Winston-Smith v Chief Commissioner of State Revenue

Legislative history

1. The regime in Ch 4 for the imposition of ad valorem duty on the acquisition of interests in landholders was preceded by provisions dealing with the transfer of interests in "land rich" companies, the object of which was the same as the object of Ch 4. The provisions concerning the transfer of interests in land rich companies (the land rich regime) were introduced into the Stamp Duties Act 1920 (NSW) (the Stamp Duties Act) by the Stamp Duties (Amendment) Act 1987 (NSW). In his speech on the second reading of the Bill for that Act, the Minister for Finance began by observing that a sound revenue raising ability is crucial for the provision of community services and infrastructure by governments of any political colour and that that capacity to raise revenue depended on the community's willingness to comply with the tax laws. [1] The Minister then observed that fair tax policy and sound and efficient tax administration were "the twin pillars upon which a higher level of compliance was built" and that "tax administration failed in its duty, and honest taxpayers bec[ame] rightfully resentful" if avoidance and evasion of taxation became entrenched and widely practised by those already wealthy enough to afford high-priced lawyers and accountants. After referring to the efforts of the Government to ensure that the tax system was both efficient and fair, the Minister said that a major aim of the Bill was to eradicate "devious and artificial tax avoidance arrangements". He said that, inevitably, it was the wealthy taxpayers who were the ones best able to afford "big ticket lawyers" to "invent artificial avoidance schemes".
2. The first amendment referred to by the Minister referred to a "device" that operated by one party making an offer to another who accepted the offer in such a way that a valid contract was made without creating a document, thus avoiding the duty that would be payable on such a document. The Minister said that new provisions were to be introduced to deal with that "avoidance practice".
3. Next, the Minister addressed another "avoidance scheme" which he had mentioned in an earlier announcement, namely, "the sale of shares masking the sale of land". He said that the use of such schemes avoided duty in two ways. First, the duty rate on the transfer of shares was only 0.6% compared with the duty rate of conveyances of between 1.25% and 5.5%. Secondly, duty on share transfers was paid on the value of the shares, which is normally based on the net value of the company, while duty on a transfer of land was calculated on the unencumbered value of the land. The Minister observed that "this form of tax avoidance" was not available to the average taxpayer and was not used by "the honest taxpayer". The Minister said that, since conveyances form the largest single stamp duty tax base, it was vital that any erosion be arrested without delay.
4. On the second reading of the Stamp Duties (Miscellaneous Amendments) Bill 1990 (NSW) [2] , the Minister assisting the Treasurer referred to Div 30 of the Stamp Duties Act, which contained the land rich regime. The Minister said that, in order to overcome any "unintended consequences" of the legislation, the Stamp Duties Act had been administered on the basis that duty under Div 30 would not be payable if the Commissioner was satisfied that it would not be just and reasonable in the circumstances and that the Bill would amend the Stamp Duties Act to validate that practice. As will be apparent, the amendments being proposed by the Minister foreshadowed s 163H. The Stamp Duties Act was replaced by the Duties Act in 1997.
5. In 2003, the present Ch 4, dealing with "landholders", was introduced by the Duties Amendment (Land Rich) Act 2003 (NSW). On the second reading of the Bill for that Act, the Parliamentary Secretary representing the relevant Minister observed that the land rich regime had been introduced to deal with "techniques that had developed at the time to avoid payment of transfer duty on acquisition of interests in real estate" [3] . She said that, instead of transferring title from owner to owner, the land "was acquired by a company … set up primarily to hold the land" and the shares in the company were transferred, such that "the owners of the company … achieved the same ability to control the use of the land" (emphasis added) as they would have if they had purchased the land directly. However, she said, by transferring interests indirectly through the transfer of company shares, duty was reduced from up to 5.5% to 0.6%.
6. After referring to the thresholds that had to be met before transfer duty became payable, the Secretary referred to the intention announced by the government to develop measures "to protect the transfer duty revenue base". She said that the Bill implemented that government commitment and that the measures contained in the Bill would restore "the integrity of the land rich provisions to ensure the equitable treatment of transactions which in substance related to the transfer of interests in land" (emphasis added).
7. In a statement concerning the State Revenue Legislation Further Amendment Bill 2009 (NSW), the Parliamentary Secretary representing the relevant Minister said that the Bill was the latest in a series of Bills to ensure that the Acts administered by the Office of State Revenue were current and consistent with "best-practice tax administration" and that the Bill made amendments in five broad areas "to provide revenue protection measures and address tax avoidance practice" as well as other objects. [4] In particular, the Secretary said, the Bill implemented a decision announced in November 2008 to replace the land rich regime of the Duties Act with a "landholder model" and that, under the new model, transfer duty would be payable when a 50% or more interest was acquired in an unlisted company that owned land in New South Wales with a value of $2 million or more. He said that, to provide consistency with the tax treatment of direct transactions, landholder duty would apply to the acquisition of land and goods.

The Duties Act

1. The Duties Act consists of Chs 1 to 4 and Chs 7 to 12, other chapters having been repealed. The Chapters are headed as follows: Ch 1 Preliminary Ch 2 Transactions concerning dutiable property Ch 2A Duty on certain residential land transactions involving foreign persons Ch 3 Certain transactions treated as transfers Ch 4 Acquisition of interests in landholders Ch 7 Mortgages Ch 8 Insurance Ch 9 Motor vehicle registration Ch 10 Miscellaneous duties Ch 11 General exemptions and concessions Ch 11A Tax avoidance schemes Ch 12 Miscellaneous For the purposes of addressing the argument advanced on behalf of the Taxpayer and on behalf of the Commissioner, it is necessary to say something about the relevant parts of Ch 2, Ch 4 and Ch 11 of the Duties Act.
2. By s 8, Ch 2 charges duty on a transfer of dutiable property and on certain transactions relating to dutiable property. Such a transfer or transaction is a dutiable transaction for the purposes of the Duties Act. Under s 9, the duty charged on a dutiable transaction that is not a transfer of dutiable property is to be charged as of each such dutiable transaction were a transfer of dutiable property. Under s 10, it is immaterial whether or not a dutiable transaction is effected by written instrument or by any other means, including electronic means.
3. Under s 11, dutiable property includes land in New South Wales and shares in a New South Wales company or a corporation incorporated outside Australia that are kept on the Australian register kept in New South Wales. Under s 12, a liability for duty charged by Ch 2 arises when a transfer of dutiable property occurs. However, if a transfer of dutiable property is effected by a written instrument, liability for duty charged by Ch 2 arises when the instrument is first executed. Under s 13, duty charged by Ch 2 is payable by the transferee, unless Ch 2 requires another person to pay the duty. If a dutiable transaction that is liable to ad valorem duty under Ch 2 is not effected by a written instrument, s 15 imposes an obligation on the transferee to make a written instrument in an approved form. Under s 16, a transferee who is liable to pay duty in respect of a dutiable transaction must, within three months after the liability arises, lodge with the Commissioner the written instrument that effects the dutiable transaction or the written statement made in compliance with s 15.
4. Under the Administration Act, tax default means a failure by a taxpayer to pay, in accordance with a taxation law, the whole or part of tax that the taxpayer is liable to pay. Taxpayer means a person who has been assessed as liable to pay an amount of tax, who has paid an amount of tax or who is liable or may be liable to pay tax. The Duties Act is a taxation law. However, s 17 of the Duties Act relevantly provides that a tax default does not occur for the purpose of the Administration Act if duty is paid within three months after the liability to pay the duty arises. By s 19, duty is charged on the dutiable value of the dutiable property subject to the dutiable transaction at the relevant rates set out in Pt 3 of Ch 2. Part 2 deals with the dutiable value of dutiable property.
5. Section 32, in Pt 3 of Ch 2, specifies the rate of duty chargeable on a dutiable transaction. Relevantly for present purposes, if the dutiable value of the dutiable property exceeds $1 million, the duty is $40,490 plus $5.50 for every hundred dollars or part by which the dutiable value exceeds $1 million. That rate applies unless other provision is made by Ch 2. Relevantly for present purposes, s 33 provides that the rate of duty chargeable on dutiable transactions in respect of marketable securities is $0.60 per $100, or part, of the dutiable value of the marketable securities. Shares in a New South Wales company are marketable securities under the Dictionary at the end of the Duties Act.
6. Duty is chargeable under Ch 4 on the acquisition by a person of a significant interest in a landholder at the same rate as the transfer duty chargeable under Ch 2. For the purposes of Ch 4, a landholder is, relevantly, a private company that has land holdings in New South Wales with a threshold value of $2 million or more. Under s 146A, for the purpose of Ch 4, threshold value of land holdings of a private company is the total value of all land holdings in New South Wales of the company. Under s 147, a land holding is an interest in land other than the estate or interest of the mortgagee, chargee or other secured creditor.
7. Under s 148, which is in Pt 2 of Ch 4, a liability for duty charged by Pt 2 arises when a relevant acquisition is made. Under s 149, for the purpose of Ch 4, a person makes a relevant acquisition, relevantly, if the person acquires an interest in a landholder that is of itself a significant interest in the landholder or, having a significant interest in a landholder, acquires a further interest in the landholder. Under s 150, a person has an interest in a landholder if the person, in the event of a distribution of all the property of the landholder, would be entitled to any of the property distributed. A person who has an interest in a landholder has a significant interest in the landholder if the person, in the event of a distribution of all the property of the landholder immediately after the interest was acquired, would be entitled, relevantly, to 50% or more of the property distributed. Under s 151, a person acquires an interest in a landholder if the person obtains an interest in the landholder, or the person's interest increases, regardless of how it is obtained or increased. A person may acquire an interest in a landholder without acquiring shares in the landholder.
8. Section 152 requires that a person who has made a relevant acquisition must prepare a statement (an Acquisition Statement) and lodge it with the Commissioner within three months after the relevant acquisition is made. Under s 154, duty chargeable under Pt 2 of Ch 4 is payable, relevantly, by the person who makes the relevant acquisition. Section 153 provides that a tax default does not occur for the purposes of the Administration Act if duty is paid within three months after the liability to pay the duty arises. As I have said, under s 148, a liability for duty charged by Pt 2 of Ch 4 arises when a relevant acquisition is made.
9. Section 155 deals with the way in which duty is charged on relevant acquisitions in a private landholder. A landholder is a private landholder if the landholder is a private company. A private company is relevantly a company that is limited by shares and whose shares are not quoted on specified stock exchanges. Clearly, Mac's is a private landholder. Section 155(1) relevantly provides that duty is chargeable, at the general rate, on the amount calculated by multiplying the unencumbered value of all land holdings and goods of the landholder in New South Wales, calculated at the date of acquisition of the interest acquired, by the proportion of that value represented by the interest acquired in the relevant acquisition. Section 155, however, is, under s 155(8), subjected to Pt 3 of Ch 4.
10. Section 158 of the Duties Act, which is in Pt 3 of Ch 4, deals with constructive ownership of land holdings and other property in relation to linked entities. Under s 158(1), a private company is taken, for the purpose of Ch 4, to hold an interest in land or other property held by a linked entity of the company, in addition to any interest in land or other property that the private company may hold in its own right. Relevantly for present purposes, a linked entity of a private company (the principal entity) means a person who is part of a chain of persons: 1. which includes the principal entity; and 2. which is comprised of one or more links; and 3. in which at each link between the entities in the chain, one of the entities would be entitled to receive not less than 50% of the unencumbered value of the property of another person in the event of a distribution of all the property; and 4. which does not include, in any of the links between the person and the principal entity, a public unit trust scheme or a listed company.
11. Section 159 relevantly provides that a person or a member of a class of persons in whose favour, by the terms of a discretionary trust, capital the subject of the trust may be applied in the event of the exercise of a power or discretion or in the event that a discretion is not exercised, is, for the purposes of s 159, a beneficiary of the trust. A beneficiary of a discretionary trust is taken to own or to be otherwise entitled to the property the subject of the trust. The definition in the Dictionary provides that discretionary trust means, relevantly, a trust under which the vesting of the whole or any part of the capital of the trust estate with the whole or any part of the income from that capital or both:

• is required to be determined by a person;
• will occur if a discretion conferred under the trust is not exercised; and
• has occurred but under which the whole or any part of that capital, the whole or any part of that income, or both, would be divested if a discretion conferred under the trust is exercised.

1. Part 4 of Ch 4 is concerned with exemptions and concessions. Part 4 consists of ss 163A to 163H. Section 163A exempts an acquisition by a person in the capacity of a receiver or trustee in bankruptcy, a liquidator or a legal personal representative of a deceased person. It also exempts an acquisition acquired solely as the result of a distribution of the estate of the deceased person. Section 163B exempts acquisitions by the parties to a marriage that is dissolved or annulled. Similar exemptions are given in relation to the parties to a de facto relationship. Section 163E exempts an acquisition that is effected for the purpose of securing financial accommodation and s 163F affords an exemption in relation to the redemption and re-issuing of units of the unit trust scheme. Section 163FA exempts acquisitions resulting wholly from transfers occurring in connection with changing superannuation funds. Section 163G permits an exemption where the unencumbered value of all goods of a landholder comprise not less than 90% of the total unencumbered value of all land and goods of the landholder in New South Wales, to the extent that the Commissioner may disregard the value of the goods in determining the duty chargeable under Ch 4.
2. Relevantly for present purposes, s 163H, which is in Pt 4, confers on the Commissioner the discretion to grant an exemption or concession. Under s 163H(1), the Commissioner may, if satisfied that the application of Ch 4 to an acquisition in a particular case would not be just and reasonable, grant a full exemption or a partial exemption in respect of the acquisition. If the Commissioner grants a full exemption in respect of the acquisition, the acquisition is an exempt acquisition. If the Commissioner grants a partial exemption in respect of the acquisition, the Commissioner may make any reduction in the duty chargeable in respect of the acquisition that the Commissioner considers just and reasonable in the circumstances.
3. Part 1 of Ch 11 is concerned with exemptions from duty in respect of corporate reconstructions and consolidations. Section 273B, which is in Pt 1, confers an exemption for corporate reconstruction and corporate consolidation transactions. Under s 273B(1), duty under the Duties Act is not chargeable on a transaction if the Commissioner is satisfied, on application by a party to the transaction, that the transaction is a corporate reconstruction transaction and certain other pre-requisites are satisfied. Under s 273C, corporate reconstruction transaction includes an acquisition of an interest in a landholder, within the meaning of Ch 4, by a corporation if the interest is acquired from another corporation who is a member of the same corporate group. Under s 273E, a corporate group consists of a parent corporation and its subsidiaries. A corporation is the parent corporation of another corporation, which is the subsidiary of the first corporation, if the first corporation, directly or indirectly, holds at least 90% of the securities of the other corporation and holds voting control over the other corporation. Voting control is defined in s 273E(3).

• transfer of certain business property between family members (s 274);
• transactions and instruments involving charitable and benevolent bodies (s 275);
• dutiable transactions and instruments in respect of which a public hospital would be liable to pay the duty (s 276);
• dutiable transactions and instruments in respect of which a Council or County Council under the Local Government Act 1993 (NSW) would be liable to pay the duty (s 277); and
• transactions involving Department of Housing and Aboriginal Housing Office tenants (s 278).

Background to these proceedings

1. The Taxpayer is the son of the late Helen Selle (the Deceased), who died on 14 September 2012. By her last will made on 16 July 2009 (the Will), the Deceased appointed the Taxpayer and Mr David Morgan to be executors and trustees of the Will (the Executors). On 6 February 2013, probate of the Will was granted to the Executors.
2. At the date of her death, the Deceased owned the whole of the issued share capital of TCL. The Deceased also owned 75,000 shares in Mac's, being one half of the issued share capital of Mac's. The other half of the issued share capital of Mac's was owned by TCL.
3. As at the death of the Deceased, each of Mac's and TCL owned both real property and a share portfolio. By cl 5 of the Will, the Deceased expressed the wish that the Taxpayer should receive the real property of Mac's and the share portfolio of TCL, including the shares in Mac's held by TCL, and that the Deceased's daughter, Ms Catherine Gordon (Ms Gordon), should receive the value of the real property of TCL and the value of the share portfolio of Mac's.
4. To achieve that wish, cl 5.1 of the Will provided that, if the Taxpayer, within 12 months from the death of the Deceased, entered into an agreement with the Executors in the terms described in cl 5.1 (the proposed agreement), then the Deceased's shares in TCL and her shares in Mac's were to be given and bequeathed to the Taxpayer. Under cl 5.1, the proposed agreement was to provide that the Taxpayer would procure that TCL give to Ms Gordon the monetary equivalent of two parcels of real property owned by TCL and that Mac's give to Ms Gordon the monetary equivalent of its share portfolio. By cl 5.2, the Deceased directed that, should the Taxpayer perform his obligations under the proposed agreement within 12 months of the transfer of the ownership of Mac's and TCL to him, the Taxpayer was to receive from the residuary estate of the Deceased an amount of money equivalent to the income tax he might incur in performing the proposed agreement plus the cost of liquidating TCL, if such liquidation occurred.
5. The Taxpayer was aware of the terms of cl 5 of the Will and at all times following the death of the Deceased he intended to enter into the proposed agreement within 12 months of her death, with the result that he would become entitled, under the Will, to all of the Deceased's shares in Mac's and TCL. However, the Taxpayer was also aware that the total of the payments to be made to Ms Gordon under the proposed agreement would be likely to exceed the sum of $20 million and that neither TCL nor Mac's had sufficient cash immediately available to make those payments.
6. On 28 March 2013, the Taxpayer instructed its accountants to engage Piper Alderman to provide advice on the stamp duty implications of entering into the proposed agreement. By letter dated 2 April 2013, Piper Alderman gave advice in relation to the stamp duty implications of placing TCL into liquidation in order to fund the payments to Ms Gordon. The Taxpayer has not disclosed the terms of that advice and does not wish to waive client legal privilege in relation to the advice. As will appear below, that has significance in relation to the question of the remission of interest.
7. On 24 April 2013, the Taxpayer had a meeting with his advisers, during which they discussed the funding of the payments to Ms Gordon by TCL and Mac's in accordance with the proposed agreement. The Taxpayer was advised that the payments to Ms Gordon could be funded by liquidating TCL, that, as part of the liquidation, TCL's "pre-CGT properties" could be sold and the proceeds used to fund the payments, and that TCL's other pre-CGT assets could then be distributed to the shareholders of TCL. The Taxpayer was advised that that was "a tax effective approach" that would maximise the value of the residuary estate for the residuary beneficiaries. He was also advised that other potential options would reduce the amount of the residuary estate. When the Taxpayer indicated that he thought that the options reducing the residuary estate would be unfair to the residuary beneficiaries, he instructed his advisors to proceed with the liquidation of TCL.
8. Subsequently, the Taxpayer instructed Piper Alderman to prepare and lodge with the Commissioner an application for a private ruling concerning an in specie transfer by TCL to the Taxpayer of TCL's shares in Mac's. By letter of 26 July 2013, Piper Alderman applied to the Commissioner for a private ruling on the question of whether, in relation to the proposed acquisition by the Taxpayer, on the winding-up of TCL, of 75,000 shares in Mac's held by TCL (the Acquisition), the Commissioner would be satisfied that the application of Ch 4 of the Duties Act to the Acquisition would be an exempt acquisition within the meaning of s 163H(3) of the Duties Act. By letter dated 11 September 2013, the Commissioner informed Piper Alderman that it had been decided that the discretion under s 163H would not be exercised. In his reasons for that decision, the Commissioner said that the primary purpose of "the current landholder provisions" is to ensure the same duty liability on direct and indirect acquisitions of interests in land.
9. On 12 September 2013, the Taxpayer, TCL and Mac's, of one part, entered into a Deed of Release and Indemnity with the Executors, of the other part (the Deed). After reciting the death of the Deceased, the grant of probate and the terms of cl 5 of the Will, the Deed recited that the Executors wished to enter into an agreement as contemplated by cl 5 and that the Deed was intended to be the agreement contemplated by cl 5. The Deed also recited the value of the parcels of real property owned by TCL and the value of the share portfolio of Mac's. By cl 1 of the Deed, the Executors agreed that TCL would, within 12 months, give to Ms Gordon the monetary equivalent of the two parcels of real property owned by TCL. By cl 2 of the Deed, the Executors also agreed that TCL would, within 12 months, give to Ms Gordon the monetary equivalent of Mac's share portfolio, less a capital gains tax allowance. By cl 11 and cl 12, TCL and Mac's also undertook to make those payments to Ms Gordon within 12 months. As will be apparent, the Deed was entered into within 12 months from the death of the Deceased, by some two days.
10. Since the Deed satisfied the conditions of cl 5 of the Will, the Executors proceeded to give effect to the gift to the Taxpayer by the Deceased under cl 5 of the Will of her shares in TCL and Mac's. Transfers of the Deceased's shares in Mac's and TCL were executed by the Executors on 23 September 2013. Those transfers were exempt under s 63(1)(a)(i) of the Duties Act, which provides that ad valorem duty is not chargeable under Ch 2 on a transfer of dutiable property by the legal personal representative of a deceased person to a beneficiary made under and in conformity with the trusts contained in the will of the deceased person. Following the transfers, the shares in Mac's were then held as to 50% by TCL and as to 50% by the Taxpayer and the shares in TCL were held as to 100% by the Taxpayer.
11. The Taxpayer gave evidence that, on 3 September 2014, he decided to implement the steps necessary to meet his obligations under the Deed and to pay whatever stamp duty was properly payable on the transactions necessary to give effect to those steps. On 8 January 2015, as the sole shareholder of TCL, he resolved that TCL be wound up and that Mr Will Winston-Smith (the Liquidator) be appointed as liquidator of TCL. On 11 December 2015, the Liquidator signed the Transfer.
12. On 2 March 2016, duty in the sum of $183,294 was paid in respect of the Transfer under Ch 2 of the Duties Act, on the basis that the Transfer related to shares in a New South Wales company, which constitute "dutiable property" under s 11(1)(d)(i) of the Duties Act. However, it is common ground that, by reason of the Transfer, the Taxpayer made a "relevant acquisition" for the purposes of Ch 4 of the Duties Act. Under s 148, which is in Ch 4, a liability for duty arises when a relevant acquisition is made. The duty payable on the Transfer under Ch 4 was $1,805,246.60.
13. By letter of 3 May 2017 to Piper Alderman, the Commissioner gave to the Taxpayer a notice of assessment dated 3 May 2017 (the Assessment Notice), whereby the Commissioner notified the Taxpayer that duty had been assessed in respect of the Transfer in the sum of $2,016,548.49, being duty of $1,805,246.60 and interest of $211,301.89. In his letter, the Commissioner observed that "landholder duty" is a self-assessment tax and that, if a tax default occurs, a liability for interest arises by operation of s 22 of the Administration Act and a liability for penalty tax arises by the operation of s 26. The Commissioner said that a tax default includes failure to pay landholder duty within three months after the liability arises, regardless of whether an assessment has been issued. However, the Commissioner said, since there had been some delay on the Commissioner's part in making the assessment, it had been determined not to charge any penalty tax and to remit the premium component of interest, provided that the duty assessed and the market component of interest was paid to the Commissioner by the due date, being 24 May 2017. The Commissioner confirmed that, upon payment in full by the due date of the duty of $1,805,246.60 and the market rate component of interest of $41,890.06, the premium component of interest of $169,411.83 would be remitted. The Taxpayer did not pay the amount of the duty or any interest until 27 September 2017.
14. By letter from Piper Alderman to the Commissioner dated 8 June 2017, the Taxpayer objected, under s 86 of the Administration Act, to the assessment shown in the Assessment Notice. Section 86 relevantly provides that a taxpayer who is dissatisfied with an assessment that is shown in a notice of assessment, or with any other decision of the Commissioner under the Duties Act, may lodge a written objection with the Commissioner. On 4 September 2017, the Commissioner wrote to Piper Alderman saying that the objection was disallowed.
15. Section 97 of the Administration Act, which is in Div 2 of Pt 10 of the Administration Act, relevantly provides that a taxpayer may apply to the Court for a review of a decision of the Commissioner that has been the subject of an objection under Div 1. Section 101(1) of the Administration Act relevantly provides that, on such a review, the Court may do any one or more of the following:

• confirm or revoke the assessment or other decision to which the application relates;
• make an assessment or other decision in place of the assessment or other decision to which the application relates;
• remit the matter to the Commissioner for determination in accordance with the finding or decision of the Court;
• make any further order or orders as to costs or otherwise as the Court thinks fit. By summons filed 18 October 2017, the Taxpayer commenced these proceedings seeking review of the decision of the Commissioner not to grant an exemption under s 163H of the Duties Act in respect of the Acquisition and the decision of the Commissioner not to remit the interest charged under the Administration Act.

The questions for decision

1. As I have said, two questions are raised by the Taxpayer's application for review. The first concerns the decision of the Commissioner not to grant a full exemption under s 163H of the Duties Act. The second question concerns the decision of the Commissioner not to remit the market rate component or the premium component of interest under s 25, assuming the refusal of a full exemption under s 163H stands. I shall deal with each separately.

Exemption under s 163H

1. The evident policy of the land rich regime was to bring to tax the acquisition by a person of shares or interests in a landholding entity, where that transaction would have been chargeable with duty had there been a transfer of land instead. It has been said that its primary purpose was to tax transactions that resulted in a change of "beneficial ownership" of dutiable property and the dispensing power was granted in aid of furthering that primary purpose. [5]
2. The Taxpayer contends that the purpose of Ch 4 of the Duties Act is to charge duty on the acquisition of "beneficial or economic ownership" of land through the acquisition of marketable securities. He asserts that, both prior to and after the Acquisition, he had "the underlying beneficial ownership and effective control" of the land owned by Mac's, by reason of his holding of 50% of the share capital of Mac's and his holding of 100% of the share capital of TCL, which, in turn, held the other 50% of the share capital of Mac's. He says that, because the Acquisition did not alter "the indirect beneficial ownership" of the land owned by Mac's, and, because the Acquisition was not undertaken with the intention of avoiding duty under the Duties Act, the Court should be satisfied that the application of Ch 4 to the Acquisition would not be just and reasonable.
3. The Taxpayer contends that the transfer of TCL's shares in Mac's did not change in any material or substantial way the extent to which he was in a position to "control" the land owned by Mac's. Thus, before the Transfer, he owned all of the issued share capital of TCL, the assets of which included 50% of the shares in Mac's. As the sole shareholder and director of TCL, the Taxpayer was in a position to direct how any rights and powers arising from the shareholding of TCL in Mac's could be exercised. Accordingly, since he owned all the other issued shares in the capital of Mac's, he alone was in a position to direct how all the rights and powers attaching to shares in Mac's should be exercised. The acquisition by the Taxpayer of the shares in Mac's held by TCL, he says, made no practical difference whatsoever to his ability to control the affairs of Mac's and his capacity to direct what might happen in relation to the land owned by Mac's.
4. Where the discretion of a taxing authority such as the Commissioner is at large and it does not clearly emerge from the relevant legislation whether it is the interest of a taxpayer or the interest of the revenue that the taxing authority must consider in determining whether a particular course is reasonable or unreasonable, the taxing authority must be guided and controlled by the policy and purpose of the legislation, so far as that is manifest in the legislation. While that would exclude all merely fanciful and prejudiced tests (such as vocation, religion and colour of skin or hair), in the absence of criteria in the legislation, great latitude is allowed to the taxing authority in making a decision. [6]
5. Unreasonableness is a relative concept and its application requires the consideration of all the relevant circumstances. Whether or not it is unreasonable for a tax to be charged must be determined by the taxing authority having regard to all relevant matters, including the reasonableness of the effect that a decision by the taxing authority may have on other persons. What may be unreasonable having regard only to the situation of a particular taxpayer company or its shareholders may not be unreasonable when considered in the context within which the taxing authority is required to form a relevant opinion. The taxing authority must be guided and controlled by the policy and purpose of the enactment and must not exceed the limits that may be discerned from the provisions of the relevant enactment. [7]
6. A criterion of reasonableness is a relative term that, taken by itself, imports a requirement to consider the circumstances of the case as a whole. [8] Where the Parliament provides for a dispensation from tax that is capable of exercise by reference to a wide range of factors, in a context where the scope and purpose of the enactment is the collection of tax, subject to a dispensing power, the dispensing power must be regarded as incidental and ancillary to the primary object of the enactment. On the spectrum of cases in which the dispensing power could be exercised, there will be a threshold beyond which it would defeat the primary object of the enactment. However, the discretion will not be limited to the case where a person has not in any way benefited from the evasion giving rise to the imposition of the tax. [9]
7. The primary purpose of a dispensing power such as s 163H is to avoid the need to specify the minutiae of every circumstance where the tax burden is to be relieved. In some circumstances, the question of whether it is just and reasonable to exercise the dispensing power would be satisfied by considering whether the application of the section is anomalous or abnormal. However, the statutory test is not whether application of the relevant provisions to the facts of a particular acquisition would be anomalous or abnormal but rather whether the application of the provisions to a particular acquisition would not be just and reasonable. [10]
8. In forming an opinion as to that question, it is necessary to consider everything that may bear relevantly and prohibitively both for and against the exercise of the discretion but to do so by reference to the statutory criteria. One requirement is that consideration be given to the question of whether the application of Ch 4 to the circumstances would come within the policy that Ch 4 is intended to cover. In that regard, care must be taken to ensure that some other test is not substituted for that which the legislature has chosen as the basis upon which a taxpayer may be treated favourably or to narrow the breadth of the statutory inquiry that is called for. In that context, it may also be relevant to have regard to the policy and effect of the corporate reconstruction relief provided in Pt 1 of Ch 11. [11]
9. The purpose of s 163H is to enable the Commissioner to relieve a taxpayer from the duty consequences attaching to a relevant acquisition in circumstances where Ch 4 brings within its operation an acquisition that Ch 4 was not intended to capture. The primary purpose of the Duties Act is to tax transactions that result in a change, indirectly, in the underlying practical or economic interest in dutiable property, as distinct from the mere legal or equitable proprietary interest, by providing for duty to be charged on transactions that result in a change of such underlying practical or economic interest, as well as on direct transfers of dutiable property other. The fundamental basis for taxation under the Duties Act, including Ch 4, is a change of the underlying practical or economic interest, as well as direct beneficial ownership, whether legal or equitable. The dispensing power is in aid of furthering the primary purpose of that basis. Whether or not there has been a change of underlying practical or economic interest, including beneficial ownership, is an entirely relevant consideration in the exercise of the dispensing power. That is not to say that the discretion ought to be exercised in a particular way, but that it is not an irrelevant consideration to have regard to whether there has been a change in underlying practical or economic interest. For example, having regard to the scope, purpose and object of the Duties Act, it will be permissible, in exercising the dispensing power under s 163H, to take into consideration the fact that the underlying beneficial ownership of units in two trusts continued to be held by the same persons after the relevant acquisition was made by one trust from the other as they were held before the acquisition. [12]
10. The provisions of Ch 4, when introduced in 2009, resulted in a significant broadening of the revenue base and replaced the land rich regime. The object of the land rich regime was to require ad valorem duty at the rate applicable to a conveyance of land to be paid on transfers of interests in private companies (as well as private unit trust schemes), which would otherwise be liable to duty at the lower rate applicable to the transfer of marketable securities. The land rich regime was aptly characterised as an anti-avoidance measure and the provisions of Ch 4 were simply a broadening of the revenue base. [13]
11. In the light of the above, it is clear enough that the land rich regime and its successor, the landholder provisions in Ch 4, are directed at the avoidance of the general duty on conveyances of property by effecting a transfer of the underlying practical or economic interest in such property by means of a transfer of marketable securities, which attracts a lower rate of duty. Thus, the language used in the second reading speeches discussed above refers to the sale of shares "masking" the sale of land and to "devious and artificial" arrangements to avoid the incidence of tax. The suggestion is also made that "honest taxpayers" would be resentful of such a "device", and that such devices would not be used by "the honest taxpayer". However, it has not been suggested by the Commissioner that any of those epithets would be applicable to the Taxpayer or the Acquisition. Accordingly, the Taxpayer asserts, it would not be just and reasonable for Ch 4 to be applied to the Transfer.
12. Nevertheless, it is important to bear in mind the clear distinction recognised both at law and in equity between the persona of a corporation such as Mac's, on the one hand, and the members or shareholders of Mac's, on the other. A shareholder of a company has no legal or equitable interest in any property owned by the company. [14] On the other hand, subject to one important qualification, it would be within the power and capacity of the holder of all of the issued shares in the capital of a company to acquire ownership of property owned by the company, by causing the winding up of the company and distribution of its property in specie, or by declaring a dividend and distributing the property in specie in satisfaction of the dividend. The qualification is that regard must be had, in the case of winding up, to whether the company either had no liabilities or had assets other than the property in question from which its liabilities could be discharged or, in the case of declaring a dividend, as to whether the company had undistributed profits in excess of the value of the property. Until such a distribution in specie has been completed, the shareholder has no legal or equitable interest in the property of the company.
13. If, prior to the Transfer, the Taxpayer had, in his capacity as the only director of Mac's, taken steps for the winding up of Mac's or the declaration of a dividend by Mac's, he could have been entitled to a distribution in specie of only one half of the property remaining after liabilities had been discharged or one half of any property distributed in satisfaction of a dividend. TCL would have been entitled to the other half of the property distributed. Only after the Acquisition was the Taxpayer in a position to procure the distribution of the whole of the land owned by Mac's to himself.
14. Of course, the Taxpayer could also have taken similar steps in relation to his 100% shareholding of TCL, by causing TCL to be wound up or for TCL to declare a dividend, followed by a distribution in specie of the property received by TCL on the winding up or distribution of profits by Mac's. Thus, assuming all other liabilities of TCL had been satisfied, it would have been open to the Taxpayer to become the owner of the land owned by Mac's. However, the transfers in specie of real property owned by Mac's to the Taxpayer as a shareholder of Mac's or to TCL as a shareholder of Mac's and then by TCL to the Taxpayer as a shareholder of TCL would have been liable to duty at the general rate under Ch 2.
15. Examination of the nature of the exemptions afforded by Pt 4 and the general exemptions in relation to corporate reconstructions and consolidations in Pt 1 of Ch 11 casts light on the considerations that may be relevant to the question of whether the Commissioner or a reviewing authority, such as the Court, might be satisfied that the application of Ch 4 is not just and reasonable in a particular case. Thus, for example, there is no exemption for transfers within a family, except under s 163B in relation to the breakup of marriages and de facto relationships. Further, only in quite specific circumstances is duty under the Duties Act not chargeable on a corporate reconstruction transaction or a corporate consolidation transaction, as those terms are defined for the purposes of Pt 1 of Ch 11. Thus, those provisions are limited to transactions within a corporate group as defined and there is no exemption for a transfer of property in specie on a winding up of a company or by way of dividend to shareholders of, for example, the parent corporation. That is to say, the exemption is for the benefit of transactions wholly within a corporate group, as defined, and not for the benefit of transactions in favour of shareholders who are not members of the corporate group.
16. If the Taxpayer were a company, holding 100% of the issued shares of TCL and holding 50% of the shares of Mac's, that hypothetical company would be a parent corporation within the meaning of Pt 1 of Ch 11 and it would have been possible for the transfers in specie described above to be effected without duty being charged. Similarly, the transfer of shares in Mac's held by TCL to the hypothetical parent corporation would not be chargeable with duty. However, while the legislature saw fit to provide the exemptions allowed by Pt 1 of Ch 11, it did not provide an exemption in the case of a transfer in specie to shareholders outside a corporate group. That fact is indicative of a policy and purpose of the Duties Act that would be consistent with treating the application of Ch 4 to the Transfer as just and reasonable.
17. The Taxpayer places great store on observations made in February 2015 by White J, as his Honour then was, in Milstern Nominees Pty Ltd v Commissioner State Revenue [15] , a decision on review of a decision of the Commissioner under s 163H. His Honour accepted that the purpose of Ch 4 is to charge duty on "the acquisition of beneficial or economic ownership of land" through the acquisition of marketable securities and that the dispensing power in s 163H should be exercised where "there was no intent to avoid duty" and where the relevant acquisition of shares "would have no practical consequence as to the way in which the land held … would be appointed or enjoyed" [16] .
18. White J observed that landholder duty under Ch 4 is based on the central concept of a relevant acquisition of an interest in a landholder. The focus is not on the nature of any interest that is indirectly acquired in any entity whose property the landholder is deemed to own by virtue of the deeming provisions in s 159. It is evident from the exemptions and concessions in Pt 4 of Ch 4 that it is not the object or purpose of Ch 4 to bring to duty all acquisitions of "interest" in landholders regardless of the circumstances. The fact that the criteria for liability are established by the acquisition of an interest in a landholder does not necessarily elucidate the grounds on which an exemption from that liability should be considered to be just and reasonable. [17]
19. However, while there is some reference in the second reading speeches to "control" there is no reference in s 163H to either "control" or "beneficial or economic ownership". Indeed, that last phrase must be understood in a completely non-technical sense. In no legal sense does the shareholder of a company have "ownership" of the property of the company, for the reasons indicated above. Thus, while White J accepted that the purpose of Ch 4 is to charge duty on the acquisition of "beneficial or economic ownership of land through acquisitions of marketable securities", his Honour should not be understood as referring to anything other than a non-technical notion of "beneficial or economic ownership". In any event, his Honour did not say that Ch 4 is only applicable to an acquisition of "beneficial or economic ownership". In that regard, it is essential to understand the question that had been put before White J in considering whether his Honour was satisfied that the application of Ch 4 to the acquisition in that case was just and reasonable.
20. The essence of the question before White J was whether it was not just and reasonable that Ch 4 apply to an acquisition of shares in a company that did not as a matter of fact "own or control" the relevant land or have any expectation of receiving the land or any proceeds of sale of any part of the land or any income from it. [18] The circumstances before his Honour involved the acquisition by Milstern Nominees Pty Ltd (Nominees) of all of the shares in Milstern Enterprises Pty Ltd (Enterprises) that were not owned by Mrs Phillips. The purpose of the acquisition by Nominees of the shares in Enterprises that were not owned by Mrs Phillips was to resolve a dispute between the holders of those other shares. Mrs Phillips owned all of the shares in Enterprises that conferred control of Enterprises. In addition, Mrs Phillips owned 100% of the shares in Nominees, which owned 100% of the share capital of the trustee of the Landsell Trust. Enterprises was a discretionary object of the Landsell Trust, whose assets included land in New South Wales.
21. Because Enterprises was a discretionary object of the Landsell Trust, it was deemed by ss 158 and 159 to have a relevant interest in the land that was subject to the Landsell Trust. Accordingly, the acquisition by Nominees of shares in Enterprises fell within Ch 4 of the Duties Act. In concluding that the application of Ch 4 would not be just and equitable in the circumstances, White J stressed that the question before him had to be assessed against the background that the position of Enterprises as a discretionary object of the Landsell Trust was irrelevant to the acquisition by Nominees of the shares in Enterprises [19] and that the Landsell Trust was not relevant to Mrs Phillips' decision to cause Nominees to acquire the shares in Enterprises that she did not own. [20]
22. In the light of the somewhat complex circumstances that were before White J, I do not consider that his Honour's observations are of assistance in resolving the question presently before me. In saying that, I do not wish to indicate any measure of dissent from his Honour's conclusion and the reasoning that led to that conclusion. Nevertheless, I do not regard his Honour's observation that the purpose of Ch 4 is to charge duty on the acquisition of "beneficial or economic ownership" of land through acquisitions of marketable securities as dispositive of the question before me.
23. The reason why the Liquidator made the distribution in specie to the Taxpayer of the shares in Mac's was that it was commercially necessary or desirable that TCL be wound up in order to make available the funds necessary to meet the obligations to Ms Gordon under the Deed. As explained above, except to the extent of the elimination of the intervention of TCL, the in specie distribution of the shares in Mac's did not in any way affect the Taxpayer's underlying practical and economic interest in the land owned by Mac's, and did not affect his effective control of Mac's. In that regard, it is relevant to have regard to the financial position of TCL at the time of the Transfer.
24. The balance sheet contained in the Annual Report of TCL for the year ended 30 June 2015 shows the following:

• Current assets $16,875,945
• Non-current investments $1,750,440
• Total assets $18,626,385
• Total liabilities $7,224
• Net assets $18,619,161 The balance sheet also disclosed total equity represented as follows:
• 200,000 ordinary shares $303,337
• Asset revaluation reserve $915,198
• Capital profits reserve $17,341,952
• Retained profits $58,674
• Total equity $18,619,161

1. Thus, it is fair to say that the Acquisition had no practical consequences in relation to the use and enjoyment of the land owned by Mac's other than to convert the Taxpayer's partly indirect interest in Mac's into a wholly direct interest in Mac's. The Taxpayer contends that it is significant that he continued to enjoy 100% control and enjoyment of the income and capital appreciation of the land owned by Mac's by reason of his shareholding in Mac's. He emphasises that, prior to the Acquisition, he had 100% of the "underlying beneficial ownership and control" of the land owned by Mac's, through his holding of all of the shares in TCL and half of the shares in Mac's. That position, he says, was not in any way affected by the Transfer, except insofar as it was no longer necessary for him to exercise control in relation to the land owned by Mac's by exercising his rights and powers as a shareholder in TCL, to cause TCL to exercise its rights and powers as a shareholder of Mac's.
2. On the other hand, the Acquisition of property of TCL in the course of the liquidation of TCL removed a layer of legal and beneficial ownership that had existed between the Taxpayer and the land held by Mac's. Thus, before the Acquisition, the Taxpayer could only obtain title to land held by Mac's on a winding up of Mac's and an in specie distribution of 50% of the property of Mac's, including its land to TCL and then a second in specie distribution of that property from TCL to the Taxpayer, after the Acquisition. Following the Acquisition, the Taxpayer could obtain title to the land held by Mac's on a winding up of Mac's followed by an in specie distribution of the property of Mac's, including land, directly to him as the only shareholder.
3. Further, before the Acquisition, any dividends payable out of income derived from the land held by Mac's would have had to been paid as to 50% to TCL. To the extent that TCL may have had liability or expenses that reduced its distributable profit, the existence of those liabilities or expenses would have affected the amount ultimately able to be distributed to the Taxpayer by way of dividend from TCL. However, following the Acquisition, any dividend payable out of profits derived by Mac's from the land held by it could be paid as to 100% to the Taxpayer and the position of TCL became irrelevant.
4. Having regard to the financial position disclosed by the balance sheet of TCL as summarised above, on the assumption that there had been no change in the financial position of TCL since 30 June 2015, it appears that, at the time of the Transfer, any dividend received by TCL from Mac's could have been passed in its entirety to the Taxpayer by means of a dividend declared by TCL of the whole of the dividend received from Mac's. That, of course, assumes no intervening tax liability in respect of such dividend from Mac's to TCL.
5. The Taxpayer draws attention to the operation of ss 155, 158 and 159 of the Duties Act. Thus, under s 155, duty is chargeable, at the general rate under Ch 2, on the amount calculated by multiplying the unencumbered value of all land holdings and goods of the landholder by the proportion of that value represented by the interest acquired in the relevant acquisition. Section 158 requires that a private company is taken, for the purposes of Ch 4, to hold an interest in land or other property held by another company if the first company would be entitled to receive not less than 50% of the unencumbered value of the property of the second company in the event of a distribution of all the property of the second company.

Remission of interest

1. Part 5 of the Administration Act deals with interest and penalty tax. Under s 21(1), if a tax default occurs, the taxpayer is liable to pay interest on the amount of the tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate from time to time applying under Div 1 of Pt 5. A taxpayer is the person who has been assessed as liable to pay an amount of tax, who has paid an amount of tax or who is liable or may be liable to pay tax. Tax default is a failure by a taxpayer to pay, in accordance with a taxation law, the whole or part of tax that the taxpayer is liable to pay. The Duties Act is a taxation law.
2. Section 22 of the Administration Act, which is in Div 1 of Pt 5, provides that the interest rate is the sum of the market rate component and the premium component. The market rate component is, relevantly, the Bank Accepted Bill Rate, as defined, rounded to the second decimal place, or the rates specified for the time being by order of the Minister. The premium component is 8% per annum. Under s 24, if judgment is given by or entered in a Court for an amount of unpaid tax, the interest rate determined in accordance with Div 1 of Pt 5 continues to apply, to the exclusion of any other interest rate, until the tax is paid.
3. Section 103 of the Administration Act relevantly provides that the fact that an application for a review is pending does not in the meantime affect the assessment or other decision to which the application for review relates and tax may be recovered as if no review were pending. Section 104 relevantly provides that, if a taxpayer's objection is allowed in whole or in part, or a taxpayer's application for review is successful, the Commissioner must refund any amount paid in excess of a requirement for payment under the relevant taxation law. Section 105 of the Administration Act relevantly provides that, in addition to an amount refunded under s 104, the Commissioner is required to pay interest on the amount calculated on a daily basis from the date of its payment by the taxpayer until the date of the refund at the market rate component referred to in s 22.
4. On the assumption there is no exemption under s 163H, the Taxpayer contends that this is an appropriate case in which to remit the market component of the interest from the period when the Commissioner should have made a decision on the exemption when he assessed duty under Ch 4 (namely, 2 March 2016), until the date of the assessment on 3 May 2017. Alternatively, the Taxpayer contends that the Commissioner should have remitted the premium rate component of the interest.
5. Both the Taxpayer and the Commissioner accept that there are four cumulative criteria as to the circumstances in which the premium component of interest should be remitted. They are as follows: [22] 1. all principal tax that is owing and not in dispute has been fully paid; 2. there has been co-operation in providing relevant information to the Commissioner so as to enable the Commissioner to issue assessments; 3. such co-operation has occurred prior to any investigation being commenced by the Commissioner, or, at the very latest, within a reasonable time after a request for information had been made by the Commissioner; and 4. there has been no wilful default in not paying tax on time.
6. It is not in dispute that the Taxpayer satisfied the second and third criteria. That is to say, it has not been suggested that there was not full and frank disclosure by the Taxpayer. Thus, by means of the request for a private ruling, full disclosure was made to the Commissioner prior to the Transfer being brought into existence. Further, it is clear that all principal tax not in dispute was fully paid. Thus, the duty charged on the Transfer on the basis that it was a transfer of marketable securities was paid within three months of the date of the Transfer.
7. The duty assessed under Ch 4 was not paid until 27 September 2017, a considerable time after the date of the assessment. The question is whether it can be said that that failure to pay constitutes wilful default on the part of the Taxpayer.
8. It is clear that there was default in the payment of the duty. It was wilful on the part of the Taxpayer, in the sense that he was clearly aware that the Commissioner had assessed the Transfer for ad valorem duty under Ch 4 and that the duty had not been paid. In that regard, it is significant that the Taxpayer has maintained privilege in respect of the advice given to him by Piper Alderman as to whether the Transfer would be charged with duty under Ch 4. Thus, the Court has no way of knowing whether, for example, the Taxpayer was advised that there were good prospects of the Commissioner exempting the Transfer or, on the other hand, that there was no prospect that the Commissioner would exempt the Transfer. I do not consider that, in circumstances where the Taxpayer has elected not to disclose the content of his advice, an inference should be drawn that he was acting in good faith in applying the advice. [23]
9. It would have been open to the Taxpayer to pay the duty assessed within the time specified by the Assessment Notice. The Commissioner indicated that, if such payment were made, the premium component of interest would be remitted. The Taxpayer elected not to do so and therefore must be taken to have decided to accept the risk that he would be unsuccessful in any objection or review in respect of the Commissioner's decision not to exempt the Transfer from the operation of Ch 4. Had he paid the duty when it was payable, but had been successful in an objection or review, the duty would have been refunded to him together with interest in accordance with the market component rate.
10. The position might have been different if there were evidence that the Taxpayer had been advised that there were good prospects of persuading the Commissioner that he should be satisfied as to the application of s 163H. There is no such evidence and, as I have said, I do not consider that the circumstances are such that an inference should be drawn in favour of the Taxpayer in circumstances where he swore an affidavit but chose not to give evidence about his reasons for failing to pay the duty in accordance with the Assessment Notice. While I am satisfied that the first three pre-requisites propounded by the Commissioner for the exercise of the discretion to remit have been met, the fourth has not been satisfied. I consider that it is appropriate to characterise the relevant tax default as "wilful". In circumstances, where there is no evidence that the Taxpayer had a basis for believing that he was not liable to pay duty under Ch 4 in respect of the Transfer, there is no basis for remitting the premium component.

Conclusion

1. It follows from the conclusions reached above that the proceedings should be dismissed. The Taxpayer should pay the Commissioner's costs.

Endnotes

1. See New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 May 1987 at 1248 (Mr Bob Debus).
2. See New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1990 at 10188 (Mr Bruce Baird).
3. See New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 November 2003 at 5046-5048 (Ms Alison Megarrity).
4. See New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 June 2009 at 16248 (Mr John Aquilina on behalf of Mr Joseph Tripodi).
5. See Commissioner of State Revenue v STIC Australia Pty Ltd [2010] VSC 608 at [25]-[26], considering the Duties Act 2000 (Vic).
6. See Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR at 384.
7. See Deputy Commissioner of Taxation v Truhold Benefit Pty Ltd (1985)158 CLR 678 at 687.
8. See Federal Commissioner of Taxation v Swift (1989) 20 ATR 1434 at 1448-9 ('Swift').
9. See Swift at 1451.
10. See Challenger Listed Investments v Commissioner of State Revenue [2010] VSC 464 at [26] ('Challenger').
11. See Challenger at [27]-[29].
12. See, for example, Commissioner of State Revenue v STIC Australia Pty Ltd [2010] VSC 608 at [26].
13. See Milstern Nominees Pty Ltd v Commissioner State Revenue [2015] NSWSC 68 at [42] ('Milstern Nominees').
14. See, for example, Sharrment Pty Ltd v Official Trustee (1988) 18 FCR 449 at 460, 469
15. [2015] NSWSC 68.
16. See Milstern Nominees at [31].
17. See Milstern Nominees at [44]-[45].
18. See Milstern Nominees at [53].
19. See Milstern Nominees at [53].
20. See Milstern Nominees at [34].
21. See Chief Commissioner of Stamp Duties v Lee (2000) 45 ATR 130 at 132, per Priestley JA, although neither Meagher JA nor Clarke AJA adopted that reasoning.
22. See Chief Commissioner of State Revenue v Incise Technologies Pty Ltd [2004] NSWADTAP 19 at [62].
23. See Pharmos Nominees Pty Ltd v Commissioner of State Taxation [2012] SASCFC 89 at [79], [80]; Commissioner of State Revenue v Snowy Hydro Ltd (2012) 43 VR 109 at [171]. See also Ferrcom Pty Ltd v Commercial Union Assurance Company of Australia Limited (1993) 176 CLR 332. 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: 01 June 2018