|Date of judgement||2 January 2019|
|Judge(s)||RL Hamilton SC, Senior Member|
|Court or Tribunal||New South Wales Civil and Administrative Tribunal Appeal Panel|
Complying Self-Managed Super Fund - Section 61 Duties Act 1997
On 2 January 2019 Senior Member Hamilton of the NSW Civil and Administrative Tribunal (“the Tribunal”) delivered his decision in the above proceedings, setting aside the assessment of the Chief Commissioner of State Revenue (“Chief Commissioner”). The Crown Solicitor acted for the Chief Commissioner.
The Applicant sought a review of the decision by the Chief Commissioner to disallow a concession under section 61 of the Duties Act 1997 (“the DA”) assessing the transfer of property at 143 Balmain Road, Leichardt (“the Property”) as liable to ad valorem duty.
By way of summary of the key facts:
The principal provision relied on by the Applicant was section 61 of the DA, which relevantly provides as follows:
The Chief Commissioner submitted that section 61(1) of the DA cannot apply because Mr Forbes remained a member entitled to benefits from Fund 1 on the basis that the words in the subsection “ceasing to be a member of, or otherwise ceasing to be entitled to benefits in respect of a superannuation fund” requires to be read as a composite expression so that the relevant member ceases to be entitled to, in effect, all benefits in respect of the superannuation fund.
The Applicant argued that the words of section 61(1) of the DA should be interpreted to apply to the situation where a member of a superannuation fund ceases to be entitled to pension benefits, and that it is not necessary that the member lose entitlement to all benefits in the superannuation fund. Further, the Applicant argued that the word “or” in section 61(1) of the DA is disjunctive, indicating that ‘or otherwise ceasing to be entitled to benefits’ refers to a different circumstance, which is not necessarily the same as, or closely analogous to, cessation of membership.
Both parties referred to the words used in the Second Reading Speech of the Minister when the forerunner to s 61 of the DA was introduced in 1991 as s 82 of the Stamp Duties Act 1920 by the Stamp Duties (Amendment Bill).
Referring back to the Second Reading Speech the Tribunal found the following:
The Tribunal held that it would be inequitable that the transaction should not be eligible for the concessional rate of duty under s 61 of the DA, as Mr Forbes is the sole member of both complying superannuation funds, and is now receiving pre-existing pension benefits from Fund 2 rather than Fund 1, as a result of the transfer of the Property: .
The assessment is set aside, and the matter remitted to the Chief Commissioner for assessment pursuant to s 61 of the Duties Act 1997.