State taxes generate a disproportionate share of the disputes we see, for a simple reason: the exemptions are narrow, the declarations are signed early, and Revenue NSW reviews them years later. By the time an assessment issues, the transaction is long finished and the evidence has to be reconstructed.
The three recurring fronts are surcharge duty and surcharge land tax for foreign persons, residence-based concessions and exemptions, and the payroll tax contractor and grouping provisions. All three turn on facts, and all three are decided on what can be proved.
Where we act
What we do
- Surcharge purchaser duty and surcharge land tax — foreign person status, trust beneficiary classes and exemptions
- First home buyer duty exemptions and concessions, including residence requirement investigations and reviews
- Principal place of residence land tax exemption, including intended use and construction cases
- Primary production land tax exemption
- Landholder duty, aggregation and the treatment of leasehold improvements
- Corporate reconstruction and consolidation relief
- Trust deed amendments to exclude foreign beneficiaries
- Payroll tax: the contractor provisions and exemptions, employment agency provisions and grouping
- Objections, reviews and NCAT applications against Revenue NSW assessments
- Interest and penalty tax remission — market rate, premium rate and penalty tax are three separate arguments
Common situations
What we are usually brought in on
A declaration was signed and turns out to be wrong
Purchaser declarations are made early, often on a conveyancing file where duty advice was expressly excluded from the retainer. The assessment arrives years later with interest and penalty tax attached.
‘I relied on my lawyer’ is the entire defence
It can succeed — but only where the retainer, the question asked and the advice received are in evidence. A belief that advice should have been given proves nothing.
The residence requirement was not met and the concession is clawed back
The residence conditions attached to first home and other concessions are strict, and the evidence of actual occupation is usually thin. What matters is what the contemporaneous records show.
A discretionary trust has not excluded foreign beneficiaries
A wide beneficiary class can make a trustee a foreign person for surcharge purposes even where every actual beneficiary is Australian. The fix is a deed amendment, and the timing of it matters.
Contractors are treated as employees for payroll tax
The contractor provisions deem many genuinely independent arrangements to be relevant contracts unless an exemption applies. Grouping then multiplies the exposure across entities.
How we work
Our approach
Evidence first, again. State revenue disputes are evidence disputes. The first step is almost always establishing what documentary record exists and what it shows.
Run remission separately. Premium interest, market rate interest and penalty tax are decided on different tests. They should be argued separately, not bundled.
Deal with the deadline. Objection periods for state taxes are short and unforgiving. Where a date has passed, an extension application has to explain the delay properly.
Common questions
Can surcharge purchaser duty be refunded?
In some circumstances, yes — for example where a permanent resident satisfies a residence requirement within the required period, or where the assessment was made on an incorrect view of foreign person status. Each refund pathway has its own conditions and time limits, so the specific basis needs to be identified before an application is made.
How long do I have to object to a Revenue NSW assessment?
Generally 60 days from the date of service of the notice of assessment. A late objection can be lodged, but Revenue NSW has a discretion whether to consider it, and the application has to explain the delay. Treat the 60 days as a hard deadline.
Does excluding foreign beneficiaries from a trust deed fix surcharge?
An amendment that irrevocably excludes foreign persons from benefiting can take the trustee outside the foreign person definition for surcharge purposes. The requirements are specific — including that the exclusion be irrevocable — and the timing of the amendment relative to the transaction and the land tax year matters.
Related insights
Further reading
State taxes
“I relied on my lawyer” is not a defence. Proof of advice is.
Reliance on an adviser only supports penalty and interest remission where the retainer, the question asked and the advice received are actually in evidence.
Trusts
Five traps hiding in old trust deeds
Appointor dead-ends, no income definition, defective default clauses, foreign beneficiaries and missing streaming powers: five defects in older trust deeds.
Have a matter you want a straight answer on?
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