Hong Kong Tax Controversy Insight 2021 Issue No. 2 – Distribution of property under an estate in excess of the beneficiaries’ entitlements does not necessarily attract stamp duty

In a recent Court of Appeal (the CoA) decision, the deceased person died intestate leaving behind five surviving children who were entitled to the deceased’s property including an immovable property, in equal shares under the law of intestacy. The five surviving children entered into a deed of family arrangement under which three of them agreed to renounce their rights and interests in the immovable property to the remaining two beneficiaries. The CoA held that the deed of assent effecting the aforesaid agreement is not chargeable with stamp duty. 

The CoA decision represents a significant departure of the Stamp Office’s long-established practice that deems an assent to be a conveyance operating as a voluntary disposition inter vivos if it has the effect of conferring on a beneficiary more than the beneficiary’s entitlement under a will or the law of intestacy, and assesses stamp duty on the excess entitlement.

While the CoA decision was not further appealed, whether the distribution of property from the deceased’s estate by way of an assent to the beneficiaries would attract stamp duty can be a complicated issue under certain circumstances. Clients who would like to understand the implications of the CoA decision or explore whether they could apply for a refund of stamp duty paid in prior years should seek professional tax advice where necessary.