Stamp Duties Act 1923

This Act may be cited as the Stamp Duties

Act 1923.

In this Act, unless it is otherwise provided or there is something in the context repugnant thereto—

approved form means a form approved by the

Commissioner;

assessment means an assessment or reassessment by the Commissioner under Part 3 of the Taxation Administration

Act 1996, and assess and

assessed have corresponding meanings;

beneficial interest means an equitable interest or an interest vested both at law and in equity in the holder of the interest and includes a potential beneficial interest;

business of primary production means the business of agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, forestry or any other business consisting of the cultivation of soils, the gathering in of crops, the rearing of livestock or the propagation and harvesting of fish or other aquatic organisms;

Commissioner means the person appointed or acting as the Commissioner of State Taxation, and includes a person appointed or acting as a Deputy Commissioner of State Taxation (see Part 9 of the

Taxation Administration

Act 1996);

die means die or other machine or implement used for impressing or imprinting stamps upon documents;

discretionary trust means an arrangement, however made, under which a person holds property, and the beneficial interest in all or any part of that property may be vested in a person (in this Act referred to as an object of the discretionary trust) on the exercise of a discretion, whether subject to any other contingency or not and whether the exercise of the discretion is obligatory or optional;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

duty means duty charged under this Act, and includes penalty tax and interest payable under Part 5 of the

Taxation Administration Act 1996 in relation to duty under this Act;

executed and execution, with reference to instruments not under seal, mean signed and signature;

financial product means—

any stock, share or other similar security of a corporation (including a government, semi-government or municipal corporation), company or society; or

any debenture, debenture stock, bond, note or other similar security of a corporation (including a government, semi-government or municipal corporation), company or society (whether constituting a charge on the assets of the corporation, company or society or not); or

any interest in a managed investment scheme registered under

Chapter 5C of the Corporations

Act 2001 of the Commonwealth; or

any other stock, security or interest brought within the ambit of this definition by the regulations, and includes a right in respect of a financial product but does not include any stock, security or interest excluded from the ambit of this definition by the regulations;

foreign person—see subsection (14);

foreign trust—see subsection (14);

forge includes counterfeit;

GST means the tax payable under the GST law;

GST law means—

A New Tax System (Goods and Services

Tax) Act 1999 (Cwth); and

the related legislation of the Commonwealth dealing with the imposition of a tax on the supply of goods and services;

impressed stamp means—

a stamp impressed or imprinted by means of a die; or

a record imprinted or made by means of any machine or implement, under the direction of the Commissioner in pursuance of this

Act;

instrument includes every written document;

interest in property means a legal or equitable interest and includes a potential, contingent, expectant or inchoate interest;

jurisdiction means—

a State or Territory of Australia; or

a country or place subject to the laws of a particular legislative authority;

material means any sort of material upon which words or figures can be expressed;

money includes all sums expressed in Australian or foreign currency;

potential beneficial interest means the rights, expectancies or possibilities of an object of a discretionary trust in, or in relation to, property subject to the discretionary trust;

property means real or personal property and includes—

an interest in property;

quoted, in relation to any shares, units in a unit trust scheme or interests in such shares or units, includes—

shares, units or interests that have stopped being quoted on a recognised financial market merely because they belong to a class of shares, units or interests the quotation of which has been suspended, unless the body that issued the shares, units or interests has ceased to be included in the official list of the financial market; and

shares, units or interests that comprise a stapled security that is quoted on a recognised financial market;

recognised financial market means—

a financial market operated by the Australian Securities Exchange

Limited; or

a financial market of a stock exchange brought within the ambit of this definition by the regulations;

records means records of any kind (whether in documentary or other form);

rent includes an amount (however it may be described in a lease) to be paid by a lessee to a lessor to reimburse, offset or defray the lessor's liability to GST;

right in respect of a financial product means a right, whether actual, prospective or contingent, of any person to have issued to him or her a financial product, whether or not on payment of any money or other consideration for the financial product;

sale of property includes any transaction under which the property is converted into money;

spouse—a person is the spouse of another if they are legally married;

stamp means an impressed stamp;

stamp duty certificate means a certificate issued under section 3E in relation to an instrument;

stamp duty identification number means a stamp duty identification number as determined by the Commissioner;

stamped means bearing an impressed stamp;

State includes the Australian Capital Territory and the Northern Territory;

stock means any share in the stocks or funds of any State or government, or in the capital stock or funded debt of any company, corporation or society (whether incorporated under a law of this or any other

State, a law of the Commonwealth, or a law of any other place);

transfer, in relation to property, means transfer, assure or vest at law or in equity (whether or not the transfer, assurance or vesting is subject to registration, the issue of a certificate of title or some other similar requirement);

unit in relation to a unit trust scheme means a right or interest (however described) of a beneficiary under a unit trust scheme;

unit trust scheme means an arrangement made for the purpose, or having the effect, of providing for persons having funds available for investment facilities for the participation by them, as beneficiaries under a trust, in any profits or income arising from the acquisition, holding, management or disposal of any property subject to the trust;

wholly foreign owned corporation—see subsection (14);

wholly foreign owned trust—see subsection (14);

write, written and

writing include every mode in which words or figures can be expressed upon material.

An interest of a particular kind in the proceeds of the sale of property is, until the property is sold, taken to be an interest of the same kind in the property. ExampleA beneficial interest in the proceeds of the sale of property is, until the property is sold, taken to be a beneficial interest in the property.

A person is taken to transfer a leasehold or other interest in land held from the Crown if the person surrenders the interest so that the Crown may grant to a person other than the surrenderor a leasehold or other interest in the land.

For the purposes of the application of this Act to and in relation to land (whether referred to as land, real property (or property when it is constituted by land) or a land asset under this Act), the following will be taken to be within the concept of land:

an estate or interest in land (including land covered by water);

without limiting paragraph (a), a right in relation to land brought within the ambit of this paragraph by subsection (5);

without limiting paragraph (a) or

, any of the following or an estate or interest in any of the following:

a mining tenement;

without limiting subparagraph (i), a pipeline constructed under the authority of a pipeline licence under the Petroleum and Geothermal Energy

Act 2000;

an interest conferred by a forestry property (vegetation) agreement (within the meaning of the Forest Property

Act 2000).

For the purposes of paragraph (b) of subsection (4), the following are brought within the ambit of that paragraph by this subsection:

an option to acquire land;

subject to section 31, a right to acquire an estate or interest in land;

any other right or interest prescribed by the regulations.

Subsections (4) and

do not extend to—

a carbon right under the Forest Property Act 2000;

or

a lease granted under the Aquaculture Act 2001, including a sublease of such a lease; or

any other interest excluded from the application of either subsection by the regulations.

For the purposes of this Act (other than Part 4), land will be taken to include anything fixed to land, including anything—

separately owned from the land; or

fixed to the land but notionally severed or considered to be legally separate to the land by virtue of or as a result of another Act or law (so that a separation by another Act for the purposes of that Act will not affect the operation of this paragraph for the purposes of the imposition and calculation of duty).

In connection with the operation of subsection (7)—

the subsection applies to all items fixed to the land whether or not they constitute fixtures at law; and

all fixtures at law will be taken to be within the application of the subsection.

However, if an item is separately owned from land or notionally severed or considered to be legally separate to land—

the item will not be taken to form part of a conveyance of the land unless the item is also conveyed; and

if the item remains fixed to the land (in the manner contemplated by the preceding subsections)—a conveyance of the item without a conveyance of the land is subject to duty as if it were a conveyance of land.

Subsection (9)(b) does not extend to a transportable home.

In this section—

Mining Act means—

the Mining

Act 1971; or

the Offshore Minerals

Act 2000; or

the Opal Mining

Act 1995; or

the Petroleum and Geothermal

Energy Act 2000;

mining tenement means a lease or licence granted—

under a Mining Act; or

under or on account of any other Act that confers, or that ratifies an indenture or other arrangement that confers, a right to explore for, or to recover, any minerals, resources or other materials or substances that would, but for that other Act, be subject to the operation of a Mining

Act;

transportable home means a structure that—

has the character of a dwelling; and

is designed—

to be fixed to the land when being used as a dwelling;

but

to be able to be moved in a state that would allow the structure to be reused as a dwelling at another place, but does not include, in any event, a caravan, campervan or other item that is capable of being registered under the

Motor Vehicles

Act 1959.

If an instrument under the Real Property Act 1886 is executed by a legal practitioner or a registered conveyancer on behalf of a person under a client authorisation (within the meaning of that Act), the instrument will be taken for the purposes of this Act to have been executed by the person who provided the authorisation.

A requirement under this Act for an instrument to be duly stamped will be taken to be satisfied if—

the Commissioner has issued a stamp duty certificate certifying as to the payment of duty in respect of the instrument; and

a stamp duty identification number appears on the instrument, and such instrument will, for the purposes of the law of the State, be treated in the same way as an instrument that has been duly stamped.

If—

the Commissioner has issued a stamp duty certificate certifying that an instrument has been assessed as not chargeable with duty;

and

a stamp duty identification number appears on the instrument, the instrument will, for the purposes of the law of the State, be treated in the same way as an instrument that has been stamped by the

Commissioner with a stamp denoting that it is not chargeable with duty.

In this Act—

a person is a foreign person if—

in the case of a natural person—the person is not—

an Australian citizen within the meaning of the

Australian Citizenship

Act 2007 of the Commonwealth; or

the holder of a permanent visa within the meaning of section 30(1) of the Migration

Act 1958 of the Commonwealth; or

a New Zealand citizen who is the holder of a special category visa within the meaning of section 32(1) of the

Migration Act 1958 of the Commonwealth; or

in the case of a corporation—

the corporation is incorporated in a jurisdiction that is not an

Australian jurisdiction; or

a person who is a foreign person (by virtue of this paragraph) or a trustee for a foreign trust, or a number of such persons in combination—

• holds or hold 50% or more of the corporation's shares;

or

• is or are entitled to cast, or control the casting of, 50% or more of the maximum number of votes at a general meeting of the corporation;

and

a trust is a foreign trust if—

in the case of a trust where the beneficial interests are fixed—a beneficial interest of 50% or more of the capital of the trust property is held by 1 or more foreign persons; or

in the case of a discretionary trust—1 or more of the following is a foreign person:

a trustee;

a person who has the power to appoint under the trust;

an identified object under the trust;

a person who takes capital of the trust property in default;

and

a corporation is a wholly foreign owned corporation if a foreign person or the trustee for a foreign trust, or a number of such persons in combination—

holds or hold 100% of the corporation's shares; or

is or are entitled to cast, or control the casting of, 100% of the maximum number of votes at a general meeting of the corporation;

and

a trust is a wholly foreign owned trust if it is not a discretionary trust and a beneficial interest of 100% of the capital of the trust property is held by 1 or more foreign persons.

In subsection (14)—

hold—a person holds property (including a security of a corporation) if the person—

is registered as the holder; or

is beneficially entitled to the property; or

controls the exercise of rights attached to the property.

This Act should be read together with the Taxation

Administration Act 1996 which makes provision for the administration and enforcement of this Act and other taxation laws.

An instrument relates to property situated in a particular jurisdiction if it—

creates, transfers, redeems, renounces, surrenders, cancels or extinguishes an interest in property situated in the relevant jurisdiction;

or

deals with an interest in property situated in the relevant jurisdiction in any other way; or

acknowledges, evidences or records a transaction to which paragraph (a) or

refers.

A potential, contingent, expectant or other inchoate interest is to be regarded as an interest in property in a particular jurisdiction if the realisation of the potentiality, contingency or expectancy, or the occurrence of any act or event necessary to perfect the interest could result in—

an interest in property situated in that jurisdiction;

or

an interest in the proceeds of the sale of property situated in that jurisdiction.

For the purpose of calculating duty on an instrument that relates to a potential, contingent, expectant or other inchoate interest—

the interest is to be treated as an actual interest ie as if the potentiality, contingency or expectancy had been realised or anything necessary to perfect the interest had occurred; and

if the interest is dependent in any way on the exercise of a discretion or any other contingency, it will be presumed that the discretion has been exercised, or the contingency has been realised, so as to give rise to the greatest possible liability to duty in this State.

An interest in property is taken to be situated in the jurisdiction in which the property to which the interest relates is situated.

This Act applies in respect of an instrument that relates to property situated, or a matter or thing to be done, in South Australia irrespective of whether—

the instrument is within or outside South Australia;

or

the instrument was executed within or outside South

Australia.

If an instrument relates to property situated in part in South

Australia and in part outside South Australia, duty is to be calculated as if the instrument related only to the property situated in South

Australia.

This section operates subject to any other specific provision dealing with how duty is to be calculated on an instrument that relates to property within and outside South Australia.¹

Note1 Section 81B deals with the duty payable on a mortgage over property within and outside the State.

The property in a statutory licence granted under the law of South

Australia, and in any rights deriving from such a licence, is taken to be situated in South Australia.

The Commissioner may, by notice published on a website determined by the Commissioner, determine classes of instruments that may be the subject of an application under this section.

The Commissioner may, on application by a person made in accordance with any requirements of the Commissioner, issue a certificate (a

stamp duty certificate)—

certifying as to the payment of duty in respect of an instrument identified in the certificate; or

certifying that the instrument has been assessed as not chargeable with duty.

A stamp duty certificate must include the stamp duty identification number that is to appear on the instrument and may include any other information the Commissioner thinks fit.

Subject to the exemptions contained in

Schedule

2 and the other provisions of this Act, the stamp duties specified in that Schedule are charged in respect of the instruments specified in that Schedule.

The parties who executed an instrument are jointly and severally liable to pay the duty charged in respect of the instrument.

Subject to any express provision to the contrary, the payment of duty on an instrument is to be denoted on the instrument by an impressed stamp.

The Governor may appoint any person a distributor of stamps.

Any such distributor may be remunerated by a commission upon the value of stamps purchased for disposal by him, or by salary, or by any other allowance, and upon the sale of stamps to any such distributor such discount may be allowed as may be authorised by regulations made under this

Act.

The Treasurer shall, for denoting the several duties chargeable under this Act, provide such stamps or dies as may be required for the purposes of this Act, and may do any other act which may be necessary for effectually collecting the duties.

A stamp which, by any word or words on the face of it, is appropriated to any particular description of instrument shall not be used for any instrument of another description.

An instrument falling under the particular description to which any stamp is so appropriated shall not be deemed duly stamped unless it is stamped with the stamp so appropriated.