30 August 2018
On 6 August 2018, the Stamp Duties (Amendment) Bill (“Bill”) was introduced for first reading in Parliament. This Bill seeks to amend the Stamp Duties Act (“Act”) principally to apply the Act to an electronic record that wholly or partly effects a transaction or evidences a matter, that is the same as a transaction or matter effected or evidenced by an instrument chargeable with duty.
A new Part VIIIA on “Application of Act to Electronic Instruments” will be introduced. Among other things, Part VIIIA provides for the circumstances in which, and the place and time at which, an electronic instrument is treated as executed or signed for the purposes of the Act. The Bill provides for examples illustrating the application of the new provisions.
Part VIIIA will only apply to electronic instruments that are executed on or after the commencement date of Part VIIIA.
Electronic instruments treated as instruments
A reference in the Act to an instrument or a description of instrument that effects a transaction includes:
- an electronic record that effects the transaction;
- an electronic record and a physical document that together effect the transaction; and
- an electronic record that is used to conclude the transaction, if the transaction is effected by means of a verbal communication and an electronic record.
A reference in the Act to an instrument or a description of instrument that is evidence of a matter includes, in a case where there is no physical document evidencing the matter, any electronic record that evidences the matter.
The terms “electronic” and “electronic record” have the meanings given by section 2(1) of the Electronic Transactions Act. For example, anything sent by e-mail, SMS or any Internet-based messaging service is an electronic record.
Execution of electronic instruments
The Bill provides for the execution of electronic instruments as follows:
- An electronic instrument that is an electronic record is treated as executed or signed when an electronic signature is applied to it.
- An electronic instrument that comprises an electronic record and a physical document is treated as executed or signed:
- if the transaction is concluded by means of an electronic record, when an electronic signature is applied to the electronic record; or
- if the transaction is concluded by means of a physical document, when the physical document is signed.
An “electronic signature” refers to any electronic method used to identify a person and to indicate the person’s intention in respect of the information contained in an electronic record.
Time and place of signature
Where a transaction is concluded by means of an electronic record, the time when and the place where the signing party does an act that results in the application of the electronic signature to the electronic record are treated respectively as the time and place of the execution or signing of the electronic instrument. For instance, A sends an e-mail from a place in Malaysia offering to sell property to B. B sends an e-mail from a place in Singapore accepting A’s offer. If a contract is concluded by means of the second e-mail, the electronic instrument comprising the two e-mails is treated as executed in Singapore, and at the time B sends the second e-mail.
Where an electronic instrument that comprises an electronic record and a physical document is concluded by means of a physical document, the time when and the place where the signing party signs the physical document are treated respectively as the time and place of the execution or signing of the electronic instrument.
Receipt in Singapore of electronic instrument executed outside Singapore
An electronic instrument that is executed outside Singapore is received in Singapore if:
- it is retrieved or accessed by a person in Singapore;
- an electronic copy of it is stored on a device (including a computer) and brought into Singapore; or
- an electronic copy of it is stored on a computer in Singapore.
For example, A and B effect outside Singapore a transaction by means of electronic records. The electronic records are saved on a server in a country outside Singapore. B downloads a copy of the electronic record in Singapore. The electronic instrument comprising those electronic records, having been retrieved by a person in Singapore, is received in Singapore.