While the application of land transfer (stamp) duty is reasonably straight forward for land transfers such as a purchase of property under a contract of sale, the application of duty in relation to declarations of trust can be complicated.
What is a declaration of trust?
The Duties Act 2000 (Vic) (Act) defines a ‘declaration of trust’ as any declaration that identifies property vested in, to be vested in, held by or to be held by the person making the declaration for the person or persons who are the beneficial owners of the property. For the purposes of the Act a declaration of trust does not include a declaration made by a will or testamentary instrument.
When is duty payable on a trust?
In Victoria duty is payable on a declaration of trust as follows:
where the property the subject of the trust is non-dutiable property such as cash or unidentifiable property a duty of $200 is payable to the Victorian State Revenue Office (VSRO); or
where the property the subject of the trust is dutiable property such as land the general (ad valorem) rates of duty apply. Current rates of duty can be found here.
Taxpayers must lodge the trust deed to the VSRO and pay duty within 30 days of the date of execution. Penalties apply for late lodgement of trust deeds. This process is commonly referred to as ‘stamping’.
The stamping of all trust deeds executed on or after 1 October 2008 can be processed for duty via the VSRO’s Duties Online platform. Registered Duties Online users are, post submission, able to print a duty certificate directly as evidence of the assessment and payment.
What evidence must be provided?
In the case of non-dutiable property under sections 37(1) and 37(2) of the Act the VSRO previously required the original executed trust instrument to be provided. However, the VSRO has recently updated its Evidentiary Requirements Manual such that physical or scanned full copies of original executed trust instruments will now meet the evidentiary requirements for these trusts.
Based on current guidance where declarations of trust are made over dutiable property the original executed trust instrument must still be provided. In practice, only copies of the executed documents are submitted to the VSRO via the duties online system. However, originals must be held by the party submitting the documents.
Do all trust deeds need to be stamped?
All trust deeds, save for superannuation trust deeds, must be lodged with the VSRO. This requirement exists even in the case where an exemption from duty may apply to the declaration of trust.
If you have not submitted your trust deed to the VSRO a voluntary disclosure may be made. We recommend seeking legal advice to help in this process and assist in managing potential liabilities.
What exemptions are available?
As noted above all trust deeds must be lodged with the VSRO. However, exemptions may apply such that it will be deemed, post submission of the trust deed, that no duty is payable by the taxpayer or taxpayers.
Exemptions include declarations of trusts:
made by an apparent purchaser over dutiable property (including for bare trusts);
made by a trustee/nominee over dutiable property to be held with no change in beneficial ownership;
which establish a special disability trust;
which establish a superannuation trust or fund;
made as a result of a breakdown of a marriage or a domestic relationship;
which establish a charitable trust; and
that declare the same trusts as that by which trust over dutiable property was transferred to the trustee for which duty has been paid.
Each of the exemptions listed above has specific criteria which must be strictly followed in order for the exemption to apply. Taxpayers should ensure appropriate legal advice is sought both in the drafting of the trust deed and in applying for the relevant exemption.
Do trust variations need to be lodged?
It is a common misconception that all deeds of variation are not required to be lodged with the VSRO. There is no blanket approach which applies to deeds of variation. Whether duty applies and whether the deed of variation needs to be submitted to the VSRO depends on the specific variation.
Generally, a deed of variation will need to be lodged with the VSRO where:
it constitutes a declaration of trust in its own right; and/or
it results in a change of beneficial ownership in property.
Importantly where the variation results in a foreign person becoming a beneficiary or ceasing to be a beneficiary it may be necessary to notify the VSRO as it may affect foreign purchaser duty applicable on future transactions.
When taxpayers are varying trusts it is critical that appropriate legal advice is sought to ensure the outcomes, including duty implications, are as expected.