The vast majority of the decisions we make each year are undisputed by our customers, but inevitably there are situations where litigation is required to resolve an issue.
The following case summaries illustrate some of the types of cases conducted in 2024–25.
Duties Act 2000 (Duties Act)
Oliver Hume Property Funds (Broad Gully Rd) Diamond Creek Pty Ltd v Commissioner of State Revenue [2024] VSCA 175
Background
This matter concerned a taxpayer’s appeal from an earlier decision of the Tribunal. The taxpayer was a special purpose vehicle established for the purpose of a property development project. In 2014, the taxpayer issued 1.8 million shares to 18 investors.
Issue
Whether the investors acquired their interests in the taxpayer landholder via an ‘associated transaction’, and therefore the acquisition of shares by the 18 investors constituted a ‘relevant acquisition’ for the purposes of s78(1)(a)(ii)(C) of the Duties Act.
Relevantly, acquisitions are ‘associated transactions’ if they ‘form, evidence, give effect to or arise from substantially one arrangement, one transaction or one series of transactions’.
Decision
On 8 August 2024, the Court of Appeal decided the matter in favour of the Commissioner. It found the acquisitions of shares were associated transactions.
The objective facts, when considered together, supported a finding that the acquisitions formed, evidenced, gave effect to or arose from substantially one arrangement, or alternatively one series of transactions.
This was regardless of whether the acquirers were personally acquainted with one another or whether they regarded themselves as independent subscribers.
Wilkinson v Commissioner of State Revenue [2024] VCAT 807
Background
This matter related to the nomination of the purchaser under a contract for the sale of land. The Commissioner had issued an assessment on the basis that ‘land development’ had occurred between the contract and nomination dates, thereby triggering the application of the sub-sale provisions.
Issue
The taxpayer disputed that assessment on the following grounds:
- The nomination had failed to convey any transfer right to the nominee.
- The Tribunal, standing in the shoes of the Commissioner, should exercise the power under s13 of the Taxation Administration Act 1997 to withdraw the assessment.
- Penalty tax (imposed at 20%) and market interest should be remitted because the taxpayer had taken reasonable care to comply with his tax obligations.
Decision
On 28 August 2024, Tribunal decided the matter substantially in favour of the Commissioner. The Tribunal held that a typical nomination can convey a ‘transfer right’ for purposes of s32I of the Duties Act, and did so in this matter.
Further, the Tribunal decided it is unable to exercise the discretion in s13 of the Taxation Administration Act 1997 to withdraw an assessment.
Sim v Commissioner of State Revenue (Review and Regulation) [2025] VCAT 349
Background
This matter concerns the imposition of foreign purchaser additional duty (FPAD) on a transfer of land in Alphington. The land was transferred solely to the taxpayer who was a South Korean citizen at the time of the transfer.
Issue
The taxpayer said the transfer should be exempt from FPAD under s69AJ of the Duties Act. That exemption applies if the land-related interest in residential property is transferred jointly to the foreign purchaser’s spouse/domestic partner who is an Australian citizen at the relevant time.
She submitted the property was effectively transferred to her and her husband jointly because her husband had an equitable interest in the property by virtue of his contributions to the purchase price.
Decision
On 17 April 2025, the Tribunal handed down its decision, confirming the reassessment of FPAD.
In doing so, among other things, the Tribunal:
- considered the primary issue for determination in this matter was whether the relevant land related interest was transferred ‘jointly’ to the taxpayer and her husband
- agreed with the Commissioner’s submission that the relevant ‘land related interest’ is the fee simple estate that was the subject of the transfer, and as the sole transferee of that interest was to the taxpayer solely, the requirement in s69AJ(b) of the Duties Act was not satisfied
Land Tax Act 2005 (Land Tax Act)
Australian Investment & Development Pty Ltd v Commissioner of State Revenue [2025] VSCA 47
Background
The Commissioner issued land tax assessments to the taxpayer for land it owned in Diggers Rest for the 2014, 2015 and 2016 land tax years.
Issue
The taxpayer objected to these assessments, claiming the land was exempt under ss67 and/or s68 of the Land Tax Act (the primary production land exemptions).
The taxpayer claimed:
- the land was being primarily used for the business of growing cassina plants for the purpose of sale
- the taxpayer’s principal business was that business
- a director and shareholder was requisitely engaged in the same type of primary production.
The Commissioner disallowed the objection, and the taxpayer requested the matter be set down as an appeal in the Supreme Court.
Decision – Supreme Court
On 13 December 2023, the Supreme Court handed down its decision in Australian Investment & Development Pty Ltd v Commissioner of State Revenue [2023] VSC 741.
Justice Croft found, in summary, the taxpayer had not discharged its onus of establishing that all the criteria in s67 had been met, and the Commissioner had correctly determined the land was not exempt under s68 of the Land Tax Act.
In doing so, the Court found:
- the land was not primarily used for the business of primary production, owing to the competing uses of the land
- the principal business of the taxpayer was not primary production of the requisite type, because of the various business endeavours of the taxpayer, including land development
- the taxpayer had failed to establish the shareholder of the company was requisitely engaged in the business of the correct type of primary production.
The 2014, 2015 and 2016 land tax assessments were therefore confirmed.
The taxpayer then sought leave to appeal this decision to the Court of Appeal.
Decision – Court of Appeal
On 26 March 2025, the Court of Appeal refused the taxpayer’s application for leave.
Malcolm v Commissioner of State Revenue (Review and Regulation) [2025] VCAT 218
Background
Mr and Mrs Malcolm were assessed (in a single joint ownership assessment) for land tax in the 2023 land tax year on 2 investment properties they jointly owned.
Issue
The taxpayers objected to the joint ownership assessment under s38 of the Land Tax Act. They contended separate land tax assessments should be issued for each property they own jointly.
This would reduce land tax owed because each assessment would access the tax-free threshold and the incremental rate of land tax.
Decision
On 17 March 2025, the Tribunal handed down its decision, finding in favour of the Commissioner and confirming the 2023 land tax assessment – that is, the single joint ownership assessment aggregating all the taxable lands jointly owned by the taxpayers.
Peng v Commissioner of State Revenue (Review and Regulation) [2024] VCAT 880
Background
The matter concerned land owned by the taxpayer in Balwyn and whether it should be subject to land tax for the 2017 to 2022 land tax years.
On the land were 2 connected units. The taxpayer submitted the land should be exempt from land tax because he occupied one of the 2 units as his principal place of residence (PPR) with his wife, asserting only the other was rented.
Issue
Whether the land was used and occupied by the taxpayer as his PPR, and therefore exempt from land tax pursuant to ss54 and 55 of the Land Tax Act for the 2017 to 2022 land tax years.
Decision
The Tribunal provided written reasons on 16 September 2024, finding in favour of the Commissioner.
The Tribunal found the taxpayer failed to discharge his onus of proving he and his wife used the land, or any part of it, as their PPR during the relevant periods, and confirmed the assessments under review.
Carrigan v Commissioner of State Revenue (Review and Regulation) [2024] VCAT 1006
Background
This matter concerned 2 land tax assessments issued to the taxpayer for land at Pascoe Vale for the 2018 and 2019 land tax years.
The taxpayer became the registered proprietor of the land on 2 May 2017 under his late father’s will and remained the owner until he transferred it to his daughter in May 2019.
Issues
Whether the land was exempt from land tax pursuant to s57 of the Land Tax Act. That is, did the PPR exemption in s54(1) of the Land Tax Act continue after the death of the taxpayer’s father for the purposes of the 2018 and 2019 land tax years?
The taxpayer claimed a representative of the SRO told him he had 3 years from the end of the year in which his father died to sort things out and land tax would not be due for that period.
The taxpayer also claimed a representative of a debt collection agency engaged by the SRO contacted him and agreed with him no tax should be due.
Decision
On 18 October 2024, the Tribunal provided written reasons, deciding the matter in favour of the Commissioner.
It found the PPR exemption in s54(1) of the Land Tax Act did not apply because:
- s57 of the Land Tax Act, which allows for a limited extension of the PPR exemption following a person’s passing, ceased to apply once the land was transferred to the taxpayer in his own right on 2 May 2017
- the taxpayer could not claim the PPR exemption himself because he did not live at the land at the relevant dates.
Further, the Tribunal noted the principle that there is no estoppel by representation against a revenue authority is clear and has consistently been applied at both a federal and state level.
In any event, as a matter of comity and consistency, the Tribunal followed the prior decisions of the Tribunal to the effect that no estoppel by representation lies against the Commissioner in relation to his administration of state taxation laws in the absence of anything to suggest those decisions are plainly wrong.
Hu v Commissioner of State Revenue (Review and Regulation) [2025] VCAT 143
Background
This matter concerns the taxpayers’ (Mr Hu and Ms Chen) use and occupation of land they own in Box Hill for the 2020 and 2021 land tax years.
The taxpayers became the joint registered proprietors of the land on 27 December 2019. Following an investigation by the SRO in 2021, land tax assessment notices were issued to the taxpayers for the 2020 and 2021 tax years.
The taxpayers objected to the assessments on the grounds the land should be exempt from land tax because they intended to use and occupy it as their PPR, but were prevented from doing so by COVID-19 restrictions, health concerns and later by storm damage to the property.
Issue
Whether the land was eligible for the PPR exemption in the 2020 and 2021 land tax years in:
- s54 (PPR) and/or s56(1A) (temporary absence – intending to resume occupation after the absence)
- s58 (exemption continues if land becomes unfit for occupation if previously exempt under s54 as the PPR, e.g. because of damage or destruction caused by various events, including a storm).
Decision
The Tribunal provided written reasons on 13 February 2025, finding in favour of the Commissioner, confirming the assessments under review.
The Tribunal found the PPR exemption in s54 of the Land Tax Act did not apply to the land for the 2020 and 2021 land tax years as on the taxpayers’ own evidence, they did not use and occupy the land as their PPR during any of the relevant liability periods.
Consequentially, the exemptions in ss56(1A) and 58(1) of the Land Tax Act were not enlivened in the circumstances because they are preconditioned on the land having been exempt under s54 or used as the taxpayers’ PPR for at least 6 months immediately before the absence.
The Tribunal also agreed with the Commissioner’s contention he was not required to give effect to any tax relief measure in the taxpayers’ circumstances.
The Tribunal also found that regardless, it does not have jurisdiction to consider the applicability of any such tax relief measure or to re-exercise the Commissioner’s general discretion to make or withdraw an assessment.
Peter Gerard Burke v Commissioner of State Revenue [2025] VCAT 493
Background
This matter related to the imposition of vacant residential land tax (VRLT) under the Land Tax Act on land owned by the taxpayer in Yarraville.
The taxpayer accepted the land was not used and occupied as a PPR for the 2019 year. However, he claimed he intended to improve the land for accommodation use, but was constrained by factors beyond his control.
This included COVID-19 restrictions, his poor health condition from November 2019 and a burglary that happened at the land in October 2021.
The Commissioner submitted, on the taxpayer’s own evidence, the land was not PPR land. Furthermore, the factors which the taxpayer identified as constraining his ability to use and occupy the land could not and did not apply to the 2019 year.
Issue
Whether the taxpayer’s land was used and occupied by the taxpayer or a permitted occupant as their PPR for the 2019 year, such that it was not subject to VRLT.
Decision
On 3 June 2025, the Tribunal provided written reasons confirming the assessment for VRLT in respect of the land for the 2019 land tax year, and there was no proper basis to further remit penalty tax, which was imposed at 20%.
Payroll Tax Act 2007 (Payroll Tax Act)
Value Marketing QLD Pty Ltd v Commissioner of State Revenue (Review and Regulation List) [2025] VCAT 34
Background
This matter concerned the door-to-door sales exemption under the Payroll Tax Act.
The Commissioner assessed as a payroll tax group comprised of 2 companies:
- Value Marketing Pty Ltd (the designated group member (DGE)), and
- Value Marketing QLD Pty Ltd (the taxpayer).
The 2 companies sold vouchers for car services by a third-party mechanic, they shared a sole director, website and client, and there was an inter-company loan.
Value Marketing Pty Ltd (the DGE) failed to pay payroll tax it was liable to pay, and was then deregistered in August 2022. The taxpayer was therefore prima facie liable for the payroll tax by reason of it being grouped with Value Marketing Pty Ltd.
Issue
Whether the door-to-door sales exemption in s32(2)(d)(iii) of the Payroll Tax Act applied to exempt the payments made by Value Marketing Pty Ltd (the DGE) to contractors who were employed to sell these vouchers.
The Commissioner submitted there were 3 key requirements to be satisfied to fall within the exception:
- The services provided by the contractor involve the provision of ‘door-to-door sales’.
The door-to-door sales are of goods as opposed to services or other things.
The goods are sold ‘solely for domestic purposes’.
Decision
The Tribunal handed down its decision on 15 January 2025, confirming the assessments under review.
In summary, the Tribunal held the taxpayer had not discharged its onus of proof that the door-to-door sales exemption or 90-day exemption applied, and based on the interconnectedness of the companies, there was no basis for the Tribunal to exercise the discretion to de-group.
As the taxpayer also had not objected to penalty or interest, the Tribunal affirmed the assessments in their entirety.
First Home Owner Grant and Home Buyers Schemes Act 2000 (FHOG Act)
Le v Commissioner of State Revenue (Review and Regulation) [2024] VCAT 1032
Background
In 2014, the applicant purchased land in Truganina and entered a contract to construct a dwelling on the land.
An occupancy permit was issued for the property on 10 August 2016. The applicant applied for and was paid a First Home Owner Grant of $10,000 for the property in September 2016.
The applicant claimed to have resided there from August 2016 to March 2019 and that during this period, her sister stayed with her on occasions and paid board to her. The applicant lived with her parents both before and after the alleged period of occupation.
Issues
Whether:
- the applicant occupied the property as her PPR for a continuous period of at least 12 months commencing within the 12-month period immediately after the completion of the eligible transaction as required by s12 of the FHOG Act
- the penalty of $1,000 should be remitted.
Decision
On 28 October 2024, the Tribunal confirmed the Commissioner’s decisions to reverse the grant and require the applicant to pay the penalty on the basis that:
- the applicant failed to discharge the onus of proof to show, on the balance of probabilities, she resided at the property as her PPR between the relevant period of 10 August 2016 and 10 August 2017. The totality of the evidence suggests it was the applicant’s sister (with her children) who was living at the property and it was most likely the applicant continued to reside with her parents
- the imposition of a penalty was appropriate and the quantum of $1,000, being 10% of the grant, was likely at the low end in the circumstances.