Transfers to trustees or custodians of superannuation funds or trusts
In Victoria, land transfer (stamp) duty (Duty) is ordinarily paid on the transfer, acquisition or purchase of real property at the time of the transfer. Unless an exemption or concession applies to the transfer, Duty is calculated by the consideration paid by the transferee or the current market value of the property, whichever is higher.
Eligibility
Section 41 of the Duties Act 2000 Vic (Act) provides a full exemption to Duty in circumstances where:
land is transferred, without monetary consideration, to a trustee or custodian of a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund; and
there is no change in the beneficial ownership of the property.
Evidentiary Requirements
Like other complex Duty exemptions, the trustee or custodian of the fund is required to provide particular evidentiary documentation when applying for this exemption. The required evidence includes a statutory declaration by the trustee or custodian of the fund stating:
the capacity of the person making the declaration;
whether the transferee will be holding the property in its capacity as trustee of the fund;
whether the transfer is to a fund that in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund within 12 months of the transfer taking effect (a complying fund);
whether the transferor is a beneficiary of the fund, or a trustee or custodian of the fund;
whether there is a change in the beneficial ownership of the property as result of the transfer; and
whether any consideration passed between the parties.
Importantly, if the fund is not a complying fund at the time of the transfer taking effect, evidence that it will be a complying fund within 12 months of the transfer taking effect.
Supperannuation Compliance
Consideration also needs to be given to compliance with the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act). Ordinarily, member contributions are restricted by concessional and non-concessional contribution caps. Commencing on 1 July 2024, the concessional cap was increased to $30,000 per year. Additionally, unused concessional contributions may be brought forward for a period of up to 5 years for members with less than $500,000 in super.
From 1 July 2024, the non-concessional cap was increased to $120,000 per annum. Additionally, members who are aged under 75 years of age and have less than $1.66M in superannuation entitlements as at 1 July 2024 may bring forward their non-concessional cap for 3 years and make a lump sum contribution of up to $360,000.
A member may otherwise be entitled to limited used of the bring forward rules. Additionally, the numbers in this article, together with eligibility requirements, are likely to vary over time, and should be reviewed at the relevant time.
Final Comments
In recent years, we have observed a significant increase in SRO investigations into eligibility to Duty exemptions. To avoid complications and issues arising, we strongly encourage anyone who is seeking to rely on this exemption to first obtain legal advice on Duty and SIS Act compliance.
This article only considers Victorian land transfer duty and does not consider capital gains tax. If you require assistance or wish to obtain further information in relation to transfers to superannuation funds, please contact:
Alasdair Woodford
Principal
T: 03 5225 5217| M: 0436 456 144
E: awoodford@ha.legal
Joseph Flanagan
Senior Associate
T: 03 5226 8504
E: jflanagan@ha.legal
Ben Smith
Lawyer
T: 03 5225 5262
E: bsmith@ha.legal
