Australia Law
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Answered in 14 minutes by:
5/17/2012
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5,422
Experience: Dip Law LPAB - Sydney based lawyer
VerifiedYou won't pay gift duty, as there are no gift duties in Australia.
However, you, will presumably be liable for stamp duty as if you were purchasing a half share in the house. There are variables which may attach to such stamp duty charges so you will need to talk to the Queensland Office of State revenue or a tax adviser to work out the exact liability.
http://www.osr.qld.gov.au/duties/about-duties/rates-of-duty.shtml
Although if the will is contested a court will not generally unravel past gifts of this sort, the court may take such gifts into account in any challenge to the will with respect to other assets so if the intention is for the remainder of the property to pass to you in the will, then the court may treat this gift as adequate or substantial provision for you, and this will strengthen your brother's claims in relation to the rest of your father's estate.
I would strongly suggest your father seek the advice of a probate lawyer as, depending on your circumstances, it may be that you are better off achieving the desired end through a well drafted will, and although costly, such is likely to be less than the stamp duty which you would otherwise incur on a direct gift of a share in the house (which may be saved if you receive your entitlement only under a will as bequests under a will are generally not subject to stamp duty).
I trust the above assists.
There are no gift taxes in Australia to my knowledge which would tend to be confirmed by government publications such as:
http://comparativetaxation.treasury.gov.au/content/report/html/11_Chapter_9-07.asp
Also, I can find nothing referring to gift duties in my searches of legislation, the Queensland Office of State Revenue website, or the ATO website, but to put your mind at ease, I suggest you contact the Financial Adviser and ask them to clarify the source of their claim that their are gift duties on gifts over $10,000. I expect they are they are simply mistaken. If they come back with a reference to legislation I will be happy to comment further. If the person you spoke to was foreign they may be thinking of laws in their country of origin (gift duties are levied in most countries but were the subject of significant political dramas in Australia back in the 70s with the result that all states abolished such along with death duties).
You might also seek confirmation from the OSR as their staff will be far more knowledgeable about such things than Centrelink staff.
I trust the above assists your understanding.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5,422
Experience: Dip Law LPAB - Sydney based lawyer
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