Stamp Duty Document Guide (Opinions)

Please see Information Circular 75 for details of changes to stamp duty announced in the State Budget 2015-16.

As part of the State Budget 2015-16 stamp duty will be abolished on various non-realty transactions executed on or after 18 June 2015. These transactions are identified with an asterisk (*) below.

Duty will continue to be liable on these transactions executed on or after 18 June 2015 until the Statutes Amendment and Repeal (Budget) Bill 2015 is legislated. In the interim, stamp duty will be paid by the Government on taxpayer's behalf by way of ex gratia relief.


While the Stamp Duty Document Guide (Opinions) is a comprehensive list it is not possible to anticipate and describe every document that will be required to be submitted for assessment of duty by the Commissioner of State Taxation (the "Commissioner").

A considerable number of instrument classes are not required to be submitted for an assessment of duty. With the introduction of RevNet, taxpayers/agents can now self determine duty, stamp and pay the duty on the instruments in their own office.

Instruments that are able to be processed via RevNet should be stamped according to the approval given to authorised users and should not be forwarded to RevenueSA for the purpose of having the Commissioner make an assessment. These documents are listed in the Stamp Duty Document Guide (Self-Determined).

If a document is not included in the list of approved documents for processing on RevNet in the Stamp Duty Document Guide (Self-Determined), it must be submitted for the assessment of duty by the Commissioner.

Unless otherwise specified, sections referred to in the Stamp Duty Document Guide (Opinions) relate to the Stamp Duties Act 1923. Similarly, a reference to an Information Circular or Revenue Ruling is a reference to a Commissioner's Information Circular or Revenue Ruling unless otherwise indicated.

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Select from the following classes of documents:

Agreements
*Agreement for the dissolution of a land owning partnership
 To be submitted for assessment of duty together with:
  • a partnership valuation as at the date of the dissolution (if available);
  • the balance sheet of the partnership as at the date of dissolution together with evidence of current market value of assets; and
  • land Transfer or section 71E statement and statutory declaration (if appropriate).

NOTE: If the partnership does not own land then there is no stamp duty liability

*Agreement for the transfer of a part interest in a land owning partnership (including retirement of a partner, introduction of a partner)
 To be submitted for assessment of duty together with:
  • a valuation of the partnership as at the date of the conveyance (if available);
  • the profit and loss statements for the last three years of the partnership;
  • the balance sheet of the partnership showing assets immediately before and after the admission/retirement/change of interest in the partnership; and
  • a copy of the partnership agreement; and
  • land Transfer or section 71E statement and statutory declaration (if appropriate).

NOTE: If the partnership does not own land then there is no stamp duty liability

 Application for amendment of a deposited community plan where the amendment effects a conveyance of land
 

To be submitted for assessment of duty advising the effect of the amendment.

If the amendment effects a conveyance of land, a copy of the original Community Plan and the new Community Plan must be produced.

 Application for the deposit of a strata plan (existing scheme)
 If the registered proprietors for the units listed in the Mode of Issue are different persons for each unit the Application must be submitted for assessment of duty.
 Application for the amendment of a strata plan
 

To be submitted for assessment of duty advising the effect of the amendment: If the amendment effects a conveyance of land, a copy of the original Strata Plan and the new Strata Plan must be produced.

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Conveyances
 Conveyance of an interest in a land rich entity (for transactions prior to 30 June 2011)
 

Refer to the repealed provisions of Part 4 for full particulars regarding the application of this section.

A Section 98 Return Acquisition Statement of Interests in a Land Rich Entity is to be submitted for assessment of duty.

 Conveyance in an interest in a land holding entity (for transactions after 1 July 2011)
 

Refer to the provisions of Part 4 for full particulars regarding the application of this section.

A Section102B Return – Acquisition of Interest in a Land Holding Entity is to be submitted for assessment of duty.

 Conveyance arising from or forming one transaction or a series of transactions (Section 67)
 

If it is believed that Section 67 does apply, the transfers can be stamped using RevNet. For a more detailed explanation of the operation of Section 67 refer to the Stamp Duty Document Guide (Self-Determined).

In circumstances where Section 67 may apply but it is believed that it should not to the particular transaction then the document must be submitted for assessment of duty, with a detailed submission stating why Section 67 is not applicable.

If conveyances are subject to Section 67 and they are being stamped separately or at different times, they must be submitted for assessment of duty together with details of any previous assessments that are part of the Section 67 series.

 Conveyance of an interest in an exploration tenement pursuant to Section 71D
 

A conveyance of an exploration tenement must be submitted for assessment of duty. Exploration tenement means:

  • an exploration licence granted under the Mining Act 1971;
  • an exploration licence granted under the Petroleum & Geothermal Energy Act 2000;
  • an exploration permit for petroleum granted under the Petroleum (Submerged Lands) Act 1982; or
  • an exploration licence granted under the Offshore Minerals Act 2000.

Refer to Section 71D for full particulars regarding the application of this section and the criteria required for this concession.

 Transactions effected without creating a dutiable instrument (Section 71E)
 

This section applies to a transaction effected without creating a dutiable instrument which results in a change in the ownership of a legal or equitable interest in three types of property. These are:

  • land; or
  • an interest in a land owning partnership.

In this type of situation the parties are liable to complete a statement which becomes the dutiable instrument. Stamp duty is payable on the statement as if it were a conveyance effecting the transaction to which it relates.

Where the Section 71E statement relates to a conveyance of:

  • a multi-jurisdictional land owning partnership (for consideration or no consideration); or
  • an interest in a land owning partnership (for consideration or no consideration);

it must be submitted for the assessment of duty by the Commissioner accompanied by:

  • a schedule listing the location and values of the various assets subject to the sale agreement
  • the latest balance sheet and the profit and loss statements of the partnership for the last three years
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Conveyance of Land
 Conveyance of land in order to correct an error (Section 107)
 

To be submitted for assessment of duty together with:

  • a submission that includes details of how the error occurred.

Depending on the circumstances, a statement or statutory declarations may be required from the parties detailing the history of the transaction and how the error occurred.

 Conveyance of land where the value of land is disputed
 If land is being transferred, either by way of sale or gift, and you consider the value of the land is less than the Valuer General's value, you should submit the transfer for assessment of duty together with your evidence of value of the subject land.
 Conveyance of land pursuant to Section 67
 

If it is believed that Section 67 applies to a series of transfers, the transfers can be stamped using RevNet. For a more detailed explanation of the operation of Section 67 refer to the Stamp Duty Document Guide (Self-Determined).

In circumstances where Section 67 may apply but it is believed that it should not to the particular transaction then the document must be submitted for assessment of duty, with a detailed submission stating why Section 67 is not applicable.

If conveyances of land are subject to Section 67 and are being stamped separately or at different times, they must be submitted for assessment of duty together with details of any previous assessments that are part of the Section 67 series.

 Conveyance of land pursuant to a Deed of Family Arrangement
 

To be submitted for assessment of duty together with:

  • a stamped Deed of Family Arrangement (or copy): and
  • a copy of the will of the deceased person.
 Conveyance of land from a trustee to a beneficiary
 

To be submitted for assessment of duty together with:

  • the stamped document effecting or acknowledging, evidencing or recording the trust arrangement; or
  • if there is no trust document, evidence of the trust arrangement, e.g. letters or correspondence between the parties; and
  • evidence of payment of the purchase funds by the beneficiary.
 Conveyance of property from a trustee to a trustee
 

To be submitted for assessment if the transfer relates to a split trust or sub trust arrangement with:

  • details of why you consider that Section 71(5)(d) should apply.

Refer to the Stamp Duty Document Guide (Self-Determined) Trustee to Trustee for commentary on these transfers.

 Conveyance of land where the contract is dated on or before 11 July 2002
 

To be submitted for assessment of duty with:

  • the contract for sale and purchase of the property.

A transfer of property pursuant to a contract dated on or before 11 July 2002 will be stamped at the rates applicable at that time.

 Conveyance of land involving adverse possession
 

To be submitted for assessment of duty together with:

  • evidence of the value of the land.
 Conveyance of land from a Custodian to an SMSF Trustee
 

This conveyance is is exempt from duty pursuant to Section 71(7a) of the Act.
To be submitted for assessment of duty together with:

  • a copy of the custodian deed.
 Conveyance of land pursuant to Section 71CA
 

This conveyance is exempt from stamp duty if the land being transferred relates to a marriage that has been dissolved or annulled or the Commissioner is satisfied that a marriage or de facto relationship has broken down irretrievably. The conveyance must be pursuant to a Family Law agreement or a Family Law order which provides for the disposition of the property between the parties to the marriage or former marriage or former de facto relationship and no other person, other than a trustee of a superannuation fund (if relevant) takes or is entitled to take an interest in the property in pursuance of the document.

Pursuant to Section 71CA, a transfer of land from a company or trust to a spouse of the marriage or former de facto partner pursuant to a Family Law agreement or Family Law order may be exempt from stamp duty. The transfer must be submitted for assessment together with a copy of:

  • the Family Law Order;
  • the Family Law agreement; or
  • a copy of the trust deed.

Your submission must also advise:

  • the character of the property involved;
  • the extent that the parties to the marriage own and/or control the company or trust involved (the extent to which the company itself could be said to be an asset of the marriage);
  • the identity and role of any other owners or beneficiaries of the company or trust; and
  • the relationship between any other persons associated with the transfer and the parties to the marriage.

Refer to the Information Circular No. 30.

 Conveyance of land pursuant to Section 71CB
 

This conveyance is exempt from stamp duty if the land being transferred between spouses or former spouses or domestic partners of former domestic partners is an interest in the shared residence or former shared residence and the property does not form part of industrial or commercial premises or land used for primary production. If it does, then the instrument must be submitted for assessment of duty together with a completed Section 71CB Statutory Declaration with advice of the value for:

  • the house and curtilage area; and
  • the remaining area.
 Conveyance of vacant land - Qualifying Land
 

A conveyance of qualifying land as defined in Section 71DC of the Act which is vacant land may be eligible for the stamp duty reduction.

To be submitted for assessment of duty together with:

  • a copy of a SAILIS report including details of the Zone/Policy/Precinct.
 Conveyance of land - Corporate Reconstruction
 

If the transfer of land satisfies the criteria of Division 4 Part 4AA of the Act then the transfer of land is exempt from duty.

To be submitted for assessment of duty together with:

  • a submission detailing the Corporate Reconstruction and addressing the criteria of Division 4 Part 4AA of the Act.
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Declarations Of Trust Over Land
 

This document can be in the form of:

  • an Agreement that effects or acknowledges, evidences or records the creation of a trust arrangement;
  • a Deed that effects acknowledges, evidences or records the creation of a trust arrangement; or
  • any other document that effects or acknowledges, evidences or records the creation of a trust arrangement.

This document is commonly known as a Declaration of Trust or Acknowledgement of Trust.

Where a document transferring  land has been stamped with ad valorem stamp duty and there is a further document that evidences or records the fact that the transferee took the property or interest in the property as trustee (i.e. the Declaration of Trust or Acknowledgement of Trust), then that further document can be stamped using RevNet – refer to the Stamp Duty Document Guide (Self-Determined).

If a Declaration of Trust does not fit these criteria, it must be submitted for assessment of duty together with:

  • evidence of payment of the purchase funds by the beneficiary, eg, financial records evidencing the payment of the purchase funds;
  • evidence that the trust arrangement was in place at or prior to the acquisition of the property by the trustee.
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Deeds
 

The scope of deeds is so wide it is not possible to list all types here, but some common examples that must be submitted for assessment of duty are:

  • Deed of Family Arrangement dealing with a deceased estate (and a transfer of land pursuant to a Deed of Family Arrangement);
  • Deed of Dissolution of Partnership – see under Agreements;
  • Deed of Variation of a Trust which adds new beneficiaries to the trust or results in a resettlement of the trust;
  • Deed of Gift; and
  • Deed that effects or acknowledges, or evidences or records the creation of a trust arrangement, subject to the criteria listed under Declarations of Trust.

For examples of deeds that must be processed using RevNet, refer to the Stamp Duty Document Guide (Self-Determined).

Note: A Deed formerly chargeable with stamp duty of $10 has been exempt from duty from 1 July 2006. Where a deed that is exempt from duty is required to be relied upon as being 'duly stamped' for other purposes under the Act (e.g. to obtain the benefit of the exemption provisions of Section 71(5)(e)), the relevant deed may be stamped accordingly, however RevenueSA will not insist on an exempt deed being stamped to be accepted as 'duly stamped'.

The reference to a Deed does not include a Declaration of Trust or Acknowledgement of Trust.

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Transfer of Units
 Transfer of units in a land owning unit trust arising from a sale
 

To be submitted for assessment of duty together with:

  • a copy of any valuation of the units made in connection with the transfer;
  • a certified Balance Sheet and detailed Profit and Loss statements for the previous three years;
  • advice of any debt and its outstanding amount associated with the land;
  • advise the CT reference, description of land and improvements and market value of South Australian land held by the trust and any subsidiaries as at the date of transfer;
  • advise the names of the unit holders and the number of units owned before and after the transfer; and
  • advise if any of the unit holders are associates pursuant to Section 91(8) of the Act.

If differing classes of units have been issued, the rights of each such class must be fully stated and a copy of the Trust Deed must be produced.

Land Owning Unit Trust
Pursuant to Section 60A(3), the Commissioner can appoint a person to value land and may assess the duty payable by reference to that land value.
If a unit trust owns land, the land value may be reviewed to determine a value for the land as at the date of the unit transfer as part of the unit valuation process.

 Transfer of units in a land owning unit trust for no consideration (includes gifts and an issue or redemption of units on a non pro-rata basis)
 

To be submitted for assessment of duty together with:

  • a copy of any valuation of the units made in connection with the transfer;
  • a certified Balance Sheet and detailed Profit and Loss statements for the previous three years;
  • advice of any debt and its outstanding amount associated with the land;
  • advise the CT reference, description of land and improvements and market value of South Australian land held by the trust and any subsidiaries as at the date of transfer;
  • advise the names of the unit holders and the number of units owned before and after the transfer; and
  • advise if any of the unit holders are associates pursuant to Section 91(8) of the Act.

If differing classes of shares have been issued, the rights of each such class must be fully stated and a copy of the Constitution must be produced.

Land Owning Unit Trust
Pursuant to Section 60A(3), the Commissioner can appoint a person to value land and may assess the duty payable by reference to that land value.
If a unit trust owns land, the land value may be reviewed to determine a value for the land as at the date of the unit transfer as part of the unit valuation process.