Victoria Gardens capital gains tax appeal defeated in court
A judge has ruled against an appeal launched by Taras Pty Ltd, the former land owners of a plot that now houses part of the Victoria Gardens complex in Richmond, regarding an objection decision issued by the Commissioner of Taxation.
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In the ruling, the judgement stated that Taras made a capital gain in the 1999 financial year after it transferred its land to a joint venture involving the adjacent land holders that would become the Victoria Gardens complex. As such, Taras owed capital gains tax for the transaction, and was also liable for an administrative penalty for claiming a net loss for 2000 and 2002.
In 1995, Taras purchased four lots of land at 27/45 Burnley Street, Richmond, running east from Burnley Street to the Yarra River for $8.5 million, including stamp duty. Two years later, Taras began discussions with two adjacent land holders, about the “possibility of combining the three properties and having them rezoned to permit a multi-use development” which would include a combination of industrial, residential, retail and commercial components.
In 1998 a joint venture agreement – the Victoria Gardens Property Trust – was executed between the three land holders. Taras agreed to execute a transfer of its land to the newly formed Victoria Garden Developments Pty Ltd as a trustee, for a price of $28.5 million (none of the parties involved disputed the fact that $28.5 million greatly exceeded market value).
For the 1999 year, Taras claimed a tax loss of $1.7 million, on the basis that the its transfer of land to Victoria Gardens Developments was on the basis of the new company as a trustee, so no capital gains tax event occurred. They also filed tax returns for subsequent years claiming losses carried forward from 1999.
The Commissioner disagreed. Auditing Taras, the Commissioner of Taxation decided that a capital gains tax event did occur when the joint venture agreement was formed in August 1998, when Taras ceased to become the outright owner of their portion of the land land, and instead became entitled to interest in the land.
Noting that the $28.5 million figure for the Taras land was far above market value, the Commissioner, after some revision, assessed the land’s value as $16.6 million – resulting in a capital gain of $7.6 million for the 1999 tax year.
Taras has objected to the Commissioner’s decision a number of times.
In this appeal, it argued against the market value assessed by the Commissioner, and also claimed that no actual proceeds were made from capital gains until the entire land was later sold to a third party outside of the Victoria Gardens joint venture.
Victoria Gardens Developments, argued Taras, was merely a mechanism to allow the parties to develop the land. Once the land was transferred from Taras to the Victoria Gardens Developments, Taras still remained the sole beneficiary of the trust over that land, and Victoria Gardens Developments held the land solely for Taras.
The Commissioner has claimed that Taras did make a commercial gain from the transfer of its land to the trust, although cash payments were spread out over a number of years. It also argued that capital gains tax legislation must be used according to ordinary interpretations of its terms, rather than “views of ‘commercial reality’”.