56ARefund or remission of duty if transaction does not proceed

56A Refund or remission of duty if transaction does not proceed etc. (a) duty has been paid, or is payable, on a conveyance (other than a conveyance to which Division 8AB applies) or on the grant of a lease; and (b) the conveyance or grant does not proceed: (i) because of non-execution by an essential party, non-fulfilment of a condition precedent or the operation of some provision of the instrument; or

Stamp Duty Act 1978 42 (ii) because the entitlements purportedly conferred by the conveyance or grant are extinguished by rescission, cancellation or annulment of the conveyance or grant; the Commissioner must refund the duty paid or remit the duty payable (as the case requires). (1A) Subsection (1) does not apply in relation to the grant of a lease if the lessee or an associate of the lessee has occupied the leased property (or property substantially the same as the leased property), except as a result of the sale of the property to the lessee or associate, after the date when the grant did not proceed. (1B) In addition, the Commissioner must remit the duty assessed (but not paid) on a dutiable instrument if, under section 9(3A), there is no obligation to pay duty on the instrument because the transaction does not proceed. (2) A refund or remission of duty may only be made or granted under the Taxation Administration Act 2007 on an application: (a) made within 90 days (or a longer period allowed by the Commissioner) after it first became apparent that the conveyance or grant would not proceed (which, in the case of rescission, cancellation or annulment, will be taken to be the date of the rescission, cancellation or annulment); and (b) supported by all documents relevant to the application and such other evidence as the Commissioner may require. (3) All instruments evidencing a transaction in respect of which duty has, in pursuance of this section, been remitted or refunded shall have a note of that fact endorsed on them by the Commissioner and, on being so endorsed, they shall have no effect in law or in equity to convey dutiable property or grant a lease. (4) This section does not apply to or in relation to a transaction where the Commissioner is of the opinion that a subsequent sale or other disposition of the dutiable property the subject of the transaction: (a) is a sub-sale or a transaction having the effect of a sub-sale, notwithstanding that the subsequent conveyance is executed by the person who was the vendor in that first-mentioned transaction; or (b) is the result of a conveyance by direction, whether in writing or not, initiated by the conveyee in that transaction. (5) If duty has been remitted or refunded under subsection (1) or (1B) for a transaction, and the Commissioner subsequently forms the

Division 8AAA Changes in beneficiaries and trustees of discretionary trusts Stamp Duty Act 1978 43 opinion there has been a subsequent sale or other disposition of the dutiable property the subject of the transaction of a type mentioned in subsection (4)(a) or (b), the instruments evidencing the transaction remain liable to duty. (6) An assessment may be made under subsection (5) even though the period of limitation for making reassessments has expired. Division 8AA Declarations of trust 56BA Declaration of trust (1) A declaration of trust is a conveyance. (2) The declaration is to be assessed for duty as a conveyance to the declarant of all the dutiable property subject to the trust (irrespective of whether the declarant has, or may acquire, a beneficial interest under the trust). Division 8AAA Changes in beneficiaries and trustees of discretionary trusts 56BAB Imposition of duty on addition or change of beneficiary under discretionary trust (1) The following transactions are conveyances for the re-constitution of a trust: (a) the addition of a person or class of persons as a beneficiary or beneficiaries of a discretionary trust; (b) the sale (or other disposition) of a beneficial interest (or potential beneficial interest) by a beneficiary of a discretionary trust; (c) an amendment or variation to the terms of a non-discretionary trust that has the effect of creating a discretionary trust. (2) Such a conveyance is to be assessed for duty as a conveyance of all the dutiable property subject to the trust. (3) All the trustees and any person who becomes a beneficiary as a result of the conveyance are jointly and severally liable for the duty payable on the conveyance. (4) A transaction is not dutiable under this section if: (a) all the existing beneficiaries, and all new beneficiaries, are members of the same family; or