Author: Atikah Scott
Certain transactions that did not previously attract stamp duty are now liable, as a result of the State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022 coming into force on 19 May 2022. We outline some of the key changes below.
Change in beneficial ownership of dutiable property
The following transactions will now be liable for stamp duty:
- the creation or extinguishment of dutiable property;
- a change in equitable interests in dutiable property;
- or dutiable property becoming or ceasing to be subject of a trust.
This includes put and/or call options, transfers granting easement and transfers creating a life tenancy (other than by a will or testamentary instrument).
This change does not extend to change in beneficial ownership transactions arising after 19 May 2022, if the transaction occurs in accordance with an agreement or arrangement entered into before the commencement date.
Change in beneficial ownership – Grant of an Option
Put and/or call option transactions, which were previously exempt from duty, will now incur ad valorem duty. Duty is calculated on the amount of consideration paid for the grant of option, including GST (the option fee). Surcharge purchaser duty does not apply under this amendment.
It is important to note that you will not be entitled to a refund for the duty paid if the call option is not exercised.
Acknowledgements of Trust
Duty is now charged on the making of a statement that has the effect of acknowledging that identified property vested, or to be vested, in the person making the statement is already held, or to be held, in trust for a person or purpose mentioned in the statement.
This change in legislation responds to a recent Supreme Court decision which narrows the scope of the declaration of trust charging provisions.
Surcharge purchaser duty will be payable if the trustee of the trust is a foreign person and the dutiable property is residential-related property.
Off the plan purchases
The Duties Act 1997 will exempt defence force personnel from the residence requirement for transactions entered into on or after 19 May 2022, where at least 1 of the purchasers or transferees is a member of the Permanent Forces of the Australian Defence Force and is enrolled to vote in State elections.
Break of marriages and de-facto relationships
For an exemption of duty due to the break up of de-facto relationships to apply, the transfer or agreement must be effected by a binding financial agreement, court order or purchase at a public auction where the property was relationship property immediately before the auction.
Transactions entered into on or after 19 May 2022 are subject to amended legislation which now includes an agreement made for the purpose of dividing relationship property as a consequence of the breakdown of the relationship.
Surcharge Purchaser Duty
Surcharge purchaser duty can now be refunded if, after the transfer of residential land, the land is used by the transferee wholly or predominantly for commercial or industrial purposes.
If you require any assistance with dutiable transactions (including advice on transferring certain business property between family members, land tax or first home owner grants) please contact our experienced Commercial and Corporate Law team on 02 9669 6333 or via email: [email protected]