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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Stamp Duties (Trusts) Amendment Bill
2008
A BILL FOR
An Act to amend the Stamp Duties Act 1923.
Contents
Part 1—Preliminary
1 Short
title
2 Amendment provisions
Part 2—Amendment of Stamp Duties
Act 1923
3 Amendment of section 71—Instruments
chargeable as conveyances
4 Amendment of Schedule 2—Stamp duties
and exemptions
Schedule 1—Transitional
provision
1 Transitional provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Stamp Duties (Trusts) Amendment
Act 2008.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Stamp Duties
Act 1923
3—Amendment
of section 71—Instruments chargeable as conveyances
(1) Section 71(4a)(a)—delete "managed investment scheme registered
under Chapter 5C of the Corporations Act 2001 of the Commonwealth" and
substitute:
registered managed investment scheme
(2) Section 71—after subsection (4a) insert:
(4b) For the purposes of this Act (other than Part 4)—
(a) property is taken to be held beneficially by a unit trust scheme if it
is held by the trustees of the scheme in trust for the unitholders;
and
(b) the holder of a unit in a unit trust scheme that is taken under
paragraph (a) to hold property beneficially is taken to have a beneficial
interest in that property; and
(c) the transfer, creation, surrender, renunciation, redemption,
cancellation or extinguishment of a unit in a unit trust scheme that is taken
under paragraph (a) to hold property beneficially is taken to be a
transfer, creation, surrender, renunciation, redemption, cancellation or
extinguishment (as appropriate) of a beneficial interest in that
property.
(3) Section 71(5)(e)—delete paragraph (e) and substitute:
(da) a transfer of property subject to a registered managed investment
scheme if the transfer is—
(i) from the responsible entity of the scheme to a person as primary
custodian for the responsible entity; or
(ii) from a person as primary custodian for the responsible entity of the
scheme to the responsible entity;
Exception to paragraph (da)—
Paragraph (da) does not apply to a transfer of property that is part of an
arrangement under which—
(a) the property ceases to be subject to the scheme; or
(b) 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.
(e) a transfer of property by a trustee to a person who has a beneficial
interest in the property in the following circumstances:
(i) the person has a beneficial interest in the property (other than a
potential beneficial interest) by virtue of an instrument that is duly stamped;
and
(ii) the property was acquired for the trust, or became subject to the
trust—
(A) by virtue of an instrument duly stamped with ad valorem duty;
or
(B) 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
(C) under 1 of the other paragraphs of this subsection (except
paragraph (d)); and
(iii) 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;
Exception to paragraph (e)—
If v1exceeds
v2-v3
, then
the instrument is liable to ad valorem duty as if it were a transfer of
property with a value equivalent to the excess. In this
exception—
v1 is the net
value of the property transferred;
v2 is the
value of the beneficiary's interest in the trust immediately before the transfer
takes effect;
v3 is the
value of the beneficiary's interest in the trust immediately after the transfer
takes effect.
(4) Section 71(7)—delete subsection (7) and substitute:
(7) The following provisions apply for the purposes of
subsection (5)(e) (including the exception to
paragraph (e)):
(a) 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);
(b) 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;
(c) 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;
(d) if—
(i) property of a trust consisting of land is divided by community plan
under the Community Titles Act 1996 (including by strata plan under
that Act); and
(ii) land subject to the division is subsequently transferred to a
beneficiary of the trust; and
(iii) 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.
(5) Section 71(15)—after the definition of family
group insert:
primary custodian for the responsible entity of a registered
managed investment scheme means the person that has been appointed under
section 601FB(2) of the Corporations Act 2001 of the Commonwealth to
hold property for the scheme as agent for the responsible entity (but does not
include a person who is taken under section 601FB(3) of the Corporations
Act 2001 of the Commonwealth to be an agent appointed by the responsible
entity to do something for the purposes of subsection (2) of that
section);
(6) Section 71(15)—after the definition of public
company insert:
registered managed investment scheme means a managed
investment scheme registered under Chapter 5C of the Corporations Act
2001 of the Commonwealth;
responsible entity for a registered managed investment scheme
means the responsible entity for the scheme under the Corporations Act
2001 of the Commonwealth;
superannuation fund means a fund that is, under section 45 of
the Superannuation Industry (Supervision) Act 1993 of the
Commonwealth, a complying superannuation fund for the purposes the Income Tax
Assessment Act 1936 or the Income Tax Assessment Act 1997 of the
Commonwealth;
(7) Section 71(15)—after the definition of trustee
insert:
unit trust means a trust giving effect to a unit trust
scheme.
4—Amendment of
Schedule 2—Stamp duties and exemptions
Schedule 2, Part 2, clause 16, item 26—delete
item 26 and substitute:
26. An instrument executed by a trustee of a regulated superannuation fund
within the meaning of the Superannuation Industry (Supervision)
Act 1993 of the Commonwealth in the ordinary course of administering
the fund for the purpose of effecting or acknowledging, evidencing or
recording—
(a) the creation of an interest in the property of the superannuation fund
on account of a person becoming a member of the fund; or
(b) the redemption, cancellation or extinguishment of an interest in the
property of the superannuation fund on account of a person ceasing to be a
member of the fund,
but not so as to exempt any conveyance or transfer of property into or out
of the fund.
Schedule
1—Transitional provision
The amendment made by section 3(2) of this Act to section 71 of
the Stamp Duties Act 1923 operates both prospectively and
retrospectively.