Cohen v Chief Commissioner of State Revenue [2024] NSWCATAD 136

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cohen v Chief Commissioner of State Revenue [2024] NSWCATAD 136 Hearing dates: 8 April 2024 Date of orders: 22 May 2024 Decision date: 22 May 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: S E Frost, Senior Member Decision: The reassessment of duty in May 2022 is confirmed. Catchwords: TAXES AND DUTIES — dutiable transactions — dutiable value TAXES AND DUTIES — dutiable transactions — deceased estate — concession — variation of the trusts contained in a will Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Duties Act 1997 (NSW) Taxation Administration Act 1996 (NSW) Cases Cited: Cornish Investments Pty Ltd v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 Watts v Chief Commissioner of State Revenue [2017] NSWCATAD 320 Texts Cited: Chief Commissioner of State Revenue, Revenue Rulings – Deceased Estates (DUT 046, 12 February 2020) New South Wales, Second Reading Speech, Legislative Council, 25 June 2008, 9258 (Henry Tsang, Parliamentary Secretary) Category: Principal judgment Parties: Stephen Cohen (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Solicitors: RMB Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 2023/00361277 Publication restriction: Nil

REASONS FOR DECISION

Part A – Summary 1. The Applicant, Mr Cohen or Stephen, disputes a reassessment of duty made by the Chief Commissioner in May 2022 in relation to a contract for the purchase of a Property in Goulburn. The Property had been owned by Stephen's father, Harry Cohen. Harry died in April 2016 and left the Property to his three children – Stephen and his siblings Peter Cohen and Wendy Kent – in equal shares, subject to Stephen's right to continue to occupy part of the Property rent free for 5 years. 2. After Harry's death the three children agreed that Stephen could have the Property if he paid each of his siblings for their one-third share. The executors of the estate proceeded to sell the property to Stephen so that he would become the sole proprietor. 3. Duty was initially assessed and paid on a reduced dutiable value, reflecting the fact that Stephen already had a one-third interest in the Property. However, almost 5 years later, the Chief Commissioner made the reassessment, indicating the dutiable value was the full value of the Property as shown in the contract, not two-thirds of that value as initially assessed. 4. The question for the Tribunal is whether the reassessment is correct.