White Rock Properties Pty Ltd v Commissioner of State Revenue

[2015] VSCA 77

Victorian Court of Appeal

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Interrogate

Catchwords

1. Taxation
2. › State revenue
3. › Duties
4. › Transfer of dutiable property
5. › Exemption for transfers to trustee or nominee
6. › Whether land transferred 'to be held solely as trustee of the transferor'
7. › Whether element of futurity in statutory language
8. › Whether trust to develop and sell land falls within exemption
9. › Duties Act 2000 (Vic), s 35(1)(a)
1. Taxation
2. › State revenue
3. › Duties
4. › Transfer of dutiable property
5. › Exemption for change in trustees
6. › Whether transfer made 'solely because of' appointment of new trustee
7. › Whether transfer made 'in order to vest the property in the trustees for the time being entitled to hold it'
8. › Whether exemption extends to appointment of trustee of newly created trust
9. › Duties Act 2000 (Vic), s 33(3)
1. Taxation
2. › State revenue
3. › Duties
4. › Dutiable value
5. › Unencumbered value of dutiable property
6. › Whether transfer conveyed 'bare legal title' with nil value
7. › Whether equitable interest of beneficiary qualifies trustee's title
8. › Whether interest 'carved out of' or 'impressed upon' fee simple estate
9. › Duties Act 2000 (Vic), ss 20(1), 22(1)
1. Trusts
2. › Creation of new trust
3. › Partnership agreement and transfer of land to corporate trustee
4. › Whether arrangements gave rise to new trust separate from testamentary trusts
5. › Whether corporate trustee held land as mere custodian or delegate
6. › Distinction between custodianship arrangement and orthodox trust

Quick Take

Where testamentary trustees transfer land to a corporate trustee under a partnership agreement conferring extensive discretionary powers (including power to develop and sell), the arrangement creates a new trust separate from the testamentary trusts. The exemptions under ss 35(1)(a) and 33(3) of the Duties Act 2000 (Vic) do not apply to such transfers. The Lend Lease analysis regarding custodianship arrangements in managed investment schemes is confined to that sui generis context and does not extend to conventional partnership trust arrangements. The dutiable value of such transfers is the full value of the fee simple estate, not nil.