McMillan & Darlinson v Commissioner of State Revenue [2015] VCAT 773
This matter concerned the purchase of an established home in Mornington by a husband and wife and the Commissioner’s decision to require repayment of the First Home Owner Grant ($7000), Bonus ($2000) and the Boost ($3500) and the imposition of a $1000 penalty under s48(2) of the FHOG Act for their failure to comply with the residence requirement in s12. Namely, that at least one of the joint applicants would occupy the property as his/her principal place of residence (PPR) for the required minimum period, within 12 months of completion of the eligible transaction.
The property was leased at purchase, and the husband alleged once the initial tenants had moved out he moved in and occupied the property as his PPR. However, following an alleged change in the wife’s circumstances he gave evidence that they had to let the property to new tenants after the six months and rented a place in Collingwood, closer to his wife’s work.
The Tribunal upheld the Commissioner’s decision, commenting that it “was not satisfied as to the veracity of the applicant’s evidence in general throughout.”
Following a discussion of the evidence, the Tribunal ruled that “[i]t necessarily follows from the findings of the later start date…and of the exit date from the premises…that there was a less than six-month period of occupancy. It therefore follows that the s12 criteria of the Act has not been complied with.”
In terms of the penalty, the Tribunal confirmed that it was in line with the authorities and needed for deterrence: “It is very difficult and expensive for the revenue to make investigations into these matters and one can see that it is important to deter others.”
