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De facto relationship instruments exemption (s. 424) toolkit
This toolkit brings together everything you need to know about self assessing duty on de facto relationship property transfers that are exempt from duty. This is one of the exemptions that registered self assessors must assess.
The following sections of the Duties Act 2001 establish the framework for applying this exemption.
Under section 424, duty is not imposed on a transaction that gives effect to a de facto relationship instrument. We must first establish what a 'de facto relationship instrument' is for the purposes of this exemption.
Section 422 provides that the following are de facto relationship instruments to the extent they deal with de facto relationship property:
- a recognised agreement under section 266 of the Property Law Act 1974
- a court order under Part 19 of the Property Law Act
- an instrument made under a recognised agreement
- an instrument made under an order of a court under Part 19 of the Property Law Act.
Assessing a de facto relationship instrument exemption
When assessing this type of transaction, note the following:
- the agreement or order must pre-date the transaction and be witnessed appropriately
- the transaction must be made in accordance with the agreement or order
- the agreement or order must provide a clear direction, and the property must be specified
- the parties must have lived in a valid and subsisting de facto relationship for at least 2 years
- the agreement must deal with the property of the de facto partners
- the transaction must be between the de facto partners in their individual capacities.
Use these tools to determine if an exemption applies:
- recognised agreement interactive help
- transaction made in accordance with a recognised agreement interactive help.
Here are some tips to help you self assess this type of transaction in OSR Online.
How to lodge online
You must complete all mandatory fields under each tab in OSR Online. Mandatory fields are marked with a red asterisk. There are some specific data entry requirements.
- Answer Yes to the question: Is the consideration for this transaction less than the unencumbered value of the property included in this transaction?
- Enter the unencumbered value of 100% interest in property if known; if unknown, enter $0.00 (nil).
- Select Yes to the question: Is an exemption being claimed?
- Select the applicable exemption from the Exemption type drop-down list.
- Answer No to the question: Does this transaction form part of an arrangement that includes other dutiable transactions (Section 30)?
Settlements outside Queensland
You cannot apply this exemption to a property settlement made outside Queensland if it has no reference to section 266 of the Property Law Act.
These transactions cannot be self assessed and must be lodged for assessment with the Office of State Revenue.
When a transaction includes real property, each transferor and transferee must declare whether they are a non-Australian entity.
A non-Australian transferor or transferee must complete an identity details annexure.
For transferors, an email is automatically generated through OSR Online when the transaction is lodged, asking the transferor to complete an online identity details annexure. Contact us for help if you cannot obtain the transferor's email address.
Transferees must complete an identity details annexure and you must enter these details in OSR Online.
Records you need to keep
For this type of transaction, you must keep:
- a completed dutiable transaction statement (Form D2.2)
- the recognised agreement, court order or certified copy of it
- the document made under the recognised agreement or a copy (if one exists)
- an identity details annexure for each non-Australian transferee, if the transaction involves real property.
Find out more about your record keeping obligations.
Examples of transactions made in relation to the Property Law Act
Exempt transaction example
De facto partners own a property as joint tenants. A separation agreement is made, under section 266 of the Property Law Act, that contains a statement of all significant property.
The agreement is signed by the de facto partners and witnessed by a solicitor. The agreement states that the couple has lived together in a valid and subsisting relationship for 1 year and 7 months before separating and later reconciling for a further 6 months. An instrument is executed to transfer the property from one partner to the other.
The instrument is exempt under section 424 of the Duties Act, because the parties to the separation agreement have lived together in a valid and subsisting relationship for at least 2 years. The transaction must be self assessed.
Dutiable transaction example
De facto partners own an investment property as joint tenants. A separation agreement is made, under section 266 of the Property Law Act, that contains a statement of all significant property.
The agreement is signed by the de facto partners and witnessed by a solicitor. The agreement states that the couple has lived together in a valid and subsisting relationship for 18 months. An instrument is executed under the agreement to transfer property from one partner to the other.
The instrument is not exempt under section 424 of the Act as the parties to the separation agreement have not lived together in a valid and subsisting relationship for at least 2 years. This instrument must be self assessed for duty on the dutiable value of the entire property.
- Last reviewed: 14 Oct 2020
- Last updated: 14 Oct 2020
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