Can I Get a Refund of Stamp Duty?

Stamp duty is paid on a document, and documents sometimes turn out not to do what they were meant to. The Stamp Duties Act (Chapter 117) provides for refunds in several situations — each with its own conditions, and one overarching deadline.

The 12-month rule

Section 93(1) is the provision to diarise. Unless the Collector of Stamp Duties otherwise determines, where a person is entitled to a refund of stamp duty, the right to the refund lapses unless the person entitled applies to the Collector within 12 months after payment of the duty.

Section 93(2) preserves any different period where the Act makes special provision for one.

When a refund arises

The instrument never took effect

Section 91(1): where an instrument is made non-effective by reason of the failure of a party to execute it, and duty has been paid, the Collector may on application pay the person who paid an amount equal to the duty.

Unused or spoiled stamps

Section 91(2): on application by a person who has paid for an unused stamp or unused stamped material, or one inadvertently spoiled or rendered useless, the Collector may give money or replacement stamped material to the value, less 5%.

An agreement is rescinded or annulled

Section 48 deals with the rescission or annulment of an agreement for the transfer on sale of real property. Where a contract is rescinded, the duty paid on the agreement is the obvious candidate for a refund.

Two related provisions cover resource interests: section 55A for the rescission or annulment of mining or petroleum leases, and section 55B for the rescission or annulment of a transfer of a land use entitlement.

A lease ends early

Section 55 provides for a refund of part of the duty on early determination of a lease. Duty on a lease is calculated on the rent for the whole lease period, so where the term is cut short, part of the duty relates to a period that never ran. See stamp duty on leases.

An objection or appeal succeeds

Under section 20A(3), where an objection is allowed in whole or in part and duty or penalty is reduced, the Collector shall make a refund of the amount reduced to the party by whom, or on whose behalf, it was paid — or to that person's executors, administrators or assigns.

Under section 21(6), where the National Court's assessment on appeal is less than the Collector's, the Court orders the Collector to repay the excess duty or penalty paid by the appellant. See assessments, objections and appeals.

An assessment is amended downwards

Under section 13A, where amending an assessment reduces the amount payable, the reduction is deemed not to have been payable, and the Collector must give written notice of the amount overpaid.

Duty was never chargeable

Worth checking before anything else. Several duties were abolished in 2008 — mortgages, bills of lading, certain credit transactions, company constitutions, memoranda of agreement, insurance policies and the debits tax. Duty paid on an instrument that was not chargeable is a candidate for refund. See which duties have been abolished.

Refunds can be set off

Section 96 provides for refund set-off. A refund otherwise payable may be applied against other amounts owing, so a taxpayer with outstanding duty elsewhere may find the refund absorbed rather than paid out.

How to apply

1. Establish the date duty was paid. That starts the 12 months under section 93.
2. Identify the ground — section 91, 48, 55, 55A, 55B, 20A(3), 21(6) or 13A. A refund application without a stated basis invites delay.
3. Apply in writing to the Collector of Stamp Duties, attaching the instrument, the receipt or evidence of payment, and the documents establishing the ground — for example, the deed of rescission, or the instrument of surrender ending the lease.
4. Identify who is entitled. The refund goes to the person by whom, or on whose behalf, the duty was paid.
5. Keep a dated copy of the application and follow up in writing.
6. If the ground is a disputed assessment, remember the separate and much shorter deadlines: 30 days to object, 60 days to appeal.