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18 February 2010

Question 1
If I read the provisions correctly, the exemption only applies (amongst other requirements) if the member or shareholder of the legal entity is the only member or shareholder, unless the other member or shareholder is their spouse. Then the transfer will take place to both of them in their individual capacity (or the joint estate if married in community of property).

However, this provision will not apply where the Partners are not spouses - as in the case of a same sex partnership, where the parties have not become married. In such a case, it will be considered some sort of partnership and they will not be able to avail themselves of the exemption, unless they marry.

Is my interpretation correct?

Answer
The definition of spouse in the Transfer Duty Act, 1949, includes:
"in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be permanent"

Therefore, they will qualify for the amnesty.




Question 2
Clarifying the position in a trust. Who creates the necessary trigger in a trust for this exemption to apply - the beneficiaries, or the trustees, or the donor? In other words, who must be the person claiming primary residence?

Answer
It depends on who:
  • financed all the expenditure; and
  • the person who made the donation, settlement or disposition; and
  • the person who ordinarily resided in that residence and used it mainly for domestic purposes.

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