Ackinclose v Commissioner of State Revenue [2026] QCAT 312

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ackinclose v Commissioner of State Revenue [2026] QCAT 312 PARTIES: PAUL ACKINCLOSE (first applicant) CARLEY ACKINCLOSE (second applicant) v COMMISSIONER OF STATE REVENUE (respondent) APPLICATION NO: GAR740-25 MATTER TYPE: General administrative review matters DELIVERED ON: 6 July 2026 HEARING DATE: 12 June 2026 HEARD AT: Brisbane DECISION OF: Member McVeigh ORDERS: The decision of the Commissioner of State Revenue to aggregate the land holdings of Paul Ackinclose and Carley Ackinclose as trustees of the Ackinclose Investments Trust and of the Ackinclose Superannuation Fund for land tax purposes is set aside. The matter is returned to the Commissioner of State Revenue for reconsideration of the assessment of liability of Paul Ackinclose and Carley Ackinclose as trustees for land tax for the financial years arising at midnight on 30 June 2022, 2023, and 2024. CATCHWORDS: LAND TAX – LIABILITY FOR LAND TAX - TRUSTEES – EXEMPTIONS – OTHER EXEMPTIONS – Whether the interests of the beneficiaries of two trusts were, when the taxpayer’s liability for land tax arose, the same AVOIDANCE OF LAND TAX Acts Interpretation Act 1954 (Qld), s 14A(1) Duties Act 2001 (Qld), s 57, s 60 Explanatory Notes, Land Tax Bill 2010 (Qld), cl 20 Land Tax Act 2010 (Qld), s 6, s 7, s 8, s 18F, s 18F(3), s 18G, s 18G(1), s 19, s 20, s 20(2), s 20(3), s 24, s 32, Schedule 4 Superannuation Industry (Supervision) Act 1993 (Cth) -- 1 of 9 -- 2 R v A2 (2019) 269 CLR 507 APPEARANCES & REPRESENTATION: Applicant: Elda Legal Pty Ltd Respondent: D E Fawcett instructed by the Commissioner of State Revenue REASONS FOR DECISION What is this about? [1] In these proceedings there is no dispute about the facts, the law, or indeed the principles of statutory interpretation. The issue is whether Paul Ackinclose and Carley Ackinclose (taxpayers) are liable to pay land tax on the total taxable value of all taxable land that is subject to trusts of which the taxpayers were trustees. [2] Section 20 of the Land Tax Act 2010 (Qld) (the Act) provides: Separate assessment of trust land (1) The liability for land tax of a taxpayer who is a trustee of a trust must be separately assessed on the taxable land that is subject to the trust, as if that land were the only land owned by the taxpayer as a trustee. (2) However, subsection (1) does not apply if— (a) the taxpayer is trustee of more than 1 trust; and (b) the interests of the beneficiaries of 2 or more of the trusts are, when the taxpayer’s liability for land tax arises, the same. (3) If subsection (1) does not apply, the taxpayer’s liability for land tax as trustee of the trusts mentioned in subsection (2)(b) must be assessed on the total taxable value of all taxable land that is subject to those trusts. Facts [3] There is no dispute about the following facts. [4] In the financial years arising at midnight on 30 June 2022, 2023, and 2024: (a) The taxpayers as trustees for the Ackinclose Investments Trust (the Investment Trust) owned 12 Stavewood Street, Meridian Plains. (b) The taxpayers as trustees for the Ackinclose Superannuation Fund (the Superannuation Fund) owned: (i) 7 Pandorea Street, Meridian Plains; and (ii) 15346 Bunya Highway, Murgon. [5] In the financial year 2022-23: (a) trust distributions were made to Paul Ackinclose and Carley Ackinclose from the Investments Trust, in what was effectively a 50:50 split. -- 2 of 9 -- 3 (b) Paul Ackinclose’s membership balance of the Superannuation Fund was 48% of the fund and Carley Ackinclose’s membership balance of the Superannuation Fund was 52% of the fund. [6] In the financial year 2023-24: (a) trust distributions were made to Paul Ackinclose and Carley Ackinclose from the Investments Trust, again effectively a 50:50 split. (b) Paul Ackinclose’s membership balance of the Superannuation Fund was 48% of the Fund and Carley Ackinclose’s membership balance of the Superannuation fund was 52% of the fund. [7] In the financial year 2024-25: (a) trust distributions were made to Paul Ackinclose and Carley Ackinclose from the Investments Trust, again effectively a 50:50 split. (b) Paul Ackinclose’s membership balance of the Superannuation Fund was 48% of the Fund and Carley Ackinclose’s membership balance of the Superannuation fund was 52% of the fund. Legal framework Legislation [8] The Act replaced the Land Tax Act 1915 (Qld) (1915 Act) to modernise it to bring clarity and administrative efficiencies. It was not intended to change the law. Anti- avoidance provisions were updated. A systematic structure was used resulting in the core taxing provisions being located at the front of the Act, followed by exemptions grouped by subject matter, then avoidance and machinery provisions. A dictionary of defined terms replaced the lengthy definitions located with related provisions.1 [9] When the Act was introduced, section 20 was intended to deal with ‘cloned trusts’, i.e. trusts with the same trustee where the interests of the beneficiaries were the same.2 [10] The Act imposes land tax, for each financial year, on all taxable land.3 Liability for land tax for a financial year arises at midnight on 30 June immediately preceding the financial year.4 The owner of taxable land when a liability for land tax arises is liable to pay the tax.5 [11] As a general principle, taxable land is aggregated, i.e. the taxpayer’s liability for land tax is assessed on the total taxable value of all taxable land owned by the taxpayer when the liability arises. However, the general principle is subject to exceptions. A taxpayer who is a trustee of a trust is separately assessed on the taxable land that is subject to the trust, as if that land were the only land owned by the taxpayer as a trustee. However, that exception is subject to an exception if a taxpayer is trustee of more than one trust and the interests of the beneficiaries of two of the trusts were, when the taxpayer’s liability for land tax arose, the same.6 1 Explanatory Notes, Land Tax Bill 2010 (Qld). 2 Ibid cl 20. 3 The Act s 6(1). 4 Ibid s 7. 5 Ibid s 8. 6 Ibid s 19. -- 3 of 9 -- 4 [12] Subject to section 20 of the Act, the rate of land tax to be paid depends on whether the taxpayer is an individual, a company, or a trustee. A foreign company or a trustee of a foreign trust pays a surcharge rate.7 [13] The Commissioner of State Revenue (the Commissioner) has made a Public Ruling providing guidelines for the assessment of land tax where land is held on trust.8 Each ruling provides a worked example. [14] The beneficiaries of a discretionary trust when a liability for land tax arises are the people in whose favour a power of appointment has been exercised during the 12- month period ending when the liability arises.9 The Act defines a beneficiary of a trust as a person entitled to a beneficial interest in land or income derived from land that is the subject of the trust.10 [15] The Commissioner has also made a Public Ruling addressing whether the members of a superannuation fund are beneficiaries as defined in the Act.11 Relevantly it provides that a member of a superannuation fund (other than a statutory superannuation fund) is a beneficiary as defined by the Act.12 [16] The Act was amended in 2019. Division 4 headed ‘Concepts about foreign companies and trustees of foreign trusts’ was added to Part 3. Section 18F defined a trust interest as a person’s interest as a beneficiary of a trust, other than a life interest. It provides that for a trust that is a superannuation fund, a member of the fund has a trust interest in the fund.13 Section 18F mirrors section 57 of the Duties Act 2001 (Qld) (Duties Act). [17] Subsection 18G(1) of the Act provides three ways of calculating a beneficiary’s trust interest depending on whether the beneficiary is: (a) a taker in default under a discretionary trust; (b) beneficiary of a trust, other than a discretionary trust whose entitlement is solely to income of the property held on trust, or (c) another beneficiary.14 [18] If the beneficiary is another beneficiary, the beneficiary’s trust interest is the proportion that the beneficiary’s entitlement under the trust bears to the unencumbered value of the property held on trust expressed as a percentage.15 Section 18G mirrors section 60 of the Duties Act. Principles of statutory interpretation [19] The High Court in R v A216 described the method to be applied in construing a statute as follows: 7 Ibid s 32. 8 Public Ruling LTA020.1.2. 9 The Act s 24. 10 Ibid sch 4. 11 LTA000.2.2. 12 Ibid, [5]. 13 The Act s 18F(3). 14 Ibid s 18G(1)(a). 15 Ibid (c). 16 (2019) 269 CLR 507. -- 4 of 9 -- 5 [32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. [33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. [34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. (footnotes omitted) Taxpayers’ submissions [20] The taxpayers disagree with the Commissioner’s assessment that their interest in the Superannuation Fund is to be determined by reference to the number of members in the fund, rather than by reference to their membership balances. The taxpayers argue that their interests as beneficiaries of Superannuation Fund (48:52) were not the same as their interests as beneficiaries of the Investment Trust (50:50). [21] The taxpayers submit that the Commissioner cannot claim that the interests of the beneficiaries of a superannuation fund are to be determined based on the number of members in the fund, simply because the superannuation fund is not a discretionary trust. They argue that as the superannuation fund is not a discretionary trust, that pursuant to section 18G of the Act, they are to be characterised as ‘other beneficiaries’ and as a consequence their trust interests are to be calculated as the proportion that each beneficiary’s entitlement under the trust bears to the unencumbered value of the property held on trust, expressed as a percentage. [22] In support of their argument, they point to: (a) the Superannuation Industry (Supervision) Act 1993 (Cth) (Superannuation Industry Act) which provides that a member’s interest in a superannuation fund is determined by reference to their membership balances; and (b) section 60 of the Duties Act which provides that the interest of a beneficiary in a trust, other than a discretionary trust, is calculated by reference to the proportion that each beneficiary’s entitlement under the trust bears to the unencumbered value of the property held on trust, expressed as a percentage. -- 5 of 9 -- 6 [23] The taxpayers submit that to determine whether a beneficiary’s interests in an investment trust are the same as a beneficiary’s interests in a superannuation fund two things must be considered: (a) first, whether the nature of their interest is the same; and (b) second, whether the quantitative proportion of their interests are the same. [24] They submit in the case of the Investment Trust, the taxpayers are: (a) merely discretionary objects, being two of a range of potential beneficiaries to whom the trustees might distribute income and capital; (b) takers in default; and (c) entitled at any time to the income, capital and assets of the trust given the terms of the trust of which they are the trustees. [25] In contrast, in the case of the Superannuation Fund, the interests of the taxpayers, as members of the fund, are: (a) determined by the monetary contribution each has made; and (b) strictly regulated by the Superannuation Industry Act which prohibits them from accessing the income, capital and assets of the fund until they meet the conditions of release. [26] The taxpayers disavow any suggestion that the acquisition of the land in Meridian Plains by the taxpayers as trustees of the Investments Trust and the acquisition of the land in Murgon and Meridian Plains by the taxpayers as trustees of the Superannuation Fund was part of a scheme or a contrived arrangement to avoid payment of land tax. They argue that membership of a superannuation fund is not a tax avoidance measure. [27] The taxpayers argue that the purpose of section 20 of the Act was to ensure that different trusts controlled by the same taxpayers were not aggregated for land tax purposes unless the interests of the beneficiaries of those trusts were the same. [28] They argue that if it had been the intention of the legislature that the words ‘the interests of the beneficiaries’ should be interpreted as the identity of the beneficiaries that section 20(2)(b) would have said as much. Commissioner’s submissions [29] Counsel for the Commissioner has not been able to find any previous cases in which the exception to the exception in section 20(2)(b) has been considered. [30] The Commissioner submits that subsections 20(2) and 20(3) should be understood as anti-avoidance provisions in that they provide for the aggregation of land in circumstances where the same trustee places land into multiple trusts with the same beneficiaries to reduce the tax burden that would otherwise be imposed on them. It is submitted that it would be repugnant to the purpose of the Act if subsections 20(2) and 20(3) could be avoided by adjusting the percentages of the beneficiaries’ respective interests in the various trusts. [31] The Commissioner submits that it is significant that the phrase ‘trust interest’ does not appear in section 20(2)(b), while it does appear elsewhere in the Act and in the Duties Act. It is submitted that this was a deliberate drafting choice. -- 6 of 9 -- 7 [32] It is further submitted that the definition of ‘interest’ in the Acts Interpretation Act 1954 (Qld) (AIA) cannot apply to the plural interests in the Act as: The interests of the beneficiaries are not in relation to land or property but in relation to the trusts to be aggregated; or alternatively, the AIA’s definition of ‘interest’ is incompatible with the intention of section 24 of the Act which applies to a beneficiary of a discretionary trust who has received a distribution in the preceding 12 months, in circumstances in which no beneficiary of a discretionary trust can compel a distribution as distribution is at the discretion of the trustee. [33] The Commissioner submits that section 20(2)(b) cannot require a comparison of the nature of the beneficiaries’ interests of the Investment Trust and the Superannuation Fund as the section can apply where the trusts to be aggregated (and thus their beneficiaries’ interests) are different in nature, e.g. a fixed trust and a unit trust. He submits that it is the identity of the beneficiaries that must be the same. [34] The Commissioner argues that the reference to ‘cloned trusts’ in the Explanatory Notes is not to be understood literally and that in any case provides no assistance as it adds nothing to the section. [35] Further, it is argued that there is no mechanism for determining when the beneficiaries’ interests are the same. Consideration [36] It is common ground that: (a) The issue to be determined is the proper construction of the words ‘the interests of the beneficiaries of two or more of the trusts are, when the taxpayer’s liability for land tax arises, the same’; (b) The word ‘same’ means identical; (c) The proportion 50:50 is not the same as 48:52; (d) The general purpose of the Act is to aggregate landholdings, but that general purpose is subject to an exception to ensure that trusts are separately assessed; (e) The taxpayers were owners of taxable land in the financial year arising at midnight on 30 June immediately preceding the financial years 2022-23, 2023- 24 and 2024-25; (f) Both the Investment Trust and the Superannuation Fund are trusts for the purposes of the Act; (g) The Investment Trust is a discretionary trust, and the taxpayers were the beneficiaries of that trust in the years in question; (h) The taxpayers, as members of the Superannuation Fund, are beneficiaries as defined by the Act; and (i) The definition of ‘interest’ in the AIA does not apply. [37] The dispute relates to the meaning to be given to the phrase ‘the interests of the beneficiaries’. The Commissioner argues that it is enough that the identity of the beneficiaries in the Investment Trust is the same as the identity of the beneficiaries in -- 7 of 9 -- 8 the Superannuation Fund whereas the taxpayers argue that two things must be the same - the nature of the beneficiaries’ interests in each of the Investment Trust and the Superannuation Fund and the quantitative proportion of their interests in the Investment Trust and the Superannuation Fund. [38] Context is the starting point of my consideration. Sections 18F and 18G are part of the Act and cannot be ignored when considering the meaning of words in section 20(2)(b). Section 20(2)(b) is silent on the method of calculating the interests of the beneficiaries. It does not say that the interests of the beneficiaries of a superannuation fund (who the Commissioner has ruled are beneficiaries as defined by the Act) are to be determined based on the number or identity of members in the fund. However, sections 18F and 18G provide a method of calculating the trust interests of beneficiaries in a superannuation fund as the proportion that each beneficiary’s entitlement under the trust bears to the unencumbered value of the property held on trust, expressed as a percentage. Sections 18F and 18G are not said to be subject to section 20. [39] The point in time at which the interests must be the same is at midnight on 30 June immediately preceding the financial year in question as that is the time that a taxpayer’s liability to pay land tax arises. [40] In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.17 I prefer the taxpayers’ argument that the purpose of the exception to the exception in section 20 of the Act is to ensure that different trusts controlled by the same taxpayers are not aggregated for land tax purposes unless the interests of the beneficiaries of those trusts are the same. I accept the taxpayers’ submissions that the interests of the taxpayers, as members of a superannuation fund, differ considerably from their interests as beneficiaries of a discretionary trust. The Superannuation Industry Act tightly regulates how and when a member of a superannuation fund can benefit from their membership of the fund. [41] I accept the Commissioner’s submission that subsections 20(2) and 20(3) are to be understood as anti-avoidance provisions. However, that does not assist in addressing the interpretation issue. Before any consideration could be given to the possibility of avoidance by adjusting the percentages of the beneficiaries’ respective interests in the various trusts one must first ascertain what those interests are. The interest of a member of a superannuation fund is calculated by reference to their contribution to the fund whereas the interest of a beneficiary of a discretionary trust is calculated by reference to distributions from the trust, not the source of the funds being distributed. Membership of a superannuation fund is not a tax avoidance measure. [42] There is no need to consider extrinsic material. In any case, as was pointed out in the Commissioner’s submissions, the reference in the Explanatory Notes to ‘cloned trusts’ provides no assistance. The examples in the Public Ruling are not apposite to the facts of this case. [43] The result is not manifestly absurd or unreasonable. It is consistent with the purpose of ensuring that different trusts controlled by the same taxpayers are not aggregated 17 AIA, s 14A(1). -- 8 of 9 -- 9 for land tax purposes unless the interests of the beneficiaries of those trusts are the same. [44] For completeness, I reject the Commissioner’s submission that a deliberate drafting choice was made not to use the phrase ‘trust interest’ in section 20(2)(b). Had that been the case, one would have thought the choice would have been mentioned in the Explanatory Notes. The fact the phrase is not used in section 20(2)(b) but is used elsewhere in the Act and in the Duties Act is not significant given the requirement that the Act be read as a whole. -- 9 of 9 --