A PRACTITIONER'S COMMENTARY ON A DECADE OF BUYER'S STAMP DUTY IN HONG KONG

A decade after the introduction of buyer's stamp duty (BSD) on purchases of residential property in Hong Kong, important questions on its application and, in particular, on the scope of the exemption for Hong Kong permanent resident individuals acting on their own behalf remain unanswered. No system-atic guidance on what, in the context of that exemption, acting otherwise than on one's own behalf means is available at this time. This is problematic from the perspectives of both the duty-payer and the practitioner, as it gives rise to considerable uncertainty, especially in cases where the purchase of residential property is funded by persons other than the purchaser. Whereas it is clear that a trustee of an express trust acquiring property to hold on trust does not do so on his own behalf, the Collector of Stamp Revenue (the Collector) appears to be of the opinion that the trustee of a trust implied by law, likewise, does not act on his own behalf and is therefore ineligible for the exemption. That inter-pretation is, however, in effect unworkable as the constitution of an implied trust is a matter for the courts - and not for the revenue - to ascertain, and a duty-payer, in applying for exemption from BSD, may only give evidence of his own state of mind.