The Comptroller-General of Customs and Public Trustee desires advice as to the liability to the payment of State stamp duty of the transfers of shares recently sold in New South Wales by the Public Trustee.

I understand the sales in question were made in pursuance of the War Precautions (Enemy Shareholders) Regulations, the shares having in accordance with those Regulations previously been transferred to and vested in the Public Trustee and a direction for sale by the Public Trustee having been given subsequently.

The Stamp Duties Act of the State of New South Wales, Act No. 27 of 1898, imposes stamp duty on the conveyance or transfer on sale of any share or shares in the stock and funds in any corporation, company or society whatever in New South Wales at the rate set out in the Act, and stamp duty at a different rate on the conveyance or transfer on sale of any other property.

Although there is no authority precisely in point, I am of opinion that the decisions of the High Court in D'Emden v. Pedder 1 C.L.R. 91 and Commonwealth v. State of New South Wales 3 C.L.R. 807 are applicable to the transaction in question in this case, and that stamp duty is, therefore, not payable on the transfers.

I may add that the question of the liability to stamp duty of a transfer of land from the Commonwealth to a private individual at the present time forms the subject of litigation pending between the Commonwealth and the State of New South Wales.⁽¹⁾

The question upon which advice is asked appears to be primarily one between the purchaser and the State Stamp Commissioner. I agree with the Crown Solicitor that it is not advisable to write to the Stamp Commissioner as suggested; but I think that as regards future sales the Public Trustee should notify purchasers that he is advised that State stamp duty is not payable on these transfers, and that the Commonwealth acknowledges no responsibility, under any custom or usage or otherwise, to pay or contribute to the payment of any such duty.

[Vol. 15, p. 346]

(1)Commonwealth v.State of New South Wales 25 C.L.R 325.