professionals who fail in their duties.
[118] Wade & Tan v Commissioner for ACT Revenue (Administrative Review) [2014] ACAT 79
In the case Jokhan and Jokhan v Commissioner for ACT Revenue [2012] ACAT 15 the senior member said: “The solicitor was not called to give evidence, even by telephone, and no explanation for this was given. … The inference thus arises that the solicitor could offer little or no evidence to assist the applicant’s case as to reasonable excuse.”[119] This inference applies in this case.
[119] Jokhan And Jokhan & Commissioner For ACT Revenue (Administrative Review) [2012] ACAT 15 at [13] citing Jones v Dunkel (1959) 101 CLR 298
The Tribunal finds that the applicant has no reasonable excuse. The applicant had no circumstances that reduced his capacity to manage his affairs as occurred in the case of Hay v Commissioner for ACT Revenue (Administrative Review) [2014] ACAT 23.
When considering whether the remission of penalty tax is fair and reasonable[120] previous cases must be considered. Fairness and reasonableness requires some level of consistency in decision making, although it does not extend so far as to bind future decision makers. In the Theron[121] and Scott[122] cases the applicants’ reasons for non-compliance were largely about the busyness of their lives, and they did not receive a remission. In this case the applicant mis-judged his responsibilities and it would not be fair and reasonable to remit penalties.
[120] Section 37(b) of the TA Act
[121] Theron v Commissioner for ACT Revenue [2013] ACAT 33
[122] Scott and Anor v Commissioner of ACT Revenue (Administrative Review) [2013] ACAT 73
In regard to interest for the HBC, the Tribunal finds that decision to impose interest and not to remit it are not reviewable by the Tribunal due to a lack of jurisdiction.
In relation to penalties and interest the Tribunal accepts the Commissioner’s contentions set out in paragraphs 55 to 59 above.
Summary of Findings
The Tribunal finds that:
(a)Considering all the evidence, authorities and the composite picture that emerges about the nature of the relationship between the applicant and Ms E, the Tribunal finds that
i.the applicant was in a domestic partnership on the HBC relevant date, being 28 October 2008;
ii.the applicant was in a domestic partnership on both of the different dates contended by the parties to be the relevant FHOG date, namely 4 June 2010 and 7 July 2010.
(b)Circumstances of the relationship after the relevant dates for HBC and FHOG can be relevant to understanding the nature of the relationship on the relevant date and the Tribunal accepts the relevance of such matters in determining if there was a domestic partnership for the HBC and FHOG reviewable decisions.
(c)The applicant did meet the condition for HBC and FHOG of residing in the Bruce property for a minimum of six months.
(d)It was appropriate for the Commissioner to use the scale for penalties set out in the Tax Administration Act as a guide to the penalties to be applied in this case for the First Home Owners Grant reversal.
(e)For the HBC reviewable decision, the decision to impose interest and not to remit it are not reviewable by the Tribunal due to a lack of jurisdiction.
(f)For the FHOG reviewable decision, there are no grounds for remitting the interest.
(g)For the HBC and FHOG reviewable decisions, the applicant failed to take reasonable care, did not have a reasonable excuse and there are no grounds for remitting the penalty.
The Tribunal Orders that:
1.The decision dated 9 July 2015 about the Home Buyer Concession reassessment is confirmed.
2.The decision dated 9 July 2015 about the First Home Owner Grant reversal is confirmed.
.................................
Ms L. Beacroft
Senior Member
HEARING DETAILS
FILE NUMBER: | AT 53/15 & 54/15 |
PARTIES, APPLICANT: | Nicholas Wilkinson |
PARTIES, RESPONDENT: | Commissioner for ACT Revenue |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Ms Katavic |
SOLICITORS FOR APPLICANT | Mr Markham, Boettcher Law |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Ms L. Beacroft – Senior Member |
DATES OF HEARING: | 18 November and 8 December 2015 |
SCHEDULE
Legislation Act 2001
References to domestic partner and domestic partnership
(1)In an Act or statutory instrument, a reference to a person’s domestic partner is a reference to someone who lives with the person in a domestic partnership, and includes a reference to a spouse, civil union partner or civil partner of the person.
NoteThe Macquarie dictionary, (1997) defines spouse as ‘either member of a married pair in relation to the other; one’s husband or wife’.
(2)In an Act or statutory instrument, a domestic partnership is the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.
Example—indicators to decide whether 2 people are in a domestic partnership
1 the length of their relationship
2 whether they are living together
3 if they are living together—how long and under what circumstances they have lived together
4 whether there is a sexual relationship between them
5 their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them
6 the ownership, use and acquisition of their property, including any property that they own individually
7 their degree of mutual commitment to a shared life
8 whether they mutually care for and support children
9 the performance of household duties
10 the reputation, and public aspects, of the relationship between them
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).
(3)In an Act or statutory instrument, a reference to a domestic partnership includes a reference to a marriage, a civil union and a civil partnership.
Taxation Administration Act 1999
Amount of penalty tax
(1)The amount of penalty tax payable in relation to a tax default is 25% of the amount of tax unpaid, subject to this division.
(2)The amount of penalty tax payable in relation to a tax default is 50% of the amount of tax unpaid if the commissioner is satisfied that the tax default was caused wholly or partly by a failure by the taxpayer (or a person acting on behalf of the taxpayer) to take reasonable care to fulfil the taxpayer’s obligations under a tax law.
(3)Subsection (2) does not apply if the tax payer satisfies the commissioner that the taxpayer (or a person acting on behalf of the taxpayer) had a reasonable excuse for the failure.
(4)Subsections (2) and (3) apply to a tax default that happened before their commencement in the same way as they apply to a tax default that happened after their commencement.
(5)The amount of penalty tax payable in relation to a tax default is 75% of the amount of tax unpaid if the commissioner is satisfied that the tax default was caused wholly or partly by the intentional disregard by the taxpayer (or a person acting on behalf of the taxpayer) of a tax law.
(6)No penalty tax is payable in relation to a tax default if the commissioner is satisfied that—
(a)the taxpayer (or a person acting on behalf of the taxpayer) took reasonable care to comply with the tax law; or
(b)the tax default happened solely because of circumstances beyond the taxpayer’s control (or if a person acted on behalf of the taxpayer, because of circumstances beyond either the person’s or the taxpayer’s control) but not amounting to financial incapacity.
NoteThe commissioner’s decision to impose penalty tax is an internally reviewable decision (see s 107, def internally reviewable decision), and the commissioner must give an internal review notice to the taxpayer (see s 107B).
Remission of penalty tax
The commissioner may remit all or part of an amount of penalty tax payable by a person if satisfied that—
(a)either—
(i)the person has taken reasonable steps to mitigate, or to mitigate the effects of, the circumstances that resulted in the liability for penalty tax; or
(ii)the circumstances that resulted in the liability for penalty tax were exceptional; and
(b)it would be fair and reasonable to remit all or part of the penalty tax.
NoteThe commissioner’s decision to refuse to remit penalty tax payable by a person is an internally reviewable decision (see s 107, def internally reviewable decision), and the commissioner must give an internal review notice to the person (see s 107B).
First Home Owner Grant Act 2000
Criterion 3—Applicant (or applicant’s partner) must not have received an earlier grant
(1)An applicant is ineligible if—
(a)the applicant or the applicant’s partner 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)However, the applicant is not ineligible if—
(a)for an application that relates to an eligible transaction with a commencement date before 1 January 2011—the grant was later paid back under the conditions on which the grant was made; or
(b)for an application that relates to an eligible transaction with a commencement date on or after 1 January 2011—
(i)the grant was later paid back; and
(ii)any amount payable as a penalty or as interest was also paid in relation to the earlier application.
(3)An applicant is also ineligible if the applicant or the applicant’s partner—
(a)could have successfully applied for a first home owner grant under this Act or a corresponding law in relation to an earlier transaction to which he or she was a party but did not do so; or
(b)could, assuming that he or she had then been an Australian citizen or permanent resident, have successfully applied for a first home owner grant under this Act or a corresponding law in relation to an earlier transaction to which he or she was a party.
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.
(2)If, because of an applicant’s dishonesty, an amount is paid by way of a first home owner grant, the commissioner may, by the notice in which repayment is required or a separate notice, impose a penalty of not more than the amount the applicant is required to repay.
(3)If an applicant (or former applicant) for a first home owner grant fails to make a repayment required under this section or the conditions of the grant, the commissioner may, by written notice, impose a penalty of not more than the amount the applicant is required to repay.
(4)If an amount is paid in error on an application for a first home owner grant to a third party, the commissioner may, by written notice, require the third party to repay the amount to the commissioner.
Interest in relation to repayments
(1)A person is liable to pay interest under this section on the amount of a first home owner grant paid to the person if the amount is repayable under section 20 (2) (b) or section 21 (2).
(2)A person is liable to pay interest under this section on an amount paid to the person on an application for a first home owner grant if the amount is repayable under section 47.
(3)Interest under this section is to be calculated on a daily basis from—
(a)if the amount is repayable under section 20 (2) (b)—the relevant date as defined in section 20 (3); or
(b)if the amount is repayable under section 21 (2)—the day the notice mentioned in section 21 (2) (a) is given to the commissioner; or
(c)if the amount is repayable under section 47 (1)—the date the amount was paid to the applicant.
(4)For this section, the interest rate is the interest rate mentioned in the Taxation Administration Act 1999, section 26.
Power to recover amount paid in error etc
(1)This section applies to the following amounts (each of which is a recoverable amount):
(a)an amount that an applicant (or former applicant) for a first home owner grant is required to repay under the conditions of the grant or by requirement of the commissioner under this Act;
(b)the amount of a penalty imposed on an applicant (or former applicant) for a first home owner grant;
(c)an amount a third party is required to repay by requirement of the commissioner under this Act;
(d)interest the applicant is required to pay under section 48.
(2)The liability arising from a requirement to pay (or repay) a recoverable amount is joint and several if the requirement attaches to 2 or more persons.
(3)If an applicant who is liable to pay a recoverable amount has an interest in the home for which the first home owner grant was sought, the liability is a first charge on the applicant’s interest in the home.
(4)The commissioner may recover a recoverable amount as a debt to the Territory.
(5)The commissioner may enter into an arrangement (which may include provision for the payment of interest) for payment of a liability outstanding under this section by instalments.
(6)The commissioner may remit or refund all or part of an amount of interest paid or payable by a person.
(7)The commissioner may write off the whole or part of a liability to pay a recoverable amount if satisfied that action, or further action, to recover the amount outstanding is impracticable or unwarranted.
Taxation Administration (Amounts payable – Eligibility – Home Buyer Concession Scheme) Determination 2008 (no 1) (D12008-76)
Application
This instrument applies to:a grant of a crown lease granted on or after 6 May 2008; and
a transfer of a crown lease or, if the transfer is preceded by an agreement for transfer, that agreement, first executed or entered into on or after 6 May 2008.
Definitions
In this instrument:(1)The Act means the Duties Act 1999.
(2)Certificate of Occupancy and Use means the certificate issued under the Building Act 2004 to advise that the dwelling is fit for occupation.
(3)Date the duty must be paid is either 90 days after the liability to pay the duty arises (section 16 of the Act), or for a period up to 1 year plus 14 days for an ‘off the plan’ purchase agreement and 2 years for a “Declared Affordable House and Land Package” (section 16A of the Act).
(4)Dependent child has the same meaning as in the Social Security Act 1991 (Cwlth).
(5)Determined in the definitions of lower threshold and upper threshold means determined by the Minister by instrument under section 139 of the Taxation Administration Act 1999.
(6)A reference to a domestic partner is a reference to someone who lives with the person in a domestic partnership and includes a reference to a spouse of the person.
(7)Domestic partnership is the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis. Section 169 of the Legislation Act 2001 gives examples of indicators of a domestic partnership.
(8)Dutiable value has the same meaning as in section 20 of the Act.
(9)Eligible property means an estate in fee simple or a crown lease with a dwelling upon it and having a dutiable value less than the determined upper threshold for property value other than an eligible vacant block.
(10)Eligible vacant block means an estate in fee simple or a crown lease without a dwelling upon it and having a dutiable value less than the determined upper threshold for land value.
(11)Leave includes maternity leave, leave without pay, leave on half pay and leave while receiving workers’ compensation payments.
(12)Lower threshold means the determined lower threshold for the property value threshold or land value threshold.
(13)Relevant income threshold means the income threshold amount with reference to a dependant child, or dependent children, of an applicant and his or her domestic partner as specified below:
Number of dependent children Income threshold 0 $120,000 1 $123,330 2 $126,660 3 $129,990 4 $133,320 5 or more $136,650
(14)Total income means the income of a person or persons named in the grant, transfer or agreement for transfer of the subject property and their domestic partner and:
(a)it includes income from all sources including benefits from a salary packaging arrangement, maintenance payments, and income classified as exempt income under the Income Tax Assessment Act 1997;
(b)it excludes eligible termination payments (such as those made for years of service under a bona fide redundancy payment) that are not assessable for income tax under the Income Tax Assessment Act 1936 (Cwlth), Part 3, Division 2, Subdivision AA; and
(c)for self‑employed persons — it is the profit or gain made in the ordinary course of carrying on business. In this case, the net trading profit (and not turnover) is taken to be the equivalent of salary and wages.
(15)Upper threshold means the determined upper threshold for the property value threshold or land value threshold.
Eligible Home Buyer
In this instrument, eligible home buyer means a person who provides written evidence to the Commissioner for ACT Revenue regarding all persons named in the grant, transfer or agreement for transfer of the eligible property or eligible vacant block as the grantee or transferee that:
(a) on the date of the grant, transfer or agreement for transfer (whichever comes first) they together and their domestic partners had a combined total income over the previous 12 months (from the day of the grant, transfer or agreement for transfer, whichever comes first) less than or equal to the relevant income threshold and that the details provided reflect their usual income; and
(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
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