|Date of judgement||17 April 2020|
|Judge(s)||S Goodman SC, Senior Member|
|Court or Tribunal||NSW Civil and Administrative Tribunal|
First Home Owner Grant; New Home; Duties Act s.49
Gleeson v Commissioner of State Revenue  VSC 464; (2009) 28 VR 607
John Holland Pty Limited v Kellogg Brown & Root Pty Ltd  NSWSC 451
Triantafilis v Commissioner of Stamp Duties For New South Wales (1998) 98 ATC 4484; (1998) 39 ATR 56
Watson v Foxman (1995) 49 NSWLR 315
The proceedings concerned the Chief Commissioner’s decision to not apply a concessional rate of duty pursuant to s. 55 of the Duties Act 1997 (NSW) (“the Act”) to a transfer of a property in Balmain (“the Property”) from the applicant’s daughter to the applicant. The applicant had intended her daughter to purchase the Property as an apparent purchaser, with the applicant as the real purchaser. The key facts were:
The main issue in dispute was whether the Applicant was entitled to a concessional rate of duty upon the transfer of the Property from the applicant’s daughter, as apparent purchaser, to the applicant, as real purchaser, by reason of the operation of s. 55 of the Act.
The Tribunal found that, prima facie, the applicant did not provide all the money for the purchase of the Property, as part of the $763,423.20 paid towards the purchase price from the Joint Account consisted of funds deposited by the applicant’s husband, and part of the loan repayment of $899,523 on 1 June 2018 consisted of funds that the applicant’s husband had deposited into the Offset Account.
To rebut this, the applicant would need to successfully demonstrate that the deposits made by her husband into the Joint Account and the Offset Account were gifts to her. However, after evaluating the evidence, the Tribunal was not persuaded that this rebuttal was made out.
The Tribunal’s consideration of the relevant evidence is summarised as follows:
The applicant claimed that she had followed this advice in purchasing the property. However, the Tribunal found that the manner in which the Property was purchased was not the manner contemplated in the Advice (that the applicant would provide funds for the deposit and that the balance of the purchase price would be borrowed as a loan, which the applicant would provide an indemnity and undertaking for).
Further, the Advice did not refer to the husband’s inheritance being gifted to the applicant for use in paying for the Property. Rather, it had included as a “background fact” that the applicant and her husband would receive an inheritance which would allow them to purchase the Property.
There was no contemporaneous evidence or document that pointed to the money transferred by the applicant’s husband being made as a gift to the applicant.
Multiple parts of the Objection prepared by the applicant and her husband referred to the purchase funds having been provided by the applicant and her husband jointly. The Tribunal considered that these references were inconsistent with the proposition that the purchase funds were provided solely by the applicant or that the husband had made a gift to the applicant. Other statements in the objection were found to be only consistent with an acknowledgement that the funds used to pay for the purchase of the Property did not come solely from the applicant.
The application to the Tribunal repeated the assertion that the purchase funds came from both the applicant and her husband. The application also did not refer to a gift having been made.
The affidavit evidence of the applicant and her husband was imprecise, at best, as to the making of a gift. There was no reference to how the gift was created or any writing or words capable of founding the assertion that a gift had been made.
The applicant’s accountant during the relevant period merely provided evidence of the loans made by the applicant to her husband’s businesses, but did not refer to the making of a gift.
Taking into account these matters, the Tribunal concluded that the gift was not the subject of a written record and therefore could only have been made orally (at ). The Tribunal noted the serious difficulties a party faces when trying to prove that a gift has been made orally and the need for precise evidence of the relevant conversation. Given the imprecise nature of the applicant’s evidence and various inconsistent positions in documents prepared by the applicant, the Tribunal concluded that it could not be satisfied that a gift had ever been made (at ).
Consequently, the Tribunal held that the prima facie position, being that the applicant did not provide all the moneys for the purchase of the Property, could not be rebutted and the requirements of s. 55 could not be made out.
The Chief Commissioner’s decision was affirmed.