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STAMP DUTIES ACT 1923 - SECT 109

STAMP DUTIES ACT 1923 - SECT 109

109—Anti-avoidance provision

        (1)         In this section—

"prescribed date", in relation to a prescribed instrument, means the date that duty would have been payable in the ordinary course of events, as determined by the Commissioner, rather than on account of the scheme, contract, agreement, arrangement or undertaking that has been entered into (in the opinion of the Commissioner) in order, wholly or in part, to avoid or reduce a liability to duty;

"prescribed instrument or transaction" means an instrument or transaction that—

            (a)         has been entered into in connection with, or as part of; or

            (b)         has been made pursuant to or in relation to; or

            (c)         is in any other way connected with,

a scheme, contract, agreement, arrangement or undertaking entered into, wholly or in part, to avoid or reduce a liability to duty on account of—

            (d)         a change in the amount of duty payable on or after 1 July 2016 on account of the operation of section 71DC as to be inserted (or as inserted) into this Act by the Statutes Amendment and Repeal (Budget 2015) Act 2015 ; or

            (e)         the abolition of duty on qualifying land on or after 1 July 2018 on account of the operation of section 105A, as to be inserted (or as inserted) into this Act by the Statutes Amendment and Repeal (Budget 2015) Act 2015 .

        (2)         If the Commissioner forms the opinion that an instrument or transaction executed or entered into on or after 18 June 2015 is a prescribed instrument or transaction, the duty chargeable on the instrument or in relation to the transaction will be calculated according to the rates in force on the prescribed date.

        (3)         For the purposes of subsection (2), the Commissioner may have regard to—

            (a)         the nature of any relationship between the parties to the instrument or transaction; and

            (b)         any commercial or other arrangements existing between the parties to the instrument or transaction before the instrument was entered into, made or executed or the transaction was entered into; and

            (c)         any arrangements surrounding or relating to any land that is the subject of the instrument or transaction before the instrument was entered into, made or executed or the transaction was entered into; and

            (d)         any other matter the Commissioner considers relevant.

        (4)         This section—

            (a)         operates to the exclusion of section 16; and

            (b)         operates in addition to Part 6A of the Taxation Administration Act 1996 .

        (5)         In addition, if the Commissioner forms an opinion in relation to an instrument or transaction under subsection (2)—

            (a)         a deliberate tax default will be taken to have occurred on the prescribed date for the purposes of the Taxation Administration Act 1996 ; but

            (b)         the Commissioner may not—

                  (i)         remit any interest; or

                  (ii)         remit any penalty tax,

payable under Part 5 of that Act.