274   Transfer of certain business property between family members

(1)  Duty under this Act is not chargeable in respect of a transfer or agreement for the sale or transfer of land, a lease of land, or a transfer or assignment of a lease or permit in respect of land, used for primary production together with any other property that is an integral part of the business of primary production, if the Chief Commissioner is satisfied that:

(a)  the transferor, lessor or assignor, or the person directing the transferor, lessor or assignor, is a member of the family of the transferee, lessee or assignee, and

(b)  the land was land used for primary production in connection with a business carried on by the transferee, lessee or assignee, or by a member of the family of the transferee, lessee or assignee, (whether alone or with others) immediately before the transaction or the date of first execution of the instrument, and

(c)  the business is to continue to be carried on by the transferee, lessee or assignee (whether alone or with others).

(2)  Duty under this Act is not chargeable in respect of a transfer of shares in a share management fishery within the meaning of the Fisheries Management Act 1994, if the Chief Commissioner is satisfied that:

(a)  the transferor, or the person directing the transferor, is a member of the family of the transferee, and

(b)  the shares are held in connection with a fishing business carried on by the member of the family of the transferee (whether alone or with others) immediately before the transaction or the date of first execution of the instrument, and

(c)  the business is to continue to be carried on by the transferee (whether alone or with others).

Note. Duty on the transfer of shares in a share management fishery is abolished on 1 July 2013. This exemption is relevant only to a transfer of shares in a share management fishery that occurs before that date. See Part 4 of Chapter 2.

(3)  For the purposes of this section, the person directing a transferor, lessor or assignor is:

(a)  in the case of a transferor, lessor or assignor who is acting in the capacity of executor of a deceased estate—the deceased person, or

(b)  in the case of a transferor, lessor or assignor which is a proprietary limited company—a shareholder or shareholders in the company who:

(i)  are beneficially entitled to those shares, and

(ii)  are entitled to vote at meetings of the company, and

(iii)  are entitled as shareholders to not less than 25% of the assets of the company on winding up, being an entitlement that existed for at least 3 years prior to the date of the transfer, lease or assignment or that existed from the date of incorporation of the company, or

(c)  in the case of a transferor, lessor or assignor acting in the capacity of trustee of a bare trust—a person who is a named beneficiary of the trust, or

(d)  in the case of a transferor, lessor or assignor acting in the capacity of trustee of a discretionary trust—a person or persons who are entitled (as takers in default of appointment) to not less than a 25% interest in the capital of the trust, being an entitlement that existed for at least 3 years prior to the date of the transfer, lease or assignment, or that existed from the date of establishment of the trust, or

(e)  in the case of a transferor, lessor or assignor acting in the capacity of trustee of a private unit trust scheme—a unit holder or unit holders in the unit trust scheme who:

(i)  hold the units beneficially, and

(ii)  are entitled (as unit holders) to not less than 25% of the assets of the unit trust scheme on winding up, being an entitlement that existed for at least 3 years prior to the date of the transfer, lease or assignment, or from the date of establishment of the trust.

(4)  In the case of a transfer, lease or assignment by a proprietary limited company or unit trust scheme (a subsidiary entity) that is owned by another proprietary limited company or unit trust scheme (the parent entity), a person is taken to be a person directing the subsidiary entity if the Chief Commissioner is satisfied that, had the parent entity been the transferor, lessor or assignor, the person would be the person directing the parent entity under subsection (3).

(5)  Except as provided by subsections (3) and (4), there are no other cases in which a person is considered to be a person directing a transferor, lessor or assignor.

(5A)  This section does not apply if the transferee acquires the land or shares concerned as a trustee.

(6)  In this section:

member, of a transferee’s family, means each of the following persons:

(a)  the transferee’s spouse,

(b)  a parent of the transferee or the transferee’s spouse,

(c)  a grandparent of the transferee or the transferee’s spouse,

(d)  a brother, sister, nephew, niece, uncle or aunt of the transferee or the transferee’s spouse,

(e)  a child or grandchild of the transferee or the transferee’s spouse,

(f)  the spouse of anyone mentioned in paragraph (b), (c), (d) or (e).

spouse includes a former spouse, a de facto partner and a former de facto partner.

Note. Land used for primary production is defined in the Dictionary.