South Australian Current Acts South Australian Current Acts71—Instruments chargeable as conveyances
(1) 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.
(3) 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 :
(a) an
instrument effecting or acknowledging, evidencing or recording, any of the
following transactions:
(i)
a transfer of property to a person who takes as trustee;
or
(ii)
a declaration of trust; or
(iii)
the creation of an interest in property subject to a
trust; or
(iv)
a transfer of an interest in property subject to a trust;
or
(v)
the surrender or renunciation of an interest in property
subject to a trust; or
(vi)
the redemption, cancellation or extinguishment of an
interest in property subject to a trust,
whether or not any consideration is given for the transaction; or
(b) an
instrument to which paragraph (a) does not apply, being a conveyance that
is not chargeable with duty as a conveyance on sale.
(5) 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 :
(b) a
transfer in specie of property of a company in liquidation made by the
liquidator to a shareholder of the company;
(d) a
transfer of property for the purpose of effectuating the retirement of a
trustee or the appointment of a new trustee, where the Commissioner is
satisfied that the transfer is not part of a scheme for conferring a benefit,
in relation to the trust property, upon the new trustee or any other person,
whether as a beneficiary or otherwise, to the detriment of the
beneficial interest of any person;
(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 v 1 exceeds [v 2 - v 3 ], 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—
"v" "1" is the net value of the property transferred;
"v" "2" is the value of the beneficiary's interest in the trust immediately
before the transfer takes effect;
"v" "3" is the value of the beneficiary's interest in the trust immediately
after the transfer takes effect.
(f) 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—
(i)
the discretionary trust was created by an instrument that
is duly stamped; and
(ii)
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;
(g) a
transfer of a potential beneficial interest in property subject to a
discretionary trust, where—
(i)
the discretionary trust was created by an instrument that
is duly stamped wholly or principally for the benefit of a family group; and
(ii)
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;
(h) 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;
(i)
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;
(k) a
transfer of a prescribed class.
(6)
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.
(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.
(7a) 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 :
(a) the
property was acquired for the trust or became subject to the trust—
(i)
by virtue of an instrument duly stamped with
ad valorem duty; or
(ii)
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
(b) 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
(c) the
whole of the property being transferred has been held on trust for the benefit
of the self managed superannuation fund.
(8) 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.
(9) 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.
(10) 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.
(12) Where an
instrument of a kind referred to in subsection (3)(a) is duly stamped
under this Act, the Commissioner shall, upon application and production of
that instrument, stamp any other instrument of a kind referred to in
subsection (3)(a) that he is satisfied relates to the same transaction
with a particular stamp denoting that it is duly stamped.
(13) 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.
(14) Notwithstanding
any other provisions of this Act, where—
(a)
property has been transferred to a person who took as trustee; and
(b) that
property is subsequently transferred back to the transferor; and
(c) 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.
(14a) 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 1 July 2018.
"family group" means a group of persons connected by an unbroken series of
relationships of consanguinity or affinity, including where the relationship
of affinity arises from 2 persons being domestic partners;
"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);
"public company" means a public company within the meaning of the
Corporations Act 2001 of the Commonwealth;
"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;
"self managed superannuation fund" has the same meaning as in the
Superannuation Industry (Supervision) Act 1993 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 of the Income Tax Assessment
Act 1936 or the Income Tax Assessment Act 1997 of the Commonwealth;
"trust" includes an implied trust or a discretionary trust;
"trustee" includes—
(a) a
trustee under an implied trust; or
(b) a
person who holds property subject to a discretionary trust;
"unit trust" means a trust giving effect to a unit trust scheme.