Tim Grace was admitted to practice in 1989 and signed the Bar Roll in April 2004.
Before coming to the Bar, Tim was a tax partner with a large firm and is recognised as an expert in property taxes, including transfer duty, landholder duty and land tax, as well as GST and CGT on property transactions. Tim has an active advice practice and tax litigation practice, which extends to advice on, and the conduct of, professional indemnity claims arising from tax advice.
Tim's Master of Laws degree concentrated on tax law and public law and Tim has written a number of technical papers on revenue law; he was also a reporter for the Victorian Reports. He was also a lecturer in the University of Melbourne Masters of Laws program, lecturing in State Taxes.
Tim has considerable experience in State tax disputes, and is involved in many cases against the State Revenue Office - from the early stages of an audit through to proceedings at VCAT, the Supreme Court and the Court of Appeal (and the High Court).
Recent Media Commentary
19 October 2023
States demand federal fix to EV tax chaos - The Australian Financial Review
"Vanderstock: The High Court, by a 4:3 majority, strikes down State taxes on all goods.
Melbourne State Taxes and constitutional law barrister, Tim Grace, said the ruling would clearly be disruptive to State tax arrangements.
Apart from striking down EV duty, the effect of the majority judgment is this that all State and Territory taxes on the transfer of used motor vehicles are now unconstitutional; and all State and Territory taxes on the registration of new motor vehicles are unconstitutional.
These motor vehicle taxes raise around $1bn in revenue each year in each of Victoria and NSW. The revenue raised to date for Victoria by the EV tax was, by contrast, negligible. Other State taxes on goods are also almost inevitably invalid as a result of the majority judgment."
* Tim has been engaged to speak on the State tax implications of the High Court Vanderstock judgment at the Tax Institute's Victorian Tax Forum on 22 March 2024.
Areas of tax specialisation
Duties Act 2000
Stamp duty
Transfer duty
Landholder duty
Foreign purchaser surcharge
Land Tax Act 2005
Land tax
Land tax absentee owner surcharge
Vacant residential land tax
Windfall Gains Tax
Payroll tax
Growth Areas Infrastructure Levy (GAIC)
Congestion levy (car parking levy)
CGT
GST
Income tax
Anti-avoidance
Tax and administrative law
Tax and constitutional law
Some tax cases in which Tim has appeared are noted below:
Australian Investment and Development Pty Ltd v Commissioner of State Revenue [2023] VSC 741 (Led by David Bloom KC): Land tax; primary production exemption under s 67 of the Land Tax Act 2005. The claim for the exemption denied by single judge - an appeal to the Court of Appeal proposed.
GLDT Pty Ltd v Commissioner for ACT Revenue [2023] ACAT 50 (Appeared with Mark Gioskos): Landholder duty; whether amendments to the trust deed altering the two 50% unitholders' rights in relation to the trust property gave rise to the "acquisiton" of an an "interest" for landholder duty purposes. The Tribunal held that it did not, and the assessment was set aside. The Commissioner has filed an appeal (to the ACT Appeal Tribunal).
Razzy Australia Pty Ltd v Commissioner of State Revenue (No 2) [2021] VSC 409; Indemnity costs; Court ordered indemnity costs against the Commissioner, in favour of the taxpayer - for whole of proceeding on the main ground; and under the taxpayer's Calderbank offer, alternatively under the later Offer of Compromise under the Rules. The Court also ordered the maximum rate of penalty interest against the Commissioner, under s 58 of the Supreme Court Act 1958.
Razzy Australia Pty Ltd v Commissioner of State Revenue [2021] VSC 124: Led by John de Wijn QC; landholder duty; whether transaction betwen superannuation funds exempt from landholder duty; court held the transaction was exempt; refund of duty ordered.
Tourism Holdings Australia Pty Ltd v State of Victoria and Commissioner of State Revenue: High Court: Led by David Jackson QC; Section 90 of the Commonwealth Constitution and Chapter 9 of the Duties Act 2000 (Vic); whether motor vehicle duty a constitutionally valid State tax.
Australian Investment and Development Pty Ltd v Commissioner of State Revenue [2019] VSCA 69 (Led by David Bloom QC; Land Tax Act 2005; section 65; exemption for primary production for land outside "greater Melbourne"; principles of statutory construction; challenge to correctness of previous judgment of the Court of Appeal in Commissioner of State Revenue v EHL Burgess Properties Pty Ltd (2015) VSCA 269).
South Wharf Towers Pty Ltd v Commissioner of State Revenue [2019] VCAT 64 (Duties Act 2000; foreign purchaser additional duty; discretion under s 3E to exempt the taxpayer from the surcharge; Tribunal exercised the discretion in favour of the taxpayer exempting the taxpayer from the surcharge, and reducing the Assessment by $1.8m).
Fitzpatrick Investments Pty Ltd v DXC Technology Australia Pty Ltd [2018] VSC 290 (Landlord and Tenant; State taxes; Congestion Levy Act 2005; Whether the Landlord was able to recover congestion levy liabilities under the statutory right of recovery provided in the Congestion Levy Act 2005; Whether the Landlord able to recover the congestion levy liabilities from the tenant under the outgoings clause in the lease).
Australian Investment and Development Pty Ltd v Commissioner of State Revenue [2018] VSC 154 (Land tax and appeals from VCAT; Leave to appeal from order of VCAT to single judge of the Supreme Court; whether the taxpayer's right to object to an assessment is the dominant consideration in the exercise of discretion under s 148 of the VCAT Act - whether or not to grant the taxapyer leave to appeal - relevance of binding Court of Appeal decision on the exercise of the single judge's discretion to grant leave; relevance/effect of the taxpayer's intention to challenge the correctness of the Court of Appeal's decision on the discretion to grant leave to appeal).
Australian Investment and Development Pty Ltd v Commissioner of State Revenue [2017] VCAT 1417 (Land tax; exemption for land used primarily for primary production under s 66 of the Land Tax Act 2005; exemption under s 65 of the Land Tax Act 2005; exemption under s 67 of the Land Tax Act 2005).
North West Melbourne Recyclying Pty Ltd v Commissioner of State Revenue [2017] VSC 726 (Costs judgment; the Commissioner ordered to pay indemnity costs to the taxpayer for the whole of the proceeding; Model Litigant Guidelines considered).
North West Melbourne Reycling Pty Ltd v Commissioner of State Revenue [2017] VSC 647 (Led by John de Wijn QC: Land tax; refunds of overpaid land tax in the previous 5 years under Part 4 of the TAA; Plaintiff's refund entitlement confirmed).
Lotus Projects Pty Ltd v Commissioner of State Revenue [2017] VSC 63 (Land tax; exemption for land vested in a person that is leased for outdoor recreational purposes; s 71(1) of the Land Tax Act 2005; land leased for use as golf course).
Commissioner of State Revenue v ACN 005 057 349 Pty Ltd [2017] HCA 6 (Led by Neil Young QC, and with C Van Proctor; Land tax; whether Commissioner obligated to issue amended assessments upon request; whether Commissioner obligated to make refund of overpaid land tax pursuant to any amended assessments; whether restitution lies for overpaid land tax paid under assessments; the scope of the refund provisions in the land tax legislation).
Vasiliades v Commissioner of State Revenue [2016] VSC 544 (Same land tax assessments were issued 30 months after they had been wihdrawn under an agreement whereby the Commissioner promised to withdraw the assessments if the plaintiff withdrew her VCAT application. Whether the power to assess, or re-issue the same assessments, had been spent as result of that agreement. Whether the Commissioner had the power to re-issue the assessments. Consideration of Cox's case, where High Court held the Commissioner was precluded from re-assessing).
Secure Parking Pty Ltd v Commissioner of State Revenue [2016] VSC 344 (Congestion levy; spaces that are subject to the levy).
Numo Pty Ltd v Commissioner of State Revenue [2016] VSC 274 (Land tax; retrospective assessment of companies on a grouped basis, replacing assessments of companies on an individual basis).
ACN 005 067 349 Pty Ltd v Commissioner of State Revenue [2015] VSCA 332 (Led by Neil Young QC, and with Caryn van Proctor; Land tax; Commissioner's duty to amend and issue amended assessments; mandmamus goes; incidental duty to make refunds of overpaid 'land tax' reflected by the amended assessments; restitution at common law to refund overpayments; non-application of the limitation periods).
Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269 (Led by Stuart Morris QC; Land tax; meaning of 'greater Melbourne').
EHL Burgess Propeties Pty Ltd v Commissioner of State Revenue [2015] VSC 295 (Led by Stuart Morris QC: Land tax; the exemption under s 65 for land used for primary production outside of 'greater Melbourne'; meaning of 'greater Melbourne'; statutory construction).
Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294 (Appeal from VCAT; denial of procedural fairness by the Tribunal; apprehended bias and other breaches of proecedural fairness; Commissioner's role as model litigant considered).
Growthpoint Properties Ltd v Commissioner of State Taxation [2015] SASCFC 65 (Led by Mark Richmond SC, land rich duty; acqusition of a majority interest in a land rich entity where, as a result of the acquisition, the entity became a land rich entity, as defined).
ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76 (Led by Neil Young QC; Land tax; overpayment; restitution at common law; Commissioner's duty to issue amended assessments)
Schachna v Commissioner of State Revenue [2015] VSC 7 (Assessment; right to object)
Burnett v Commissioner of State Revenue [2014] VCAT 616 (Stamp duty; transfer of land from trustee to beneficiary; exempt transfer; Family Court orders; slip rule; effect of court order and date of effect of court order)
CXC Consulting Pty Ltd v Commissioner of State Revenue [2013] VSC 492 (Payroll tax; employment agent provisions)
Growthpoint Properties Ltd v Commissioner of State Taxation [2013] SASC 131 (Led by John de Wijn QC; SA land rich duty).
Taxpayer v Commissioner of State Revenue [2013] VCAT (Land tax, s 57; referred to VCAT: Assessment withdrawn)
Lim v Commissioner of State Revenue [2012] VCAT 1469 (Transfer duty; resulting trust)
CXC Consulting Pty Ltd v Commissioner of State Revenue [2012] VCAT (Payroll tax; employment agent provisions) [on appeal]
Roman Catholic Trust Corporation of the Archdiocese of Hobart v Commissioner of State Revenue (Tas) [2012] TASSC 43 (Transfer duty; exemption, gift).
Tate-Louery & Dwyer Pty Ltd v Commissioner of State Revenue [2012] VCAT160 (special land tax)
TA Global Bhd v Commissioner of State Revenue (Land rich duty)
Conder Tower Pty Ltd v Commissioner of State Revenue [2012] VSC 107 (Transfer duty; consideration for transfer)
Loyalty Connection Pty Ltd v Commissioner of State Revenue [2011] VCAT 2422 (Land rich duty; not just and reasonable exemption)
Charles Lloyd Property Group Pty Ltd v Commissioner of State Revenue [2011] VCAT 1461 (Land rich duty)
Urban Consolidation and Development Pty Ltd v Commissioner of State Revenue [2011] VCAT 593 (Land rich duty)
Urban Consolidation and Development Pty Ltd v Commissioner of State Revenue [2010] VCAT 2124 (Land rich duty)
Challenger Listed Investments Ltd v Commissioner of State Revenue [2010] VSC 464 (with John de Wijn QC and Mark Richmond SC; Land rich duty)
Landrow Properties Pty Ltd v Commissioner of State Revenue [2010] VSCA 197 (land rich duty: this decision was subsequently relied on by taxapyers in a number of other cases, including Regis Investments Pty Ltd v Commissioner of State Revenue [2012] VSC 115; Challenger Listed Investments Ltd v Commissioner of State Revenue [2010] VSC 464 and Commissioner of State Revenue v Challenger Listed Investments Ltd [2011] VSCA 398; and Commissioner of State Revenue v Challenger Listed Investments Ltd [2012] HCATrans 352, where Commissioner's application for special leave to appeal was refused).
Landrow Properties Pty Ltd v Commissioner of State Revenue [2009] VSC 108 (Costs: Land rich duty)
Landrow Properties Pty Ltd v Commissioner of State Revenue [2008] VSC 590 (Land rich duty)
Drouin Commercial Pty Ltd v Commissioner of State Revenue [2009]VCAT 1082 (Transfer duty; sub sales)
Baranov v Commissioner of State Revenue [2008] VCAT 2652 (VCAT - jurisdiction)
Dunlop and Cobram Property Developments v Commissioner of State Revenue (Sub-sales; Referred to Supreme Court; Assessment withdrawn)
Kringas v Commissioner of State Revenue [2005] VCAT (Transfer duty: change of trustee)
Riverland Retreat v Commissioner of State Revenue [2004] VCAT 1366 (Transfer duty: penalties, remission).
