Pappas v Commissioner for Revenue - [2023] ACAT 24

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PAPPAS v COMMISSIONER FOR REVENUE [2023] ACAT 24

AT 74/2022

Catchwords: ADMINISTRATIVE REVIEW – revenue – Duties Act 1999 – statutory interpretation – partial conformity with a will – meaning of “the property” in section 232D of the Duties Act – “The property” must refer to definite and identifiable property
Legislation cited: Civil law (Property) Act2006 s 21
Duties Act 1999 s 232D
Duties Act 1997 (NSW) s 63
Legislation Act 2001 ss 138,139, 140, 141
Taxation Administration Act 1999 s 101
Trustees Act 1925 (NSW) s 46

Cases cited:Alexander v Chief Commissioner of State Revenue [2017] NSWCATAD 180
Australian Crime Commission v AA Pty Ltd (2006) 149 FCR 540
Bloore v Chief Commissioner for State Revenue [2020] NSWSC 502
Commissioner of Stamp Duties (Qld) v Livingstone [1965] AC 694
Darcy v Commissioner of Stamp Duties (unreported, Sup Ct, NSW CA 11 September 1967)
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Federal Commissioner of Taxation v Swift and Others [1989] FCA 413
Official Receiver in Bankruptcy v Schultz [1990] HCA 45
Sanders v Chief Commissioner of State Revenue [2002] NSWADT 251
Sanders v Chief Commissioner of State Revenue (NSW) [2003] NSWADTAP 22

Tribunal:Presidential Member H Robinson

Date of Orders:  28 April 2023
Date of Reasons for Decision:      28 April 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 74/2022

BETWEEN:

BILL PAPPAS
Applicant

AND:

COMMISSIONER FOR REVENUE
Respondent

TRIBUNAL:Presidential Member H Robinson

DATE:28 April 2023

ORDER

The Tribunal orders that:
(a)The decision under review is confirmed.
(b)The application is dismissed.

………………………………..
Presidential Member H Robinson

REASONS FOR DECISION

The applicant seeks review of the decision of the respondent dated 9 August 2022 determining the amount of duty payable by the applicant under the Duties Act 1999 (the Duties Act) for the conveyance of a residential property in Weston (the Weston property) in partial conformity with a will under which he was a beneficiary.

Background

The facts of this matter are not in contest.
The testator, the late Mrs Eugenia Pappas died in February 2021 (the Deceased). She left a will dated 30 January 2014 (the will). As at that date, she was the owner of the Weston property, which was her principal place of residence.
The deceased was the mother of three children, Bill, Paul and Georgina (the beneficiaries). Under clause 5 of the terms of the will, each of the deceased’s children were entitled to an equal and undifferentiated share of the residue of their mother’s estate.[1] Bill was appointed as executor and trustee under the will.
[1] The Will provided:
To avoid confusion, I will refer to the beneficiaries by their first names in these reasons.
It is not clear in which capacity the applicant brings this application, but that does not matter for the purpose of the issue under review.
Probate of the will was granted to Bill by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] ACAT 24
Decision Date: 28 April 2023

CaseChat Overview and Summary

Pappas v Commissioner for Revenue involved a dispute over the interpretation of section 232D of the Duties Act 1999. The taxpayer, Pappas, sought to challenge a decision by the Commissioner for Revenue, which determined that a duty was payable upon the transfer of property. The matter was heard and determined by the Administrative Appeals Tribunal (AAT).

The central legal issue before the AAT was the meaning of the phrase "the property" in section 232D of the Duties Act. Pappas argued that the phrase should be interpreted as encompassing all property, including those that only partially conformed to a will. The Commissioner contended that "the property" must refer to definite and identifiable property. The AAT was tasked with determining which interpretation was correct.

In its decision, the AAT found that the phrase "the property" in section 232D of the Duties Act required a definite and identifiable property. The AAT held that the phrase did not include property that only partially conformed to a will. The AAT concluded that Pappas's argument was not supported by the language of the statute, and that the Commissioner's interpretation was consistent with the plain meaning of the statutory language. The AAT dismissed the application.

The AAT confirmed the decision under review and dismissed the application. The AAT found that the phrase "the property" in section 232D of the Duties Act required a definite and identifiable property, and that it did not include property that only partially conformed to a will.

Orders

Orders of the court

The Tribunal orders that:

(a) The decision under review is confirmed.

(b) The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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