Div 6Conveyances and conveyances on sale

Division 6—Conveyances and conveyances on sale 60—Interpretation conveyance includes— (a) every conveyance, assignment, transfer or declaration of trust and every application under the Real Property Act 1886 or the Community Titles Act 1996; and (b) every decree or order of any court, judge or commissioner; and (c) every other application or request of any kind; and (d) every other assurance or instrument of any kind, by which or by virtue of which or by the operation of which, whether upon registration or otherwise, or by the issue of a certificate of title in pursuance of which, any real or personal property or any estate or interest in any such property is assured to, or vested in, any person, and to convey has a meaning coextensive with the meaning of conveyance, as extended by this section; conveyance on sale includes— (a) every conveyance, assignment, transfer or application under the Real Property Act 1886; and (b) every decree or order of any court, judge or commissioner; and (c) every other application or request of any kind; and (d) every other assurance or instrument, by which or by virtue of which any real or personal property, upon the sale thereof, is legally or equitably transferred to, or vested in, the purchaser or any other person on his behalf or by his direction, and also includes— (e) every application for a foreclosure order under the Real Property Act 1886; and (f) every lease for which any consideration other than the rent reserved may be paid or agreed to be paid (but only so far as such consideration is concerned). (a) an instrument is deemed to be a conveyance operating as a voluntary disposition inter vivos by operation of a provision of section 71; but (b) another provision of section 71 expressly provides that the instrument is deemed not to be, or taken not to be, a conveyance operating as a voluntary disposition inter vivos, the instrument will not be considered to constitute a conveyance on sale within the meaning of subsection (1). 60A—Value of property conveyed or transferred (1) Subject to subsection (2), a reference in this Act (other than in Part 4) to the value of property conveyed or transferred is a reference to the market value of the property as at the date of the conveyance, assuming that the property had, at that date, been free from any encumbrances. (2) In the case of a conveyance on sale, the Commissioner may treat the consideration for the sale as being the value of the property conveyed or transferred unless it appears to the Commissioner that the consideration may be less than the value of the property as referred to in subsection (1). (3) Where no evidence of the value of property conveyed or transferred, or comprising or forming part of the consideration for a conveyance, is furnished to the Commissioner, or the evidence so furnished is, in his opinion, unsatisfactory, the Commissioner may cause a valuation of the property to be made by some person appointed by him and may assess the duty payable by reference to that valuation. (4) The Commissioner may, having regard to the merits of the case, charge the whole or a part of the expenses of, or incidental to, the making of a valuation pursuant to subsection (3) to the person liable to pay the duty and may recover the amount so charged from him as a debt due to the Crown. (4a) Where an interest, agreement or arrangement (granted or made on or after 7 January 1997) in respect of property has the effect of reducing the value of the property, the Commissioner may, for the purposes of assessing the duty payable on a conveyance of the property, disregard the existence of the interest, agreement or arrangement unless a person liable to pay the duty satisfies the Commissioner that the interest, agreement or arrangement— (a) was granted or made for a purpose other than reducing the value of the property; and (b) was not granted or made in favour of the transferee or a person related to the transferee. (4b) Where an estate or interest conveyed or transferred merges with an estate or interest already held by the transferee (the latter having been acquired by the transferee on or after 7 January 1997), the Commissioner may, for the purposes of assessing the duty payable on the conveyance, treat the value of the estate or interest conveyed or transferred as being— (a) where the instrument creating the estate or interest already held was charged with ad valorem duty as a conveyance—the value of the estate or interest produced by the merger less the value of the estate or interest already held; or (b) in any other case—the value of the estate or interest produced by the merger. (5) In subsection (1)— encumbrance does not include a prescribed encumbrance or an encumbrance of a prescribed kind. (6) For the purposes of subsection (4a) (but subject to subsection (7))— (a) natural persons are related persons if— (i) they are members of a partnership within the meaning of the Partnership Act 1891; or (ii) one is the spouse or domestic partner of the other or the relationship between them is that of parent and child; and (b) companies are related persons if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; and (c) trustees are related persons if any person is a beneficiary common to the trusts of which they are trustees; and (d) a natural person and a company are related persons if the natural person is a majority shareholder, director or secretary in or of the company or in or of another company that is a related body corporate of the company within the meaning of the Corporations Act 2001 of the Commonwealth; and (e) a natural person and a trustee are related persons if the natural person is a beneficiary of the trust of which the trustee is a trustee; and (f) a company and a trustee are related persons if— (i) the company, or a majority shareholder, director or secretary in or of the company, is a beneficiary of the trust of which the trustee is a trustee; or (ii) a related body corporate of the company (within the meaning of the Corporations Act 2001 of the Commonwealth) is a beneficiary of the trust of which the trustee is a trustee. (7) For the purposes of subsection (4a), persons are not related persons if the Commissioner is satisfied that the persons were not acting together to achieve a common purpose. (8) In subsection (6)— majority shareholder, in relation to a company, means a person who would have a substantial shareholding in the company as defined in section 9 of the Corporations Act 2001 of the Commonwealth if the reference to 5% in paragraph (a) of the definition of substantial holding in that section were replaced by a reference at 50%. (9) In addition to the preceding subsections, when determining the value of property— (a) it is to be assumed that a hypothetical purchaser would, when negotiating the price for the property, have knowledge of all existing information relating to the property; and (b) no account is to be taken of any amount that a hypothetical purchaser would have to expend to reproduce, or otherwise acquire a permanent right of access to and use of, existing information relating to the property. 60AB—Land under Help to Buy arrangement (1) For the purposes of assessing liability for duty on the conveyance or transfer of land purchased under a Help to Buy arrangement, an interest the Commonwealth or Housing Australia has in the land is to be disregarded. (2) An instrument that records or effects a change in an interest in land that occurs as a result of an increase in a person’s share percentage in land purchased under a Help to Buy arrangement is exempt from duty. Help to Buy arrangement has the same meaning as in the Help to Buy Act 2024 of the Commonwealth; Housing Australia has the same meaning as in the Housing Australia Act 2018 of the Commonwealth. 60B—Refund of duty where transaction is rescinded or annulled (1) Where a party to an instrument of a kind that is registrable under the Real Property Act 1886 satisfies the Commissioner, upon application made to him not later than 5 years after execution of the instrument— (a) that he has paid duty upon the instrument; and (b) that the transaction in respect of which the instrument was executed has been frustrated or avoided or has miscarried through failure of a party to comply with a condition, the applicant shall be deemed to be possessed of stamped material rendered useless by being inadvertently spoiled within the meaning of section 106, and the provisions of that section shall apply accordingly. 60C—Refund of duty on reconveyance of property subject to a common law mortgage (a) ad valorem duty is paid on a conveyance of property (the prior conveyance); and (b) the sole purpose of the conveyance is to secure a liability under a loan, indemnity or guarantee; and (c) a conveyance (the later conveyance) reconveys the property to the person by whom the security was given under the terms of the security or on extinguishment or termination of the secured liability, this section applies to the later conveyance. (2) If the Commissioner is satisfied that a conveyance is one to which this section applies— (a) no stamp duty is payable on the conveyance; and (b) the Commissioner must, on application by the person to whom the property is reconveyed, refund the duty paid on the prior conveyance. 61—Method or estimating value of consideration where consideration consists of shares Where the consideration or part of the consideration for a conveyance chargeable with ad valorem duty consists of shares or debentures to be issued by a company, or a contract to issue such shares or debentures, the market value of the shares or debentures shall be taken as the value of the consideration or part. 62—Land use entitlements (1) This section applies to— (a) a transaction under which a person acquires a share in a company or an interest under a trust that confers a right to the possession of a dwelling that is owned and administered by the company or the trustees of the trust; or (b) a transaction under which a person acquires a right to the possession of land as a result of becoming or being the owner of a share in a company or an interest under a trust. (2) This section does not apply to— (a) a transaction under which a person acquires a share in a company or an interest under a trust that confers a right to the possession of a dwelling that is part of a retirement village scheme under the Retirement Villages Act 1987; or (b) a transaction exempted by the regulations from this section. (3) An instrument that gives effect to, or acknowledges, evidences or records, a transaction to which this section applies is dutiable under this Act as if— (a) it were a conveyance of an interest in the dwelling or land; and (b) the value of the interest in the dwelling or land were— (i) if the person acquires a right to exclusive possession of the dwelling or land—the value of an unencumbered estate in fee simple in the dwelling or land; or (ii) in any other case—a proportion of the value of an unencumbered estate in fee simple in the dwelling or land reflecting the more limited extent of the possessory right. (4) If a lease is conveyed, assigned or transferred as part of a transaction to which this section applies, duty payable under this section on account of the transaction will be reduced to the extent that duty is paid on the conveyance, assignment or transfer of the lease. 64—Consideration in case of lease In the case of a lease for which any consideration other than the rent reserved may be paid or agreed to be paid, the amount of the other consideration shall be deemed the consideration for the conveyance on sale. 65—Where consideration consists of real or personal property Where the consideration or any part of the consideration for a conveyance on sale consists of any real or personal property other than money, the market value of the real or personal property at the date of the conveyance will be taken as the value of the consideration or part of the consideration. 66—Where consideration is payable in instalments Where the consideration or any part of the consideration for a conveyance on sale consists of money payable periodically for a definite period, so that the total amount to be paid can be previously ascertained, the total amount shall be taken as the consideration or part of the consideration. 67—Computation of duty where instruments are interrelated (1) Subject to subsection (2), this section applies to the following instruments: (a) a conveyance on sale; or (b) a conveyance operating as a voluntary disposition inter vivos; or (c) an instrument chargeable with duty as if it were a conveyance (including a statement under section 71E). (2) This section does not apply to the following instruments: (a) a conveyance that relates to property that is being conveyed in separate parcels to different persons by separate conveyances where the Commissioner is satisfied that no arrangement or understanding exists between the persons under which the parcels of property conveyed are to be used otherwise than separately and independently from each other; (ab) a conveyance that relates to land that is being conveyed as part of a series of separate conveyances of land by different persons to the same person (whether that person takes alone or with the same or different persons) where the Commissioner is satisfied that the land is being conveyed by persons acting separately and independently from each other; (d) an instrument excluded from the operation of this section by the regulations. (3) Where two or more instruments to which this section applies— (a) arise from a single contract of sale; or (b) together form, or arise from, substantially one transaction or one series of transactions, the instruments are chargeable with ad valorem duty calculated on the sum of the amounts by reference to which ad valorem duty on each of the instruments would, but for this subsection, have been calculated, and that duty will be apportioned to the various instruments as determined by the Commissioner. (4) Where by instruments that have been, or appear to have been, executed within 12 months of each other a person conveys property or interests in property to the same person (whether that person takes alone or with the same or different persons), it will be presumed, unless the Commissioner is satisfied to the contrary, that the instruments form one transaction or one series of transactions. (5) If 2 or more instruments to which this section applies together form or arise from substantially 1 series of transactions, the instruments are to be taken for the purposes of the calculation of duty to form or arise from a single transaction made when the earlier or earliest of the transactions was made. (7) This section does not operate to reduce the duty payable on an instrument. 68—Duty in certain cases (3) Where a person, having contracted for the purchase of any property but not having obtained a conveyance, contracts to sell it to any other person and the property is in consequence conveyed immediately to the subpurchaser, the conveyance shall be chargeable with ad valorem duty as a conveyance for the consideration for the sale to the original purchaser and also as a conveyance for the consideration for the sale by the original purchaser to the subpurchaser, in the same manner as if the considerations were specified in separate instruments. (4) Where a person, having contracted for the purchase of any property but not having obtained a conveyance, contracts to sell the whole or any part or parts thereof to any other person and the property is in consequence conveyed by the original seller to different persons in parts or parcels, the conveyance of each part or parcel shall be chargeable with ad valorem duty as a conveyance for the consideration for the sale to the original purchaser and also as a conveyance for the consideration for the sale by the original purchaser to the subpurchaser, in the same manner as if the considerations were specified in separate instruments. The consideration for the sale to the original purchaser in respect of each part or parcel shall, for the purposes of this subsection, be ascertained by determining the ratio which the value of the part or parcel in question bears to the value of the whole property and shall be specified in the instrument of conveyance. (5) Where a subpurchaser takes an actual conveyance of the interest of the person immediately selling to him, which is chargeable with ad valorem duty as a conveyance for the consideration moving from him and is duly stamped accordingly, any conveyance to be afterwards made to him of the same property by the original seller shall be chargeable with ad valorem duty as a conveyance for the consideration for the sale to the original purchaser. 70—Evasion of duty (1) Subject to subsection (2), an instrument executed in order, either directly or indirectly, to avoid or evade the payment of the duty payable upon a conveyance on sale is void. (2) Where a third party relying in good faith on an instrument that is void by virtue of subsection (1) purports to acquire an interest in property subject to the instrument, the instrument shall, for the purposes of that transaction, be treated as valid, provided that it is duly stamped as a conveyance on sale. 71—Instruments chargeable as conveyances (1) The value for the purposes of this Act of the property conveyed by any conveyance operating as a voluntary disposition inter vivos shall be declared in the conveyance. (3) For the purposes of this Act, the following instruments shall, subject to this section, be deemed to be conveyances operating as voluntary dispositions inter vivos: (a) an instrument effecting or acknowledging, evidencing or recording, any of the following transactions: (i) a transfer of property to a person who takes as trustee; or (ii) a declaration of trust; or (iii) the creation of an interest in property subject to a trust; or (iv) a transfer of an interest in property subject to a trust; or (v) the surrender or renunciation of an interest in property subject to a trust; or (vi) the redemption, cancellation or extinguishment of an interest in property subject to a trust, whether or not any consideration is given for the transaction; or (b) an instrument to which paragraph (a) does not apply, being a conveyance that is not chargeable with duty as a conveyance on sale. (5) Subject to subsection (6), an instrument effecting or acknowledging, evidencing or recording, any of the following transactions shall be deemed not to be a conveyance operating as a voluntary disposition inter vivos: (b) a transfer in specie of property of a company in liquidation made by the liquidator to a shareholder of the company; (d) a transfer of property for the purpose of effectuating the retirement of a trustee or the appointment of a new trustee, where the Commissioner is satisfied that the transfer is not part of a scheme for conferring a benefit, in relation to the trust property, upon the new trustee or any other person, whether as a beneficiary or otherwise, to the detriment of the beneficial interest of any person; (da) a transfer of property subject to a registered managed investment scheme if the transfer is— (i) from the responsible entity of the scheme to a person as primary custodian for the responsible entity; or (ii) from a person as primary custodian for the responsible entity of the scheme to the responsible entity; Exception to paragraph (da)— Paragraph (da) does not apply to a transfer of property that is part of an arrangement under which— (a) the property ceases to be subject to the scheme; or (b) the persons who are members of the scheme do not have the same interest in the property after the property is transferred as they had immediately before the arrangement was entered into. (e) a transfer of property by a trustee to a person who has a beneficial interest in the property in the following circumstances: (i) the person has a beneficial interest in the property (other than a potential beneficial interest) by virtue of an instrument that is duly stamped; and (ii) the property was acquired for the trust, or became subject to the trust— (A) by virtue of an instrument duly stamped with ad valorem duty; or (B) as a result of a transaction to which section 71E applies in relation to which a statement under that section has been lodged and ad valorem duty paid; or (C) under 1 of the other paragraphs of this subsection (except paragraph (d)); and (iii) if the trust is a discretionary trust (other than a superannuation fund or a unit trust)—the person acquired the beneficial interest by virtue of a duly stamped instrument that is separate from the instrument under which he or she became an object of the trust; Exception to paragraph (e)— If v1exceeds [v2- v3], then the instrument is liable to ad valorem duty as if it were a transfer of property with a value equivalent to the excess. In this exception— v1 is the net value of the property transferred; v2 is the value of the beneficiary's interest in the trust immediately before the transfer takes effect; v3 is the value of the beneficiary's interest in the trust immediately after the transfer takes effect. (f) a transfer to a natural person who is an object of a discretionary trust of property or a beneficial interest in property subject to the discretionary trust, where— (i) the discretionary trust was created by an instrument that is duly stamped; and (ii) the Commissioner is satisfied that the discretionary trust was created wholly or principally for the benefit of that person or a family group of which that person is a member; (g) a transfer of a potential beneficial interest in property subject to a discretionary trust, where— (i) the discretionary trust was created by an instrument that is duly stamped wholly or principally for the benefit of a family group; and (ii) the transfer is made by one member of the family group to another member of the family group, or by a member of the family group by way of surrender or renunciation of the potential beneficial interest and another member of the family group is to continue as an object or beneficiary under the trust; (h) a transfer to or by a person in his capacity as the personal representative of a deceased person or the trustee of the estate of a deceased person, being a transfer made in pursuance of the provisions of the will of the deceased person or the laws of intestacy and not being a transfer in pursuance of a sale; (i) any variation of the terms of a trust, where the trust was created by an instrument that is duly stamped and the variation does not involve the creation or variation of any beneficial interest in property subject to the trust; (k) a transfer of a prescribed class. (6) Subsection (5) does not apply in relation to a transfer of property or a beneficial interest in property to a person who has, prior to the transfer, a beneficial interest in the property but who takes the property or interest transferred to him as trustee under a further trust. (7) The following provisions apply for the purposes of subsection (5)(e) (including the exception to paragraph (e)): (a) the net value of property is calculated by subtracting from its unencumbered value the amount of any liability subject to which the property is transferred (other than a liability that is to be discharged after the transfer takes effect by the trustee or for some other reason is not finally assumed by the transferee); (b) in calculating the value of a beneficiary's interest in a trust, all assets and liabilities of the trust are to be taken into account; (c) a member of a superannuation fund is to be taken to have a beneficial interest in the property of the fund equivalent to the amount to which the member would be entitled on transfer of membership to another fund; (d) if— (i) property of a trust consisting of land is divided by community plan under the Community Titles Act 1996 (including by strata plan under that Act); and (ii) land subject to the division is subsequently transferred to a beneficiary of the trust; and (iii) the Commissioner is satisfied that the land the subject of the transfer was transferred to the beneficiary pursuant to the trust and is identifiable as property in which the beneficiary had a fixed beneficial interest contingent on, and arising from, the division, the transfer will be taken to have been a transfer to the beneficiary of property in which the beneficiary had a beneficial interest. (7a) An instrument effecting or acknowledging, evidencing or recording a transfer of property by a trustee to a self managed superannuation fund in the following circumstances will be taken not to be a conveyance operating as a voluntary disposition inter vivos: (a) the property was acquired for the trust or became subject to the trust— (i) by virtue of an instrument duly stamped with ad valorem duty; or (ii) as a result of a transaction to which section 71E applies in relation to which a statement under that section has been lodged and ad valorem duty paid; and (b) the self managed superannuation fund financed the acquisition of the whole of the property by the trustee (either by providing money, obtaining a loan or other financial accommodation, or providing the consideration for the purchase in some other form); and (c) the whole of the property being transferred has been held on trust for the benefit of the self managed superannuation fund. (8) A conveyance operating as a voluntary disposition inter vivos that transfers a potential beneficial interest in, or in relation to, property subject to a discretionary trust shall, subject to this Act, be chargeable with duty as if it transferred the beneficial interest in the property that the transferee would have if the discretion under the discretionary trust were so exercised as to confer upon him the greatest benefit in relation to that property that can be conferred upon him under the discretionary trust. (9) An instrument that acknowledges, evidences or records a transaction of a kind referred to in subsection (3)(a) (not being a copy within the meaning of section 19A that is duly stamped) shall, for the purposes of this Act, be deemed to have effected the transaction and to have been executed by the parties to the transaction at the same time as the transaction took place. (10) For the purposes of this Act, in determining the value of property transferred by a conveyance operating as a voluntary disposition inter vivos, no regard shall be had to the fact that the person to whom the property is transferred takes or is to hold the property subject to a trust or has a beneficial interest in the property. (12) Where an instrument of a kind referred to in subsection (3)(a) is duly stamped under this Act, the Commissioner shall, upon application and production of that instrument, stamp any other instrument of a kind referred to in subsection (3)(a) that he is satisfied relates to the same transaction with a particular stamp denoting that it is duly stamped. (13) Without limiting the generality of subsection (12), where an instrument that is duly stamped transfers or creates, or acknowledges, evidences or records, the transfer or creation of any property or interest in property and the person to or in whom the property or interest in property is transferred or vested takes the property or interest in property as trustee, the Commissioner shall, upon application and production of that instrument, stamp any declaration of trust or other instrument that acknowledges, evidences or records the fact that the person took the property or interest in property as trustee with a particular stamp denoting that it is duly stamped. (14) Notwithstanding any other provisions of this Act, where— (a) property has been transferred to a person who took as trustee; and (b) that property is subsequently transferred back to the transferor; and (c) the Commissioner is satisfied that no person other than the transferor under the first transfer has had a beneficial interest in the property during the period elapsing between the transfers, the Commissioner shall, if ad valorem duty was paid in respect of the first transfer, upon application, refund to the person who paid that duty the amount of the duty. (14a) This section does not apply to an instrument that relates to a unit trust scheme, an interest in a unit trust scheme, a financial product, or an interest in a financial product, executed on or after 1 July 2018. (15) In this section— family group means a group of persons connected by an unbroken series of relationships of consanguinity or affinity, including where the relationship of affinity arises from 2 persons being domestic partners; primary custodian for the responsible entity of a registered managed investment scheme means the person that has been appointed under section 601FB(2) of the Corporations Act 2001 of the Commonwealth to hold property for the scheme as agent for the responsible entity (but does not include a person who is taken under section 601FB(3) of the Corporations Act 2001 of the Commonwealth to be an agent appointed by the responsible entity to do something for the purposes of subsection (2) of that section); public company means a public company within the meaning of the Corporations Act 2001 of the Commonwealth; registered managed investment scheme means a managed investment scheme registered under Chapter 5C of the Corporations Act 2001 of the Commonwealth; responsible entity for a registered managed investment scheme means the responsible entity for the scheme under the Corporations Act 2001 of the Commonwealth; self managed superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; superannuation fund means a fund that is, under section 45 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, a complying superannuation fund for the purposes of the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 of the Commonwealth; trust includes an implied trust or a discretionary trust; trustee includes— (a) a trustee under an implied trust; or (b) a person who holds property subject to a discretionary trust; unit trust means a trust giving effect to a unit trust scheme. 71AA—Instruments disclaiming etc an interest in the estate of a deceased person (1) This section applies to an instrument under which a person who is, or may be, entitled to share in the distribution of the estate of a deceased person— (a) disclaims an interest in the estate; or (b) assigns or transfers an interest in the estate to another. (2) An instrument to which this section applies is taken to be a conveyance of property operating as a voluntary disposition inter vivos (whether or not consideration is given for the transaction). (3) For the purpose of calculating ad valorem duty payable on an instrument to which this section applies, the value of the interest subject to the conveyance is to be determined as if the estate had been distributed and the interest were an interest in possession. 71A—Provision where trust property distributed in specie If any will or any instrument by which any trust is declared contains a direction to convert any property into money and to pay the proceeds to any beneficiary and, instead of converting the property into money the executor, administrator or trustee, as the case may be, conveys the property in specie to the beneficiary, the conveyance shall not be chargeable with duty as a conveyance on sale or as a conveyance operating as a voluntary disposition inter vivos if, in the case of a trust other than a trust declared by a will, the beneficiary is beneficiary by virtue of an instrument that is duly stamped. 71CAA—Special disability trusts immediate family member of a principal beneficiary, means a person— (a) who is a natural parent, adoptive parent or step‑parent of the principal beneficiary; or (b) who is, or was when the principal beneficiary was under 18 years of age, a legal guardian of the principal beneficiary; or (c) who is a grandparent or step‑grandparent of the principal beneficiary; or (d) who is a sibling or step‑sibling of the principal beneficiary; principal beneficiary— (a) has the meaning given in section 1209M(1) of the Social Security Act, in the case of a special disability trust within the meaning of section 1209L of that Act; or (b) has the meaning given in section 52ZZZWA(1) of the Veterans' Entitlements Act, in the case of a special disability trust within the meaning of section 52ZZZW of that Act; Social Security Act means the Social Security Act 1991 of the Commonwealth; special disability trust means— (a) a special disability trust within the meaning of section 1209L of the Social Security Act; or (b) a special disability trust within the meaning of section 52ZZZW of the Veterans' Entitlements Act; Veterans' Entitlements Act means the Veterans' Entitlements Act 1986 of the Commonwealth. (2) The following instruments are exempt from stamp duty in the circumstances set out in subsections (3) to (6) (inclusive): (a) a declaration of trust that establishes a special disability trust; (b) a transfer of an interest in land to the trustee of a special disability trust. (3) The person declaring the trust, or the transferor of the interest in the land (as the case may be), must be an immediate family member of the principal beneficiary of the special disability trust. (4) In the case of a declaration of trust under subsection (2)(a), the trust must hold land that constitutes the principal place of residence of the principal beneficiary of the special disability trust, or must hold land that will so constitute the principal place of residence of the principal beneficiary of the special disability trust within 12 months of the declaration of trust. (5) In the case of a transfer of an interest in land under subsection (2)(b), land in respect of which an interest is being transferred to the trustee of the special disability trust must constitute the principal place of residence of the principal beneficiary of the special disability trust, or the relevant land must so constitute the principal place of residence of the principal beneficiary of the special disability trust within 12 months of the transfer. (6) There must be no consideration provided for the declaration or transfer. 71CA—Exemption from duty in respect of Family Law instruments de facto relationship has the same meaning as in the Family Law Act 1975 of the Commonwealth; Family Law agreement means— (a) a maintenance agreement; or (b) a financial agreement; or (c) a splitting agreement; Family Law order means an order of a court under Part VIII, VIIIA, VIIIAB or VIIIB of the Family Law Act 1975 of the Commonwealth; flag lifting agreement has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth; financial agreement means a financial agreement made under Part VIIIA or VIIIAB of the Family Law Act 1975 of the Commonwealth (or taken to have been made under Part VIIIAB of that Act) that, under that Act, is binding on the parties to the agreement; maintenance agreement means— (a) a maintenance agreement approved by a court by order under section 87 of the Family Law Act 1975 of the Commonwealth; or (b) a maintenance agreement registered in a court under section 86 of the Family Law Act 1975 of the Commonwealth or under regulations made pursuant to section 89 of that Act; marriage includes a marriage that is void and thus liable to annulment, and married has a corresponding meaning; splitting agreement means— (a) a flag lifting agreement; or (b) a superannuation agreement, that has effect under Part VIIIB of the Family Law Act 1975 of the Commonwealth; superannuation agreement has the same meaning as in Part VIIIB of the Family Law Act 1975 of the Commonwealth; superannuation fund means— (a) a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or (b) an approved deposit fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or (c) a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; or (d) an account within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth; trustee of a superannuation fund means— (a) if the fund has a trustee (within the ordinary meaning of that word)—the trustee of the fund; or (b) if paragraph (a) does not apply and a person is identified in accordance with the regulations as the trustee of a fund for the purposes of this definition—the person identified in accordance with the regulations; or (c) in any other case—the person who manages the fund, and includes any other person who has power to make payments to the members of a superannuation scheme or plan that is constituted by, or incorporates, a superannuation fund. (2) The following instruments are exempt from stamp duty: (a) a Family Law agreement; (b) a deed or other instrument (including an application to transfer registration of a motor vehicle) to give effect to, or consequential on— (i) a Family Law agreement; or (ii) a Family Law order, if— (iii) the agreement or order relates to— (A) a marriage that has been dissolved or annulled; or (B) a marriage or de facto relationship that the Commissioner is satisfied has broken down irretrievably; and (iv) the instrument— (A) provides for the disposition of property between the parties to the marriage (or former marriage) or former de facto relationship and no other person, other than a trustee of a superannuation fund (if relevant), takes or is entitled to take an interest in property in pursuance of the instrument; or (B) in the case of an application to transfer registration of a motor vehicle—is consequential on a disposition of property between the parties to the marriage (or former marriage) or former de facto relationship; and (v) at the time of the execution of the instrument the parties were, or had been, married to, or in a de facto relationship with, each other; (c) a deed or other instrument executed by a trustee of a superannuation fund to give effect to, or consequential on— (i) a Family Law agreement; or (ii) a Family Law order; or (iii) the provisions of any Act or law (including an Act or subordinate legislation of the Commonwealth) relating to the transfer or disposition of property or any entitlements on account of a Family Law agreement or Family Law order. (3) If an instrument was not exempt from stamp duty under this section by reason only that— (a) in the case of an instrument relating to a marriage— (i) the marriage of the 2 persons had not been dissolved or annulled; and (ii) the Commissioner was not satisfied that the marriage of the 2 persons had broken down irretrievably; or (b) in the case of an instrument relating to a de facto relationship—the Commissioner was not satisfied that the relationship of the 2 persons had broken down irretrievably, a party to the marriage or de facto relationship who paid stamp duty on the instrument is entitled to a refund of the duty— (c) if the marriage is subsequently dissolved or annulled; or (d) if the Commissioner is subsequently satisfied that the marriage or de facto relationship has broken down irretrievably. (4) The Commissioner may require a party to an instrument in respect of which an exemption is claimed under this section to provide such evidence (verified, if the Commissioner so requires, by statutory declaration) as the Commissioner may require for the purpose of determining whether the instrument is exempt from duty under this section. (5) This section, as re-enacted by the Stamp Duties (Miscellaneous) Amendment Act 2004, applies— (a) in relation to Family Law agreements—both prospectively and retrospectively; (b) in relation to any other kind of instrument—to instruments executed after the commencement of that Act. 71CB—Exemption from duty in respect of certain transfers between spouses etc or former spouses etc shared residence means— (a) in relation to spouses or domestic partners—their principal place of residence of which both or either of them is owner; (b) in relation to former spouses or domestic partners—their last principal place of residence of which both or either of them was owner, but does not include premises that form part of industrial or commercial premises. (2) Subject to subsection (3), an instrument of which the sole effect is— (a) to transfer— (i) an interest in a shared residence; or (ii) registration of a motor vehicle, between parties who are spouses or former spouses, or domestic partners or former domestic partners; or (b) to register a motor vehicle in the name of a person whose spouse or former spouse, or domestic partner or former domestic partner, was the last registered owner of the vehicle (either alone or jointly with the person), is exempt from stamp duty. (2a) An instrument executed after the commencement of this subsection is exempt from stamp duty if the sole effect of the instrument is to transfer to the spouse or domestic partner of a deceased person an interest in a dwelling acquired by the spouse or domestic partner from the deceased's estate in consequence of an election made by the spouse or domestic partner under section 102 of the Succession Act 2023. (3) An instrument described in subsection (2) between parties who are former spouses or former domestic partners is only exempt from stamp duty if the Commissioner is satisfied that the instrument has been executed as a result of the irretrievable breakdown of the parties' marriage or relationship. (4) Where an instrument described in subsection (2) was not exempt from stamp duty under this section by reason only that the Commissioner was not satisfied that the instrument had been executed as a result of the irretrievable breakdown of the parties' marriage or relationship, the party by whom stamp duty was paid on the instrument is entitled to a refund of the duty if the Commissioner is subsequently satisfied that the instrument had been executed as a result of the irretrievable breakdown of the parties' marriage or relationship. (5) The Commissioner may require a party to an instrument in respect of which an exemption is claimed under this section to provide such evidence (verified, if the Commissioner so requires, by statutory declaration) as the Commissioner may require for the purpose of determining whether the instrument is exempt from duty under this section. (6) Subject to subsection (2a), this section applies in relation to instruments executed after its commencement. 71CBA—Exemption from duty in respect of domestic partnership agreements or property adjustment orders certified domestic partnership agreement has the same meaning as in the Domestic Partners Property Act 1996; domestic partner has the same meaning as in the Domestic Partners Property Act 1996; domestic relationship means the relationship between domestic partners; property adjustment order means an order of a court under Part 3 or 4 of the Domestic Partners Property Act 1996; superannuation fund means— (a) a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or (b) an approved deposit fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or (c) a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; or (d) an account within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth; trustee of a superannuation fund means— (a) if the fund has a trustee (within the ordinary meaning of that word)—the trustee of the fund; or (b) if paragraph (a) does not apply and a person is identified in accordance with the regulations as the trustee of a fund for the purposes of this definition—the person identified in accordance with the regulations; or (c) in any other case—the person who manages the fund, and includes any other person who has power to make payments to the members of a superannuation scheme or plan that is constituted by, or incorporates, a superannuation fund. (2) The following instruments are exempt from stamp duty: (a) a certified domestic partnership agreement; (b) a deed or other instrument (including an application to transfer registration of a motor vehicle) to give effect to, or consequential on— (i) a certified domestic partnership agreement; or (ii) a property adjustment order, if— (iii) the Commissioner is satisfied— (A) that the domestic relationship to which the agreement or order relates has broken down irretrievably; and (B) that the domestic partners lived together continuously as domestic partners for at least 3 years; and (iv) the instrument— (A) provides for the disposition of property between the parties to the former domestic relationship and no other person, other than a trustee of a superannuation fund (if relevant), takes or is entitled to take an interest in property in pursuance of the instrument; or (B) in the case of an application to transfer registration of a motor vehicle—is consequential on a disposition of property between the parties to the former domestic relationship; and (v) at the time of the execution of the instrument the parties were, or had been, domestic partners; (c) a deed or other instrument executed by the trustee of a superannuation fund to give effect to, or consequential on— (i) a certified domestic partnership agreement; or (ii) a property adjustment order. (3) Where an instrument was not exempt from stamp duty under this section by reason only that the Commissioner was not satisfied that a domestic relationship had broken down irretrievably, a party to the relationship who paid stamp duty on the instrument is entitled to a refund of duty if the Commissioner is subsequently satisfied that the domestic relationship has broken down irretrievably. (4) The Commissioner may require a party to an instrument in respect of which an exemption is claimed under this section to provide such evidence (verified, if the Commissioner so requires, by statutory declaration) as the Commissioner may require for the purpose of determining whether the instrument is exempt from duty under this section. (5) This section applies— (a) in relation to a certified domestic partnership agreement—both prospectively and retrospectively; (b) in relation to any other kind of instrument—to instruments executed after the commencement of this section. 71CC—Interfamilial transfer of farming property (1) A transfer of an interest in land used for the business of primary production is exempt from stamp duty if a familial relationship exists between the transferor and the transferee and the Commissioner is satisfied— (a) that the land to which the transfer relates is used wholly or mainly for the business of primary production and is not less than 0.8 hectares in area; and (b) that the sole or principal business of— (i) the natural person who, or whose trustee, is the transferor; or (ii) if the transferor is a company, at least 1 shareholder of the company, is (immediately before the instrument) the business of primary production; and (c) that for a period of 12 months immediately before the instrument there was a business relationship between— (i) at least 1 of the shareholders of the company or natural person (A) who, or whose trustee, is the transferor; and (ii) at least 1 of the shareholders of the company or natural person (B) who, or whose trustee, is the transferee, or a lineal ancestor or spouse or domestic partner of B, with respect to the use of the property for the business of primary production; and (d) in the case of a transfer where either or both parties are trustees, that no person is a beneficiary of the trust or trusts other than— (i) the natural person (A) who, or whose trustee, is transferor; or (ii) the natural person (B) who, or whose trustee, is transferee; or (iii) a relative (or relatives) of A or B; and (e) that the transfer does not arise from arrangements or a scheme devised for the principal purpose of taking advantage of the benefit of this section. (1aaa) For the purposes of subsection (1), a familial relationship exists between a transferor and a transferee if— (a) the transferor is a natural person, or a trustee for a natural person, and the transferee is a relative of, or a trustee for a relative of, that natural person; or (b) the transferor is a natural person, or a trustee for a natural person, and the transferee is a family company the shareholders of which are relatives of that natural person; or (c) the transferor is a family company and the transferee is a relative of the shareholders of the company, or a trustee for a relative of the shareholders of the company; or (d) the transferor and the transferee are family companies and the shareholders of the transferor are relatives of the shareholders of the transferee. (1aa) Subsection (1) extends to— (a) a case where natural person (A) or natural person (B) is a potential beneficiary under a discretionary trust as if a reference to a natural person were a reference to the natural person as a potential beneficiary under a discretionary trust with the trustee of that trust being the natural person's trustee; and (b) a case where natural person (A) or natural person (B) is a beneficiary of a trust (including a discretionary trust) with more than 1 beneficiary (or potential beneficiary); and (c) a case where natural person (A) or natural person (B) is a unit holder under a unit trust scheme as if— (i) a reference to a trustee for the natural person included a reference to the trustee of the unit trust; and (ii) a reference to a person being a beneficiary of a trust included a reference to a person being the holder of a unit in a unit trust scheme; and (d) a case where natural person (A) or natural person (B) is a member of a self managed superannuation fund as if— (i) a reference to a trustee for a natural person included a reference to the trustee of the self managed superannuation fund; and (ii) a reference to a person being a beneficiary of a trust included a reference to a person being a member of a self managed superannuation fund. (1b) In assessing the duty payable on an instrument, the Commissioner is to apply the following principles: (a) if the instrument gives effect solely to a transaction, or part of a transaction, that is exempt from duty under this section, then no duty is payable on the instrument; (b) if the instrument gives effect to a transaction, or part of a transaction, of which some of the elements are exempt from duty under this section and others not, the instrument will be assessed for duty as if it gave effect only to those elements of the transaction that are not exempt from duty under this section. (2) The Commissioner may, in deciding for the purposes of subsection (1)(b) whether a business relationship existed between two persons, take into account any of the following; (a) a previous employment relationship between them (regardless of the amount or form of remuneration); (b) a share-farming arrangement; (c) the provision of assistance in the running of the business; (d) a partnership arrangement, and may take into account such other matters (whether similar or dissimilar to those referred to above) as the Commissioner thinks fit. (3) The Commissioner may require a party to an instrument in respect of which an exemption is claimed under this section to provide such information or evidence as the Commissioner may require for the purpose of determining whether the instrument is exempt from duty under this section (including so as to clarify which beneficiary or potential beneficiary, or beneficiaries or potential beneficiaries, under a trust are the natural persons who have had the relevant business relationship). (5) In this section— family company—a company is a family company if each shareholder of the company is a relative of all other shareholders of the company; natural person or person does not include a person who is deceased (as at the time of execution of the relevant instrument); relative, in relation to a natural person, means a person who is— (a) a child or remoter lineal descendant of the person or of the spouse or domestic partner of the person; (b) a parent or remoter lineal ancestor of the person or of the spouse or domestic partner of the person; (c) a brother or sister of the person or of the spouse or domestic partner of the person; (ca) a child or remoter lineal descendant of the brother or sister of the person or of the spouse or domestic partner of the person; (d) the spouse or domestic partner of the person or a spouse or domestic partner of any person referred to in paragraphs (a), (b) or (c); self managed superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. (6) This section applies in relation to instruments executed after its commencement. 71CD—Duty on conveyances by Official Trustee etc Where, on the bankruptcy of a debtor, property of the debtor is vested in the Official Trustee in Bankruptcy or a registered trustee under the Bankruptcy Act 1966 of the Commonwealth— (a) a subsequent conveyance of the property by the Official Trustee or registered trustee to the bankrupt or former bankrupt is exempt from stamp duty; (b) a subsequent conveyance of the property by the Official Trustee or registered trustee to some other person will be assessed for stamp duty as though the conveyance were from the bankrupt or former bankrupt to that person. 71D—Concessional duty to encourage exploration activity (1) Where upon an application made under this section the Treasurer, after consultation with the Minister to whom the administration of the Mining Act 1971 is committed, is satisfied— (a) that the applicants are parties to a conveyance of a prescribed tenement or an interest in a prescribed tenement; and (b) that the consideration or a part of the consideration for the conveyance consists of an undertaking on the part of the person or persons acquiring an interest in the tenement by virtue of the conveyance— (i) to engage in exploratory or investigatory operations (to be carried on after the date of the undertaking) within that part of the area of the tenement to which the conveyance relates; or (ii) to contribute to the cost of exploratory or investigatory operations (to be carried on after the date of the undertaking) within that part of the area of the tenement to which the conveyance relates, this section applies to the conveyance. (2) An application under this section must— (a) be made in a manner and form determined by the Treasurer; and (b) set out a statement of— (i) the value of the interest being transferred by the conveyance; and (ii) the value of the undertaking referred to in subsection (1)(b); and (c) be accompanied by such evidence as the Treasurer may require. (2a) The duty payable upon a conveyance to which this section applies will be as follows: (a) where the amount by reference to which the duty would, apart from this section, be calculated does not exceed the value of the undertaking referred to in subsection (1)(b)—the duty will be $1 000; (b) where the amount by reference to which the duty would, apart from this section, be calculated exceeds the value of the undertaking referred to in subsection (1)(b)—the duty will be an amount calculated in accordance with the following formula: