If the superannuation fund was not in existence at the time the custodian entered into the contract to purchase the property, the self-managed superannuation fund cannot be the actual/real purchaser.

If the superannuation fund was established after the date of the contract, the declaration of trust will be liable to transfer duty calculated on the dutiable value of the property. Refer to section 8 and section 11 of the Duties Act 1997. In these cases, all documents must be submitted to Revenue NSW for assessment via eDuties. Refer to Chapter 4 - Processing and lodgement requirements.

The fixed duty rate under section 62B of the Duties Act 1997, only applies to a declaration of trust over property being purchased by a self-managed superannuation fund and the following must apply:

• the declaration of trust must name the superannuation fund, and
• the purchaser in the contract for sale must be the custodian/bare trustee, and
• the custodian/bare trustee must be the same as identified in the declaration of trust, and
• the declaration must identify the property being purchased.

If the above does not apply, all documents must be submitted to Revenue NSW for assessment via eDuties. Refer to Chapter 4 - Processing and lodgement requirements.

Evidence must confirm the actual/real purchaser (trustee of the self-managed superannuation fund):

• paid the deposit, and
• has paid, or has the capacity to pay, the balance of the consideration for the acquisition of the dutiable property or has borrowed money to pay the balance of the consideration.

Acceptable evidence must display the full account holder’s name, being the trustee of the self-managed superannuation fund. The evidence can be a combination of the following:

• deposit slips
• bank statements
• receipts
• copies of the loan approvals or loan agreement etc.

If the above cannot be satisfied, for example, when finance has yet to be approved, or part of the funds have been provided via member contributions, all documents must be submitted to Revenue NSW for assessment via eDuties. Refer to Chapter 4 - Processing and lodgement requirements.

Minor amendments may include but are not limited to, the correction of typographical errors and minor changes to wording that does not affect the duties assessment outcome.

Amendments that change the parties to the transaction, or the dutiable property being purchased in the original declaration of trust must not be processed on EDR and are to be submitted to Revenue NSW for assessment via eDuties. Refer to Chapter 4 - Processing and lodgement requirements.

At the time of assessing the declaration of trust by custodian, the contract for sale must be either:

• endorsed with ad valorem duty, or
• endorsed by Revenue NSW pursuant to section 62A of the Duties Act 1997, or
• assessed in EDR, in preparation for electronic settlement.

Section 62B of the Duties Act was introduced in the State Revenue Legislation Further Amendment Act 2014 on 23 October 2014 and is specific to declarations of trust by custodian.

A declaration of trust by custodian entered into prior to this date may still be eligible for a concession under section 55 or section 62A(3A)* of the Duties Act 1997, if all other criteria is met. These must be submitted to Revenue NSW for assessment via eDuties. Refer to Chapter 4 - Processing and lodgement requirements.

*Repealed 23 October 2014

In some instances, where there is a custodian arrangement in place, the contract for sale of land may also include a declaration of trust. For example, where the purchaser is described below, there are three dutiable transactions.

Purchaser: Custodian A on behalf of SMSF Trustee A on behalf of the SMSF Superannuation fund.

1. Declaration of trust by custodian

If all the assessment criteria is met and the concession under section 62B of the Duties Act 1997 applies, the declaration will be liable to the fixed rate of $500 duty.

Duty of $750 will be charged on a declaration of trust by custodian entered into on or after 1 February 2024.

2. Declaration of trust in the contract for sale of land

If the declaration of trust by custodian meets the criteria for the concession under section 62B of the Duties Act 1997, the concessional duty of $50.00 under section 18(6A) of the Act may apply to the declaration of trust in the contract for sale of land.

Duty of $100 under section 18(6A) of the Act may apply for transactions entered into on or after 1 February 2024.

3. Contract for sale of land

Liable to transfer duty calculated on the dutiable value of the dutiable property.

For more information, refer to Revenue Ruling: Declaration of trust in an agreement for sale v2 (note 11).

All documents must be submitted to Revenue NSW for assessment via eDuties. Refer to Chapter 4 - Processing and lodgement requirements.

Occasionally, although there is a custodian deed/declaration of trust document in place, the self-managed superannuation fund trustee is the purchaser on the contract, not the custodian.

If this has occurred, and the transferee is the custodian, the documents will need to be submitted to Revenue NSW for assessment via eDuties or contact us to discuss your specific transaction.