Supreme Court refuses leave to appeal assessment for Landholder Duty on acquisition of control

On 22 December 2025, the Supreme Court refused a request from the taxpayer to grant leave to appeal a VCAT decision which effectively confirmed the Commissioner’s approach to assess landholder duty using the ‘control’ provisions, opening the door for more assessments in cases where a person has not acquired an ‘interest’ in the landholder, rather ‘control’ of the entity. 

The Supreme Court refused leave on all grounds raised by the taxpayer on the basis that the appeal was sought on materially different grounds to that of the VCAT case and that Tribunal has not made any error of law.

The decision in Tao highlights the continual expansion of the way in which the Commissioner can utilise existing stamp duty provisions to capture more dutiable transactions and thus expanding the duty net.  Specifically, taxpayers who are considering changing the composition of the directors and/or shareholders of a corporate trustee of a landholding unit trust without necessarily changing the trust’s unit holdings should pay close attention to the landholder duty control provisions and its applicability to  their circumstance.      

Background to the VCAT decision

For our analysis of the original VCAT decision, please refer to the following link: Director’s appointment triggers landholder duty.

In summary, the Commissioner assessed Mr Tao for landholder duty under the control provisions in relation to him becoming the sole director, secretary and shareholder of the corporate trustee of a landholding trust, absent any change in beneficial ownership.

The key questions before the Tribunal were:

• Did Mr Tao obtain “control” over the trust for the purposes of s 82 of the Duties Act 2000 (Vic) when he became the sole director and shareholder of the corporate trustee?
• Having regard to the text, context and purpose of the provisions, was it necessary for Mr Tao to have also obtained a beneficial interest in the trust for section 82 to be engaged?
• Given Mr Tao’s existing 15% economic interest via his shareholding in Amber Investments (a joint venture SPV previously set up by Mr Tao and two other individuals), was it appropriate to reduce the amount which Mr Tao was deemed to have acquired under the “relevant acquisition”?

The Tribunal found that Mr Tao did acquire control over the WCT Unit Trust for the purposes of section 82, and that it was not necessary that he also acquired a beneficial interest in the trust to engage the provision. The Tribunal however exercised its discretion to reduce the deemed acquisition, and Mr Tao was reassessed for the acquisition of an 85% interest.

Refusal to grant leave: Supreme Court of Victoria

Mr Tao sought leave to appeal to the Supreme Court, arguing that (in summary) the Tribunal failed to construe section 82 correctly, failed to apply fundamental principles of statutory interpretation, and neglected to take into account the overarching purposes of the landholder provisions as an “anti-avoidance” provision.

The Court refused leave for three core reasons, corresponding with a number of the grounds raised by the Applicant –

• Firstly, that the Applicant raised matters which were not raised in the initial VCAT hearing. As appeals may only be brought on questions of law, leave will not be granted where the Applicant seeks to raise new issues, or a different case altogether.
• Secondly, to be granted leave, the Applicant must show a real prospect of success. The Supreme Court ultimately found that VCAT gave consideration to all applicable provisions, including the exercise of the Commissioner’s discretion. The Tribunal have adequate consideration to all relevant facts, and consulted the applicable provisions with sufficient detail, having regard to the purposes of the landholder duty provisions. The Applicant consequently failed to identify any actual error of law in the Tribunal’s approach.
• Thirdly, that the “considerations” put forward by the Applicant, such as the lack of a change in beneficial ownership of the land, the distinction between legal and equitable interests, and the effects of share transfers in trustee companies, were irrelevant or misconceived in the context of applying the control provisions.

What does this mean for taxpayers?

By refusing leave to appeal VCAT’s decision (and therefore, upholding the original VCAT decision), this case highlights the need for caution when making changes to the shareholdings and directors of a trustee of a landholding unit trust. In our view, the approach taken by the Commissioner in applying the control provisions in these circumstances has the effect of broadening the manner in which landholder duty in Victoria has traditionally been assessed. That is through the acquisition of an ‘interest’ in the landholder or an economic entitlement in relation to the landholder.

Clients are advised to seek expert advice when contemplating making changes to the shareholder and/or director of a trustee of a unit trust that holds land in Victoria or simply making changes to the composition of directors in a company that holds land beneficially.

Our stamp duty team at RSM can help you navigate the complexities of the Victorian landholder duty provisions and provide you with advice to prevent any unintended duty consequences. For more information, get in touch with your local office.