Fanous v Chief Commissioner of State Revenue [2019] NSWCATAD 64

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fanous v Chief Commissioner of State Revenue [2019] NSWCATAD 64 Hearing dates: 28 November 2018 Date of orders: 17 April 2019 Decision date: 17 April 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member Decision: The respondent's 2016 and 2017 assessments for land tax are confirmed. Catchwords: TAXES and DUTIES – land tax Legislation Cited: Duties Act 1996 (NSW) Land Tax Management Act 1956 (NSW) Taxation Administration Act 1996 (NSW) Cases Cited: Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184 Category: Principal judgment Parties: Thomas Fanous ATF Fanous Unit Trust (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: E Graham of counsel for the Respondent

Solicitors G Tanous, as agent for the Applicant Office of the NSW Crown Solicitor for the Respondent File Number(s): 2018/231166 Publication restriction: Nil

reasons for decision

Introduction 1. The applicant, Thomas Fanous as trustee for the Thomas Fanous Unit Trust, is the owner of land located at 37 Woodcourt Street, Ambarvale, in the State of New South Wales (the Land) and seeks review of the 2016 and the 2017 Land Tax Assessments of the respondent, the Chief Commissioner of State Revenue. Each Assessment was based on the full value of the Land, because the respondent had determined that the Thomas Fanous Unit Trust (the Trust) was not a 'fixed trust', but a 'special trust' within the meaning of s 3A of the Land Tax Management Act 1956 (NSW) (LTM Act). That is, the applicant was not given the benefit of the land tax threshold (s 62TBA of the LTM Act) for the relevant land tax years and was assessed on the full value of the Land. 2. The applicant seeks review of each Assessment on the grounds that two Trust Deeds had been prepared in July 2015 and that the 'incorrect' Trust Deed was mistakenly lodged for stamping with the office of the respondent in August 2015. Mr George Fanous (Mr G Fanous), an accountant and the father of the applicant, represented the applicant in these proceedings. He contends that upon the presentation of the 'correct' Trust Deed, the 2016 and 2017 Assessments should have been varied so as to give the applicant the benefit of the land tax threshold. 3. It is the respondent's contention that there is no basis to vary the Assessments, as they accorded with the provisions of the LTM Act and the terms of the stamped Trust Deed at the time the applicant became liable for land tax on the Land for the relevant land tax years. 4. For the reasons that follow, I agree with the contentions of the respondent and on this basis I find that each Assessment should be confirmed.