The SA Supreme Court has held that the withdrawal of an offer by the SA Treasurer of ex gratia relief cannot be reviewed on an appeal against the Commissioner’s assessment.
In 2006, the Chubb Group of Companies underwent an organisational restructure in which a group company transferred parts of its business to the taxpayer and to another group company. The Chubb Group sought and was offered relief by the Acting Treasurer stamp duty. However, the offer was subject to conditions, one of which could not be satisfied. In May 2011, the Acting Treasurer withdrew the offer and the Commissioner issued a stamp duty assessment payable by the 3 companies. The taxpayer sought to have the Court review the withdrawal of the offer of ex gratia relief. The taxpayer’s appeal was in relation to the portion of the assessment concerning it. However, the Court considered that the Commissioner’s assessment was not open to review on that basis. Accordingly, the appeal was dismissed.
(Chubb Electronic Security Australia Pty Ltd v Comr of State Taxation [2012] SASC 164, SA Supreme Court, White J, 20 September 2012.)
[LTN 184, 21/9]
Extract from [2012] SASC 164
Appeal against assessment of stamp duty by Commissioner – whether the withdrawal of an offer by the Treasurer of ex gratia relief can be reviewed on an appeal against the Commissioner’s assessment – whether Commissioner has general power to grant relief from stamp duty liability on discretionary grounds – whether Commissioner permitted or obliged to take account of any grant of relief by Treasurer on an assessment of stamp duty – whether decision as to ex gratia relief forms part of the ‘assessment’ – whether Treasurer acting as agent or delegate of Commissioner – whether Commissioner has an incidental power to grant such relief.
Held: appeal dismissed – the withdrawal of an offer by the Treasurer of ex gratia relief cannot be reviewed on an appeal against the Commissioner’s assessment – other than in circumstances which are not presently material, the Commissioner does not have power to grant relief from a stamp duty liability on discretionary grounds – Commissioner not permitted to take account of any grant of relief by Treasurer on an assessment of stamp duty – a decision as to ex gratia relief does not form part of the ‘assessment’ – Treasurer not acting as agent or delegate of Commissioner – Commissioner does not have an incidental power to grant such relief.