Sobhani v Chief Commissioner of State Revenue

Sobhani v Chief Commissioner of State Revenue - [2006] VCAT 1054 - VCAT 2009 case summary — Zoe

[43]

40 At the outset I can deal with the second issue, which can be promptly disposed. This was an application made prior to 7 December 2005 and the law applicable in this matter required that any extended period for purposes of the "residence requirement" had to be approved ahead of the expiry of that period (plus fourteen days). I have examined this issue in some detail in Fisk v Chief Commissioner of State Revenue [2008] NSWADT 59 as follows: "30. An examination of the relevant provisions and decided cases establish that any application for an extended period in relation to the relevant section 12(1) of the FHOG Act that applies in this matter had to be made within 12 months from settlement which occurred on 3 October 2003. 31. This approach has been applied in a consistent manner, with the exception of two cases, in a number of decisions of this Tribunal, including Lawrance & anor v Chief Commissioner of State Revenue [2002] NSWADT104; Taylor v Chief Commissioner of State Revenue [2004] NSWADT 36; McKenzie v Chief Commissioner of State Revenue [2005] NSWADT 214; UH v Chief Commissioner of State Revenue [2005] NSWADT 284; WH v Chief Commissioner of State Revenue [2006] NSWADT 199; Basonovic v Chief Commissioner of State revenue [2006] NSWADT 236 and Huertas v Chief Commissioner of State Revenue [2007] NSWADT 28. 32. In McKenzie , the President of the Tribunal in deciding this issue, stated this approach as follows: "20. The Parliament intended to set strict boundaries. The usual strict boundary is provided by the twelve month rule, that is people can have the grant in advance but they must move in within twelve months. This view is borne out by the following provisions - s 7(1)(b)(ii); s 7(2); s 12(1); and s 20(2). 21. The scheme of the Act contemplates certainty as to the period within which a person must move in. Any change must be made known ahead of the expiry of what might be called the usual period. The period of permitted delay is either twelve months or such extended period as has been permitted ahead of the expiry of that period (plus fourteen days)." 33. The approach taken in McKenzie was followed by the Victorian Civil and Administrative Tribunal in respect of similar provisions found in the Victorian First Home Owners Grant legislation in Hare v Commissioner of State Revenue (Taxation) [2006] VCAT 1054 and Alexopoulous v Commissioner of State Revenue (Taxation) [2006] VCAT 806. More recently, the Australian Capital Territory Administrative Appeals Tribunal has also taken a similar view in relation to similar provisions in Daniell v Commissioner for ACT Revenue [2008] ACTAAT 1. 34.However, in two cases, Mawad v Chief Commissioner of State Revenue [2005] NSWADT 207 and Cullen v Chief Commissioner of State Revenue [2007] NSWADT 121, the Tribunal has taken a contrary view.

[44]

35.In Mawad , the Tribunal had proceeded on the basis of the Commissioner's submission that, contrary to his previous position and Tribunal authorities, he had power during the relevant period to extend time for the compliance of the residence requirement even after the 12 months had expired. Subsequently, the President of the Tribunal in his reasons in UH v Chief Commissioner of State Revenue observed that the Commissioner's submission in Mawad was "uncritically" accepted by the Tribunal without any "substantive explanation" and expressed the view that the Tribunal should "continue to apply the considered views that have been expressed on the matter in earlier Tribunal decisions". 36.In Cullen the Tribunal concluded that "the discretions of the Commissioner under s 12 as applicable in this case, were not restricted as to time and were capable of exercise by the Commissioner at any time". … 37.Under s 34 of the Interpretation Act 1987 (NSW) , extrinsic material can be used to (a) confirm that the ordinary meaning of a provision is appropriate or (b) to resolve the meaning of an ambiguous or obscure provision or to determine the meaning of a provision where the ordinary meaning is manifestly absurd or unreasonable. However, where the terms of the relevant law are clear and easily understood, extrinsic material play no part. 38.In Cullen , the Tribunal did not refer to the above rules of interpretation but nevertheless proceeded to rely on the Second Reading Speech of the Minister without regard to the clear words of the relevant provisions. In paragraph 37 of the decision, the Tribunal placed a great deal of reliance on the "New s 20(5) of the FHOG Act". No new s 20(5) of the FHOG Act has been introduced. Perhaps, the Tribunal was referring to the "new s 12(5)". Whatever may be the case, the scheme of the FHOG Act is quite easily understood, as the relevant provisions are clear and not ambiguous or obscure and it is not necessary to resort to any extrinsic material in understanding their meaning."

[52]

48 In determining a person's principal place of residence, the principles or factors suggested by the Appeal Panel of the Tribunal in Chief Commissioner of State Revenue v Ferrington [2004} NSWADTAP 41 are widely used by the Tribunal. They were recently adopted by the Appeal Panel in Chief Commissioner of State Revenue (RD) v McIlroy [2009] NSWADTAP 21. The Appeal Panel in adopting the factors summarised the factors as follows: First, the words "principal place of residence" should be given their ordinary meaning in the context in which they appear … Thus the Commissioner's reference to the provisions of the Land Tax Management Act 1956 is of no assistance. Secondly, 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 … Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue … Fourthly, 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 occupation for some other purpose … Fifthly, the short length of a person's residence, while relevant, is not determinative of the issue … This is so since a recipient's occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, or contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time or a transient, temporary, or contingent basis, but one can also occupy for a short time as one's principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible … Sixthly, 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 … In Bates the Tribunal said that "whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant" was a factor to be considered. While that is undoubtedly correct, it should not be read as stipulating a requirement that the reasons for departure must entirely out of the person's control. The facts in Gaines illustrate that there are circumstances, peculiar to the individual concerned, which may, objectively viewed, adequately and reasonably explain a person's decision to move out of a property, but which are not entirely out of the person's control.

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