Background
The taxpayers were husband and wife. Mr Rudd emigrated to Australia in 2013 and Dr Noor followed in 2014. In 2018, they acquired 2 properties, one which they planned to develop and live in, and another to be used as an investment property. At the time of their acquisition, Mr Rudd was a permanent resident of Australia, while Dr Noor was permitted to remain in Australia under the terms of a particular Provisional Partner Visa. Prior to the transfer of the relevant properties, they each completed a Duties Form 62 – Purchaser Statement indicating that they were not a “foreign natural person”.
Following an SRO investigation, it was identified that the Dr Noor’s visa did not meet the requirement as a permanent visa within section 30(1) of the Migration Act 1958 (Cth) (Migration Act). As a result, the Commissioner reassessed the transfers for foreign purchaser additional duty (FPAD) at the rate of 7%, under section 28A of the Duties Act 2000; and interest, at the market rate, under section 24 of the Taxation Administration Act 1997.
The taxpayers submitted that Dr Noor was not a ‘foreign purchaser’ at the relevant times because she held a Provisional Partner Visa that the Department of Home Affairs website described, on Visa Entitlement Verification Online (VEVO), as a visa with an ‘indefinite’ period of stay.
Decision
On 18 February 2022 the Tribunal found in favour of the Commissioner, upholding the FPAD but remitting the interest in full. The Tribunal:
- Determined that the Provisional Partner Visa held by Dr Noor could not be regarded as a permanent visa within section 30(1) of the Migration Act (Cth) because it was not a visa that permitted Dr Noor to remain in Australia indefinitely.
- Accepted the Commissioner’s submission that the results of the VEVO Entitlement Check, which referred to an ‘indefinite’ period of stay, cannot change the legal outcome.
- Dismissed the taxpayers’ ground of submission regarding estoppel. [FPAD should not be imposed because the taxpayers submitted they were misled that Dr Noor held a permanent visa by the Department of Home Affairs (in terms of the VEVO Entitlement Check) and/or the SRO (in terms of the information on its website) – and that this resulted in them incurring FPAD which may otherwise have been avoided]. In dismissing the taxpayers’ submission the Tribunal referenced a number of authorities, including its own decision in Winnett v Commissioner of State Revenue [2019] VCAT 403, a land tax case, in which it was observed at [56] that there is ‘no estoppel against a revenue agency in collection of taxes in accordance with law’.
