The WA State Administrative Tribunal has held a transfer of shares in a company which operated rail freight services in WA should not attract stamp duty as it found the company was not a “land-holder” for the purposes of s 76AP(2) of the Stamp Act 1921 (WA).
In doing so, it found certain rights of access to land through which the railway lines passed, the track infrastructure, and certain other infrastructure, was not “land” or an “interest in land” for the purposes of the Stamp Act.
In February 2006, the second taxpayer entered into a share sale agreement to purchase all of the shares in the first taxpayer. The Commissioner assessed that transaction and issued a notice of assessment in January 2010 for some $71.3m. The assessment was made on the basis that the first taxpayer was a “land-holder”. The taxpayers objected to that assessment. The parties disputed whether certain components of the relevant property constituted “land” for the purposes of s 76(1). The value of the disputed property was worth around $922m and represented some 62% of the total value of all relevant property the second taxpayer was entitled to as at the date of the acquisition.
The Tribunal examined the nature of the rights enjoyed by the first taxpayer, and the proper characterisation of the relevant items of infrastructure, and concluded that the company was not a “land-holder” for the purposes of the Stamp Act. Accordingly, the Commissioner’s decision to disallow the taxpayers’ objection to the assessment was set aside.
(WestNet Rail Holdings No 1 Pty Ltd & Anor v Comr of State Revenue [2012] WASAT 45, WA State Administrative Tribunal, Chaney P, 9 March 2012.)
[LTN 20/4]