Tasmanian tax luminary goes down in land tax appeal … Properties held in trust and super fund … Back tax assessed … Incorrect classification as “principal residence” … Facts not law
The land tax people at State Revenue disallowed objections raised by Abbott about assessments on a property at 91 King Street, Sandy Bay
Catherine Geason, the Chief Madge, refused Abbott’s application to strike out bits and pieces of the state revenue’s case.
His appeal to Acting Justice Brian Ross Martin (formerly of the NT Supremes) was also knocked out.
Abbott is a trustee of the Gypsy Trust, which holds the King Street property, and the Austerlitz Superannuation Fund, which holds another property at 61 Princes Street, Sandy Bay.
The Commissioner of Land Tax said that the trust property had been incorrectly described as “principal residence” for the purposes of the Land Tax Act, Tas.
Abbott’s company Vauban Pty Ltd was reassessed for tax payable for five years.
It argued that it is unlawful for the commissioner to levy the tax because:
On September 7, 2018, Abbott wrote to Nathan Read at the Department of Treasury and Finance pointing out that the level expense that the tax assessment imposed on him:
“30K is a lot of money to me. To illustrate the point, last year as I approached retirement I acquired from the US a cased pair of Arrieta Siglo shotguns in 28 gauge and 410. They were right handed and had to be restocked in Victoria to fit me in left hand configuration. It was all a lot of trouble but I saved $50K off the new price ex-Spain (and the price ex-UK, for the same thing made by Holland Holland, would have been over $200K) and also some delay. They owe me all up about $32K; slightly more than the amount which you now claim for exactly nothing and on no reasonable basis.”
Acting Justice Martin thought, “it is difficult to see how it could be said that he would ‘suffer serious hardship if … required to satisfy the liability’.”
In any event, it seems Abbott has made good the payment.
There was much argument about the commissioner’s power to exercise a discretion to forgive the tax liability. Abbott’s company submitted:
“… The conduct of the commissioner in making the reassessments at least for the relevant prior years revolts the senses …”
The commissioner contended that that there was no discretion, but if it existed it would not be exercised in the applicant’s favour.
Martin AJ said in relation to Abbott’s case about the discretion that, “No question of law is involved and this aspect of the appeal is incompetent.”
Further, the retired tax barrister placed heavy reliance on a clause in the trust deed that the commissioner pointed out only applied “where a guardian is named in the schedule”.
No guardian is named in the schedule, “therefore the applicant’s contentions to this end are not only wrong as a matter of legal principle, but also unsustainable as a matter of fact”.
The Chief Madge made findings of fact, not law, so the appeal is dismissed.
All in all, not a great outcome for the Arrieta Siglo fancier.
Vauban Pty Ltd v The Commissioner of State Revenue
Other Abbott news bulletins of interest:
Incendiary emails from Andrew Abbott to the Professional Standard Council and then bar president Chris Gunson SC over the Tas Bar’s proposals for limitation of liability
Mapster protests against uniform bar rules