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

Date of judgement 21 December 2015 Proceeding No. 1510078
Judge(s) M Harrowell, Principal Member
Dr G Walker, Senior Member
Court or Tribunal Civil and Administrative Tribunal Appeal Panel
Legislation cited Duties Act 1997

Civil and Administrative Tribunal Act 2013

Real Property Act, 1900

Stamp Duties Act, 1958 (Vic)
Catchwords Duties Act 1997- s30 (1)- what is a partition Requirements for transfer of land being partitioned
Cases cited

Comptroller of Stamps v Christian [1991] 2 VR 129

Knezevic v Chief Commissioner of State Revenue [2014] NSWCATAD 183

Nullagine Investments Pty Ltd v Western Australia Club Incorporated [1993] 177 CLR 635

Background

These proceedings concerned duty payable on the transfer of a Newport property in 2014. The property had been transferred to the respondent, who, prior to the transfer, had owned the property with other family members as tenants in common.

The family members had entered into a transfer of the Newport property in 2011 in accordance with a Deed of Partition. In 2014, the same family members entered into other transactions involving the same property in accordance with a Deed of Family Arrangement and a consequential transfer.

On 25 July 2014, the Chief Commissioner issued a Duties Notice of Assessment in relation to the 2014 transfer of the Newport property on the basis that as the 2011 transfer had been stamped with nominal duty and registered, the Chief Commissioner had no discretion to apply any of the concessional provisions of the Duties Act 1997 ("the Act").

The respondent objected to the Chief Commissioner's assessment, contending that the various transactions which had been entered into in 2011 and 2014 formed a partition under s.30 of the Act and therefore, they should have been combined and assessed as a single transaction. The Chief Commissioner disallowed the objection. Accordingly, the respondent sought the Tribunal's review of the Chief Commissioner's decision.

The Chief Commissioner appealed in respect of the Tribunal's decision dated 10 August 2015 to set aside the Duties Notice of Assessment in respect of the transfer of the Newport property. The Chief Commissioner sought to have the Tribunal's orders set aside and the original assessment of duty affirmed.

The Statutory Framework

Section 30 of the Act defines what a partition is and when it occurs. According to this section, a partition occurs when "dutiable property" comprised of land held "jointly” is transferred to one or more of those persons who hold the land jointly.

Section 30(1) of the Act states that land is jointly held if it is held by the parties as joint tenants or tenants in common.

Tribunal Decision

In its decision of 10 August 2015, the Tribunal concluded that the Chief Commissioner had incorrectly assessed the transfer of the Newport property. The Tribunal held that the property should have been assessed as a partition pursuant to s.30 of the Act. Accordingly, it set aside the Chief Commissioner's Duties Notice of Assessment in respect of the property and remitted the proceedings to the Chief Commissioner to re-determine the assessment of duty payable.

Appeal Panel Decision

The issue for the Appeal Panel to consider was whether or not the form of the Newport transfer wherein the respondent's family members transferred their interests to the respondent was a partition within the meaning of s.30(1) of the Act.

  1. The Appeal Panel concluded that there was no partition to which s.30 could apply in this matter because there was no division of the land by the Newport transfer.[1] Rather, the transfer simply transferred to the respondent the 50% undivided interest of the other co­ tenants in the whole of a single parcel of land to him.[2] Therefore, the Appeal Panel found that the Tribunal was in error and the appeal should be allowed.

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.

Link to decision

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

Footnotes

  1. ^ Chief Commissioner of State Revenue v Webeck [2015] NSWCATAP 279 at [49]
  2. ^ Chief Commissioner of State Revenue v Webeck [2015] NSWCATAP 279 at [49]
Last updated: 17 May 2016