Practice on Registration of Instruments Chargeable with Stamp Duty
Purpose
This circular provides information on Land Registry's practice with respect to registration of instruments chargeable with stamp duty that have not been stamped or adjudicated before they are delivered for registration.
Instruments Liable to Stamp Duty under the Stamp Duty Ordinance (Cap. 117)
2. According to the Stamp Duty Ordinance (Cap. 117), certain types of instruments in relation to property transactions are chargeable with stamp duty. The main types are:
- Conveyance on sale (i.e. Assignment)
- Agreement for sale of residential property
- Lease of immovable property (i.e. Tenancy Agreement)
3. Generally speaking, if an instrument is a conveyance on sale, a lease of immovable property in Hong Kong, or an agreement for sale of a residential property in Hong Kong, it is chargeable with stamp duty under Section 4 and Head 1(1), 1(1A) and 1(2) to the First Schedule of the Stamp Duty Ordinance (Cap. 117).
(Note: Since the enactment of Stamp Duty (Amendment) (No. 2) Ordinance 2014, agreements for sale of non-residential properties are also chargeable with stamp duty.)
Withholding Unstamped Instrument from Registration
4. As laid down in Land Office Circular Memorandum No. 108, since the enactment of the Stamp Duty (Amendment) Ordinance 1992 the Land Registry will not accept an unstamped instrument for registration. Where an instrument chargeable with stamp duty is not stamped before it is delivered for registration, such instrument will be withheld from registration and returned to the lodging party for clarification on stamp duty payment.
Referring Doubtful Cases to Stamp Office for Advice
5. Whenever there is any dispute or doubt as to whether the instrument is liable to stamp duty, the Land Registry will refer the instrument, together with any explanation letter from the lodging party, to the Stamp Office (which is the authority to administer and enforce the provisions of the Stamp Duty Ordinance) requesting the Collector of Stamp Revenue to express his opinion on whether the executed instrument is chargeable with stamp duty.
6. In case the Collector of Stamp Revenue advises that the instrument may be liable to stamp duty, the Land Registry will return the instrument to the lodging party with the explanation and request that the instrument is stamped or adjudicated before registration. The lodging party should then withdraw the instrument from registration. The memorial number will be cancelled. The original stamped instrument will then be delivered under a new memorial number to the Land Registry for registration. Priority will relate to the date of the stamped instrument or to the date of its delivery for registration under the provisions of the Land Registration Ordinance.
Delivery of Duly Stamped/Adjudicated Instruments for Registration
7. With a view to reducing the number of instruments that have to be withheld from registration due to non-payment of stamp duty and to avoid unnecessary delay in the registration process, you are reminded to ensure that instruments chargeable with stamp duty are duly stamped or adjudicated, or stamped with an indication that the instrument is pending adjudication, before they are delivered for registration. In case of doubt, you may submit the original instrument together with any relevant supporting documents to the Stamp Office for adjudication at a fee before it is delivered to the Land Registry for registration. For details of the stamping and adjudication of property transfer instrument services provided by the Stamp Office, please visit the Inland Revenue Department website (www.ird.gov.hk).
Enquiries
8. For any enquiries on this circular, please contact our Customer Service Manager at 3105 0000 or e-mail us at csa@landreg.gov.hk.
(Kim Salkeld)
Land Registrar