Duties Act evidentiary requirements: Section 62, 62A, 62B

Section 62

Transfers between trustees and custodians of superannuation funds or trusts

1. Original executed transfer or agreement
2. Statutory declaration by the transferee stating the details of the transaction and confirming the transfer is where there is no change in the beneficial ownership of the property
3. Certificate of compliance or a search from ATO’s Superfund look-up confirming the superannuation fund as a complying fund
4. if not complying, a statutory declaration by the trustee for a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect
5. Copy of the stamped executed instrument evidencing the custodial arrangement
6. For a transfer of, or an agreement to transfer, dutiable property from a custodian of a trustee to a trustee of the fund or trust, information that shows that the mortgage has been discharged (such as copy of the completed Discharge of Mortgage – 05DM Form)
7. Purchaser Declaration Form

Section 62A

Transfers to self-managed superannuation funds

1. Original executed Instrument of transfer or agreement to transfer
2. Copy of the self-managed superannuation trust deed
3. Certificate of compliance or a search from ATO's Superfund look-up confirming the superannuation fund as a complying fund which should include the ABN of the superannuation fund
4. If the dutiable property being transferred is land, a copy of a current land title search (if possible) for the land being transferred or agreed to be transferred
5. If the dutiable property being transferred is marketable securities (being shares or units), a copy of the current unit register or share register
6. If a superannuation fund has not been confirmed as a complying superannuation, a statutory declaration that the trustee is satisfied, as at the execution date of the transfer, that the fund will be confirmed as a complying superannuation fund
7. Current register of members of the superannuation fund
8. Evidence that the property meets the SIS Act business real property test
9. If business real property is being transferred, confirm that the property is used for business/commercial purpose and what percentage of the property is used to carry on a business
10. Evidence that the business real property is being acquired for market value from a related party (being a member or members)
11. Evidence that the in-house asset is being acquired from members at market value
12. Stamped copy of the custodian trust deed if transferee is a custodian
13. Where there is more than one member transferring or agreeing to transfer the property, the property is to be used for the benefit of those members in the same proportions as it was held by them before the transfer or agreement to transfer. If the property is not used for the benefit of those members in the same proportions as it was held by them before the transfer or agreement to transfer, a clause in either the super fund deed or a variation to the super fund deed that the property is segregated for the benefit of the transferors / members is needed. This clause should be irrevocable and not subject to change
14. Purchaser Declaration Form

Section 62B

Declaration of trust by custodian

1. Original executed declaration of trust instrument executed on or after 23 October 2014
2. Copy of any deeds of amendment / variation that amend or vary the declaration of trust instrument
3. Copy of the stamped front page of the Contract for the Sale of Land that has been stamped with ad valorem duty or a copy of the stamped Contract for the Sale of Land or Transfer of Land that has been stamped pursuant to section 62A
4. Copies of bank statements with the full account holders name showing and copies of loans agreement etc to satisfy that the consideration for the acquisition of the dutiable property was or will be provided by the trustee of the self-managed superannuation fund
5. The Contract for the Sale of Land should be assessed on EDR and only the declaration of trust by the custodian should be sent in for stamping
   • If finance has been approved - lodge the declaration of trust for stamping of $500 at the same time as the Contract for the Sale of Land is stamped with ad valorem duty within 3 months of execution
   • If finance has been approved – provide a copy of the loan approval letter
   • If finance has not been approved - $500 on the declaration of trust should be paid on account so that no interest is charged and after settlement the evidentiary requirements can be provided
6. Purchaser Declaration Form