Su v Chief Commissioner of State Revenue [2026] NSWCATAD 55;

1. Where tax has been assessed, s 86 of the Taxation Administration Act 1996 (NSW) (Administration Act), allows rights of objection to a taxpayer dissatisfied with an assessment. 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 Respondent's determination of an objection, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Ac") 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 his 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 hearing of the matter took place on 2 February 2026. Following the hearing of the matter, the Tribunal made orders permitting each party to make further written submissions on questions concerning the application of duty to declarations of trust. Both parties made further written submissions.

1. The Duties Act provides for the charging of duty in s 8. Section 8 says:

"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,

..........

(2) Such a transfer or transaction is a dutiable transaction for the purposes of this Act.

...........

(3) In this Chapter -

......

declaration of trust means any declaration (other than by a will or testamentary instrument) that any identified property vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the property, or the person entitled to appoint the property, may not have joined in or assented to the declaration."

1. Section 8AA takes certain statements to be declarations of trust over dutiable property. It says:

"8AA Imposition of duty on acknowledgment of trust

(1) This Chapter also charges duty on the making of a statement that -

(a) purports to be a declaration of trust over dutiable property, but

(b) merely has the effect of acknowledging that identified property vested, or to be vested, in the person making the statement is already held, or to be held, in trust for a person or purpose mentioned in the statement.

(a) the making of the statement is taken to be a declaration of trust over dutiable property and, accordingly, is a dutiable transaction, and

(b) the property vested, or to be vested, in the person making the statement is taken to be the property transferred, and

(c) the person making the statement is taken to be the transferee, and

(d) the transfer is taken to occur when the statement is made".

1. Section 11 of the Duties Act defines "dutiable property" to include "land in New South Wales". There was no dispute that the property the subject of the statutory declaration, deed and transfer in this matter was "dutiable property", being land in New South Wales.
2. Section 18 of the Duties Act provides certain relief from double duty. It says:

"18 No double duty

(1) If a dutiable transaction is effected by more than one instrument, one instrument is to be stamped with the duty payable on the dutiable transaction and each other instrument is chargeable with duty of $100.

Note -

(2) The duty chargeable in respect of a transfer of dutiable property made in conformity with an agreement for the sale or transfer of the dutiable property is $20 if the duty chargeable in respect of the agreement has been paid.

......

......

(4) The duty chargeable on a transfer to a trustee of dutiable property subject to a declaration of trust is $20 if ad valorem duty under this Chapter has been paid on the declaration of trust in respect of the same dutiable property.

......

(6) The duty chargeable on a declaration of trust that declares the same trusts as those upon and subject to which the same dutiable property was transferred to the person declaring the trust is $20 if ad valorem duty under this Chapter has been paid on the transfer.

(6A) The duty chargeable on a declaration of trust is $100 if the Chief Commissioner is satisfied that -

(a) the declaration of trust supersedes another declaration of trust in respect of which duty under this Chapter has been paid and declares the same trusts as were declared under the superseded declaration of trust, and

(b) the beneficiary under the declaration of trust is the same as under the superseded declaration of trust, and

(c) the dutiable property subject to the declaration of trust -

(i) is wholly or substantially the same as the property that was the subject of the superseded declaration of trust at the time of the declaration of the superseded declaration of trust, or

(ii) represents the proceeds of re-investment of property that was the subject of the superseded declaration of trust at the time of the declaration of the superseded declaration of trust, or

(iii) is property to which both subparagraphs (i) and (ii) apply."

1. The assessment under review is the assessment of ad valorem duty on the statutory declaration. Determination of the Applicant's application for administrative review, however, raises a number of additional questions for determination. These are questions as to what duty was payable in respect of matters other than the statutory declaration, including ad valorem duty on the deed. These matters arise because a question before the Tribunal is whether the payment of that duty meant that further ad valorem duty did not have to be paid on the statutory declaration. The questions for consideration, in these circumstances, are the following:

(1) Was the deed dutiable as an agreement for sale or transfer?

(2) Was the transfer subject to fixed duty as a transfer in conformity with such agreement?

(3) Was the statutory declaration dutiable as a 'declaration of trust' within the meaning of s 8(3) of the Duties Act?

(4) Was the statutory declaration dutiable as an acknowledgement of trust within the meaning of s 8AA of the Duties Act?

(5) Whether there was a dutiable declaration of trust within the deed and if so, how much duty was payable?

1. The deed was assessed to ad valorem duty as an agreement for the sale or transfer of dutiable property within the meaning of s 8(1)(b)(i) of the Duties Act. I agree that the deed was dutiable as an agreement for sale or transfer of dutiable property, containing as it did a promise to transfer the relevant land from the Applicant's parents to the Applicant for an agreed amount of money. The promise was expressed as a promise that the vendors "will transfer all their title and interest" in the property in consideration of a given amount of money. As such, the deed did not itself effect a transfer of the property but contained the promise that this would be done.
2. The Applicant says that the deed is subject to duty of $20 under s 18(4) of the Duties Act. That provision says:

"The duty chargeable on a transfer to a trustee of dutiable property subject to a declaration of trust is $20 if ad valorem duty under this Chapter has been paid on the declaration of trust in respect of the same dutiable property".

1. I do not agree that the deed can be stamped under s 18(4). This is a provision that allows "transfers" to be stamped with $20. Even if the statutory declaration had been stamped with ad valorem duty as a declaration of trust, the deed did not effect a "transfer". The deed effects a different dutiable transaction, namely an "agreement for sale or transfer" of dutiable property. It was assessed with ad valorem duty as such by reason of s 8(1)(b)(i) of the Duties Act. That assessment was correctly made for the reasons set out at [25] above.

1. There was no dispute that the transfer was subject to fixed duty by reason of s 18(2) of the Duties Act, as a transfer in conformity with the agreement set out in the deed.
2. I agree that the transfer was correctly assessed with fixed duty as a transfer in conformity with the agreement contained in the deed. It transferred the property identified in the agreement from the vendors to the purchaser named in the agreement.

1. The next question is whether or not the statutory declaration in evidence is an instrument that is capable of being brought to duty under the provisions of the Duties Act applying to "dutiable transactions". Determination of this question requires consideration, first of all, of what the statutory declaration does.
2. The provisions governing statutory declarations in NSW are set out in Part 4 of the Oaths Act 1900 (NSW). That Act sets out various matters dealing with statutory declarations including the form of a declaration (s 24) and the consequences of "wilfully and corruptly" making and subscribing a declaration knowing it to be "untrue in any material particular". The consequence is the commission of an indictable offence (s 25 and s 25A).
3. A self-evident purpose of a statutory declaration is to allow for the giving of evidence of the matters being declared, with consequences that follow from relevantly making a declaration known to be untrue in any material particular. A preliminary question is whether, a statutory declaration, as a document having a purpose of setting out evidence, can be subject to duty as a "dutiable transaction".
4. The statutory declaration sets out the Applicant's intention to purchase a property in NSW from his parents "for the benefit of my children". It expressly uses the language of trust. It further says that the Applicant was purchasing the property as "Trustee for my children", who were identified by name.
5. A purpose of the statutory declaration, as evidenced by what it expressly says and does, was to set out the terms of the trust declared. There was no other instrument of trust or other evidence of the relevant trust predating the statutory declaration. The only record of the trust, at the time the statutory declaration was made, was the statutory declaration itself.
6. Even if the statutory declaration also served the purpose of recording evidence governed by the provisions of the Oaths Act 1900, it also brought into existence by declaration, the trust whose terms it set out. It did so in writing. As such, it went beyond merely serving as evidence. It gave effect to a new subject matter recognised in equity once trust property had been acquired, namely the trust whose terms it set out.
7. I do not think the use of a statutory declaration as the particular means by which the terms of a trust are to be established, prevents that statutory declaration from being recognised as an instrument effecting a dutiable transaction, if that indeed is what it does. The question is whether the statutory declaration did effect a dutiable transaction.
8. It is well accepted that duty under s 8 of the Duties Act is generally "imposed on transactions, rather than instruments" (Chief Commissioner of State Revenue v Benidorm Pty Ltd [2020] NSWCA 285, at [53]). Section 8 of the Duties Act sets out the kinds of "dutiable transaction" that are brought to duty. Section 8(1)(b)(ii) of the Duties Act brings within the duty net a "declaration of trust".
9. The Respondent said that the statutory declaration contained a dutiable "declaration of trust". The Applicant said it did not because the statutory declaration created no legal obligations.
10. What is a "declaration of trust" for the purposes of the Duties Act is defined in s 8(3). It relevantly includes any declaration (other than by a will or testamentary instrument) that any "identified property vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration."
11. There was no dispute that the statutory declaration in issue identified property, namely the land described in it (and subsequently described in the deed and the transfer). The language of the statutory declaration also set out the requisite intention for the property to be "held in trust" within the meaning of s 8(3) of the Duties Act. This was also not disputed. The property had not been vested in the Applicant as at the date of the statutory declaration. What was disputed was whether or not the property was "to be vested" in the Applicant within the meaning of s 8(3).
12. The Applicant said the property could not be said to answer the description of property "to be vested" in the absence of any legal obligation on the part of the Applicant to hold the property on trust and a corresponding right on the part of beneficiaries to enforce a trust.
13. The Respondent, on the other hand, said that the statutory declaration did not have to give rise to any such rights or obligations in order to come within s 8(3) of the Duties Act. The Respondent said that mere future anticipation of such a vesting was sufficient.
14. Dixon J said in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 at [6] that the words "any identified property ... to be vested" found in provisions of the Stamp Duties Act 1920 (NSW) (comparable to the words in s 8(3) of the Duties Act), were to be directed to a "declaration of trust in advance of the vesting in the person who declares it of property which it is intended to make the subject of the trust." His Honour emphasised the intention of the maker of the declaration.
15. Gibbs CJ in DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14, regarded the words "to be vested" in the relevant provisions of the Stamp Duties Act 1920 (NSW)as importing mere futurity. His Honour said (at [6]):

"The words 'shall be vested' in this context indicate mere futurity, although the very fact that a declaration of trust is made in respect of property not yet vested suggests that there exists an expectation, if not an intention, that it will become vested."

"In my opinion, no notion of intention to vest is imported into par. (2), and no inquiry into the actual intention of any person is called for."

1. Mason J (with whom Stephen J agreed) was, however, of the opinion that the words "to be vested" should be read as "intended to be vested" and stated that it is the intention of the declarant, "and perhaps that of the person directing the declaration, that is the relevant intention" (at [29]).
2. Aickin J took a narrower view and said (at [19] - [23]):

"The phrase speaks of property which is or 'shall' be held in trust, not which may be held in trust. Such an event can only be one which either must happen as a matter of law in the circumstances existing, or one which some person is under some obligation to bring about or which by statute must occur ... The words of the provision require certainty of vesting, not possibility, probability or intention".

1. The interpretation favoured by Gibbs CJ and Brennan J was subsequently accepted by Mason CJ in Commissioner of Stamp Duties (NSW) v Pendal Nominees Pty Ltd [1989] HCA 19. Mason CJ said, at [31]:

"Although there is a distinct difference between the views expressed by Gibbs CJ and Brennan J on the one hand and Stephen J and myself on the other hand, I doubt that the difference could be of substantial practical significance. As Gibbs CJ pointed out, the fact of the making of the declaration of trust will itself often suffice to demonstrate the presence of an expectation or intention. However, further reflection on the question has led me to the conclusion that the interpretation of par. (2)(a) favoured by Gibbs CJ and Brennan J should now be adopted. The liability of an instrument to duty should not call for an inquiry into the intention of the maker of the instrument. The fact that the maker takes the trouble to execute the instrument is enough to bring par. (2)(a) into operation. Action intention or expectation is not a criterion of operation of the subparagraph."

1. The provisions considered by the High Court were those of the former Stamp Duties Act 1920 (NSW) and not those of the Duties Act under consideration in these proceedings. However, both provisions are in materially the same terms. It is well accepted that "the earlier decisions on the materially identically worded provisions should be applied" (Chief Commissioner of State Revenue v Benidorm Pty Ltd [2020] NSWCA 285, at [93]).
2. The particular words used in the definition of "declaration of trust" in s 8(3) of the Duties Act fell for consideration by the Court of Appeal in Chief Commissioner of State Revenue v Platinum Investment Management Ltd [2011] NSWCA 48 (Platinum Investment). Campbell JA said, at [9]:

"Because of the words 'vested or to be vested' in that definition, the definition could be satisfied if the property in relation to which the trust is declared is not then vested in the person making the declaration, provided that the property in question is to be vested, at some stage in the future, in the person making the declaration. Because of the words 'is or is to be held in trust' in the definition, it is not necessary for a declaration to be to the effect that at the time the declaration is made the property the subject of it is held in trust. Rather, it suffices if the declaration is that the property is, at some stage in the future, to be held in trust. There is no occasion to construe these words in the definition in any different way to that in which the High Court construed identical words in the 1920 Act in DKLR Holding Co (No 2) Pty Ltd v The Commissioner of Stamp Duties (New South Wales) [1982] HCA 14; (1982) 149 CLR 431 and Commissioner of Stamp Duties (New South Wales) v Pendal Nominees Proprietary Limited [1989] HCA 19; (1989) 167 CLR 1, as explained by Handley AJA at [77]-[83]."

"In Pendal's case [1989] HCA 19, 167 CLR 1 Mason CJ and Brennan J accepted the views of Gibbs CJ and Brennan J in DKLR Holding that the words "to be vested" in para (2) "imported mere futurity", and liability to duty "should not call for an inquiry into the intention of the maker of the instrument" (per Mason CJ at p 15, per Brennan J at p 19)".

1. The weight of authority is clear in not requiring there to be a legal obligation to hold property on trust, for a dutiable "declaration of trust" to come into existence. It follows that a legal obligation upon the Applicant to acquire and hold the property on trust for his children at the time he made the statutory declaration is not required to bring into existence a "declaration of trust" within the meaning of s 8(3) of the Duties Act. Nor is it necessary to look into the intention of the maker of the instrument. What is required is for the property, at some stage in the future, to be held in trust, in other words, mere "futurity".
2. The Applicant, in submitting that the statutory declaration in question had no legal effect and as such, could not be a "declaration of trust" within the meaning of s 8(3) of the Duties Act, relied on the decision of the Court of Appeal in Chief Commissioner of State Revenue v Benidorm Pty Ltd [2020] NSWCA 285 (Benidorm).
3. Benidorm concerned the recital of terms of an existing trust in a later instrument. The Court of Appeal (Leeming JA) said, at [82]:

" .. s 8(1) contains powerful indications that the basis of imposing duties under the statute is transactional, involving an alteration in legal or equitable rights, rather than turning on the existence of a particular piece of paper. Hence, the central definition of "dutiable transaction" in s 8(2), which extends to transfers of dutiable property and any of "the following transactions" in s 8(1)(b). Each of the listed transactions in s 8(1)(b) denotes, as a matter of ordinary legal terminology, something which alters the legal or equitable rights or obligations concerning property. That, after all, is the natural meaning of "transaction" in this context."

1. The Court went on to find that if no new equitable rights were created, then the relevant deeds would not have created a dutiable transaction (at [108]).
2. I think that the Applicant's submission is misconceived. The matter at hand is distinguishable from the circumstances of Benidorm. In Benidorm, there was a pre-existing trust followed by a new instrument recording terms of that trust that created no new rights. The Court of Appeal said that in these circumstances, no dutiable transaction was created.
3. However, unlike in Benidorm, there was no evidence of a pre-existing trust in the present case before the making of the statutory declaration in evidence. It was the statutory declaration itself that first established the terms of the trust to attach to the property, once the Applicant acquired the property. Once acquired, it had effect to establish the terms of the trust that it set out, including providing for particular trustee powers. To say that the statutory declaration was without legal effect is, in these circumstances, misconceived.
4. That the trust property itself was not in existence at the time the declaration was made is also not a basis for saying that it could not effect a dutiable transaction. The application of s 8(3) of the Duties Act to a declaration over property "to be vested" is intended to bring within the duty net such a declaration as a "dutiable transaction". For the definition of "declaration of trust" in s 8(3) to apply, it is not necessary for a declaration to be to the effect that at the time the declaration is made the property the subject of it is held in trust (per Campbell JA in Platinum Investment at [9]).
5. It may appear that this construction of s 8(3) has the potential to create injustice, for example in circumstances where a declaration of trust within the meaning of s 8(3) is executed in anticipation of the acquisition of property, but the acquisition does not proceed. These are not circumstances that take the relevant declaration outside the expressed terms set out in s 8(3) so that a liability to ad valorem duty may remain, regardless of the acquisition not proceeding. I observe in passing that these are circumstances that may give rise to a claim for relief under s 295 of the Duties Act for failed instruments. However, I do not need to decide the matter, as circumstances to which s 295 apply have not arisen in this matter.
6. For the reasons set out above, the Respondent's assessment of ad valorem duty on the statutory declaration must stand.
7. I do not think that s 18(6) of the Duties Act can apply to allow the statutory declaration to be stamped with fixed duty, for the reasons set out at [68]-[71] below.

1. For the purpose of charging duty, the making of a statement of a kind described in s 8AA(1) of the Duties Act is taken to be a declaration of trust over dutiable property and, accordingly, is a dutiable transaction (s 8AA(2)).
2. The Applicant says that s 8AA of the Duties Act applies to the statutory declaration. What follows in the Applicant's submission is that the statutory declaration is deemed to be a declaration of trust, the Applicant is taken to be the transferee and that the transfer is taken to occur when the statutory declaration was made.
3. The Applicant goes on to say that if the "transfer" deemed to have occurred in these circumstances is stamped, no further ad valorem duty should be payable.
4. I am unable to agree with the Applicant's submission that s 8AA can apply to the statutory declaration. Section 8AA applies where a statement is made that "purports to be a declaration of trust over dutiable property". I do not think that these words can be intended to capture something that is already a "declaration of trust" within the meaning of s 8(3) of the Duties Act. The reach of the words of s 8AA, in my opinion, extends to something that is not a "declaration of trust" as defined but "purports" to be a declaration of trust. I have found for the reasons set out above that the statutory declaration contained a "declaration of trust". It follows that it cannot, for this reason, be a statement of a kind falling within s 8AA.
5. Further, s 8AA applies on the making of a statement that has the effect of acknowledging that identified property vested, or to be vested, in the person making the statement "is already held, or to be held", in trust for a person or purpose mentioned in the statement. The word "already", appearing as it does before the words "held, or to be held", in my opinion, gives s 8AA application only to cases where before the relevant statement is made, there was an arrangement in place under which the dutiable property in question was held or was to be held on trust. I do not think that s 8AA can apply to the statutory declaration in circumstances where there was no prior arrangement of this kind. The statutory declaration itself was, on the evidence, the first time such an arrangement was documented or otherwise evidenced.
6. For these reasons, I do not think that s 8AA applies to the statutory declaration.

Statutory Declaration and Deed - s 18(6) and s 18(6A) of the Duties Act

1. Under s 18(6), duty is chargeable on a declaration of trust that declares the "same trusts as those upon and subject to which the same dutiable property was transferred to the person declaring the trust" (emphasis added). The amount of duty chargeable is $20 but only if ad valorem duty under Chapter 2 has been paid on the transfer.
2. The Respondent submits that s 18(6) has no application to a case where a declaration of trust has been executed before the time of the transfer. This is because it applies in cases where a declaration is made in circumstances where the relevant dutiable property "was transferred" to the person declaring the trust. I agree with the Respondent's submission. The use of the past tense to describe the time of the transfer, in my opinion, contemplates circumstances where a declaration of trust over dutiable property is made after the transfer of the dutiable property to the trustee. In the circumstances at hand, where the statutory declaration and declaration of trust in the deed were executed before the transfer of the property, I do not think that s 18(6) can apply to the statutory declaration or the deed.
3. The purpose of s 18 is to prevent the incidence of double duty in the particular circumstances it sets out. In my opinion, the temporal sequence contemplated by s 18(6), requires a prior trust and a transfer before the making of the declaration of trust to which s 18(6) attaches a fixed duty of $20. At least one of the prior transactions, namely the transfer, is a dutiable transaction. The consequence is that if exemption from ad valorem duty were not allowed to the later declaration of trust, double duty may apply.
4. The construction of s 18(6) submitted by the Applicant, on the other hand, would permit the transfer to occur after the making of any declaration of trust to which s 18(6) applies. This may allow for a declaration of trust to be made free of ad valorem duty by reason of s 18(6), before any transfer and before any incidence of potential double duty has occurred. The granting of exemption from ad valorem duty for a declaration of trust occurring after an earlier dutiable transaction on which duty is payable, in my opinion, better accords with the scheme of the legislation than one that would allow a dutiable transaction to occur free of ad valorem duty, with no prior dutiable transaction.
5. The Applicant submitted that the declaration of trust in the deed "superseded" the "deemed declaration" in the statutory declaration so that the declaration of trust contained in the deed obtains the benefit of fixed duty under s 18(6A). The Respondent agreed and said that he will assess the declaration of trust in the deed with fixed duty under s 18(6A) once duty was paid on the statutory declaration. In these circumstances and no assessment having been issued under s 18(6A), I will not go on to opine whether or not s 18(6A) applies, or alternatively, whether s 18(1) could apply.

1. The Applicant's complaint is that he should not be subject to duty twice in circumstances where the intention evinced by s 18 is to prevent the incidence of double duty. Having paid one amount of ad valorem duty on the deed (as an agreement for sale or transfer), the Applicant says he should not again have to pay duty on the statutory declaration.
2. However, what the Duties Act does is to prevent the incidence of double duty only in the particular circumstances it addresses. As such, s 18 has applied in the present case to allow the transfer to be stamped with fixed duty and not with further ad valorem duty, such duty having been paid on the agreement for sale or transfer set out in the agreement contained in the deed. The Duties Act has also charged duty on the declaration of trust contained in the statutory declaration. The Respondent says s 18(6A) would prevent double duty because he may not assess further ad valorem duty on the declaration of trust set out in the deed by reason of s 18(6A).
3. Further, the Duties Act treats an agreement for sale or transfer, a transfer and a declaration of trust as separate dutiable transactions and not as a single dutiable transaction. The provisions addressing double duty in s 18 do not have the effect of conflating into a single subject matter transactions that at law and equity, take effect as separate transactions and are taxed accordingly. This is so even if in an economic sense the transactions may have a single object, namely the acquisition of property by a trustee. Regardless of the economic object, the Duties Act levies ad valorem duty on each relevant dutiable transaction it captures. Section 18 then allows relief from double duty in the specific circumstances set out in s 18.

1. What is subject to review in these proceedings is the assessment of duty on the statutory declaration. For the reasons set out above, the assessment of duty on the statutory declaration 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.