An owner-occupier who granted her Scottish tenants a short overstay before they departed overseas, has contested a stamp duty re-assessment based on the interruption to her plans to take up permanent occupancy.

Catherine Grist acquired her Murray St, Wilston residence by settlement in August 2012.

Granted a “principal place of residence” concession on condition she made it her home within 12 months, she moved in well before – on 11 February 2013 – and had begun carting in belongings, several weeks earlier.

But it was a further qualification to the concession – that she not “dispose of the land” before commencing occupation – that was relied on by the Commissioner of State Revenue to gouge additional tax.

By extending the tenancy for even a day, it claimed, she had entered into a new lease or had otherwise “granted exclusive possession” to the couple which barred her benefiting from the concession duty rate.

Catherine had collected two weeks more rent. But her motivation was clearly to ease inconvenience associated with the Scots’ departure and the obstacles they – with two dogs in tow – would face in finding other lodgings.

Unfortunately for Grist, she had not taken the precaution of converting the tenants’ rights to those of a non-exclusive licensee, which would have absolved her from the Commissioner’s wrath.

His argument still depended on convincing QCAT member Bevan Hughes that the extension of January 2013 was “not under the original lease” but was rather, by way of a new agreement.

Hughes ruled – because a Notice to Leave had been issued – that the arrangement of 25 January 2013 was “subsequent to and superseded” the original tenancy.

With no consideration that the notice might have in fact been revoked or withdrawn, the circumstances were enough – so ruled the tribunal – for the very short overstay to be classed a “new” lease, offending the concession rules.

That the tenants had allowed Catherine to move in her belongings was not, it concluded, evidence that they enjoyed anything less than the right of exclusive occupation.

Grist was ordered to pay an additional $7,175 to make up the duty to the total payable on the purchase, by an investor.

Because her contravention was not for personal gain and the overstay an unexpected change of circumstances”, penalty duty was assessed at a moderate 15%, or $1.1k.

And having delayed the Commissioner “in receiving revenue to which he was otherwise entitled”, Catherine must also pay interest of $724, despite having had no idea that any transgression had occurred.

Grist v Commissioner of State Revenue [2014] QCAT 259 Member Hughes 12/06/2014


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