TB 92

Stamp duty – trust deeds & change in trustees

Issued on 11 March 2011.

Current stamp duty requirements for superannuation trust deeds and change in trustees The following tables set out the contact details for the stamp duty offices and provisions of the relevant legislation in each State and Territory. This is up to date at time of issue.

In summary the amount of duty payable on the execution of a superannuation trust deed (instrument) is:-

NSW: No duty payable on executed document or duplicate. VIC: No duty payable on executed document or duplicate. QLD: Deeds settled with non-dutiable property, such as cash, are not dutiable. WA: Deeds settled with non-dutiable property, such as cash, are not dutiable. SA: No duty payable however the deed must be stamped. TAS: Duty of $20 payable on the original and $20 on the duplicate if it is executable. ACT: No duty payable on executed document or duplicate. NT: Duty of $20 is payable on the original and $5 on the duplicate.

In summary the amount of duty payable on the appointment, resignation of a trustee is:

NSW: Duty of $50 payable VIC: No duty payable QLD: No duty payable WA: Duty of $20 payable SA: No duty payable TAS: Duty of $20 payable ACT: Duty of $20 payable NT: No duty payable

NSW

Trust deed

Change of trustees

Duty payable

No duty

$50

Relevant provisions

Sections 60 and 65(10)

Section 54

General description of legislation

An instrument (deed) that establishes, or that amends provisions governing a super fund executed after 1 July 2001 is exempt from duty (section 65(10)). The fund must become a complying fund within 12 months of the deed or amendment taking effect.

Duty is charged in respect of a transfer of dutiable property to a trustee of a self managed superannuation fund as a consequence of the retirement of a trustee or the appointment of a new trustee.

For deeds or amendments of super funds that were executed before 1 July 2001 duty of $20 is payable. Documentation

Deeds not subject to duty do not require stamping.

Legislation

Duties Act 1997

Legislation website

www.legislation.nsw.gov.au

Office

Office of State Revenue

Website

www.osr.nsw.gov.au

VIC

Trust deed

Change of trustees

Duty payable

Not dutiable

Not dutiable

Relevant provisions

Section 39

Section 33

General description of legislation

An instrument (deed) which establishes or amends provisions governing a complying super fund is exempt from duty.

No duty is chargeable in respect of a transfer of dutiable property to a trustee of a complying super fund solely because of the retirement of a trustee or the appointment of a new trustee.

Documentation

Deeds do not require stamping.

Refer to ‘Evidentiary Requirements for Dutiable and Exempt Transactions’.

Legislation

Duties Act 2000 (No. 79 of 2000)

Legislation website

www.legislation.vic.gov.au

Office

State Revenue Office (SRO)

Website

www.sro.vic.gov.au

QLD

Trust deed

Change of trustees

Duty payable

Trust deeds settled with non-dutiable property (eg cash) are not dutiable.

Not dutiable

No form required. Cover letter including background to the transaction and return address.

A variation of terms of the trust that is administrative in nature (eg amendment to governing rules) is not dutiable. Relevant provisions

Section 9(1)(h) (Chapter 2, Part 2) Refer to ‘Variation of a trust (other than a change of trustee)’ on the Office of State Revenue website.

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Section 117 (Chapter 2, Part 13)

General description of legislation

The creation of a trust of dutiable property is dutiable.

Transfer duty is not imposed on a dutiable transaction for the sole purpose of giving effect to a change of trustee (where the interests of beneficiaries do not change and transfer duty has been paid on all trust acquisitions for which transfer duty is imposed for the trust before the transaction).

Documentation

Deeds do not require stamping.

Must be stamped. Lodgement form and statutory declaration required.

Legislation

Duties Act 2001

Legislation website

www.legislation.qld.gov.au/OQPChome.htm

Office

Office of State Revenue

Website

www.osr.qld.gov.au/duties/index.shtml

WA

Trust deed

Change in trustees

Duty payable

No duty payable on deeds executed with non-dutiable property (ie cash) and amendments of deeds from 1 July 2008.

$20

Before 1 July 2008, $20 for the executed deed and amendment thereto. $5 (or ad valorem duty if less than $5) for each duplicate. Relevant provisions

Section 11 (1)(c) (Chapter 2, Part 3) of Duties Act 2008

Section 119

Section 75AB and Schedule 2 Items 8 and 9 of Stamp Act 1921 General description of legislation

Duties Act 2008 A declaration of trust over dutiable property is a dutiable transaction. Stamp Act 1921 An instrument which establishes a fund for the principal purpose of making provision by way of superannuation payments etc is exempt from ad valorem duty.

Nominal duty is chargeable on a transfer of dutiable property to a trustee as a consequence of the retirement of a trustee or the appointment of a new trustee (if the transfer does not confer an interest in trust property to any other person to the detriment of the beneficial interest of any person).

Deed of any kind not otherwise chargeable with duty is charged $20. Duplicate of a stamped instrument is charged $5 or ad valorem if less than $5. Documentation

Deeds not subject to duty do not require stamping.

Evidence that land is an asset of the trust (a copy of a duty endorsed contract for sale of land when the trust first acquired the property) and also evidence that the trustee of the trust has now changed.

Legislation

Stamp Act 1921

Duties Act 2008

Legislation website

www.slp.wa.gov.au/legislation/statutes.nsf/default.html

Office

Office of State Revenue

Website

www.dtf.wa.gov.au/cms/section.aspx?id=209

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SA

Trust deed

Change in trustees

Duty payable

From 1 July 2006, no duty is payable on a deed establishing a superannuation fund. No duty is payable on a deed of variation however where the deed of variation adds new or potential beneficiaries/objects to the trust they need to be submitted for an opinion to the Commissioner of State Taxation.

Not dutiable

Until 30 June 2006- $10 on execution of deed and $10 on copy of deed if executable. Relevant provisions General description of legislation

Schedule 2, Part 2, Item 30

Schedule 2, Part 2, Item 28

71(5)(i)

Section 71(5)(d)

A deed for which no specific charge or basis for charging duty is exempt.

A conveyance of property for the purpose of effecting the retirement of a trustee or the appointment of a new trustee is exempt from duty, where the beneficial interest of any beneficiaries of the trust has not changed.

Any variation of the terms of a trust, where the trust was created by an instrument that is stamped and the variation does not involve the creation or variation of any beneficial interest in property subject to the trust, is not a conveyance. Documentation

Deeds not subject to duty do not require stamping. However they may be submitted for opinion for stamping as exempt.

Legislation

Stamp Duties Act 1923

Legislation website

www.revenuesa.sa.gov.au/stamps/sd_legislation.html

Office

Revenue SA

Website

www.revenuesa.sa.gov.au

TAS

Trust deed

Change in trustees

Duty payable

$20 on executed deed and $20 for each copy of the deed if executable

$20

Relevant provisions

Sections 44 and 220

Section 37

General description of legislation

An instrument that establishes, or that amends provisions governing a superannuation fund is liable to duty of $20.

Duty of $20 is charged in respect of a transfer of dutiable property to a special trustee as a consequence of the retirement of a trustee or the appointment of a new trustee. Special trustee includes the trustees of a superannuation fund.

Duty of $20 is chargeable on a replica.

Application for Opinion form and document that conveys land to new trustee (is stamped as exempt).

Documentation

See ‘Dutiable Transactions and Instruments – Documentary Evidence Requirements’

Legislation

Duties Act 2001

Legislation website

www.thelaw.tas.gov.au

Office

State Revenue Office

Website

www.sro.tas.gov.au

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ACT

Trust deed

Change in trustees

Duty payable

No duty payable on executed document or amendment from 1 July 2008.

$20

$20 for executed instrument (deed) or amendment thereto prior to 1 July 2008. Relevant provisions

Section 441(1)(a)(ii)

Section 54(4)

General description of legislation

The expiry of repealed provision section 61 Instruments relating to superannuation - does not affect any obligation to pay duty under the provision for an instrument first executed before 1 July 2008.

Nominal duty is charged for the transfer of dutiable property to a person as a consequence of the retirement of a trustee or the appointment of a new trustee for a self managed superannuation fund.

Documentation

Deeds not subject to duty do not require stamping.

• Conveyeyance lodgement form • Memorandum of transfer - Form

52T • Change of trustee deed • Evidence that the property was

purchased by the fund Legislation

Duties Act 1999, No. 7

Legislation website

www.revenue.act.gov.au/legislation/

Office

ACT Revenue Office

Website

www.revenue.act.gov.au

NT

Trust deed

Change in trustees

Duty payable

$20 for deed and $5 for each copy of the deed

Not dutiable

$20 for appointment of trustee Relevant provisions

Schedule 1, Items 2, 3, 7 and 8

Schedule 2, Exemption 6

General description of legislation

A deed that is not chargeable with ad valorem duty and that constitutes a trust or varies a trust is a dutiable instrument. The duty payable on such a deed is $20.

A conveyance that is made solely for the purpose of effecting the appointment of a new trustee on the retirement of a trustee or as an additional trustee if –

Instrument of appointment of any trustee

• no beneficial interest passes in the

An instrument for the appointment of a trustee is a dutiable instrument. The duty payable on such an instrument is $20.

• no change of beneficial interest

Instrument to Correct Error On an instrument which the Commissioner is satisfied is executed solely to correct an error in or effected by an instrument upon which duty has been paid $20.00 applies. Counterparts or copies On a counterpart or copy of an instrument upon which duty has been paid, $5.00 is imposed. Copy of an original instrument, being a copy whereby the original has not been stamped. The same duty as on the original instrument is imposed. Documentation

Deed is required to be stamped. Lodgement form is required.

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property conveyed; and occurs as a result of the transaction; and • the property conveyed was

acquired by the retiring trustee or existing trustee in the capacity of trustee by virtue of an instrument that was stamped or was exempt from duty.

(This rewritten stamp duty provision refers to ‘a discretionary trust’ however the application of the provision remains the same as Item 9A of the repealed Stamp duty Act which referred to a trust.)

Refer to ‘Stamp Duty Lodgement Guide’

Legislation

Stamp Duty Act

Legislation website

www.nt.gov.au/ntt/revenue/ntleg.shtml

Office

Territory Revenue Office

Website

www.nt.gov.au/ntt/revenue/index.shtml

Glossary A general description of some of the terms used in the above table follows. The definition of these terms may differ according to the state or territory stamp duty legislation.

Ad valorem duty Duty calculated according to the value of the dutiable property

Conveyance Transfer of property

Declaration of trust Creation of a trust over property

Stamping Stamping denotes that stamp duty has been paid. Stamp duty is a tax that is imposed by state/territory governments on instruments (written documents such as a trust deed) and transactions (in relation to SMSFs, primarily land transactions).

Dutiable property Land situated in the relevant state or territory.

Executed deed A (trust) deed is binding as long as it has been properly executed according to the relevant state or territory laws. Execution generally requires the deed to be ‘signed, sealed (described as a deed or expressed to have been sealed and witnessed) and delivered (any word or conduct that shows that the party who executes the instrument regards it as presently binding on that party)’.

Deed of variation Amendments (changes) made to a trust deed. Together with the trust deed (and covenants taken to be included according to section 52 of Superannuation Industry Supervision Act) constitute the governing rules of the fund.

This Technical Bulletin has been produced by OnePath’s Technical Services and is intended for the use of financial advisers only. It is current as at the date of publication but may be subject to change. This publication has been prepared without taking into account a potential investor's objectives, financial situation or needs. Before making a recommendation based on this publication, consider its appropriateness based on the client’s objectives, financial situation and needs.

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