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 2000, 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.