Citera Investments Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2018] VCAT 519

Background

The matter concerned the transfer of land in Dandenong South from four natural persons (purportedly acting as trustees for a unit trust) to the Taxpayer (a company purportedly acting as trustee for a superannuation fund).

The issues for determination were:

• Did the exemption in s 36B Duties Act (‘Property passing to unitholders in unit trust schemes’) apply to the transfer?
• Alternatively, did the exemption in s 41(1) Duties Act (‘Transfers to trustees or custodians of superannuation funds or trusts’) apply to the transfer?

Decision

On 9 April 2018, the Tribunal found that neither exemption applied. In summary:

• The Tribunal found that the transfer was not from a unit trust to a unitholder, and so the exemption in s 36B did not apply. The Tribunal also found that the transfer would in any event not satisfy the requirement in s 36B(2) due to the lack of evidence as to whether all the members of the super fund were members at the relevant time.
• Further, the Tribunal found that as the identity of the members of the super fund was not certain, there would therefore be a change in the beneficial ownership of the property and so the Taxpayer could not fulfil the requirements of s 41.