Stamp duty at full duty (also known as ad valorem rates) is imposed on the transfer of “dutiable property”. In New South Wales, s 11 of the Duties Act 1997 (NSW) defines “dutiable property” to generally include:

• land;

• private company shares;

• units in a unit trust;

• business assets;

• statutory licences;

• an interest in a partnership; and

• a number of other specific assets.

In relation to deceased estate, one of the decisions the legal personal representative has to make is whether to transmit estate asset that is a “dutiable property” to itself or to make an in-specie transfer of “dutiable property” to a beneficiary. From a stamp duty perspective, there are potential stamp duty consequences for:

• transmission of “dutiable property” from the deceased to the legal personal representative;

• transfer of “dutiable property” from the deceased to the beneficiary; or

• transfer of “dutiable property” from the legal personal representative to the beneficiary.

A transfer of “dutiable property” is normally liable to ad valorem duty based on the dutiable value of the property. However, where property is transferred from a deceased estate to the person or persons beneficially entitled, concessional duty is applicable pursuant to s 63 of the Duties Act 1997 (NSW).

For the sale of land contracts exchanged after 1 July 2017, foreign purchasers of residential land in NSW are liable for additional 8% stamp duty surcharge. This is in addition to the ad valorem rate of duty payable by all purchasers.

The stamp duty surcharge can be calculated as follows:

If “X”, who is a foreign person, purchases a residential property for $2 million:

• duty payable on $2 million is $95,490;

• surcharge of 8% on $2 million is $160,000; and

• total payable is $95,490 + $160,000 = $255,490.

The new rule only applies to acquisition of residential land in NSW. Under s 5 of the Foreign Acquisitions and Takeovers Act 1975 (Cth), a foreign person is a person that is not an Australian citizen and that person has not been in Australia for 200 or more days consecutively in the last twelve months, and is not subject to any limitations that are imposable by law.

Foreign persons are no longer entitled to the 12-month deferral for the payment of stamp duty for off-the-plan purchases of residential property.

Transfer duty is imposed on dutiable transactions under the Duties Act 2000 (Vic).

Under s 42 of the Duties Act 2000 (Vic), transfer duty is not imposed on a transfer, or agreement for the transfer, or the creation of a trust of dutiable property to the extent that it gives effect to a distribution in the estate of a deceased person if such is made pursuant to a court order under Pt 4 , Administration and Probate Act 1958 (Vic).

Transfer duty is imposed on dutiable transactions under the Duties Act 2001 (Qld).

A dutiable transaction is defined in s 9 of the Act.

Dutiable property is defined in s 10 of the Act.

Under s 124 of the Act, transfer duty is not imposed on a transfer, or agreement for the transfer, or the creation of a trust of dutiable property to the extent that it gives effect to a distribution in the estate of a deceased person or to a court order under Pt 4 , Succession Act 1981 (Qld).

The transfer duty regime is built around the following concepts:

• dutiable transactions;

• dutiable property; and

• dutiable value.

It is a combination of a dutiable transaction with dutiable property that creates a liability under the Act. Dutiable value establishes the figure upon which the transfer duty liability is applied. Section 11 of the Duties Act 2008 (WA) lists those transactions that are considered “dutiable transactions”. This list is complemented by other provisions that provide greater detail around some dutiable transactions. The list of dutiable transactions includes:

• a transfer of dutiable property;

• an agreement for the transfer of dutiable property whether conditional or not;

• a declaration of trust over dutiable property;

• a vesting of dutiable property by a statute, law or court order;

• a foreclosure of a mortgage over dutiable property;

• an acquisition of new dutiable property on its creation, grant or issue;

• a surrender of special dutiable property;

• a trust acquisition or trust surrender; and

• a partnership acquisitions.

Some transactions are listed as not being dutiable transactions, these include:

• rights if there is not consideration to be paid;

• transfers or agreements to transfer a lease if not consideration is paid;

• transfers or agreements to transfer security interest (eg mortgage) if consideration equal to or exceeds market value;

• units in a trust scheme; and

• a specifically excluded transaction under s 11(2)(e) .

“New dutiable property” is now found in s 17 which also identifies that which is not new dutiable property. That which is dutiable property includes:

• rights, such as an option to acquire dutiable property or a right to acquire dutiable property; and

• certain business assets, being intellectual property, restraint of trade or a business identity.

“Special dutiable property” is covered in s 18 and is concerned with the surrender of a number of different types of property, eg an easement or a right of way.

Dutiable property (s 15 ) consists of four items:

• land in WA;

• a right (eg an option to acquire property); and

• a WA business asset.

Stamp duty at full rates (also known as ad valorem rates) is usually imposed on the transfer of “property”. In South Australia, s 2 of the Stamp Duties Act 1923 (SA) defines “property” to include real or personal property.

However, where property is transferred from a deceased estate to the legal personal representative and then from the legal personal representative to the person or persons beneficially entitled under a will or an intestacy, an exemption applies.

Stamp duty at full duty (also known as ad valorem rates) is imposed on the transfer of “dutiable property”. In the ACT, s 10 of the Act defines “dutiable property” to generally include:

• land;

• motor vehicles;

• an interest in a partnership; and

• a number of other specific assets.

In relation to deceased estate, one of the decisions the legal personal representative has to make is whether to transmit an estate asset that is a “dutiable property” to the legal personal representative or to make an inspecie transfer of “dutiable property” to a beneficiary. From a stamp duty perspective, there are potential stamp duty consequences for:

• transmission of “dutiable property” from the deceased to the legal personal representative;

• transfer of “dutiable property” from the deceased to the beneficiary; or

• transfer of “dutiable property” from the legal personal representative to the beneficiary.

A transfer of “dutiable property” is normally liable to ad valorem duty based on the dutiable value of the property. However, where property is transferred from a deceased estate to the person or persons beneficially entitled, concessional duty is applicable.

See Stamp duty.