THE PRICE OF LOVE AND AFFECTION – STAMP DUTY ON INTER VIVOS GIFTS
Posted on 7th September 2023
A gift “inter vivos” in Latin means a gift between the living which refers to a transfer or gift made during the transferor’s lifetime to a transferee. These gifts typically relate to property or an estate and made on grounds of love and affection for an indequate consideration.
Under the Contracts Act 1950, an agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate.[1] Section 26 of the Contracts Act 1950 provides that:
“An agreement made without consideration is void, unless it is expressed in writing and registered under the law (if any) for the time being in force for the registration of such documents, and is made on account of natural love and affection between parties standing in a near relation to each other…”
In essence, love and affection are recognized as sufficient consideration between the parties under contract law. However, taxation law is not as empathetic.
Section 16(1) of the Stamp Act 1949 provides that any conveyance or transfer operating as a voluntary disposition inter vivos is liable to stamp duty as a conveyance on sale. It follows that a voluntary disposition inter vivos falls under item 32(a) of the First Schedule of the Stamp Act 1949 and subject to stamp duty on value of the consideration (i.e. purchase price of property) or the market value of the property, whichever is greater. Therefore, even a property is transferred for RM1 or as a gift, stamp duty remains chargeable.
Some exemptions to the Stamp Act 1949 have however, been permitted pursuant to the Stamp Duty (Exemption) (No. 3) Order 2023 [P.U.(A) 178][2] which was gazetted on 9 June 2023 and deemed to have come into operation on 1 April 2023, all instruments of transfer of property as voluntary disposition inter vivos from donor to the recipient specified in Table A in respect of:
- the first RM1,000,000 or less of the market value of the property are exempted from stamp duty; and
- any amount exceeding RM1,000,000 of the market value of the property will be chargeable with 50% of the stamp duty under item 32(a) of the First Schedule to the Stamp Act 1949.
Transfers that are eligible for stamp duty exemption: –
| Table A | |
| Donor | Recipient |
| Mother and/or father | Child |
| Child | Mother and/or father |
| Grandfather and/or grandmother | Grandchild |
| Grandchild | Grandfather and/or grandmother |
It should be noted that the exemption will only apply if: –
(a) The instrument of transfer is executed on or after 1 April 2023; and
(b) The recipient is a Malaysian citizen.
It should also be noted that the Stamp Duty (Exemption) (No. 10) Order 2007 (P.U. (A) 420)[3] still remains in force which provides for full exemption of stamp duty chargeable on any inter vivos instrument of transfer of immovable property between husband and wife.
[1] Contracts Act 1950, S26, Explanation 2, Example (g); Phang Swee Kim v Beh I Hock [1964] 1 MLJ 383.
[2] Stamp Duty (Exemption) (No. 3) Order 2023, available at: https://lom.agc.gov.my/ilims/upload/portal/akta/outputp/1824686/PUA%20178.pdf
[3] Stamp Duty (Exemption) (No. 10) Order 2007 (P.U. (A) 420), available at: https://phl.hasil.gov.my/pdf/pdfam/PUA_420_2007_BM.pdf