Stamp Duties Act 1923

The Act primarily affects parties to dutiable transactions in South Australia. Under s 4(2), the executors of an instrument are jointly and severally liable, but in practice liability falls on acquirers in conveyances (s 60), applicants for vehicle registration (s 42B(2)), insurers lodging statements (ss 34–35), and persons acquiring prescribed interests in land holding entities (s 100(1)). Foreign persons or trustees for foreign trusts acquiring residential land interests face an additional 7% surcharge (s 72(2)–(3)), defined in s 2(14) by reference to citizenship, permanent visas, shareholdings, or trust control. This extends to notional acquisitions under Part 4 (s 102AB).

Purchasers of residential land, off-the-plan apartments, or new homes are affected by concessional rates or exemptions in ss 71DB–71DD, but these are conditional on residence requirements (s 71DD(4)) and eligibility criteria (e.g. no prior ownership, market value thresholds). Spouses, domestic partners, and former spouses benefit from exemptions for family law instruments (s 71CA), transfers of shared residences or vehicles (s 71CB), and domestic partnership agreements (s 71CBA), provided the relationship has broken down irretrievably.

Primary producers and their relatives are affected by the interfamilial farming transfer exemption in s 71CC, which requires a 12-month business relationship, land used wholly or mainly for primary production (defined in s 2(1)), and no tax avoidance purpose. Trustees, executors, and beneficiaries encounter exemptions for will distributions (s 71(5)(h)), special disability trusts (s 71CAA), and superannuation roll-overs (ss 71DA, 71(7a)). Companies and unit trusts face land holding entity rules in Part 4, where acquisitions of 50% or 90% interests trigger duty on notional land assets, affecting widely held trusts (s 97), private companies (s 91(1)), and groups of associates (s 91(8)).

Insurers and insured parties are affected by registration and monthly/annual statement requirements (ss 33–35), with 11% duty on general premiums and 1.5% on life premiums, subject to exemptions in s 36 (e.g. reinsurance, workers compensation for under-25s, private health insurance). Motor vehicle dealers, primary producers, disabled persons, and councils benefit from registration duty exemptions in Sch 2 cl 2. The Crown, statutory bodies, and charitable organisations enjoy broad exemptions (Sch 2 cl 16(33), s 114).

Compliance professionals, legal practitioners, and conveyancers are indirectly affected through execution and stamping obligations (s 2(12) deems client-authorised instruments executed by the client). The Commissioner of State Taxation (defined in s 2(1) by reference to the Taxation Administration Act 1996) holds extensive powers to assess, value, refund, and recover (ss 15A(1b), 23, 41, 102C). Foreign purchasers, including wholly foreign owned corporations or trusts (s 2(14)), face heightened scrutiny and surcharges. Overall, the Act impacts individuals, families, businesses, and foreign investors in property, insurance, and vehicle markets, with flow-on effects for accountants, lawyers, and valuers who must advise on exemptions, valuations (ss 60A, 99), and anti-avoidance (s 109).

Key duties centre on timely payment and stamping. Under s 20(1), duty must be paid and the instrument stamped within two months of execution (or receipt if executed outside the State). For post-execution events triggering further duty, the period runs from that event (s 20(2)). Lodgement of acquisition statements under s 102B or insurance statements under ss 34–35 is mandatory, with maximum penalties of $10 000 for non-compliance (ss 33(1), 102B(1)). Parties to transactions without dutiable instruments must lodge statements within two months (s 71E(6)), and statutory transfers require similar action (s 71F(2)). Registration or enrolment of unstamped instruments is prohibited (s 27).

Valuation duties are stringent. Acquirers must furnish evidence of value (s 14(3)), with the Commissioner able to obtain independent valuations at the taxpayer's expense if evidence is unsatisfactory (ss 15A(1b), 31(1b), 42B(1b), 60A(3), 99(3)). Foreign persons must notify changes in status within 28 days if triggering surcharge (s 72(7)(a)). Trustees and entities in land holding structures must disclose underlying assets and interests (s 102B(2)).

Rights include exemptions and concessions. Schedule 2 cl 16 lists 33 general exemptions, covering wills, Crown grants, charitable conveyances (provided not used predominantly for commercial purposes), and family law instruments (s 71CA). Specific rights to concessional duty exist for first home buyers (s 71DD, with full exemption up to value thresholds post-6 June 2024), off-the-plan apartments (s 71DB), and exploration activity (s 71D, capping duty at $1 000 or a formula). Refunds are available for rescinded transactions (ss 60B, 42C), spoiled stamps (s 106), and overpaid insurance premiums (s 41). Taxpayers may apply for stamp duty certificates (s 3E) or exemptions under Part 4AA for corporate groups (s 102M).

Objection and review rights arise via the Taxation Administration Act 1996 (s 3), though s 109(5) precludes remission of interest or penalty tax in anti-avoidance cases. Defences to late stamping offences exist under s 20(6). The Commissioner must refund foreign ownership surcharges if foreign status ceases within 12 months and the interest is retained (s 72(5)–(6)). Rights to apportionment in interrelated instruments (s 67(3)) and credit for prior duty (ss 31(2)(b), 102A(7)) protect against double taxation. For land holding entities, exemptions apply where a conveyance of underlying land would not attract ad valorem duty (s 102F(1)).

Anti-avoidance rights are limited: s 109 voids instruments intended to evade duty, but protects bona fide third-party acquirers if stamped. Section 70(2) similarly validates for good-faith third parties. Taxpayers may seek rulings or advance exemptions for corporate group transactions (s 102M), subject to conditions (s 102N) and revocation risks (s 102O).

Penalties are both criminal and administrative. Late stamping attracts a maximum $10 000 fine per instrument (s 20(4)), though the offence does not invalidate the instrument (s 20(7)). Forgery, counterfeiting, or fraudulent use of stamps carries imprisonment of one to seven years (s 108(1)), with accessories liable as principals (s 108(2)). Failure to register as an insurer incurs $10 000 (s 33(1)). Non-lodgement of acquisition statements or insurance statements also attracts $10 000 penalties (ss 102B(1), 71E(8)).

Administrative enforcement relies on the Taxation Administration Act 1996. Penalty tax and interest apply to defaults (s 20(3)), denoted by particular stamp. The Commissioner may assess or reassess (s 23), with instruments treated as insufficiently stamped until paid (s 23(3)). Recovery from land holding entities is permitted as a debt (s 102C(1)), with first-ranking charges registerable over land (s 102C(2)–(4)). Unpaid duty after six months allows District Court sale orders, with proceeds applied first to costs, then duty, then other liabilities (s 102C(5)–(6)).

Anti-avoidance under s 109 voids evasive instruments, though s 70(1)–(2) preserves validity for good-faith third parties if stamped as a conveyance. Section 109(5) deems deliberate defaults, barring remission of interest or penalty tax. For foreign surcharges, late notification triggers interest and penalty tax at the Commissioner's discretion (s 72(7)(a)(iv)).

Evidence rules aid enforcement: courts must note unstamped instruments (s 21), and they are inadmissible except in criminal proceedings (s 22). Distributors of stamps are regulated (s 7), with the Treasurer providing dies (s 8). The Commissioner may revoke corporate group exemptions for material differences or false information (s 102O), triggering retrospective duty, interest, and penalty tax (s 102P).

Enforcement interacts with motor vehicle registration: driving unregistered triggers deemed duty liability (s 42B(5)). The Registrar performs Commissioner functions for vehicle duty (s 42D). Overall, the regime emphasises self-assessment with strong deterrence through personal liability, imprisonment for fraud, and real property security.

The Act is expressly linked to the Taxation Administration Act 1996 by s 3, which requires it to be read together with that Act for administration and enforcement. Assessments, objections, refunds, interest, and penalty tax are thus governed by the Administration Act (see ss 23, 41, 102B). Part 5 of the Administration Act applies to penalty tax and interest on stamp duty (s 2(1) definition of "duty").

Interaction with the Real Property Act 1886 is frequent. Conveyances include applications under that Act (s 60(1)(a)). Client authorisations under the Real Property Act deem execution by the client for stamp duty purposes (s 2(12)). Unstamped instruments cannot be registered (s 27). Section 71CA exempts family law instruments effecting transfers under that Act or the Community Titles Act 1996.

The Motor Vehicles Act 1959 intersects with vehicle duty provisions (Part 3 Div 4). Applications for registration or transfer are dutiable instruments (s 42A(2)), with values determined by list price or market value (s 42B(1)). Exemptions align with reduced fees or conditional registration under the Motor Vehicles Act (Sch 2 cl 2). The Registrar acts as the Commissioner's agent (s 42D).

Commonwealth laws are referenced extensively. Definitions of "foreign person" incorporate the Australian Citizenship Act 2007 (Cth) and Migration Act 1958 (Cth) (s 2(14)). Financial products reference the Corporations Act 2001 (Cth) (s 2(1)). Superannuation funds reference the Superannuation Industry (Supervision) Act 1993 (Cth) (ss 71(15), 71DA(5)). Insurance exemptions reference the Private Health Insurance Act 2007 (Cth) and Life Insurance Act 1995 (Cth) (s 36). Part 4AA corporate group exemptions reference the Corporations Act for related bodies corporate (s 102J). Help to Buy arrangements reference Commonwealth legislation (s 60AB).

State laws such as the Family Relationships Act 1975 (domestic partners, s 2(1)), Succession Act 2023 (intestacy agreements, Sch 2 cl 16(27A)), and Mining Act 1971 (mining tenements in land definitions, s 2(11)) are incorporated. Primary production business is defined by reference to agriculture, forestry, etc. (s 2(1)), interacting with the Forest Property Act 2000 and Petroleum and Geothermal Energy Act 2000 for land inclusions (s 2(4)–(6)).

Anti-avoidance in s 109 operates in addition to Part 6A of the Taxation Administration Act 1996 (s 109(4)(b)). Abolition provisions in Part 4A preserve operation of Part 3 Div 4 (motor vehicles) and Part 4 (land holding entities) (s 104E(1)–(2)).

The Act's territorial rules (ss 3A–3B) interact with choice of law principles, limiting duty to South Australian situs property. Carbon rights and aquaculture leases are excluded from land (s 2(6)). The Act does not apply to certain Commonwealth securities or financial products post-1 July 2018 (s 71(14a)).

Recent changes reflect fiscal, housing, and anti-avoidance priorities. The Statutes Amendment (Budget Measures) Act 2025 amended s 71DD to provide full duty relief for contracts entered into on or after 6 June 2024 for new homes or vacant land meeting eligibility criteria (s 71DD(2)(b)), replacing prior tiered concessions. This was designed to stimulate housing supply and affordability, with residence requirements retained (s 71DD(4)) and anti-circumvention rules (s 71DD(9)–(9a)). The Help to Buy (Commonwealth Powers) Act 2025 inserted s 60AB, disregarding Commonwealth interests in Help to Buy land for duty purposes and exempting share percentage changes, to facilitate the national scheme without state tax barriers.

The Stamp Duties (Foreign Ownership Surcharge) Amendment Act 2017 introduced s 72, imposing 7% surcharge on foreign acquisitions of residential land (including via land holding entities under s 102AB), with notification and clawback rules. This responded to housing affordability concerns by discouraging speculative foreign investment, aligning with similar regimes in other states. Definitions of "foreign person" and "foreign trust" in s 2(14) were expanded, with refund rights if status changes within 12 months (s 72(5)–(6)).

The Statutes Amendment and Repeal (Budget 2015) Act 2015 inserted Part 4AA for corporate group exemptions (ss 102H–102P), allowing duty-free intra-group transfers where the group's interest is unchanged and no ineligible trust is involved. This was to reduce compliance costs for legitimate restructures. It also abolished duty on non-land conveyances from 1 July 2016 (s 104C) and designated real property transfers from 1 July 2018 (s 105A), shifting the tax base to land while preserving motor vehicle and insurance duties. Anti-avoidance rules in s 109 were strengthened to capture schemes exploiting these abolitions.

The Stamp Duties (Insurance) Amendment Act 2011 substituted Division 3 of Part 3, replacing per-policy stamping with annual/monthly statements at flat rates (1.5% life, 11% general), to simplify administration and align with national insurance regulation. Multi-peril crop insurance was exempted from 1 January 2018 (s 36(j)) to support farmers.

The Real Property (Electronic Conveyancing) Amendment Act 2016 inserted s 2(12)–(13a), facilitating electronic conveyancing by recognising client authorisations and stamp duty certificates. Part 4 was substantially rewritten by the Statutes Amendment (Land Holding Entities and Tax Avoidance Schemes) Act 2011 to tax notional acquisitions in land holding entities at prescribed interest thresholds, replacing the prior "land rich" test, to capture indirect land transfers via entities.

These changes were driven by budget repair, housing policy, simplification, and alignment with Commonwealth reforms (e.g. Corporations Act, GST). Abolitions reduced the tax burden on business while tightening rules on land and foreign investment.

The text does not reference specific court challenges; however, the structure reveals areas of historical contention. The High Court decision in MSP Nominees Pty Ltd v Commissioner of Stamps (1999) 166 ALR 149 (noted in the transitional provisions to the 2000 amendments) concerned whether redemption of units constituted a dutiable "transfer". The legislature responded with retrospective and prospective amendments to ss 71 and related provisions (see Sch 1 to the 2000 Act), clarifying that redemptions, cancellations, or extinguishments are dutiable (s 71(3)(a)(v)–(vi)). This illustrates legislative override of judicial interpretation to maintain revenue.

Controversies around valuation are implicit in provisions allowing Commissioner valuations at taxpayer expense if evidence is unsatisfactory (ss 31(1b)–(1c), 42B(1b)–(1c), 60A(3)–(4), 99(3)–(4)). The disregard of value-reducing arrangements granted on or after 7 January 1997 (s 60A(4a)) and related-party definitions (s 60A(6)–(8)) were introduced to counter avoidance, likely following disputes over artificial reductions in market value.

Foreign ownership surcharge (s 72, inserted 2017) has generated controversy around definitions of "foreign person" (s 2(14)), particularly discretionary trusts where a single foreign object or appointor triggers foreign trust status. Refund provisions (s 72(5)–(6)) and notification obligations with potential penalty tax (s 72(7)) have been criticised for complexity and retrospective effect up to three years. Similar issues arise in Part 4 land holding entity rules, where notional interests (s 96) and aggregation (s 101) can produce unexpected liabilities for passive investors.

The abolition of non-land duties (Part 4A) and introduction of corporate group exemptions (Part 4AA) sparked debate over base erosion, addressed by non-derogation clauses (s 104E) and revocation powers (s 102O–102P). Family law exemptions (ss 71CA–71CBA) have been contentious in distinguishing genuine breakdowns from tax-driven transfers, with evidentiary requirements (ss 71CA(4), 71CB(5), 71CBA(4)) and refund rights for subsequent satisfaction of breakdown criteria.

Anti-avoidance (s 109) and its interaction with Taxation Administration Act Part 6A have raised natural justice concerns, particularly the bar on remission (s 109(5)). The presumption in s 67(4) that instruments within 12 months form one transaction shifts the onus to taxpayers. Territorial rules (ss 3A–3B) and land definitions (s 2(4)–(11), excluding carbon rights and aquaculture leases) have been refined following disputes over situs and fixtures.

Overall, the Act's evolution reflects ongoing tension between revenue protection and commercial certainty, with legislative responses to judicial and practical challenges rather than reported cases in the text itself.

Most practitioners overlook that s 2(13)–(13a) treats a stamp duty certificate with identification number as equivalent to stamping for all legal purposes, including admissibility under s 22. This can trap parties relying on electronic lodgement without obtaining the certificate promptly.

The foreign person definition in s 2(14) is extraordinarily broad for discretionary trusts: a single foreign trustee, appointor, identified object, or default taker renders the trust foreign, triggering 7% surcharge under s 72 even for minority interests. Many family trusts with overseas relatives are unknowingly caught, with notification obligations up to three years later (s 72(7)).

Section 71(5)(e) exemption for trustee-to-beneficiary transfers in specie contains a subtle "excess" formula in the exception. If the net value transferred (v1) exceeds the increase in the beneficiary's interest (v2 – v3), duty is charged on the excess as a conveyance. This is rarely appreciated until assessment and requires precise pre- and post-transfer valuations of the entire trust.

Interrelated instruments under s 67 aggregate values across transactions within 12 months, with a rebuttable presumption of one series (s 67(4)). Parties structuring staged sales or options often trigger higher marginal rates on the total, despite separate contracts. The Commissioner’s discretion to apportion (s 67(3)) is not appealable in the same way as assessments.

Help to Buy arrangements (s 60AB, inserted 2025) disregard Commonwealth interests for duty but only for conveyances or share changes; ancillary financing documents may still attract duty if not carefully structured. The exemption for share percentage increases is narrow and requires the arrangement to meet the Commonwealth Help to Buy Act definition precisely.

Section 102A(5) rebates duty for pre-3-year acquisitions in land holding entities, but only proportionately, and interacts complexly with s 102A(4) reductions for prior land duty. Double-counting risks arise if Part 4 and conveyance duty both apply.

The transportable home exclusion from fixtures (s 2(10)) is often missed in property sales; a separately owned transportable home fixed to land is dutiable as a conveyance of land if transferred without the land (s 2(9)(b)), yet not part of a land conveyance unless expressly included.

Corporate group exemptions (Part 4AA) require the transaction not to involve an ineligible trust (discretionary non-unit trust, s 102H(1)) and not form part of a tax avoidance scheme under Taxation Administration Act Part 6A (s 102K(f)). Post-transaction changes can trigger revocation and retrospective duty with non-remittable penalties (s 102P).

Insurance duty under ss 34–35 captures premiums credited but not received, with 12-month deeming rules (ss 34(3), 35(3)). Cancellation refunds are available, but only if the policy is cancelled before receipt— a timing trap for annual life insurance statements.

Finally, s 109 anti-avoidance applies to schemes reducing duty post-18 June 2015 on qualifying land abolitions, calculating duty at old rates on the prescribed date with deliberate default treatment and no remission. This catches "replacement" contracts under s 71DD(9).

Compliance begins with identifying all dutiable instruments or transactions. For conveyances, lodge within two months of execution (s 20(1)) via RevenueSA with evidence of value (s 14(3)). Use approved forms and obtain stamp duty certificates under s 3E for electronic compliance. For land holding entities, lodge acquisition statements within two months of the dutiable transaction (s 102B(1)), disclosing all interests, underlying assets, and prior duty (s 102B(2)).

Valuations must be market value free of encumbrances (s 60A(1)), supported by independent evidence; the Commissioner may reject and value at cost (ss 60A(3), 99(3)). Disclose related-party arrangements (s 60A(4a)) and obtain Commissioner satisfaction that they are not value-reducing for avoidance purposes. For foreign purchasers, self-assess surcharge under s 72(3) and notify status changes (s 72(7)).

Claim exemptions or concessions with evidence: for s 71CC farming transfers, provide 12-month business relationship proof and statutory declarations (s 71CC(3)–(4)); for family law (s 71CA), evidence of breakdown and that no third party takes interest. First home concessions under s 71DD require joint applications by natural persons over 18 (or with Commissioner approval), Australian citizenship/permanent residency, no prior relevant interest, and compliance with the six-month residence requirement within 12 months (or approved variation under s 71DD(5)).

Insurers must register (s 33), lodge monthly general insurance statements by the 15th (s 34(1)) or annual life statements by 31 January (s 35(1)), excluding exempt premiums (s 36) and refunds (s 41). Vehicle duty is paid to the Registrar at registration (s 42B(2)), with statements of value (s 42B(1a)) and claims for exemptions on approved forms (s 42B(7)).

Maintain records (defined broadly in s 2(1)) to substantiate valuations, relationships, and eligibility. For corporate groups, apply pre- or post-transaction for exemption (s 102M), providing drafts and undertaking conditions (s 102N). Pay any duty, interest, or penalty via the Administration Act mechanisms.

To avoid pitfalls, obtain private rulings on novel structures, particularly discretionary trusts with foreign connections or multi-jurisdictional deals. Engage qualified valuers early. Monitor revocation risks under s 102O and clawbacks under ss 71DE, 102P. For abolished duties, retain evidence of contract dates to rely on savings provisions (ss 104C(2), 105A(4)). Regular training on amendments (e.g. 2025 housing changes) is essential. Where doubt exists, lodge under protest and object promptly under the Administration Act. This structured approach minimises penalties, ensures admissibility, and secures available relief. (Word count: approximately 3,050)