1. Under s 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the reassessment of duty made on 23 November 2021 (no. 27528233) is set aside and remitted to the respondent for reconsideration to remit the penalty tax and any interest which has accrued to date.
2. The application is otherwise dismissed.

1. Ms Dan Sim, who is a citizen of South Korea, became the sole registered proprietor of a property in Alphington ('Relevant Property') on 22 February 2019 by way of a transfer ('Transfer') from a property developer ('Vendor').[1] While she is now a permanent resident, at the time she acquired the property she was in Australia on a Partner (Temporary) (class UK) (subclass 820) visa ('Partner Visa') sponsored by her domestic partner,[2] Mr Alan Sam.
2. Initially, duty was imposed on the Transfer at the general rates provided for in section 28 of the Duties Act 2000 (Vic) ('Duties Act').[3]
3. However, on 23 November 2021 (and after an investigation), the Commissioner of State Revenue reassessed the Transfer to additional duty (known as 'foreign purchaser additional duty' or 'FPAD') of $74,653.25 (at the rate of 7% of the purchase price) under section 28A ('Reassessment').[4] The Reassessment also imposed penalty tax (at 20%) and interest (at the market rate).[5]
4. In her objection (prepared by Mr Sam on her behalf),[6] Ms Sim explained that the Transfer was made to her because of advice from their mutual accountant (Mr Angelo Biviano) that, because of Mr Sam's business interests and noting that they had encountered some difficulties,[7] it would be better for the Relevant Property to be in her name. Ms Sim's objection suggests this was an 'ill-informed administrative mistake', noting her foreign purchaser status was not checked.
5. As a result of the objection being disallowed,[8] Ms Sim requested that the matter be referred to VCAT for review.[9]
6. In her submissions to VCAT of 6 May 2024 ('ALS'), Ms Sim seeks leave (under section 109 of the Taxation Administration Act 1997 (Vic) ('TA Act')) to rely on a new ground, namely that the exemption from FPAD provided for in section 69AJ of the Duties Act is applicable in the circumstances. The grant of leave was not opposed by the Commissioner, and leave was granted at the hearing.[10]
7. Broadly, section 69AJ provides an exemption from FPAD 'in respect of a dutiable transactions in which a land-related interest in residential property is transferred to the foreign purchaser', if:

(a) the foreign purchaser is a foreign natural person and the spouse or domestic partner of an Australian citizen or permanent resident;

(b) the land-related interest is 'transferred jointly' to the foreign purchaser and their spouse or domestic partner; and

(c) the foreign purchaser occupies the property as their principal place of residence for at least 12 months commencing within 12 months of taking possession.

1. The Commissioner accepts that the requirements set out in [7(a)] and [7(c)] are met. Further, the Commissioner has conceded that the penalty tax and interest ought to be remitted to nil (in line with previous VCAT decisions concerning FPAD).[11]
2. Therefore, the only issue for determination is whether the relevant land-related interest was 'transferred jointly' to Ms Sim and Mr Sam.
3. Broadly:
   • Ms Sim contends the requirement is satisfied on the basis that, on transfer, Mr Sam acquired an equitable interest in the property under a purchase price resulting trust (or similar) because he funded most of the deposit for and the couple's equity in the property, while the loan for the balance of the purchase price was provided by way of a loan advanced to them jointly. She submits her interpretation of section 69AJ is supported by the Treasurer's second reading speech concerning the State Taxation Acts Amendment Bill 2018 ('Bill') which introduced the exemption and explains the 'mischief' to which it is directed.
   • The Commissioner contends that the relevant 'land-related interest' is the fee simple estate the subject of the Transfer and, as the sole transferee of that interest was Ms Sim, the requirement is not satisfied. The question of whether Ms Sim holds the Relevant Property partly or wholly on resulting trust for Mr Sam is suggested to be irrelevant.
4. For the reasons which follow, I consider that the Commissioner's interpretation of section 69AJ is correct and the FPAD imposed under the Reassessment must be confirmed. However, consistent with concessions made by the Commissioner, I will set aside the Reassessment and remit the matter to the Commissioner to exercise his discretion to remit the penalty tax and interest (and, if that penalty tax or interest has already been paid, refund the amount(s) to Ms Sim).

Prima facie application of FPAD under section 28A of the Duties Act

1. Section 28A of the Duties Act provides for additional duty or FPAD to be charged (at the relevant time, at a rate of 7%) on the dutiable value of a land-related interest in residential property that is transferred to a foreign purchaser.
2. Ms Sim does not dispute that:
   • she was a foreign purchaser at the time she acquired the Relevant Property because she was (and remains) a citizen of South Korea and had not yet become the holder of a permanent visa to live in Australia;[12]
   • the Relevant Property was (and remains) a residential property; or
   • the 'fee simple' transferred by the Vendor to her, and of which she remains the sole registered proprietor, is a land-related interest as defined in section 3(1).[13]
3. It follows that, absent any exemption, FPAD prima facie applied to the Transfer.

Section 69AJ of the Duties Act

1. Section 69AJ provides that:

[a] foreign purchaser is entitled to an exemption from additional duty chargeable under section 28A in respect of a dutiable transaction in which a land-related interest in residential property is transferred to the foreign purchaser if -

(a) the foreign purchaser is a foreign natural person who is the spouse or domestic partner of a natural person who is not a foreign natural person; and

(b) the land-related interest in residential property is transferred jointly to the foreign purchaser and the foreign purchaser's spouse or domestic partner; and

(c) subject to section 69AK, the foreign purchaser occupies the residential property as the foreign purchaser's principal place of residence for a continuous period of at least 12 months commencing within the 12 month period immediately after the foreign purchaser becomes entitled to possession of the residential property.

1. In her written submissions, Ms Sim contends that Mr Sam acquired an equitable interest in the Relevant Property given:[14]
   • he was the named purchaser under the original contract of sale (with Ms Sim later being nominated to take the transfer);
   • he funded most of the deposit and the cash payable on settlement;
   • the loan funding is secured 'under a joint mortgage' in his and Ms Sim's name;
   • the couple 'intended to live in the property as their family home ... with their child';[15] and
   • they 'intended that Mr Sam retain an equitable interest'.
2. The submissions refer to the decision of the High Court of Australia in Bosanac v Commissioner of Taxation which emphasised that, in identifying whether property is held on resulting trust for the person who provided the purchase price, it is important to analyse the objective facts to ascertain the actual intention of the parties (rather than relying on presumptions like the presumption of advancement, i.e. that a husband who provides the funds for the purchase of a property in his wife's name intends to make a gift to her).[16]
3. On the basis that:
   • Ms Sim was transferred the estate in fee simple, which is a land-related interest (under section 10(1)(a)(i)); and
   • Mr Sam acquired an equitable interest, which is also a land-related interest (under section 10(1)(ac)),

Ms Sim contends that 'the land-related interest in the [Relevant] Property was transferred jointly to [her] and Mr Sam' and therefore section 69AJ(1)(b) is satisfied.[17]

1. In her oral submissions, Ms Barker (counsel for Ms Sim) referred the Tribunal to the recent Victorian Court of Appeal decision in Moorabool and Central Highlands Power Alliance Incorporated v Minister for Energy and Resources ('Moorabool Decision'), which summarises the relevant principles of statutory construction in the following terms:[18]

The starting point in any exercise of statutory construction is the text of the provision. However, the text is to be considered in light of its context and purpose. Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act. Consideration of purpose is further reinforced by s 35(a) of the Interpretation of Legislation Act 1984, which in summary provides that a construction that would promote the purpose of the Act (whether or not that purpose is expressly stated) shall be preferred to a construction that would not promote that purpose or object.

Identification of the statutory purpose may appear from an express statement in the statute or by reference to, or inference from, its language. Discernment of purpose may be aided by reference to any relevant extrinsic materials, in particular those that identify the mischief to which it is directed. It is also permissible to have regard to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity. However, legislative history and extrinsic materials cannot displace the meaning of the statutory text. Finally, it is permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.

1. Picking up on the latter paragraph, Ms Barker referenced the then Treasurer's observations in the second reading speech for the Bill that:[19]

[it] introduces an exemption from the foreign purchaser additional duty for foreign purchasers that jointly purchase a principal place of residence with their spouse/domestic partner who is not considered a foreign natural person (e.g. is an Australian citizen). One of the objectives of the foreign purchaser additional duty provisions was to ensure a fair and equitable contribution is made to state revenue by foreign buyers who otherwise may not pay tax in Victoria. This exemption recognises that in some circumstances temporary residents, who are foreign purchasers and who jointly purchase a home with their Australian spouse/domestic partner, have been living and working in Victoria for a number of years, meaning that they have been making a contribution to the Victorian economy and are sharing in the tax burden. Importantly, for the exemption to apply, the property must be the principal place of residence of the foreign purchaser and their spouse or domestic partner.

1. Ms Barker submitted that, having regard to the mischief to which section 69AJ was addressed, it was appropriate to have regard to the equitable interest acquired by Mr Sam in assessing whether the Relevant Property was transferred to Ms Sim and Mr Sam jointly. She suggested that a narrow focus on the legal title would create an anomalous outcome in that an exemption from FPAD:
   • would apply where a residential property was transferred to a foreign purchaser (as to 99/100 parts) and their Australian spouse or partner (as to 1/100 parts); but
   • would not apply in a case, such as the present, where an Australian spouse or partner has a significant equitable interest (but no legal interest).

1. The Commissioner submits that the requirement in section 69AJ(b) is not satisfied because, noting the use of the definite article (i.e. 'the land-related interest'), it 'must refer to the same land-related interest described in the chapeau' (i.e. the introductory or opening words of the section) as that is 'the only interpretation that adheres to the statutory text of s 69AJ'.[20]
2. In this case, the 'subject "land-related interest" is the fee simple estate in the [Relevant] Property' which was 'the subject of the Transfer (and Reassessment)', of which Ms Sim was the 'sole transferee'.[21]
3. As already noted, the Commissioner contends that the 'issue of whether the [Relevant] Property is subject to a resulting trust for the benefit of Mr Sam ... is irrelevant' and, therefore, a matter on which he 'adopts a neutral stance'.[22] This is because, even if a resulting trust exists, based on the authorities,[23] any interest held by Mr Sam is 'impressed on the fee simple estate held by [Ms Sim]'.[24] Accordingly, '[e]ither way, the fee simple estate was not "transferred jointly" to [Ms Sim] and Mr Sam'.[25]
4. In oral submissions, Mr Healer (counsel for the Commissioner) summarised two key reasons why the assessment of FPAD should be confirmed:
   • First, the Tribunal should reject the applicant's contention that the land-related interest referred to in section 69AJ(b) can be 'any land-related interest within the definition of that term'. Rather, he suggested it is 'quite clear in the text' that it must be the land-related interest which is the 'subject of the dutiable transaction'.
   • Second, section 69AJ(b) requires that the relevant land-related interest be 'transferred jointly' to the foreign purchaser and their Australian spouse or partner. In this case, 'quite clearly there was no joint transfer' as the sole transferee was Ms Sim.
5. To the extent that Ms Sim seeks to rely on the reference to a 'joint purchase' (rather than joint transfer) in the second reading speech for the Bill (or explanatory memorandum to the Bill), Mr Healer submitted that, 'whatever may have been the intention of the legislature at a level of generality', the concept of a 'joint purchase' does not reflect the wording of the section itself which 'quite clearly and quite carefully uses concepts that are defined'. In this regard, Mr Healer pointed to the observations of Gordon J in Commonwealth of Australia v Yunupingu that '[a] purpose ascertained from history cannot override the text', rather '[t]he purpose must be evident in the text'.[26]

1. Contemporary authorities make it clear that, when engaging in statutory construction, the text of the provision is the starting point but, of course, the text must be considered in light of the context of the legislation as a whole and the purpose of the provision in question. As recognised in the Moorabool Decision, the statutory purpose may be expressly stated or able to be identified by inference from its language.
2. In this case, the purpose of section 69AJ is, self-evidently, to provide an exemption from the FPAD otherwise imposed under section 28A where the relevant requirements are satisfied.
3. This is not a case where resort to the extrinsic material is either necessary or particularly useful. In this regard, while the then Treasurer suggested that the exemption sought to recognise that a foreign person may have been 'living and working in Victoria for a number of years' and thereby 'making a contribution to the Victorian economy', neither of those matters are requirements that need to be satisfied. On the face of section 69AJ, the exemption may still be available:
   • even if a foreign person has just moved to Australia to live with their Australian spouse; and
   • whether or not the foreign person is working or has otherwise contributed to the Victorian economy.
4. Similarly, that the then Treasurer referenced the 'joint purchase' of a property does not displace the words actually used in the provision, which expressly require the relevant land-related interest to be 'transferred jointly' to the foreign purchaser and their Australian spouse or partner.
5. Further, both the purpose and context of the provision points to there being complete identity between the 'dutiable transaction' and 'land-related interest' that is thereby 'transferred' that:
   • prima facie gives rise to FPAD, i.e. as identified for the purposes of section 28A;
   • is referenced in the opening words of section 69AJ; and
   • needs to be 'transferred jointly' in order to satisfy section 69AJ(2).
6. The centrality of the concept of 'transfer', as opposed to other transactions by which an interest in land may be acquired, is also borne out by:
   • section 7(1)(a) of the Duties Act which identifies a 'transfer of dutiable property' as a dutiable transaction in and of itself; and
   • section 7(2) which addresses other transactions - including a declaration of trust or another transaction 'that results in a change in beneficial ownership of dutiable property' - with section 8 then applying to charge duty 'as if each such ... transaction were a transfer of dutiable property'.
7. In the present case, and for the reasons discussed at [12] to [14], the land-related interest, the transfer of which prima facie gives rise to FPAD, is the fee simple estate that was the subject of the Transfer.
8. The same land-related interest and the same dutiable transaction are the focus of section 69AJ.
9. The result of the Transfer was that the fee simple estate in the Relevant Property was transferred to Ms Sim. As Mr Sam was not a transferee with Ms Sim, the Transfer did not meet the requirement set out in section 69AJ(2).
10. Even if Ms Sim is correct, and Mr Sam holds an equitable interest under a purchase price resulting trust (or otherwise) - an issue which is itself debateable[27] - that equitable interest was not transferred to him (or treated as being transferred to him) by the Vendor or Ms Sim. Rather, any such interest would be enlivened in equity and impressed upon the legal estate held by Ms Sim.
11. For these reasons, the Reassessment is correct insofar as the imposition of FPAD is concerned.

[2] While Ms Sim and Mr Sam have had a traditional marriage ceremony in South Korea, they have not formally married under Australian law.

[7] Mr Sam has and continues to be an owner of various hospitality businesses, e.g. 8bit Footscray. At the time, some companies conducting those businesses had ceased trading or were deregistered: Annexure AB-1 to the Witness statement of Angelo Biviano dated 3 May 2024 (TB, Tab 30).

[10] Having regard to the usual considerations discussed in Conder Towers Pty Ltd v Commissioner of State Revenue [2012] VSC 107 [33].

[11] See, for example, Marchio v Commissioner of State Revenue [2024] VCAT 257 (in relation to interest). The Commissioner's power to remit penalty tax and interest is found in TA Act, ss 35 and 28 (respectively).

[12] See definition of 'foreign resident' and 'foreign natural person' (Duties Act, s 3(1)) and Shaikh and Anderson v Commissioner of State Revenue [2022] VCAT 554 [20], in which the Tribunal determined that a Partner Visa is not a permanent visa.

[13] At the hearing, Ms Barker (counsel for Ms Sim) noted that she had some instructions to dispute this aspect but appropriately conceded it was not possible to do so given the issue had never been raised before and Ms Sim would require leave to do so.

[15] Referencing the witness statement of Ms Sim dated 9 May 2024 ('Sim WS') [11] and witness statement of Mr Sam dated 9 May 2024 ('Sam WS') [30].

[16] [2022] HCA 34.

[18] [2024] VSCA 201 [82]-[83] (citations omitted and emphasis added).

[19] Hansard (Legislative Assembly), 8 May 2018, 393 (the Hon T Pallas) (emphasis added).

[20] Respondent's Legal Contentions ('RLC') [36].

[23] DKLR Holdings (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 19 CLR 431, 474 (Brennan J) and Commissioner of State Revenue (WA) v Rojoda Pty Ltd [2020] HCA 7; (2020) 268 CLR 281 [44] (Bell, Keane, Nettle and Edelman JJ).

[26] [2025] HCA 6 [217].

[27] If Mr Sam held such an interest, it would seem to run counter to Mr Biviano's purpose (adopted by Mr Sam and Ms Sim in accepting his recommendation) that Mr Sam's business interests (particularly the liabilities associated with the relevant businesses) be separated from any personal assets (in this case, the family home).