Duties Act 1997 No 123
Historical version for 26 June 2009 to 30 June 2009 (accessed 26 November 2014 at 20:59) Current version
Chapter 12

Chapter 12 Miscellaneous

Part 1 Stamping instruments

285   Provision of stamps

The Chief Commissioner may provide stamps or such other equipment as may be required for:
(a)  stamping instruments, or
(b)  otherwise denoting the payment of duty,
in accordance with the provisions of this Act.

286   Limitation on use of designated stamps

(1)  A stamp that by its terms is limited to an instrument of a specified kind must not be used for an instrument of a different kind.

Maximum penalty: 100 penalty units.

(2)  An instrument of a specified kind for which a particular stamp is specified is taken not to be duly stamped unless it is stamped with the stamp so specified.

287   Form of stamps to be used

(1)  An instrument that is required to be stamped by this Act is to be stamped by means of an impressed stamp.
(2)  However, another form of stamping may be used if its use is authorised by this Act or the Chief Commissioner.
(3)  Without limiting subsection (2), the Chief Commissioner may approve arrangements for the stamping of an instrument by means of the endorsement on the instrument of a number, or other information, issued by the Chief Commissioner in respect of the instrument (as referred to in section 289A).

288   Stamping of instruments

The Chief Commissioner must stamp an instrument in respect of which duty is chargeable under this Act, or that effects or evidences a dutiable transaction, and that has been lodged for stamping with the Chief Commissioner if the duty, and any interest or penalty tax under Part 5 of the Taxation Administration Act 1996, is paid in full.

288A   Reassessment following interim payment of duty

(1)  If an instrument that is chargeable with duty or that effects or evidences a dutiable transaction is marked “interim stamp only” in accordance with this Act, the Chief Commissioner must, when the relevant value of the instrument has been ascertained, reassess the duty payable in respect of the instrument.
(2)  If no further duty is payable, the interim stamp is to be cancelled and any amount paid in excess of the amount assessed is to be refunded.
(3)  If further duty is payable, liability for the further duty arises when the notice of assessment issues, despite any other provision of this Act.
(4)  On payment of the balance of the duty (and any interest or penalty tax), the instrument is to be stamped with the amount of the balance and marked to indicate that duty has been duly paid.
(5)  For the purposes of this section, the relevant value of an instrument means:
(a)  in the case of a lease instrument marked “interim stamp only” under Chapter 5, the full cost of the lease, and
(b)  in any other case, the full dutiable value of the dutiable transaction effected or evidenced by the instrument.

289   When is an instrument duly stamped?

An instrument is duly stamped if it is stamped in accordance with this Act.

289A   Stamping by means of endorsement

(1)  An instrument is duly stamped if it is endorsed in accordance with an arrangement, approved by the Chief Commissioner under Division 2 of Part 6 of the Taxation Administration Act 1996, under which:
(a)  information concerning an instrument (rather than the instrument itself) is lodged with the Chief Commissioner, and
(b)  the information is used by the Chief Commissioner to assess the duty payable on the instrument, and
(c)  a number, or other information, is issued by the Chief Commissioner, in respect of the instrument, for endorsement on the instrument.
(2)  Section 297 applies in respect of an instrument endorsed in accordance with an arrangement referred to in this section as if the instrument had been stamped by the Chief Commissioner, and section 42 (3) of the Taxation Administration Act 1996 does not apply.
(3)  However, the endorsement of an instrument in accordance with an arrangement referred to in this section does not affect any liability for payment of the duty in relation to the instrument under this Act.
(4)  A notice of assessment or statement of confirmation issued by the Chief Commissioner in relation to the assessment of an instrument as referred to in this section may include any of the information provided to the Chief Commissioner on which the assessment of the instrument was based.

290–292   (Repealed)

293   Reassessments—failed instruments

(1)  An instrument that fails in its intended operation and becomes useless is not chargeable with duty under this Act.
(2)  The Chief Commissioner must make a reassessment of duty in respect of such an instrument if an application for a reassessment is made within:
(a)  5 years after the initial assessment, or
(b)  12 months after the instrument has failed,
whichever is the later.
(3)  The instrument in respect of which the application is made must be produced to the Chief Commissioner unless the Chief Commissioner dispenses with its production.
(4)  This section does not apply in respect of an instrument that effects a transfer of dutiable property.
Note. See Part 5 of Chapter 2 for refunds of duty under Chapter 2 on failed instruments.

294   Instruments to be separately charged with duty in certain cases

An instrument that contains or relates to several distinct matters for which different duties are chargeable under this Act is to be separately and distinctly charged with duty in respect of each such matter, as if each matter were expressed in a separate instrument.

295   Execution of instruments

(1)  For the purposes of this Act, an instrument is taken to be first executed the first time that it is signed and sealed, or signed (as the case may be) by any party to it.
(2)  However, a contract made by acceptance of an offer contained in an instrument is taken to be first executed when the offer is accepted.
(3)  If an instrument is ineffective by reason of a failure of the necessary parties to execute it, a refund may be made of any money paid for stamping.

296   Stamping of instruments after execution

(1)  Except where otherwise expressly provided by this or another Act, a person liable with respect to any instrument chargeable with duty or any dutiable transaction must cause the instrument, or an instrument that effects or evidences the transaction, to be duly stamped or, in accordance with the provisions of this Act marked “interim stamp only” within 6 months after it was first executed.

Maximum penalty: 100 penalty units.

(2)  For the purposes of this section, a written statement that is required to be stamped is taken to be first executed when the transaction to which the statement relates occurs.

297   Stamping taken to constitute assessment

(1)  For the purposes of the Taxation Administration Act 1996, the stamping of an instrument by the Chief Commissioner is taken to constitute an assessment of the duty payable under this Act in respect of the instrument or the dutiable transaction effected or evidenced by that instrument.
(2)  If the Chief Commissioner does not issue a notice of assessment at the time that the instrument is stamped, the stamped instrument is taken, for the purposes of the Taxation Administration Act 1996, to be a notice of assessment.
Note. The Taxation Administration Act 1996 provides that an objection to an assessment must be lodged within 60 days of service of the notice of assessment (unless late lodgment is permitted by the Chief Commissioner).

298   Deferred payments for certain stamped instruments

(1)  The Minister may:
(a)  in circumstances in which (in the course of an industrial dispute involving persons engaged in the administration of this Act) an instrument liable to duty is not stamped by reason of the refusal of those persons to exercise functions relating to the administration of this Act or of any other law, and
(b)  in such other circumstances as the regulations may prescribe,
authorise the stamping of instruments on which duty is payable, even though the duty has not yet been paid, if an undertaking, in an approved form, has been given by a prescribed person, or a person belonging to a prescribed class of persons, as to the payment of duty in respect of the instrument.
(2)  The Minister’s authorisation must provide for the manner in which, and the time within which, unpaid duty is to be paid in respect of instruments stamped under the authorisation.
(3)  An instrument that has been stamped under the Minister’s authorisation is, except for the purposes of the recovery of any unpaid duty (including any interest or penalty with which the instrument is charged under the Taxation Administration Act 1996) in respect of the instrument, taken to be duly stamped.
(4)  If the duty payable in respect of an instrument that has been stamped under the Minister’s authorisation is not paid in accordance with the terms of the authorisation, the Taxation Administration Act 1996 applies to the payment of that duty in the same manner as if the instrument had not been so stamped.
(5)  For the purposes of subsection (1), the following persons are prescribed persons:
(a)  a person who is liable to pay duty in respect of an instrument,
(b)  a person who is authorised (whether by a person who is liable to pay duty in respect of an instrument or by another person) to arrange for the stamping of the instrument on behalf of a person who is liable.

299   Copies of instruments

(1)  A copy of an original instrument is chargeable with duty as if it had been executed in the same way as the original instrument and had been first executed at the same time as the original instrument unless the Chief Commissioner is satisfied:
(a)  that the original instrument has been duly stamped, or
(b)  that a copy of the original instrument has been duly stamped in accordance with this section.
(2)  If a copy of an original instrument is duly stamped in accordance with this section, the original instrument is taken to be duly stamped.
(3)  In this section:

copy of an original instrument means an unexecuted instrument in which, in the Chief Commissioner’s opinion, the matter contained in the original instrument is wholly or substantially reproduced, whether or not the matter reproduced has the same appearance as the matter contained in the original instrument, but does not include a replica within the meaning of section 272.

original instrument means an instrument that is chargeable with duty otherwise than under this section.

300   Calculation of time

(1)  This section applies to the calculation of a period of time for the purpose of determining when the payment of duty is due under this Act.
(2)  A month is taken to be a period commencing at the beginning of a day of one of the 12 named months (within the meaning of the Interpretation Act 1987) and ending:
(a)  at the end of the corresponding day of the next named month, or
(b)  if there is no such corresponding day, at the end of the next named month.
(3)  A period of 2 or more months is taken to be a period commencing at the beginning of a day of one of the 12 named months (within the meaning of the Interpretation Act 1987) and ending:
(a)  at the end of the corresponding day of the last named month within the period, or
(b)  if there is no such corresponding day, at the end of that named month.
(4)  Section 36 (except subsection (1)) of the Interpretation Act 1987 applies to the calculation of a period of time to which this section applies.

Part 2 Enforcement

301   Registration of transactions and instruments

(1)  A person must not register in a register of legal or beneficial interests in dutiable property a dutiable transaction, an instrument that effects a dutiable transaction or an instrument chargeable with duty unless:
(a)  it is duly stamped, or
(b)  it is stamped by the Chief Commissioner or in a manner approved by the Chief Commissioner, or
(c)  it bears an endorsement, or is otherwise effected, in accordance with an approval under section 37 of the Taxation Administration Act 1996.

Maximum penalty: 100 penalty units.

(2)  (Repealed)

302, 303   (Repealed)

304   Receipt of instruments in evidence

(1)  An instrument that effects a dutiable transaction or is chargeable with duty under this Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless:
(a)  it is duly stamped, or
(b)  it is stamped by the Chief Commissioner or in a manner approved by the Chief Commissioner.
(2)  A court or tribunal may admit in evidence an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, and that does not comply with subsection (1):
(a)  if the instrument is after its admission transmitted to the Chief Commissioner in accordance with arrangements approved by the court or tribunal, or
(b)  if (where the person who produces the instrument is not the person liable to pay the duty) the name and address of the person so liable is forwarded, together with the instrument, to the Chief Commissioner in accordance with arrangements approved by the court or tribunal.
(3)  A court or tribunal may admit in evidence an unexecuted copy of an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, if the court or tribunal is satisfied that:
(a)  the instrument of which it is a copy is duly stamped, or is stamped in a manner approved by the Chief Commissioner, or
(b)  the copy is duly stamped under section 299.

305   Valuation of property

(1)  The Chief Commissioner may, for the purpose of determining whether a person is liable for duty or determining a person’s liability for duty:
(a)  require the person, by notice in writing given to the person, to provide a valuation of property prepared by a registered valuer or to provide such other evidence of the value of property as the Chief Commissioner considers appropriate, or
(b)  obtain a valuation of property, or
(c)  rely on a valuation of property prepared for any purpose (whether or not for the purpose of determining liability for duty) by a registered valuer or other person the Chief Commissioner is satisfied is properly qualified to provide evidence of the value of property.
(2)  The Chief Commissioner may assess duty on the basis of a valuation or evidence referred to in subsection (1).
(3)  If a person is liable to pay duty under this Act that is chargeable by reference to the value of property, the Chief Commissioner may recover from the person the cost of obtaining a valuation of the property under this section.
(4)  In this section:

registered valuer has the meaning given by the Valuers Act 2003.

306   Ascertainment of value of certain interests

If it is necessary for the purpose of assessing duty under this Act to ascertain the value of:
(a)  any estate or annuity or interest for the life of any person, or
(b)  any estate or annuity or interest determinable on or subject to any contingency or the happening of any event, or
(c)  any estate or annuity or interest in remainder expectant on the death of any person or expectant on or subject to any contingency or the happening of any event,
regard may be had in ascertaining the value of any such property to the death of the person having the life estate or annuity or interest or the happening of the contingency or event at any time before the assessment of duty is actually made.

307   Impounding of instruments

(1)  The Chief Commissioner may impound any instrument that ought to be but is not stamped or is insufficiently stamped.
(2)  The Chief Commissioner may retain any impounded instrument until the duty or any interest or penalty tax, or all such amounts, have been paid.

308   Application of Act to Crown

(1)  This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Legislature of New South Wales permits, the Crown in all its other capacities.
(2)  However, the Crown in right of New South Wales is not liable to pay duty unless this Act or any other Act expressly imposes a liability on the Crown in that capacity to pay duty.
(3)  A person or body listed in Schedule 2 is liable to pay duty under this Act, even if the person or body represents the Crown. This section does not operate to exempt any such person or body from liability to pay duty under this Act.
(4)  (Repealed)
(5)  This section does not exempt any person or body from any liability to pay duty chargeable under Chapter 8.
Note. However, section 259 (1) (a) provides that insurance covering only property of the Crown is exempt from duty.
(6)  For avoidance of doubt, in this section, the Crown includes any statutory body representing the Crown.
(7)  The Governor may, by proclamation published on the NSW legislation website, amend Schedule 2 to insert, omit or substitute the name of any person or body.

Part 3 The Public Equity Partnership and the Rent/Buy Scheme

309   Liability to duty in respect of certain housing schemes

(1)  In this section:

eligible land means:

(a)  land owned by N.S.W. Housing No. 1 Pty Limited that the Chief Commissioner is satisfied is the subject of an arrangement known as the Public Equity Partnership Arrangement in which the New South Wales Land and Housing Corporation is a participant, and
(b)  land of which the trustee of the FANMAC Pooled Superannuation Trust No. 1 is an owner and which the Chief Commissioner is satisfied is the subject of a scheme known as the Rent/Buy Scheme in which the New South Wales Land and Housing Corporation is a participant.

eligible owner means N.S.W. Housing No. 1 Pty Limited or the trustee of the FANMAC Pooled Superannuation Trust No 1.

(2)  The New South Wales Land and Housing Corporation is to pay the duty that would otherwise be payable by an eligible owner on an instrument executed in relation to eligible land for the purposes of:
(a)  the arrangement known as the Public Equity Partnership Arrangement, or
(b)  the scheme known as the Rent/Buy Scheme.
(3)  The New South Wales Land and Housing Corporation is to pay the duty payable on any sovereign risk insurance policy or any correlation insurance policy issued in relation to the arrangement known as the Public Equity Partnership Arrangement.
(4)  A payment made under this section is to be regarded as an expense of the New South Wales Land and Housing Corporation.

Part 4 Hardship Review Board

310   Waiver, deferral and writing off of duty in hardship cases

The Hardship Review Board constituted under Division 5 of Part 10 of the Taxation Administration Act 1996 may exercise its functions in relation to duty payable under this Act.

311   Notation by Chief Commissioner in cases of waiver

If the Hardship Review Board waives the payment of duty, the Chief Commissioner must make such notation on the instrument in respect of which the duty is waived as the Chief Commissioner thinks fit and the instrument, on the making of the notation, is taken to have been duly stamped.

312   (Repealed)

Part 5 Miscellaneous

313   Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)  A regulation may create an offence punishable by a penalty not exceeding 20 penalty units.

314   Savings, transitional and other provisions

Schedule 1 has effect.

315   (Repealed)

316   Repeal of Educational Institutions (Stamp Duties Exemption) Act 1961 No 37

The Educational Institutions (Stamp Duties Exemption) Act 1961 is repealed.

317   Review of Act

(1)  The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2)  The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
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