Hong Kong Ordinances

STAMP DUTY ORDINANCE - SECT 29C

Chargeable agreements for sale

(Past version on 01/04/1999).
(Past version on 30/06/1997).

The various amendments made by L.N. 90 of 1999 and Ord. No. 44 of 1999 to this
section shall only apply to an agreement for sale, or an unwritten 
sale agreement, as defined in section 29A(1), if the relevant date within the
meaning of section 29B(3) is, in so far as such agreement for sale or
unwritten sale agreement (as the case may be) is concerned, on or after 1
April 1999.

(1) (Repealed L.N. 90 of 1999 and 44 of 1999 s. 19)

(2) An agreement for sale to which head 1(1A) in the First Schedule applies is
chargeable with stamp duty even if-

   (a)  it does not contain the matters specified in section 29B(5); or

   (b)  it has not been executed by all persons who are required by
        section 29B(1) to execute it, or both, but the Collector may refuse to
        stamp a chargeable agreement for  sale that does not contain those
        matters or has not been so executed.

(3) For the avoidance of doubt, it is hereby declared that if-

   (a)  a chargeable agreement for sale is made in respect of immovable
        property; and

   (b)  another chargeable agreement for sale is made in respect of all or any
        part of the property (whether by the vendor or purchaser under the
        first-mentioned agreement, or both) before a conveyance on sale of the
        property or that part of the property is made in pursuance of the
        first-mentioned agreement, then (subject to the notes to head 1(1A) in
        the First Schedule and to section 29F) each agreement is chargeable
        with stamp duty by reference to the consideration for the agreement.

(4) The principle in subsection (3) applies, with necessary modifications, if
there is a series of more than 2 chargeable agreements for sale in respect of
the same, or any part of the same, immovable property; for example-

   (a)  if a purchaser under a chargeable agreement for sale makes a
        chargeable agreement for a sub-sale, and the sub-purchaser makes a
        further chargeable agreement for a sub-sale; or

   (b)  if a chargeable agreement for sale is cancelled and replaced by a
        chargeable agreement for sale made by the vendor and a second
        purchaser, and that other agreement is cancelled and replaced by a
        chargeable  agreement for sale made by the vendor and a third
        purchaser, then (subject to the notes to head 1(1A) in the First
        Schedule and to section 29F) each agreement is chargeable with
        stamp duty by reference to the consideration for the agreement.

(5) If-

   (a)  a chargeable agreement for sale is made in respect of immovable
        property; and

   (b)  another chargeable agreement for sale is made in respect of all or any
        part of the property (whether by the vendor or purchaser under the
        first-mentioned agreement, or both) before a conveyance on sale of the
        property or that part of the property is made in pursuance of the
        first-mentioned agreement; and

   (c)  under the second-mentioned agreement-

        (i)    the purchasers are a person named in the first-mentioned
               agreement as a purchaser and another person who is not so
               named; or

        (ii)   the purchaser is one, or the purchasers are some, (but not all)
               of the persons named in the first-mentioned agreement as the
               purchasers, the second-mentioned agreement shall be chargeable
               with stamp duty as if it were a conveyance on sale executed in
               pursuance of the first-mentioned agreement for sale and
               section 29D(4) or (5) (as is appropriate) shall apply
               accordingly.

(5A) (a) Notwithstanding any other provisions of this Part, an
agreement for sale to which head 1(1A) in the First Schedule would, apart from
this subsection, apply shall, subject to paragraph (b), not be regarded as an
agreement for sale to which that head applies if the agreement is cancelled,
annulled or rescinded or is otherwise not performed.

   (b)  Where an agreement for sale described in paragraph (a) is cancelled,
        annulled or rescinded or is otherwise not performed by reason of the
        occurrence of a specified event described in subsection (11)(b)(ii) or
        (iii), the agreement shall, notwithstanding paragraph (a), continue to
        be regarded as an agreement for sale to which head 1(1A) in the First
        Schedule applies. (Added L.N. 90 of 1999 and 44 of 1999 s. 19)

(5B) (a) Subject to paragraph (b), if any monies have been paid under this
Ordinance, whether by way of stamp duty, additional stamp  duty or penalty, in
respect of an agreement for sale as an agreement for  sale to which head 1(1A)
in the First Schedule applies, but the agreement is under subsection (5A)(a)
not regarded as an agreement for sale to which that head applies, the
Collector shall refund the monies paid.

   (b)  In relation to an agreement for sale described in paragraph

   (a)  , no monies shall be refunded under paragraph (a) unless-

        (i)    an application has been made to the Collector- (A) where the
               agreement has been cancelled, annulled or rescinded, within 2
               years after the agreement has been cancelled, annulled or
               rescinded, as the case may be; or (B) where the agreement has
               otherwise not been performed, within 2 years after the date
               agreed under the agreement as the date of completion of the
               sale and purchase, or (in its absence) the date of conveyance,
               of the immovable property subject to the agreement (whether the
               date is determined by reference to the happening of an event or
               otherwise); and

        (ii)   such evidence, by statutory declaration or otherwise, in
               support of the application as the Collector may require has
               been produced to the Collector.

   (c)  Where any monies paid in respect of an agreement for sale are refunded
        under paragraph (a), the Collector may cancel- (Amended 21 of 2003 s.
        14)

   (a)  the stamp, if any, denoting payment of the monies on the agreement; or

   (b)  the stamp certificate, where applicable, denoting payment of the
        monies in respect of the agreement. (Added L.N. 90 of 1999 and 44 of
        1999 s. 19. Amended 21 of 2003 s. 14)

(6) (Repealed L.N. 90 of 1999 and 44 of 1999 s. 19)

(7) Where a chargeable agreement for sale consists of 2 or more instruments,
the principal instrument only shall be chargeable with stamp  duty and the
other instruments shall not be chargeable with stamp duty.

(8) For the purposes of this Ordinance, the consideration for an
agreement for sale shall be deemed to be the aggregate of the amounts and
values referred to in section 29B(5)(i) and (j).

(9) For the purpose of ascertaining the manner in which a
chargeable agreement for sale is chargeable with stamp duty, sections 22, 23
and 24 shall operate as if any reference in those sections-

   (a)  to a conveyance on sale were a reference to a chargeable 
        agreement for sale;

   (b)  to a transferee were a reference to the purchaser under a
        chargeable agreement for sale;

   (c)  to the property conveyed were a reference to the immovable property
        subject to a chargeable agreement for sale.

(10) Where under a chargeable agreement for sale-

   (a)  the exchange of any immovable property for any other immovable
        property; or

   (b)  the partition of an immovable property, is agreed to, and any
        consideration is paid or given, or agreed to be paid or given, for
        equality, the agreement for sale shall, subject to section  29F , be
        charged with the same stamp duty as a chargeable agreement for  sale
        for the consideration, and with that stamp duty only.

(11) (a) Subject to subsection (12), the time for stamping a
chargeable agreement for sale which, if implemented, would be implemented by a
conveyance on sale shall be-

        (i)    subject to subparagraphs (ii) and (iii), not later than 3 years
               after the relevant date within the meaning of section 29B(3);

        (ii)   subject to subparagraph (iii), where, within 3 years after such
               relevant date, a conveyance on sale is made in conformity with
               or in pursuance of the agreement, not later than 30 days after
               the conveyance on  sale is made, or 3 years after such relevant
               date, whichever is of the earlier date;

        (iii)  where, before a conveyance on sale is made in conformity with
               or in pursuance of the agreement but within 3 years after such
               relevant date, there is occurrence of a specified event
               described in paragraph

   (b)  (i), (ii) or (iii), not later than 7 days after the occurrence of the
        specified event, or 3 years after such relevant date, whichever is of
        the earlier date.

        (b)	In relation to an agreement for sale ("first agreement") made 
in respect of immovable property, there is occurrence of a specified event
where-

        (i)    another agreement for sale is made for a sub-sale of the
               property or any part of the property by the purchaser under the
               first  agreement;

        (ii)   another agreement for sale is made by the purchaser under the
               first agreement in which the purchaser makes a nomination or
               gives a direction that- (A) transfers, or gives a power to
               transfer, any benefit of the purchaser in respect of the
               property or any part of the property under the first agreement;
               or (B) authorizes another person to take a conveyance of the
               property or any part of the property or to execute such a
               conveyance in favour of a third party, other than a nomination
               made, or a direction given, in favour of a person who is to be
               a trustee for the purchaser in respect of the property or the
               part of the property, as the case may be, or in favour of a
               person who is a parent, spouse or child of the purchaser,
               whether or not also in favour of the purchaser; or

        (iii)  another agreement for sale is made for the sale of the property
               or any part of the property- (A) between the vendor under the
               first agreement and a party introduced, directly or indirectly,
               to the vendor by the purchaser under the first agreement; or
               (B) under the direction of or upon the request of the
               purchaser. (Added L.N. 90 of 1999 and 44 of 1999 s. 19)

*(12) Subsection (11) shall not apply to a chargeable agreement for  sale made
in respect of immovable property unless-

   (a)  an application in a form specified by the Collector has been made to
        the Collector by a person liable for stamping the agreement within 30
        days after the date on which the agreement was made; and

   (b)  it is proved to the satisfaction of the Collector that-

        (i)    the vendor under the agreement is registered in the Land
               Registry as the owner of the property; or

        (ii)   (A) all the instruments through which the vendor acquired, from
               the person who is registered in the Land Registry as the owner
               of the property, his right or interest in or title to the
               property are, in so far as they are chargeable with stamp duty,
               duly stamped; or (B) where it is not proved to the satisfaction
               of the Collector that all the instruments referred to in
               sub-subparagraph (A) are duly  stamped within the meaning of
               that sub-subparagraph, security to the satisfaction of the
               Collector has been given for the payment of the stamp  duty
               chargeable on the instruments in so far as they are not so
               duly  stamped. (Added L.N. 90 of 1999 and 44 of 1999 s. 19)
               (*See Note 2 for the text of this subsection added by L.N. 90
               of 1999, which expired and ceased to be in force upon 44 of
               1999 becoming law.)

*(13) On an application made to the Collector under subsection

(12)(a) in respect of a chargeable agreement for sale which, if implemented,
would be implemented by a conveyance on sale-

   (a)  where the requirement set out in subsection (12)(b) is satisfied, the
        Collector shall endorse the agreement, or issue a stamp  certificate
        in respect of the agreement, to the effect that subsection

(11) applies to the agreement in such manner as he may think fit; (Amended 21
of 2003 s. 14)

   (b)  where the requirement set out in subsection (12)(b) is not satisfied,
        the Collector shall issue a notice in writing of the decision, and the
        reasons for the decision, to the person making the application. (Added
        L.N. 90 of 1999 and 44 of 1999 s. 19) (*See Note 2 for the text of
        this subsection added by L.N. 90 of 1999, which expired and ceased to
        be in force upon 44 of 1999 becoming law.)

*(14)-(15) (*See Note 2 for the text of these two subsections added by L.N. 90
of 1999, which expired and ceased to be in force upon 44 of 1999 becoming
law.) (Part IIIA added 8 of 1992 s. 4)
___________________________________________________________________________
___ Notes: 1. The Revenue Ordinance 1999 (44 of 1999) contains the following
transitional provision:

"44. Transitional

(1) Subject to subsection (2), nothing in this Ordinance affects-

   (a)  the operation of the specified section of the Order at any time before
        the day on which this Ordinance is published in the Gazette#;

   (b)  anything duly done or suffered under or pursuant to any of the
        provisions of the specified section of the Order at any time before
        the day on which this Ordinance is published in the Gazette#.

(2) (a) Where a body corporate has given a banker's undertaking by way of
security for the payment of the stamp duty chargeable on an agreement pursuant
to any of the provisions of the  specified section of the Order at any time
before the day on which this Ordinance is published in the Gazette#, the body
corporate may, notwithstanding the provisions of the undertaking, by written
notice to the Collector demand that the undertaking be returned to it.

   (b)  Where a body corporate makes a demand in respect of a banker's
        undertaking under paragraph (a), upon receipt by the Collector of the
        notice of the demand-

        (i)    the undertaking shall be deemed to be discharged; and

        (ii)   the Collector shall forthwith return the undertaking to the
               body corporate.

(3) In this section, a reference to the specified section of the  Order means
section 29C(12), (13), (14) and (15) proposed to be added to the
Stamp Duty Ordinance ( Cap 117) by virtue of the operation of clause 18(d) of
the Bill set out in the Schedule to the Public Revenue Protection (Revenue)
Order 1999 (L.N. 90 of 1999) pursuant to section 2 of that Order.".

(#Date of publication in the Gazette: 16 July 1999)

2. The following is the text of section 29C(12), (13), (14) and

(15) added by L.N. 90 of 1999 (i.e. "the specified section of the Order"
referred to in the transitional provision at Note 1).

"(12) Subsection (11) shall not apply to a chargeable agreement for sale made
in respect of immovable property unless-

   (a)  an application in a form specified by the Collector has been made to
        the Collector by a person liable for stamping the agreement within 30
        days after the date on which the agreement was made;

   (b)  it is proved to the satisfaction of the Collector that-

        (i)    the vendor under the agreement is registered in the Land
               Registry as the owner of the property; or

        (ii)   (A) all the instruments through which the vendor acquired, from
               the person who is registered in the Land Registry as the owner
               of the property, his right or interest in or title to the
               property are, in so far as they are chargeable with stamp duty,
               duly stamped; or (B) where it is not proved to the satisfaction
               of the Collector that all the instruments referred to in
               sub-subparagraph (A) are duly  stamped within the meaning of
               that sub-subparagraph, security to the satisfaction of the
               Collector has been given for the payment of the stamp  duty
               chargeable on the instruments in so far as they are not so
               duly  stamped; and

   (c)  where a body corporate is liable for stamping the agreement as a
        purchaser under the agreement, a banker's undertaking described in
        subsection (14) has been given by way of security for the payment of
        the stamp duty chargeable on the agreement.

(13) On an application made to the Collector under subsection

(12)(a) in respect of a chargeable agreement for sale which, if implemented,
would be implemented by a conveyance on sale-

   (a)  where the requirements set out in subsection (12)(b) and (c) are, in
        so far as they are applicable, satisfied, the Collector shall endorse
        the agreement to the effect that subsection (11) applies to the
        agreement in such manner as he may think fit;

   (b)  where any of the requirements set out in subsection (12)(b) and

   (c)  are, in so far as they are applicable, not satisfied, the Collector
        shall issue a notice in writing of the decision to the person making
        the application.

(14) For the purposes of subsection (12)(c), a banker's undertaking given in
relation to a chargeable agreement for sale shall-

   (a)  be in a form acceptable to the Collector;

   (b)  be provided by a bank as defined in the Banking Ordinance ( Cap  155);

   (c)  not be revocable without the consent of the Collector;

   (d)  be expressed to be an undertaking to pay an amount equivalent to the
        stamp duty chargeable on the agreement; and

   (e)  provide that the amount referred to in paragraph (d), or such lesser
        amount as demanded by the Collector, shall be paid to the Collector
        upon written notification to the bank by the Collector that the
        agreement has become due for stamping.

(15) Notwithstanding subsections (11) to (14), where at any time before the
time for stamping specified in relation to a chargeable  agreement for sale in
subsection (11)(a) has expired-

   (a)  a banker's undertaking described in subsection (14) has been given in
        relation to the agreement; and

   (b)  no further banker's undertaking described in subsection (14) is given
        in relation to the agreement by way of security for the payment of the
        stamp duty chargeable on the agreement, one month before the banker's
        undertaking referred to in paragraph (a) expires or ceases to have
        effect under the terms of that undertaking, the agreement shall, on
        demand of the Collector, immediately become due for stamping.".