A public ruling, when issued, is the published view of the Commissioner of State Revenue (the Commissioner) on the particular topic to which it relates. It therefore replaces and overrides any existing private rulings, memoranda, manuals and advice provided by the Commissioner in respect of the issue(s) it addresses.
Where a change in legislation or case law (the law) affects the content of a public ruling, the change in the law overrides the public ruling—that is, the Commissioner will determine the tax liability or eligibility for a concession, grant or exemption, as the case may be, in accordance with the law.
A contract to purchase a house, home unit or town house will usually be presumed to be a contract to purchase a home.
A building contract for a four bedroom dwelling that is to comply with all the usual building and local authority regulations will usually be presumed to be a contract for the construction of a home.
B constructed a shed on vacant land and, shortly thereafter, resided in the shed while his home was constructed on the same parcel of land. The home will not be attached to the shed. B applied for the grant in respect of the construction of the shed but was unable to obtain a statement referred to in paragraph 12 of this Public Ruling. As a result, the shed was not lawfully used as a place of residence and B’s application was declined.
B may, however, be eligible for the grant in respect of the subsequent construction of the home, provided that the eligibility criteria in the FHOG Act are satisfied.
X constructed a building on vacant land and, upon completion of the building’s construction, resided in the building. X applied for the grant in respect of the construction of the building. The Commissioner was satisfied that the building was lawfully used as a place of residence. However, the Commissioner was in doubt that the building was suitable for use as a place of residence.
X therefore obtained, and produced to the Commissioner, a statutory declaration referred to in paragraph 13 of this Public Ruling. The Commissioner was subsequently satisfied that the building constituted a ‘home’. X may therefore be eligible for the grant in respect of the building, provided that the eligibility criteria in the FHOG Act are satisfied.
D owns vacant land on which a home is to be built. D acquires a house from another location and subsequently undertakes construction (whether under a contract with a builder or otherwise) to build the home. Once the building work is completed, D obtains a final inspection certificate under the Building Act 1975 for the home.
D is the first occupier of the home in its completed state on D’s land. It is considered a new home in accordance with s.6(2)(a). It is immaterial whether the house had been used previously as a residence at its original location.
A home unit, house or town house will be presumed to be residential property.
Y purchased a block of land on which a large shed was situated. Y lived in the shed for some time before purchasing a home on other land. Y has not owned any other properties. Y applies for the first home owner grant for the home being purchased. The property being purchased will not be regarded as a first home because the property on which the shed is constructed was used for residential purposes and will be presumed to be residential property.
However, if Y proves that the shed was not a Class 1a dwelling or sole-occupancy unit that is a dwelling for the purposes of the Building Code of Australia, by producing a statement or statutory declaration referred to in paragraph 16 of this Public Ruling, the shed will not be regarded as residential property and Y may qualify for the grant on the home being purchased.
Z purchases a home and applies for the first home owner grant in respect of the contract for the purchase of the home. However, before deciding Z’s application, the Commissioner becomes aware that Z had been living in a building on another property acquired by Z after 1 July 2000. Z claims that the building on the other property was a warehouse and, as such, does not constitute residential property.
The Commissioner would require the production of a statement or statutory declaration referred to in paragraph 16 of this Public Ruling to establish that the warehouse was not residential property.
A three bedroom brick home was constructed in a metropolitan area two years ago by X, an owner builder.23 The home is not the subject of an approval, certificate or document referred to in paragraph 16 of this Public Ruling.
However, the building is a Class 1a dwelling or sole-occupancy unit that is a dwelling for the purposes of the Building Code of Australia. The home is suitable for occupation as a place of residence and therefore the land on which it is situated constitutes residential property.
Commissioner of State Revenue
Date of issue: 26 October 2016
|Public Ruling||Issued||Dates of effect|
|FHOGA000.1.5||26 October 2016||26 October 2016||Current|
|FHOGA000.1.4||11 October 2012||11 October 2012||25 October 2016|
|FHOGA000.1.3||30 March 2010||31 March 2010||10 October 2012|
|FHOGA000.1.2||21 December 2009||1 January 2010||30 March 2010|
|FHOGA000.1.1||24 February 2009||24 February 2009||31 December 2009|
|Supersedes Practice Direction FHOG 4.2||18 October 2004||18 October 2004||23 February 2009|
|Supersedes Practice Direction FHOG 7.1||4 August 2003||4 August 2003||23 February 2009|