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 taxpayer purchases a home for which a home concession is claimed, but fails to take up occupation due to an unexpected transfer of employment. The taxpayer notifies the Commissioner two years later (i.e. outside the time within which the notification should have been given under the Duties Act).
As for Example A, and the taxpayer notifies the Commissioner within the time specified in s.155 of the Duties Act.
Commissioner of State Revenue
Date of issue: 1 February 2016
|Public Ruling||Issued||Dates of effect|
|TAA060.3.6||1 February 2016||1 February 2016||Current|
|TAA060.3.5||3 July 2012||1 July 2012||31 January 2016|
|TAA060.3.4||12 August 2011||1 August 2011||30 June 2012|
|TAA060.3.3||15 April 2010||15 April 2010||31 July 2011|
|TAA060.3.2||3 July 2009||30 June 2009||14 April 2010|
|TAA060.3.1||24 February 2009||24 February 2009||29 June 2009|
|Supersedes Revenue Ruling TA 4.3||2 January 2007||1 January 2007||23 February 2009|
Guidelines for remission of penalty tax in the event of a reassessment under ss.153 or 154 of the Duties Act 2001 of a home concession
This attachment illustrates circumstances in which the Commissioner would consider remission and the extent of remission when making a reassessment in relation to a previous claim for a transfer duty home concession or first home concession (home concession). The categories provide a guide only, and each case must be considered on its merits. The Commissioner will request evidence establishing that the claimed category applies, such as evidence from third parties.
If this category applies, the Commissioner would usually consider partial remission of the penalty tax imposed so that the taxpayer is liable only for an amount equivalent to 15% of the increase in primary tax.
After claiming a home concession under the Duties Act, a taxpayer, due to an unexpected change of circumstances, either:
Shortly after acquiring their home and claiming the home concession, but before taking up occupation, the taxpayer’s daughter suffers from a major illness requiring long-term care. The taxpayer sells the home and moves in with her daughter to take care of her. Medical evidence will be required by the Commissioner to establish these facts.
Within 12 months after acquiring their home (for which the home concession was claimed) and taking up occupation, the taxpayer receives an offer of employment in another location. They move out and rent the home.
A taxpayer acquires vacant land and claims the concession for land on which a first home is to be constructed. The taxpayer’s residence is constructed within two years after the transfer date for the land, and the taxpayer begins occupying the residence as soon as final inspection is approved. Soon after occupying the residence, the taxpayer is transferred interstate for work. The taxpayer sells the residence.
After claiming a home concession under the Duties Act, a taxpayer disposes of the residential land within one year after taking up occupation as their principal place of residence, but always intended to occupy for less than the full year because they were to leave the area at that time.
A taxpayer who is a United States citizen is employed in Queensland under a nine-month contract. Knowing that they will be residing permanently in Queensland for that time, the taxpayer purchases a home for use as their principal place of residence during the nine-month period. The taxpayer claims the home concession, occupies the home for that period and then sells the home upon the expiry of their employment contract before returning to the United States.
If this category applies, the Commissioner would usually consider partial remission of the penalty tax imposed so that the taxpayer is liable only for an amount equivalent to 30% of the primary tax difference.
A taxpayer either:
A taxpayer intends to purchase a home to live in for six months, before selling it for a profit. At the time of acquiring the home, the taxpayer claims the home concession and occupies the home as their principal place of residence for five months.
Shortly after acquiring vacant land and claiming the first home concession (but before constructing a residence and taking up occupation), the taxpayer unexpectedly receives an attractive offer for the sale of the land. The taxpayer accepts the offer and sells the land.
This category applies to the exclusion of the other categories. If this category applies, the Commissioner would usually not remit penalty tax. However, remission may be made for any voluntary disclosure.
After claiming a home concession under the Duties Act, a taxpayer does not take up occupation of the residence because the taxpayer never intended to occupy the home as their principal place of residence.
A taxpayer intends to purchase a home for renovation and resale, without taking up occupation, but claims the home concession regardless of this intention.
A taxpayer acquires vacant land and claims a concession for land on which a first home is to be constructed. However, the taxpayer has no intention of building a home on the land and intends to construct a unit complex for investment purposes.
Home concession clawback penalty tax guideline summary
This attachment summarises the guidelines in Attachment 1 and further remissions referred to in this Public Ruling. Percentages in this table are percentages of the primary tax difference.
The percentages shown below do not take into account any increase in penalty tax to be applied under s.58(3) of the Administration Act referred to in paragraph 17.
|Category||Notification before notice of investigation and before prompt (%)||Notification before notice of investigation and within 30 days after prompt (%)||Notification before notice of investigation but more than 30 days after prompt (%)||Voluntary disclosure immediately after being notified of an investigation (%)||No notification or voluntary disclosure (%)|