|Date of judgement||26 March 2015|
|Judge(s)||Senior Member P Wass|
|Court or Tribunal||NSW Civil and Administrative Tribunal|
Fixed trust – special trust – land tax – hardship
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.
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:
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 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:
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’.
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.