Duties decision summaries

Tribunal

Declaration of Trust

2016 Decision Summary

Macedo v Chief Commissioner of State Revenue (No.2) [2015] NSWCATAD 227
Date of Decision: 09 July 2013

Orders: The matter is remitted to the Chief Commissioner for reconsideration as advised.

Catchwords: TATE REVENUE – Stamp Duties – whether copy of Declaration of Trust Deed liable to ad valorem duty – Stamp Duties Act 1920 - s 73D

Case summary: Macedo v Chief Commissioner of State Revenue (No.2) [2015] NSWCATAD 227

2013 Decision Summary

Al-Saeed and Associates Pty Ltd ATF Al-Saeed Educational and Welfare Trust v Chief Commissioner of State Revenue [2013] NSWADT 155
Date of Decision: 09 July 2013

Decision: The Tribunal confirmed the Chief Commissioner's Assessment and the market and premium interest components included in the Assessment on the basis that the definition of 'declaration of trust' in s.8(3) of the Duties Act leads to the conclusion that the Trust Deed contains a 'declaration of trust' over Property for the purposes of the Act.

Catchwords: 'declaration of trust' as defined in s 8(3) of the Duties Act 1997

Case summary: Al-Saeed and Associates Pty Ltd ATF Al-Saeed Educational and Welfare Trust v Chief Commissioner of State Revenue [2013] NSWADT 155

Dutiable Value

2016 Decision Summaries

Happy Days Property Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 289
Date of Decision: 08 December 2016

Orders: Senior Member Isenberg affirmed the Chief Commissioner's decision.

Catchwords: REVENUE LAW – Duties Act 1997 – double duty – reassessment - estoppel – section 18(3)

Case summary: Happy Days Property Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 289
Perizon Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 84
Date of Decision: 05 May 2016

Orders: The decision under review was affirmed.

Catchwords: Duties – dutiable transaction – concession for non-conforming transfer – whether power to proceed ex parte in absence of Taxpayer

Case summary: Perizon Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 84

2014 Decision Summary

Bottle Tower Investments Pty Ltd v Chief Commissioner of State Revenue [2014] NSWADT 172
Date of Decision: 14 October 2014

Decision: The Tribunal confirmed the relevant decision.

Catchwords: Stamp duty; reassessment; contingency principle; interim stamping; full and true disclosure of relevant facts and circumstances; instrument; stamping a document; dutiable value; consideration. Sections 10, 15, 21, 22, 49 and 58(2) Duties Act 1997. Sections 9, 10,14, 16, 119 and 288 Taxation Administration Act 1996. Section 21 Interpretation Act 1987.

Case summary: Bottle Tower Investments Pty Ltd v Chief Commissioner of State Revenue [2014] NSWADT 172

Exemptions from Duty

2016 Decision Summary

Kamareddin v Chief Commissioner of State Revenue [2016] NSWCATAD 21
Date of Decision: 05 February 2016

Decision: The Chief Commissioner refused to allow the stamp duty marital breakdown exemption on a transfer of a residence. The Applicant contended that when her husband transferred the house to her, that their marriage had broken down irretrievably, and the transfer was pursuant to an oral agreement made for the purpose of dividing the matrimonial property. The Tribunal decided that the exemption applied.

Catchwords: REVENUE LAW - Duties Act - exemption - irretrievable breakdown of marriage - religious divorce

Case summary: Kamareddin v Chief Commissioner of State Revenue [2016] NSWCATAD 21

2011 Decision Summary

Hogarth v Chief Commissioner of State Revenue [2011] NSWADT 106078
Date of Decision: 28 July 2011

Decision: On 28 July 2011, Deputy President Needham delivered an ex tempore judgment in this matter dismissing the application and affirming the decision of the Chief Commissioner of State Revenue (the Chief Commissioner) to refuse to grant the applicants an exemption under Division 1A (NSW Housing Construction Acceleration Plan) ("HCAP") of the Duties Act 1997 (Act) for the purchase of their home at Elderslie NSW. Deputy President Needham found that the applicants could not satisfy the criteria in s.87C of the Act, namely that their purchase of the home was the purchase of a 'new home' within the meaning of the Act and that the 'new home' they purchased was complete and ready for occupation.

Catchwords: Duties Act - Housing Construction Acceleration Plan. A new home that has not been previously occupied or sold as a place of residence.

Case summary: Hogarth v Chief Commissioner of State Revenue [2011] NSWADT 106078

Insurance

2016 Decision Summary

ERIC Insurance Ltd (formerly Avea Insurance Ltd) v Chief Commissioner of State Revenue [2016] NSWCATAD 217
Date of Decision: 05 October 2016

Orders: Senior Member Walker ordered that the Chief Commissioner¿s decision be set aside.

Catchwords: DUTIES – life insurance – term policies – duty assessed on first year’s premium – whether duty paid in first year or duty attributable to first year

Case summary: ERIC Insurance Ltd (formerly Avea Insurance Ltd) v Chief Commissioner of State Revenue [2016] NSWCATAD 217

Meaning of Purchaser and Transferee

2011 Decision Summary

Warner v Chief Commissioner of State Revenue [2011] NSWADT 212
Date of Decision: 05 September 2011

Decision: The applicants sought a review of the decision by the Chief Commissioner of State Revenue (the Chief Commissioner) to assess them for 'double duty'. The applicants argued that nominal duty under section 18 on the transfer should apply where a majority of the persons constituting the purchaser and the transferee are related to each other in accordance with the definition of related persons in the Duties Act 1997 (the Act).

The Tribunal affirmed the Chief Commissioner's decision that nominal duty cannot apply. Each of the contract and transfer is a dutiable transaction and liable under section 8(1) of the Act.

Catchwords: Meaning of "purchaser" and "transferee" where in each case there is more than one - whether section 18(3) of the Duties Act requires the necessary relationship for all parties constituting each of the purchaser and the transferee

Case summary: Warner v Chief Commissioner of State Revenue [2011] NSWADT 212

Partitions

2015 Decision Summary

Webeck v Chief Commissioner of State Revenue [2015] NSWCATAD 165
Date of Decision: 10 August 2015

Decision: The Tribunal affirmed that assessment.

Appeal: The Chief Commissioner lodged a Notice of Appeal which was filed on 3 September 2015. The appeal is listed for hearing by the Appeal Panel on 1 December 2015.

Catchwords: STATE REVENUE - stamp duty on transfer of land; effect of prior dealings; partition; standing to seek review

Case summary: Webeck v Chief Commissioner of State Revenue [2015] NSWCATAD 165

Premium Property Rate

2015 Decision Summary

Esplanade Wollongong Pty Limited ATF Esplanade Wollongong Trust v Commissioner of State Revenue [2015] NSWCATAD 228
Date of Decision: 05 November 2015

Decision: Prior to the scheduled Hearing, an additional legal issue (of whether the premium rate of duty applying to residential land with a dutiable vale exceeding $3,000,000-00) arose. The Tribunal postponed the Hearing and remitted the premium rate issue to the Chief Commissioner for determination before the new Hearing date. The Tribunal refused any order for costs.

Catchwords: Costs, conduct which is reprehensible, indemnity costs

Case summary: Esplanade Wollongong Pty Limited ATF Esplanade Wollongong Trust v Commissioner of State Revenue [2015] NSWCATAD 228

Transfer in Conformity with Agreement

2014 Decision Summary

Wilkins v Chief Commissioner of State Revenue [2014] NSWCATAD 70
Date of Decision: 26 May 2014

Decision: The Tribunal set aside the assessment under review and remitted the matter back to the Chief Commissioner of State Revenue to assess the appropriate duty payable in accordance with s 18(2) of the Duties Act 1997.

Catchwords: TAXES AND DUTIES - Transfers in conformity with contract - Nominal Duty payable - purchase of property by trustee of superannuation fund - Duties Act 1997 - s 18

Case summary: Wilkins v Chief Commissioner of State Revenue [2014] NSWCATAD 70

2013 Decision Summary

Vlahos v Chief Commissioner of State Revenue [2013] NSWADT 215
Date of Decision: 02 October 2013

Decision: The application to review the decision made by the Chief Commissioner of State Revenue on 1 June 2012 is dismissed.

Catchwords: STATE REVENUE - Duties Act 1997 – s 8(1)(b)(1) – s 9(1) - s 18(2) – s 18(3)(d)(i) – s 64C – Taxation Administration Act 1996 – s 8(1) – s 9 – s 12 - s 86(1)(b) – s 91(2) – s 96 – Administrative Decisions Tribunal Act 1997 – s 58 – Interpretation Act 1987 – s 9 - transfer 'in partial conformity with' the contract - meaning of "related person" -review on grounds of estoppel and 'fairness'

Case summary: Vlahos v Chief Commissioner of State Revenue [2013] NSWADT 215

2011 Decision Summary

Kuo v Chief Commissioner of State Revenue [2011] NSWADT 299
Date of Decision: 15 December 2011

Decision: The decision of the Chief Commissioner confirmed.

The Tribunal agreed with the Chief Commissioner's contention that the transfer was not in conformity with the contract and noted that, had it been, the issue under appeal would not have arisen, and there would have been no need to consider whether the parties were related under section18 (3) of the Act.

Catchwords: Double duty, transfer in conformity, section 18(3) Duties Act 1997

Case summary: Kuo v Chief Commissioner of State Revenue [2011] NSWADT 299

Trusts

2017 Decision Summary

Balcaskie Investments Pty Limited v Chief Commissioner of State Revenue [2017] NSWCATAD 19
Date of Decision: 19 January 2017

Orders: Senior Member Boxall made the following orders:
  1. I revoke:
     
    1. the assessment under the Duties Act 1997 of duty pursuant to the Duties Notice of Assessment issued to the applicant on 24 August 2015 in relation to the Lot 15 Application; and
       
    2. the assessment under the Duties Act 1997 of duty pursuant to the Duties Notice of Assessment issued to the applicant on 4 September 2015 in relation to the Lot 16 Application; and
       
  2. The assessments referred to in order 1 above are remitted to the Respondent to issue Duties Notices of Assessment which conform to the construction of the Trust Deed set out in these reasons for decision.
Catchwords: Duties Act 1997, section 54(3)(b) - Change in trustees - Trustee cannot become a beneficiary

Case summary: Balcaskie Investments Pty Limited v Chief Commissioner of State Revenue [2017] NSWCATAD 19

2015 Decision Summary

BD Corporation Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 163
Date of Decision: 6 August 2015

Decision: The assessment was confirmed.

Catchwords: STATE REVENUE – Stamp Duties – existence of a declaration of trust – s 8(1)(b)(ii) Duties Act 1997 - burden of proof on applicant - whether burden of proof discharged – s 100(3) of the Taxation Administration Act 1996

Case summary: BD Corporation Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 163

2014 Decision Summary

LR Corrie Glen Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 33
Date of Decision: 24 March 2014

Decision: The decision of the Chief Commissioner under review was confirmed.

Catchwords: Duty - establishment of a trust relating to unidentified property - declaration of trust - whether there is a requirement for a completely constituted trust - s58(2) Duties Act 1997

Case summary: LR Corrie Glen Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 33

2013 Decision Summary

Baptist Union of New South Wales v Chief Commissioner of State Revenue [2013] NSWADT 270
Date of Decision: 28 November 2013

Decision: The decision made by the Chief Commissioner on 22 February 2012 to deny an exemption of duty is affirmed.

Catchwords: State Revenue – Stamp Duties – Trusts – Formation – Whether an express trust exists on transfer of two properties from vendors – Absence of any written declaration – Exemption from duty under Duties Act 1997, s.275

Case summary: Baptist Union of New South Wales v Chief Commissioner of State Revenue [2013] NSWADT 270

Appeals Panel

Dutiable Property

2015 Decision Summary

Chief Commissioner of State Revenue v Danny and Steven Knezevic [2015] NSWCATAP 98
Date of Decision: 22 May 2015

Decision:The Appeal Panel found that the Tribunal member erred in deciding that the sale of the property constituted two separate transactions.

Catchwords: ADMINISTRATIVE LAW — stamp duty — whether an interest in land constitutes “dutiable property” —whether exemption for stamp duty on “matrimonial property” applies where property purchased by former party to the marriage and third party, as tenants-in-common

Case summary: Chief Commissioner of State Revenue v Danny and Steven Knezevic [2015] NSWCATAP 98

Partitions

2015 Decision Summary

Chief Commissioner of State Revenue v Webeck [2015] NSWCATAP 279
Date of Decision: 21 December 2015

Orders:
  1. The appeal is allowed and order made 10 August 2015 is set aside;
  2. The decision in respect of Duties Notice of Assessment Id 1599926425 is affirmed;
  3. Each party is to pay their own costs.
Catchwords: Duties Act 1997 - s30 (1) - what is a partition Requirements for transfer of land being partitioned

Case summary: Chief Commissioner of State Revenue v Webeck [2015] NSWCATAP 279

Transfer in Conformity with Agreement

2011 Decision Summary

Chief Commissioner of State Revenue v Scarfo [2011] NSWADTAP 57
Date of Decision: 06 December 2011

Decision: Appeal allowed.

On 2 December 2010, Judicial Member Block in the Administrative Decisions Tribunal set aside the decision of the Chief Commissioner to impose ad valorem duty in respect of a transfer of property at Bondi from Ms Laura Gomez and Ms Monica Da Silva to Mr Sam Scarfo. Judicial Member Block found, at first instance, that the Transfer was liable to nominal duty under s. 18(2) of the Duties Act 1997 (NSW) ("the Act") on the basis that it was made "in conformity with" an agreement in respect of which duty had been paid. The Chief Commissioner appealed this decision.

The Appeal Panel, having found that the concessions in ss. 18(2) and 18(3) of the Duties Act 1997 did not apply to the Transfer, allowed the appeal, and accordingly confirmed the decision of the Chief Commissioner to assess the Transfer with ad valorem duty, on the basis that the Transfer was not made "in conformity with" an agreement in respect of which duty had been paid.

Catchwords: Duties - meaning of "in conformity with an agreement"

Case summary: Chief Commissioner of State Revenue v Scarfo [2011] NSWADTAP 57

Trusts

2014 Decision Summary

Al-Saeed and Associates Pty Ltd ATF Al-Saeed Educational and Welfare Trust v Chief Commissioner of State Revenue [2014] NSWCATAP 11
Date of Decision: 07 April 2014

Decision:
  1. The order at [37] of the Decision is affirmed. The Deed of Trust constitutes a declaration of Trust in accordance with s 8(3) of the Duties Act.
     
  2. The order at [38] of the Decision is set aside.
     
  3. In substitution of the order at [38] of the Decision, the premium interest component is remitted.
Catchwords: ADMINISTRATIVE LAW Civil and Administrative Tribunal (NSW) Appeal Panel

DUTIES declaration of trust over land whether declaration of trust was over dutiable property whether permissible to look outside declaratory provision to broader trust instrument to identify property - premium interest component - market rate interest component - failure of Tribunal to take submission into account - leave to extend appeal to the merits

Case summary: Al-Saeed and Associates Pty Ltd ATF Al-Saeed Educational and Welfare Trust v Chief Commissioner of State Revenue [2014] NSWCATAP 11
Last updated: 2 May 2017