MD Commercial Pty Ltd v Commissioner of State Revenue

[2019] VSCA 295

Victorian Court of Appeal

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Interrogate

Catchwords

1. Taxation and Revenue
2. › Stamp duty
3. › Exemptions from duty
4. › Transfer to trustee to be held solely for transferor
5. › Whether trust deed powers to sell, subdivide and develop property preclude exemption
6. › Whether property transferred 'to be held' solely as trustee for transferor
7. › Whether change in beneficial ownership
8. › Duties Act 2000 (Vic), s 35(1)(a)
1. Trusts
2. › Bare trusts
3. › Trustee powers and duties
4. › Whether conferral of active powers on trustee inconsistent with trustee 'holding' property solely for beneficiary
5. › Whether power of sale exercisable only at beneficiary's direction precludes characterisation as bare trust

Quick Take

The duty exemption under s 35(1)(a) of the Duties Act 2000 (Vic) is not precluded by the existence of trustee powers to sell, subdivide or develop property where those powers are exercisable only at the direction of the beneficiary/transferor and there is no present obligation on the trustee to develop and realise the property. The 'holding' requirement from Victoria Gardens is confined to cases where there is a present obligation to develop and sell, not merely future possibilities contingent on beneficiary direction. However, the Court left open whether the 'holding' requirement is truly a separate requirement from the beneficial ownership requirement.