Note: These written reasons consist of an edited transcript of reasons given orally at the conclusion of the hearing

1. This case is about whether or not Mr Dammo has to repay the First Home Owner Grant of $17,000 that he received in 2009 and pay a penalty.
2. In August 2012, the Commissioner of State Revenue's delegate notified Mr Dammo that he had reversed the original decision to pay the grant and required Mr Dammo to repay the monies received. The stated grounds were that Mr Dammo had failed to comply with the residence requirement in section 12 of the First Home Owner Grant Act 2000 (the Act). The Commissioner also imposed a penalty of $1,000.
3. The residence requirement is that the applicant for the grant must occupy the home to which the grant relates as his or her principal place of residence for a continuous period of six months commencing within the first 12 months after settlement of the purchase. The residence requirement is one of five mandatory criteria for the grant and it is a criterion that neither the Commissioner nor the Tribunal can ignore. If a person receives the grant but does not comply with it, the grant must be repaid.
4. Mr Dammo objected to the reversal decision, and contends that he complied with the residence requirement. The Commissioner disallowed Mr Dammo's objection in February 2013. Mr Dammo exercised the right, given to him by section 29 of the Act, to request the Commissioner to refer the matter to the Tribunal for review.
5. On a review, the Tribunal stands in the shoes of the decision-maker and considers the matter afresh. The Tribunal may take into account evidence not before the original decision-maker.
6. The Commissioner filed written submissions and the documents that were relevant to the decision, including documents relating to the tenanting of the property, the utility usage for the property, and the loan for the purchase; and letters and statutory declarations provided by Mr Dammo in 2012 in support of his objection.
7. Mr Dammo filed recent witness statements of himself, his wife Sarah Dammo, his brother Jonathan Dammo, his mother Ekaterini Dammo and his mother in law Mary Holmes. He gave additional oral evidence and was cross-examined. His mother gave some additional evidence. She was not cross-examined.
8. Both Mr Dammo and the solicitor for the Commissioner made oral submissions.

1. In 2009, when he was 20 years old, Mr Dammo bought a property, at 29 Henley Drive Gladstone Park (the property). At the time, he was studying full time at Victoria University and working full-time hours on a casual basis at Melbourne Airport. To his credit, he had substantial savings.
2. The contract of sale, dated 4 April 2009, names the purchaser as his mother, Ekaterini Dammo and/or nominee. In any event, the property transferred to Mr Dammo under a Transfer dated 4 June 2009, with a stated purchase price of $333,000.
3. A notice of acquisition of interest in land, lodged with the transfer by his conveyancer on 3 June 2009, stated that the property was not being acquired as his principal place of residence.
4. Mr Dammo financed the purchase with a Commonwealth Bank investment home loan of $297,534.60. .
5. The witness statements filed by Mr Dammo describe him as hard working, mature, family and work oriented. Although they erroneously say he was 19 at the time (he was 20), they consistently describe how proud he was of the fact that he had bought a house at that age. The witness statements also describe how proud his family were of him.
6. On 26 June 2009, after settlement of the purchase, Mr Dammo applied for the first home owner grant. On 18 August 2012, the Commissioner approved the application and paid the sum of $17,000 to him - the grant of $7,000, a bonus of $3,000, and a boost of $7,000.
7. Six months and two days after he moved in, Mr Dammo moved out and tenants moved in, under a residential tenancy agreement entered into on 30 November 2009.
8. On 30 August 2012, following an investigation, the delegate of the Commissioner wrote to Mr Dammo giving him notice of the decision that he had not complied with the residence requirement, and was to repay the grant and pay a penalty plus interest.
9. The reasons included that utility usage was not sufficient to support a conclusion that he occupied the property as his principal place of residence for the period 4 June 2009 to 6 December 2009; and a tenancy agreement was in place that would have prevented him complying with the residence requirement.
10. Mr Dammo objected to the decision and provided submissions and statutory declarations in support of his claim that he complied with the residence requirement. The Commissioner disallowed the objection. That decision is under review in this proceeding.

Principles to be applied: the six Ferrington principles

1. In Chief Commissioner of State Revenue v Ferrington,[1] the New South Wales Administrative Decisions Tribunal Appeal Panel articulated six principles for determining whether a person has met the principal place of residence criterion.
2. Those principles have been followed in numerous decisions of this Tribunal and are:
   1. The words 'occupy' and "principal place of residence" should be given their ordinary meaning in the context in which they appear.
   2. Consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling.[2]
   3. The intention of the person concerned, gauged objectively, is relevant but not determinative of the issue.
   4. To occupy a home as his or her principal place of residence a person's occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose.
   5. The short length of a person's residence, while relevant, is not determinative of the issue
   6. The reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances.
3. As observed by then Deputy President Macnamara in D'Amelio v Commissioner of State Revenue,[3] principles 1-3 describe how the inquiry should be approached. Principles 4-6 are substantive, meaning they are at the heart of the inquiry.
4. The issue in this case was whether Mr Dammo occupied the property as his principal place of residence. Following the approach in the Ferrington principles 1-3, that question is assessed objectively, giving the words their ordinary meanings; intention, gauged objectively, is relevant but not determinative.

Necessary degree of permanence - Ferrington 4

1. The residence requirement is often misunderstood. The cases demonstrate that some people mistakenly see it as requiring only that they sleep at the house occasionally, with the only item of furniture being a bed, while carrying out all the usual activities of a householder - cooking, eating meals, showering, washing clothes - elsewhere. The cases referred to in the Commissioner's submissions give examples. [4]
2. The residence requirement requires quite a lot more than an occasional, limited or temporary presence. There must be a degree of permanence - an intention to make it your home.
3. The requirement also requires more than occupation aimed only at meeting the six month requirement - what Deputy President Macnamara described in Kyriakou as 'some ritual of occupancy for six months which he believed was necessary to qualify for the grant'.[5]
4. In Kyriakou, Deputy President Macnamara went on to say:

Occupancy for this purpose [qualifying for the grant] and with that limited time frame in view lacks the necessary permanence for someone to be regarded as occupying a house as his principal place of residence. It stands in contrast to someone who moves into a house and makes it his or her home intending to stay permanently or on a long term basis and then changes his or her mind or moves because of a change of circumstances.

1. In Rutko v Commissioner of Taxation [2011] VCAT 2239 Deputy President Macnamara observed:

...someone who takes possession of premises merely for the purpose of meeting Criterion 5 [the residence requirement] and leaving immediately after the six moths has ticked over is someone who has taken up residence for a transient, temporary, contingent or passing purpose and not for the permanent purpose that the Act contemplates.

1. The witness statements filed by Mr Dammo focus on the length of time he was there being exactly right.
2. Sarah Dammo's statement says 'I recall calculating the duration Paul lived in the property. We were very careful in ensuring that this was done correctly.
3. Mr Dammo in his witness statement says 'I have carefully measured the amount of time to ensure I met the SRO requirements'
4. I agree with the submission of the Commissioner at paragraph 51 that a number of the witness statements are consistent with Mr Dammo being conscious that he had to occupy the premises for six months to meet the requirements.
5. This is relevant to ascertaining objectively the purpose of Mr Dammo's occupation and supports a view that Mr Dammo focussed on occupying the property for the minimum period and so qualify for the grant.

1. Documents in evidence relating to the letting of the property showed that a bond was lodged with the RTBA on 25 November 2009, and a lease signed on 30 November 2009. As the Commissioner submitted, these dates are within the six months period. In other words, before the six months had expired, Mr Dammo had taken steps to let the property. This evidence supports a view that Mr Dammo occupied the property for the purpose of qualifying for the grant. It also supports a view that, at the point he agreed to lease the property, before the six-months had expired, the necessary degree of permanence was lost.
2. As submitted by the Commissioner, the observations of the Tribunal in D'Amelio[6] are relevant here:

It is one thing to intend to occupy premises as one's principal place of residence for an extended or indefinite period and to change one's mind or to be forced to by changed circumstances. It is another thing altogether to have an intention to connect oneself to the premises in some way for a period of six months and then irrevocably part with possession of them by putting in a tenant. The latter is the situation which in my view has been established here and not the former.

1. I consider the evidence about whether changed circumstances forced Mr Dammo to move out later.

1. In the original decision and at the hearing, the Commissioner relied on the utility accounts for the property for the period Mr Dammo occupied it as evidence of low utility usage.
2. In the case of Haddad v Commissioner of State Revenue,[7] Member Glover said that utility usage is:

one of the objective considerations to which the second Ferrington principle directs the Tribunal when assessing whether a person has been residing in premises as a principal place of residence

1. Low utility usage has been relevant in a number of the cases, referred to in the Commissioner's submissions at paragraph 30.[8]
2. The Commissioner's submissions at paragraphs 29-38 set out the details of usage for water, electricity and gas. The following is a summary.
3. Mr Dammo's water usage - his average daily use - was between 10 and 13 litres per day. I note that after the tenants were in occupation that increased to 611 - 933 litres per day. There were two of them but it is a relevant comparison.
4. South East Water's estimated water usage for a property occupied by one person is 161 litres per day, and efficient water usage by one person is 118 litres per day. That is for a house with no garden, which is not the case here. The lending valuation describes the property as a 3-bedroom house with a pergola and two garden sheds.
5. In Baklis v Commissioner of State Revenue [2012] VCAT 1980 at [36] the Tribunal accepted South East Water's estimate of water usage for one person occupying a house. I accept it in this case.
6. As Mr Dammo submitted, we do not all use water in exactly the same way and there should be some allowance for variation in the way in which water is used by individuals. I take into account Mr Dammo's submission that he was 20 at the time, and 20 year olds are usually not home much
7. Nevertheless, Mr Dammo's water usage of 10 -13 litres per day was about one tenth of South East Water's estimate for one person occupying a house and using water efficiently.
8. There were similar levels of water usage to Mr Dammo's in the cases of Fallow[9] and Patel,[10] and in each case Senior Member Davis considered it inconceivable that anyone living in the house could use so little water.
9. Mr Dammo's average daily electricity use ranged from 0.3 to 1.54 kWh.
10. AGL's electricity consumption benchmarks estimate average daily usage at 10.6 kWh (with gas hot water) for occupation by one person. The Tribunal was guided by these benchmarks in the case of Alexander[11] and I consider them relevant to the decision that I have to make. In Alexander, 0.487kWh was considered 'quite meagre'.
11. Mr Dammo's electricity usage was about one tenth of the average.
12. Mr Dammo explained his low utility use in his witness statement, in his original letter dated 3 October 2012 to the Commissioner, and at the hearing. There were some inconsistencies in the explanations he gave.
13. In his witness statement, Mr Dammo says that whilst living there he slept at the property every night. He also says he was juggling working full time, studying at Victoria University full time, using public transport for school and cycling to work at Melbourne Airport.
14. In his witness statement, he described his routine as leaving the house at 7.00 am to go to school, arriving home at 1300. He would then pack his clothes and cycle to work at Melbourne Airport. He would shower at work and also eat at work. He said in his witness statement that the low utility bills reflect this.
15. In his letter of October 2012, Mr Dammo said he cooked and ate dinner at the property some nights, and showered there several times a week. He said he was supplied food free of charge at work during work hours and rarely ate breakfast or lunch at home. He said he cleaned the property on a weekly basis, mopping, cleaning the shower and toilet. He entertained friends at the property several times a month.
16. In his letter of October 2012, he described his routine differently. He said his employment consisted of shift work, which generally required early morning starts five days a week. He said starting times were usually between 4.00 am and 6.00 am followed by a minimum of three days a week at university often not arriving home until late in the afternoon. This is inconsistent with the description of his routine in his witness statement.
17. At the hearing, in his additional oral evidence, Mr Dammo said that showered at the property 'maybe twice a week'. This is inconsistent with 'several times a week' (October 2012 letter) and 'showered at work' (witness statement).
18. In cross-examination, the solicitor for the Commissioner put to Mr Dammo that his evidence was inconsistent, and asked the question, 'has your memory improved?' Mr Dammo said 'yes, it has'. Whether or not Mr Dammo's memory has improved, the inconsistencies cause some difficulty for him. Inconsistent evidence makes it more difficult for the Tribunal to accept the explanation that is given.
19. The information in Mr Dammo's witness statement about how little he was at the property, as an explanation for his low utility use, is also inconsistent with statutory declarations from others he supplied to the Commissioner in 2012 and with witness statements he filed in this proceeding.
20. For example, Sarah Holmes, as she then was, in her statutory declaration in October 2012 said "I spent time with Paul at his property many times a week. During these times we ordered pizza and watched DVDs. I also helped Paul clean, prepare dinner and install furniture'.
21. Her witness statement says, "I can confirm Paul lived in the property for six consecutive months. I witnessed him have several get-togethers with friends and family during this period.
22. Mr Dammo's brother in his witness statement says he visited Paul regularly, approximately twice a week and played Play Station.
23. Mr Dammo's friend Joseph Magri made a statutory declaration, provided to the Commissioner in 2012, which talked about visiting Mr Dammo on frequent nights when he occupied his property.
24. Mr Dammo's mother in law Mary Holmes in her statutory declaration of 3 October 2012 said, "my husband and myself went to dinner at the property on a couple of occasions. We'd sometimes pick Sarah up from the property and have a coffee with them both".
25. Mr Dammo's low utility usage, which is objective evidence, is entirely inconsistent with someone living in the property in the way described in the witness statements and statutory declarations. Those untested statements and declarations are in turn inconsistent with Mr Dammo's evidence in explanation of his low utility usage. In the circumstances I give greater weight to the objective evidence of the utility accounts in determining how Mr Dammo occupied the property.

1. There was other evidence as to whether Mr Dammo's occupation had the necessary degree of permanence. He had limited furniture at the property, although he had a television and DVD player he had no fridge, no washing machine, and a blow up bed, according to his and other's statements.
2. At the hearing, Mr Dammo sought to change the evidence about the kind of bed he had at the property. Until that point, all the evidence was consistent - that the only bed was a blow-up bed. Mr Dammo said that he had a regular bed at the property and the blow-up bed was just for visitors. In circumstances where nothing of that kind had been said up until the hearing, I am unable to accept that there was more than a blow-up bed at the property.
3. Mr Dammo also said in evidence that after he moved in to the property he continued to have his washing done at home and even now he is married, he still has some of his washing done at home.
4. That may be so, but the minimal furniture he had at the property is inconsistent with someone who is making a permanent home. A washing machine may be further down the list of priorities but not having a fridge, and having only a blow up bed gives a strong impression of impermanence, of camping in the house for a limited period rather than making it his home.

1. The Commissioner also relied on evidence about what address Mr Dammo gave to service providers during the time he occupied the property.
2. Yarra Valley Water bills were addressed to Mr Dammo at the property but gas accounts and electricity accounts were addressed to Mr Dammo at 52 Wolverton Drive, Gladstone Park, his parents' home.
3. Commonwealth Bank records have Mr Dammo's address for the relevant period as the property. Credit card account statements and three savings account statements went to the property, but statements for the investment home loan, a personal loan and one streamline account were sent to 52 Wolverton Drive.
4. Mr Dammo's driver's licence records show that his address remained as 52 Wolverton Drive for the whole period. On the face of it, that is inconsistent with the property being his principal place of residence. Mr Dammo explained that his driver's licence had been suspended before he moved into the property for a period of two years. He said that there was no point in changing the address on his driver's licence because he was not able to drive in that period anyway. If that is so, the fact that he did not change his address on his driver's licence is less determinative, in my view.
5. In my view, the above evidence is not conclusive but it tends to support a view that Mr Dammo had not committed himself to making the property his permanent home

1. Other documents in evidence included that Mr Dammo obtained building but not contents insurance. In his letter of October 2012 to the Commissioner, he stated that he took out building and contents insurance. An attached letter from CommInsure makes it clear there is no contents insurance.
2. In evidence, Mr Dammo said he made an error in his letter to the Commissioner. He said he thought he had it at the time he wrote to the Commissioner in 2012. He also said in evidence that he did not obtain contents insurance because he did not think it was worth it - he made a financial decision. These statements are inconsistent.
3. I regard it as relevant that Mr Dammo did not obtain contents insurance, which is usually something a householder does. As with his addresses for accounts and bills, it is not determinative.

1. More relevantly, the documents relating to the purchase and financing of the property strongly support a view that Mr Dammo's intention at the outset was not to make the property his principal place of residence.
2. The notice of acquisition of an interest in land, dated 3 June 2009 and filed with the transfer, names Mr Dammo as the purchaser and gives his current address and his address for future correspondence as his parent's home, 52 Wolverton Drive, Gladstone Park. Next to the question, 'Would property being acquired be your principal place of residence', 'No' is ticked.
3. As Mr Dammo pointed out, his conveyancers, Auburn Conveyancing & Property Services signed the notice of acquisition. He did not sign it. However, his conveyancers completed it on his behalf, were acting for him in the purchase of the property, and were presumably acting on his instructions.
4. The loan application for the Commonwealth Bank Investment Home Loan is also relevant. On the loan application the question, 'Will you be living at the house' is answered 'No, investment'. Another question was 'First Home Buyer'. The answer was 'No'.
5. Rental income of $1,178.67 is listed under 'monthly income' in the section to do with financial commitments. A rental valuation is included in the documents attached to the loan application.
6. At the hearing, Mr Dammo gave an explanation for those matters. Essentially, he said that he was 19 at the time, the banker gave him advice, she was very clear that he would have a better chance of getting the loan if it was an investment home loan and he went along with her advice.
7. I am not satisfied that the contents of the notice of acquisition or the loan application have been adequately explained. It remains the case that on the loan application form Mr Dammo stated that he would not be living in the house, it was for an investment, and the mortgage payments would be met by income including rental income. Those documents are in the category of objective evidence that points strongly to an intention that the property would be purchased for investment purposes.
8. In my view there is strong evidence supporting a conclusion that Mr Dammo intended to use the property as an investment property:
   • the Notice of Acquisition,
   • the statements made in the Investment Home Loan Application,
   • the fact that Mr Dammo applied for an investment home loan;
   • the fact that he did not take out contents insurance.
9. Together with the above, there is also strong evidence that it was not his principal place of residence during the time he occupied it, and he occupied it for the temporary purpose of qualifying for the grant. That additional evidence is:
   • the very low utility use;
   • the fact that there was a bare minimum of furniture;
   • the fact that a lease was signed and a bond paid within the six month; and
   • the short duration of his occupation.

The relevance of the short period of occupation - Ferrington 5

1. Mr Dammo's occupation of the property was short - six months and two days.
2. As the fifth Ferrington principle tells us, while relevant, this is not determinative and a short period of occupation may still have the required degree of permanence. It will depend on the reason for the person't departure.

Is there a reasonable and adequate explanation for Mr Dammo's departure - Ferrington 6

1. What is commonly misunderstood is that even if you occupy the property for six months, if you do not occupy it during that time as your principal place of residence (with the necessary degree of permanence) your occupation will not comply with the whole of the residence requirement.
2. The reason for a person's departure must be both reasonably and adequately explained when considered objectively in the light of their personal circumstances (the sixth Ferrington principle)
3. The Tribunal looks for cogent evidence that provides an adequate and a reasonable explanation for the person moving out so soon, and evaluates that evidence in the light of their personal circumstances.
4. For example, it is not enough simply to say that 'financial difficulty' meant the person had to move, there must be cogent evidence of a change in circumstances.
5. It may not be a reasonable or an adequate explanation if that financial difficulty was 'on the cards' from the start - that it was obvious that the person would never be able to afford the mortgage payments unless they rented the property out.
6. Conversely, if the person's financial position remains stable or there is no objective evidence of a change in financial circumstances, it will be more difficult to persuade the tribunal that they intended at the outset to make it their home but things changed.
7. What was the evidence?
8. Ekaterini Dammo said that Mr Dammo told her about his financial difficulty months after moving into the property and made the decision to move back home.
9. Sarah Dammo in her witness statement said that Mr Dammo had to start leasing the property due to difficulties including losing his licence, losing his job and his commitment to his university studies.
10. Mr Dammo in his evidence at the hearing said that he had lost his licence before he purchased the property. He said that after he moved into the property he lost the job he had held for some time, and his last pay from that job was on 3 July. He said he looked for another job and obtained a position on 12 August 2009 at Red Rock Services where he still works.
11. On his evidence, he was without a job for just over one month and one week.
12. Mr Dammo spoke about how that changed the stability of the arrangements that he had in place. He said he had been able to afford to pay the mortgage before he lost the first position. But even after he got a new position he was earning less. He was earning $450 a week and that was less than the $480 a week that was required to pay the mortgage.
13. I accept that a period without a job could well impact on the stability of the arrangements Mr Dammo had in place. On the other hand, the objective evidence of the bank statements for the range of accounts Mr Dammo had indicate that the loss of the job for a month and then the new job had no noticeable impact on his financial position.
14. In particular, he continued to make the mortgage payments without interruption, and throughout this period maintained a stable level of savings of around $23,000. He received the First Home Owners Grant into his account in August 2009. That money was more or less immediately transferred into a Netbank saver account, where it remained throughout the relevant period.
15. There was also evidence that Mr Dammo had been able to top up one account with a $5,000 payment. He said he believed that sum had come from a term deposit account.
16. Although Mr Dammo said in evidence that his day to day account was going down, the statements show that from August onwards that account was reasonably stable. It would go up to just over $1,000, there would be a mortgage payment come out of it, it would go down to about $500 and then a wage payment would come in.
17. The objective evidence is that at no time was Mr Dammo struggling, and his financial position remained stable.
18. Mr Dammo was also vague about when he decided to move out.
19. In all the circumstances, Mr Dammo has not provided a reasonable and adequate explanation for his departure, in my view. Instead, the short duration of his occupancy is consistent with the weight of the objective evidence that he did not intend to make the property his permanent home, and that it did not have the necessary degree of permanence at any time.

Did Mr Dammo comply with the residence requirement - conclusion

1. I am satisfied on the evidence discussed above, approached in accordance with the Ferrington principles, that it was more likely than not Mr Dammo intended this property to be an investment.
2. I accept that he was mindful of and wanted to comply with the requirements of the First Home Owner Grant. But living in the property for the purpose of complying with the grant is not living in the property as one's principal place of residence.
3. In cases such as this, Mr Dammo as the applicant has the onus of proof. He bears the responsibility to persuade the Tribunal that on the balance of probabilities he complied with the residence requirement. The evidence falls well short of doing so.
4. I am satisfied on the weight of the evidence that his occupation did not have the necessary degree of permanence to meet the residence requirement.
5. In so finding, I accept that Mr Dammo to the best of his knowledge, and based on the advice that he received, believed that he was complying with the residence requirement.
6. For those reasons the Tribunal affirms the decision that the grant must be repaid.

1. I now consider whether Mr Dammo must also pay a penalty.
2. As the Commissioner submitted, the principles relating to penalty are well established.
3. Gravina v Commissioner of State Revenue [12] sets out the principles and lists eight factors to consider. My view about how a particular factor applies in this case in parenthesis.
   1. The truthfulness of the original statements made by the applicant in his or her application for grant [I found it more likely than not that Mr Dammo's intention from the outset was to have the property as an investment property]
   2. The surrounding circumstances including the intention of the applicant in relation to the occupation and use of the property as his or her principal place of residence at the time when seeking the grant; [I found it more likely than not that Mr Dammo's intention from the outset was to have the property as an investment property]
   3. The reasons for the failure to comply with the conditions of the grant [in my view his stated reasons were not adequate nor reasonable]
   4. Whether the applicant has occupied the property as his or her principal place of residence [not established on the evidence]
   5. The candour of the applicant in his or her responses to inquiries [the Commissioner indicates that he was candid and cooperative]
   6. Whether the grant has been refunded [Mr Dammo has not repaid the grant]
   7. The deterrent effect of the penalty [considered below] and
   8. Penalty decisions in previous cases involving similar circumstances.
4. There is no doubt that general deterrence is important. It is in the public interest that persons who do not intend to or will not in fact comply with the residence requirement do not receive the grant. As section of the Act states, the purpose of the Act is to encourage and assist home ownership. It is not to assist investment property ownership.
5. In my decision in Box v Commissioner of State Revenue, I observed:

The imposition of a penalty, in appropriate cases, serves as a warning to those who might think it clever to apply for the grant, intending to do the absolute minimum to comply with the residence requirement and then rent the property out as soon as six months ticks over.[13]

1. As the Commissioner submitted, even where there is no moral culpability on the part of the applicant, the deterrent effect on others can be a sufficient reason to impose a penalty.[14]
2. It is also important in my view that Mr Dammo has not repaid the grant. He has had the benefit of $17,000 for nearly six years at a cost to the public.
3. The amount of the penalty imposed by the Commissioner is relatively small (5.9% of the grant and consistent with the penalty imposed in other cases referred to by the Commissioner.[15] In my view, a higher penalty could be appropriate but I do not propose to vary the amount in this case.
4. I affirm the decisions of the Commissioner to require the repayment of the grant and impose a penalty of $1,000.

[1] [2004] NSWADTAP 41; 2004 57 ATR 170 at [42].

[2] Expressed by Senior Member Davis in Alexander v Commissioner of State Revenue [2013] VCAT 868 at [21] as 'an outsider looking in would come to the opinion that [the property was either someone's principal place of residence or not]

[3] [2012] VCAT 265 at [15].

[4] See, for example, D'Amelio and Sofocleous v Commissioner of State Revenue (Taxation) [2012] VCAT 265; Kyriakou v Commissioner of State Revenue (Taxation) [2011 VCAT 640; Mauro v Commissioner of State Revenue (Taxation) [2010] VCAT 1207.

[5] At [37], per Deputy President Macnamara

[6] D'Amelio and Sofocleous v Commissioner of State Revenue (Taxation) [2012] VCAT 265, at [45]

[7] [2013] VCAT 208, at [12]

[8] Mauro v Commissioner of State Revenue [2010] VCAT 1207; Kyriakou; Haddad.

[9] [2014] VCAT 199.

[10] [2012] VCAT 913.

[11] [2013] VCAT 868.

[12] [2013] VCAT 347, at [33].

[13] See the observations of Macnamara J in D'Amelio at [15]

[15] Baklis; Haddad; Alexander; and Fallow