Wood v Chief Commissioner of State Revenue

[2008] NSWADT 77

CITATION:	Wood v Chief Commissioner of State Revenue [2008] NSWADT 77
DIVISION:	Revenue Division
PARTIES:	APPLICANT Elizabeth Jayne Wood RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	076125
HEARING DATES:	28 February 2008
SUBMISSIONS CLOSED:	28 February 2008
DATE OF DECISION:	10 March 2008
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Duties Act - First Home Plus Scheme - exemption from stamp duty - reversal by administrator
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Duties Act 1997 First Home Owner Grant Act 2001
CASES CITED:	N/A
REPRESENTATION:	APPLICANT No apperance RESPONDENT H El Hage, solicitor
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

1 Elizabeth Jayne Wood has applied to the Tribunal for the review of a decision of the Chief Commissioner of State Revenue (‘the Commissioner’) to reverse an earlier decision to grant a ‘First Home Plus’ (‘FHP’) concession in respect of the payment of stamp duty on the purchase of a property, on the ground that Ms Wood failed to meet the eligibility criteria.

2 There is no dispute about the facts. On the death of her father, Ms Wood and her two sisters inherited a property at Euroka, near Kempsey, which they have held in equal shares as tenants in common since 27 May 1998.

3 On 31 March 2006, Ms Wood entered into a contract for the purchase of a residential property at Nemingha, near Tamworth, with settlement taking place on 5 June 2007. She applied for a first home owner grant under the First Home Owner Grant Act 2001 and a FHP concession under the Duties Act 1997. Ms Wood’s application for a first home owner grant was refused on the basis that she had an interest in the Euroka property. Her application for the FHP concession, dated 27 April 2006, was accepted.

4 On 18 July 2007, the Commissioner reversed his decision to grant the FHP concession to Ms Wood on the ground that she had failed to meet the eligibility criteria set out in section 71(1)(a) of the Duties Act 1997, and required her to pay the full dutiable amount of $8,297.49. By letter dated 8 August 2007, Ms Wood objected to this decision. On 24 September 2007, the Commissioner partially allowed her objection by remitting the interest imposed on the assessment to nil, but requiring payment of the duty payable amounting to $7,242.00.

5 On 31 October 2007, Ms Wood applied to the Tribunal for a review of this decision. The solicitor acting for her at that time set out reasons for the application. While acknowledging that she is not entitled to the first home owner grant, Ms Wood contends she is entitled to the FHP concession. Her solicitor states section 71(1) of the Duties Act 1997 is applicable and cites the provision as follows:

“71 (1) A purchaser or transferee under an agreement or transfer may apply under the scheme, but will be eligible only if the purchaser or transferee is a first home owner.

(2) A "first home owner" is an individual:

(a) who has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner, and ...”
6 Ms Wood’s solicitor contends she is a ‘first home owner’ because she is an individual and, while she has previously owned a part interest in residential property, namely the Euroka property, she has not previously been a party to an application under the FHP concession scheme. Thus, Ms Wood is entitled to the FHP stamp duty concession.

7 Following Directions made by the Tribunal on 28 November 2007, Ms Wood sought to rely on the reasons set out by her solicitor for the application. The Commissioner filed relevant documents on 24 December 2007 and submissions on 5 February 2008.

8 At the hearing on 28 February 2008, I contacted Ms Wood’s solicitor by telephone when there was no appearance for Ms Wood at the hearing. He told me that he no longer had instructions to act in this matter and that Ms Wood wished to rely on the submissions made in the reasons for the application referred to above, without appearing at the hearing.

9 I therefore heard brief submissions for Mr El Hage, for the Commissioner who, essentially, relied on his written submissions filed on 5 February 2008. In those submissions, the Commissioner notes that at the relevant time in 2006, the relevant provisions of section 71 of the Duties Act 1997 (in effect from 1 March 2006 to 19 June 2006) stated as follows:

“71 Restrictions on eligibility—previous ownership of residential property or first home concession

(1) A purchaser or transferee under an agreement or transfer may apply under the scheme, but will be eligible only if the purchaser or transferee:

(a) has not at any time owned residential property in Australia (either solely or with someone else), and

(b) has not previously been a party to an application under the scheme that was approved by the Chief Commissioner.

(2) ...

(3) ...

(4) ...

(5) ...

(6) Despite the other provisions of this section, the previous ownership of residential property, or a previous application under the scheme that has been approved by the Chief Commissioner, may be disregarded if the Chief Commissioner is satisfied that:

“(a) the residential property previously owned by the purchaser or transferee was vested in the purchaser or transferee on trust as guardian for a person under a legal disability, and the application under the scheme was made by the purchaser or transferee in his or her capacity as such a guardian, or

(b) the residential property previously owned by the purchaser or transferee was vested in the purchaser or transferee on trust, as an apparent purchaser for a real purchaser (as referred to in section 55), and the application under the scheme was made by the purchaser or transferee in his or her capacity as such an apparent purchaser, or

(c) the purchaser or transferee who previously owned the residential property, or who has previously been a party to an application, is acquiring an interest in the property that is the subject of the application solely for the purpose of assisting the eligible persons under the scheme in financing the acquisition.”

10 The Commissioner submits that the wording of section 71(1) must be given its ordinary and natural meaning. At the relevant time in 2006, a purchaser would only be eligible for the concession if both paragraphs (a) and (b) of subsection 71(1) were satisfied. Thus, it is clear that since Ms Wood owned the Euroka property (as a tenant in common with her two sisters), she did not satisfy section 71(1)(a) and was not eligible for the FHP concession. The Commissioner notes that there is no discretion to waive the eligibility criteria in section 71(1) and the concessions in section 71(6) do not apply.

Discussion

11 I note that the version of the section 71(1) and (2) of the Duties Act 1997 relied on by Ms Wood’s solicitor is not that in effect at the relevant time, which is when Ms Wood applied for the FHP concession on 27 April 2006: rather, her solicitor relies on the version of section 71 currently in effect. As is evident from a comparison of the two versions, set above, they are slightly different in their wording.

12 I agree with the Commissioner’s submission that at the time Ms Wood applied for the FHP concession in 2006, the ordinary and natural meaning of subsection 71(1) then in effect required that she had to satisfy both paragraphs (a) and (b) of the sub-section. While I accept that Ms Wood had not previously purchased a residential property, she had clearly ‘owned residential property in Australia’ as a consequence of her being a part owner of the Euroka property. Thus, she was not eligible for the FHP concession because she did not satisfy section 71(1)(a). I also agree with the Commissioner that there is no discretion to waive the eligibility criteria in section 71(1), and the section 71(6) concessions do not apply in her case. Thus, the decision under review must be affirmed.

Order

The decision under review is affirmed.