Australian Capital Territory Repealed Acts

This legislation has been repealed.

STAMP DUTIES AND TAXES ACT 1987 (REPEALED) - SECT 28

(1)     If—

        (a)     an amount of stamp duty is paid by a person in respect of an agreement for a transfer of an estate in fee simple or of a lease, or for an assignment of a lease;

        (b)     the agreement is void, is unenforceable (both at law and in equity), is rescinded or comes to an end; and

        (c)     the Commissioner is satisfied that no transfer or assignment has been or can reasonably be expected to be made pursuant to the agreement;

there shall be refunded to the person who paid the stamp duty:

        (d)     if the transferee or assignee has gone into possession of the land, or another person has gone into possession of the land at the request of, or under an arrangement with, the transferee or assignee, and the agreement is rescinded or comes to an end—an amount equal to the amount (if any) by which the amount of duty paid exceeds the amount of duty that, in the opinion of the Commissioner, would have been payable on a lease of the land by the transferor or assignor to the transferee or assignee respectively for a term commencing on—

              (i)     the earliest date on which the transferee, assignee or other person, as the case may be, went into possession of the land; or

              (ii)     the date of the agreement;

whichever is earlier, and ending on the date on which the agreement is rescinded or comes to an end, as the case may be; or

        (e)     in any other case—an amount equal to the amount of duty paid.

(2)     If—

        (a)     an amount of stamp duty paid to the Commissioner includes an amount payable by virtue of an application of section 19 in relation to an agreement in respect of chattels;

        (b)     the stamp duty is not required to be refunded pursuant to subsection (1);

        (c)     the agreement is void, is unenforceable (both at law and in equity), is rescinded or comes to an end; and

        (d)     the Commissioner is satisfied that no transfer or hire of, or grant or assignment of rights to use, the chattels has been or can reasonably be expected to be made pursuant to the agreement;

the amount of duty that is, in the opinion of the Commissioner, attributable to the application of section 19 shall be refunded to the person who paid the duty.

(3)     A refund is not payable to a person if—

        (a)     the refund would, but for this subsection, be payable as a result of an act done or omitted to be done by any person; and

        (b)     the act was done or omitted to be done in connection with a tax avoidance scheme.

(3A)     A refund is not payable if—

        (a)     the amount of stamp duty was paid in respect of an agreement for a transfer of an estate in fee simple or of a Crown lease, or for an assignment of a Crown lease;

        (b)     the agreement is rescinded or comes to an end; and

        (c)     application for the payment of a refund is made after the expiry of 30 days, or such longer period as the Commissioner determines under subsection (3B), after the date on which the agreement was assessed.

(3B)     The Commissioner may determine a longer period for the purposes of paragraph (3A) (c) if he or she is satisfied that—

        (b)     there is a bona fide reason for the agreement being rescinded or coming to an end.

(4)     An application by a person for a refund in relation to an agreement shall be—

        (a)     in writing;

        (b)     accompanied by such information as the Commissioner requires to enable the amount of the refund to be determined; and

        (c)     lodged with the Commissioner:

              (i)     if the agreement is void or unenforceable—within 12 months after the person became aware of that fact; or

              (ii)     if the agreement is rescinded, or comes to an end, on a particular date—within 12 months after that date.

(5)     If—

        (a)     a refund is paid in relation to an agreement because no transfer or assignment has been or can reasonably be expected to be made pursuant to the agreement; and

        (b)     at any time, a transfer or assignment is made pursuant to the agreement;

then—

        (c)     notwithstanding section 20, the agreement shall not be treated as the original of the transfer or assignment respectively;

        (d)     an amount of duty equal to the amount of the refund shall be taken not to have been paid; and

        (e)     the agreement shall not be deemed to have been duly stamped.

(6)     In subsection (1), a reference to going into possession of land shall be read as including a reference to receiving any of the rents or profits of the land.

(7)     In this section—

“agreement” includes an instrument purporting to be an agreement;

“arrangement” means any agreement, arrangement or understanding, whether formal or informal, or express or implied, and whether or not enforceable or intended to be enforceable by legal proceedings;

“person”, in relation to an agreement, means any person, whether or not the person is a party to the agreement.