In a recent blog post, DBA Lawyers’ Shaun Backhaus said while there was technically a stamp duty exemption available for SMSF trustees under the Duties Act 2000 (Vic), there were several restrictions on how this could be applied.
“Section 41A [of the act] provides that no duty is chargeable where property of a superannuation fund is transferred to a beneficiary of the fund if duty was paid on the acquisition by the fund; the beneficiary was a beneficiary when the property first became part of the fund; and the value of the property transferred does not exceed the value of the beneficiary’s interest in the fund,” Mr Backhaus said.
He added that the SRO was cracking down on SMSFs seeking to use this exemption when transferring property to a beneficiary, and that they were particularly interested in who could legally be a beneficiary of the fund and when they were made one.
“The issue of determining who is a beneficiary of the fund and whether they were a beneficiary at the relevant time is being raised,” Mr Backhaus said.
“Moreover, in relation to the payment of death benefits to a dependent or legal personal representative (LPR), the SRO will review the SMSF deed to determine whether it is drafted appropriately to cover the dependent or LPR as a beneficiary.”
He said SMSF trustees needed to carefully consider purchasing property in Victoria if they were later planning to rely on this exemption, as well as obtaining a review of all relevant fund documents from a legal representative rather than an accountant.
“It should also be noted that the provision of state tax advice should be undertaken by a registered legal practitioner, as a registered tax agent can only provide tax advice on Commonwealth law,” Mr Backhaus said.
