Birchstone Brief for the week ended 4 February 2021

Cases

Perpetual Corporate Trust Ltd v Commissioner of State Taxation (SA) [2022] SASC 7 – Stamp duty (SA)

The Supreme Court of South Australia has ruled the taxpayer’s acquisition of a 17-storey purpose-built student accommodation complex was not subject to stamp duty as it was not predominantly used for residential purposes.

Under a sale agreement, the taxpayer trustee company acquired the complex which at the time was being leased to a company operating student accommodation. The leases and business agreements were also transferred to an associated company of the taxpayer trustee company. The Commissioner of State Revenue assessed the taxpayer for stamp duty and foreign ownership surcharge on the acquisition. The taxpayer objected, the Commissioner disallowed the objection, and the taxpayer lodged an appeal.

The Supreme Court allowed the taxpayer’s appeal, holding the complex was not used predominantly for residential purposes and was therefore ‘qualifying land’ exempt from stamp duty under s 105A of the Stamp Duties Act 1923 (SA). This was because the Court found that as students living at the complex did not make a long-term or permanent commitment to live there, it was not used for ‘residential’ purposes within the ordinary meaning of that word. Further, the fact the lease and business agreements were transferred to a related party of the taxpayer at the time it acquired the complex indicated it was a commercial rather than a residential property.

ANO Property Pty Ltd v Commissioner of State Revenue [2022] VCAT 71 – Duty

The Victorian Civil and Administrative Tribunal (VCAT) has held that farmland transferred from a farmer to a wholly owned company on trust for the trustee of their Self-Managed Superannuation Fund (SMSF) was not eligible for the stamp duty exemption contained in section 56 of the Duties Act 2000 (Vic).

Mr Osborne transferred the parcel of farmland to the taxpayer as trustee of a fixed property trust. The sole beneficiary of that trust was the corporate trustee for Mr Osborne’s SMSF (SMSF trustee). Following the transfer, the Commissioner assessed the taxpayer to have a duty liability of $14,270. The taxpayer objected, arguing the family farm exemption under section 56 should apply as both the taxpayer and the SMSF trustee were fully controlled by Mr Osborne. The Commissioner determined to disallow the objection, and the taxpayer applied to the VCAT for review.

The VCAT ultimately upheld the Commissioner’s determination, holding that the exemption in section 56 could not apply in the circumstances. This was because, while Mr Osborne was a natural person and the taxpayer was the trustee of a fixed trust, the beneficiary of that trust (the SMSF trustee) was neither a relative of Mr Osborne nor a natural person as required by section 56(3)(b). The SMSF trustee was incapable of being a ‘relative’ as a ‘relative’ for the purposes of section 56 must be a natural person. The VCAT also noted that neither it nor the Commissioner had discretion to reduce or waive duty where the requirements of section 56 were not strictly complied with.

Appeals

The taxpayer has appealed to the Federal Court from the decision of the AAT in Buzadzic & Anor v FCT [2021] AATA 4820. In that case, the AAT found the taxpayer was solely assessable on unexplained bank deposits and credit entries to director loan accounts.

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