Valastar Pty Ltd v Chief Commissioner of State Revenue
[2010] NSWADT 46
•15 February 2010
CITATION: Valastar Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADT 46 DIVISION: Revenue Division PARTIES: APPLICANT
RESPONDENT
Valastar Pty Limited
Chief Commissioner of State RevenueFILE NUMBER: 096078 HEARING DATES: 1 February 2010 SUBMISSIONS CLOSED: 1 February 2010
DATE OF DECISION:
15 February 2010BEFORE: Block J - Judicial Member CATCHWORDS: Land tax – principal place of residence- concessional trust – special trust – meaning of "each" in definition of concessional trust –decision error which was corrected LEGISLATION CITED: Land Tax Management Act 1956 CASES CITED: Dyneset Pty Limited v Commissioner of State Revenue [2008] NSWADT 245
CPT Custodian Pty Limited v Commissioner of State Revenue (Victoria) (2005) 224 CLR 98
GTN Developments Pty Limited v Chief Commissioner of State Revenue [2007] NSWADT 168REPRESENTATION: APPLICANT
RESPONDENT
WG Hodgekiss, agent
I Mescher, barristerORDERS: The decision under review is affirmed
REASONS FOR DECISION
Part A; Preliminary and Background
1 The decision in respect of which the Applicant seeks the review, is the disallowance by the Respondent (who is usually in these reasons referred to as the "Chief Commissioner") of the objection by the Applicant against an amended land tax assessment dated 24 July 2008 referable to the property situated at 88 Woodside Ave Strathfield ("the property") for the 1999, 2000, 2001, 2002, 2003, 2004, and 2005 land tax years. The term "relevant years" refers to all of the seven land tax years which are in issue; however one or more, but not all relevant years are generally referred to by reference to the actual year or years.
2 The Tribunal had before it the documents lodged pursuant to section 58 of the Administrative Decisions Tribunal Act 1997; they are included in a large volume separated by tabs numbered from 1 to 54, both numbers inclusive. The Tribunal also had before it supplementary section 58 documents comprising, in the main searches. At the hearing, Mr Mescher furnished the Tribunal with a bundle of further documents numbering 40 pages including inter alia the transcript of a hearing which took place in this Tribunal before Judicial Member Verick on 19 June 2009 and also certain relevant and recent correspondence; that bundle of documents is referred to in these reasons as "the Bundle"; Judicial Member Verick is referred to as "Mr Verick" and the hearing before Mr Verick is referred to as "the Verick hearing".
3 It is desirable in the first instance to refer to the history of this matter and for this purpose it is convenient by way of starting point to include the content of the Respondent’s Chronology, (which forms part of the Respondent's Submissions although not in the tabular form in which it was presented, and setting out, and in order in relation to each entry its date, a brief description of the event and the reference) and which relates to events between 25 of June 1989 and 15 September 2009, as follows:
25.6.89-Dean Van Dyke turns 18 (prospective beneficiary)-Tab 37 s58
15.1.96-Valastar Pty Limited (“Valastar”) incorporated-Co Search
22.1.96-Valastar purchases 38 Woodside Avenue Strathfield NSW being Lot E in DP 386041 (“the property”) – settlement of purchase-Tab 41 s58
25.1.96-The Sandra Hodgekiss Family Trust Deed entered into: Settlor – Arthur Wood; Appointor – Daphne Wood; Trustee – Valastar Pty Limited; Beneficiaries – Sandra Hodgekiss and any children of Sandra Hodgekiss (“the Trust”)-Tab 1 s58
9.2.96-Valastar becomes registered proprietor of property-Historical Search
28.10.99-Sandra Hodgekiss becomes a director of Valastar together with Dean Van Dyke-Co Search
15.6.00-Sandra Hodgekiss becomes sole director of Valastar-Co Search
15.4.01-Deed of Variation of Sandra Hodgekiss Family Trust entered into – children of Sandra Hodgekiss deemed to be Alexandra Hodgekiss and Dean Van Dyke-Tab 1 s.58
15.4.03-Alexandra Hodgekiss turns 18 (prospective beneficiary)-Tab 38 s58
23.9.03-Notices of Assessment (5) issued for 1999 – 2003 Land Tax Years to Valastar (land owned as at 31.12.98- 31.12.02) for the property totalling approximately $54K-Tab 2 s5818.11.03-Land Tax Final Notice Issued-Tab 3 s58
25.11.03-Land Tax Legal Notice Issued-Tab 4 s58
23.12.03-Applicant receives the above assessments-Tabs 6-9 & 11 s58
22.1.04-Notice of Assessment (1) issued for 2004 Land Tax Year (for property owned as at 31.12.03) for the property for $12 221.00-Tab 5 s58
4.2.04-Applicant receives above assessment-Tab 10 s58
10.2.04-Applicant lodges objection to assessments for 2000-2003 Land Tax Years (4) on basis of land value-Tabs 6-9 s58
17.2.04-Applicant lodges objection to 2004 Land Tax Year on basis of land value-Tab 10 s58
18.2.04-Applicant lodges an objection to 1999 Land Tax Year on basis of land value-Tabs 11 & 40 s.58
11.3.04-Applicant objects to 6 assessments for 1999-2004 Land Tax Years on basis of land value of property with the Valuer-General-Tab 44 s58
30.3.04-Land Tax Legal Notice Issued by Respondent-Tab 12 s58
14.4.04-Instalment Arrangement entered into – outstanding land tax-Tab 13 s58
28.7.04-Further instalment arrangement entered into -Tab 14 s58
11.10.04-Applicants objections determined re land value and disallowed by Valuer-General-Tab 44 s58
19.1.05-Notice of Assessment (1) issued for 2005 Land Tax Year (for property owned as at 31.12.04) for the property for $10 600.00-Tab 15 s58
10.2.05-Applicant lodges objection to assessment for 2005 Land Tax Year on basis of land value-Tab 16 s.58
17.2.05-Applicant lodges another objection to assessment for 2005 Land Tax Year on basis of land value-Tab 17 s.58
4.3.05-Respondent receives objection to 2005 Land Tax Year dated 10.2.05 -Tab 16 s.58
18.3.05-Instalment Arrangement entered into – outstanding land tax-Tab 19 s.58
30.8.05-Instalment Arrangement Revocation Notices sent-Tabs 20 & 21 s58
31.8.05-Further instalment arrangements entered into-Tabs 22 & 23 s58
26.10.05-Further instalment arrangement revocation notices sent -Tab 24 s58
9.12.05-Sandra Hodgekiss purchases the property from Valastar-Tab 41 s58, Transfer
20.12.05-Land Tax Legal Notice sent -Tab 25 s58
21.12.05-Sandra Hodgekiss becomes registered proprietor of property-Historical Search
5.2.06-Notice of Assessment (1) issued for 2006 Land Tax Year (for property owned as at 31.12.05) for NIL and assessment summary for previous years-Tab 26 s58
23.4.07-Letter – Ms Hodgekiss to OSR – seeking reasons for not granting relief from payment of land tax-Tab 27 s.58
19.11.07-Land Tax Legal Notice sent-Tab 28 s58
29.1.08-Application objects to assessments for 2000-2004 Land Tax Years on basis that Applicant was a trustee of a concessional trust with an infant beneficiary-Tab 29 s.58
12.2.08-Respondent determines objection by disallowing it - objection out of time and no request sought for an extension of time under section 90 Taxation Administration Act 1996 (NSW) (“TAA”) - assessments correct-Tab 30 s.58
12.3.08-Respondent receives copies of Sandra Hodgekiss Family Trust Deed and Deed of Variation of Trust-Tab 32 s.58
2.6.08-Respondent refers to earlier determination – seeks payment of approximately $75K in land tax-Tab 33 s58
-Land Tax Legal Notice Sent-Tab 34 s58
3.6.08-Applicant alleges that most recent application is dated 25.2.08 - Applicant’s solicitor foreshadows Application for review being filed in the ADT-Tab 35 s58
6.6.08-Letter from Applicant’s solicitors asking that no action will be taken-Tab 36 s58
12.6.08- Respondent informs Applicant that objection to outstanding land tax is being reviewed – interest continuing to accrue- Tab 39 s58
23.6.08-Applicant’s solicitor forwards to Respondent objection to 1999 Land Tax Year dated 18.2.04;-Tab 40 s58
22.7.08-Respondent determines objections to 2000-2004 Land Tax Years by wholly disallowing them – objections to land value disallowed previously by Valuer-General and also disallowed under ss. 7, 8 & 9 -Tab 43 s58
-Land Tax Notice of Assessment prepared for 1999-2005 Land Tax Years (7) for internal purposes only totalling $122 432.25 based upon the Trust being a “Special Trust” – no tax thresholds imposed-Tab 44 s58
24.7.08-Land Tax Notice of Assessment issued for 1999-2005 Land Tax Years (7) only totalling $122 432.25 based upon the Trust being a “Special Trust” – no tax thresholds imposed-Tab 45 s58
29.8.08-Objection lodged to above assessment dated 24.7.08-Tab 46 s58
2.9.08-Application for Review filed in the ADT (Proceedings No 086087) (earlier proceedings)-
11.9.08-Land Tax Final Notice issued by Respondent for $122432.25. -Tab 47 s58
18.9.08-Letter Applicant’s solicitor to Respondent informing him of lodgement of Application in the ADT -Tab 48 s58
30.9.08-Letter Applicant’s solicitor to Respondent: (1) an Application for Review was filed in respect of an assessment dated 2.6.08; (2) another assessment issued by Commissioner dated 25.9.08.-Tab 50 s58
3.10.08- Letter Applicant’s solicitor to Respondent: (1) Applicant has received and objected to assessments to 2000-2004 Land Tax Years; (2) further assessments have been received for 1999-2005 Land Tax Years – also objected to by Applicant for same reasons – assume they are before the ADT.-Tab 51 s58
2.3.09-Respondent determines objections dated 29 August 2008 by wholly disallowing it-Tab 52 s58
19.6.09-Judicial Member Verick dismisses proceedings and affirms decisions of Respondent-
3.7.09-Current Application for Review filed in the ADT (Proceedings No 096078)-Tab 54 s58
15.9.09-Notice of Appeal filed by Applicant to Appeal Panel from decision of Judicial Member Verick-
4 A consideration of the Respondent’s Chronology indicates that there have been a number of applications by the Applicant as to the valuation of the property but which are not relevant so far as the Tribunal is concerned more particularly because valuation issues do not fall within the Tribunal’s jurisdiction; it indicates also that the Applicant has (unsuccessfully) sought relief from the Hardships Board, and that a number occasions arrangements have been entered into for payments of the outstanding land tax over a period but the Applicant has not fulfilled its obligations under those arrangements... It is relevant to note that Mr Hodgekiss informed the Tribunal that no payments have been made since the date of the assessment referred to in clause 1 and so that the Tribunal, if it determines this matter against the Applicant, can safely affirm the decision under review. It will not in other words be necessary to be concerned as to the fact that any payments by the Applicant have not been taken into account.
5 A consideration of the transcript in respect of the Verick hearing indicates that Mr Sweeney QC, who appeared on behalf of the Applicant applied for the withdrawal of the application then before the Tribunal. Mr Mescher at first thought that a withdrawal was unnecessary but agreed to it. It was clear that any such withdrawal would be effected on the basis that the Applicant would be entitled to file a fresh application for review and indeed on 3 July 2009 the Applicant did just that. That application was out of time and at the commencement of this hearing Mr Mescher consented, in respect of the fresh application, to an extension of time until 3 July 2009.
6 Although the transcript in respect of the Verick hearing makes it clear that Mr Verick dismissed the application then before the Tribunal and that he did so at the request of Mr Sweeney, the registry of this Tribunal erroneously issued a decision notice to the effect that the decision under review was affirmed. That this was not Mr Verick's intention is demonstrated in clear terms by the transcript itself. That (inadvertent) error was corrected by order of the President of this Tribunal on 29 January 2009; a notice of decision recording that the application before Mr Verick in June 2009 was dismissed, was issued.
7 Although the dismissal referred to previously in these reasons took place in consequence of the Applicant's request and although the Applicant lodged the fresh application, it proceeded to seek reasons for the dismissal by Mr Verick. Mr Verick simply drew attention to the transcript in respect of the Verick hearing. The Applicant nonetheless in September 2009 lodged an appeal against that decision. In this regard, the Tribunal refers:
(a) because it contains a concise and clear summary of relevant events, to clauses 16 to 32 of a letter dated 16 October 2009 addressed by the Crown Solicitor to the Applicant's solicitors, Gary Cassim & Associates, (and which is contained in pages 27 to 31 of the Bundle) reading (footnotes having been omitted) as follows:
16.The matter was re-listed for hearing before Judicial Member Verick on 19 June 2009.
17. Prior to the hearing, the Applicant served on the Respondent an Affidavit of Nicholas George Cassim sworn 18 June 2009. Annexed to the Affidavit (Annexure C) were proposed orders sought by the Applicant at the hearing as follows:
(a)That the application for review filed by the applicant be dismissed with no order for costs and without admissions and without prejudice to any other proceedings;
(b)That Valastar be granted leave to file out of time an application for review of the disallowance of its objection to the amended assessment on or before 18 July 2009.18. During the course of the hearing on 19 June 2009, Mr Sweeney QC, counsel for the Applicant, submitted to the Tribunal that "the dispute was originally about the question of the' disallowance of the objection to the original assessment. That dispute is no longer live because the dispute is now a dispute about the merits of the disallowance and the objection to the amended assessment.'" (emphasis added). Mr Sweeney further submitted that the Tribunal had no jurisdiction to consider the disallowance of the objection to the amended assessments as "an application for review cannot capture a dispute that arises after the application is filed" and that the Applicant's position was that "a new application will have to be filed to capture the disallowance of the objection to the amended assessment °
19. Mr Mescher submitted on behalf of the Respondent that the Tribunal had jurisdiction to review the amended assessments, as they were issued on 24 July 2008, prior to the Application for Review being filed and that it was not necessary to file a fresh application for review. However the Respondent did not oppose the Applicant's request to dismiss the existing application.5
20. Accordingly, Judicial Member Verick dismissed the application.
21. On 19 June 2009 the Registrar of the Tribunal issued a Notice of Decision in relation to the application in the following terms: "At the hearing held on 19 June 2009 the following decision was made: Decision Affirmed."'
22. At no time during the course of the hearing on 19 June 2009 did Judicial Member Verick indicate that he intended to affirm the decision of the Chief Commissioner, nor was such an order made at the hearing. It is apparent from the transcript of the proceedings that Mr Verick sought only to dismiss the application, at the request of the Applicant with the understanding that a new application would be filed.
Second Application for Review
23. On 3 July 2009, the Applicant filed a new Application for Review ("the second Application").
24. The second Application seeks a review of the disallowance dated 2 March 2009 of the Applicant's objection to the amended assessments, The second application is out of time under section 99(1) TAA and the ADT will need to exercise its power under section 99(1) TAA to allow an application out of time so as to have jurisdiction to review the amended assessments.
25.Submissions were filed by the Applicant in respect of the second Application on 14 September 2009. Submissions were filed by the Respondent on 8 October 2009; The second Application is listed for hearing on 13 November 2009.
Notice of Appeal
26. On 15 September 2009, the Applicant filed a Notice of Appeal in relation to the order made by Judicial Member Verick on 19 June 2009. The basis of the appeal is said to be the failure to provide reasons for the decision.
27..The Respondent's position in relation to the Appeal is as follows:
28.. The Notice of Decision issued on 19 June 2009 should have read "Application dismissed" rather than "Decision Affirmed."
29.The orders made by Judicial Member Verick on 19 June 2009, as evidenced by the transcript, constitute a decision determining an application for review for the purposes of section 89 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the Act").
30. In light of the above, the Respondent's position is that it is not necessary to lodge an appeal against the orders made by Judicial Member Verick with the Appeal Panel, as the error is one of form, rather than one of law, and can be corrected pursuant to section 87 of the Act.
31 In such circumstances, may I respectfully suggest that you write a letter to the Tribunal asking Judicial Member Verick, in accordance with section 87(1) of the Act, to direct the Registrar to alter the Notice of Decision dated 19 June 2009 signed by the Registrar by deleting "Decision Affirmed" and inserting, in lieu thereof, "Application Dismissed". The order made by Judicial Member Verick on 19 June 2009 was that, in accordance with your client's application, the Application for Review be dismissed. The Appeal Panel has no power to give such a direction: section 87(4) Act.
32.Given that your client sought a dismissal or withdrawal of the application on 19 June 2009, the provision of an oral transcript of the hearing constitutes a statement in writing of the reasons for the dismissal of the application in compliance with section 89(3) of the Act: section 89(4) Act. No question of law, under. section 113(2)(a) therefore arises. Similarly, as your client expressly did not want a review of the merits of the decision on 19 June 2009, it is difficult to see any basis for the Appeal Panel to grant leave to extend to the merits of the appealable decision under section 113(2)(b) Act.(c ) to a letter by the Applicant's solicitors to this Tribunal dated 29th January 2010, (page 38 of the Bundle) the third paragraph of which reads as follows: " The letter having as sent you was referred to Mr. Sweeney QC who has now advised that in his opinion any review should be by way of hearing and is not properly the subject of a Consent Order'.- -(b) to a letter by the Applicants solicitors addressed to the Crown Solicitor dated 27th January 2010,(page 37 of the Bundle) the third paragraph of which reads as follows: " An appeal-has been lodged in relation to Mr. Verick's decision and no written reasons have been provided."-
8 It is clear that the appeal referred to previously in these reasons is redundant and that a hearing in respect of the appeal would be both inapposite and unnecessary. Nevertheless, Mr Hodgekss who appeared for the Applicant, raised an objection to the effect at the commencement of this hearing that until a hearing of the appeal had taken place this hearing before the Tribunal should not proceed. He did not explain why this was so or otherwise furnish reasons for his objection. As to what purpose a hearing in respect of the appeal would in these circumstances serve is altogether unclear and the Tribunal is of the view that this issue (if issue it is) is of no relevance whatever. The circumstances are adequately summarised in the letter referred to in clause 7(a).
9 Mr Hodgekiss, who is not at present a lawyer, sought leave to represent the Applicant and presented a document by the Applicant authorising him to appear with Mr Sweeney. Mr Sweeney did not appear although according to Mr. Hodgekiss his presence was expected, and the document in question would appear to be of little worth. Nevertheless and with Mr Mescher's consent, Mr Hodgekiss was given leave to represent the Applicant. It may be noted that Mr Hodgekiss is a retired barrister and also the former husband of Mrs Sandra Hodgekss who is referred to more fully later in these reasons.
Part B; The "incompetency" contention
10 Mr Hodgekiss contended that the amended assessment (referred to in clause 1) against the Applicant in respect of the relevant years, was incompetent because it was issued in point of time after the Applicant had disposed of the property; the chronology quoted earlier in these reasons indicates that the property was transferred by the Applicant to Mrs Sandra Hodgekiss on 21 December 2005 and thus after the taxing point for the 2005 year. In respect of that contention no authority whatever in support was cited and it is clearly without any merit whatever. An assessment for land tax in respect of the relevant years was competent against the Applicant who was the owner of the property during the relevant years; it seems clear moreover that there was no other owner of the property during the relevant years and so that there was no other person against whom the assessment in question could have been issued.
Part C; The Sandra Hodgekiss Family Trust (“the trust")
11 The trust was established by deed made on 25 January 1996 between Arthur Wood as settlor, Daphne Wood as appointor and the Applicant as trustee; the beneficiaries were described as Sandra Hodgekiss and her children.
12 On 9 February 1996 the Applicant became the registered proprietor of the property. There was never any suggestion that the Applicant acquired the property otherwise than in its capacity as trustee of the trust.
13 Although there were other directors of the Applicant prior to June 2000, Mrs Sandra Hodgekiss became its sole director at that time.
14 On 15 April 2001 a deed of variation was entered into pursuant to which the children who were prospective beneficiaries of the trust were confined to Alexandra Hodgekiss ("Alexandra") and Dean van Dyke ("Dean"). Alexandra is the child of Mr and Mrs Hodgekiss while Dean is the son of Mrs Hodgekiss by a previous marriage. At that time Alexandra was under the age of 18; she turned 18 on 15 April 2003. At all relevant times Dean was a major and so of course was Mrs Hodgekiss.
15 In respect of the trust the Tribunal refers to the following specific provisions:
(a) "Trust Fund" is defined in Clause 2.1.10 to mean and include any and all of the money and/or other property and investments which for the time being shall be held by the trustee upon the trusts and subject to the provisions contained in the deed but excluding any income of the trusts and investments of or representing the same which for the time being shall not have been distributed by the trustee pursuant to any provisions of the deed.
(b) Pursuant to clause 3.1.3, the settlor directs that the trustee shall hold the settlement amount and the trustee hereby declares that it will hold the trust fund upon and subject to the trusts provided in the deed.
(d) Clause 5.2 of the Trust relevantly provides:(c) : Clause 7.5 provides that the prospective beneficiaries are Sandra Hodgekiss and any child or children of the said Sandra Hodgekiss. In accordance with the deed of variation dated 15 April 2001, the reference to "child" or "children" in paragraph 7.5.2 of the schedule to the trust is to be taken as a reference only to Dean Van Dyke or Alexandra Hodgekiss and to no other person
" ... the trustee shall hold the income of the trust from time to time upon trust to pay or apply the same to or for the benefit of the prospective beneficiaries... and if there be more than one prospective beneficiary for the time being then the trustee may, in its absolute discretion, pay or apply such income to or for anyone or more of such him absolutely, and if there be more than one prospective beneficiary to the exclusion of any other or others of them in such shares and proportions and upon such terms as the trustee, in its absolute discretion, shall think fit."
(e) Clause 5.3.1 of the Trust contains a similar provision in respect of the capital of the trust fund and empowers the trustee, in its absolute discretion, to distribute or apply the whole or any part or parts of the trust fund absolutely for the maintenance, education, advancement or other benefit of any or all of such prospective beneficiaries. Pursuant to clause 5.3.2, upon the vesting date, the trustee shall stand possessed of the trust fund to distribute or apply the same to the benefit of such one or more of the prospective beneficiaries in such shares and proportions as the trustee in its absolute discretion shall think fit. Clause 5.3.3 vests an absolute discretion in the trustee to distribute the trust fund in the event that there shall be no prospective beneficiaries in existence at the vesting date.
16 A consideration of the trust deed as a whole, and including in this context the deed of variation, has the effect that it is clear that the trust is a discretionary trust; the Tribunal refers in this context to in Dyneset Pty Limited v Commissioner of State Revenue[2008] NSWADT 245,;CPT Custodian Pty Limited v Commissioner of State Revenue (Victoria) (2005) 224 CLR 98; and GTN Developments Pty Limited Chief Commissioner of State Revenue [2007] NSWADT 168.
Part D. The concessional trust contention
17 The concept of a concessional trust was introduced into the Land Tax Management Act 1956 (referred to henceforth as “the Act” )in respect of the 2003 year. Prior to that date there was no such concept in the Act.
18 The definition of a concessional trust is contained in section 3(B)(1) of the Act; that definition reads as follows:
(1) For the purposes of this Act, a trust is a "concessional trust" if:
- (a) the trust property includes land, and
(b) each person who is a beneficiary of the trust is:
- (i) a person under the age of 18 years, or
(ii) a person in respect of whom a guardianship order is in force under the Guardianship Act 1987 , or
(iii) a person in the target group within the meaning of the Disability Services Act 1993 .
- (a) in whose favour, by the terms of the trust, capital or income the subject of the trust may be applied:
(i) in the event of the exercise of a power or discretion in favour of the person, or
(ii) in the event that a discretion conferred under the trust is not exercised, or
(b) entitled or permitted, under the terms of the trust, to use and occupy land that is the subject of the trust.
19 Notwithstanding the fact that in accordance with the definition a trust cannot be a concessional trust unless each beneficiary is under the age of 18 Mr. Hodgekiss contended that the word “each” should be construed in such manner that a trust will be a concessional trust where any beneficiary is under the age of 18. At the hearing Mr. Hodgekiss cited in support Stroud’s Legal Dictionary but without being more specific as to how it assisted the Applicant. After the hearing had taken place Mr. Hodgekiss arranged (and as he foreshadowed at the hearing) to send the Tribunal the relevant dictionary page; in relation to :"each” the reference reads as follows:
EACH: A gift to "each" of two or more persons, or to "each of their respective heirs" (Gordon v. Atkinson, 1 D.G. & S. 478; cp Doe d Littlewood v Green 8 L.J.Ex 65,. Ex p. Turner; 24 L.J.Ch 657 and Re Atkinson [1892] 3 Ch.52 all cited Respective; see further 3 JARM (8th Ed) 1786). creates a tendency in common. That proposition is not in controversy; but on another point Gordon v. Atkinson is hardly in agreement with the other cases. There the direction was "to pay. assign, and transfer" moneys etc to four persons "and to each of their respective heirs, executors, administrators and assigns" that Knight-Bruce V. C. held was an absolute tenancy in common; whereas on similar, but not identical, words in Doe d Littlewood v. Green and Ex p Turner, the ruling was that the named donees took as joint tenants for life, with the remainder to their heirs, etc in common. In Re Atkinson, North J followed these two latter cases and explained Gordon v. Atkinson on its slight difference in language; for "if money is to be paid to persons who take no absolute interest it is difficult to see how you could pay to the as joint tenants". Seen further PAY
A testator, after a legacy to his daughter, gave "to each of her children by her present marriage 1000" held to include only the children alive at the testator's de and not any BORN afterwards (Blair v Maxwell. 10 McPherson 760)
(remainder of dictionary page omitted as not relevant)
20 It is obvious enough that the dictionary reference to "each" is of no assistance to the Applicant in the context of the definition contained in the Act. It does not affect the clear and precise meaning of that word in the definition which provides in the clearest possible terms that a trust cannot be a concessional trust unless each (which in this context must mean every) beneficiary is under the age of 18.
21 The trust was never in respect of the relevant years, or any of them, a concessional trust. It is desirable, if only for the sake of completeness, to note that the Tribunal should distinguish three periods; the term “first period” refers to the 1999, 2000. 2001, and 2002 years when the Act contained no provision as to concessional trusts. In respect of the first period the Act provided that an owner who was a company could not be entitled to the principal place of residence )”PPR”) exemption ..It follows that in respect of the first period the concessional trust contention was simply not relevant; it was equally irrelevant in respect of the 2004 and 2005 years, (‘the third period”) because Alexandra had turned 18 and so that there were no beneficiaries under the age of 18. In respect of the first and third periods the Applicant cannot rely on anything other than the incompetency allegation and which has been held to be without merit, The concessional trust contention can be relevant only in relation to the 2003 year ("the second period" )and being the only land tax year when the Act contained a definition of concessional trust and there was a beneficiary under the age of 18. As I have noted the concessional trust contention (which, as set out previously, cannot be relevant excepting in relation to the second period) is without substance. It may be noted that the Act does not exclude the PPR exemption where the owner is a company provided that it holds in its capacity as trustee of a concessional trust.
Part D. Special trusts
22 In this Part D I again distinguish between the first second and third periods as referred to in the preceding part.
23 In respect of the first period :
- (a) section 3(1) contained a definition of "discretionary trust" as follows:
discretionary trust" means a trust under which the vesting of the whole or any part of the capital of the trust estate, or the whole or any part of the income from that capital, or both:
- (a) is required to be determined by a person either in respect of the identity of the beneficiaries, or the quantum of interest to be taken, or both, or
(b) will occur if a discretion conferred under the trust is not exercised, or
(c) has occurred but under which the whole or any part of that capital or the whole or any part of that income, or both, will be divested from the person or persons in whom it is vested if a discretion conferred under the trust is exercised,
- (b) "special trust" was defined in section 3(1) so as to include a discretionary trust;
- (c) Section 10(1D) (a) (i) made it clear that a PPR exemption was not available in respect of land owned by a company.
24 In respect of the second period:
(a) "concessional trust" was defined in the manner set out previously in these reasons;
(b)"special trust" was defined in section 3A so as to provide that it included any trust which was neither a concessional trust nor a fixed trust; ( and it should be noted that it was never contended that the trust was a fixed trust); there was also an exclusion in respect of certain superannuation trusts but it is not necessary for me to deal with this aspect.
(d) Section 10AA(2) provided that land owned by a company in its capacity as trustee of a concessional trust would enjoy the exemption only where any beneficiary occurred the land as his or her PPR. The effect of this provision is that the exemption applies where any beneficiary occupies, but does not alter the fact that the trust is not a concessional trust unless each and every beneficiary is under 18. It is important to note that in this subsection AA(2)) the word "any" is used and in contrast to the use of the word "each" in the definition.(c ) Section 10AA(1)(a) provided that land would not enjoy the PPR exemption where it was owned by a company unless that company was acting as trustee of a concessional trust; section 10AA(1)(b) made it clear that there could not be an exemption in respect of land owned by a special trust.
25 In respect of the third period the statutory provisions were in certain respects different from those applicable during the second period and caused in the main by the enactment of schedule 1A. However the effect is not different; clause 11 of schedule 1A is comparable with section 10AA. For the purposes of this decision the legislation in respect of the second and third periods has the same effect.
26 The Applicant relied on the concessional trust contention and did not seek to contend that the trust would not otherwise be a special trust. It is clear that the trust was not a fixed trust and it is equally clear that none of the beneficiaries were owners.. The trust was clearly a special trust throughout the relevant years and in consequence of which the Applicant was not entitled to the PPR exemption and moreover, and because the trust was a special trust, could not enjoy the tax free threshold.
Part E. Summary general and conclusion
27 I have previously noted that the incompetency contention was without merit. Much the same can be said as to the concessional trust contention given that it is altogether clear that the definition of concessional trust must of necessity, and having regard to its clear wording, be read in such manner that the concept applies only where each and every beneficiary is under the age of 18, It may be noted that the term “beneficiary” is defined so as to include each person who is capable of benefitting. In this case there were three such beneficiaries any of whom could benefit if the trustee exercised its discretion in that person’s favour.
28 At the risk of labouring the point the Verick decision as to the dismissal of the application was made at the express request of the Applicant. The fact that that the dismissal lead to a decision which had the effect that the decision under review was mistakenly affirmed was clearly erroneous and easily corrected. No appeal was necessary or desirable and there is certainly no need whatever for a hearing of the appeal. The contention that an appeal was needed because reasons for the Verick decision had not been furnished and where the Applicant had been referred to the transcript was regrettable. In the same context and assuming that there was a basis for the bringing of the appeal (and the Tribunal doubts whether this is so) it should not have been persevered with; the letter referred to in clause 7(c) and the contention by Mr Hodgekiss referred to in clause 8 were in this context also regrettable.
29 The Applicant at the hearing presented two arguments only; it raised the incompetency contention and it raised the concessional trust contention. Neither of those contentions has any merit.
30 It follows that the decision under review must be affirmed.
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