Landcom v Commissioner of Taxation [2022] FCA 510

CONSTITUTIONAL LAW – s 114 of the Constitution prohibits the Commonwealth imposing “any tax on property of any kind belonging to a State” – where GST is not imposed on States, but States have voluntarily agreed to pay notional GST – where the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) addresses notional GST, including the amount of notional GST which might be voluntarily paid – where applicant being a State owned corporation sought private binding ruling from Commissioner of Taxation in relation to application of a provision facilitating calculation of notional GST relevant to a proposed sale of land – where Commissioner issued private binding ruling and made an objection decision in relation to notional GST – private ruling and objection decision later claimed only to be a “purported” private ruling and a “purported” objection decision – on commencement of Part IVC appeal, Commissioner argued Court did not have jurisdiction – whether Court has jurisdiction to hear Part IVC appeal – whether there is “matter” within the meaning of ss 75 and 76 of the Constitution – whether there is a justiciable controversy in circumstances where GST cannot be and is not imposed – whether notional GST scheme can give rise to real and enforceable tax liabilities on the part of states – whether issue before the Court was hypothetical – Court found to have jurisdiction – states found to have real interest in the calculation of notional GST – states entitled to seek rulings about how provisions of GST Act apply

TAXATION – where applicant proposed to transfer several freehold interests in land to third party as part of single contract – whether a single “supply” of land for the purpose of calculating the “margin” contained in s 75-10 of the GST Act – held that each supply of a freehold interest was a separate supply

Full decision here