Stamp Duties Act 1923

The value for the purposes of this Act of the property conveyed by any conveyance operating as a voluntary disposition inter vivos shall be declared in the conveyance.

For the purposes of this Act, the following instruments shall, subject to this section, be deemed to be conveyances operating as voluntary dispositions inter vivos:

an instrument effecting or acknowledging, evidencing or recording, any of the following transactions:

a transfer of property to a person who takes as trustee;

a declaration of trust; or

the creation of an interest in property subject to a trust;

a transfer of an interest in property subject to a trust;

the surrender or renunciation of an interest in property subject to a trust; or

the redemption, cancellation or extinguishment of an interest in property subject to a trust, whether or not any consideration is given for the transaction;

an instrument to which paragraph (a) does not apply, being a conveyance that is not chargeable with duty as a conveyance on sale.

Subject to subsection (6), an instrument effecting or acknowledging, evidencing or recording, any of the following transactions shall be deemed not to be a conveyance operating as a voluntary disposition inter vivos:

a transfer in specie of property of a company in liquidation made by the liquidator to a shareholder of the company;

a transfer of property for the purpose of effectuating the retirement of a trustee or the appointment of a new trustee, where the

a transfer of property subject to a registered managed investment scheme if the transfer is—

from the responsible entity of the scheme to a person as primary custodian for the responsible entity; or

from a person as primary custodian for the responsible entity of the scheme to the responsible entity;

the property ceases to be subject to the scheme; or

the persons who are members of the scheme do not have the same interest in the property after the property is transferred as they had immediately before the arrangement was entered into.]

a transfer of property by a trustee to a person who has a beneficial interest in the property in the following circumstances:

the person has a beneficial interest in the property (other than a potential beneficial interest) by virtue of an instrument that is duly stamped;

the property was acquired for the trust, or became subject to the trust—

by virtue of an instrument duly stamped with ad valorem duty; or

as a result of a transaction to which section 71E applies in relation to which a statement under that section has been lodged and ad valorem duty paid; or

under 1 of the other paragraphs of this subsection (except paragraph (d)); and

if the trust is a discretionary trust (other than a superannuation fund or a unit trust)—the person acquired the beneficial interest by virtue of a duly stamped instrument that is separate from the instrument under which he or she became an object of the trust;

a transfer to a natural person who is an object of a discretionary trust of property or a beneficial interest in property subject to the discretionary trust, where—

the discretionary trust was created by an instrument that is duly stamped; and

the Commissioner is satisfied that the discretionary trust was created wholly or principally for the benefit of that person or a family group of which that person is a member;

a transfer of a potential beneficial interest in property subject to a discretionary trust, where—

the discretionary trust was created by an instrument that is duly stamped wholly or principally for the benefit of a family group;

the transfer is made by one member of the family group to another member of the family group, or by a member of the family group by way of surrender or renunciation of the potential beneficial interest and another member of the family group is to continue as an object or beneficiary under the trust;

a transfer to or by a person in his capacity as the personal representative of a deceased person or the trustee of the estate of a deceased person, being a transfer made in pursuance of the provisions of the will of the deceased person or the laws of intestacy and not being a transfer in pursuance of a sale;

any variation of the terms of a trust, where the trust was created by an instrument that is duly stamped and the variation does not involve the creation or variation of any beneficial interest in property subject to the trust;

a transfer of a prescribed class.

Subsection (5) does not apply in relation to a transfer of property or a beneficial interest in property to a person who has, prior to the transfer, a beneficial interest in the property but who takes the property or interest transferred to him as trustee under a further trust.

The following provisions apply for the purposes of subsection (5)(e) (including the exception to paragraph (e)):

the net value of property is calculated by subtracting from its unencumbered value the amount of any liability subject to which the property is transferred (other than a liability that is to be discharged after the transfer takes effect by the trustee or for some other reason is not finally assumed by the transferee);

in calculating the value of a beneficiary's interest in a trust, all assets and liabilities of the trust are to be taken into account;

a member of a superannuation fund is to be taken to have a beneficial interest in the property of the fund equivalent to the amount to which the member would be entitled on transfer of membership to another fund;

if—

property of a trust consisting of land is divided by community plan under the Community Titles

land subject to the division is subsequently transferred to a beneficiary of the trust; and

the Commissioner is satisfied that the land the subject of the transfer was transferred to the beneficiary pursuant to the trust and is identifiable as property in which the beneficiary had a fixed beneficial interest contingent on, and arising from, the division, the transfer will be taken to have been a transfer to the beneficiary of property in which the beneficiary had a beneficial interest.

An instrument effecting or acknowledging, evidencing or recording a transfer of property by a trustee to a self managed superannuation fund in the following circumstances will be taken not to be a conveyance operating as a voluntary disposition inter vivos:

the property was acquired for the trust or became subject to the trust—

by virtue of an instrument duly stamped with

as a result of a transaction to which section 71E applies in relation to which a statement under that section has been lodged and ad valorem duty paid; and

the self managed superannuation fund financed the acquisition of the whole of the property by the trustee (either by providing money, obtaining a loan or other financial accommodation, or providing the consideration for the purchase in some other form); and

the whole of the property being transferred has been held on trust for the benefit of the self managed superannuation fund.

A conveyance operating as a voluntary disposition inter vivos that transfers a potential beneficial interest in, or in relation to, property subject to a discretionary trust shall, subject to this Act, be chargeable with duty as if it transferred the beneficial interest in the property that the transferee would have if the discretion under the discretionary trust were so exercised as to confer upon him the greatest benefit in relation to that property that can be conferred upon him under the discretionary trust.

An instrument that acknowledges, evidences or records a transaction of a kind referred to in subsection (3)(a) (not being a copy within the meaning of section 19A that is duly stamped) shall, for the purposes of this Act, be deemed to have effected the transaction and to have been executed by the parties to the transaction at the same time as the transaction took place.

For the purposes of this Act, in determining the value of property transferred by a conveyance operating as a voluntary disposition inter vivos, no regard shall be had to the fact that the person to whom the property is transferred takes or is to hold the property subject to a trust or has a beneficial interest in the property.

Where an instrument of a kind referred to in subsection (3)(a) is duly stamped under this Act, the

Without limiting the generality of subsection (12), where an instrument that is duly stamped transfers or creates, or acknowledges, evidences or records, the transfer or creation of any property or interest in property and the person to or in whom the property or interest in property is transferred or vested takes the property or interest in property as trustee, the Commissioner shall, upon application and production of that instrument, stamp any declaration of trust or other instrument that acknowledges, evidences or records the fact that the person took the property or interest in property as trustee with a particular stamp denoting that it is duly stamped.

Notwithstanding any other provisions of this Act, where—

property has been transferred to a person who took as trustee;

that property is subsequently transferred back to the transferor;

the Commissioner is satisfied that no person other than the transferor under the first transfer has had a beneficial interest in the property during the period elapsing between the transfers, the Commissioner shall, if ad valorem duty was paid in respect of the first transfer, upon application, refund to the person who paid that duty the amount of the duty.

This section does not apply to an instrument that relates to a unit trust scheme, an interest in a unit trust scheme, a financial product, or an interest in a financial product, executed on or after

In this section—

a trustee under an implied trust; or

a person who holds property subject to a discretionary trust;