|Date of judgement||05 February 2016|
|Court or Tribunal||New South Wales Civil and Administrative Tribunal|
REVENUE LAW – Duties Act – exemption – irretrievable breakdown of marriage – religious divorce
The Applicant sought review of the decision by the respondent to issue a duties notice of assessment on 18 April 2012 for the sum of $17,523.34 in respect of a transfer of residential land situated at Greenacre from Mr Omar Hussein to the Applicant. The applicant had sought an exemption from stamp duty on this transfer. The Duties Act 1997 exempts from duty transfers, and agreements to transfer that divide the matrimonial property of a marriage that had broken down irretrievably.
The first issue to be determined in this case was whether or not, at the time of the relevant dutiable transaction, the marriage between the Applicant and Mr Hussein had irretrievably broken down. The second issue was whether the agreement to transfer the property was effected in accordance with an agreement made for the purpose of dividing matrimonial property, as a consequence of the breakdown of the marriage.
S.68(1) of the Duties Act 1997 (Exemptions-break-up of marriages and other relationships) provides:
Senior Member Isenberg found the expression “a marriage that … has broken down irretrievably” in the context of s. 68(1)(a) had not been defined by the legislature or been dealt with by a Tribunal or Court. The words were given their ordinary meaning in the context of the Duties Act. Citing Barwick CJ in Gauci v Federal Commissioner of Taxation  HCA 54, Senior Member Isenberg, to the extent that the oral evidence of the Applicant conflicted with the documents in evidence, preferred the oral evidence of the Applicant.
Senior Member Isenberg held that for the purposes of s 68(1)(a), the marriage had broken down irretrievably; on the balance of probabilities, the Applicant believed that her marriage had irretrievably broken down and a divorce had occurred pursuant to her religious beliefs. Senior Member Isenberg also held that the contract transferring the property to the Applicant formed part of an agreement made prior to the contract for the purpose of dividing matrimonial property as a consequence of the breakdown of the marriage.