(1) Duty is not
chargeable on the transfer of dutiable property to a transferee in conformity
with an agreement for the transfer of dutiable property if that agreement is
duty endorsed.
(2) Duty is not
chargeable on the transfer of dutiable property to a transferee under an
agreement for the transfer of dutiable property if —
(a) when
liability for duty on the agreement arises, the transferee and the purchaser
of the property under the agreement are related as referred to in
section 43; and
(b) the
agreement is duty endorsed.
(3) If an agreement
for the transfer of dutiable property is duty endorsed and either, or both, of
the following applies —
(a)
there is a difference in the parties liable to duty under the agreement and
the transferees under the transfer, and subsection (2)(a) does not apply;
(b)
there is a difference between the division of the property between the
transferees under the transfer and the division of the property between the
parties liable to duty under the agreement, and subsection (2)(a) does
not apply,
duty is not chargeable
on the transfer of the property except to the extent of the change between the
agreement and the transfer.
Note: Example for
subsection (3) —
On 1 July, under
an agreement for the transfer of dutiable property, A agrees to sell land in
Western Australia to B and C as tenants in common in the undivided shares of
90/100 to B and 10/100 to C for $100 000.
At settlement, under
the transfer, B and a new party, D are tenants in common in equal shares.
Transfer duty is
chargeable on the transfer of the property only to the extent of the change in
the interests in the property between the agreement and the transfer.
Transfer duty would be
chargeable on the transfer of the property on 50/100 X $100 000, which is
$50 000 i.e. 10/100 from C to D and 40/100 from B to D.
(4) If an agreement
for the transfer of dutiable property is duty endorsed, duty is not chargeable
on the subsequent transfer of the property if, when liability for duty on the
agreement arose, the person named in the instrument effecting, or evidencing,
the agreement as the purchaser was acting as the agent of the transferee of
the subsequent transfer.
(5) If —
(a) an
agreement for the transfer of dutiable property is duty endorsed; and
(b) the
person named in the agreement as the purchaser entered into the agreement with
the intention that the property would be transferred to —
(i)
a corporation that the person intended to be
incorporated; or
(ii)
a dormant corporation, the shares in which the person
intended to be acquired,
and that property will
not be held by the corporation as trustee of a trust; and
(c) when
liability for duty on the agreement arose, action was being taken
to —
(i)
incorporate the corporation referred to in
paragraph (b)(i); or
(ii)
acquire the shares in the corporation referred to in
paragraph (b)(ii),
duty is not chargeable
on the subsequent transfer of the property to the corporation referred to in
paragraph (b)(i) or (ii).
(6) In
subsection (5) —
“dormant corporation” means a
corporation that, since it was incorporated —
(a) has
not had any assets or liabilities other than share capital for subscriber
shares or shares issued to replace subscriber shares of the same value on
their redemption; and
(b) has
not been party to an agreement or a beneficiary or trustee of a trust; and
(c) has
not issued or sold any shares or rights relating to shares other than
subscriber shares, rights relating to subscriber shares or shares issued to
replace subscriber shares of the same value on their redemption.
(7) Duty is not
chargeable on a transfer of dutiable property by the vendor under an agreement
for the transfer of the property that results in the property becoming scheme
property for a managed investment scheme if —
(a) the
Commissioner is satisfied that a managed investment scheme has been, or is to
be, established by means of an offer to subscribe to the scheme made to the
public; and
(b) the
Commissioner is satisfied that before the establishment of the scheme —
(i)
the person named as purchaser in an agreement for the
transfer of dutiable property entered into that agreement; or
(ii)
the person promoting the scheme arranged for that
agreement to be entered into by the person named in the agreement,
with the intention
that the property concerned would become scheme property; and
(c) the
agreement provides to the effect that, if the scheme is not established, the
agreement is terminated; and
(d) the
agreement is duty endorsed.
(8) If —
(a)
there is an agreement for the transfer of dutiable property (the
"first agreement"); and
(b)
after the first agreement takes place, one or more dutiable transactions over
all or part of the dutiable property the subject of the first
agreement takes place (the "intervening transactions"); and
(c) to
give effect to the first agreement and the intervening transactions, one or
more transfers of dutiable property (the
"transfers") are effected by one or more parties to the first agreement and
the intervening transactions; and
(d) the
first agreement and the intervening transactions are duty endorsed,
duty is not chargeable
on the transfers.
Note: Example for
subsection (8) —
On 1 July, under
an agreement for the transfer of dutiable property, A agrees to sell land in
Western Australia to B for $100 000. Settlement is to take place on
31 July. On 7 July, under an agreement for transfer, B agrees to
sell the land to C for $120 000. Again, settlement is to take place on
31 July. Before 31 July, B directs A, that at settlement, A transfer
the land to C.
The agreement between
A and B is the first agreement. The agreement between B and C is the
intervening transaction. Transfer duty is not chargeable on the transfer from
A to C if the first agreement and intervening transactions are duty endorsed.
(9) Duty is not
chargeable on a transfer to a trustee of dutiable property subject to a
declaration of trust in respect of the same dutiable property if the
declaration of trust is duty endorsed, or under subsection (11) duty is
not chargeable on the declaration of trust.
(10) Duty is not
chargeable on a declaration of trust that declares the same trusts as those
upon and subject to which the same dutiable property was transferred, or
agreed to be transferred, to the person declaring the trust if the transfer,
or agreement, is duty endorsed.
(11) Duty is not
chargeable on a declaration of trust if —
(a) the
declaration of trust supersedes another declaration of trust which is duty
endorsed and declares the same trusts as were declared under the superseded
declaration of trust; and
(b) the
beneficiary under the declaration of trust is the same as under the superseded
declaration of trust; and
(c) the
dutiable property subject to the declaration of trust —
(i)
is wholly or substantially the same as the property that
was the subject of the superseded declaration of trust at the time of the
declaration of the superseded declaration of trust; or
(ii)
represents the proceeds of re-investment of property that
was the subject of the superseded declaration of trust at the time of the
declaration of the superseded declaration of trust; or
(iii)
is property to which both subparagraphs (i)
and (ii) apply.
(12) Duty is not
chargeable on a transfer of dutiable property resulting from a
dutiable transaction referred to in section 11(1)(d) if the vesting of
the dutiable property is duty endorsed.
(13) Duty is not
chargeable on a transfer of dutiable property in accordance with a foreclosure
order if the foreclosure order is duty endorsed.
(14) Duty is not
chargeable on a transfer of dutiable property in accordance with a partnership
acquisition if the partnership acquisition is duty endorsed.
(15) Duty is not
chargeable on a transfer of, or an agreement for the transfer of, an interest
in a mining tenement under a farm-in agreement if —
(a) the
farm-in agreement is duty endorsed; and
(b) the
exploration amount under the agreement has been expended.
(16) Duty is not
chargeable in respect of a dutiable transaction prescribed, on such condition
and under such circumstances as are prescribed, if the dutiable transaction is
one of 2 dutiable transactions that relate to the same transaction for the
same dutiable property.