27/09/2012

As lawyers we like evidence, and I am here to tell you that we now have proof of the NSW Duties Office giving back money in relation to SMSF transactions.  Now that I've got your attention, here are the details.

We recently received instructions from a financial adviser who we'll call Coltrane.

Coltrane had clients who had (under a previous adviser):

• owned a commercial property located in NSW in their personal names
  
• transferred the property as an in-specie contribution in part for each of the two members into their SMSF in accordance with their current holding of the property
  
• paid full stamp duty based on the market value of the property (over $30,000)
  
• finalised and registered the transfer in June 2011
  

The clients engaged Coltrane as their adviser and when Coltrane became aware of the transaction he contacted us to enquire if there was any way to obtain a refund from the NSW Duties Office.  Coltrane thought the transaction met the requirements of s62A in the NSW Duties Act and therefore should have attracted only a concessional rate of stamp duty ($50).

We told Coltrane that we love a challenge and what could be more challenging than getting money back from a government agency?  We asked Coltrane to forward us our usual s62A instruction sheet for the concessional transfer of property along with a few more details and a copy of the Trust Deed.

For a fixed fee we reviewed the Transfer, the Fund Deed and prepared documents for the Duties Office outlining how the transaction met the requirements of s62A at the time of the transaction and at all times since.

We had Coltrane's clients execute the documents and we then attended to lodgement, ready and waiting for the Duties Office response which was likely to be their rationalisation as to why they would be keeping the money.

In a matter of only 9 days after lodgement our firm received a refund cheque from the NSW Duties Office for the amount of the original stamp duty paid less the $50 concessional fee it had been reassessed at.

This was a refund amount of over $30,000 at a cost to the client of only $1,650!

If you believe your clients may be entitled to superannuation based concessional stamp duty please do not hesitate to contact our specialist superannuation lawyers as we would love to help your client be the next success story.

If you have any questions in relation to this article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.