SN Casey Pty Ltd as trustee for Casey Family Trust v Chief Commissioner of State Revenue [2026] NSWCATAD 105;

1. Where tax has been assessed, s 86 of the Administration Act, allows rights of objection to a taxpayer dissatisfied with an assessment, including an assessment of the kind made in this matter. This is an internal review process under which the Chief Commissioner of State Revenue, the Respondent in these proceedings, must consider and determine the objection (s 91 of the Administration Act).
2. A taxpayer who is dissatisfied with the decision made upon the Respondent's determination of an objection, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") of the decision of the Chief Commissioner of State Revenue the subject of the objection.
3. These circumstances have arisen in the present matter as set out in the background above, so bringing the matter within the jurisdiction of the Tribunal.
4. The onus of proving their case lies with the Applicant (s 100(3) of the Administration Act).
5. The Tribunal, dealing with the taxpayer's application, may do one or more of the following under s 101 of the Administration Act:

"(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit."

1. The questions for determination are as follows:

(1) whether the Applicant was liable for the surcharge land tax assessed?

(2) If surcharge land tax was assessable, whether the Tribunal has jurisdiction to relieve the Applicant from taxation on the grounds of unfairness?

(3) Whether there has been an assessment of interest and if so, whether the Tribunal had jurisdiction in respect of the assessment of interest?

(4) Whether the Tribunal has jurisdiction to review a decision to make or not make an "act of grace" payment?

1. The Land Tax Management Act 1956 (NSW) charges land tax on the taxable value of all land situated in New South Wales which is owned by taxpayers, other than land which is exempt from taxation under that Act (s 7).
2. Surcharge land tax is also chargeable. It is charged under s 5A of the LTA. It is charged on certain land owned by a "foreign person". At the times relevant to the assessment under review, s 5A provided as follows:

"5A Levy of surcharge land tax on residential land owned by foreign persons - 2017 and subsequent land tax years

(1) Land tax is payable under this section in respect of residential land owned by a foreign person (surcharge land tax).

(2) In respect of the taxable value of all the residential land owned by the foreign person at midnight on 31 December in any year (commencing with 2016), surcharge land tax is to be charged, levied, collected and paid under the provisions of the Principal Act and in the manner prescribed under that Act for the period of 12 months commencing on 1 January in the next succeeding year at the rate of -

(a) in the case of all residential land owned by the foreign person at midnight on 31 December 2016 - 0.75% of that taxable value as assessed under the Principal Act, and

(b) in the case of all residential land owned by the foreign person at midnight on 31 December in the years 2017-2021 - 2% of that taxable value as assessed under the Principal Act, and

(c) in the case of all residential land owned by the foreign person at midnight on 31 December in any other year, commencing with 2022 - 4% of that taxable value as assessed under the Principal Act.

(3) Surcharge land tax is payable in addition to any land tax payable in respect of the residential land under the other provisions of this Act, and is so payable even if no land tax is payable under those other provisions".

1. It is not in dispute that the land the subject of the assessments in issue was "residential land" for the purposes of the LTA.
2. For a trustee of a discretionary trust to fall outside the reach of the statutory definition of a "foreign person", s 5D requires that the trust prevent "foreign persons" from being a beneficiary in the way set out in that section. If the trust does not do this, the trustee will be taken to be a "foreign person" in that capacity. Section 5D says:

"5D Surcharge land tax - discretionary trusts

(1) The trustee of a discretionary trust is taken to be a foreign person in that capacity for the purposes of section 5A if the trust does not prevent a foreign person from being a beneficiary of the trust.

(2) If a discretionary trust prevents a foreign person from being a beneficiary of the trust, the trustee is not in that capacity a foreign person for the purposes of section 5A.

(3) A discretionary trust is considered to prevent a foreign person from being a beneficiary of the trust if (and only if) both of the following requirements are satisfied -

(a) no potential beneficiary of the trust is a foreign person (the no foreign beneficiary requirement),

(b) the terms of the trust are not capable of amendment in a manner that would result in there being a potential beneficiary of the trust who is a foreign person (the no amendment requirement).

Note.

Under the transitional arrangements for this section in Schedule 2 to the Principal Act, the no amendment requirement does not apply to a trust that satisfies the no foreign beneficiary requirement immediately before the commencement of this section.

(4) A person is a potential beneficiary of a discretionary trust if the exercise or failure to exercise a discretion under the terms of the trust can result in any property of the trust being distributed to or applied for the benefit of the person.

Note.

A potential beneficiary is not limited to persons named in the trust instrument and extends to the members of any class of persons to whom or for whose benefit trust property can be distributed or applied pursuant to the discretions of the trust.

(5) For the removal of doubt, a person is not a potential beneficiary of a discretionary trust if the terms of the trust prevent any property of the trust from being distributed to or applied for the benefit of the person.

(6) In this section, property includes money, and a reference to the distribution or application of property includes a reference to the payment of money".

1. The term "foreign person" is defined in s 2A of the LTA to have the same meaning as that set out in Chapter 2A of the Duties Act 1997 (NSW) ("Duties Act"). Section 104J of the Duties Act in Chapter 2A says:

"foreign person means a person who is a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth, as modified by this section.

foreign trustee means a person who is a foreign person because of the person's capacity as the trustee of a trust".

1. Under the Foreign Acquisitions and Takeovers Act 1975 (Cth), a "foreign person" is defined through the combined operation of ss 4, 5 and 18 to include various persons, including certain trustees. However, it is s 5D of the LTA that determines whether or not the Applicant in its capacity as trustee is a "foreign person".
2. There was no dispute that the trust of which the Applicant is trustee was a "discretionary trust" at all relevant times. At the times relevant to the assessments, the deed governing the Casey Family Trust did not contain the provisions required by s 5D(3) to prevent a foreign person from being a beneficiary. As a consequence, I find that the Applicant was taken to be a "foreign person" at those times by reason of s 5D.
3. There was no dispute that until May 2025, the trust deed had not been amended to satisfy the requirements of s 5D(3). The consequence is that the Applicant was until that date a "foreign person" and liable to surcharge land tax as such. To this extent, the assessments of surcharge land tax must stand.

1. The Applicant is aggrieved by the assessments under review. They say that the assessments are unfair. This is because the assessments were the result of a change of law they did not know about and had limited resources to track and comply with such changes. They also said that the unexpected tax liability left them in a "dire financial position". They also said that they amended the relevant trust deed in the required manner when they became aware of the change of law. One of the appointors of the Casey Family Trust also gave evidence of her poor health and the impact of the assessments on her health.
2. Questions of fairness of the outcomes under a taxation law were considered by the High Court in Commissioner of Taxation v Ryan (2001) 201 CLR 109. The High Court said:

"But the question for decision is what are the circumstances in which an amended assessment may lawfully be issued? That question is not answered by asserting the existence of any "policy" or "general intention" unless that policy or intention is to be found reflected in the provisions of the Act. Appeals to general notions of "fairness" or "justice" do no more than attempt to mask the absence of any foundation in the legislation for the conclusion which is asserted."

1. The Tribunal has applied this principle in numerous cases, confirming that there is no discretion to relieve a taxpayer of a tax liability on grounds of unfairness (see Griglio v Chief Commissioner of State Revenue [2024] NSWCATAD 212, at [40]-[41]).
2. The Tribunal hears the Applicant on what they say about fairness and accepts their evidence as to matters of hardship. However, in the absence of jurisdiction to allow them relief on the grounds of unfairness, the Tribunal has no power to set aside the assessments of surcharge land tax under review on the basis of unfairness.

1. The Respondent can assess interest at both the market rate and the premium rate (ss 21 and 22 of the Administration Act).
2. The Respondent, however, has certain powers to remit interest (s 25 of the Administration Act). That power is discretionary. The Chief Commissioner may issue guidelines setting out how interest must be remitted. If guidelines are issued, interest must be remitted only in accordance with the guidelines.
3. Guidelines were issued on 1 July 2025. The Respondent set out in Practice Note CPN 024 his earlier guidelines as to how he will exercise his powers of remission.
4. The Respondent said in his oral submissions that the amounts of interest shown on the notices of assessment in evidence should not be regarded as having been "assessed". I understood the Respondent's submission to be that what interest should be assessed (if any) remained under consideration and had not, as a result, yet been finally determined.
5. The Respondent's submission raises questions as to what an "assessment" is. The Administration Act defines "assessment". Section 3 says:

""assessment" means an assessment made by the Chief Commissioner under Part 3 of the tax liability of a person under a taxation law, and includes--

(a) a reassessment and a compromise assessment under Part 3, and

(b) an assessment by the Supreme Court or the Civil and Administrative Tribunal on an application for a review".

1. Part 3 of the Administration Act sets out the Respondent's general powers to make an assessment and also makes provision for particular kinds of assessments. The general power to make an assessment is allowed under s 8 which says that the Respondent "may make an assessment of the tax liability of a taxpayer".
2. The definition of "assessment" in s 4 together with Part 3 of the Administration Act requires consideration of what an "assessment" is in the general sense of the word. This is because s 4 relevantly defines an "assessment" to mean an "assessment", then going on to include within the definition particular kinds of assessments. The context supplied by the Administration Act is also relevant to the determination of what an "assessment" is.
3. Section 14 allows the Respondent to issue a "notice of assessment (showing the amount of the assessment)". Section 15 goes on to say that a notice of assessment of a taxpayer's tax liability issued following a tax default by the taxpayer "must specify any interest and penalty tax payable by the taxpayer under Part 5 or section 95 in respect of the default".
4. Section 119 also bears relevance. It says:

"Production of a notice of assessment, or of a document signed by the Chief Commissioner purporting to be a copy of a notice of assessment, is -

(a) conclusive evidence of the due making of the assessment, and

(b) conclusive evidence that the amount and all particulars of the assessment are correct, except in objection or review proceedings when it is prima facie evidence only".

1. Section 119, in referring to the due "making" of an assessment, in my opinion contemplates a process. This is a process under which the Respondent considers what is before him relevant to a taxpayer's potential liability for tax, and having done so, determines the taxpayer's liability. This is consistent with the views of Courts within the Federal jurisdiction of what an assessment entails, namely a process under which a taxpayer's liability for tax is ascertained (Batagol v Federal Commissioner of Taxation [1963] HCA 51; (1963) 109 CLR 243, per Kitto J, at [5]; Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32, at [49]).
2. The evidence included documents each describing itself as a "Land Tax Assessment Notice". Each notice said that the "Land Tax in this notice has been assessed" for the relevant land tax year. Each also specified amounts of interest. The Respondent accepted that the total shown as being payable included that interest. To this extent, these documents comply with the requirements of s 15 of the Administration Act which requires specification of the relevant interest payable.
3. In the absence of any evidence of matters vitiating the two notices, such as non-compliance by the Respondent with any statutory requirements, I find that the documents each described as a "Land Tax Assessment Notice" evidence an assessment of interest having been made. They can be accepted in these proceedings as conclusive evidence of the due making of the assessments and prima facie evidence of the correctness of the amounts and all particulars, by reason of s 119.
4. I have found that the notices of the assessments evidence that assessments of interest have been made. What follows is that whether or not such interest should have been assessed is a matter within the jurisdiction of the Tribunal. This is because such assessments are decisions concerning "tax" subject to review by the Tribunal, for the reasons set out at [16] - [18] above, interest relevantly falling within the definition of "tax" in s 3 of the Administration Act.
5. However, where an amount equal to the interest assessed has been the subject of an "act of grace payment", the effect of that payment is that the Applicant effectively has been compensated for the interest assessed. The Applicant did not dispute that they should be so compensated. In these circumstances, the parties agreed that there was no need for the Tribunal to consider the correct amount of interest (if any) assessable.
6. Interest, however, continues to accumulate and the amount payable increases the longer the amounts of surcharge land tax assessed remain unpaid. Consideration of whether such interest is assessable is outside the jurisdiction of the Tribunal in these proceedings, not having been assessed and not the subject of an objection and application for administrative review.
7. The Respondent, however, said at the hearing that if the Applicant made an application for remission of any such interest that has been accumulating, he would duly consider the request for remission. It is for the Applicant and not the Tribunal to make such a request.

1. The Applicant sought a decision from the Tribunal extending the "act of grace" payment made by the Respondent beyond the amount of interest assessed to include the amount of the surcharge land tax assessed.
2. An "act of grace" payment can be made under s 5.7 of the Government Sector Finance Act 2018 (NSW). It says:

"5.7 Act of grace payments

(1) A Minister may, if satisfied that there are special circumstances or circumstances of a kind prescribed by the regulations, authorise an amount to be paid to a person on behalf of the State (an act of grace payment) under this section even though the payment is not -

(a) otherwise authorised by or under law, or

(b) required to meet an obligation.

(2) An act of grace payment is subject to any terms and conditions that the Minister may decide to impose.

(3) If a term or condition of an act of grace payment is contravened by the recipient of the payment, the payment may be recovered from the recipient by the Crown in a court of competent jurisdiction as a debt due to the Crown.

(3A) If a term or condition of a nominated act of grace payment is contravened by the recipient of the payment, the payment may be recovered from the recipient by the Chief Commissioner of State Revenue under the Taxation Administration Act 1996 as if the payment is an amount of unpaid tax under that Act.

(3B) The Taxation Administration Act 1996, Part 8 and Part 9, Division 2 apply in relation to a person to whom a nominated act of grace payment is made, with the following modifications -

(a) a reference to a taxpayer must be read as a reference to a person to whom a nominated act of grace payment is made,

(b) a reference to a tax liability must be read as a reference to compliance with the terms and conditions of a nominated act of grace payment,

(c) a reference to a taxation law, including in relation to the functions of an authorised officer or tax officer, must be read as the terms and conditions of a nominated act of grace payment.

(4) A Minister may delegate the function of making act of grace payments (including in relation to the imposition of terms and conditions for payments) only to -

(a) an accountable authority for a GSF agency, or

(b) any person employed in or by a Public Service agency if the agency is responsible to the Minister under an administrative arrangements order made for the purposes of section 50C of the Constitution Act 1902, or

(c) any other entity (or an entity of a kind) prescribed by the regulations.

(5) Act of grace payments are to be made using money that is otherwise lawfully available.

(6) This section does not limit any power, privilege or right conferred on a Minister or any other person by another law to make payments as an act of grace (whether or not for or on behalf of the Crown or the State).

(7) In this section -

nominated act of grace payment means an act of grace payment nominated by the Chief Commissioner of State Revenue by notice published in the Gazette".

1. Rights of review of a taxpayer arise under the Administration Act. Those rights of review include rights to object to an assessment that is shown on a notice of assessment served on a taxpayer or any other relevant decision of the Respondent under a "taxation law" (s 86 of the Administration Act). Where a taxpayer is dissatisfied with the Respondent's determination of an objection, they may apply to the Tribunal for administrative review under the ADR Act of the decision of the Chief Commissioner that has been the subject of an objection (s 96 of the Administration Act).
2. What are "taxation laws" is defined in s 3 and 4 of the Administration Act. That definition does not include the Government Sector Finance Act 2018 (NSW). The consequence is that rights of review of a taxpayer under the Administration Act as delineated under s 86 and 96 do not allow the Tribunal jurisdiction to review a decision of the Minister under s 5.7 of the Government Sector Finance Act 2018 (NSW) to authorise or not authorise an "act of grace" payment.
3. Section 5.7(3B) of the Government Sector Finance Act 2018 (NSW) brings to bear certain provisions of the Administration Act dealing with particular matters going to record keeping, offences, investigation, collection of information and secrecy provisions. These are not provisions that confer upon a taxpayer any right of review by the Tribunal over decisions to make or not make "act of grace" payments.
4. The submissions of the parties did not identify any other basis on which the Tribunal can review a decision to make or not make an "act of grace" payment.
5. In these circumstances, I find that the Tribunal does not have jurisdiction under the Administration Act to review any decision not to make an "act of grace" payment under s 5.7 of the Government Sector Finance Act 2018 (NSW).

1. The Applicant complained that they had requested a copy of a document identified as "MISC TPI 1 V3" they said dealt with "act of grace" payments. They said that they needed to see the document to understand whether or not they satisfied the criteria to receive an "act of grace" payment for the surcharge land tax assessed.
2. The Respondent said that because a decision to make or not make an "act of grace" payment was not reviewable by the Tribunal, the document that the Applicant sought was not relevant and did not have to be produced. I am in agreement with the Respondent.
3. The Respondent also said that the document in issue was an internal policy document and did not have to be released. The Respondent is correct to the extent that these proceedings do not concern an application to obtain access to the document the Applicant seeks in exercise of any rights they may have under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act").
4. In the absence of evidence of an access application under that Act and a reviewable decision determining such an access application, I do not have jurisdiction in the present proceedings to determine whether or not the Respondent should give to the Applicant the document they seek. Additionally, I do not express any opinion as to whether or not the Applicant has a right to access the document they seek under the GIPA Act, in the absence of a reviewable decision under that Act and submissions by the parties.

(1) The assessments of surcharge land tax under review must stand for the reasons set out at [28] and [29] above.

(2) The Tribunal has no jurisdiction to review the assessments on the grounds of unfairness for the reasons set out at [32] - [33] above.

(3) Assessments of interest have been made for the reasons set out at [45] above and review of these assessments are within the jurisdiction of the Tribunal for the reasons set out at [16] - [18] above. I am not, however, called upon to decide whether or not the interest assessed was correctly assessable, the amount of the interest being the subject of an "act of grace" payment.

(4) The Tribunal does not have jurisdiction over decisions of the Minister to make or not make "act of grace" payments for the reasons set out at [53] - [56] above.

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.