Background
This dispute was about the taxpayer’s acquisition of property from Mr Osborne on 19 May 2020, which the Commissioner had assessed to duty. The taxpayer was the trustee of the ANO Property Trust, of which the sole beneficiary was ANO Enterprises Pty Ltd as trustee for the AN Osborne Superannuation Fund (super fund). Mr Osborne owned and controlled both trustees (i.e. the taxpayer and ANO Enterprises Pty Ltd), was the sole member of the super fund and was a farmer who used the property for his farming activities.
The issue was whether the transfer was exempt from duty under section 56 (the family farm exemption) and/or section 35 (transfer to and from a trustee or nominee exemption) of the Duties Act 2000. A secondary issue was whether the Commissioner’s determination of the objection was invalid because of an improper delegation of power by the Commissioner to the relevant officer.
Decision
On 20 January 2022 the Tribunal confirmed the Commissioner’s assessment for the following reasons.
Firstly, the exemption in section 56 exemption could not apply as the taxpayer did not come within one of the required categories of transferees. In such circumstances, neither the Commissioner nor the Tribunal on review has discretion to waive or reduce the applicable duty.
Secondly, the exemption in section 35 could not apply because the transfer gave rise to a clear change in beneficial ownership of the property.
Thirdly, it was not necessary or appropriate for the Tribunal to consider the delegation issue as the Tribunal’s function in a merits review is to make the correct or preferable decision based on the evidence before it. It does not have jurisdiction to hear matters concerning judicial review.
