Al Haddad v Chief Commissioner of State Revenue

[2018] NSWCATAD 91

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Al Haddad v Chief Commissioner of State Revenue [2018] NSWCATAD 91
Hearing dates:	11 December 2017
Date of orders:	26 April 2018
Decision date:	26 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J S Currie, Senior Member
Decision:	1. The Applicant is allowed to make this application for review after the period prescribed by s99 (1) of the Taxation Administration Act 1996.  2. The Chief Commissioner’s decision under review is affirmed.
Catchwords:	REVENUE LAW- Duties Act 1997 (NSW), s55 (1)(b)- claim for refund of ad valorem duty on transfer of land– whether Chief Commissioner correctly applied s55(1)(b) in deciding to refuse Applicant’s claim for refund of ad valorem duty- onus of proof on Applicant - whether real purchaser “provided the money for the purchase”–proper construction of “money” and ”consideration”- necessity to establish that real purchaser provided the whole of that money- finding that he did not do so. Respondent’s decision affirmed.   PRACTICE AND PROCEDURE- Taxation Administration Act 1996, s99 (1) Time for making application for review- Applicant allowed to apply for review after the period prescribed.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW). Civil and Administrative Tribunal Act (No.2) 2013 (NSW). Duties Act 1997(NSW). Taxation Administration Act 1996 (NSW)
Cases Cited:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 Commonwealth Bank of Australia v Shahen Serobian [2009] NSW SC 302 at [362] Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 Della-Franca v Chief Commissioner of State Revenue (2005) NSW ADT 106 Landfall Pty Ltd v Chief Commissioner of State Revenue [2012 ]NSWADT 270 at [30] and [31] Messenger Press Proprietary Ltd v Commissioner of Taxation [2012] FCA 756 Triantafilis v Commissioner of Stamp Duties for New South Wales [1998] NSWSC 112 Watson v Foxman (1995) 49 NSWLR 345 at 318-319
Texts Cited:	D. Graham Hill: ”Stamp Duty Rewrite” (LBC Information Services), 1997 at p185
Category:	Principal judgment
Parties:	Ali Rajab Mohamed Al Haddad (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: R.M.Sealey (Respondent)   Solicitors: Asad Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00048370

reasons for decision

What is this matter about?

1. This matter arises from a decision by the Chief Commissioner of State Revenue (“the Chief Commissioner”) to refuse an application for a refund of ad valorem stamp duty assessed and paid on a memorandum of transfer (“the Transfer”) being a transfer of the title in a property at 13 Sandown Close, Casula (“the Casula property”). The application for refund was made by the Applicant in these proceedings, Mr Ali Rajib Mohamed Al Haddad, who was the transferee. The transferor was Mr Al Haddad’s son Mr Mohammad Al Haddad.

2. The Applicant claimed that he was entitled to a refund of ad valorem duty of $24,740, by operation of the concessional duty provisions in section 55 of the Duties Act 1997 (NSW).

3. s55 (1) (b) provides that duty of $50 only will apply in relation to transfers of dutiable property from an apparent purchaser to the real purchaser which meet certain conditions. Those conditions are set out in sub-paragraphs (i) and (ii) of the subsection. In pursuing the refund request the Applicant asserted that the Casula property had been purchased by his son upon trust for the Applicant himself, that accordingly he, the Applicant, was the real purchaser and that he had provided the money for the purchase and any improvements and had therefore satisfied the requirements of s55(1)(b) and so should have a refund of the ad valorem duty of $24,740 which he had paid.

4. However the Chief Commissioner was of the view that s55(1)(b) had not been satisfied, that the correct dutiable value of the Transfer was $650,000 and that accordingly ad valorem duty of $24,740 had been correctly imposed. On 4 May 2016 the Chief Commissioner rejected the request for a refund (“the 4 May Decision”). The Applicant then objected to that decision but on 7 December 2016 the Chief Commissioner disallowed the objection.

5. The Applicant commenced these proceedings, seeking to review the 4 May Decision. His application was received by the Tribunal on 9 February 2017.

The central issue

6. The central issue can be readily stated. It is whether the 4 May Decision to reject the Applicant’s claim for a refund was correct and valid.

7. Resolution of that issue must of course involve my assessment of the provisions of s 55 (1) (b), so far as necessary, and my determination as to whether those provisions apply so as to justify the Applicant’s claim for a refund or alternatively that they apply so as to justify the Chief Commissioner’s 4 May Decision, in which case that decision should be affirmed.

Preliminary issues and considerations

Is the Application out of time?

8. The Application seeks to review the 4 May Decision. The Chief Commissioner issued his determination of the objection on 7 December 2016. The Application was received by the Tribunal on 9 February 2017; that is 64 days later.

9. s99(1) of the Taxation Administration Act 1996 (NSW) (“the TA Act”), which is extracted below at [17], requires any application for review following a determination by the Chief Commissioner of an objection to be made not later than 60 days after the date of issue of the notice of the Chief Commissioner’s determination of the objection. However the Tribunal is empowered to allow a person to apply for a review after that 60 day period.

10. I did not understand the Chief Commissioner to object to my consideration of the application notwithstanding non-compliance with the time limits prescribed by s 99 (1). In any case I could not perceive any injustice to the Chief Commissioner arising from a decision to proceed notwithstanding that non-compliance. Although the exact facts were not clear, I understood the Applicant to assert that there had been some delay in his obtaining legal advice on his position and thereafter, without fault on his part, some unforeseen administrative delays in the delivery to the Registry of the application.

11. In those circumstances the Applicant should be allowed to apply for a review by this application notwithstanding that it was received outside the time prescribed by s 99 (1) of the TA Act. I order accordingly.

The decision under review

12. Although the Application is not completely clear in this regard, it appears to seek a review of the Chief Commissioner’s decision of 7 December 2016, by which he disallowed the objection to his original decision.

13. However, it is clear from Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 at [28] that the proper construction of s96(1) of the TA Act, which is reproduced below at [17], is that the decision which is reviewable by this Tribunal is the original decision by which an assessment was issued to the taxpayer. It is not the decision of the Chief Commissioner to disallow the taxpayer’s objection. I could discern no lack of procedural fairness or other prejudice to either party by proceeding on the basis that the decision under review here was the 4 May Decision; that is, the one which initially disallowed the refund, notwithstanding the way in which the Application had been expressed. I understood that the parties were content for me to proceed on that basis and I did so.

The powers of the Tribunal on review and the onus of proof

14. Under section 96 of the TA Act a taxpayer may apply to this Tribunal for administrative review of an assessment or other decision to which the taxpayer has objected, where the taxpayer is dissatisfied with the Chief Commissioner’s determination of the objection. Under s101 (1) of the TA Act, on review the Tribunal may confirm or revoke the decision of the Chief Commissioner, make an assessment or other decision in place of the Chief Commissioner’s decision, make an order for payment to the Chief Commissioner, remit the matter to the Chief Commissioner for determination or make any further order as to costs or otherwise as it thinks fit. However, nothing in section 101 of the TA Act limits the operation of section 60 of the Civil and Administrative Tribunal Act 2013 (NSW), which governs the award of costs in Tribunal proceedings.

15. Under section 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), in determining the application for review the Tribunal must decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. For that purpose, the Tribunal may exercise all of the functions which are conferred or imposed by any relevant legislation on the administrator who made the decision: in this case, the Chief Commissioner. This is sometimes, and perhaps somewhat loosely, described as the Tribunal “standing in the shoes” of the Chief Commissioner as decision-maker.

16. Under s 100 (3) of the TA Act, in any review by this Tribunal the applicant in proceedings has the onus of proving its case. The requisite standard of proof is the balance of probabilities: Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187.

Examination of the bundle of documentation lodged by the Applicant’s solicitor

17. As a final preliminary matter I formally record the following:

1. at the conclusion of the hearing the Applicant’s solicitor Mr Mohammad Al-Shahidi urged me to examine each of the documents in a large bundle which had apparently been lodged at the Registry shortly before the hearing.

2. The documents had been placed in a separate box which was in the hearing room but I had not had an opportunity to examine those documents in any detail prior to the commencement of the hearing.

3. I indicated to the parties that I would examine each the documents in the bundle before reaching my decision on the matter and I did so.

Relevant legislative provisions

18. For convenience of reference I set out below the legislative provisions which are relevant to my determination of this matter.

Duties Act 1997

55 Property vested in an apparent purchaser

(1) Duty of $50 is chargeable in respect of:…

(b) a transfer of dutiable property from an apparent purchaser to the real purchaser if:

(i) the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and

(ii) the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase.

(1A) For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser.

(1B) This section applies whether or not there has been a change in the legal description of the dutiable property between the purchase of the property by the apparent purchaser and the transfer to the real purchaser.

(2) In this section, purchase includes an allotment.

Administrative Decisions Review Act 1997

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Taxation Administration Act 1996

96 Review by Civil and Administrative Tribunal

(1) A taxpayer may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Chief Commissioner that has been the subject of an objection under Division 1 if:

(a) the taxpayer is dissatisfied with the Chief Commissioner’s determination of the taxpayer’s objection, or

(b) 90 days (not including any period of suspension under section 92) have passed since the taxpayer’s objection was served on the Chief Commissioner and the Chief Commissioner has not determined the objection...

99 Time for making application for review

(1) An application for review following a determination by the Chief Commissioner of an objection must be made not later than 60 days after the date of issue of the notice of the Chief Commissioner’s determination of the objection. The court or tribunal to which the application is to be made may allow a person to apply for a review after that 60-day period…

100 Provisions relating to applications for review

…

(2) The applicant’s and respondent’s cases on an application for review are not limited to the grounds of the objection.

(3) The applicant has the onus of proving the applicant’s case in an application for review.

101 Powers of court or tribunal on review

(1) The court or tribunal dealing with the application for review may do any one or more of the following:

(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit.

(2) Nothing in this section limits the application of the following provisions in respect of an application for review before the Civil and Administrative Tribunal:

(a) Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997,

(b) section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

Uncontested facts

19. The following facts are uncontested and they provide background to the decision under review.

1. Mr Mohammad Al Haddad is the son of the Applicant.

2. On 22 February 2010, the Applicant sold his residence in Villawood (“the Villawood property”) for $375,000.

3. On 1 April 2010, the Applicant’s solicitor wrote to the solicitor for the purchaser of the Villawood property and sought release of the deposit paid on the transaction,: “to enable Mr Al Haddad to assist his son, Mohammad Al Haddad, in the purchase of a property” and on 1 April 2010 the Applicant signed an authority instructing his solicitor to forward a cheque for $20,000 to a real estate agent, “for the purchase of (the Casula Property) by my son Mohammad Al Haddad”.

4. On 8 April 2010 Mr Mohammad Al Haddad was granted unconditional approval of a loan from Westpac for $330,000 secured by the Casula property. The loan was in the name of Mohammad Al Haddad.

5. On 13 April 2010 Mr Mohammad Al Haddad contracted to purchase the Casula property for $457,000 with a deposit of $22,850.

6. The Transfer was marked “exempt” from duty on the basis that Mr Mohammad Al Haddad was a first home owner.

7. On 5 May 2010 Mr Mohammad Al Haddad also completed an application for the First Home Owners Grant in relation to the Casula property. In that application he declared, at question 4, that he applied in his capacity as a natural person whose interest in the property “is not held subject to a trust”.

8. On 6 May 2010 the Applicant’s sale of the Villawood property was completed, the net proceeds of the sale payable to him being $86,636.97. On 25 May 2010 the Applicant signed an authority instructing his solicitor to forward the proceeds in that amount: “towards the purchase of my son Mohammad Al Haddad of (the Casula property)”.

9. On 9 June 2010 the purchase of the Casula property was completed.

10. On 30 April 2015, that is, nearly 5 years after completion of that purchase, an instrument (“the Deed of Trust”) was executed between the Applicant and Mr Mohammad Al Haddad in relation to the Casula property.

11. On 23 July 2015 Mr Mohammad Al Haddad transferred title to the Casula property to the Applicant. The Transfer indicated consideration of $350,000.

12. However, as noted in [4], the Chief Commissioner was of the view that the correct dutiable value of the Transfer was $650,000 and that accordingly ad valorem duty of $24,740 which had been paid, had been correctly imposed. On 4 May 2016 the Chief Commissioner rejected the request for a refund of that payment. The Applicant then objected to that decision but on 7 December 2016 the Chief Commissioner disallowed the objection.

The Chief Commissioner’s Case

20. The case put by counsel for the Chief Commissioner at the hearing and in outline submissions received on 27 July 2017 was, in summary, as follows.

1. On any proper analysis of the evidence the Applicant has not satisfied his onus of establishing that s55(1)(b) applies to relieve him of the obligation to pay ad valorem stamp duty on the Transfer.

2. Dealing firstly with the second limb of s55(1)(b), that is the requirement in paragraph (ii) that the real purchaser must have provided the money for the purchase of the dutiable property and for any improvements after the purchase, the Applicant has not established that he provided the purchase monies.

3. It is clear on the authorities that the Applicant must establish that he provided the entire purchase monies in order for the exemption to apply. In that regard:

1. $7000 was provided by Mr Mohammad Al Haddad from his First Home Owners’ Grant monies and that while the Applicant alleges that he “repaid this amount within 18-24 months of settlement” there is no documentary substantiation of that assertion. The Chief Commissioner contends that in any case even if there had been some “repayment” by the Applicant (which he said should not be accepted as having occurred) that would be beside the point because, at the time of the purchase, the $7000 was made available by Mr Mohammad Al Haddad and not by the Applicant.

2. No documentary evidence had been provided which would allow any conclusions to be drawn as to who repaid the Westpac Loan for $330,000 taken out in the name of Mr Mohammad Al Haddad and secured by the Property.

3. There was no proper basis, on the basis of the evidence, for the application of s 55(1A). That sub-section allows money provided by a person other than the real purchaser to be taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has or will be repaid by the real purchaser. In effect the assertion by the Chief Commissioner is that he could not properly be satisfied that that was the case and nor could the Tribunal, which, as I have noted at [15], must “stand in his shoes” in determining the matter.

4. There was insufficient documentary evidence in respect of the two personal loans, totalling $10,000, alleged to have been advanced to the Applicant for the purpose of the purchase of the Property. I understood the Chief Commissioner to contend again that s 55(1A) did not apply to these loans because neither the Chief Commissioner nor the Tribunal could properly be satisfied that the loans had been made or had been or would be repaid by the Applicant.

4. The matters contended in (3) above are of themselves fatal to the application of the second limb of s 55(1)(b) to the Transfer and the Tribunal should affirm the decision under review on that basis.

5. If consideration does need to be given to the first limb, the Chief Commissioner makes the following additional submissions. The requirement in paragraph (i) of s 55 (1) (b) requires that in order for the concession to be available the dutiable property must have vested in the apparent purchaser (here, Mr Mohammad Al Haddad) upon trust for the real purchaser (the Applicant). In short, there must have been a trust to that effect in existence at the time of the purchase.

6. While the Deed of Trust (which was entered into some 5 years after the Transfer) retrospectively recites or provides that the Property was acquired by Mr Mohammad Al Haddad on trust for the Applicant, the contemporaneous documentary evidence suggests otherwise. In particular:

1. in his application for the First Home Owners’ Grant, Mr Mohammad Al Haddad declared at question 4 that he made the application in his capacity as a natural person, whose interest in the Property “is not held subject to a trust”;

2. the Westpac loan was held in Mr Mohammad Al Haddad’s name;

3. there are various items of correspondence suggesting that the Applicant gifted or otherwise provided the monies to his son Mohammad to assist him to purchase the property in his own right (and this is consistent with Mr Mohammad Al Haddad’s application for the First Home Owners’ Grant; and

4. it is reasonable to infer that the amount of $314,715.17 paid to Westpac on settlement of the purchase of the Casula property was in fact paid to discharge the Westpac loan taken out earlier by Mr Mohammad Al Haddad and that is wholly inconsistent with the transfer of trust property from a trustee to a beneficiary for no consideration.

7. For the reasons set out in (6) the Applicant is unable to establish, based on contemporaneous evidence that title in the Casula property ever vested or was intended to vest in Mr Mohammad Al Haddad on trust for the Applicant.

8. In relation to the need for contemporaneous records of relevant transactions to be preferred in this context, the Chief Commissioner relies on Watson v Foxman (1995) 49 NSWLR 345 at 318-319 and Commonwealth Bank of Australia v Shahen Serobian [2009] NSW SC 302 at [362].

The Applicant’s case

21. Expansive submissions on behalf of the Applicant were set out in the Application, in the written submissions dated 13 June 2017, in further written submissions dated 14 November 2017 and by Mr Al-Shahidi, the solicitor for the Applicant, at the hearing. In summary the case for the Applicant is as follows:

1. There was an express trust created orally on an unspecified date which, as I understand it would have been reasonably proximate to and probably prior to the date of exchange of contracts for the purchase of the Villawood property in February 2010.

2. The trust so created was to the effect that the Applicant (as the real purchaser) would arrange for the purchase of the Casula property in the name of his son Mr Mohammad Al Haddad.

3. I understood it to be suggested that the Deed of Trust executed some 5 years later was essentially merely a confirm the tree formalisation of the oral express trust referred to in (1), in that it provided greater clarification of the role and obligations of the trustee.

4. It follows that upon completion of the purchase of the Casula property title in that property was vested in the apparent purchaser (Mr Mohammad Al Haddad) upon trust for the real purchaser (the Applicant).

5. The evidence establishes that the Applicant as real purchaser provided all monies for the purchase of the Casula property.

6. It must follow from the above that the Applicant is able to take advantage of the provisions for concessional stamp duty set out in s 55 (1) (b), all the elements of that paragraph having been satisfied.

7. It follows that the decision under review by the Chief Commissioner was incorrect and should be revoked, so as to allow for the refund to the Applicant of the ad valorem duty of $24,740

Analysis and Determination

The elements of s55 (1)(b)

22. As has been noted above at [3], the effect of s55(1)(b) of the Duties Act is that nominal duty of $50 is chargeable in respect of the transfer of dutiable property from an apparent purchaser to the real purchaser, where two conditions are satisfied; namely:

1. the dutiable property must be property, or part of property, vested in the apparent purchaser upon trust for the real purchaser; and

2. the real purchaser must have provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase.

23. In order to give effect to the “guiding principle” in section 36 of the Civil and Administrative Tribunal Act, which obliges me to resolve the real issues in the matter justly, quickly and cheaply, and given the nature of the evidence and the submissions, it is appropriate that I proceed to consider firstly whether the real purchaser provided the money for the relevant purchase (that is, the second limb of the subsection).

24. It is of course necessary for both limbs to be satisfied in order for the Applicant to succeed, so if I conclude that the second limb is not satisfied; that is, that the real purchaser (the Applicant) has not established that he provided the money for the purchase of the dutiable property, then he will be unable to take advantage of the concessionary rate of duty available under section 55, his case for a refund of the duty he has paid must fail and the Chief Commissioner’s decision to refuse that refund must be affirmed.

Did the real purchaser (the Applicant) provide the money for the purchase?

25. The starting point of the analysis of this limb is the additional interpretation provision contained in subsection (1A) of section 55 in the following terms:

“For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser.” (Emphasis added)

26. While the application of this subsection to the facts was not specifically covered in the written or oral submissions made on behalf of the Chief Commissioner, there is no indication that the Chief Commissioner was satisfied, in the terms required by the sub-section; that is, satisfied as to the matters represented by the words underlined in the quotation above. Indeed, that would be a surprising result, given the direction and content of the Chief Commissioner’s case.

“Money”

27. The leading authorities make it clear that the notion of “money” for the purposes of this sub-section is quite a narrow one. In Justice Hill’s “Stamp Duty Rewrite” (LDC Information Services, 1997 at p185) the learned author notes that previous drafts of the provision which became s55(1) used the term “consideration” or the phrase “consideration in kind” rather than “money”. In Landfall Pty Ltd v Chief Commissioner of State Revenue [2012 ]NSWADT 270 at [28]-[30], Judicial Member Block noted that the words “consideration” and “consideration in kind” have an accepted legal meaning as very wide concepts and that, having regard to the legislative history, the change from a proposed requirement of “consideration provided” to the narrower concept of “the money for the purchase” was clearly intentional.

28. Perram J in Messenger Press Proprietary Ltd v Commissioner of Taxation [2012] FCA 756, cited with approval the observations by Darling J in Moss v Hancock [1899] 2 QB 111 that money was:

that which passes freely from hand to hand throughout the community in final discharge of debts and full payment for commodities, being accepted equally without reference to the character or credit of the person who offers it and without the intention of the person who receives it to consume it or apply it to any other use than in turn to tender it to others in discharge of debts or payments for commodities.

29. Although such a definition appears not to have contemplated more modern developments such as the exchange of settlement funds held by banks with a central bank (as noted by Perram J in the Messenger Press Case), His Honour was satisfied that “money” must have a narrow meaning and he noted that the definition above was adopted by Emmett J in Travelex Ltd v Federal Commissioner of Taxation (2008) 70 1ATR216; [2008] FCA 1961 at [25].

30. Such a conclusion is not inconsistent with the observations made by O’Connor P of the Administrative Decisions Tribunal in Della-Franca v Chief Commissioner of State Revenue (2005) NSW ADT 106 at [35]. That was a case involving subsection (1) of section 55, which applies to duty payable on a declaration of trust, but the principles apply equally in considering subsection (2). The learned President was of the view that in order for the subsection to apply there needs to be good evidence that at the time of the transaction the real purchaser must have supplied the funds. However he added an alternative possibility: that the real purchaser may:

… perhaps (have) had within the framework of a broader venture …sufficient credits due to him, which would clearly be allowed as credits in his favour for the purpose of the purchase.

31. In my view the inclusion “credits” by the President makes sensible allowance for the way in which payment of money due from the purchaser can be effected at completion of large-scale or complex transactions, but it appears to have little relevance to straightforward conveyancing transactions such as the purchase of the Casula Property in this case and it does not in my view expand the concept of “money” for the purposes of s 55 (1) (b).

The whole of the money must be paid by the real purchaser

32. The law on this point is clear. It was stated by Priestley JA in Triantafilis v Commissioner of Stamp Duties for New South Wales [1998] NSWSC 112, in the following terms( at page 4.8):

The provision in my view is talking about one conveyance where the whole of the purchase money has been actually paid by the real purchaser although title has been taken to the property by an apparent purchaser. In my view a condition of non-chargeability with ad valorem duty is that the whole of the purchase money for the one property conveyed by the instrument must have been actually paid by the real purchaser before the exemption from ad valorem duty is available.

33. It is true that Justice Priestley’s conclusions were based on section 73 of the old Stamp Duties Act which uses the phrase: “actually paid”, but his construction was followed in the Landfall Case cited above at [27] and was approved in Hill’s “Stamp Duty Rewrite” (as cited above) at p185. It is clear that Justice Priestley’s construction applies to the current s 55 (1) (b).

Did the Applicant pay the whole of the purchase money?

34. In the Applicant’s written submissions, his two written statements and in his oral testimony he strenuously asserted that he had provided “every last cent “ of the purchase money. That was supported by the evidence of his son, the apparent purchaser, whose response to many questions in his examination-in chief was to the effect that “everything was paid by my father”. At the hearing his solicitor repeated that assertion, but significantly at one point (Tcpt, disk 3, 28:20) he submitted that the Applicant:

“provided almost every single dollar of the purchase and the loan repayment”. (Emphasis added).

35. I accept that this may have been said in haste and that it was inconsistent with the remainder of the submissions for the Applicant on this point, but I record it because there was no express submission on the Applicant’s behalf that a refund of the ad valorem duty could properly be made where a small part of the purchase monies were paid by someone else; that is, someone other than the Applicant. Indeed, in light of the authorities cited above, such a submission would not have succeeded.

36. Did the Applicant in fact provide the whole of the purchase money (“every last cent”) in this case? It is clear that he did not.

37. It was not disputed that Mr Mohammad Al Haddad had, in his own name, made application for and had received a First Home Owners Grant in relation to his purchase of the Casula property. Indeed it is clear that in his application for that grant Mr Mohammad Al Haddad declared, in response to question 4, that he applied in his capacity as a natural person, whose interest in the property: “is not held subject to a trust”.

38. It also is undisputed that by this method $7000 was provided by Mr Mohammad Al Haddad towards the purchase monies for the Casula property. The Applicant alleges that he “repaid this amount within 18-24 months of the settlement to the trustee” (his statement of 13 July 2017 at [2] (a)). I have no reason to doubt that, but the mere fact of “repayment” does not alter the stark reality that this is the contribution received from Mr Mohammad Al Haddad through his First Home Owners Grant which patently constitutes money “provided… for the purchase of the dutiable property” by someone other than the real purchaser.

39. That finding, on a strict view of it, concludes the matter. However, for completeness, I deal with two of the contentions on behalf of the Chief Commissioner that there were other components of the purchase price of a property which constituted a payment for the purchase by parties other than the real purchaser. They are as follows.

1. It was alleged by the Chief Commissioner and does not seem to be disputed that $10,000 was provided to the Applicant by way of two personal loans, each for $5000 from friends of the Applicant, Mr Sattar Al Ubudy and Mr Hamid Al-Aliawy. However, under subsection (1A) of section 55, money provided by a person other than the real purchaser will be taken to have been provided by him if the Chief Commissioner is satisfied that that money was provided as a loan and has been or will be repaid by the real purchaser. My examination of the substantial documentary material lodged by the Applicant prior to the hearing and the statutory declarations provided by each of the lenders establishes to my satisfaction that the $10,000 was in fact repaid. In my view, although Chief Commissioner has not expressed his satisfaction that the repayment was made, he could not reasonably be satisfied that otherwise. I therefore regard the loans of $10,000 as money provided by the real purchaser.

2. Although the evidence on this aspect is far from clear, it appears from the applicant’s answers in cross-examination that in addition there was some pooling between family members of monies, which apparently largely constituted Centrelink benefits, and that the pooled amount was contributed towards the repayment of the Westpac mortgage loan taken out to assist the purchase of and secured by the Casula property. Although this establishes that the Applicant was not the sole contributor towards those repayments I cannot see that it amounts to provision of money for the purchase itself by parties other than the real purchaser.

40. Notwithstanding my conclusions in the previous paragraph, my findings and conclusions in [36] to [38] must mean that the Applicant has failed to establish that he provided the whole of the money for the purchase of the Casula property. It matters not that he provided the substantial part of it, or, as he asserts (and which appears to be the case) that he paid all other outgoings due on the property and all monies for its improvement after the purchase.

41. s 55 (1) (b) (ii) is not satisfied.

42. It must follow that the concessional rate of stamp duty available under section 55 is not available to the Applicant in respect of the transfer of the Casula property. As noted above at [16] the Applicant bears the onus of establishing his entitlement to a refund of the duty. He has failed to do so.

43. In light of those conclusions it is not necessary for me to determine whether the first limb of subsection 55 (1) (b) is applicable. In terms, the subsection requires both limbs of the paragraph to be satisfied in order for the concessional rate of duty to be available.

Conclusion

44. For these reasons I conclude that the Chief Commissioner’s refusal the Applicant’s request for a refund of duty on 4 May 2016 was correct and valid. It follows that the application for review fails and that I should order that the Chief Commissioner’s decision under review is affirmed.

Orders

1. The Applicant is allowed to make this application for review after the period prescribed by s99 (1) of the Taxation Administration Act 1996 (NSW).

2. The Chief Commissioner’s decision under review is affirmed.

45. I order accordingly.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 26 April 2018