Administrative Decisions Tribunal New South Wales Medium Neutral Citation: J.A.M. Investments Australia Pty Ltd as Trustee of the Geokjian Trust v Chief Commissioner of State Revenue [2011] NSWADT 76 Hearing dates: On the papers Decision date: 13 April 2011 Before: A Verick, Judicial Member Decision: The reassessments issued on 27 January 2010 for the land tax years 2006, 2007, 2008, 2009 and 2010 are affirmed. Catchwords: Land Tax - whether unit holders "owners" Legislation Cited: Land Tax Management Act 1956 Land Tax Act 1956 Land Tax Assessment Act 1910 (Cth) Land Tax Act 1958 (Vic) Cases Cited: CPT Custodians Pty Ltd v Chief Commissioner of State Revenue (2005) 224 CLR 98 Glenn v Federal Commissioner of Land Tax (1916) 21 CLR 490 Sahab Holdings Pty Ltd ATF Kanjian Family Trust v Chief Commissioner of State Revenue (RD) [2010] NSWADTAP 4 Pearson v Commissioner of Taxation [2006] FCAFC 111 Category: Principal judgment Parties: J.A.M Investments Australia Pty Ltd as trustee of the Geokjian Unit Trust (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel : T L Wong (Respondent) Michael Doran (Agent for Applicant) State Crown Solicitor (Respondent) File Number(s): 106062 reasons for decision 1This is an application by J.A.M. Investments Australia Pty Ltd (the "Applicant") as trustee of the Geokjian Unit Trust (the "Trust") to review reassessments issued by the Chief Commissioner of State Revenue (the "Chief Commissioner") on 27 January 2010 in respect of the 2006, 2007, 2008, 2009 and 2010 land tax years. The reassessments were issued pursuant to a determination by the Chief Commissioner that the Trust was a "special trust" within the meaning of s.3A of the Land Tax Management Act 1956 (the "Act") and was not entitled to the tax free threshold in respect of land owned by the Applicant. 2The Applicant's case is essentially that the Trust in the relevant land tax years was a "fixed trust" within the provisions found in s 3A(2) of the Act or, taken to be a "fixed trust" under s 3A(3A) of the Act. Relevant Law and Authorities 3The Act is to be read and construed with the Land Tax Act 1956 which prescribes the tax rates and the tax free threshold for purposes of land tax assessments made under the Act. 4Under s 8 of the Act land tax is charged on land owned at midnight on 31 December immediately preceding the year for which land tax is levied. Pursuant to s 9 land tax is payable by the owner of land on the taxable value of all land owned by that owner which is not exempt from land tax under the Act. Under the Land Tax Act , land subject to a special trust is charged to land tax at the rate prescribed for the relevant land tax year on the full taxable value of the land. The tax free threshold does not apply. 5The relevant provisions s 3A of the Act are in these terms: (1)For purposes of this Act, a trust is a "special trust" if: (a)The trust property includes land, and (b)The trustee of the trust is the owner of the legal estate in the land, and (c)The trust is not a fixed trust. (2)For the purposes of this section, a trust is a "fixed trust" if the equitable estate in all of the land that is the subject of the trust is owned by a person or persons who are owners of the land for land tax purposes (disregarding section 25 (3)). (3)For the purpose of determining whether a trust is a fixed trust under this section, any equitable interest of the trustee as trustee of the trust is to be disregarded. (3A) If a trust satisfies the relevant criteria, the persons who are beneficiaries of the trust under the trust deed are taken to be owners of an equitable estate in the land that is the subject of the trust and, accordingly, the trust is taken to be a fixed trust. (3B) For the purposes of this section, the "relevant criteria" are as follows: (a) the trust deed specifically provides that the beneficiaries of the trust: (i) are presently entitled to the income of the trust, subject only to payment of proper expenses by and of the trustee relating to the administration of the trust, and (ii) are presently entitled to the capital of the trust, and may require the trustee to wind up the trust and distribute the trust property or the net proceeds of the trust property, (b) the entitlements referred to in paragraph (a) cannot be removed, restricted or otherwise affected by the exercise of any discretion, or by a failure to exercise any discretion, conferred on a person by the trust deed. 6For purposes of s 3A(2), s 3(1) of the Act defines who are "owners of the land for land tax purposes". Section 3 relevantly provides: ' Owner ' includes: (a) in relation to land, every person who jointly or severally, whether at law or in equity: Is entitled to the land for any estate of freehold in possession, or Is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits thereof, whether as beneficial owner, trustee, mortgagee in possession, or otherwise, (b) (Repealed) (c) ..., and (d) a person who, by virtue of this Act, is deemed to be the owner." 7The definition recognises the possibility of there being in addition to the legal owner, an owner in equity. In this matter, the issue is whether the holders of units in a unit trust are entitled in equity, to the freehold estate in possession in land which is an asset of the unit trust. 8The definition in issue, as noted by the Appeal Panel in Sahab Holdings Pty Ltd ATF Kanjian Family Trust v Chief Commissioner of State Revenue (RD) (2010) NSWADTAP 4 "has a long history in tax law". An identical definition found in the Land Tax Assessment Act 1910 (Cth) was construed by the High Court in Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490. More recently, the High Court in CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 approved the construction suggested in Glenn by Griffith CJ as follows: "In that case, Griffith CJ said of an argument for the Revenue that it was: 'based on the assumption that whenever the legal estate in land is vested in a trustee there must be some person other than the trustee entitled to it in equity for an estate of freehold in possession, so that the only question to be answered is who is the owner of that equitable estate. In my opinion, there is a prior inquiry, namely, whether there is any such person. If there is not, the trustee is entitled to the whole estate in possession, both legal and equitable.' That statement was a prescient rejection of a "dogma" that, where ownership is vested in a trustee, equitable ownership must necessarily be vested in someone else because it is an essential attribute of a trust that it confers upon individuals a complex of beneficial legal relations which may be called ownership. ... In Glenn , Griffith CJ construed the statutory expression "estate in possession" as denoting "an estate of which some person has the present right of enjoyment", saying that land tax being an annual tax, "the 'owner' of the land is the person who is in the present enjoyment of the fruits which presumably afford the fund from which it is to be paid". Where a trust for accumulation was in operation, those who thereafter were to take the trust estate were not entitled to an "estate of freehold in possession" and were not "owners"."(Footnotes omitted) 9The High Court in CPT had earlier suggested that the correct approach to determine the equitable owner under a unit trust was a "two steps" process: "The first step was to ascertain the terms of the trusts upon which the relevant lands were held. The second was to construe the statutory definition to ascertain whether the rights of the taxpayers under the trusts fell within that definition. In taking those steps, a priori assumptions as to the nature of unit trusts under general law and principles of equity would not assist and would be apt to mislead. All depends, as Tamberlain and Hely JJ put in Kent v SS Maria Luisa [No.2] , upon the terms of the particular trust. The term "unit trust", like 'discretionary trust", in the absence of an applicable statutory definition, does not have a constant, fixed normative meaning which can dictate the application to particular facts of the definition in s 3(a) of the Act. ... the holder of a unit "in a unit trust" has "a proprietary interest in each of the assets which comprise the entirety of the trust fund", and answering it in the affirmative, did not immediately assist in construing the definition of "owner" in the Act. That definition does not speak of ownership of proprietary interests at large, but of entitlement to any estate of freehold in possession."(Footnotes omitted) 10In CPT , the Chief Commissioner of State Revenue of Victoria had issued assessments to two companies on the footing that the companies as unit holders were owners of equitable estates of freehold in possession in the lands held by the trustees of the unit trusts. On an appeal to the Supreme Court (Nettle J) held that the unit holders were not owners within s 3(1) definition of the Land Tax Act 1958 (Vic). This decision was reversed by the Victorian Court of Appeal on the grounds that the equitable interests held by each company as sole unit holder of the respective trusts made them "owners" under s 3(1). CPT was an appeal from that decision to the High Court by the taxpayers. 11In relation to the relevant deeds in CPT , the High Court noted as follows: "The Fund was vested in the Trustee upon trust for the Unit Holders (cll 2.4, 2.6). Both the Trustee (cl 23.2) and the Manager (cl 23.1) were entitled to fees in significant amounts to be paid out of the Fund, and also to monthly reimbursement from the Fund of their costs, charges and expenses (cl 23.5). The beneficial interest in the Fund was divided into units, each said to confer an equal interest in all property for the time being held by the Trustee upon trusts of the Deed, but excluding that part of the Fund credited to a distribution account for distribution to unit holders (cl.3.2). But no unit conferred "any interest in any particular part of the Trust Fund or any investment" and each unit had "only such interest in the Trust Fund as a whole as [was] conferred on a Unit under the provisions contained in [the Deed]" (cl 3.2). Unit holders were not entitled to require the transfer of any property comprised in the Fund, save as provided by the Deed (cl 28.13) but, by agreement with the manager, distribution in specie might be made upon determination of the Fund (cl 15.5.5). A unit holder was not entitled to lodge a caveat claiming an estate or interest in any investment, being realty (cl 7.1.3). Unit holders were bound by the terms of the Deed as if parties to it (cl 8). The Deed contemplated that all units might be held beneficially by a single unit holder (cl 29.4). Clause 20 provided for the distribution to unit holders of periodic income entitlements, and clause 15 for the realisation of the Fund upon its determination and distribution of the proceeds among unit holders. In the circumstances detailed in cl 14 the Manager was obliged to repurchase units which would then be cancelled or be available for resale by the Manager." (Footnotes omitted) 12In allowing the appeal, the High Court, adopted the following remarks made by Nettle J in the Supreme Court as being "in point and conclusive": "It may well be that the income of the fund as finally constituted and distributed will include all the rents and profits generated by a particular parcel of land within the fund. But it is distinctly possible that it will not. Each of the deeds gives power to the trustee to provide out of the receipts for future and contingent liabilities; to apply receipts in the purchase of any property or business; to invest receipts in authorised investments and to deal with and transpose such investments; and the only right of the unit holder is to a proportionate share of the income of the fund for the year. The Commissioner contends that the trustees' powers of disposition and transposition make no difference. ... But I think there is a difference. In the case of a simple trust of the kind instanced by the Commissioner the entitlement of the trustee to apply part of the receipts in defined ways determines the amount of the income which the beneficiary has a right to receive. Contrasting, in a case of a complex unit trust of the kind with which I am concerned, the entitlement of the trustee to apply receipts in defined ways informs the nature of the income that the unit holders have a right to receive: not a total of all the receipts derived from each asset the subject of the fund but rather such if any income as may be derived from the product of the application of gross receipts in various ways." 13The relevant principles, as settled in various cases including Glenn and CPT , have been usefully summarised by the Appeal Panel in Sahab Holdings as follows: "(1) the term 'estate of freehold in possession' refers to an estate of which some person has a present right of enjoyment, as distinct from a right of future enjoyment (2) it is not material that the person has no immediate right of occupation (the land may, for example, be leased, or be subject of a life tenancy) (3) it does not follow that because there is a legal estate of the freehold vested in a trustee that there must necessarily be an equitable estate of the freehold vested in the beneficiary or beneficiaries of the trust - the mere presence of rights protectable by a court of equity does not necessarily mean that those rights will be seen as amounting to a right to freehold in possession (4) the question of whether beneficiaries under a trust have a right to a freehold in possession as distinct from some lesser type of equitable interest depends on the terms of the trust, which, ordinarily, will be found recorded in writing in a formal instrument such as a will or a deed of trust (5) it is necessary, therefore, to examine the terms of the trust deed, and the rights, powers and restrictions for which it provides (6) in the case of a unit trust, the fact that the unit holder has a 100% interest in the assets of the fund is not conclusive as to whether the unit trust holder is an owner in the relevant sense; the terms of the trust as a whole must be examined (7) finally, in a statutory sense of the present kind where liability is fixed on a specified date (here, midnight 31 December 2007), the question is whether there is presently subsisting interest in the land at that date." The Trust Deed 14The Trust, a unit trust fund, was created by a Deed dated 10 May 1996. It has issued units pursuant to the Deed at an issue price of one dollar ($1.00) each on the day the Deed was executed. Two individuals who are directors of the applicant were each issued with 500 units. From then on the Trustee was able to accept subscriptions for units only in accordance with the provisions of the Deed. The provisions governing issue of new units includes clause 5, which stipulates that the Trustee cannot issue units to any person "unless agreed by the Required Majority of unit holders". In Schedule 4 to the Deed, "the Required Majority" is defined as 100% of the unit holders. But no further units have been issued by the Trustee. In addition, provision is made in clause 28(a), for the Trustee, with prior consent of the "Required Majority", to issue units with "such preferred, deferred or other special rights or restrictions, whether with regard to income distribution, voting, return of capital or otherwise as the Trustee may determine". In particular, the Trustee is given power to issue non transferable "Income Units" and holders of such units "shall not be taken into account in determining the Required Majority of unit holders". No "Income Units" have been issued in the relevant years under review. 15The Trust Fund is defined in clause 2(g) to include "moneys subscribed for units in the Trust and all property both real and personal from time to time constituting the Trust". 16Clause 6 allows a holder of General Units to give written notice to the Trustee to cancel any of the units held by the unit holder. The sum payable upon any such cancellation is the full value of the units "determined by dividing the net value of the Trust Fund by the number of units existing at the date of valuation" "less any reasonable costs, charges and expenses incurred by the Trustee or otherwise arising in connection with the cancellation including but not limited to valuation fees, stamp duty (if any) and legal costs of the Trustee calculated on a solicitor/client basis". The amount payable on cancellation may, by agreement between the Trustee and the unit holder, also be satisfied by the transfer to that holder of assets of the Trust fund equivalent in value to the value of the cancelled units. 17The Trustee is given power under clause 14 to collect all income from investments of the Trust Fund and to "pay out of the gross income of the Trust Fund or if insufficient then out of the capital of the Trust Fund all costs, disbursements, commissions, taxes including land tax and income tax, fees (if any) payable to the Trustee and other proper outgoings in respect of the investments of the Trust fund". 18Under clause 15, the Trustee is given the power in the month of June of each year until Distribution Date to "decide in its discretion the amount (if any) of the net income of the Trust Fund which shall be distributed to the unit holders for that year". 19The Trustee is, under clause 16, required to distribute "income available for distribution ... as soon as may be after the amount of distribution has been determined" and individual unit holders are "entitled to receive income proportionate to their holding of units in the Trust fund" or, alternatively, "with the consent of the required majority of unit holders, the Trustee may issue to one or more of them additional units equivalent in value to income entitlement". The Trustee is also given power under clause 16(b) "from time to time to make an interim distribution of income". Under clause 16(c) the "Trustee may in its discretion determine that all or any part of the income of the Trust Fund shall be accumulated in the Trust fund and may in any subsequent financial year distribute any or all such accumulated amounts as income among the unit holders". 20The Trustee is, under clause 17(a), entitled to indemnity "out of the assets of the Trust Fund for any expenditure it may undertake or liability it may incur in the exercise of any power or performance of any duty conferred or imposed upon it ". 21The "Distribution Date" of the Trust is specified in clause 2(b) as the earliest of (i) the eightieth (80 th ) anniversary of the date on which the Deed was executed, (ii) the date which the Trustee declares is the distribution date for the purposes of the Deed, or (iii) the date which the Required Majority of the unit holders declare to be the distribution date for purposes of the Deed. 22The Trustee is under clause 13 entitled "to such remuneration from the Trust Fund as the majority of the unit holders may from time to time determine". 23The Trustee is given, under clause 27, various powers, in addition to those powers vested in trustees by law. These include a power to "manage and control the Trust Fund in such manner as it may deem to be in the best interests of the unit holders" and has power "in respect of the Trust Fund as if it were the absolute and beneficial owner thereof", to invest in any property with "full liberty to realise any asset at any time to reinvest the proceeds of that realisation", to carry on any business and to make as the Trustee may think fit "gifts or advances" from the Trust Fund to any person except the Trustee. Submissions 24The Applicant's contention was that the Trust is deemed to be a fixed trust for purposes of the act because the Trust Deed satisfies the relevant criteria as contained in subsection 3A(3B) of the Act. The Applicant's submissions were as follows: (1) In "light" of clauses 6,15 and 24 "the unitholders as beneficiaries of the Trust are presently entitled to the income of the Trust because they have an indefeasible, absolutely vested, beneficial interest in possession in the trust income and are able to demand immediate payment for the following reasons: the unitholders may receive a portion of the income of the Trust; each unitholder has a right to a proportion of accumulated income of the Trust that is not distributed to them; and each unitholder may individually elect to cancel their units and require the Trustee to distribute to them a proportion of the total accumulated income and a proportion of the total capital of the Trust that is held for their benefit." (2) "As at the particular point in time (being midnight 31 December of the years 2006, 2007, 2008, 2009 and 2010) (... the "relevant dates") the Trustee did not have the power to issue any income units, or any other units with or without voting rights, because the requisite permission was not granted by the required majority". (3) Under clause 26, all "the beneficiaries at the relevant dates had the power to wind up the Trust because the only units on issue were ordinary units". The beneficiaries "are presently entitled to the capital of the trust, and may require the trustee to wind up the trust and distribute the trust property or the net proceeds of the trust property". 25The Commissioner's submissions were as follows: (1) The Trust does not satisfy the definition of "fixed trust" in s 3A(2) of the Act because: (a) "In the present case, there is no express clause which states that the Trustee holds the trust fund on trust for the unit holders, nor is there any clause in the Trust Deed which expressly confers upon the unit holders a proprietary interest in the Trust Fund (in particular, prior to its distribution). There is therefore no basis, in the present case, for inferring that the unit holders have any greater rights in relation to the trust property as a whole than the rights held by the unit holders in CPT ." (b) "... unit holders could cancel their units or seek to wind up the trust, but in neither case were they entitled to distribution of any assets in specie, unless by agreement with the Trustee: see cl. 6, 26. As was the case in CPT , there is therefore no clause that confers an interest in any particular part of the Trust Fund, or any particular investment held by the trustee on the Trusts stated in the Trust Deed." (c) The Trustee has "wide powers to deal with the trust fund" and "also has the broad discretion to determine how much, if any, will be distributed in any given year: cl. 15". (2) The Trust does not satisfy the relevant criteria stated in s 3A(3B) for the following reasons: (a) To satisfy the requirements of s 3A(3B)(a)(i) in accordance with the principles settled in Pearson v Commissioner of Taxation [2006] FCAFC 111 "it is necessary for the Applicant to demonstrate that the Trust Deed specifically provides that the unit holders of the Trust: (a) have an interest in the income of the Trust which is both vested in interest and vested in possession; and (b) have a present legal right to demand and receive payment of that income. The Trust Deed in the present case does not contain any such specific provision or provisions that satisfy both of these requirements." (b) "The effect of cls. 15 and 16 is that unless and until the Trustee determines, in its discretion, that it will make a distribution of income, individual unit holders have no entitlement to receive such a distribution. If the Trustee determines that income is available for distribution, then it will be distributed in proportion to the number of units held in the Trust Deed. However, neither cls. 15 nor 16 grants the unit holders any interest of the Trust, in circumstances where no such determination has been made. This is made clear by the terms of cl. 16(c), which gives the Trustee the right to accumulate the income of the Trust Fund and to distribute any or all such accumulated amounts as income in any subsequent financial years." (3) The applicant has "failed to establish that the Trust Deed specifically provides that the unit holders are presently entitled to the capital of the Trust and that the beneficiaries may require the trustee to wind up the trust and distribute the Trust Fund" for the following reasons: (a) The Trust Deed sets out two methods by which the unit holders may gain access to the capital of the Trust: (a) by requesting cancellation of their units under cl. 6 of the Trust Deed: and (b) by declaration of the Distribution Date under cl. 2(b)(iii), thereby facilitating the winding-up of the Trust under cl.26. The difficulty, however, with both of these mechanisms for calling for the capital of the trust, is that they may not be available to all unit holders." (b) The "Trust Deed expressly contemplates that the Trustee can issue units which will not have any present entitlement to the capital of the trust, as they will not be able to seek cancellation of their shares, nor will they be able to participate in any resolution calling for the winding up of the Trust". (c) The Trust Deed "fails to specifically provide that all units that are issued or capable of being issued having voting rights attached to them by which they may participate in a decision to require the Trustee to wind up the Trust and distribute the Trust Fund". Decision and Reasons 26There is no dispute that the Applicant is the owner of the legal estate in the lands held by the Trust. The issue in dispute is whether the Trust is a fixed trust as referred to in s 3A(2) or, taken to be a fixed trust under s 3A(3A) of the Act. 27For purposes of s 3A(2), "a trust is a fixed trust if the equitable estate in all of the land that is the subject of the trust is owned by a person or persons who are owners of the land for land tax purposes". The question for determination is whether the unit holders in this matter are "owners" of the land held by the Trust within the meaning of the term "owners" found in s 3(1)(a) of the Act. 28There are two limbs to the definition of "owner". Under s 3(1)(a)(i), a person is an owner for land tax purposes if the person is "entitled to the land for any estate of freehold in possession". Under s 3(1)(a)(ii) a person is an "owner" if the person is "entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive the rents and profits thereof". 29The approach to determine ownership, as approved by the High Court in CPT , is to ask whether the holders of units in the unit trust have "a proprietary interest in each of the assets which comprise the entirety of the trust fund" of "entitlement to any estate of freehold in possession". And as indicated in Glenn if the unit holders are not entitled to any estate of freehold in possession, then the Trustee is "entitled to the whole estate in possession, both legal and equitable". 30The determination of the interest of the unit holders under the Trust Deed in this matter turns, in my opinion, on the proper construction of clauses 14, 15 and 16 of the Trust Deed. 31The Trust Fund is vested in the Trustee with the power to manage and control the Trust Fund in the best interests of the unit holders "as if it were the absolute and beneficial owner thereof" (cl. 27(b)). There is no express provision in the Deed which acknowledges that the Trustee holds the Trust Fund on trust for the unit holders. 32The Trust Deed in cl. 14 directs the Trustee to collect all income from the investments of the Trust Fund and gives the Trustee power to pay out of the gross income or, if insufficient, out of the capital of the Trust Fund all costs, disbursements, commissions, taxes and other proper outgoings in respect of the investments of the Trust Fund. 33Clause 15 gives the Trustee power to decide during the month of June, in its discretion, the amount (if any) of the net income of the Trust Fund which shall be distributed to the unit holders in each relevant year. Clause 16 directs that the Trustee pay the unit holders their proportionate shares of the income determined for distribution as soon as may be after the amount for distribution has been determined. 34Clause 16 allows the Trustee to also make interim distributions. However, importantly, the Trustee is also given discretion under cl.16(c) to determine that all or any part of the income of the Trust Fund be accumulated in the Trust Fund with discretion to distribute any or all such accumulated amounts as income among the unit holders in any subsequent financial year. 35The cumulative effect of these clauses is quite clear. The unit holders in each of the years under review were not "presently entitled to the income of the Trust". The unit holders were only entitled to income from the Trust Fund subject to the discretion of the Trustee. Unless a determination was made by the Trustee to distribute any income, the unit holders were not entitled to the income of the Trust Fund. The Trustee could accumulate the income in the Trust Fund with full discretion to either distribute the accumulated amount in a future financial year or invest the accumulated amount pursuant to his wide powers given to him under clause 27. 36In many respects these clauses have an identical effect to those considered in CPT . Like the unit holders in CPT , "the only right of the unit holder is to a proportionate share of the of the income of the fund for the year" after deducting all costs, disbursements, commissions, taxes and other proper outgoings in respect of the investments of the Trust Fund. 37It would also follow that the unit holders, as was the case in CPT , were not entitled to receive, or in receipt of the rents and profits of the land subject of the Trust. 38The matter that remains is whether the unit holders in the land tax years under review were presently entitled to the capital of the Trust and could require the Trustee to wind up the Trust and distribute the Trust property or the net proceeds of the trust property. There is no specific provision in the Trust Deed that gives the unit holders any present entitlement to the capital of the Trust Fund. The only way the unit holders can become entitled to the capital of the Trust Fund is either by requesting cancellation of their units under clause 6 of the Trust Deed or by the declaration of the Distribution Date under clause 2(b)(iii), which would facilitate the winding-up of the Trust Fund under clause 26. 39The difficulty with both approaches is that the options are only available to the holders of "General Units" and not to the holders of "Income Units". The Applicant's case on this issue is that only General Units have been issued and the options were available in land tax year under review. But that submission ignores the exact language of s 3A(3B)(a), which requires that "the deed specifically provides that the beneficiaries of the trust ... are presently entitled to the capital of the trust". There is no such provision in the Trust Deed under review. On the contrary, there is clear provision in the Trust Deed for Income Units to be issued without any entitlement to the capital of the trust. Moreover, as pointed out in CPT , the beneficiaries had to have a present entitlement to the capital of the trust in each land tax under review. At midnight on each relevant 31 December it was impossible to say what capital was available for distribution. 40As was the case in CPT , the unit holders in the relevant years were not entitled to have any land owned by the Trust transferred to them or distributed to them in specie except by agreement with the Trustee upon determination of the Trust Fund(Clauses 6 and 26). 41It follows that land forming part of the Trust Fund was correctly reassessed for the land tax years 2006, 2007, 2008, 2009 and 2010 as being subject to a special trust. 42Accordingly, the reassessments issued by the Chief Commissioner on 27 January 2010 in respect of land tax years 2006, 2007, 2008, 2009, and 2010 are affirmed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2011