Opinion Number. 205

Subject

ACQUISITION OF LAND WHETHER COMMONWEALTH SUBJECT TO STATE STAMP DUTY AND REGISTRATION FEE ON TRANSFER

Date
Client
The Secretary, Department of Home Affairs

The Secretary, Department of Home Affairs, states that the practice in his Department has been to pay to the State of New South Wales the stamp duty and registration fee in the matters of transfers of land, and that the Treasury has informed him that, under the decision of the High Court in D'Emden v. Pedder(1), this amount is not payable by the Commonwealth.

He asks for advice as to whether the decision of the High Court applies to these payments, which have been regarded by his Department as being made for a particular service rendered by the State. In my opinion the stamp duty-being a tax on the transfer-comes within the principle established by D'Emden v. Pedder, and is not payable by the Commonwealth. On the other hand, the registration fee is purely a charge for services rendered, and must be paid by the Commonwealth when it requires registration of a transfer.

[Vol. 4, p. 442]

(1) C.L.R.91.