Krcmar Holdings Pty Limited v Chief Commissioner of State Revenue [2015] NSWCATAD 54

Summary

In these proceedings, the Taxpayer, Krcmar Holdings Pty Limited (“the Taxpayer”), sought review of the Chief Commissioner’s land tax assessments for the land tax years 2009, 2010 and 2014 (“the relevant periods”) on the grounds that the assessments were a harsh and inequitable retrospective decision in reassessing a unit trust as a special trust in relation to land since disposed of.

The Chief Commissioner had decided that the information required to assess the Taxpayer’s unit trust correctly had not been provided at the time of the initial assessments and as such the assessments were required to be reissued.

Background

On 12 May 2004 the Taxpayer entered into a deed of trust (the Krcmar Holdings Unit Trust) (“the trust”). The Taxpayer then proceeded to purchase the following property:

1. “The Revesby property” for the period 28 July 2004 to 19 October 2010; and
2. “The Peakhurst property” for the period 4 November 2010 to present. The contract for the purchase of the Peakhurst property expressly provided that the Taxpayer entered into it as trustee for the trust.

During this time the Chief Commissioner issued land tax notices of assessments for the years 2009 to 2013 inclusive. These assessments are not the subject of review in these proceedings.

On 2 July 2013 the Chief Commissioner informed the Taxpayer of additional land tax that is subject to a “special trust”. The Chief Commissioner subsequently issued reassessments for land tax for the years 2009 to 2013 inclusive on the basis the trust was a special trust.

The Taxpayer, on 8 January 2014, amended the trust so it could be classed as a ‘fixed trust’.

The Chief Commissioner then issued a notice of assessment for the 2014 land tax year.

On 6 March 2014 the Taxpayer lodged an objection to the 2009 and 2010 reassessments (in respect of the Revesby property) and the 2014 assessment (in respect of the Peakhurst property). On 12 May 2014 the Chief Commissioner wholly disallowed the objections.

The Taxpayer’s Case:

The Taxpayer submitted that the additional land tax assessed on the basis the trust was a ‘special trust’ was inequitable and harsh on the trustee, particularly as the reassessments for the years 2009 and 2010 were issued some three years after the property was sold and the settlement funds disbursed.

The Taxpayer relied on the following facts in its submissions:

1. All units applied for and allocated to the unit holders were “general units”;
2. The Taxpayer has already paid significant sums in land tax;
3. In July 2014 the Chief Commissioner drew attention to a 2005 High Court decision concerning unit trusts and submits that this is a “concession” by the Chief Commissioner of a “changed interpretation concerning unit holders and unit trusts”;
4. At the time of this “concession”, a number of deeds were updated to provide that it was a fixed and not a special trust; and
5. Had the Taxpayer “completed the administrative task” of updating the trust deed earlier there would be no liability to the land tax in question.

The Chief Commissioner’s Case:

The Chief Commissioner submitted that the clauses in the trust deed gave extensive powers and discretions to the trustees so that it could not be considered a ‘fixed trust’.

Decision

The Tribunal held that there was no issue in finding that the trust deed did not constitute a ‘fixed trust’ and as such the Chief Commissioner was entitled to make the assessments he did. It is open to the Taxpayer to make a hardship application however, the determination of this application is a matter for the Chief Commissioner and not the Tribunal.

Orders

1. Assessments dated 12 August 2013 (in respect of the 2009 and 2010 land tax years) are confirmed in accordance with section 101(1)(a) Taxation Administration Act.
2. Assessment dated 30 January 2014 (in respect of the 2014 land tax year) is confirmed in accordance with section 101(1)(a) Taxation Administration Act.

Link to decision

Krcmar Holdings Pty Limited v Chief Commissioner of State Revenue [2015] NSWCATAD 54