Background
The taxpayers, a husband and wife, purchased a property which was subsequently reassessed for foreign purchaser additional duty (FPAD) under s 28A of the Duties Act 2000 (the Act). The taxpayers did not dispute the wife – who was born in the United Kingdom and migrated to Australia in 2013 – was a foreign purchaser within the meaning of s 3(1) of the Act. But they asked the Tribunal to exercise its discretion not to impose FPAD for reasons including that they were the intended recipients of the partner exemption that was later introduced by Parliament by s 69AJ of the Act, and had they been properly been advised by their conveyancer that they would be liable for FPAD, they would have either delayed or terminated the contract of sale (which was subject to finance).
Issue
Whether the Tribunal, standing in the shoes of the Commissioner, had any discretion to either not make the reassessment to FPAD or to withdraw it.
Decision
By written reasons dated 22 March 2024, the Tribunal delivered judgment substantially in favour of the Commissioner, confirming the decision to impose FPAD. The Tribunal in its reasoning referenced that the Tribunal:
- had determined in 3 previous cases that FPAD applied and there is no discretion to waive or vary the duty in circumstances where one of the taxpayers was in Australia on a temporary partner visa at the time of the relevant transfer
- has consistently determined that it does not have any discretion not to make an assessment or reassessment the subject of the review proceedings
- while it is not bound to strictly follow its own decisions, it should do so for consistency except where the decision is “plainly wrong”.
