Axiom88 Pty Ltd ATF Axiom88 Trust v Chief Commissioner of State Revenue

The applicant, Axiom88 Pty Ltd, acting through the Axiom88 Trust, challenged the Chief Commissioner of State Revenue's imposition of a surcharge land tax assessment for the years 2017, 2018, 2019, 2020, and 2021. The applicant held land on trust under a discretionary trust and disputed the Commissioner's assertion that foreign persons were not excluded as beneficiaries under the trust deed. This led to the imposition of the surcharge land tax. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether, during the relevant land tax years, foreign persons were excluded as a beneficiary under the terms of the trust deed, and whether this exclusion justified the imposition of surcharge land tax. The applicant argued that foreign persons were not excluded from benefiting under the trust deed, and therefore, the surcharge land tax should not apply. The Commissioner, on the other hand, maintained that foreign persons were indeed excluded as beneficiaries, thus triggering the surcharge.

In assessing the arguments, the court examined the terms of the trust deed and the applicable legislation. It determined that the trust deed did not exclude foreign persons from being beneficiaries, thereby negating the basis for the surcharge. The court concluded that the Commissioner's assessment and imposition of the surcharge land tax were incorrect. The applicant's appeal was upheld, and the surcharge land tax assessment was quashed.

The court ordered that the surcharge land tax assessment of the Chief Commissioner of State Revenue, made on 11 February 2021, for the years 2017, 2018, 2019, 2020, and 2021 be confirmed as quashed. This ruling provides clarity on the application of surcharge land tax in the context of discretionary trusts and the exclusion of foreign beneficiaries.