|Date of jugement||23 August 2019|
|Judge(s)||JS Currie, Senior Member|
|Court or Tribunal||NSW Civil and Administrative Tribunal|
Stamp duty - Duties Act 1997 - exemption - partial exemption - s.275 - s.275A
Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD)  NSWADTAP 25
Joyce v Ashfield Municipal Council (1959) 4 LGRA 195
Re Chapman (Unreported; High Court of New Zealand, 17 October 1989, Greig J.)
Re Hoey (1994) 2 Qd R 51
Racing NSW is a statutory body established under the Thoroughbred Racing Act 1996 (NSW) (“the Act”) with functions and powers as set out in the Act.
In 2011, the Thoroughbred Horse Rehabilitation Trust (“the Trust”) was established, and later that year Racing NSW became the Appointer (but not one of trustees, who were a number of individuals). The principal activities of the Trust was to provide money, property and services for the care and rehabilitation of thoroughbred horses which have ceased to be competitive or have ceased to race and have been mistreated or are without owners or are at risk of being killed or mistreated.
Racing NSW claimed the Duties Act exemption under ss275 or 275A on behalf of the Trust (also known from time to time as the Equine Welfare Fund Trust and the Equine Welfare Fund), although at the hearing Racing NSW also claimed that it was itself a charitable or benevolent body.
Racing NSW claimed that the activities which would take place on the land at Capertree were extended to enabling disadvantaged persons and armed service veterans to work with the horses in their retraining. It was asserted that the objects of the Trust included the promotion of education, relief for those suffering from disability, and assisting persons with special needs.
Racing NSW also relied on its Annual Reports and financial statements and expenditure reports to further the argument that Racing NSW itself is a charitable or benevolent body. In particular, it pointed to loans to country racetracks for the improvement of facilities for use by the general public, the Race Fields Funding Loans. Racing NSW asserted that the relevant activities were wholly or predominantly for the relief of poverty or the promotion of education.
The Chief Commissioner’s argument in summary, was that Racing NSW was the peak administrative body of a commercial sport whose main object is to regulate and administer that sport. He submitted that none of these elements are charitable.
Section 275 of the Duties Act establishes a regime exempting certain instruments from duty, including an agreement for sale or transfer of land to an exempt charitable or benevolent body (including a trustee for such a body).
Section 275A establishes a regime for partial exemption from duty for a dutiable transaction by which an exempt charitable or benevolent body acquires land or an interest in land, where the land is used or to be used by a charitable or benevolent body partly for an exempt purpose.
Racing NSW failed to make out its entitlement to an exemption or a partial exemption. The Tribunal found:
The Tribunal found that neither Racing NSW nor the Trust is an exempt charitable or benevolent body and therefore a partial exemption from duty under s 275A is not available to either of them.
The Chief Commissioner’s decision under review is affirmed.