Imbree v Chief Commissioner of State Revenue

Deed of transfer

1. Prior to the issue of a private ruling by the Commissioner, on 24 August 2022 the Deed was executed. The Recitals to the Deed state as follows: "Background: A The Member has requested that the Trustees transfer to the Member the 95% interest in 28 Rutherford Avenue Burraneer ('the property') and the Trustees have agreed to make that transfer. B. The property is currently being renovated. C. The property is currently valued at $3,475,000 This deed sets out the terms of that transfer."
2. By Clause 1 of the Deed, the Trustees of the Imbree Super Fund agreed to transfer the Property for $3,301,250 which was payable on settlement which was to occur within 12 months. In addition, Mr Imbree could replace his entitlements in the Imbree Super Fund by transfer of the Rutherford Property to him and therefore not pay any consideration.
3. There were various conditions in the Deed. Clause 2 stipulated that the transfer was conditional upon Mr Imbree receiving finance within 2 months of signing to complete renovations of the property and obtaining taxation advice as to the effect of the Deed and any exemptions. Clause 3 provided the transfer was conditional upon Mr Imbree selling his existing residence in Caringbah South and settling the sale within 12 months.
4. By Clause 4, the Trustees and Mr Imbree were required to execute a Real Property Act 1900 (NSW) transfer for stamping within two months of execution.
5. On 1 September 2022, the Commissioner issued a private ruling finding that the Deed did not fall within s 57, nor ss 55 or 65(10) of the Act.
6. On 11 November 2022 Mr Imbree executed a purchaser declaration in respect of the Deed and the Assessment was issued levying full ad valorem duty on the Deed. Both the Deed and the purchaser declaration cited the consideration as being $3,301,250.
7. On 11 October the Chief Commissioner served his written submissions in this matter. Subsequently, on 12 October, Mr Imbree executed a Deed of Variation of Transfer which varies the Deed in the following respects: 1. By clause 1, the date of settlement is varied from 12 months of the date of the Deed (being 24 August 2023) to 24 August 2024; 2. By clause 2 of the Deed of Variation, clause 4 of the Deed was amended and replaced with the following words: The Parties agree that for the purposes of the transfer of the property pursuant to this deed of transfer the parties will give a standing authorization to their mutual solicitor to electronically sign and subsequently lodge on settlement a transfer attached hereto, and neither of them will revoke the standing authorization they give to their mutual solicitor following such electronic signature. The parties understand, and it is their intention, that there is nothing further they need to undertaken or deliver, apart from settlement, in order for the transfer of the property to be effected. For the avoidance of doubt, the creation, authorization, electronic signature and lodgement of the PEXA transfer is part of the transfer process undertaken pursuant to the deed of transfer as varied herein. 1. An unsigned transfer document acknowledging receipt by the transferor (Mr Imbree and his son as trustees) of $3,301,250 in consideration for the Rutherford Property is attached to the Deed of Variation. This appears to alter the position that existed in cl 1 of the Deed which stipulated that Mr Imbree would either transfer consideration of $3,301,250 to the Super Fund for the Rutherford Property or that no consideration would be paid. The unsigned transfer indicated that consideration was to be paid. 2. Clause 3 states that the deed of transfer is "supplemental to the transfer in the Deed" and not intended to replace it.
8. The Second Deed of Variation is dated 25 October 2023 and purports to clarify that no consideration is to be paid by Mr Imbree for the transfer of the Rutherford Property to him.

Legislation

1. The Duties Act, ss 8 and 9 provide as follows: 8 Imposition of duty on certain transactions concerning dutiable property (1) This Chapter charges duty on - (a) a transfer of dutiable property, and (b) the following transactions - (i) an agreement for the sale or transfer of dutiable property, (ii) a declaration of trust over dutiable property, … 9 Imposition of duty on dutiable transactions that are not transfers (1) The duty charged by this Chapter on a dutiable transaction referred to in section 8 (1) (b) is to be charged as if each such dutiable transaction were a transfer of dutiable property. (2) Accordingly, for the purpose of charging duty under this Chapter, in relation to a dutiable transaction specified in Column 1 of the following Table - (a) the property specified opposite the dutiable transaction in Column 2 is taken to be the property transferred (and a reference in this Act to property transferred includes a reference to such property), and (b) the person specified opposite the dutiable transaction in Column 3 is taken to be the transferee of the dutiable property (and a reference in this Act to a transferee includes a reference to such a person), and (c) the transfer of the dutiable property is taken to have occurred at the time specified opposite the dutiable transaction in Column 4 (and a reference in this Act to the time at which a transfer occurs includes a reference to such a time). [Table omitted]
2. There is no dispute that the Property was dutiable property.
3. The liability for duty will arise at the date the dutiable transaction is entered into (Duties Act, ss 9, 12(2)), and is charged on the dutiable value of the dutiable property: Duties Act, s 19.
4. The dutiable value of the dutiable property is the greater of the consideration paid (s 21) (and to be paid (s 22(2)) for the dutiable transaction, or the unencumbered value of the dutiable property.
5. The Duties Act provides various concessions and exemptions from duty. Section 55 provides as follows: 55 Property vested in an apparent purchaser (1) Duty of $50 is chargeable in respect of - (a) a declaration of trust made by an apparent purchaser in respect of identified dutiable property - (i) vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property, or (ii) to be vested in the apparent purchaser upon trust for the real purchaser, if the Chief Commissioner is satisfied that the money for the purchase of the dutiable property has been or will be provided by the real purchaser, or (b) a transfer of dutiable property from an apparent purchaser to the real purchaser if - (i) the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and (ii) the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase. (1A) For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser. (1B) This section applies whether or not there has been a change in the legal description of the dutiable property between the purchase of the property by the apparent purchaser and the transfer to the real purchaser. Note - For example, if the dutiable property is land, this section continues to apply if there is a change in the legal description of the dutiable property as a consequence of the subdivision of the land. (1C) This section applies to the legal personal representative of an apparent purchaser or real purchaser who has died in the same way as it applies to an apparent purchaser or real purchaser. (2) In this section, purchase includes an allotment.
6. Section 65(10) provides as follows: 65 Exemptions from duty (10) Instruments relating to superannuation No duty is chargeable under this Chapter on - (a) an instrument referred to in section 60 (1) (a), (b) or (c) that is first executed on or after 1 July 2001, or (b) a dutiable transaction effected by such an instrument, if the Chief Commissioner is satisfied that the primary purpose for which the transaction was effected was to comply with legal requirements relating to complying superannuation funds, complying approved deposit funds, pooled superannuation trusts or eligible rollover funds.
7. The relevant instruments referred to in s 65(10) of the Duties Act are set out in s 60 as follows: 60 Instruments relating to superannuation (1) The following instruments are liable to duty of $20 if they were first executed before 1 July 2001 - (a) an instrument that establishes, or that amends provisions governing, a superannuation fund, an approved deposit fund, a pooled superannuation trust or an eligible rollover fund, being a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund within 12 months after the instrument or amending instrument takes effect, (b) an instrument under which an employer agrees to participate in or contribute to a complying superannuation fund or a superannuation fund that, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the employer agrees to participate in or contribute to the fund, (c) an instrument that is executed in order to set out or vary the terms of custodial arrangements concerning a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund (whether or not the instrument contains any other terms) or concerning a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund within 12 months after the instrument takes effect. (2) A liability for duty charged by this section arises when the instrument is first executed. (3) The persons liable to pay the duty are the parties to the instrument.

Mr Imbree's submissions

1. Mr Imbree's argument was essentially that the Deed when read the with Deed of Transfer Variation is a "transfer of dutiable property" for the purposes of the Duties Act, s 55 and not an "agreement to transfer dutiable property".
2. Mr Imbree contended: "Section 55 (1) (b) relevantly provides minor duty where: (b) a transfer of dutiable property (the original contract for sale) from an apparent purchaser (the Imbree superannuation fund 'ISF') to the real purchaser (Paul Anthony Imbree 'PA') if-- (i) the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and (ii) the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase. The present case seamlessly fits within the literal words of the section. PA has put his own money into his single-member self-managed superannuation fund and that fund is fully vested in the sole beneficiary (PA) who therefore has an equitable proprietary interest in those monies, and those monies are used by the fund to buy a property in the name of the fund and, after accounting for the purchase, the fund remains fully vested in the sole beneficiary thereafter. If not now, when?
3. Mr Imbree also contended that by reason of s 9 (2) of the Interpretation Act 1897, the word "shall" imposes a mandatory condition in relation to duties imposed by legislation. This, he said, should be a clear statement of legislative intention to adopt an interpretation of s 55 that promotes rather than limits the benefits purposefully provided by that section. Further, Mr Imbree contended: Section 55 has the opportunity to aid in the efficacy of superannuation law with superannuation the cornerstone of community retirement benefits. The Duties Act allows property to go into superannuation funds from members of complying superannuation funds free of duty, but on the OSR interpretation duty is applied when the retiring member of the fund seeks to take the property out of the superannuation fund.
4. Distilled in simple terms, Mr Imbree's argument was that s 55 applied for the reason that the Deed was a "transfer of dutiable property"; as he provided the funds to the Imbree Super Fund which were subsequently used to purchase the Rutherford Property and he was the sole member of the Fund, he was the "real purchaser" and the trustee of the Super Fund was the "apparent purchaser". He contended that this was borne out by the fact that he had the discretion to control the Imbree Super Fund and make the investments decisions for the Fund. The Imbree Super Fund acquired the Rutherford Property for his benefit and on his behalf: it was more a lifestyle decision than an investment decision particularly as the Rutherford Property required certain modifications such as temperature-controlled living conditions with a sunny aspect so that he could enjoy the view given his physical restrictions.
5. Mr Imbree says that s 55(1)(b) is a perfect fit to the facts of this case. This was said to be for the reason that: 1. he put his own money into his single-member self-managed superannuation fund; 2. that Fund is fully vested in the sole beneficiary who therefore has an equitable proprietary interest in those monies; 3. those monies were used by the Fund to buy a property in the name of the Fund; 4. and, after accounting for the purchase, the Fund remains fully vested in the sole beneficiary.
6. While in his written submissions Mr Imbree contended that the Imbree Super Fund was fully vested at all times in him as sole member, in oral submissions he did not maintain the contention - he said that the Fund had not vested.

Conclusion on s 55

1. I have carefully considered the materials before the Tribunal including, in particular, the terms of the Deed and the extensive submissions made by Mr Imbree. On a plain reading of the Deed, it does not transfer or vest any property but is an agreement to do so. I find that the Deed is an "agreement to transfer dutiable property" and is not a "transfer of dutiable property," within the meaning of s 8 Duties Act.
2. The Deed of Variation entered into by Mr Imbree on 12 October 2023 appeared to me to have been implemented in an attempt to make good Mr Imbree's contention that the Deed is in fact a "transfer of dutiable property" and in response to the Chief Commissioner's submissions to the contrary. However, the Deed of Variation does not alter my conclusion that the Deed was an agreement to transfer the Rutherford Property and is not a "transfer of dutiable property". Nor does attaching the draft Transfer document to the Deed of Variation alter the position that the Deed does not transfer any dutiable property.
3. The concession in s 55 applies to two kinds of dutiable transactions: declarations of trust (s55(1)(a)) and transfers of dutiable property (s 55(1)(b)). Mr Imbree did not suggest that the Deed was a declaration of trust but that it was a transfer of dutiable property.
4. The Duties Act anticipates there being transfers of dutiable property (s 8(1)(a)) and transactions of various kinds (s 8(1)(b) including an "agreement for the sale or transfer of dutiable property (s 8(1)(b)(i)) and a declaration of trust over dutiable property (s 8(1)(b)(ii)). I agree with the Commissioner's submission that by reason of s 8(2), both transfers and transactions are taken to be "dutiable transactions" for the purposes of the Duties Act such that where the Duties Act refers compendiously to transfers of dutiable property and transactions involving dutiable property, the term dutiable transaction is used.
5. For the purposes of charging duty on a dutiable transaction, Duties Act s 9 treats the dutiable transactions referred to in s 8(1)(b) as if the each were a transfer of dutiable property. Mr Imbree contends that under this deeming provision an "agreement for the sale or transfer of dutiable property" (being a dutiable transaction in s 8(1)(b)) is to be charged as if it were a "transfer of dutiable property", therefore each reference to "transfer of dutiable property" elsewhere in the Duties Act includes "agreement for the sale or transfer of dutiable property". Consequently, he argued that even if the Deed was an agreement for the sale or transfer of dutiable property, because of the deeming in s 9, it is deemed to be a "transfer of dutiable property" for the purposes of s 55.
6. I do not accept Mr Imbree's argument.
7. The process of statutory construction begins with a consideration of the text. This requires consideration of the ordinary and grammatical meaning of the words of the provision by reference to all the provisions of the statute and its purpose. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, the joint judgment said at [70]: "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme". (footnotes omitted) As the Court of Appeal in Chief Commissioner of State Revenue v Bendiorm Pty Ltd [2020] NSWCA 285 stated (at [87] per Leeming JA, Meagher and Payne JA agreeing), this approach is settled.
8. Section 9(2), which refers back to s 9(1), directs one to the circumstances when a "transfer of dutiable property" will be taken to include "an agreement for the sale or transfer of dutiable property," namely in respect of the matters referred to in Columns 2, 3 and 4 of the Table in that section. So, for example, as the Commissioner submitted: (a) section 12 states "liability for duty charged by this Chapter arises when a transfer of dutiable property occurs." One then knows, because of s 9(2)(c) of the Act, that in respect of an agreement to transfer, that such time is taken to be when the agreement is entered into. (b)section 13 states "duty charged by this Chapter is payable by the transferee". One then knows, because of s 9(2)(b) of the Act, that in respect of an agreement to transfer, the transferee is the purchaser or transferee under the agreement to transfer.
9. Section 55 on the other hand, distinguishes a transfer of dutiable property in s 55(1)(a) from a declaration of trust in s 55(1)(b). The distinction provided by the legislature would make no sense if Mr Imbree's construction were accepted as the reference in s 55(1)(b) to a transfer of dutiable property would cover all transactions in s 8(1)(b) including a declaration of trust (s 8(1)(b)(ii)). The reference in s 55(1)(a) to a transfer of dutiable property must mean a transfer of dutiable property only and not any other transactions within the meaning of s 8(1)(b) and to accept Mr Imbree's construction would render part of s 55 otiose.
10. When the Duties Act is read as a whole, there is further support for rejecting Mr Imbree's construction. There are numerous examples throughout the Duties Act where the phrase "transfer of dutiable property" cannot be read to include an "agreement for sale or transfer of dutiable property" as to do so would render those parts of the Duties Act a nonsense. For example, s 18 of the Act which deals with double duty where two distinct dutiable transactions are referred to: the transfer of dutiable property and the agreement for the sale or transfer of dutiable property; ss 57A, 61, 62, 62A which separately refer to dutiable property being transferred or agreed to be transferred; ss 57 and 63 which draw a distinction between transfers of dutiable property and declarations of trust.
11. I also do not accept Mr Imbree's alternative argument (as I understood it) as to why s 55 should be engaged. The argument was to the effect that s 8(1)(a) refers to transfers of dutiable property; s 11 defines dutiable property as including an interest in dutiable property such that an interest in land is dutiable property; a contract of sale is sufficient to transfer an interest in land (being a beneficial interest within the meaning of KLDE Pty Ltd v Commissioner of Stamp Duties (QLD) (1984) 155 CLR 288); and therefore a contract for sale is a transfer of dutiable property. I do not see the relevance of this argument here where the dutiable property the subject of the dutiable transaction in the Deed was the freehold estate in the Rutherford Property. In any event, on Mr Imbree's construction, s 8(1)(b) would be subsumed into s 8(1)(a) of the Duties Act and there would be no need for the distinction between the two. Parliament has clearly sought to provide certain concessions for transfers of dutiable property which are not available to agreements for the transfer of dutiable property.
12. As I have found above, the Deed was an agreement to transfer dutiable property and not a transfer of dutiable property: nor does the deeming in s 9 mean that it is to be characterized or treated as a transfer of dutiable property for all purposes in the Duties Act. Consequently, the Deed does not fall within the scope of s 55 and the concession is not available.

Does s 55(1)(b) relate to resulting trust arrangements only?

1. Given my conclusion that s 55 does not apply, I do not need to consider Mr Imbree's further arguments that the exemption in s 55 is not confined to resulting trust arrangements or whether he was, in any event, the real purchaser and the Super Fund was the apparent purchaser within the meaning of s 55.
2. However, for completeness, on the issue of whether s 55(1)(b) relates only to resulting trust arrangements, I note that I agree with the Tribunal in Harvey v Chief Commissioner of State Revenue [2021] NSWCATAD 63 at [37]-[45], as follows: "Is the reference in s 55(1)(b) to a trust limited to a resulting trust? [37] The word 'trust', in isolation, is broad enough on its face to include trusts other than resulting trusts. However, the expressions 'apparent purchaser' and 'real purchaser' within s 55(1)(b) suggest that the legislative intention was that the trust was a resulting trust. [38] Further, s 55 and its predecessors have been interpreted as applying only to resulting trusts. [39] Section 55(1) deals with two distinct scenarios. The first is a declaration of trust made by an apparent purchaser in favour of the real purchaser in respect of identified dutiable property (s 55(1)(a)). The second is a transfer of dutiable property from the apparent purchaser to the real purchaser (s 55(1)(b)). [40] Prior to the Duties Act, those scenarios were the subject of provisions of the Stamp Duties Act 1920 (Stamp Duties Act). More particularly: 1. paragraph (1) of the Second Schedule to the Stamp Duties Act provided relief from the imposition of ad valorem duty in respect of 'Any instrument declaring that a person in whom property is vested as the apparent purchaser thereof holds the same in trust for the person or persons who have actually paid the purchase money therefor'; 2. section 73(1)(e) of the Stamp Duties Act provided relief from the imposition of ad valorem duty for 'A conveyance whereby the apparent purchaser of property that is vested in him upon trust for the person who was the real purchaser and who has actually paid the purchase money therefor, conveys the same to the real purchaser'. [41] In Truskett v Commissioner of Stamp Duties (NSW) (1976) 6 ATR 1, Rath J held that paragraph (1) of the Second Schedule applied only to a situation in which a resulting trust arose (at page 5.35). [42] In Commissioner of Stamp Duties (NSW) v Pendal Nominees Pty Ltd (1989) 167 CLR 1, Mason CJ said at pages 16-17: 'Moreover, par (1) is concerned with the situation in which a document reveals a certain person as the purchaser of property and does not reveal that another person has "actually paid the purchase-money", but contains a declaration of trust by the "apparent purchaser" in favour of that other person. This is not the situation in the present case. Furthermore, the situation envisaged by the paragraph is one in which the law would ordinarily impose a resulting trust in favour of the provider of the purchase money, and par (1) is therefore concerned with a declaration which does no more than record the existence of such a trust: see Truskett v Commissioner of Stamp Duties (NSW) (1976) 6 ATR 1.' [43] Whilst each of Truskett and Pendal Nominees involved paragraph (1) of the Second Schedule to the Stamp Duty Act, which is the predecessor to s 55(1)(a), in my view, and contrary to the applicants' submission, s 55(1)(b) is also concerned only with resulting trusts. In this regard, in Truskett Rath J considered an argument that there was a distinction between paragraph (1) of the Second Schedule (the predecessor to s 55(1)(a)), and s 73(1)(e) (the predecessor to s 55(1)(b)). At page 5.15-25, his Honour held: 'Counsel for the plaintiffs conceded that s 73(1)(e) appears to be dealing with a true resulting trust situation, but said that it was the contrast between the phrases "the apparent purchaser" and "the real purchaser" that was significant for this purpose. I do not think that in fact there is any particular significance in the different wording of s 73(1)(e) and para (1) of the Second Schedule. The similarities are more important than the differences, and are sufficient to show that the same class of resulting trust situation is being dealt with in each place.' [Emphasis added.] [44] I note also that the respondent has also taken the view in its rulings over many years that both 55(1)(a) and (b) and their predecessors apply only to resulting trusts: see, e.g. Revenue Ruling SD 007 Conveyance of Property Fixed Duty - Transfer From Apparent Purchaser to Real Purchase dated 1 December 1985, Revenue Ruling No. SD 120-Resulting Trust Situation Property Vested In An Apparent Purchaser dated 26 November 1988 and Revenue Ruling No. DUT 30-Property Vested in an Apparent Purchaser dated 13 November 2006. [45] For the above reasons, I am satisfied that s 55(1)(b) applies only to a resulting trust arising from the real purchaser providing the moneys for a purchase in the name of the apparent purchaser.
3. I also reject Mr Imbree's further contention that he was the "real purchaser" and the trustees of the Imbree Super Fund were the "apparent purchasers" of the Rutherford Property. This contention was made on the basis that he provided the money for the purchase and the trustees held the Rutherford Property on trust for him as the sole member of the Fund.
4. Mr Imbree appears to conflate the funds which he contributed to the Imbree Super Fund over several years as his own funds. When Mr Imbree and Jonathon Imbree purchased the 95% interest in the Rutherford Property, the description makes clear their purchase was in the capacity as trustees of the Imbree Super Fund and not in their personal capacity or as a bare trustee for Mr Imbree. When Mr Imbree made the contributions (including his award of damages) to the Imbree Super Fund, it formed part of the Fund and was no longer Mr Imbree's personal property. Further, once acquired using the trust funds, the Rutherford Property was held by the Imbree Super Fund as an asset of the Fund.
5. On the materials before me, I am not satisfied that there was a resulting trust arrangement; I am not persuaded that the trustees held the Rutherford Property as "apparent purchaser" for the Mr Imbree as "real purchaser" regardless of the fact that he was the sole member making contributions to, and entitled to benefits under, the Fund. I am also not persuaded of the alternative position (as I understood it) that the trustees held the Rutherford Property as a bare trustee for Mr Imbree.
6. I note for completeness that the second Deed of Variation appears to have been implemented to overcome a supplementary submission made by the Chief Commissioner on 17 October 2023. That submission was to the effect that as Mr Imbree is required to pay consideration of $3,301,250 to the Imbree Super Fund on settlement, there can be no resulting trust. This is for the reason that at the time the real purchaser calls for transfer of property from the apparent purchaser, the real purchaser will have already provided the money for the property and so have no need to pay the apparent purchaser any consideration for the transfer.
7. The second Deed of Variation has no impact on my conclusion that Mr Imbree was not the real purchaser of the Rutherford Property, nor does it affect my conclusion that s 55 does not apply to the Deed for the reason that I do not accept the Deed is a "transfer of dutiable property".

Section 65(1)

1. As noted above, s 65 provides a variety of exemptions from duty including instruments relating to superannuation.
2. The dictionary to the Duties Act defines "instrument" as including: a document, written statement or any record of information that exists in digital form and is capable of being reproduced, transmitted, stored and duplicated by electronic means.
3. Mr Imbree relied on s 65(10)(b). He submitted that the Trust Deed was an instrument which effected a dutiable transaction "effected by such an instrument" relating to superannuation (within the meaning of s 65(10)(b)) for the reason that the Deed: 1. was entered into pursuant to obligations of the trustee to act in the best interests of the member of the Imbree Super Fund; and 2. was based on the Investment Strategy Review for the Imbree Super Fund.
4. The Commissioner accepted that the Trust Deed is an "instrument" within s60(1)(a) of the Duties Act and so could be an instrument as referred to in s 65(10)(b). However, the Commissioner submitted that for that section to apply in this case, the dutiable transaction has to have been "effected" or caused by the "instrument".
5. I agree. Here, the dutiable transaction was caused by the Deed being entered into in 2022 not by the original Trust Deed of 2004. There is no dispute that the Deed was executed in conformity with the trustees' obligations under the Trust Deed. However, this does not mean that the dutiable transaction the subject of these proceedings was brought about by the Trust Deed.
6. Section 12 of the Duties Act confirms this construction. It provides: (1) A liability for duty charged by this Chapter arises when a transfer of dutiable property occurs. (2) However, if a transfer of dutiable property is effected by an instrument, liability for duty charged by this Chapter arises when the instrument is first executed. (emphasis added)
7. The phrase "effected by such instrument" is intended to focus on the document which brought about the dutiable transaction which in this case is the Deed and not the 2004 Trust Deed.
8. Consequently, Mr Imbree has not satisfied me that s 65(10) applies.

Conclusion

1. As Mr Imbree has failed to establish that the concessional rate of duty in s 55 or the exemption in s 65(1) of the Duties Act apply to the Deed, the Assessment is correct and should be confirmed.
2. I do not perceive any other ground upon which an exemption or concessional relief from duty is available, and in any case Mr Imbree, who bears to onus to do so, has not drawn any further grounds to my attention.

Order

1. The Assessment is confirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 January 2024