Stamp duty update – duty relief for Queensland small business restructures
The Queensland Office of State Revenue has released a new public ruling (Ruling) and sets out the requirements for a small business restructure duty exemption, which was briefly announced by the Queensland Treasurer Cameron Dick on 7 September 2020.
At this stage the exemption is an administrative arrangement and is not legislated under the Queensland Duties Act. It is unknown whether it is intended that the arrangement will exist indefinitely or whether it will be removed once the uncertainty and economic unease around COVID-19 subsides.
In the circumstances, we recommend business owners who are individuals, partnerships or a discretionary trust and have been looking to undertake a restructure into a company for succession planning, asset protection or for as part of a business strategy, take advantage of the exemption. As an example, if the exemption applied to the maximum exempt dutiable value of no more than $10 million, the duty saving could be up to $555,525.
Transfer duty in Queensland is currently calculated on a sliding scale of up to 5.75% where there is a dutiable transaction of Queensland dutiable property. The most common transaction being a transfer or an agreement to transfer dutiable property.
The most well-known example of dutiable property in Queensland is land or interests in land (i.e. leases). However, in Queensland other items of property, on which duty has gradually been abolished in some other jurisdictions, is still dutiable including: goodwill, intellectual property, debtors of a Queensland business, work in progress, business names and licences, supply rights and general business assets.
Under the Ruling, a small business entity, which is an individual, partnership or discretionary trust, will be able to transfer business assets (which are actively used to carry on the entity’s business) to a newly registered unlisted company or an unlisted company which has been dormant since incorporation.
To qualify for the exemption:
A small business entity means:
The amount of the duty not imposed is calculated on the lesser of the relevant interest in the small business entity immediately before the transfer and the relevant interest or interests in the company immediately after the transfer.
In relation to discretionary trusts it appears the share interest in the company after the transfer must be held by each of the default beneficiaries (if any) and not the discretionary trust itself. If this is the case, the exemption may have reduced application to owners who are discretionary trusts.
A business owner can use the exemption to transfer its business to a new company for the purpose of making a business more attractive to potential investors or purchasers. Importantly, in contrast to the corporate reconstruction exemption provisions, there are no pre or post-association tests which affect the availability of the administrative exemption. This means that in the event the company was sold at a later date, there would be no potential clawback of any duty which would have been payable on the transfer of the business.
Transfer duty has long been an impediment for Queensland small businesses wishing to restructure into a limited liability company. Although capital gains tax rollovers and the GST going concern exemption were available in particular circumstances, no equivalent duty exemption has been available in Queensland (or any other jurisdiction) to undertake a restructure where the business assets were being acquired by a company from an individual, partnership or trust.
The effectiveness of the use of income tax rollovers in conjunction with the duty relief should be considered carefully. Depending on the circumstances, if a CGT rollover is being considered, it may be necessary to consider the availability of the CGT general discount of 50% on the disposal of a share interest and relevant measures to satisfy the continuous holding of the share interest for 12 months. For example, the small business restructure rollover relief and the re-setting of the clock.
The introduction of this exemption, in certain cases, removes the financial restrictions, which have previously existed for small business owners stuck in outdated structures where the duty cost was too high to justify the transfer to a modern company structure.
If you are considering whether the exemption will apply to your circumstances, HopgoodGanim Lawyers are well placed to assist with providing advice in all stages of the restructure. This extends to initial planning and structuring, implementation and attending to lodgement with the Office of State Revenue to claim the exemption.
Our Taxation team are specialists in Australian tax and stamp duty in all Australian states and territories and work exclusively in this space, every day.
All members of our Taxation team have dual qualifications in law and accounting and are experts at assisting small businesses looking to restructure and are well placed to advise on any potential duty consequences and how these can be addressed in a commercial and practical manner.
If you would like further information or to discuss your own circumstances, please contact a member of our Taxation team.