STAMP DUTIES ACT 1923 - SECT 2
STAMP DUTIES ACT 1923 - SECT 2
(1) In this Act,
unless it is otherwise provided or there is something in the context repugnant
thereto—
"approved form" means a form approved by the Commissioner;
"assessment" means an assessment or reassessment by the Commissioner under
Part 3 of the Taxation Administration Act 1996 ,
and "assess" and "assessed" have corresponding meanings;
"beneficial interest" means an equitable interest or an interest vested both
at law and in equity in the holder of the interest and includes a
potential beneficial interest;
"business of primary production" means the business of agriculture, pasturage,
horticulture, viticulture, apiculture, poultry farming, dairy farming,
forestry or any other business consisting of the cultivation of soils, the
gathering in of crops, the rearing of livestock or the propagation and
harvesting of fish or other aquatic organisms;
"Commissioner" means the person appointed or acting as the Commissioner of
State Taxation, and includes a person appointed or acting as a Deputy
Commissioner of State Taxation (see Part 9 of the Taxation Administration
Act 1996 );
"die" means die or other machine or implement used for impressing or
imprinting stamps upon documents;
"discretionary trust" means an arrangement, however made, under which a person
holds property, and the beneficial interest in all or any part of that
property may be vested in a person (in this Act referred to as an
"object" of the discretionary trust) on the exercise of a discretion, whether
subject to any other contingency or not and whether the exercise of the
discretion is obligatory or optional;
"domestic partner" means a person who is a domestic partner within the meaning
of the Family Relationships Act 1975 , whether declared as such under
that Act or not;
"duty" means duty charged under this Act, and includes penalty tax and
interest payable under Part 5 of the Taxation Administration Act 1996 in
relation to duty under this Act;
"executed" and "execution", with reference to instruments not under seal, mean
signed and signature;
"financial product" means—
(a) any
stock, share or other similar security of a corporation (including a
government, semi-government or municipal corporation), company or society; or
(b) any
debenture, debenture stock, bond, note or other similar security of a
corporation (including a government, semi-government or municipal
corporation), company or society (whether constituting a charge on the assets
of the corporation, company or society or not); or
(c) any
interest in a managed investment scheme registered under Chapter 5C of the
Corporations Act 2001 of the Commonwealth; or
(f) any
other stock, security or interest brought within the ambit of this definition
by the regulations,
and includes a right in respect of a financial product but does not include
any stock, security or interest excluded from the ambit of this definition by
the regulations;
"foreign person"—see subsection (14);
"foreign trust"—see subsection (14);
"forge" includes counterfeit;
"GST" means the tax payable under the GST law;
"GST law" means—
(a)
A New Tax System (Goods and Services Tax) Act 1999 (Cwth); and
(b) the
related legislation of the Commonwealth dealing with the imposition of a tax
on the supply of goods and services;
"impressed stamp" means—
(a) a
stamp impressed or imprinted by means of a die; or
(b) a
record imprinted or made by means of any machine or implement,
under the direction of the Commissioner in pursuance of this Act;
"instrument" includes every written document;
"interest" in property means a legal or equitable interest and includes a
potential, contingent, expectant or inchoate interest;
"jurisdiction" means—
(a) a
State or Territory of Australia; or
(b) a
country or place subject to the laws of a particular legislative authority;
"material" means any sort of material upon which words or figures can be
expressed;
"money" includes all sums expressed in Australian or foreign currency;
"potential beneficial interest" means the rights, expectancies or
possibilities of an object of a discretionary trust in, or in relation to,
property subject to the discretionary trust;
"property" means real or personal property and includes—
"quoted", in relation to any shares, units in a unit trust scheme or interests
in such shares or units, includes—
(a)
shares, units or interests that have stopped being quoted on a
recognised financial market merely because they belong to a class of shares,
units or interests the quotation of which has been suspended, unless the body
that issued the shares, units or interests has ceased to be included in the
official list of the financial market; and
(b)
shares, units or interests that comprise a stapled security that is quoted on
a recognised financial market;
"recognised financial market" means—
(a) a
financial market operated by the Australian Securities Exchange Limited; or
(b) a
financial market of a stock exchange brought within the ambit of this
definition by the regulations;
"records" means records of any kind (whether in documentary or other form);
"rent" includes an amount (however it may be described in a lease) to be paid
by a lessee to a lessor to reimburse, offset or defray the lessor's liability
to GST;
"right in respect of a financial product" means a right, whether actual,
prospective or contingent, of any person to have issued to him or her a
financial product, whether or not on payment of any money or other
consideration for the financial product;
"sale" of property includes any transaction under which the property is
converted into money;
"spouse"—a person is the spouse of another if they are legally married;
"stamp" means an impressed stamp;
"stamp duty certificate" means a certificate issued under section 3E in
relation to an instrument;
"stamp duty identification number" means a stamp duty identification number as
determined by the Commissioner;
"stamped" means bearing an impressed stamp;
"State" includes the Australian Capital Territory and the Northern Territory;
"stock" means any share in the stocks or funds of any State or government, or
in the capital stock or funded debt of any company, corporation or society
(whether incorporated under a law of this or any other State, a law of the
Commonwealth, or a law of any other place);
"transfer", in relation to property, means transfer, assure or vest at law or
in equity (whether or not the transfer, assurance or vesting is subject to
registration, the issue of a certificate of title or some other similar
requirement);
"unit" in relation to a unit trust scheme means a right or interest (however
described) of a beneficiary under a unit trust scheme;
"unit trust scheme" means an arrangement made for the purpose, or having the
effect, of providing for persons having funds available for investment
facilities for the participation by them, as beneficiaries under a trust, in
any profits or income arising from the acquisition, holding, management or
disposal of any property subject to the trust;
"wholly foreign owned corporation"—see subsection (14);
"wholly foreign owned trust"—see subsection (14);
"write", "written" and "writing" include every mode in which words or figures
can be expressed upon material.
(2) An interest of a
particular kind in the proceeds of the sale of property is, until the property
is sold, taken to be an interest of the same kind in the property.
Example—
A beneficial interest in the proceeds of the sale of property is, until the
property is sold, taken to be a beneficial interest in the property.
(3) A person is taken
to transfer a leasehold or other interest in land held from the Crown if the
person surrenders the interest so that the Crown may grant to a person other
than the surrenderor a leasehold or other interest in the land.
(4) For the purposes
of the application of this Act to and in relation to land (whether referred to
as land, real property (or property when it is constituted by land) or a
land asset under this Act), the following will be taken to be within the
concept of land:
(a) an
estate or interest in land (including land covered by water);
(b)
without limiting paragraph (a), a right in relation to land brought
within the ambit of this paragraph by subsection (5);
(c)
without limiting paragraph (a) or (b), any of the following or an estate
or interest in any of the following:
(ii)
without limiting subparagraph (i), a pipeline
constructed under the authority of a pipeline licence under the
Petroleum and Geothermal Energy Act 2000 ;
(iii)
an interest conferred by a forestry property (vegetation)
agreement (within the meaning of the Forest Property Act 2000 ).
(5) For the purposes
of paragraph (b) of subsection (4), the following are brought within
the ambit of that paragraph by this subsection:
(a) an
option to acquire land;
(b)
subject to section 31, a right to acquire an estate or interest in land;
(c) any
other right or interest prescribed by the regulations.
(6)
Subsections (4) and (5) do not extend to—
(a) a
carbon right under the Forest Property Act 2000 ; or
(b) a
lease granted under the Aquaculture Act 2001 , including a sublease of
such a lease; or
(c) any
other interest excluded from the application of either subsection by the
regulations.
(7) For the purposes
of this Act (other than Part 4), land will be taken to include anything
fixed to land, including anything—
(a)
separately owned from the land; or
(b)
fixed to the land but notionally severed or considered to be legally separate
to the land by virtue of or as a result of another Act or law (so that a
separation by another Act for the purposes of that Act will not affect the
operation of this paragraph for the purposes of the imposition and calculation
of duty).
(8) In connection with
the operation of subsection (7)—
(a) the
subsection applies to all items fixed to the land whether or not they
constitute fixtures at law; and
(b) all
fixtures at law will be taken to be within the application of the subsection.
(9) However, if an
item is separately owned from land or notionally severed or considered to be
legally separate to land—
(a) the
item will not be taken to form part of a conveyance of the land unless the
item is also conveyed; and
(b) if
the item remains fixed to the land (in the manner contemplated by the
preceding subsections)—a conveyance of the item without a conveyance of
the land is subject to duty as if it were a conveyance of land.
(10)
Subsection (9)(b) does not extend to a transportable home.
(11) In this
section—
"Mining Act" means—
(a) the
Mining Act 1971 ; or
(b) the
Offshore Minerals Act 2000 ; or
(c) the
Opal Mining Act 1995 ; or
(d) the
Petroleum and Geothermal Energy Act 2000 ;
"mining tenement" means a lease or licence granted—
(a)
under a Mining Act; or
(b)
under or on account of any other Act that confers, or that ratifies an
indenture or other arrangement that confers, a right to explore for, or to
recover, any minerals, resources or other materials or substances that would,
but for that other Act, be subject to the operation of a Mining Act;
"transportable home" means a structure that—
(a) has
the character of a dwelling; and
(b) is
designed—
(i)
to be fixed to the land when being used as a dwelling;
but
(ii)
to be able to be moved in a state that would allow the
structure to be reused as a dwelling at another place,
but does not include, in any event, a caravan, campervan or other item that is
capable of being registered under the Motor Vehicles Act 1959 .
(12) If an instrument
under the Real Property Act 1886 is executed by a legal practitioner or a
registered conveyancer on behalf of a person under a client authorisation
(within the meaning of that Act), the instrument will be taken for the
purposes of this Act to have been executed by the person who provided the
authorisation.
(13) A requirement
under this Act for an instrument to be duly stamped will be taken to be
satisfied if—
(a) the
Commissioner has issued a stamp duty certificate certifying as to the payment
of duty in respect of the instrument; and
(b) a
stamp duty identification number appears on the instrument,
and such instrument will, for the purposes of the law of the State, be treated
in the same way as an instrument that has been duly stamped.
(13a) If—
(a) the
Commissioner has issued a stamp duty certificate certifying that an instrument
has been assessed as not chargeable with duty; and
(b) a
stamp duty identification number appears on the instrument,
the instrument will, for the purposes of the law of the State, be treated in
the same way as an instrument that has been stamped by the Commissioner with a
stamp denoting that it is not chargeable with duty.
(a) a
person is a "foreign person" if—
(i)
in the case of a natural person—the person is
not—
(A) an Australian citizen within the
meaning of the Australian Citizenship Act 2007 of the Commonwealth; or
(B) the holder of a permanent visa within
the meaning of section 30(1) of the Migration Act 1958 of the
Commonwealth; or
(C) a New Zealand citizen who is the holder
of a special category visa within the meaning of section 32(1) of the
Migration Act 1958 of the Commonwealth; or
(ii)
in the case of a corporation—
(A) the corporation is incorporated in a
jurisdiction that is not an Australian jurisdiction; or
(B) a person who is a foreign person (by
virtue of this paragraph) or a trustee for a foreign trust, or a number of
such persons in combination—
• holds or hold
50% or more of the corporation's shares; or
• is or are
entitled to cast, or control the casting of, 50% or more of the maximum number
of votes at a general meeting of the corporation; and
(b) a
trust is a "foreign trust" if—
(i)
in the case of a trust where the beneficial interests are
fixed—a beneficial interest of 50% or more of the capital of the trust
property is held by 1 or more foreign persons; or
(ii)
in the case of a discretionary trust—1 or more
of the following is a foreign person:
(A) a trustee;
(B) a person who has the power to appoint
under the trust;
(C) an identified object under the trust;
(D) a person who takes capital of the trust
property in default; and
(c) a
corporation is a "wholly foreign owned corporation" if a foreign person or the
trustee for a foreign trust, or a number of such persons in combination—
(i)
holds or hold 100% of the corporation's shares; or
(ii)
is or are entitled to cast, or control the casting of,
100% of the maximum number of votes at a general meeting of the corporation;
and
(d) a
trust is a "wholly foreign owned trust" if it is not a discretionary trust and
a beneficial interest of 100% of the capital of the trust property is held by
1 or more foreign persons.
(15) In
subsection (14)—
"hold"—a person holds property (including a security of a corporation)
if the person—
(a) is
registered as the holder; or
(b) is
beneficially entitled to the property; or
(c)
controls the exercise of rights attached to the property.