Stamp Act and Another Act Amendment Act 1985 (Qld)

1381 ANNO TRICESIMO QUARTO ELIZABETHAE SECUNDAE REGINAE No. 90 of 1985 An Act to amend the Stamp Act 1894- 1985 in certain particulars and to amend the Real Property Act 1861- 1985 in a certain particular and for a related purpose [ASSENTED TO 9TH DECEMBER, 1985]

1382 Stamp Act and Another Act Amendment Act 1985, No. 90 BE IT ENACTED by the Queen ' s Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled , and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the StampAct and Another Act .-amendment Act 1985. (2) In this Act the Stamp Act 1894-1985 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Stamp Act 1894-1985. 2. Commencement . (1) This Act, other than sections 14, 16, 22 and 23 (b) (ii). shall commence on the day on which it is assented to for and on behalf of Her Majesty. (2) Section 14 shall be deemed to have commenced on 1 July 1985 and shall be given retrospective effect accordingly. (3) Section 16 shall be deemed to have commenced on 9 April 1985 and shall be given retrospective effect accordingly. (4) Section 22 shall be deemed to have commenced on 9 March 1967 and shall be given retrospective effect accordingly. (5) Section 23 (b) (ii) shall be deemed to have commenced on 9 April 1985 and shall be given retrospective effect accordingly. 3. Amendment of s. 2. Definitions . Section 2 of the Principal Act is amended by- (a) in subsection (I )- (i) omitting the definition "Instrument" and substituting the following definition:- "The expression "Instrument" includes a written. typed or printed document and when the original is not available for production to the Commissioner, a duplicate original thereof and a copy of the original or the duplicate original whether produced by the same process as the original document that is not available or by a separate process and whether executed or not;"; (ii) in the definition "Application for registration", adding at the end of the paragraph beginning with the words "The expression does", the words "where ad valorem duty under this Act or any corresponding Act or law of any State or a Territory of the Commonwealth has been paid in respect of any prior registration in the name of the last registered person"; (iii) in the definition "Deed of Gift"- (A) omitting paragraph (a) and substituting the following paragraph:- "(a) Every deed of gift or instrument by way of gift conveying, transferring or disposing or purporting to convey, transfer or

Stamp Act and Another Act Amendment Act 1985, No. 90 1383 dispose of property absolutely, including the disposal by the extinguishment by forgiveness in whole or in part of a debt;"; (B) omitting from paragraph (b) the words "other disposition of property made or executed on or after the first day of November, one thousand nine hundred and eighteen, containing trusts or dispositions" and substituting the words "disposition of property, including the disposition by the extinguishment by forgiveness in whole or in part of a debt, relating to any trust or a disposition of property, including the disposition by the extinguishment by forgiveness in whole or in part of a debt,"; (b) adding at the end thereof the following subsection:- "(3) In this Act, the expression "Full unencumbered value" in respect of property means the full value of the property without regard to any encumbrance to which the property is subject, whether certainly or contingently: Provided that- (a) In the case of property- (i) held or to be held pursuant to a trust. other.than a unit trust scheme provided for in a deed-that is an approved deed for the purposes of Division 6 of Part IV of the Companies (Queensland) Code or the corresponding provisions of the Companies Code or Companies Act of any other State or a Territory, in this paragraph referred to as trust property, the expression "full value" means the value of the property held or to be held by the trustee for the trust, without regard to the debts or liabilities of the trustee of the trust; (ii) other than a marketable security, which is an estate or interest in trust property, the expression "full value" means the value of that proportion of the full unencumbered value of trust property that the property which is the estate or interest in the trust property bears to the aggregate of the estates or interests which comprise all of the estates or interests in the trust property. In calculating the full value of trust property which comprises or includes an estate or interest in other trust property, the value of that estate or interest shall be the full value of that estate or interest calculated in accordance with this paragraph and the value of the other trust property shall be the full value of the trust property that is the other trust property calculated in accordance with this paragraph. In calculating the full value of trust property or property which is an estate or interest in trust property where the trust property consists of property within Queensland and outside Queensland, only property

1384 Stamp Act and Another Act Amendment Act 1985, No. 90 to the extent that it is located in Queensland shall be had regard to and in calculating the full value of trust property or property which is an estate or interest in trust property where the trust property consists wholly or in part of a business- (A) that is conducted on or from any place in Queensland; or (B) the conduct of which consists wholly or partly of offering to supply land or any interest therein, money, credit or goods or any interest therein or to render any service, by way of offers directed to persons ( generally as a class or individually) ordinarily resident in Queensland, only the business to the extent that it is carried on in Queensland shall be had regard to and, should the case require it, a true apportionment shall be made of the value of all things subject to the trust which are located both within and outside Queensland; or (b) in the case of property which represents- (i) any interest or any part of an interest held by a partner in a partnership; or (ii) any interest or any additional interest acquired by a partner in a partnership, in this paragraph referred to as partnership interest, the expression " full value" means- (iii) the value of the undivided share in all the property (in this paragraph referred to as partnership property) to which the partnership interest relates equivalent to the proportionate value of the partnership interest , without regard to the debts and liabilities of the partnership; (iv) the consideration , if any , given for the acquisition or in respect of the transaction relating to the partnership interest; or (v) the total capital amount represented by the partnership interest, whichever is the greatest. For the purposes of determining the relevant share in the partnership property for the purposes of subparagraph ( iii), such share shall be calculated on the basis of applying the profit- sharing proportion attaching to the partnership interest to all the partnership property to which the interest relates.

Stamp Act and Another Act Amendment Act 1985, No. 90 1385 In determining the profit-sharing proportion for this purpose, adjustments as agreed between the parties in respect of interest on capital and compensation for partners engaged in personal exertion for the partnership may, at the discretion of the Commissioner, be disregarded and where the profit-sharing proportion cannot be presently determined from the partnership agreement the proportion shall be that provided for by The Partnership Act 1891 to 1965. For the purpose of determining consideration for the purposes of subparagraph (iv) the Commissioner may in his discretion disregard the partnership debts and liabilities. For the purposes of subparagraph (v) the total capital amount represented by the partnership interest shall include all proprietorship of property and assets, by whatever name called, attaching to the partnership interest and in calculating the value of the total capital amount, the Commissioner shall take into account, whether as additions to or subtractions from the total capital amount, as the case requires, capital, drawings, advances and loans. In calculating the full value of partnership property where the property consists of property within Queensland and outside Queensland, only property to the extent that it is located in Queensland shall be had regard to and in calculating the full value of partnership property where the property consists wholly or in part of a business- (A) that is conducted on or from any place in Queensland; or (B) the conduct of which consists wholly or partly of offering to supply land or any interest therein, money, credit or goods or any interest therein or to render any service, by way of offers directed to persons (generally as a class or individually) ordinarily resident in Queensland, only the business to the extent that it is carried on in Queensland shall be had regard to and, should the case require it, a true apportionment shall be made of the value of all partnership property which is located both within and outside Queensland.' . 4. Repeal of s. 4c. Governor in Council may- grant exemption .regarding works for public benefit . The Principal Act is amended by repealing section 4c. 5. Amendment of s. 17. Mode of calculating ad valorem duty in certain cases . Section 17 of the Principal Act is amended in subsection (1) by- (a) omitting the words "foreign or colonial currency," and substituting the words "currency other than that of the Commonwealth of Australia;' ; (b) omitting the words "British currency" and substituting the words "currency of the Commonwealth of Australia"; (c) omitting the word "current"; (d) inserting after the words "rate of exchange", the words "obtainable on that day from a bank in Queensland as chosen by the Commissioner

1386 Stamp Act and Another Act Amendment Act 1985, No. 90 or, if such rate is not so obtainable from any bank in Queensland on that day then according to the rate of exchange obtainable on the last preceding day on which such rate was so obtainable". 6. Amendment of s. 23: x. Commissioner may require information. Section 23A of the Principal Act is amended by- (a) omitting from subsection (2) all words from and including "and, additionally" to and including "instruments requisitioned": (b) omitting subsection (2A) and substituting the following subsections:- "(2A) Where a person commits an offence referred to in subsection (2)- (a) the offence shall be deemed to continue for as long as the requisition in respect of which the offence was committed is not complied with, notwithstanding that the time or, as the case may be, the period for complying with the requisition has elapsed; and (b) the court may, upon convicting the person of the offence, in addition to any penalty that it may impose under subsection (2), order the person to pay a penalty not exceeding $50 for each day on which the offence was, pursuant to paragraph (a). deemed to continue. (2B) Where a person has been convicted of an offence against subsection (2). the court may- (a) in addition to imposing a penalty on the person as provided in subsection (2) and, where applicable, subsection (2.4); and (b) in a case of an offence referred to in subsection (2A), notwithstanding the relevant time or period has expired, order the person to comply with the requisition in respect of which the offence was committed. (2c) Where a court makes an order pursuant to subsection (2B), it may specify the time within which or the place and time at which the order shall be complied with. (2D) A person who fails to comply with an order made by a court pursuant to subsection (2B) shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding $2,000 or imprisonment for a period not exceeding six months, or both.". 7. Amendment of s. 31G. Section 31G of the Principal Act is amended in subsection (1) by inserting after the word "stamped" in

Stamp Act and Another Act Amendment Act 1985, No. 90 1387 subparagraph (ii) of paragraph (a), the words ."or is deemed to have been duly stamped under section 311". 8. New s. 311. The Principal Act is amended by inserting after s. 311 the following section:- "311. Duty on certain transactions on the Stock Exchange of the United Kingdom . (1) In this section, except where a contrary intention appears- "broker" means a person who is a member of the London Stock Exchange; "jobber" means a person who is recognised as a jobber according to the rules and practices of the London Stock Exchange; "London Stock Exchange" means the Stock Exchange of the United Kingdom; "prescribed corporation" means a corporation which is declared, pursuant to subsection (2), to be a prescribed corporation; "relevant transaction" means a disposition of a marketable security or right in respect of shares of a corporation, company or society which is incorporated in or, in the case of a corporation incorporated outside Australia is registered in Queensland, made or effected by a prescribed corporation as trustee for a person to the prescribed corporation as trustee for another person. (2) The Governor in Council may by Order in Council declare a person who is a trustee and who is incorporated in Queensland or recognised in Queensland or carries on business in Queensland to be a prescribed corporation. (3) Where a prescribed corporation- (a) is notified of a disposition to a person of a right or interest in a marketable security or right in respect of shares which the prescribed corporation holds as trustee on behalf of another person; or (b) is directed to hold a marketable security or right in respect of shares on behalf of a person other than the person on behalf of whom the prescribed corporation holds that security or right, it shall be deemed to have made or effected a relevant transaction. (4) A prescribed corporation shall on or before the 14th day of each month- (a) furnish to the Commissioner a statement in the prescribed form verified in the prescribed manner setting out the prescribed particulars of relevant transactions made or effected or deemed to have

1388 Stamp Act and Another Act Amendment Act 1985, No. 90 been, made or effected by it during the preceding month; and (b) pay to the Commissioner as stamp duty on the statement a sum equal to the total amount of stamp duty that would have been payable if each such relevant transaction had been made or effected by an instrument of transfer of a marketable security in respect of which duty is payable at the rate specified in subparagraph (3) (a) under the heading "CONVEYANCE OR TRANSFER" in the First Schedule. (5) A prescribed corporation which fails to comply with a provision of this section shall be guilty of an offence and for each and every offence shall be liable to a penalty not exceeding $500 and in addition a penalty of not more than double the amount of the duty that would have been payable if this section had been complied with. (6) Subsection ( 4) shall not apply to or in respect of a relevant transaction where the disposition to which the relevant transaction relates- (a) would , if that disposition had been made or effected by an instrument of transfer of a marketable security- (i) be exempt as- (A) a conveyance or transfer of a corporate debt security; (B) a conveyance or transfer to a religious body, including to trustees upon trusts for a religious body; (C) a conveyance or transfer of property to any institution in Queensland ( approved by the Minister for the purpose of the fifth exemption under the heading "CONVEYANCE OR TRANSFER" in the First Schedule ) engaged in the relief of poverty , or the care of sick, aged, infirm, inflicted or incorrigible persons or of children; or (D) a conveyance or transfer of stock, debentures or bonds of a public statutory body constituted under the law of Queensland or another State or a Territory of the Commonwealth; or (ii) attract duty of $1 as a conveyance or transfer for the sole purpose of- (A) carrying into effect any distribution under a will or in intestacy; or

Stamp Act and Another Act Amendment Act 1985, No. 90 1389 (B) correcting an error in a previous conveyance or transfer of the same stock or marketable security or right in respect of shares where no additional consideration in money or moneys worth is paid or payable and such instrument has the effect of altering the beneficial interest or interests to such extent only as may be necessary to effect the correction of the error; (b) is made by way of security or in consequence of such security no longer being required provided that duty at an ad valorem rate has been paid in Queensland or in another State or a Territory of the Commonwealth in respect of the loan or other security document pursuant to which the transfer by way of security is made; (c) is, in accordance with the rules and practices of the London Stock Exchange , a stock loan transaction; (d) is made or effected by a jobber to a broker who acquired the marketable security or right in respect of shares as principal where, within two clear days (not including any day on which the London Stock Exchange is closed for business) after acquisition, the broker disposed of his beneficial interest in that security or right; (e) is made or effected by a broker as principal within two clear days (not including any day on which the London Stock Exchange is closed for business) after he acquired that marketable security or right in respect of shares as principal- (i) to a jobber; or (ii) to another broker as principal where, within two such clear days after the acquisition, the other broker disposed of his beneficial interest in that security or right; (f) is made or effected by a person who is a dealer within the meaning of Section 31.4; or (g) is made or effected by a jobber to another jobber. (7) Where a relevant transaction is made- (a) by a prescribed corporation as trustee for a broker to itself as trustee for a jobber: (b) by a prescribed corporation as trustee for a jobber to itself as trustee for a broker; (c) by a prescribed corporation as trustee for a broker to itself as trustee for another broker who acquired the marketable security or right in respect of shares

1390 Stamp Act and Another Act Amendment Act 1985 , No. 90 as principal where, within two clear days (not including any day on which the London Stock Exchange is closed for business) after acquisition, the other broker disposed of his beneficial interest in that marketable security or right; or (d) by a prescribed corporation as trustee for a broker as principal within two such clear days after acquisition to itself as trustee for another broker, the amount payable under subsection (4) (b) in respect of that relevant transaction will be one half of the amount that would otherwise be payable. (8) A prescribed corporation shall keep such books and records as are necessary to give a true indication of the relevant transactions made or effected by it and shall retain those books and records for a period of three years after the completion of the transactions to which they relate and at any time make them available to the Commissioner. (9) Where a transfer of a marketable security or right in respect of shares to or by a prescribed corporation is exempt under the exemption to the provisions under the heading "CONVEYANCE OR TRANSFER" in the First Schedule which refers to a prescribed corporation, it may be endorsed by the prescribed corporation on the transfer that no stamp duty is payable in Queensland on the transfer and upon that endorsement being made the transfer shall be deemed to be duly stamped. (10) The prescribed corporation shall keep records of transfers endorsed pursuant to subsection (9) and in respect of a transfer so endorsed, the prescribed corporation shall at the request of the Commissioner furnish to the Commissioner information and documents for the purpose of satisfying the Commissioner that the transfer so endorsed is exempt under the exemption to the provisions under the heading "CONVEYANCE OR TRANSFER" in the First Schedule which refers to a prescribed corporation. (11) If the Commissioner is not satisfied that a transfer endorsed by a prescribed corporation pursuant to subsection (9) is exempt under the exemption to the provisions under the heading "CONVEYANCE OR TRANSFER" in the First Schedule which refers to a prescribed corporation, the transfer shall be deemed to have been assessed at an insufficient amount and the transfer shall be assessed correctly pursuant to section 80 and the Commissioner may in addition to duty so reassessed demand and receive by way of penalty an amount equal to the total amount of duty so reassessed.". 9. Amendment of s. 35. Credit and Rental Business . Section 35 of the Principal Act is amended in subsection (1) by inserting after the definition "Rental business", the following definition:- "The expression "Required person" means a person who is required to be registered under the provisions of section 35A;".

Stamp Act and Another Act Amendment Act 1985, No. 90 1391 10. Amendment of s. 35B. Statements to be lodged by registered persons with the Commissioner . Section 35B of the Principal Act is amended by- (a) omitting from the note appearing in and at the beginning of the section, the words " registered persons " and substituting the words "required persons"; (b) omitting from the section the words "registered person" wherever they occur and substituting the words "required person" in each case. 11. Amendment of s. 35c . Registered persons to keep records. Section 35c of the Principal Act is amended by- (a) omitting from the note appearing in and at the beginning of the section, the words " Registered persons " and substituting the words "Required persons": (b) omitting from the section the words "registered person" wherever they occur and substituting the words "required person" in each case. 12. Amendment of s. 35D . Penalties . Section 35D of the Principal Act is amended by- (a) omitting from subsection (1) the words "registered person" and substituting the words "required person": (b) omitting subsection (2). 13. Amendment of s. 35E. As to transactions with unregistered persons . Section 35E of the Principal Act is amended by adding at the end of the section the following subsection:- " (7) Where a person who pays duty in compliance with this section shows to the satisfaction of the Commissioner that the same duty has been or will be accounted for on a return in accordance with the provisions of section 35B that person shall be entitled to a refund in respect of the duty paid by him.". 14. Amendment of s. 42B. Stamp duty on credit card business. Section 42B of the Principal Act is amended in subsection (3) by omitting all words from and including the words "where SD represents" to the end of the subsection and substituting the following words:- "where SD represents- (a) in the case where the cardholder's bank is a prescribed cardholder's bank, the total amount of stamp duty that would have been paid had each of the merchants with whom was had a transaction in connection with which there has been produced a credit card issued to or at the direction of the cardholder for whom the account is kept. during the billing period that terminated in the month the close of which commences the period of 28 days within which the

13')2 Stamp Act and.4nother Act Amendment Act 1985, No. 90 return is required to be furnished, been paid by means of a bill of exchange payable on demand; or (b) in a case where a cardholder's bank is not a prescribed cardholder's bank, the total amount of stamp duty that would have been paid had each transaction in connection with which there has been produced a credit card issued to or at the direction of the cardholder for whom the account is kept, during the billing period that terminated in the month the close of which commences the period of 28 days within which the return is required to be furn ished, been paid by means of a bill of exchange payable on demand. (3A) For the purposes of subsection (3), the Governor in Council may by Order in Council approve a cardholder's bank to be a prescribed cardholder's bank where- (a) the cardholder's bank is a company which is principally engaged in supplying goods or services and the credit card issued by it is principally for use in connection with transactions had with the company in connection with the supply of goods or services by it: or (b) the cardholder's bank is a company- (i) the issued share capital of which is owned wholly (or to a prescribed extent) by another company which is principally engaged in the supply of goods or services; or (ii) the issued share capital of which is owned wholly (or to a prescribed extent) by a third company which owns wholly (or to a prescribed extent) the issued share capital of another company which is principally engaged in the supply of goods or services, and the credit card issued by the cardholder's bank is principally for use in connection with transactions had with the other company in connection with the supply of goods or services by that other company.". 15. New s . 49D. The Principal Act is amended by inserting after section 49c the following section:- "49D. Duty and penalty on conveyance or transfer in certain cases . (1) If it appears to the Commissioner- (a) that an instrument of conveyance or transfer purporting to have been made for the sole purpose of effecting the retirement of a trustee or the

Stamp Act and Another Act Amendment Act 1985, No. 90 1393 appointment of a new or additional trustee, and stamped with duty in accordance with provision (v) of the proviso occurring after either paragraph 3 (b) or 4 (b ) under the heading "CONVEYANCE OR TRANSFER" in the First Schedule was not made for the sole purpose of effecting the retirement of a trustee or the appointment of a new or additional trustee, having regard to- (i) any alteration to the terms ( including the addition of beneficiaries or alteration of beneficial interests) of the trust; ( i) any change of beneficial interest from the time of appointment of a retiring trustee or continuing trustee , in respect of which ad valorem duty chargeable under the heading "CONVEYANCE OR TRANSFER", the heading "DECLARATION OF TRUST" or the heading "SETTLEMENT, DEED OF GIFT OR VOLUNTARY CONVEYANCE" in the First Schedule has not been paid on an instrument; (iii) in respect of a unit trust scheme, any alteration that has been made to the beneficial ownership of the trust property (whether by sale, issue, transfer or redemption of units or any other manner); or (iv) where the trustee or remaining trustee is a corporation, any alteration that has been made to the ownership of the stock or shares in that corporation: or (b) that an instrument of conveyance or transfer was the means or part of the means whereby a benefit has been conferred upon a new, additional or remaining trustee, or another person, whether by operation of law or otherwise, then the amount of duty chargeable in respect of that instrument shall be the amount chargeable as if the instrument were not for the sole purpose of effecting the retirement of a trustee or the appointment of a new or additional trustee and thereupon section 80 applies as if the amount of duty assessed in the first instance had been assessed at an insufficient amount. (2) Where a person who- (a) is a party to an instrument which is executed on or after the date of commencement of this section and which has been assessed pursuant to provision (v) of the proviso occurring after either paragraph 3 (b)

1394 Stamp Act and Another Act Amendment .4ct 1985, No. 90 or 4 (b) under the heading "CONVEYANCE OR TRANSFER" in the First Schedule; or (b) was or is a trustee of a trust in respect of which an instrument was executed on or after the date of commencement of this section and which has been assessed in the manner described in paragraph (a), he shall, within 28 days of the happening of any of the circumstances specified in subsection (1) (a) and (b) or such longer time as the Commissioner in his discretion in the particular case allows. notify the Commissioner of those circumstances. (3) Where a person fails to notify the Commissioner in compliance with subsection (2). the Commissioner, when reassessing duty payable pursuant to subsection (1). shall demand and receive by way of penalty an amount equal to the total amount of duty so reassessed less any amount of penalty received from any other person under this subsection for failure to notify the Commissioner of the circumstance that resulted in the reassessment.". 16. New s . 49E. The Principal Act is amended by inserting after section 49D. as inserted by section 15, the following section:- "49E. Duty and penalty on declaration of trust in certain cases . (1) If it appears to the Commissioner- (a) that an instrument executed on or after 9 April 1,985 and stamped with duty in accordance with the proviso under the heading "DECLARATION OF TRUST" in the First Schedule. declaring that property vested or to be vested in the person executing the same is or shall be held in trust. was not consequential upon the retirement of a trustee or upon the appointment of a new or additional trustee and for no other purpose, having regard to- (i) any alteration to the terms (including the addition of beneficiaries or alteration of beneficial interests) of the trust; (ii) any change of beneficial interest from the time of appointment of a retiring trustee or continuing trustee, in respect of which ad valorem duty chargeable under the heading "CONVEYANCE OR TRANSFER", the heading "DECLARATION OF TRUST" or the heading "SETTLEMENT, DEED OF GIFT OR VOLUNTARY CONVEYANCE" in the First Schedule has not been paid on an instrument; (iii) in respect of a unit trust scheme, any alteration that has been made to the beneficial ownership of

Stamp Act and Another Act Amendment Act 1985, No. 90 1395 the trust property (whether by sale, issue , transfer or redemption of units or any other manner); or (iv) where the trustee or remaining trustee is a corporation, any alteration that has been made to the ownership of the stock or shares in that corporation; or (b) that an instrument executed on or after 9 April 1985, declaring that property vested or to be vested in the person executing the same is or shall be held in trust, was the means or part of the means whereby a benefit has been conferred upon a new, additional or remaining trustee, or another person , whether by operation of law or otherwise, then the amount of duty chargeable in respect of that instrument shall be the amount chargeable as if the instrument were not for the sole purpose of effecting the retirement of a trustee or the appointment of a new or additional trustee and thereupon section 80 applies as if the amount of duty assessed in the first instance had been assessed at an insufficient amount. (2) Where a person who, on or after 9 April 1985- (a) is a party to an instrument assessed pursuant to the proviso under the heading "DECLARATION OF TRUST" in the First Schedule; or (b) was or is a trustee of a trust in respect of which an instrument was assessed in the manner described in paragraph (a), he shall, within 28 days of the date of assent to the Stamp Act and Another Act Amendment Act 1985 or the happening of any of the circumstances specified in subsection (1) (a) and (b) whichever is the later period to expire or such longer time as the Commissioner in his discretion in the particular case allows, notify the Commissioner of those circumstances. (3) Where a person fails to notify the Commissioner in compliance with subsection (2), the Commissioner, when reassessing duty payable pursuant to subsection (1). shall demand and receive by way of penalty an amount equal to the total amount of duty so reassessed less any amount of penalty received from any other person under this subsection for failure to notify the Commissioner of the circumstance that resulted in the reassessment.". 17. Amendment of s. 53 . Directions as to duty in certain cases. Section 53 of the Principal Act is amended in subsection (4) by inserting in paragraph (a) after the words "becomes entitled", the words "or may, provided that the terms or conditions of such agreement or arrangement are met, become entitled".

1 396 Stamp Act and Another Act Amendment Act 1985, No. 90 18. Amendment of s. 54A. Liability to account for duty upon transfer of business . Section 54A of the Principal Act is amended in subsection (5) by inserting after the word "full", the word "unencumbered", 19. Amendment of s. 56B . Unit trust schemes. (1) Section 56B of the Principal Act is amen...ed by- (a) in subsection (1) omitting the definition "unit trust scheme" and substituting the following definition:- "unit trust scheme" means a unit trust scheme as defined in section 2, where any property the subject of the unit trust scheme is located in Queensland or any business of the scheme is carried on in Queensland, but does not include a unit trust scheme- (a) in respect of which there is an approved deed for the purposes of Division 6 of Part IV of the Companies (Queensland) Code or the corresponding provisions o f the Companies Code or Companies Act of any other State or a Territory or a deed of a class approved by Order in Council; or (b) which, on or after 12 December 1984, is an approved deposit fund for the purposes of section 27A of the IncomeTaxAssessmentAct 1936 of the Commonwealth, as amended from time to time, in respect of which the trustee is an approved trustee for the purposes of that section and in respect of which there has issued a prospectus for the purposes of Division 6 of Part IV of the Companies (Queensland) Code or the corresponding provisions o f the Companies Code or Companies Act of any other State or a Territory;"; (b) in subsection (4), adding at the end of paragraph (a), the following paragraph:- "For the purposes of this paragraph, property held by the unit trustee does not include an amount of cash paid or payable to the unit trustee to the extent that it is for the allotment which represents the subject disposition."; (c) inserting after subsection (4), the following subsection:- "(4A) Where the Commissioner is satisfied- (a) that a disposition of units has the effect- (i) that the persons who are the beneficiaries immediately prior to the disposition are the only persons who are the beneficiaries of the unit trust scheme immediately after the disposition and, where any such person is insofar as the beneficial ownership is concerned a trustee or nominee, that such person continues to hold that interest on the

Stamp Act and Another Act Amendment Act 1985, No. 90 1397 same trusts or as nominee for the same person as the case may be, as the interest has immediately theretofore been held; and (ii) that the proportions in which such persons are the beneficiaries under the unit trust scheme immediately prior to the making of the disposition are the proportions in which such persons are the beneficiaries under the unit trust scheme immediately after the making of the disposition; and (b) that such disposition does not have the effect of varying or altering the rights or obligations of any person who is a beneficiary under the unit trust scheme as against the rights of any other person who is a beneficiary under the unit trust scheme in respect of the unit trust scheme, this section shall not apply to the disposition of units."; (d) adding at the end of the section, the following subsection:- "(10) Where in respect of a disposition in relation to a unit, a transfer or an instrument effecting or evidencing a disposition is not executed and a unit trustee fails to comply with subsection (2), the trust deed in respect of the unit trust scheme is chargeable with the amount of duty with which the instrument transferring a unit or effecting or evidencing a disposition of a unit would have been charged under subsection (4) had subsection (2) been complied with and the unit trustee and each of the holders of a unit as at the date of the disposition and thereafter under a unit trust scheme is liable for such duty on the trust deed.". (2) It shall be deemed that the definition "unit trust scheme" has at all times since 12 December 1984 included the provisions of paragraph (b) inserted therein by subsection (1). 20. Amendment of s. 56c. Discretionary trusts. Section 56c of the Principal Act is amended by adding at the end of the section, the following subsections:- "(10) Where in respect of a disposition in relation to a share in a company which is a discretionary trustee, a transfer or an instrument effecting or evidencing the disposition is not executed and an officer of a company which is a discretionary trustee fails to comply with subsection (2). the trust deed in respect of the discretionary trust is chargeable with the amount of duty with which the instrument transferring or effecting or evidencing the disposition of a share would have been charged under subsection (4) had subsection (2) been complied with and the discretionary trustee and each of the holders of the shares in the company as at the date of disposition and thereafter is liable to pay the duty on the trust deed.

1398 Stamp Act and Another Act Amendment Act 1985, No. 90 (1 1) Where the Commissioner is satisfied- (a) that the discretionary trustee is a company formed by an accountant or solicitor or firm of accountants or solicitors for the purpose of such company acting as trustee of the trusts of the clients of the accountant, solicitor or firm, as the case may be; (b) that there is a disposition of a share from- (i) one partner of such firm or employee of such firm to another such person upon an alteration to the composition of the relevant partnership or its employees; (ii) the accountant or solicitor or an employee of the accountant or solicitor to a person or persons acquiring the business of the accountant or solicitor; or (iii) an employee of an accountant or solicitor to the accountant or solicitor or to another employee of such accountant or solicitor upon an alteration to the composition of the accountant's or solicitor's employees; (c) that the disponor holds and the disponee is to hold that share in his usual professional or employee capacity and no other and has no direct or indirect pecuniary interest other than fees in the assets of a trust administered by the company or the potential distribution thereof: and (d) that neither the disponee nor the disponor nor a member of his family nor a company over which he or a member of his family exercises control has power under a trust administered by the company to vary the terms of the trust or the entitlement of beneficiaries under the trust, this section shall not apply in respect of the disposition of the share. (12) In this section- (a) "accountant" means a person registered as a public accountant under the Public Accountants Registration Act 1946-1975; (b) "solicitor" means a person duly admitted as a Solicitor of the Supreme Court.".

Stamp Act and Another Act Amendment Act 1985, No. 90 1399 21. New ss. 56D and 56E . The Principal Act is amended by inserting after section 56c the following sections:- "56D. Conveyance of land by way of security. (1) Notwithstanding the provisions of section 65, a conveyance or transfer by way of security of land, or an estate or interest in land, is chargeable with ad valorem duty on the full unencumbered value of the land or estate or interest in land, as the case may require, as if it were a conveyance or transfer upon a sale and the consideration for such sale is an amount equal to the full unencumbered value of the land or the estate or interest in the land. (2) Where the Commissioner is satisfied- (a) that there has been a conveyance or transfer by way of security of land or an estate or interest in land; (b) that duty has been paid in accordance with subsection (1) on such conveyance or transfer; and (c) that the land or estate or interest in land has been retransferred or reconveyed to the person who transferred the land or the estate or interest in land by way of security or to a person to whom the land or an estate or interest in land of the first-mentioned person has been transmitted by death or bankruptcy, the Commissioner shall refund the ad valorem duty paid on the conveyance or transfer by way of security, less the amount of duty that would have been payable on the conveyance or transfer if it had been charged with duty as a conveyance or transfer by way of security under paragraph (2) under the heading "CONVEYANCE OR TRANSFER" in the First Schedule. 56E. Conveyance of other property by way of security. Where a conveyance or transfer by way of security of property other than land, has been assessed to or exempted from duty under this Act or another Act and the transferee or any subsequent assignee thereafter, attains ownership of the property, free from any interest or equity of the transferor or any subsequent assignee thereafter, an instrument by which that transferee or subsequent assignee attains that ownership or the instrument of conveyance or transfer, in the absence of that instrument, shall be chargeable with duty as if it were a conveyance or transfer upon a sale and the consideration for that sale is an amount equal to the full unencumbered value of the property at the time when the transferee or subsequent assignee attained that ownership and duty shall be reduced by the amount of duty, if any, paid on the conveyance or transfer by way of security.".

1400 Stamp Act and Another Act Amendment Act 1985, No. 90 22. Amendment of s. 57A. Motor vehicles. Section 57A of the Principal Act is amended by inserting after subsection (6) the following subsection:- "(6A) Where an applicant for registration or transfer of registration of a motor vehicle satisfies the Commissioner- (a) that ad valorem duty chargeable under the heading "CONVEYANCE OR TRANSFER " in the First Schedule has been paid or will be paid on another instrument; (b) that such duty was calculated by including a sum representing the value of that motor vehicle or a part of the value of that motor vehicle; and (c) that the application for registration or transfer of registration is in respect of or pursuant to that other instrument, the Commissioner shall allow by way of refund or set off that part of the amount of duty paid to the Commissioner of Main Roads on that application for registration or transfer of registration of a motor vehicle as does not exceed the amount calculated in accordance with the following formula- where- axb c a = an amount calculated by applying the ad valorem rates of duty specified in the table in subparagraph (a) of paragraph ( 4) under the heading "CONVEYANCE OR TRANSFER " in the First Schedule to the amount of difference calculated in c; b = the sum representing the value of the motor vehicle or, in the case where the duty referred to in paragraph (b) was calculated on part of the value of the motor vehicle, the sum representing the value of that part; c = the difference between the total value upon which duty was calculated on the other instrument and any part of that value which did not attract duty at those ad valorem rates of duty.".

Stamp Act and Another Act Amendment Act 1985, No. 90 1401 23. Amendment of First Schedule . The First Schedule to the Principal Act is amended by- (a) in the provisions under the heading "CONVEYANCE OR TRANSFER"- (i) adding at the end of paragraph (1), the following paragraph:- "(c) Of property consisting solely of a security which is ancilliary or incidental to property of the kind specified in subparagraph (a) where the conveyance or transfer is made in connection with a conveyance or transfer of property of the kind specified in subparagraph (a) .................... $5.00"; (ii) inserting in paragraphs (3) and (4), after provision (v) (a) of the proviso occurring after paragraph (b), in each case, the following provision:- " and (aa) that there has been no change of beneficial interest from the time of appointment of the retiring or continuing trustee (or both) in respect of which ad valorem duty chargeable under the heading "SETTLEMENT, DEED OF GIFT OR VOLUNTARY CONVEYANCE ", the heading "DECLARATION OF TRUST" or the heading "CONVEYANCE OR TRANSFER" in this Schedule has not been paid on an instrument relating to the particular property and particular transaction;"; (iii) adding at the end of the list of exemptions the following exemption:- " Any transfer of a marketable security or right in respect of shares- (a) to a prescribed corporation, as defined in section 31J, where such prescribed corporation is to hold in trust the marketable security or right in respect of shares for the transferor; (b) to a prescribed corporation , as defined in section 31 j, where such prescribed corporation is to hold in trust the marketable security or right in respect of shares for a person on whose behalf the marketable security or right in respect of shares was held by the transferor in trust immediately before the transfer where the transferor is- (i) the Public Trustee; (ii) a trustee company within the meaning of the Trustee Companies Act 1968-1984; (iii) a corporation that is constituted under the law of another State or of a Territory of the

1 402 Stamp Act and .4nother Act Amendment Act 1985, No. 90 Commonwealth which is approved by the Governor in Council by Order in Council as corresponding in that State or Territory to the Public Trustee or a trustee company referred to in subparagraph (ii): or (iv) a corporation or class of persons prescribed as a trustee for the purpose of this paragraph: (c) by a prescribed corporation, as defined in section 31j. as trustee. to the person recorded by it as the person for whose benefit the shares are held by it in trust; (d) by a prescribed corporation. as defined in section 31.r, as trustee, to another person as trustee for the person recorded by the prescribed corporation as the person for whose benefit the shares were held by it in trust or for the beneficial owner of shares purchased under a relevant transaction upon which duty was paid or which was exempt from duty and on whose behalf the prescribed corporation held the shares in trust where the new trustee is- (i) the Public Trustee: (ii) a trustee company within the meaning of the Trustee Companies Act 1968-1984; (iii) a corporation that is constituted under the law of another State or of a Territory of the Commonwealth which is approved by the Governor in Council by Order in Council as corresponding in that State or Territory to the Public Trustee or a trustee company referred to in subparagraph (ii): or (iv) a corporation or class of persons prescribed as a trustee for the purpose of this paragraph; (e) by a prescribed corporation, as defined in section 31J, as trustee, to a person (not being a person referred to in paragraph (c) or to a new trustee referred to in paragraph (d)) who is the beneficial owner of the shares purchased under the relevant transaction upon which duty has been paid or which is exempt from duty, and on whose behalf the prescribed corporation held the shares in trust; or (f) to or by a prescribed corporation, as defined in section 31J, for the sole purpose of effecting a transaction which is, in accordance with the rules and practices

Stamp Act and Another Act Amendment Act 1985, No. 90 1403 of the Stock Exchange of the United Kingdom, a stock loan transaction."; (b) in the provisions under the heading "DECLARATION OF TRUST"- (i) inserting after the word "full" in the duty column, the word "unencumbered"; (ii) inserting immediately before the exemptions under that heading the following proviso:- "Provided that in respect of any such instrument made on or after 9 April 1985 where the Commissioner is satisfied- (a) that the declaration is consequential upon the retirement of a trustee or upon the appointment of a new or additional trustee and is for no other purpose; (b) that the trustee or remaining trustee is to hold upon the same trusts as the property had been held and that it is not intended to alter the terms of those trusts at any future time; (c) that there has been no change of beneficial interest from the time of appointment of the retiring or continuing trustee ( or both), in respect of which ad valorem duty chargeable under the heading "SETTLEMENT, DEED OF GIFT OR VOLUNTARY CONVEYANCE", the heading "DECLARATION OF TRUST" or the heading "CONVEYANCE OR TRANSFER" in this Schedule has not been paid on an instrument relating to the particular property and particular transaction; (d) that it is not the means or part of the means whereby any benefit actual or potential may be conferred upon the new, additional or remaining trustee , or any other person, whether by operation of law or otherwise; (e) where the trustee or remaining trustee is trustee for a trust or unit trust , that it is not intended to make any alteration to the beneficial ownership of the trust property (whether by sale, issue, transfer or redemption of units or any other manner); and

1404 Stamp Act and Another Act Amendment Act 1985, No. 90 (f) where the trustee or remaining trustee is a corporation, that it is not intended to make any alteration to the ownership of the stock or shares in that corporation, the duty payable shall be ...................... 1 $4.00"; (c) in the provisions under the heading "HIRING AGREEMENT", omitting the exemption provision and substituting the following provision:- "A hiring agreement, the amount received in respect of which is to be received by a person who is registered under section 35A of the Act as carrying on a rental business."; (d) in the provisions under the heading "SETTLEMENT, DEED OF GIFT OR VOLUNTARY CONVEYANCE", omitting the word "containing" and substituting the words "relating to". 24. Repeal of and new s . 48 of the Real Property Act 1861-1985. (1) The Real Property Act 1861-1985 is amended by repealing section 48 and substituting the following section:- "48. Transfer . A memorial of a transfer of land under the provisions of this Act shall not be entered in the register book by the Registrar of Titles unless the transferor executes a memorandum of transfer in form W of the Schedule, which memorandum shall- (a) be attested by a witness; (b) for the description of the land intended to be transferred, refer to the grant or certificate of title of such land and give such description as may be sufficient to identify that particular portion of land intended to be transferred; (c) where a monetary consideration is expressed to have been paid, contain an acknowledgment of the receipt of the relevant sum; and ( d) contain an accurate statement of the estate or interest intended to be transferred and a memorandum of all mortgages , encumbrances, liens and interests affecting the same.". (2) The Real Property Act 1861- 1985 as amended by subsection (1) may be cited as the Real Property Act 1861-1985.