The High Court of Australia has dismissed the special leave application by the taxpayer, Vicinity Funds Re Ltd (Taxpayer) to appeal from a decision of the Court of Appeal of the Supreme Court of Victoria (Court of Appeal).

This article sets out the background of the matter and the key findings of the Court of Appeal.

Factual Background

The underlying dispute in this matter concerned the duty payable on the 2018 transfer of two parcels of land which comprise the site of what is now the Emporium shopping centre and the Myer shopping centre.
The Commissioner of State Revenue of Victoria (Commissioner) assessed the Taxpayer on the basis that the dutiable value of the properties were in the sum of $1.5 billion, with the duty payable being $82 million.
The Taxpayer objected contending that the dutiable value of each of the lands were $1.
Before the Commissioner could determine the Taxpayer’s objections, the Taxpayer requested for the objections to be treated as an appeal in the Supreme Court of Victoria (Supreme Court) under the relevant provisions in the Taxation Administration Act 1997 (Vic) (TAA).
On this basis, the appeals process in the Supreme Court commenced. Shortly after, the Commissioner issued its Notice of Determination rejecting the Taxpayer’s objection.
Once the Notice of Determination was received, the Taxpayer then also requested that the appeal should be heard instead by merits review at VCAT.
The Taxpayer then issued a writ of mandamus directing the Commissioner to refer the appeals to VCAT for review.

Key issue

At first instance and at the Court of Appeal, the key issue was whether under the TAA, the Commissioner is obliged to refer a matter to VCAT where a taxpayer has previously requested an appeal to the Supreme Court or vice versa.

Court of Appeal findings

The Court of Appeal confirmed the Supreme Court decision and agreed with the Commissioner that the decision to make a request for referral was binary, being either VCAT or the Supreme Court, and there were no two pathways.

It is instructive to also note that the Court of Appeal noted that if the Taxpayer had wanted to compel the Commissioner to make a determination that has been taking too long, the pathway to do so was not under section 106 of the TAA, but by seeking a mandamus application under ss 101 and 103 of the TAA.

Key Takeaways

This decision highlights the importance of really understanding which pathway is best before making a request for referral, as once the decision is made it can’t then be changed.

This is critical because each forum serves different functions, be it judicial review at the Supreme Court or merits review at VCAT, both of which have pros and cons for the type of appeal being dealt with.

If you are unsure which forum to request a referral of a Commissioner’s decision, our state taxes team can assist with understanding the two options, including providing representation at the Supreme Court or VCAT.

Please feel free to contact our specialist team at:

Phil Broderick
Principal
M +61 419 512 801 | T +61 3 9611 0163
E: pbroderick@sladen.com.au

Liz Wong
Para-legal
T +61 3 9611 0174
E: ewong@sladen.com.au