Tran v Commissioner of State Revenue (Review and Regulation) [2025] VCAT 581

1. Subject to order 2, the assessment of the applicant to duty (and interest) made on 30 January 2023 (by Notice of Reassessment no. 31221615) is confirmed.
2. The penalty tax is remitted from $6,417.50 to $2,567.00.

1. On 20 December 2017, Ms Thi Nhu Nguyet Tran completed the purchase of a residential property in Werribee ('Relevant Property') and became its registered proprietor on 10 January 2018.[1]
2. No duty was paid on the transfer of the Relevant Property to Ms Tran as, in the Transferee Statement dated 12 December 2017, she indicated that she intended to occupy the property as her principal place of residence ('PPR') from completion and claimed the PPR concessions and first home buyer ('FHB') exemption (collectively, 'duty benefits') under the Duties Act 2000 (Vic) ('Duties Act').
3. A key requirement for Ms Tran to be eligible for the duty benefits is that she occupied the Relevant Property as her principal place of residence for a continuous period of 12 months commencing within 12 months of becoming entitled to possession ('Residence Requirement').[2]
4. After a period of investigation, on 30 January 2023, the Commissioner of State Revenue ('Commissioner') assessed Ms Tran to duty of $25,670 on the acquisition of the Relevant Property, without the duty benefit ('Assessment'). This was on the basis that Ms Tran had not satisfied the Residence Requirement. Further, the Commissioner imposed penalty tax of $6,417.50 (at the rate of 25%) and interest of $684.21 (at the market rate of interest up to the date of the Assessment).
5. The main issues in dispute in the proceeding are whether:
   • Ms Tran satisfied the Residence Requirement;
   • Ms Tran took reasonable care in complying with her tax obligations or the penalty tax should otherwise be remitted; and
   • the interest should be remitted.
6. Two further issues emerged during the hearing (and, in respect of which the parties were given leave to file further submissions), namely whether:
   • the respondent (and the Tribunal on review) has a discretion in relation to any reassessment of duty if it is found that the Residence Requirement has not been complied with; and
   • whether the Tribunal has jurisdiction to remit interest which accrues post-assessment.
7. For the reasons set out below, I have determined that:
   • Ms Tran has not discharged her onus of proving that she satisfied the Residence Requirement;
   • the Tribunal does not have a discretion in relation to the reassessment of duty where the Residence Requirement has not been satisfied; and
   • while Ms Tran did not take reasonable care to comply with her tax obligations, it is appropriate to remit the penalty tax from $6,417.50 (an effective rate of 25%) to $2,567.00 (an effective rate of 10%) having regard to the treatment of first home owner grants; and
   • the interest which accrued to the date of the Assessment should not be remitted.

(It is unnecessary to address whether the Tribunal has jurisdiction to remit any post-assessment interest as the Commissioner sent Ms Tran a letter on 5 June 2025 indicating that he would remit that interest in full.)

1. Duty is ordinarily payable by a transferee in respect of a transfer of land at rates from 1.4% to 6%, depending on the dutiable value of that land.[3] However, those rates do not apply where 'other provision is made'.[4]
2. Section 57J of the Duties Act sets out a different rate of duty on a 'PPR transfer', being a transfer to a natural person who intends to occupy the land as his or her principal place of residence.[5] It is a duty concession because, while duty is still payable, the rate of duty is lower than applies to an ordinary purchase of property.
3. Section 57JA of the Duties Act provides a further benefit, by way of exemption of duty for first home buyers in respect of a PPR transfer provided the value of the land is less than $600,000 and a first home owner grant is paid or payable in respect of the land.
4. Both the concessional rate of duty under section 57J, and the exemption under section 57JA, are subject to a requirement that the transferee comply with the Residence Requirement.[6]
5. Where the Residence Requirement is not satisfied, the transfer of land becomes chargeable with duty at the normal rate and without the benefit of any exemption or concession.[7] The Commissioner 'may' reassess duty on the transfer accordingly.[8]
6. A 'tax default' arises where duty is not paid within 30 days after the failure of the Residence Requirement,[9] resulting in a penalty (ordinarily at the rate of 25%) under section 30 of the Taxation Administration Act 1997 (Vic) ('TA Act'). However, under section 30(3), no penalty tax is payable where a taxpayer has taken 'reasonable care' to comply with the taxation law. Further, under sections 28 and 35, the Commissioner has a general discretion to remit interest and penalty tax (respectively) 'in such circumstances as the Commissioner considers appropriate'.
7. A person may request the referral of a matter for review by the Tribunal if their objection to a duty reassessment is not allowed.[10]
8. On review, the applicant bears the onus of proof.[11] The standard of proof is the balance of probabilities.[12]

1. At the heart of the Residence Requirement is the need to establish that a particular property has become, and is maintained as, the 'principal place of residence' of the person concerned for at least 12 months. However, despite its critical importance, the phrase 'principal place of residence' is not defined as such in the Duties Act.
2. In Chief Commissioner of State Revenue v Ferrington ('Ferrington'),[13] the Appeals Panel of the New South Wales Administrative Decisions Tribunal drew together a number of principles from the cases considering that phrase, albeit in the context of a first home owner grant, in the following passage ('Ferrington Principles'):[14]

First, the words "principal place of residence" should be given their ordinary meaning in the context in which they appear ...

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 is 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, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on 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 be entirely out of that 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.

1. The Ferrington Principles are regularly applied in cases concerning the first home owner grant,[15] and in the context of other legislation using the same term, including in respect of duty benefits.[16] In essence, the principles require attention to be given to objective indicators of occupation and a person's objective intention in undertaking such occupation.
2. In relation to the first matter, in Robbins v Commissioner of State Revenue,[17] Member Glover noted that '[u]tility usage is a significant means of assessing actual occupation' and, in that case, did not accept the taxpayer's evidence of her 'frugal mode of occupation' as accounting for the 'minimal utility use' (e.g. the evidence showed that electricity usage was between 0.9 and 2.3kWh per day as compared to the Australian Government's benchmark which indicated average usage for a one person household of 7.4kWh per day).
3. As discussed by (then) Deputy President Macnamara in Kyriakou v Commissioner of State Revenue ('Kyriakou'),[18] in the context of a first home owner grant, the fact that a person sleeps at a property may not be sufficient where it is found to be 'merely the completion of some ritual of occupancy [for the required period] which [the taxpayer] believed was necessary to qualify for the grant'. This is because the occupation 'lacks the necessary permanence'.
4. Events which occur before and after the end of the period in which the Residence Requirement is to be satisfied will often shed light on that intention. As observed in Beech v Commissioner of State Revenue ('Beech'),[19] in the context of the duty exemption for transfers between spouses, the PPR case law establishes that:

where a person acquires and moves into a property - intending to lease it out immediately after meeting any statutorily required period of residence - this may lack the necessary degree of permanence or, alternatively, be regarded as occupation for another purpose.

1. The parties filed a joint Tribunal Book, which contains approximately 270 pages of documentary evidence (mostly gathered during the investigation period), including:
   • utility invoices (e.g. for electricity, gas and water);
   • documents concerning the leasing of the Relevant Property;
   • documents concerning other properties with which Ms Tran has been associated; and
   • statutory declarations made by Ms Tran, one of the vendors of the Relevant Property, the estate agent who has been involved with leasing the Relevant Property and some of Ms Tran's friends.
2. The Commissioner's submissions dated 12 September 2024 ('RSLC') include the following summary of the water usage at the Relevant Property between February 2018 and February 2019:[20]

(a) 26 February 2018 to 10 April 2018 - 0.09 kilolitres per day;

(b) 10 April 2018 to 9 July 2018 - 0.13 kilolitres per day;

(c) 9 July 2018 to 10 July 2018 - 0 kilolitres;

(d) 10 July 2018 to 8 October 2018 - 0.18 kilolitres;

(e) 8 October 2018 to 9 January 2019 - 0.32 kilolitres; and

(f) 10 January 2019 to 4 February 2019 - 0.42 kilolitres per day.

1. In closing submissions, Mr Chaile (counsel for the Commissioner) contrasted that usage with the daily average usage of 0.67kL per day between 9 October 2017 and 9 January 2018[21] when the Relevant Property was rented to one of the tenants.
2. The Commissioner's submissions also include a summary of electricity usage between February 2018 and January 2019 as follows:[22]

(a) 23 February 2018 to 21 March 2018 - 49kWh (an average of 1.83 kWh per day);

(b) 22 March 2018 to 19 June 2018 - 169 kWh (an average of 1.88 kWh per day);

(c) 20 June 2018 to 17 September 2018 - 247 kWh (an average of 2.75 kWh per day);

(d) 18 September 2018 to 16 December 2018 - 689 kWh (an average of 7.66 kWh per day); and

(e) 17 December 2018 to 31 January 2019 - 345 kWh (an average of 8.97 kWh per day).

1. In closing submissions, Mr Chaile observed that, in Afi v Commissioner of State Revenue,[23] Senior Member Wentworth had noted that AGL electricity benchmarks 'estimate average daily usage at 10.6kWh (with gas hot water) for occupation by one person'. He also noted that the usage of 250kWh for the period between 20 June and 17 September 2018 (a period when Ms Tran said her son was living with her in the Relevant Property) was about a quarter of the usage recorded by AGL for 'other homes in [the] area' (of 936kWh).[24]
2. Ms Tran did not contest the accuracy of these summaries.
3. The Commissioner's submissions do not include a summary as to gas usage, however I have compiled the following table from the AGL gas accounts included in the Tribunal Book:[25]

1. It is noted that the gas accounts from July 2018 also include a comparison of Ms Tran's usage to the average usage for a one person and two person home. For example, for the period from July to September 2018, the comparison was as follows:[27]

1. In terms of the leasing of the Relevant Property, the documentary evidence reveals:
   • one of the vendors leased the property from completion, providing a bond for the lease to Ms Tran's estate agent on 15 December 2017;[28]
   • the lease to the vendor was for three months (until 14 February 2018), but the vendor 'returned the keys early on 27/01/2018';[29] and
   • the property was re-let and has been continuously leased by the estate agent from 31 January 2019.[30]
2. In terms of other properties associated with Ms Tran, her residential address for the purposes of:

(a) her driver's licence[31] has been recorded at:

• a property in Balmoral Avenue, Springvale between March 2013 and December 2018; and
• a property in Kingsville from December 2018.

(b) her tax return[32] has been recorded at:

• the Balmoral Avenue property between October 2013 and August 2018;
• a property in St Johns Avenue, Springvale between August 2017 and July 2018;
• the Relevant Property between July 2018 and August 2019; and
• the Kingsville property between August 2019 and August 2020.

(c) the water account relating to the Relevant Property[33] was recorded at:

• the Kingsville property between December 2017 and February 2018;
• the Relevant Property between February and July 2018;
• the Kingsville property between July 2018 and February 2019; and
• the Relevant Property between February and December 2019.

1. In a statutory declaration made on 29 July 2024,[34] Ms Tran declares that:
   • she and her (then) husband bought the Relevant Property at the end of 2017 and 'were excited to move into the home';
   • 'between the settlement', she and her husband had an argument, their marriage fell apart and he decided he did not want to move to the Relevant Property (and instead took their son to Vietnam);
   • when her son (who has certain medical conditions) returned to Australia in March 2018, he did not want to move into the Relevant Property because it was cold and he did not have anyone to play with, so he initially stayed with a friend who also had a son at the same school (in Footscray);
   • because she was working long hours, seven days a week, Ms Tran would eat dinner with her son and friend at the latter's house after work each day, before returning to the Relevant Property to sleep; and
   • from May 2018, she and her son were able to 'spend more time' at the Relevant Property and her friend and her children would come over for dinner.
2. Ms Tran describes the decision to rent out the Relevant Property as being 'very difficult', in terms of having to 'give up the dream of a happy family home with [her] husband and [her] son in order to move close to Footscray for [her] son's school'. She says she only 'started renting in Footscray after completing 12 months of using [the Relevant Property] as [her] principal place of residence as required for the First Home Buyers and free stamp duty [she] claimed'.
3. In giving evidence before the Tribunal, Ms Tran confirmed that her statutory declaration was true and correct.
4. In answer to questions raised in cross-examination, Ms Tran explained:
   • the reason the Relevant Property was purchased in her name only, rather than with her then husband, is that they had already been having disagreements, and she went to the auction alone;
   • she had made a mistake, in her initial response to the State Revenue Office ('SRO') in October 2022,[35] when she said that she had lived at the Kingsville property between February 2018 and November 2019 (noting that in an email sent in January 2023,[36] she clarified that she only moved to the Kingsville property in February 2019);
   • she had made the suggestion, in the January 2023 email, that she lived in the Relevant Property from completion of its purchase (when the evidence shows it was rented to one of the vendors) because she was working hard, responded at 1.26 am and did not have a chance to check with the estate agent;
   • she had always planned for her son to attend school in Footscray, with her friend's son;
   • she was unable to explain why her utility usage was low, other than the fact that she worked long hours (and her son was at school or at her friend's house during the day), generally only going back to the Relevant Property to sleep. She suggested that any comparison with others is inappropriate, because she tries to save money and does not use much water or electricity.
5. In response to a question from me, Ms Tran said that she had informed the estate agent of her intention to leave the Relevant Property a few weeks before vacating (i.e. in early January 2019), to enable him to advertise the property and find a tenant.
6. Ms Tran maintained that she had always tried to do the right thing, including complying with the Residence Requirement.

1. As noted, the Tribunal Book includes statutory declarations from the vendor of, and estate agent for, the Relevant Property which are consistent with the discussion of the leasing history regarding that property.
2. The Tribunal Book includes further statutory declarations from:
   • Mee Ling Chai Le,[37] a relative of Ms Tran's former husband, who explains that she owns the Balmoral Avenue property and she allowed Ms Tran and her former husband to use it between 2010 and June 2017. She states that Ms Tran no longer stayed at that property after July 2017; and
   • Thi Lieu Dao, Ms Tran's friend (who also attended the hearing as a support person), states that she provided dinner to Ms Tran and her son 'almost every day' and who often allowed Ms Tran's son to stay overnight;
3. The Commissioner decided not to require either witness to be available for cross-examination.[38]
4. The Tribunal Book also includes a letter from a psychologist.[39] However, this appears to be more in the nature of submissions as to why Ms Tran cannot afford to pay the Assessment than providing any evidence as to where Ms Tran lived at the relevant time.

1. In his written submissions, the Commissioner contends that:[40]

the Tribunal cannot be satisfied on the balance of probabilities that the applicant used and occupied the [Relevant] Property as her principal place of residence for the relevant period because:

(1) the applicant has not discharged her onus of establishing that circumstance; and

(2) the evidence before the Tribunal tends to establish that the applicant did not use the [Relevant] Property as her principal place of residence for the relevant period having regard to the application of the Ferrington principles.

1. In this regard, the Commissioner points to three matters:
   • First, the 'shifting quality in the applicant's assertion that she occupied the [Relevant] Property as her PPR'.[41] In this regard, during the SRO investigation, Ms Tran had claimed to live at the Relevant Property from 20 December 2017,[42] but now claims it was from 27 January 2018.
   • Second, Ms Tran's 'purported occupation of the [Relevant] Property lacked a sufficient degree of permanence to amount to her PPR'.[43] In particular, this is based on the low level of utility usage. For example. with respect to water, the usage during the period from February to July 2018 is said to inconceivably suggest any occupant 'would not have taken a shower, drank water or used a toilet', a matter that 'defies both logic and common experience'. Further, based on previous authorities,[44] any use she made of the property for sleeping is 'inconsistent with the degree of permanence required for that property to constitute a PPR'.
   • Third, that the Relevant Property was 'immediately leased upon settlement, and then leased again following expiry of what the applicant contends was the relevant 12 month period' is contended to suggest that 'it was always intended that the Relevant Property would be tenanted'.[45] Again, based on authorities, this 'establishes a lack of permanence sufficient to characterise the [Relevant] Property as the applicant's PPR during the relevant period'.[46]
2. In terms of Ms Tran's evidence about the breakdown of her marriage, the Commissioner submits it is 'devoid of any corroborating evidence' and, in any event, 'establishes that there there was a change prior to occupation of the [Relevant] Property which meant that there was not... any intention for the [Relevant] Property to be occupied as the applicant's PPR at the time that occupation commenced'.[47]
3. The Commissioner submits that, based on the case law as to what 'reasonable care' requires,[48] the Commissioner 'was correct to impose penalty tax' based on the following matters:[49]
   • First, the statutory scheme, which provides a default rate of 25% penalty tax in the event of a tax default.
   • Second, the absence of any evidence of legal advice being obtained by Ms Tran as to her tax obligations.
   • Third, the contradictory evidence as to the commencement date of her occupation of the property.
4. In terms of interest, the Commissioner submits:[50]

there is no justification for interest to be remitted in circumstances where the applicant has not demonstrated the taking of reasonable care in respect of her tax affairs, and the Commissioner has not otherwise contributed to the applicant's default.

1. In broad terms, Ms Tran submits that the Assessment should be set aside on the bases that she has met the Residence Requirement given:[51]
   • she moved into the Relevant Property on 27 January 2018, from which time she 'lived continuously at the property' while working 'seven days as week to meet financial obligations';
   • she only relocated to Footscray after 12 months, on 31 January 2019, 'to be closer to her son's school, medical services, and social supports';
   • the Relevant Property 'was never leased or made available for rent during the 12-month period'; and
   • while her son 'occasionally stayed with a close friend', this was 'temporary and necessary' due his conditions.

1. I consider Ms Tran has failed to discharge the onus of proving, on the balance of probabilities, that:
   • she lived in the Relevant Property over the entirety of the 12-month period between January 2018 and January 2019; and
   • to the extent she stayed at the Relevant Property during the period, she occupied the property 'as her principal place of residence'.
2. I accept that, while care needs to be taken about 'relying on averages rather than specific comparable data'[52] when it comes to utility usage, Ms Tran's usage is so low at various stages that it can only be consistent with her spending most of her time living elsewhere, noting the number of other properties that appear to have been available to her.
3. That is not to say that Ms Tran never visited the Relevant Property. However, she has not provided any proper explanation, and supporting evidence, for the low utility usage. That low usage is more consistent with merely sleeping at the property, which the cases establish is insufficient to satisfy the Residence Requirement.
4. Further, Ms Tran's occupation appears to have been what is referred to in Ferrington as being of a 'transient, temporary, contingent or passing nature'.
5. In this regard, while there is no direct evidence, it can be inferred that the estate agent would not have been willing or able to lease the Relevant Property from 31 January 2019 unless Ms Tran had given him a leasing authority and steps had been taken to advertise and show prospective tenants through the property for a number of weeks before that date.

As indicated in Mercuri v Commissioner of State Revenue,[53] entry into an exclusive leasing authority within the period necessary to satisfy the Residence Requirement for leasing to start after that period is:

• - 'more consistent with an intention to hold the Unit for investment than as a [principal place of residence]'; and
• - '[v]iewed objectively ... [consistent with] going through a "ritual of occupancy ... necessary to get the grant".'

1. For these reasons, I find Ms Tran did not satisfy the Residence Requirement.

1. Section 57M(1) of the Duties Act provides that, where the Residence Requirement is 'not complied with', the transfer 'is chargeable with duty' at ordinary rates. Section 57M(2) provides that the Commissioner 'may' reassess duty on the transfer 'accordingly'.
2. Generally, the use of the word 'may' would connote a discretion on the part of a decision-maker.[54]

1. The Commissioner accepts that he has a discretion under section 57M(2) as to whether to reassess a PPR transfer in circumstances where the Residence Requirement is not met.[55] However, he submits the Tribunal lacks jurisdiction to exercise that discretion,[56] relying on the Tribunal's reasoning in Pitard & Ors v Commissioner of State Revenue ('Pitard').[57]
2. In his further submissions, the Commissioner highlights two 'notable' features of section 57M, as follows:[58]
   • The 'operative power' to reassess is 'clearly referential to the Commissioner's general power to make a reassessment under s 9(1) of the [TA Act]', which is further evident from section 57M(3) which authorises a reassessment outside the usual five year limitation period in section 9(3)(c) of the TA Act.
   • The liability to duty that arises by reason of a failure to satisfy the Residence Requirement is 'in mandatory terms' (i.e. it provides the PPR transfer is chargeable with duty in such circumstances). Further, in section 57N(2) of the Duties Act, a distinction is draw between the 'power to reassess duty under section 57M' and the 'discretion under section 57L' to vary the Residence Requirement if satisfied there is a good reason for doing so.
3. Based on the first of these textual features, the Commissioner contends that the Commissioner's discretion under section 57M(1)(b) is 'no different, in substance, than the decision by the Commissioner to assess (or reassess) under ss 8 or 9(1) of the [TA Act]'.[59] The Commissioner contends that, '[g]iven the nature of the decision (ie., whether to reassess), the decision does not form part of the Tribunal's review jurisdiction, for the reasons discussed in Pitard'.[60]
4. Further, because 'Pitard is not challenged in the present application', the Commissioner submits 'for reasons of comity and consistency, [it] ought to be followed'.[61]
5. In her reply submissions, Ms Tran contends that the Tribunal 'may consider both factual and fairness grounds when reviewing reassessments'[62] and 'substitute its own decision and vary the assessment where it is not just and equitable in all the circumstances'.[63] In the latter regard, she references the hardship she had endured,[64] claims that she has acted in good faith and points to the 'remedial purpose' of the duty exemption.[65]
6. Ms Tran submits that the Commissioner's discretion under section 57M is reviewable so as to ensure 'the decision is not automatic or inflexible, and can be scrutinised for fairness and proportionality'.[66]

1. There is no doubt that, on review, the Tribunal steps into the shoes of the Commissioner and is able to re-exercise the discretion in section 57L to modify the operation of the Residence Requirement in one or more of the ways indicated to ameliorate the harshness that may otherwise arise from a strict application of that test.
2. However, I accept the Commissioner's submission that, when considered in its relevant context, the effective discretion under section 57M(1)(b) as to whether (or not) to reassess sits somewhat differently. As the Commissioner observes that discretion sits awkwardly with the mandatory nature of the liability to duty arising under section 57M(1)(a). Further, the connections with section 9 of the TA Act are made clear in the note to section 57M(3) of the Duties Act.
3. When considered in that context, I do not consider that the legislature would have intended the Tribunal to have a discretion to overturn a reassessment made by the Commissioner consequent upon a failure of a taxpayer to satisfy the Residence Requirement based on some general conception of what is 'just and equitable' in the circumstances.
4. Rather, I consider that the legislature intended the operation of section 57M to be harmonious with section 9 of the TA Act, save for permitting a reassessment outside the ordinary five year limitation period.
5. On that basis, and having regard to the reasons discussed in some depth in Pitard, I do not consider that, on review, the Tribunal can re-exercise the discretion in section 57M(1)(b) to set aside a reassessment the Commissioner has made.

1. While there is a discretion to remit interest, the interest imposed in the Assessment has been calculated based on the market rate, to reflect the time value of money. No proper basis for the remission of the interest imposed to date (such as delay on the part of the Commissioner) has been put forward by Ms Tran.
2. I accept there has been some delay in the matter getting to a hearing. In this regard, it is noted that although the matter was referred to the Tribunal in November 2023, and it appears Ms Tran paid the fee soon after, no order listing the first directions hearing was made until April 2024 (with that directions hearing being scheduled in early June 2024).
3. However, as the Commissioner has already agreed to remit any post-assessment interest in all the circumstances, it is unnecessary to determine whether the Tribunal has a discretion to remit such interest on review.
4. In relation to the penalty tax, I accept the Commissioner's submission that Ms Tran has not provided evidence that she took reasonable care to comply with her obligations and, as such, it is not appropriate to remit the penalty tax under section 30(3) of the TA Act.
5. Section 35 of the TA Act provides a discretion for the Commissioner to remit the penalty tax by any amount 'in such circumstances as the Commissioner considers appropriate'. Of course, the Tribunal steps into the Commissioner's shoes and can exercise this discretion in an appropriate circumstance.
6. As discussed at the hearing, the penalty has been imposed at the statutory rate of 25%. This is somewhat higher than the rate (10%) which applies where a first home owner grant is required to be repaid as a result of a failure to satisfy the Residence Requirement.[67]
7. While it is true that the penalty regime under the first home owner grant legislation is not the same, and generally less prescriptive than the regime that generally applies under the TA Act,[68] given that the duty liability in this case also arises from a failure to satisfy the Residence Requirement, and taking account of all of Ms Tran's circumstances, I consider there ought to be alignment in the penalty imposed.
8. I consider that it is appropriate, in the circumstances, to remit the penalty tax from $6,417.50 to $2,567.00.

[1] Tribunal Book ('TB') at tabs 22 and 25.

[2] Duties Act, s 57K.

[3] Duties Act, ss 7, 12 and 28.

[4] Duties Act, s 28(2).

[5] The latter aspect is set out in Duties Act, s 57I.

[6] Duties Act, s 57K.

[7] Duties Act, s 57M(1)(a).

[8] Duties Act, s 57M(1)(b).

[9] Duties Act, ss 16 and 57M(2).

[10] First Home Owner Grant and Home Buyer Schemes Act 2000 (Vic) ('FHOG Act'), s 29 and TA Act, s 106.

[12] See, for example, Nikoiee v Commissioner of State Revenue [2018] VCAT 1425 [12].

[13] [2004] NSWADTAP 41.

[14] Ibid [42] (references omitted and principles separated to assist with readability).

[15] See (for example) D'Amelio & Anor v Commissioner of State Revenue [2012] VCAT 265 ('D'Amelio') [15]-[16].

[16] For example, Carvalho v Commissioner of State Revenue [2017] VCAT 1295 and Ward v Commissioner of State Revenue [2016] VCAT 1307 (land tax) and Gao v Commissioner of State Revenue [2020] VCAT 577 (duty).

[17] [2016] VCAT 1265 [31].

[18] [2011] VCAT 640 [37].

[19] [2023] VCAT 1363 [22] (see third dot point, citing D'Amelio as an example).

[20] RSLC [38(1)] (drawn from data provided by Greater Western Water: TB, 144).

[23] [2017] VCAT 1894 [85].