Frank Zakis Pty Ltd ATF Frank Zakis Family Trust v Chief Commissioner for State Revenue
[2014] NSWCATAD 18
•26 February 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Frank Zakis Pty Ltd ATF Frank Zakis Family Trust v Chief Commissioner for State Revenue [2014] NSWCATAD 18 Hearing dates: 11 February 2014 Decision date: 26 February 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J. Block, Senior Member Decision: The assessment (and being a second reassessment) for the 2013 land tax year is affirmed
Catchwords: Meaning of "owner" for the purposes of land tax - more than one owner - effect of transfer and effect of its registration after the taxing date - meaning of "agreement for sale" for the purposes of section 26 of the Land Tax Management Act Legislation Cited: Land Tax Management Act 1956;
Administrative Decisions Review Act 1997 (formerly Administrative Decisions Tribunal Act 1997)Cases Cited: Chief Commissioner of Land Tax v Macary Manufacturing Pty Ltd (1999) 48 NSWLR299;
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR431;
Glenn v Commissioner of Land Tax (Cth) (1915) 20 CLR 490;
Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR164;
1 Rocky Point Pty Limited v Chief Commissioner of State Revenue (no 2) [2010] NSWADT 138, at [181;
BBLT Pty Ltd v Chief Commissioner of the Office for State Revenue [20031 NSWSC1003 (BBLTJ, at [52];
Sahab Holdings Pty Ltd ATF Kanjian Family Trust v Chief Commissioner;
Union Trustee Co of Australia Ltd v Federal Commissioner of Land Tax (1915) 20 CLR 526;
New South Wales Aboriginal Land Council v Chief Commissioner for State Revenue [2004] NSWADT 58.Category: Principal judgment Parties: Frank Zakis Pty Ltd ATF Frank Zakis Family Trust (Applicant) and Chief Commissioner for State Revenue (Respondent) Representation: Mr H. El-Hage (Respondent)
Ms S. Vukici (Applicant/Agent)
Crown Solicitor (Respondent)
File Number(s): 136056
reasons for decision
Part A. Preliminary and background
The hearing before the Tribunal on 11 February 2014 relates to a land tax assessment (and which was in fact a further or second reassessment) requiring the Applicant to pay land tax in respect of the property at 42 Turton Avenue Clemton Park ('the Property") in respect of the 2013 land tax year. The Tribunal refers in this context, in particular but not only, to clause 13 of the written submissions dated 3 December 2013 ("RS") (quoted later in these reasons) filed by the Respondent, who is usually referred to in these reasons as the "Chief Commissioner".
It is relevant to note that Ms Vukici who appeared for the Applicant is an accountant. There was no objection to her representation of the Applicant by the Chief Commissioner.
It is convenient at this early stage to include the content of RS under the head of "Background" and contained in clauses 3 to 13, (omitting footnotes) as follows:
3. The basic background to this matter is set out in the documentary material (s. 58 documents) filed under s. 58 of the Administrative Decisions TribunalAct1997 (NSW) (ADT Act), as well as the Statement served by the applicant, dated 30 October 2013 (AS).
4. The applicant has owned the Property since 2005. Until December 2009, the house on the Property was occupied by tenants. Since December 2009, the house has been occupied by Frank Zakis and his partner, Natasha Anderson, as their principal place of residence: AS, dot points 1-3.
5. In December 2009, a Transfer document .was prepared, for the transfer of the Property from "Frank Zakis Pty Limited" (presumably, as trustee for the Frank Zakis Family Trust) to Frank Zakis and Natasha Anderson. The Transfer was dated 29 December 2012.
6. On 6 February 2013, the Chief Commissioner issued a Land Tax Assessment Notice to the applicant for the 2013 land tax year (6 February Assessment), requiring the applicant to pay land tax for that tax year, with respect to the Property.'
7. On 26 March 2013, the applicant lodged the Transfer with the OSR for stamping, together with, inter alia, a cheque for the amount of stamp duty payable: AS, attachments 6-9.
8. On 2 April 2013, the applicant lodged an objection to the 6 February Assessment. The objection was made on the basis that:
A. Frank Zakis and Natasha Anderson were occupying the Property as their principal place of residence, and as such, the principal place of residence exemption (PPoR Exemption) should apply;
B. The Transfer had been prepared and signed on 29 December 2012, and had "been lodged with Office of State Revenue (sic) and is awaiting stamping".
9. On 13 June 2013, the Chief Commissioner disallowed the applicant's objection. The Chief Commissioner did not dispute (and still does not dispute) that Frank Zakis and Natasha Anderson occupied the Property as their principal place of residence as at 31 December 2012. The Chief Commissioner pointed out that (i) the applicant was the owner of the Property, or at least had legal ownership of the Property, as at 31 December 2012 and (ii) under the LT Management Act, the PPoR Exemption does not apply to land owned by a company or a trustee of a special trust. As such, the PPoR Exemption could not apply to the Property.
10. On 21 June 2013, the Transfer was lodged with Land and Property Information and registered on title," Frank Zakis and Natasha Anderson became the registered owners of the Property from that date.
11. On 1 July 2013, the Chief Commissioner issued a Land Tax Assessment Notice (1 July Assessment]," in which the Chief Commissioner assessed the Property as not being liable for land tax for the 2013 tax year, with respect to the Property. This was a reassessment made under s. 9 of the Taxation Administration Act1996 (NSW) (TA Act). It was issued on the (incorrect) basis that legal title to the Property had been transferred to Frank Zakis and Natasha Anderson on 29 December 2012.
12. The applicant subsequently commenced these proceedings on 9 August 2013, challenging the 6 February Assessment
13. On 20 September 2013, the Chief Commissioner issued a further Land Tax Assessment Notice (20 September Assessment).8 This constituted a further reassessment under s. 9 of the TA Act, requiring the applicant to pay land tax with respect to the Property, for the 2013 tax year. In effect, the 20 September Assessment reinstated the 6 February Assessment.
In the interests of balance I include the content of a document dated 17 December 2013 entitled "Response to Submissions for Chief Commissioner of State Revenue ("AS") filed by the Applicant on 19 December 2013 but confined to its response to clauses 1 to 13 of RS. That content is included in this clause 3 as follows:
3. Agree it is a basic not comprehensive outline of the matter.
4. Agree. ·
5. Disagree. A transfer document was not prepared in December 2009 as stated in the respondent's submission. A transfer document was prepared and executed in December
2012. Presumably reference to December 2009 is a typographical error on the part of the respondent.
6. Agree.
7. Agree.
8. Disagree. The objection lodged on 2 April 2013 was completed using an OSR027e form entitled Objection to an Assessment or Decision. On page 2 of the form is a section to be completed where the Principal Place of Residence Exemption is sought. This was not completed. On page 3 of the form is a section headed "other types of reasons". This section was completed. Under this section the objection was clarified as being "other" and where the form requests the applicant to specify the details, the wording inserted was "property transferred to related party 29 December 2012". Where further details were requested in this section those details were intended to be a list of facts - those facts being that the place is still the principal place of residence of the owners, Mr Zakis and Ms Anderson before and from 29 December 2012; the property was transferred from the applicant to Mr Zakis and Ms Anderson and the transfer documentation had been lodged with OSR and was in the process of (or awaiting) stamping. Although the mention of principal residence occurs it is clear from the completion of this form that the intention of the applicant was not to lodge an objection made on the basis of principal residence as suggested by the respondent.
9. The respondent states the objection was disallowed on the basis of the applicant not being entitled to the Principle Place of Residence Exemption. This was also confirmed in the respondent's letter (reference pg.22 of s58 documents).
10. Agree with the action stated.
11. Disagree. The respondent claims the second assessment, issued on 1 July 2013, assessing. the property as not being liable for land tax " ......was issued on the [incorrect) basis that legal title to the Property had been transferred to Frank Zakis and Natasha Anderson on 29
December 2012". Frank Zakis and Natasha Anderson had become legal and equitable owners on 29 December 2012. The applicant had done all things necessary to see the ownership, control and future obligations transfer. There is no dispute by the respondent that exclusive possession and enjoyment had already transpired in December 2009. Both parties had satisfied the conditions required to have an enforceable legal contract recognised in that there was an offer of property for consideration; there was an acceptance of the offer and there was consideration paid for the transfer. An agreement had been reached which involved the coming together and acceptance of both parties' terms - those of the applicant transferor and Mr Zakis and Ms Anderson transferees. The written confirmation of that agreement was contained in the executed Transfer. The duty payable on the transfer was paid within the 3 month timeframe required from the date of transfer and the respondent had documentation within its possession to confirm that ownership had been transferred.
12. Agree with the action stated.
13. Agree with the action stated.
It is also relevant at this early state to note that Mr El-Hage agreed that clause 5 of RS contains an error in that the reference in the first line to December 2009 should correctly have referred to December 2012.(The last line of that clause notes that the transfer was dated 29 December 2012)
There was no oral evidence. There were however a number of statements of an evidentiary nature made from the bar table by Ms, Vukici on behalf of the Applicant, some of which are referred to in these reasons.
The Tribunal had before it, apart from AS and RS, and a volume of authorities submitted by the Chief Commissioner, the documents lodged pursuant to section 58 of the Administrative Decisions Review Act 1997 (formerly the Administrative Decisions Tribunal Act 1997). The documents in question are referred to in these reasons as 'the section 58 documents").
This application commenced in the Administrative Decisions Tribunal ("the ADT") The ADT was merged into the Civil and Administrative Tribunal of New South Wales ("NCAT") on 1 January 2014 and in consequence of which I am authorised and required to determine the matter as a matter of NCAT; see clause 7(2) in Schedule 1 to the Civil and Administrative Tribunal Act 2014 ("NCAT Act"). Matters formerly dealt with in the Revenue Division of the ADT are dealt with in the Administrative and Equal Opportunity Division of NCAT; see section 96 of the Taxation Administration Act 1996 and clause 3(1) (b) in Schedule 3 to the NCAT Act.
As appears from clauses 1 to 13 of RS quoted previously in these reasons there is (leaving aside the correction to clause 5 referred to earlier in these reasons) no dispute of fact which is material for the purposes of this decision. The assessment whose correctness is in issue is the assessment referred to in clause 13 of RS and described as "20 September assessment" and which is, again as set out previously, in fact a reassessment and moreover a second reassessment. That assessment is in fact the relevant assessment and it is henceforth referred to in this manner. Although in respect of the relevant assessment the Chief Commissioner has not issued a formal notice of disallowance the parties agreed as to the fact that the issue between the parties relates entirely to the correctness of otherwise of the relevant assessment. The Applicant waived its right to require the issue of a formal disallowance. The Tribunal notes in this context that that waiver was correctly made since to refuse it would have resulted in an unnecessary delay and unnecessary costs.
Part B Factual Matters
As set out previously in these reasons there was no oral evidence before the Tribunal.
Reference was made in particular to the instrument of transfer ("the Transfer") by which the Applicant transferred the Property to Frank Zakis ("Mr Zakis") and Natasha Anderson ("Ms Anderson") jointly. A copy of the Transfer is contained in Tab 12 of the 58 documents. It was executed on 29 December 2013 in consideration of an amount of $450000, receipt of which was acknowledged by the Applicant. The Tribunal was informed from the bar table that this amount was the fair market value obtained by appraisal. The transfer was stamped (so Ms Vukici advised the Tribunal) in March 2013 so as to take advantage of the period of 3 months allowed for this purpose; she also confirmed that the transfer was registered in June 2013.
Ms Vukici drew the attention in particular of the Tribunal to Attachments 3, 4 and 5 to AS. In respect of Attachment 4 she drew the attention of the Tribunal to the fact that this document (a bank statement referable to Ms Anderson) records a withdrawal on 17 November 2010 (described as "internet withdrawal 17 November) in an amount of $109671.18. That bank statement on page 2 contains another entry dated 17 November 2010 (described as" "internet deposit 17 November) in an amount of $109471.18.
Ms Vukici noted in relation to attachment 5 that it is a letter by Perpetual Mortgage Services Pty Limited dated 16 November 2010 addressed to Frank Zakis commencing as follows:" We confirm that settlement of this loan has been booked for 18/11/2010 at 3 pm at Perpetual LMS.........We will require the following bank cheques to be available; Perpetual Trustees Victoria Limited $109174.18 and Perpetual Mortgage Services Pty Limited $297.
Attachment 3 is a balance sheet of the Frank Zakis Family Trust as at 30 June 2013 which inter alia recorded beneficiary accounts movements as follows:
In respect of Mr Zakis an opening balance $534705; Funds contributed of $10569 and "payment to beneficiary in specie" of $319680 leaving a balance owing of $225594. In respect of Ms Anderson an opening balance of $119751 funds contributed of $10569 and "payment to beneficiary in specie" of $130320. The two beneficiary payments amount in aggregate to $450000 which is the consideration shown in the Transfer.
The Tribunal was not furnished with the trust deed in respect of the Frank Zakis Family Trust, which is henceforth referred to as "the Trust". The parties agreed that the Trust is a family trust and moreover a special trust as defined in section 3A of the Land Tax Management Act ("LTMA"). The transaction whereby the Property was transferred by the Applicant to Mr Zakis and Ms Anderson was described by Ms Vukici as one between related parties on the basis that the Applicant was the trustee of the Trust and the transferees were beneficiaries of the Trust. She said from the bar table that the trust deed included Mr Zakis as a discretionary object and that it also included any person who is his spouse. If this is so it is relevant to note that the documentation before the Tribunal in general terms refers to Ms Anderson as a partner but not as a wife or spouse. It is in these circumstances that the Tribunal must wonder whether she was in fact a beneficiary... There was no explanation as to the lengthy gap in time between the transactions referred to in the bank statement (and also the Perpetual letter referred to previously) and the execution of the Transfer
Part C The first major issue; was the Applicant an owner of the Property at 31 December 2013? (The taxing date)
The Chief Commissioner contends that on the taxing date the Applicant was an owner of the Property and the fact that it might not have been the only owner is not to the point. The Applicant contends that the Applicant was not an owner of the Property at the taxing date.
The Tribunal refers in this context to sections 24 and 25 of LTMA as follows:
Section 24. Any person in whom land is vested as a trustee shall be assessed and liable in respect of land tax as if he or she were beneficially entitled to the land: Provided that where he or she is the owner of different lands in severalty, in trust for different persons who are not for any reason liable to be jointly assessed, the land tax so payable by the person shall be separately assessed in respect of each of those lands: Provided also that when a trustee is also the beneficial owner of other land, he or she shall be separately assessed for that land, and for the land of which he or she is a trustee, unless for any reason he or she is liable to be jointly assessed independently of this section.
Section 25 (1) The owner of any equitable estate or interest in land is liable in respect of land tax as if he or she were the legal owner of the estate or interest and land tax is to be assessed accordingly.
(2) For that purpose:
(a) the owner of the legal estate is taken to be the primary taxpayer and the owner of the equitable estate is taken to be the secondary taxpayer, and
(b) there is to be deducted from the land tax payable by the secondary taxpayer in respect of the land such amount (if any) as is necessary to prevent double taxation.
(3) This section does not apply in respect of land that is subject to a special trust.
(4) This section is subject to the other provisions of this Act, in particular sections 25A and 26.
The Tribunal refers also to the definition of "owner" contained section 3(1) of LTMA as follows:
Owner includes:
(a) In relation to land, every person who jointly or severally, whether at law or in equity:
(i) Is entitled to the land for any estate of freehold in possession, or
(ii) is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits thereof, whether as beneficial owner, trustee, mortgagee in possession, or otherwise,
(b) (Repealed)
(c) In relation to any leasehold estate in land, whether legal or equitable (other than under any lease to which section 21C or 21D applies), a person, or a person who is a member of a class or description of persons, prescribed for the purposes of this paragraph, and
(d) A person who, by virtue of this Act, is deemed to be the owner.
The Tribunal considers that the contentions of the Chief Commissioner in this context are correct. The Tribunal refers in this context with approval (on the basis that they correctly reflect and apply relevant binding case law) to the submissions of the Chief Commissioner in respect of Macary's case and contained in clauses 27 and 28 of RS as follows:
27. The definition of "owner" in s. 3 (1) was considered by the Court of Appeal in Chief Commissioner of Land Tax v Macary Manufacturing Pty Ltd (1999) 48 NSWLR299 (Macary). In that case, the company which was the registered proprietor of the subject land was the trustee of a discretionary trust. The beneficiaries of the trust occupied the land as their principal place of residence. A resolution was sought to be passed to vest the trust so that the company became a bare trustee. That failed. The Court of Appeal held that the corporate trustee, as the registered proprietor, was "owner" of the land, within s. 3(1)(a) of the LT Management Act. Mason P
(Spigelman CJ and Sheller JA agreeing) said:
[57] In my view, the trustee was the "owner" as defined, under both arms of par (a) of the extended definition.
[58] As the registered proprietor of an estate in fee simple the trustee was, by. definition, "at law ... entitled to the land for [an] estate of freehold in possession". The estate was in possession because the registered proprietor had a present right of enjoyment, as distinct from a reversion, remainder or expectancy: GlennvCommissionerofLandTax(Cth) (1915) 20 CLR 490 at 498, 501, 507.
[59] The registered proprietor of an estate in fee simple holds (at law) an estate in possession notwithstanding the imposition of a trust requiring the proprietor to hold that estate on behalf of beneficiaries. Nothing turns on whether the trust is active or bare. There will be an equitable estate or interest according to the terms of the trust. However, "an equitable interest is not carved out of a legal estate but impressed upon it": DKLR Holding Co (No 2)PtyLtdvCommissionerofStampDuties(NSW) (1982) 149 CLR431 at 474, per Brennan J. In other words, the recognition of a trust does not detract from the estate in possession enjoyed by the trustee at common law. Indeed, the full enjoyment of that trust interest depends upon the trustee's capacity to defend against third parties the plenitude of the legal estate vested in the trustee.
[60] Hope JA illustrated the distinction in DKLR Holding Co (No 2) PtyLtdv CommissionerStampDuties [1980] 1 NSWLR510 at 519-520:
..... although the equitable estate is an interest in property, its essential character still bears the stamp which its origin placed upon it. Where the trustee is the owner of the legal fee simple, the right of the beneficiary, although annexed to the land, is a right to compel the legal owner to hold and use the rights which the law' gives him in accordance with the obligations which equity has imposed upon him. The trustee. In such a case, has at law all the rights of the absolute owner in fee simple, but he is not free to use those rights for his own benefit in the way he could if no trust existed. Equitable obligations require him to use them in some particular way for the benefit of other persons. In illustrating his famous aphorism that equity had come not to destroy the law, but to fulfil it, Maitland [Lectures on Equity, 2nd end] at 17, said of the relationship between legal and equitable estates in land: 'Equity did not say that the cesti queen trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cesti queen trust. There was no conflict here.
This relationship can perhaps, be usefully illustrated by reference to the possession, and the right to possession, of land which is held by a trustee subject to a private trust. As a legal owner, and subject to any disposition of the right, such as would occur upon the granting of a lease, the trustee has at law the right to possession of the land and, unless somebody else is in possession, under him or adversely to him, he also has the legal possession of the land. He may maintain trespass against anyone who infringes that possession, and ejectment against any person who, without his consent, takes possession. At law a cesti queen trust has no right to possession. He cannot sue the trustee at common law in ejectment. ... If the trustee holds as a bare trustee for a beneficiary absolutely entitled, that beneficiary is, in equity, entitled to put into possession if he so wishes, but he cannot sue the trustee in ejectment. His right can be enforced only by an order made in the exercise of the equitable jurisdiction of the court. If necessary, the court will, upon an appropriate indemnity being given, compel the trustee to allow the beneficiary to use his name to bring ejectment. When placed in possession by the trustee, at law the beneficiary is merely tenant at will of the trustee, the tenancy being determinable at law at any time on demand of possession by the trustee .... As a corollary, the trustee might at law determine the
beneficiary's tenancy and recover the land from him in an action for ejectment, and the beneficiary would have no legal defence. He would, of course, have an equitable defence which he has long been able, by statute, to plead in the action at law."
See also Re Transphere Pty Ltd (1986) 5 NSWLR309; Upper Hunter Timbers Pty Ltd v Commissioner of Stamp Duties (NSW) (1993) 93 ATC 4,859; Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR226 at 242.
[61] To the extent that Opalfield at first instance indicates otherwise, it was wrongly decided.......
[63] In my respectful view Sully J in Opal field and Black A-Jin the present case elided two distinct legal concepts and, in so doing, erred when they held that a bare trustee does not fit within par (a) of the definition of "owner" because it has no present right of beneficial enjoyment. A trustee of the entire fee simple (that is, where no future interest is involved) holds an estate in possession whether the trust is bare or active. It is beneficial in that (common law) sense. The legal estate confers a legal right to enjoyment or possession of the land and its rents and profits, even though the trustee may be compelled to hold that right for the benefit of the beneficiary: see also KernCorporationLtdv WalterReidTradingPtyLtd (1987) 163 CLR164 at 191-192, per Deane J.
[64] Griffith CJ recognised this distinction in the following passage in Glenn (at 498): .....
[67] ....... the trustee was also an owner because, "if the land were let to a tenant [it] would be entitled to receive the rents and profits thereof .., as trustee" within the definition of "owner"
[68] Nothing in the definition of "owner" in s 3(1) suggests that there can only be one taxable owner of land at any point of time. Indeed, there are overwhelming indications to the contrary, because of the words "every person ... whether at law or in equity" and because of the group of persons deemed to be owners by virtue of par (d) of the definition.
28. The following key principles emerge from Mason P's reasoning:
A. There may be more than one "owner" of land at any one point in time under the LT Management Act.
B. A registered proprietor of land who holds the land on trust, holds an estate in fee simple with a present right of enjoyment, as distinct from a reversion, remainder or expectancy. As such, that proprietor holds the estate "of freehold in possession";
C. A registered proprietor of land who hold the land on trust even on a bare trust (under which the trustee's only duty is to transfer the legal estate to the beneficiary on demand), enjoys an estate in possession, and is entitled to therents and profits of the land: see, further, 1 Rocky Point Pty Limited v Chief Commissioner of State Revenue (no 2) [2010] NSWADT 138, at [181; BBLT Pty Ltd v Chief Commissioner of the Office of State Revenue [20031 NSWSC1003 (BBLTJ, at [52];
D. It is not material that the person has no immediate right of occupation (the land may, for example, be leased, or be the subject of a life tenancy): see, further, Sahab Holdings Pty Ltd ATF Kanjian Family Trust v Chief Commissioner of State`
There is no doubt (and it is not contended otherwise) that the Applicant was the registered proprietor of the Property at the taxing date. Nor is it disputed that the Applicant held an estate in fee simple... On this basis the fact that Frank Zakis and Natasha Anderson might perhaps have also been owners or an owner jointly is not to the point. In these circumstances the principle place of residence exemption could not apply to the Property having regard to clause 11(1) of Schedule 1A to LTMA. I repeat that it was conceded that the trust in question was a special trust within section 3A of LTMA. See also Union Trustee Co of Australia Ltd v Federal Commissioner of Land Tax (1915) 20 CLR 526 and Aboriginal Land Council v Chief Commissioner of State Revenue [2004] 526 where similar issues were decided in the same way.
The execution of the transfer did not alter that position; under section 41 of the Real Property Act no dealing until registered in the manner provided by that Act is effectual to pass any estate or interest in land. See Brennan J in Corin v Patton (1990) 169 CLR540.
Part D The second major issue; section 26 of LTMA.
Section 26 of LTMA reads as follows:
26 Purchaser and vendor
(1) If land under the provisions of the RealProperty Act 1900 is the subject of an agreement for sale that has not been completed by transfer of the land, the person who is registered as the proprietor of the land under the Real Property Act1900 is taken, for the purposes of this Act, to be the owner of the land, to the exclusion of the liability of the purchaser.
(2) If land, not being land under the provisions of the Real Property Act 1900 , is the subject of an agreement for sale that has not been completed by conveyance of the land, the vendor of the land is taken, for the purposes of this Act, to be the owner of the land, to the exclusion of the liability of the purchaser.
(3) However, the purchaser under the agreement for sale is taken, for the purposes of this Act, to be the owner of the land (to the exclusion of the liability of the registered proprietor or vendor) if under the terms of the agreement for sale:
(a) The purchaser is entitled to receive, if the land is let to a tenant, any rents and profits derived from the tenancy, or
(b) The purchaser is entitled to exclusive possession of the land and has taken possession of the land.
(4) In this section: "agreement for sale" means an agreement for sale of land that is in force.
It is common cause between the parties that there was never a written agreement for sale in respect of the Property as between the transferor and the transferee. The Applicant however argued that the Applicant is entitled by virtue of section 26(3) of LTMA to contend that the purchasers (Mr Zakis and Ms Anderson) should be regarded as the purchaser within that section and to the exclusion of the Applicant. The only relevant document before the Tribunal as regards the transaction is the Transfer; in the first instance the Transfer cannot be described as an agreement for sale and in the second instance the Transfer does not contain the information referred to in sections 26(3) and 26(4) of LTMA. Moreover and in the same context Section 26(4) of LTMA provides in its terms that the term "agreement for sale" means an agreement for sale that is in force. The Applicant in this context sought to rely on section 54A of the Conveyancing Act 1919 which provides that no action may be brought in respect of a contract for the sale of land unless there be "some memorandum or note or writing signed by the party to be charged". I do not consider that that legislative provision is relevant. Section 26 of LTMA might apply to assist the Applicant if and only if there is there were an agreement for sale which contains the information required by subsections (3) and (4 and the Transfer does not.
Part E. Summary and Conclusion
In summary, the Applicant was at the taxing date an owner of the Property even if there were other owners (although this is not clear) and as such liable for the land tax in respect of the relevant year; Section 11(1) of Schedule 1A does not assist the Applicant in particular because having regard to subclause (c ) the Applicant was at the taxing date the trustee of a special trust. Section 26 of LTMA does not assist the Applicant because there was no agreement of sale containing the information required by that section.
It is perhaps of marginal relevance to note that the transaction referred to in the Transfer was one of sale as evidenced by the consideration reflected in it. It did not refer to a distribution and whether in specie or otherwise to beneficiaries of the Trust. The references to "in specie" in the Trust balance sheet referred to previously in these reasons are not clear.
In the circumstances the relevant assessment is affirmed.
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 February 2014
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