On 9 August 2024, in Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158, the New South Wales Civil and Administrative Tribunal Appeal Panel upheld a decision that transfer duty was payable on a Deed of Transfer of a property from a self managed superannuation fund to the sole member.

This case narrowly reads down exemptions for New South Wales stamp duty. Where an exemption references only a “transfer” or another specified dutiable transaction, other forms of dutiable transactions should potentially not be subject to the exemption.

This has particular relevance now that the dutiable transaction provisions have been extended (ie to changes in beneficial ownership), without necessarily extending the scope of pre-existing exemptions.

Background

In 2004, a superannuation fund (Super Fund) was established with Mr Imbree and his son as trustees. Mr Imbree was the only member of the superannuation fund and rolled over existing superannuation funds and made other contributions to the fund. In 2009, Mr Imbree and his son executed a contract of sale to purchase a property in New South Wales (the Property). The purchasers were Mr Imbree and his son as trustees of the Super Fund as to 95/100 shares as tenants in common, with the son as to 5/100 shares in his personal capacity.

In July 2022, Mr Imbree applied to the Chief Commissioner for a private ruling that section 57 (exemption for property passing to beneficiaries) of the Duties Act 1997 (NSW) applied to a request from him as member of the Super Fund for the trustees to transfer to him the 95% interest in the Property held by the Super Fund for no consideration.

Prior to receiving a private ruling, a Deed of Transfer was executed. Under the Deed, the member requested that the trustees of the Super Fund transfer to the Member the 95% interest in the Property and noted that the Trustees have agreed to make the transfer. A purchase price of $3.3 million was set, but the member could replace his entitlements in the Super Fund and therefore pay no consideration.

The Chief Commissioner assessed the Deed of Transfer to duty as an agreement to transfer dutiable property.

Tribunal Decision

The main issue before the tribunal was whether the exemption under section 55 (property vested in an apparent purchaser) of the Duties Act 1997 (NSW) applied.

This exemption applies to either a declaration of trust made by an apparent purchaser in favour of the real purchaser or to a transfer of dutiable property from an apparent purchaser to the real purchaser (who provided the money for the purchase of the dutiable property).

This matter could have been disposed of on the basis that as the funds for the purchase of the Property came from the Super Fund, the trustees of the Super Fund were therefore both the apparent and the real purchasers of the 95% interest in the Property.

However, the Tribunal also determined that as the Deed was neither a transfer of dutiable property or a declaration of trust, the exemption could never apply.

This is despite subsection 9(1) of that Act, which provides that for the purposes of charging stamp duty, transactions other than transfers of land are to be charged as if it was a transfer of dutiable property.

Key observations

As this case narrowly reads down exemptions or concessions from stamp duty, a number of them are no longer fit for purpose.

For example, deeds or agreements to transfer property from a deceased estate may not fall within the “deceased estate” exemption in New South Wales, which references “transfers” only. There are many other examples under the New South Wales provisions.

The outcome of this position may not be as burdensome in Victoria, where agreements to transfer dutiable property are not taxed under the Victorian provisions. In addition, in Victoria, there is a specific duty exemption for transfers from a superannuation fund to a member (provided all of the relevant conditions are met).

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Please contact us with assistance with advice on stamp duty or any other State Tax issues.

Phil Broderick
Principal
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Nicholas Clifton
Principal Lawyer
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Meera Pillai
Associate
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