Ross v Chief Commissioner of State Revenue (No 2)

[2010] NSWADT 51

CITATION:	Ross v Chief Commissioner of State Revenue (No 2) [2010] NSWADT 51
DIVISION:	Revenue Division
PARTIES:	APPLICANT Raymond Arthur Ross RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	096043
HEARING DATES:	29 January 2010
SUBMISSIONS CLOSED:	29 January 2010
DATE OF DECISION:	18 February 2010
BEFORE:	Verick A - Judicial Member
CATCHWORDS:	Relief from ad valorem duty
LEGISLATION CITED:	Duties Act 1997 Stamp Duties Act 1920 (NSW) Taxation Administration Act 1996 Administrative Decisions Tribunal Act 1997 Foreign Acquisitions and Takeovers Act 1975 (Cth)
CASES CITED:	Truskett v Commissioner of Stamp Duties (NSW) (1976) 6 ATR 1 Commissioner of Stamp Duties (NSW) v Pendal Nominees (1989) 167 CLR 1 Dyer v Dyer (1788) 2 Cox 92 Napier v Public Trustee (WA) (1980) 32 ALR 153 Calverley v Green (1985) 155 CLR 242 Nelson v Nelson (1995) 184 CLR 538 Barclays Bank v Attorney-General [1944] AC 372 Aveling v Knipe (1815) 19 Ves 441 Stephenson Nominees v Official Receiver (1987) 76 ALR 485 ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 Triantifilis v Commissioner of Stamp Duties (NSW) (1995) 95 ATC 4655 Tooheys Ltd. v. Commissioner of Stamp Duties (NSW) (1961) 105 CLR
REPRESENTATION:	APPLICANT In person RESPONDENT AH Rider, counsel
ORDERS:	The decision under review is affirmed

REASONS FOR DECISION

1 The issue in this matter is whether an undated transfer of land located at Northcote Street, Naremburn, New South Wales (“the Land”) from Mrs Macedo, the Applicant’s sister, to the Applicant is dutiable to a nominal stamp duty of $10 or as determined by the Respondent, is liable to ad valorem stamp duty.

2 Under s 55(1)(b) of the Duties Act 1997 (“the Act”), a duty of $10 is chargeable in respect of “a transfer of dutiable property from an apparent purchaser to the real purchaser, in a case where dutiable property is vested in an apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property”.

Factual Background

3 The Tribunal had before it the documents lodged by the Respondent pursuant to s 58 of the Administrative Decisions Tribunal Act 1997. It received written submissions by both the Applicant and the Respondent. The Tribunal also accepted the tender of exhibits as follows:

Exhibit “A1”: Affidavit of Raymond Ross dated 15 March 2009 with various attachments;

Exhibit “R1”: A brief to obtain an expert opinion on the various financial transactions relating to the Applicant’s claim to have purchased the Land form his own funds; and

Exhibit “R2”: Report of Mark Bryant.

4 The Applicant also gave viva voce evidence at the hearing and was cross-examined by Mr Rider, counsel for the Respondent.

5 Mr Bryant, who provided the Respondent with the expert opinion on the various financial transactions relating to the Applicant’s claim that he purchased the Land from his own funds, was made available for cross examination but the Applicant declined to cross examine the expert.

6 On 7 February 1997, a contract was entered into to purchase the Land for $372,000. The Special Conditions to the Contract described the purchaser as “Raymond Ross Trustee for Amanda N. Ross”. On 12 March 1997, the respondent stamped the contract and transfer.

7 On 28 April 1997, the contract was completed. Under the terms of the contract at settlement, the Land was purchased by the Applicant in trust for Amanda N. Ross.

8 On some date unknown, the description of the purchaser on the front page of the contract was altered by the Applicant crossing out the words “Raymond Ross in trust for Amanda N. Ross” and writing in the words “Deiredre Ann Macedo”. The Special Conditions to the contract continued to describe the purchaser as “Raymond Ross Trustee for Amanda N. Ross”. The description of the transferee on the transfer was also altered by crossing out the words “In Trust for Amanda N. Ross” and writing in the words “Deirdre Ann Macedo”. Neither the altered contract nor the transfer has been stamped following their alteration.

9 On 30 October 1998, the Land was registered in the name of Mrs. Macedo. On 24 August 1999, a mortgage was registered on the title to the Land, executed by Mrs Macedo in favour of the Bank of Western Australia Ltd.

10 On some date after the original settlement, the Transfer, subject of this application, was executed in favour of the Applicant, purportedly signed by Mrs. Macedo.

11 The more recent events leading to this application are set out in the Respondent’s written submissions (footnotes to source documents have been omitted) as follows:

“15. On 6 October 2007, the Applicant wrote to the Respondent and applied under s. 55 of the Act for concessional duty on the Transfer. The letter attached various documents which the Applicant submitted supported his application.

16. On 5 November 2007, the Applicant wrote to the Respondent and provided further documents which he submitted supported his application.

17. On 8 November 2007, the Respondent wrote to the Applicant and advised that unless the Applicant could produce further evidence to show that he solely provided the purchase monies for the Land, the Transfer would be liable to ad valorem duty with a valuation by a registered valuer required.

18. On 14 December 2007, the Applicant wrote to the Respondent and made submissions and provided further documents which he submitted supported his application.

19. On 17 December 2007, the Respondent wrote to the Applicant and advised that the evidence submitted did not show that the Applicant solely provided the purchase monies of $372,000 for the Land and that Transfer did not fall under s. 55 of the Act and was liable to ad valorem duty with a valuation by a registered valuer required.

…

23. On 19 December 2007, the Applicant wrote to the Respondent and admitted that the name on the Contract was variously “Raymond Ross” or “Natalie Amanda Ross” and that stamp duty was not paid in the name of Mrs. Macedo. The Applicant stated that the Land remained unregistered and in his ownership for 2 ½ years until around August 1999. The Applicant also admitted that the transfer was amended in around August 1999 so that it could be registered in Mrs. Macedo’s name.

24. On 8 January 2008, the Applicant wrote to the Respondent and for the first time provided the original Transfer for stamping, almost eight years after it was purportedly first executed.

25. On 25 January 2008, the Respondent wrote to the Applicant and advised that he had not received any contract for sale of the Land in Mrs Macedo’s name or any loan/mortgage documentation showing family borrowings. The Respondent reiterated that the evidence submitted did not show that the Applicant solely provided the purchase monies for the Land and that Transfer did not fall under s. 55 of the Act and was liable to ad valorem duty with a valuation by a registered valuer and the date of execution off the Transfer required.

26. On 29 January 2008, the Applicant wrote to the Respondent and provided copies of the Contract and purported loan agreements and unstamped and unregistered mortgages with various family members. The Applicant also made further submissions in support of his application.

27. On 8 February 2008, the Respondent wrote to the applicant and advised him of his decision that s. 55 of the Act did not apply to the Transfer and that the Transfer was liable to ad valorem duty. The letter required the Applicant to lodge a current valuation of the Land and to give the date of the Transfer. To date, the Applicant has not provided the Respondent with these details, particularly the exact date of the Transfer.

28. On 11 February 2008, the Applicant wrote to the Respondent and expressed his dissatisfaction with the Decision. The Respondent treated this letter as an objection to the Decision.

29. On 21 April 2008, the Respondent wrote to the Applicant and advised him of his Disallowance of his objection to the Decision on the basis that the Respondent was not satisfied on the current evidence that the Applicant provided all the money for the purchase of the Land.

30. On 27 March 2009, the Applicant filed the Application for review of the Disallowance.”

Applicant’s Case

12 The Applicant’s case was that the Land was purchased by him and that he had intended to pay the purchase consideration from the sale of another property. The sale of the other property was due to settle some two weeks before the purchase of the Land was due to settle and he was going to use the funds available from the sale of that property for settlement of the purchase of the Land. However, settlement of the other property “was aborted due to contractual dispute” a week before settlement of the purchase of the Land. Consequently, the Applicant claimed that he “was forced to hastily scramble for alternative funds”. He “had access to non-resident family funds held in Australian bank accounts” and sought to use them to purchase the Land. His family was prepared to loan him the funds provided that the Land would not be registered in his name but would be registered in trust for his daughter Amanda. At that time, it was claimed that “his former wife was threatening to commence proceedings in the Family Court of Australia”.

13 He further claimed that some of the purchase monies for the Land was paid by him from a joint account held with his wife and his own funds. But that the balance of the purchase monies was paid from funds borrowed from non-resident Australian bank accounts held for his non-resident family members as follows -

A total of $156,000 from accounts of “M.T. Ross” $67,680, “M.S. Thomas” $46,501 and “M.T. Ross” $41,819 and

A total of $159,000 from accounts of “Marie Ross” (the Applicant’s mother) $129,358, “T Williams” $26,727 and some cash.

14 The Applicant claimed that the loans were repaid. In particular, he claimed he has repaid the following amounts:

On 18 June 1998 an amount of $106,500 to “J. Ross”;

On 20 August 1999 an amount of $273,346 to “Christopher Ross”; and

On 20 August 1999 an amount of $82,381.00 to “J. Ross”.

15 The Applicant claimed that there were loan agreements and mortgages in relation to the amounts he borrowed from his family members.

16 The Applicant also relied on the written submissions prepared by his counsel who represented him at the early stages of this application. The relevant submissions were as follows:

“3.3 Subsection 55(1)(b) provides relief from ad valorem duty where the facts support the existence of a resulting trust. The predecessor subsections clearly applied to such a circumstance: Truskett v Commissioner of Stamp Duties (1976) 6 ATR 1 at 4-5; Commissioner of Stamp Duties v Pendal Nominees (1989) 167 CLR 1 at 16-17.

3.4 A resulting trust arises where a person (the real purchaser) acquires property in the name of another person (the apparent purchaser). Without more, the apparent purchaser holds the property in trust for the real purchaser: Dyer v Dyer (1788) 2 Cox 92 at 93; Napier v Public Trustee (WA) (1980) 32 ALR 153 at 158; Calverley v Green (1985) 155 CLR 242 at 246 per Gibbs CJ and 266 per Deane J; Nelson v Nelson (1995) 184 CLR 538 at [27] per Deane and Gummow JJ. 156 per Toohey J. In Dyer Lord Chief Baron Eyre relevantly stated:

The clear result of all cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase-money. This is a general proposition supported by all cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor.

…

3.9 Mr Ross paid the purchaser price for the property with bank cheques drawn by him.

3.10 Mr Ross sourced the funds for the purchase of the property from his own funds and those of members of his family, many of whom were non-residents and were subject to restrictions on ownership of urban property in Australia: see Foreign Acquisitions and Takeovers Act 1975 s 21A.

3.11 The funds were withdrawn on the basis that Mr Ross was obliged to repay the amounts so withdrawn and that such obligation was secured by mortgages over properties of which Mr Ross was owner or part owner. Loan agreements were executed by members of Mr Ross’ family. This constitutes the relationship between Mr Ross and those members who provided funds for the purchase price as borrower and lender. Mr Ross has repaid the loans from members of his family.

3.12 The proper inferences from these circumstances are:

(a) Mr Ross paid the purchase price pursuant to loans from his family members, notwithstanding that the funds were taken from accounts in the names of family members: Barclays Bank v Attorney-General [1944] AC 372 at 380.

(b) There was no resulting trust in favour of members of Mr Ross’ family because the funds provided by members of his family were provided by way of loan (see Aveling v Knipe (1815) 19 Ves 441 at 445; Stephenson Nominees v Official Receiver (1987) 76 ALR 485 at 501; see also Jacobs’ Law of Trusts in Australia JD Heydon and MJ Leeming Butterworths 2006 at [1210]).”

The Respondent’s Case

17 The Respondent case was put in a number ways. Firstly, it was submitted that the Applicant had the onus of proving his case under s 100(3) of the Taxation Administration Act 1996 (the TA Act”) and has not discharged his onus for the following reasons:

“42. The Respondent submits that the Applicant has failed to discharge his onus of proof that the Decision was incorrect because he failed to show by evidence (admissible or otherwise) that he alone provided all of the purchase monies for the Land. In this regard the Respondent has obtained an expert report from a forensic account which analyses the Applicant’s documentary evidence (Report) and concludes that it does not show that the Applicant alone provided all of the purchase monies for the Land because:

-the Applicant’s documents shows that he only provided $23,372 out of the total purchase price for the Land of $372,000; and

-there is no evidence that the Applicant repaid any of the alleged loans from various family members that he claims he used to fund the purchase of the land.

43. Further, the Applicant has not discharged his onus of proof in respect of other key aspects of his case, because he seeks to rely on the following unstamped (but dutiable) documents, which are inadmissible and of no legal effect:

-the altered Contract and transfer of the Land;

-the Trust Deed;

-the loan agreement dated 28 April between Theresa Williams and the Applicant; and

-the loan agreement dated 16 April 1997 between Marie, Judy and Christopher Ross and the Applicant.

44. The effect of the above is that the Applicant cannot prove:

-that monies provided by Theresa Williams and Marie, Judy and Christopher Ross to purchase the Land were lent to him;

-that Mrs. Macedo was the “apparent purchaser” of the Land; and

-that the Land was vested in Mrs. Macedo in trust for the Applicant.

45. Also, the Applicant has not provided the Respondent with original or certified copies of documents on which he seeks to rely.

…

47. Finally, the Applicant has failed to adduce any corroborative evidence from Mrs. Macedo or family members whose monies were used to purchase the Land. In the circumstances, the Respondent submits that the Tribunal should draw the inference that such evidence, had it been produced, would not have assisted the Applicant’s case.”

18 The Respondent then considered the apparent purchaser concession under s 55(1)(b) of the Act. It was submitted that -

“51. The apparent purchaser concessions apply in the context of resulting trusts under which the apparent purchaser is the trustee and the real purchaser is the beneficial owner of the trust property. A resulting trust arises where a person (the real purchaser) acquires property in the name of another person (the apparent purchaser). (See, for example, Calverley v Green (1984) 155 CLR 242 at 246-7 and 266-7)

52. In Truskett v Commissioner of Stamp Duties (NSW) (1976) 6 ATR 1, Rath J held that s. 73(1)(e) SDA (the equivalent of s. 55(1)(b) of the Act) was confined to a situation where property is purchased in the name of a stranger to the real party to the purchase. In Truskett , the court held that on the facts that no resulting trust arose (and therefore s. 73(1)(e) SDA did not apply) because the apparent and real purchaser was the same person.”

19 It was submitted that “the first substantive element of the apparent purchaser concessions that need to be satisfied is whether the Transfer was from the apparent purchaser to the real purchaser of the Land”. The Respondent identified the “apparent purchaser” as follows:

“56. Based on the above, the term ‘apparent purchaser’ (in the context of an agreement for sale) refers to the person who seems to be purchaser under the agreement, that is, the person named in the agreement as ‘purchaser’.

57. In this case, the evidence shows that the person named in the Contract as ‘purchaser’ was ‘Raymond Ross in trust for Amanda N. Ross’. Further, while the Applicant unilaterally altered the Contract after stamping and settlement to show Mrs. Macedo as ‘purchaser’, the altered Contract is inadmissible and of no legal effect because (among other things) the alteration has not been stamped and does not reflect the legal bargain struck with the vendor of the Land.

58. Therefore, the ‘apparent purchaser’ of the Land was the Applicant as trustee for Ms. Ross, not Mrs. Macedo. On this basis, the apparent purchaser concessions cannot apply to the Transfer of the Land from Mrs. Macedo to the Applicant because Mrs. Macedo was not the ‘apparent purchaser’ of the land. For this reason alone, the Applicant’s case fails.”

20 It was further submitted that the Applicant was not able to establish that he was the “real purchaser” for the following reasons:

“61. In this case, the evidence shows that the settlement monies under the Contract were provided from variety of sources, including monies from the Applicant’s joint accounts with (respectively) his then wife (Bernadine Ross) and his mother (MT Ross) and monies from his then mother-in-law, Theresa Williams, his brother-in-law, Mr. Michael Thomas, and his sisters, Marie, Judy and Cheryl.

…

63. In terms of the monies the Applicant alleges that various family members lent him, the loan agreements the Applicant relies upon are unstamped, inadmissible and of no legal effect. Further, there is no presumption that the various family members advanced monies to the Applicant for his sole beneficial enjoyment. Also, there is no evidence that the Applicant has ever repaid any of the monies that the various family members allegedly lent to him. (See pp.9-10 of Annexure A to the affidavit of Mark Bryant affirmed and filed on 4 December 2009.)

64. In summary, based on the evidence, the Applicant alone did not provide all of the purchase monies for the Land. Rather, the Applicant as trustee for Ms. Ross, in conjunction with the various family members, provided the purchase monies. Therefore, the ‘real purchaser’ of the Land was not the Applicant.

65. On this basis, the apparent purchaser concessions cannot apply to the Transfer of the Land from Mrs. Macedo to the Applicant alone, because he was not the sole ‘real purchaser’ of the Land. Further, as the Applicant provided his purchase monies as trustee for Ms. Ross, the Transfer is deficient, because it is to the Applicant in his own right, not to the Applicant as trustee for Ms. Ross. The Applicant as trustee for Ms. Ross is both a real and apparent purchaser under the stamped Contract and for these reasons, the Applicant’s case fails.”

21 The second element of the apparent purchaser concessions, it was submitted, was whether the Land was vested in the apparent purchaser on trust for the real purchaser and that, in this case, the Applicant was not able to satisfy this requirement because “to the extent that a resulting trust arises from the various parties providing the purchase monies and the Land being registered in Mrs. Macedo’s name” the Land was held by Mrs. Macedo “on resulting trust for all of these persons, not just the Applicant”.

22 The Respondent went further and submitted that “even if the Trust Deed and altered Contract (which are both liable to ad valorem duty as a dutiable ‘declaration of trust’.) were stamped and legally effective, the effect would be that the Land was vested in Mrs. Macedo for Ms. Ross, not the Applicant” because “the evidence shows that the Applicant intended to hold the Land on trust for Ms. Ross” and in accordance with the decision of Barrett J in ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 at paras. [266] and [275] to [276] “this trust would have been bare because the Applicant did not prescribe the nature of the trust (it was simply expressed in the Contract as ‘Raymond Ross in trust for Amanda N. Ross’) and its terms were left to the construction of the law”. In these circumstances, the Respondent submitted, “the apparent purchaser concession could not have applied to the Transfer, because the Land would have been vested in Mrs. Macedo upon trust for Ms. Ross, while the executed Transfer the subject of these proceedings was to the Applicant in his own capacity”.

23 Finally, the Respondent’s case was that, independent of all other grounds, the Applicant clearly failed to establish the third and last substantive element of the apparent purchaser concessions that he provided the money for the purchase of the Land for the following reasons:

“80. In Triantifilis v Commissioner of Stamp Duties (NSW) (1995) 95 ATC 4655, Hodgson J confirmed that the apparent purchaser concession under s. 73(1)(e) SDA only applied if the whole of the purchase price was paid by the person alleged to be the real purchaser,

81. In this case, the evidence shows that the Applicant as trustee for Ms. Ross, in conjunction with the various family members, provided the purchase monies (i.e. the Applicant alone was not the ‘real purchaser’ of the Land). Further, the Report concludes that the Applicant’s documents do not show that the Applicant alone provided all of the purchase monies for the land.”

24 The expert in his report expressed his opinion (subject to the caveat that he had “seen only copies of documents”) that:

“subject to a minor difference (411), the sums shown in Mr Ross’s Affidavit do add up to the adjusted purchase price of the property;

the documents provided to me evidence (on the assumptions provided to me as to the provision of funds from joint accounts) that $23,372 of the purchase price was provided by Mr Ross alone; and

there was no evidence provided to me of repayment of loans that are said to have funded the purchase.”

Discussion and Reasons

25 The Land was registered on 30 October 1998 in the name of Mrs. Macedo. It was not until 6 October 2007, some nine years later, when the Applicant sought to stamp an undated transfer of the Land from Mrs. Macedo. The Applicant applied under s.55 (1)(b) of the Act for the transfer to be treated as “a transfer of dutiable property from an apparent purchaser to the real purchaser” on the grounds that the Land was vested in Mrs. Macedo as an apparent purchaser upon trust for the Applicant as the real purchaser who provided the money for the purchase of the Land.

26 In Truskett v Commissioner of Stamp Duties (NSW) (1976) 6 ATR 1 Rath J in considering s. 73(1)(e) in the Stamp Duties Act 1920, which was in similar terms as s. 55(1)(b) of the Act, observed that the provision “is confined in its application to the resulting trust situation arising where property is purchased in the name of a stranger to the real party to the purchaser”. In that case it was held that the concession was not available because the “real and apparent purchasers” were the same persons.

27 Section 55(1)(b) of the Act requires that the “dutiable property is vested in an apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property”. A declaration of trust made at the time of the purchase is necessary to establish that the dutiable property is vested in the apparent purchaser upon trust for the real purchaser. (see Tooheys Ltd. v. Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 per Dixon CJ at p 612)

28 In addition to the requirement that the dutiable property for purposes of s. 55(1)(b) must be held by the apparent purchaser in a resulting trust in favour of the real purchaser, the provision will only come to the aid of the real purchaser if the real purchaser has in fact provided all the purchase moneys to the vendor of the dutiable property. This was an issue in Trianrtifilis v Commissioner of Stamp Duties (1995) 95 ATC 4655 where the taxpayer and his wife had sold a property for $70,000 and placed $60,000 in a bank account in the name of the taxpayer, his wife and their two sons. The taxpayer’s wife died and following her death the taxpayer entered into a contract to purchase another property for $73,000. $63,000 of the purchase price was paid from the joint bank account and the remaining $10,000 was paid by the taxpayer from a loan taken by him. The taxpayer claimed that he had purchased the property as a trustee for his two sons and sought to transfer the property to them. The taxpayer claimed the stamp duty concession under s. 73(1)(e) of the Stamp Duties Act 1920 (NSW). The Commissioner refused to grant the concession and the taxpayer sought to obtain a declaration from the court that he was entitled to the concession. Hodgson J in the Supreme Court of New South Wales (at p 4660) refused to grant the declaration on the following grounds:

“In those circumstances, I do not believe the evidence can justify a finding that the $10,000.00 was, in any sense, property of the sons which was actually paid by them as part of the purchase price. It seems to me further that s. 73(1)(e) only applies if the whole of the purchase price is paid by the person alleged to be the real purchaser. It may be that payment of small amounts by some other party could be disregarded. I think the decision in Crowther v Commr of Stamp Duties (NSW) supports that view.”

29 In addition to the above two substantive elements, an applicant has to establish that the transfer is from the “apparent purchaser”. The apparent purchaser, or as described by Rath J in Truskett as the “stranger” in relation to the whole transaction, is the person who is named in the contract as the purchaser when the dutiable property is acquired.

30 The Respondent has, after the hearing of this application, brought to my attention the decision of the High Court in Commissioner of Stamp Duties (NSW) v Pendal Nominees Pty Ltd (1989) 167 CLR 1 which provides some assistance in identifying the “apparent purchaser” in this matter. In that case, BT Australia Ltd had entered into a contract to purchase shares as purchaser and under the contract on completion the shares purchased were to be transferred to Pendal Nominees Pty Ltd to be held in trust for unit holders of trusts of which BT Australia Ltd was trustee. The court held that a similar concessional provision did not apply, and relevant to this matter, Mason CJ (after ruling that the shares were not “vested” in Pendal Nominees Pty Ltd) made the following useful observation at para 37:

37. However, it is unnecessary to rest my decision on this ground because there is in my view a compelling ground for excluding the operation of par. (1) in this case, namely that PN cannot be said to be the “apparent purchaser” of the shares. Not only does the sale Deed recite that BTA is the purchaser of the shares, but it is clear from its terms that BTA is to provide the purchase money and that PN is merely to be transferee. PN is not the “purchaser” in the ordinary sense of the word and I see no reason to give the word any meaning in this context other than its ordinary sense.

31 In this matter, the purchaser named in the contract was “Raymond Ross as trustee for Amanda Ross”. Subsequent to the settlement, sometime after 21 March 1997, the Applicant claims he “amended the transfer” on agreement with his sister Mrs. Macedo that she was prepared to hold the property in trust for him. The transfer was only registered in October 1998.

32 It is important at this stage to note that Mrs. Macedo did not give any evidence at the hearing nor make herself available for any cross-examination. The Applicant sought to rely on a document described as a “Trust Deed” between him and Mrs. Macedo. But that document and several other documents (including the altered Contract and transfer of Land and loan agreements with members of the Applicant’s family) that the Applicant attempted to produce as evidence were documents that were, as correctly submitted by Mr Rider, documents which were inadmissible and of no legal effect under s. 304 of the Act. Under s. 304 of the Act, an “instrument that effects a dutiable transaction or is chargeable with duty under this Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless (a) it is duly stamped, or (b) it is stamped by the Chief Commissioner or in a manner approved by the Chief Commissioner”. Other than his own oral evidence given at the hearing, no independent corroborative evidence was produced to support the claims made by the Applicant. The absence of Mrs. Macedo’s evidence did not assist the Applicant’s case. On the contrary, the only inference the Tribunal can make is that her evidence would not have assisted the Applicant.

33 Clearly, the Land was not vested in Mrs.Macedo for trust for the real purchaser when the Land was purchased. The Applicant’s own evidence is that he altered the name of the purchaser after settlement. In any case, Mrs. Macedo was not the “apparent purchaser”. As was the case in Pendal Nominees she was merely the transferee and not the purchaser. The purchaser was in fact “Raymond Ross as trustee for Amanda N. Ross”.

34 This matter can be disposed on these grounds but, for completeness, I should also consider the Respondent’s submission that the Applicant, in fact, did not provide his own funds to purchase the Land.

35 The substantial amount of the purchase monies was from various sources other than from the Applicant. Large amounts were, from non-resident bank accounts of members of his family. Whilst certain amounts were withdrawn and used to pay the vendor for the Land the Applicant produced no independent evidence that the moneys were loans to the Applicant. I should also make the observation that the amounts claimed to have been loaned to the applicant were in unusual fractional amounts, for example from M.T. Ross $67,680 from one account and $41,819 from another account. No explanation was given at the hearing as to why fractional amounts were loaned. The Applicant’s own submission was that many members of his family “were non-resident and were thereby subject to restrictions on ownership of urban real property in Australia: see Foreign Acquisitions and Takeovers Act 1975 s 21A”. An irresistible inference is that the fractional amounts may have been based on some investment formula for investment in real property by some of the non-resident members of the Applicant’s family who could not directly purchase urban real property in Australia.

36 The evidence of the expert produced by the Respondent was that there was no evidence of repayment of loans that are said to have funded the purchase. The Applicant did not challenge this finding of the expert, although he was offered the opportunity to cross-examine the expert. The Applicant’s own case was that he paid back certain amounts – on 18 June 1998 an amount of $106,500 to J.Ross, on 20 August 1999 an amount of $273,346 to Christopher Ross in two cheques of $190,963.05 and $82,383.00. No independent evidence was produced by the Applicant as to the source of these funds and the basis of the calculations in relation to the original advances by his family members. J. Ross and Christopher Ross did not provide any monies for the purchase of the Land but it was claimed that they were his siblings and the amounts were paid to them on instructions from his mother.

37 The Applicant had the onus of proving his case under s.100(3) of the TA Act and I agree with the submissions made by the Respondent that the Applicant failed to discharge his onus. The Applicant failed to produce the necessary evidence to establish that the purchase moneys were loans to him and that he has since repaid the loans.

38 The application must accordingly be dismissed.

Order

The objection decision of the Respondent is affirmed.