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How understanding discretionary powers gained a refund of stamp duty

By John McKeown

Knowledge of how the Commissioner for State Revenue has certain discretionary freedom of movement can bring tangible benefits.  A recent town planning hiccup gave us the opportunity to see it first-hand.

For context, section 499 of the Duties Act 2001 gives the Commissioner discretion to refund duty where an instrument on which duty has been paid is, for one reason or another, of no use or effect.

A client was one of two owners of adjoining industrial parks in Brisbane that had co operated over a number of years to assist each other with sharing of services, particularly access.  At one point the respective parcels were subdivided and a parcel was transferred from one park to the other park with an access easement.

A transfer was executed, but due to an unforeseen town planning delay, the transfer – which had already been stamped – could not be implemented for a lengthy period.  In the meantime ownership of one of the parks changed hands.  This meant that the transfer could not be registered in the Titles Office.

Because the present legislation was couched in quite different terms to the old Act, it was important to get a feel for the policy of the Commissioner in such a matter before making the application for a refund of the stamp duty.

Our approach to the OSR proved to be of invaluable assistance because section 499 of the Act is couched in such general terms.

The resulting detailed application advancing our client's case, subsection by subsection, brought about the refund for them.