The NSW Civil and Administrative Tribunal has affirmed the Commissioner’s objection decision refusing a taxpayer’s claim for the “no double duty” concession for a non-conforming transfer under s18(3) of the Duties Act 1997 (NSW).

There was a contract of 26 April 2012 for a purchase of a property naming Ms P as the purchaser. The contract was stamped and duty of $112,540 was paid. However, there was also correspondence between the solicitors of the purchaser and vendor seeking to change the purchaser’s name to the taxpayer’s name (as trustee of a family trust) and that transfer was registered with nominal duty of $10 purportedly pursuant to s18(3). On 27 June 2013, the Commissioner issued a notice of assessment for $121,102 in relation to the transfer. The taxpayer objected to the assessment and commenced proceedings before the Tribunal.

The Tribunal decided to determine the matter on the papers after the taxpayer failed to appear at the hearing. The Tribunal noted the taxpayer had applied for a review of the Commissioner’s objection decision when the application should have been for a review of the assessment as per s96 of the Taxation Administration Act 1996 (NSW). In that event, the Tribunal said that since the taxpayer did not appear at the hearing and no application to amend was made, then quite apart of s18, the decision under review must be affirmed.

However, in relation to the s18 issue and assuming that the application had been amended to seek review of the assessment, the Tribunal was of the view that the concession under s18(3) did not apply as the requirement that there be “related parties” both “at the time the agreement was entered into, and at the completion or settlement of the agreement” had not been met. Among other things, the Tribunal noted the taxpayer did not exist at the time of the agreement. As a result, the Tribunal held both the contract and the transfer were dutiable transactions giving rise to liability for duty.

(Perizon Nominees Pty Ltd v Chief Comr of State Revenue [2016] NSWCATAD 84, NSW Civil and Administrative Tribunal, Walker SM, 5 May 2016.)

[LTN 88, 10/5/16]