“Asset protection from business misadventure is also a driver for having a co-owner who carries no, or at least comparatively less, risk than the other owner,” Burgess said.

“In situations where one spouse owns 100 per cent of a family home, most Australian jurisdictions allow a stamp duty exemption where the spouse transfers 50 per cent to their spouse. Subject to meeting specific requirements, the Victorian regime is an outlier in this regard in that it potentially allows the transfer of up to 100 per cent of a home to a spouse without duty cost.”

However, Burgess said there are situations that have fuelled an urban myth that other jurisdictions permit an analogous duty-free outcome like Victoria on full ownership transfers of homes.

He said the recent court decision in El Chami v Chief Commissioner of State Revenue [2025] NSWCATAD 266 provides one example of how this “myth” has gained traction.

“In this case, the transfer of 100 per cent of a family home from a husband to a wife was stamped no duty payable, due to a gap in the Electronic Duties Return of the NSW State Revenue Office, which permitted the law firm lodging the transfer to claim a full exemption when in fact no exemption was available,” Burgess said.

“On discovering the error the law firm, rather than cancelling the transfer which was immediately registered on title, the firm simply transferred 50 per cent of the home from the wife back to the husband, successfully - and correctly - applying the relevant duty exemption for the transfer (in NSW) of 50 per cent of a family home to a spouse.”

He continued that when Revenue NSW later investigated the initial transfer it imposed full “ad valorem” stamp duty, as well as penalties and interest on the initial transfer totalling almost $126,000.

“The law firm raised a range of arguments as to why no duty, nor penalties or interest, should be payable,” Burgess said.

“These included firstly, that the law firm should not have been held responsible given the system allowed the transfer of 100 per cent of the property without bringing up an error. [The firm argued] that if the system provided an error notice or flagged the duty payable this would have alerted them to the incorrect inputting of 100 per cent instead of 50 per cent into the relevant date field.”

The firm also claimed that the data entry reflected a genuine mistake and that the demand for payment of the stamp duty was “unjust and breathtakingly opportunistic'”and contrary to the motto and statement of objectives of Revenue NSW, being a “fair and prosperous NSW”.

“In rejecting all arguments in relation to cancelling the primary duty assessment, the tribunal did however remit 50 per cent of the interest and penalties,” Burgess continued.

“The tribunal confirmed there was no ability for the tribunal to waive the statutory requirements even if the outcome is unfair or unjust (see Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109). It also stated the legislation required a deregistration or cancellation of the first transfer to remove the dealing (see Marilyn Elizabeth Trethowan v Chief Commissioner of State Revenue [2013] NSWSC 576) and the failure to do so meant the first transfer was an effective transfer (which was fully dutiable) and became the starting point for the second transfer.”

Furthermore, the tribunal noted that although it may not have been the transaction intended, the registration also meant that the first transfer was not “an instrument that fails in its intended operation and becomes useless”, which was required to allow a reassessment of duty.

“The tribunal also stated that law firm did not take reasonable care, as it failed to engage with Revenue NSW (or the titles office) to ensure that the error was appropriately corrected and rather unilateral steps were taken, which caused separate valid and binding transactions to occur (see Re Melteal Pty Ltd and Chief Commissioner of State Revenue [2010] NSWADT 116),” Burgess added.

“It continued that in this context, 'reasonable care' was confirmed to mean to require a determination of 'whether a person exercised the care that a reasonable person would be likely to have exercised in the circumstances of that person (including in respect of enquiries made and advice sought or received)' (see Qualweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227).

“Finally, the decision stated that ultimately, while the relevant stamp duty provisions may have been difficult and complex, it was important for the tribunal to promote attempts at compliance which are both sincere and careful, hence the only (relatively minor) concessions given to the taxpayers here (see O’Neill Tyres Gateshead Pty Ltd & Cessnock Tyres Pty Ltd v Chief Commissioner of State Revenue [2020] NSWCATAD 314).”