Publication-LTX-02-15

Update to the following bulletin

On 29 September 2015, the Court of Appeal of Victoria handed down its decision in the Commissioner of State Revenue v EHL Burgess Properties Pty Ltd  [2015] VSCA 269.  The Court found in favour of the Commissioner. The Court of Appeal confirmed the Commissioner's interpretation of "greater Melbourne" for the purposes of s64(1) of the Land Tax Act 2005 (up until 18 June 2014, when the legislation was amended). 

Prior to 18 June 2014, "greater Melbourne" means the area within the boundaries of the municipal districts listed in the Third Schedule of the Melbourne and Metropolitan Board of Works Act 1958, as they were immediately prior to their cessation, or in the case of the City of Melbourne, the area as it was at 30 June 2007 prior to the repeal of the Melbourne and Metropolitan Board of Works Act 1958.

Preamble

This bulletin issued on 11 September 2015 outlines the Commissioner of State Revenue’s (the Commissioner’s) response to the decision of the Supreme Court of Victoria in EHL Burgess Properties Pty Ltd v Commissioner of State Revenue [2015] VSC 295, which concerns the definition of "greater Melbourne" in Division 2 of Part 4 of the Land Tax Act 2005.

Summary of facts

The taxpayer (EHL Burgess Properties Pty Ltd) was assessed for land tax for the 2013 land tax year on five properties which, on the Commissioner’s view, straddled the "greater Melbourne" boundary.

The taxpayer contended that because the City of Whittlesea, and the shires of Kilmore and Bulla, had been abolished in 1994, the "municipal districts" of those abolished cities and shires listed in the Third Schedule of the Melbourne and Metropolitan Board of Works Act 1958 had no relevant meaning and were incapable of being applied as legislation.  The taxpayer contended that the result was that no land that lay within the municipal district of an abolished city or shire was within "greater Melbourne".

The Commissioner contended that the areas of the "municipal districts" of the City of Whittlesea, and the shires of Kilmore and Bulla, were ascertainable as matters of historical fact, notwithstanding those cities and shires had been abolished, and were inside "greater Melbourne".

Issues arising for Court’s determination

The issue for determination was whether any, and if so which, of the land identified in the assessment was outside "greater Melbourne" within the meaning of s64 of the Act?

In order to answer that question, the Court had to determine the meaning of the statutory phrase "greater Melbourne" and whether the references to abolished cities and shires had any legal meaning.

Court’s decision

On 3 July 2015, the Supreme Court of Victoria handed down its decision.  The Court upheld the taxpayer’s construction of the statutory definition, concluding, primarily, that the area of "greater Melbourne" (at paragraph 83 of the judgment):

“ … did not include any of the municipal districts in any of the named Cities and Shires in the Third Schedule, with the exception of the City of Melbourne.”

Commissioner’s appeal

On 31 July 2015, the Commissioner lodged an application for leave to appeal the decision with the Court of Appeal.  The Commissioner has asked the Court of Appeal to expedite the hearing. The application for leave to appeal, and the appeal, were heard on 27 August 2015.

The Commissioner will inform taxpayers in affected matters on the proposed course of action once the Court of Appeal determines the application for leave to appeal (and any appeal).