The Victorian Supreme Court has set aside a stamp duty assessment issued to a taxpayer under the land rich provisions of the Duties Act 2000 (Vic).
The taxpayer was the trustee of an investment trust (“the Regis Trust”) and in that capacity acquired shares in a land rich company (RPA). The taxpayer commenced purchasing shares in RPA in June 2002 and acquired all the shares by July 2007. As at 13 May 2004, the taxpayer held 55.13% of the issued shares in RPA. The Court noted the relevant provisions were amended with effect from 13 May 2004 and those amended provisions were those which were applied in Comr of State Revenue v Landrow Properties Pty Ltd & Anor (2010) 79 ATR 800 and Comr of State Revenue v Challenger Listed Investments Ltd [2011] VSCA 272.
The argument put forward was complex. Broadly, the Commissioner submitted that the Regis Trust, of which the taxpayer was trustee, was a “person” having an “interest” in RPA within the meaning of s 76(1). The Court first dealt with the assessment concerning acquisition of shares after 13 May 2004. Although indicating there was some merit in the Commissioner’s submission that the word “person” in s 76(1) would include the Regis Trust, the Court decided to adopt a construction of the provisions that was consistent with Landrow and Challenger. In doing so, the Court said the Commissioner’s construction of s 76 did not compel the result that the Regis Trust would also be a “person” for the purposes of s 77 and s 79. The Court also rejected arguments that there were material differences of the relevant provisions pre and post 13 May 2004.
Essentially, the Court was of the view that s 76 before the 2004 amendments did also incorporate the meaning of “beneficially entitled”. Accordingly, the assessment was set aside and remitted to the Commissioner for redetermination.
(Regis Investments Pty Ltd v Comr of State Revenue [2012] VSC 115, Victorian Supreme Court, Pagone J, 2 April 2012.)
[LTN 65, 4/4]