Background
This Supreme Court matter concerns whether transfers on 8 August 2016 of various lands from Viva Energy Australia Pty Ltd to the taxpayer, as trustee for the VER Trust, were exempt from duty by reason of the corporate reconstruction exemption under section 250B of the Duties Act 2000.
The transfers occurred as part of a wider restructure of the Viva group of entities, which was implemented in connection with an initial offering of approximately 414.1 million stapled securities comprising shares in Viva Energy REIT Limited and units in a real estate investment trust called the Viva Energy REIT Trust (REIT Trust).
In broad terms, that exemption is only available where the Commissioner of State Revenue (CSR) is satisfied that, among other things, the relevant transfer is, or arises out of, an “eligible transaction”, which requires the transfer to be made from one member of a corporate group to another member at the date of the transfer.
Based on the transaction documents in effect at the date of the transfers, the CSR was not satisfied that the VER Trust remained part of the same corporate group, under the indirect ownership of Viva Energy Australia Group through the REIT Trust, for the purposes of the exemption. This is because units in the REIT Trust were issued to selected investors before 8 August 2016. Consequently, the CSR issued a notice of assessment of duty to the taxpayer.
Decision
On 11 February 2022, Justice Garde delivered judgment in favour of the taxpayer, holding among other things that the grant of an exemption under section 250B of the Duties Act 2000 by the Commissioner’s delegate (via the 30 June 2016 letter) was correct and appropriate. The exemption granted was valid and arose out of an eligible transaction within the meaning of section 250A of the Act.
