First Home Owner Grant Act 2000 (referral)
On referral from the Commissioner of State Revenue (Commissioner), VCAT can review determinations of objections by the Commissioner under the First Home Owner Grant Act 2000.
Cases we can hear
Only the Commissioner of State Revenue may refer a First Home Owner Grant Act matter to VCAT for review.
Referrals are usually made to VCAT when, some time after the grant has been paid to an applicant for a grant, the Commissioner of State Revenue investigates the situation, and comes to the view that the person is not entitled to the grant. The person may object to that decision and the CSR makes a determination on the objection.
The Commissioner of State Revenue will refer the matter to VCAT if an applicant is dissatisfied with the determination of an objection, and has requested the Commissioner to refer the matter to VCAT within the required time – see sections 29 and 30 of the Act.
If the Commissioner of State Revenue does not give a determination to the objection within 90 days, the objector may request the Commissioner to refer the matter to VCAT.
Legislation that gives VCAT the power to hear these applications
First Home Owner Grant Act 2000 - section 33
Your request to the Commissioner to refer the matter to VCAT must be made within 60 days after service on you of the Commissioner’s determination.
You may also request the Commissioner to refer the matter to VCAT if the Commissioner has not determined your objection within 90 days of receiving your objection.
If the Commisioner requires you to give further and better particulars of your objection under section 30 of the Act and you do not give them within 30 days, the Commissioner must not refer the matter.
If the Commissioner does not require you to give further particulars, and provided you have made your request within time, the Commissioner must refer the matter to VCAT within 60 days of receiving your request.
The following gives some background information to the issues that often arise in these referrals. Be aware that the law can change and seek legal advice if you are unsure of your legal rights.
To qualify for a first home owner grant, the applicant for the grant must fulfil the five criteria in the First Home Owner Grant Act 2000. See sections 8-12 of the Act.
Most referrals to VCAT involve the residence requirement - criterion 5 in section 12 of the Act.
The residence requirement
Section 12 of the Act requires the applicant for the first home owner grant to occupy the home to which the application relates as their principal place of residence for a continuous period of six months commencing within the first 12 months after the eligible transaction.
The first home owner grant is paid in the expectation that the applicant will comply with the residence requirement. If the applicant does not comply with the residence requirement, they must give written notice to the CSR and repay the grant. See section 20 of the Act.
Can costs be awarded against me?
No, in taxation matters, no costs can be awarded in the proceeding. However, as a result of amendments made to the Victorian Civil and Administrative Tribunal Act 1998, VCAT has discretion to order a party to reimburse the application fee paid by the other party.
Who has the onus of proof on review?
The objector has the onus of proving their case.
Am I bound by the grounds of objection?
Subject to any VCAT order, the objector’s case is limited to the grounds of the objection and the CSR’s case is limited to the grounds on which the objection is disallowed.
What approach will VCAT take?
In general terms, VCAT takes the following approach when determining whether the applicant has met the residence requirement:
- the words 'principal place of residence' should be given their ordinary meaning in the context in which they appear
- consideration of whether a person has been residing or occupying the 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
- the intention of the person concerned gauged objectively is relevant but not determinative of the issue 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 or contingent or passing nature is not sufficient, nor is occupation for some other purpose
- the short length of a person’s residence while relevant is not determinative of the issue
- the reason for a person’s departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstance.
What can VCAT order?
VCAT may confirm or vary the decision of the CSR.
If the objector does not appear before the Tribunal, the Tribunal must confirm the decision. However, if good cause is shown and application is made within the prescribed time, the Tribunal may reopen and review the matter.