Chapter 2 Transactions concerning dutiable property

Part 1 Introduction and overview

8   Imposition of duty on certain transactions concerning dutiable property

(1)  This Chapter charges duty on:

(a)  a transfer of dutiable property, and

(b)  the following transactions:

(i)  an agreement for the sale or transfer of dutiable property,

(ii)  a declaration of trust over dutiable property,

(iii)  a surrender of an interest in land in New South Wales,

(iv)  a foreclosure of a mortgage over dutiable property,

(v)  a vesting of dutiable property by or as a consequence of a court order,

(vi)  the enlargement of a term in land into a fee simple under section 134 of the Conveyancing Act 1919.

(2)  Such a transfer or transaction is a dutiable transaction for the purposes of this Act.

(3)  In this Chapter:

declaration of trust means any declaration (other than by a will or testamentary instrument) that any identified property vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the property, or the person entitled to appoint the property, may not have joined in or assented to the declaration.

transfer includes an assignment, an exchange and a buy-back of shares in accordance with Division 2 of Part 2J.1 of the Corporations Act 2001 of the Commonwealth.

9   Imposition of duty on dutiable transactions that are not transfers

(1)  The duty charged by this Chapter on a dutiable transaction referred to in section 8 (1) (b) is to be charged as if each such dutiable transaction were a transfer of dutiable property.

(2)  Accordingly, for the purpose of charging duty under this Chapter, in relation to a dutiable transaction specified in Column 1 of the following Table:

(a)  the property specified opposite the dutiable transaction in Column 2 is taken to be the property transferred (and a reference in this Act to property transferred includes a reference to such property), and

(b)  the person specified opposite the dutiable transaction in Column 3 is taken to be the transferee of the dutiable property (and a reference in this Act to a transferee includes a reference to such a person), and

(c)  the transfer of the dutiable property is taken to have occurred at the time specified opposite the dutiable transaction in Column 4 (and a reference in this Act to the time at which a transfer occurs includes a reference to such a time).

Table

Column 1	Column 2	Column 3	Column 4
Dutiable transaction	Property transferred	Transferee	When transfer occurs
agreement for sale or transfer	the property agreed to be sold or transferred	the purchaser or transferee	when the agreement is entered into
declaration of trust	the property vested or to be vested in the declarant	the person declaring the trust	when the declaration is made
surrender	the surrendered property	the person to whom the property is surrendered	when the surrender takes place
foreclosure	the mortgaged property	the mortgagee	when the foreclosure order is made
vesting by court order	the vested property	the person in whom the property is vested	when the order is made
enlargement of a term in land into a fee simple	the estate in fee simple	the person who acquires the estate in fee simple	when the term is enlarged

10   What form must a dutiable transaction take?

It is immaterial whether or not a dutiable transaction is effected by a written instrument or by any other means, including electronic means.

11   What is “dutiable property”?

(1)  Dutiable property is any of the following:

(a)  land in New South Wales,

(b)  transferable floor space (also known as heritage floor space), being floor space area that:

(i)  is recorded on a register kept by a local government council in New South Wales, and

(ii)  derives from the unutilised development potential of land in New South Wales that contains improvements of heritage value, and

(iii)  may, subject to obtaining all necessary consents and approvals, be utilised in the development of other land in New South Wales,

(c)  a land use entitlement,

(d)  shares:

(i)  in a NSW company, or

(ii)  in a corporation incorporated outside Australia that are kept on the Australian register kept in New South Wales,

Notes. Shares is defined in the Dictionary to include rights to shares.

Some shares (namely, shares quoted on the ASX or a recognised stock exchange) are not dutiable property—see subsection (2).

(e)  units in a unit trust scheme, being units:

(i)  registered on a register kept in New South Wales, or

(ii)  that are not registered on a register kept in Australia, but in respect of which the manager (or, if there is no manager, the trustee) of the unit trust scheme is a NSW company or is a natural person resident in New South Wales,

Notes. Units is defined in the Dictionary to include rights to units.

Some units (namely, units quoted on the ASX or a recognised stock exchange) are not dutiable property—see subsection (2).

(f)  (Repealed)

(g)  a business asset, being, at any relevant time:

(i)  the goodwill of a business if, during the previous 12 months, a sale of goods or services, or goods and services, has been made to a New South Wales customer of the business, or

(ii)  intellectual property that has been used or exploited in New South Wales during the previous 12 months, but only if the intellectual property is the subject of an arrangement that includes a dutiable transaction over goodwill referred to in subparagraph (i), or

(iii)  a statutory licence or permission under a Commonwealth law, if the rights under the licence or permission have been exercised, during the previous 12 months, in respect of New South Wales or in an area that includes New South Wales or a part of New South Wales,

Note. Intellectual property is defined in the Dictionary. Business assets are subject to apportionment under section 28.

(h)  a statutory licence or permission under a New South Wales law,

(h1)  a poker machine entitlement within the meaning of the Gaming Machines Act 2001,

(i)  a partnership interest, being an interest in a partnership that has partnership property that is dutiable property elsewhere referred to in this section,

(j)  goods in New South Wales, if the subject of an arrangement that includes a dutiable transaction over any dutiable property (other than intellectual property) elsewhere referred to in this section, not including the following:

(i)  goods that are stock-in-trade,

(ii)  materials held for use in manufacture,

(iii)  goods under manufacture,

(iv)  goods held or used in connection with land used for primary production,

(v)  livestock,

(vi)  a registered motor vehicle,

(vii)  a ship or vessel,

(k)  an option to purchase land in New South Wales,

(l)  an interest in any dutiable property referred to in the preceding paragraphs of this section, except to the extent that:

(i)  it arises as a consequence of the ownership of a unit in a unit trust scheme and is not a land use entitlement, or

(ii)  it is, or is attributable to, an option over dutiable property, or

(iii)  it is an interest in a marketable security, being an interest that is traded on the Sydney Futures Exchange.

(2)  Despite subsection (1), the following marketable securities are not dutiable property:

(a)  shares, or units in a unit trust scheme, that are quoted on the Australian Stock Exchange or a recognised stock exchange,

(b)  an interest in shares, or an interest in units in a unit trust scheme, if:

(i)  the shares or units are quoted on the Australian Stock Exchange or a recognised stock exchange, or

(ii)  the interest is quoted on the Australian Stock Exchange or a recognised stock exchange.

12   When does a liability for duty arise?

(1)  A liability for duty charged by this Chapter arises when a transfer of dutiable property occurs.

(2)  However, if a transfer of dutiable property is effected by a written instrument, liability for duty charged by this Chapter arises when the instrument is first executed.

13   Who is liable to pay the duty?

Duty charged by this Chapter is payable by the transferee, unless this Chapter requires another person to pay the duty.

14   The liability of joint tenants

For the purpose of assessing duty charged by this Chapter, joint tenants of dutiable property are taken to hold the dutiable property as tenants in common in equal shares.

15   Necessity for written instrument or written statement

(1)  If a dutiable transaction that is liable to ad valorem duty under this Chapter is not effected by a written instrument, the transferee must make a written statement in a form approved by the Chief Commissioner.

(2)  The written statement must be made within 3 months after the liability arises.

(3)  (Repealed)

(4)  If a dutiable transaction is completed or evidenced by a written instrument within 3 months after the date on which the dutiable transaction occurs, the requirement to lodge a statement and pay duty in respect of the statement may be satisfied by the lodgment of and payment of duty on the written instrument within 3 months after the date on which the dutiable transaction occurs.

16   Lodging written instrument or written statement with Chief Commissioner

(1)  A transferee who is liable to pay duty in respect of a dutiable transaction must, within 3 months after the liability arises, lodge with the Chief Commissioner:

(a)  the written instrument that effects the dutiable transaction or, if there is more than one such written instrument, each one of them as provided by section 18 (1), or

(b)  the written statement made in compliance with section 15.

(2)  (Repealed)

17   When must duty be paid?

(1)  A tax default does not occur for the purposes of the Taxation Administration Act 1996 if duty is paid within 3 months after the liability to pay the duty arises.

(2)  (Repealed)

18   No double duty

(1)  If a dutiable transaction is effected by more than one instrument, one instrument is to be stamped with the duty payable on the dutiable transaction and each other instrument is chargeable with duty of $10.

Note. Instrument includes a written statement.

(2)  The duty chargeable in respect of a transfer of dutiable property made in conformity with an agreement for the sale or transfer of the dutiable property is $2 if the duty chargeable in respect of the agreement has been paid.

(3)  The duty chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property is $2 if:

(a)  the duty chargeable in respect of the agreement has been paid, and

(b)  the transfer would be in conformity with the agreement if the transferee was the purchaser under the agreement, and

(c)  the transfer occurs at the same time as, or proximately with, the completion or settlement of the agreement, and

(d)  at the time the agreement was entered into:

(i)  the purchaser under the agreement and the transferee under the transfer were related persons, except as provided by subparagraph (ii), or

(ii)  if the purchaser purchased as a trustee, the transferee and the beneficiary were related persons.

(4)  The duty chargeable on a transfer to a trustee of dutiable property subject to a declaration of trust is $2 if ad valorem duty has been paid on the declaration of trust in respect of the same dutiable property.

(5)  The duty chargeable on a transfer of dutiable property as a consequence of a foreclosure order is $2 if ad valorem duty has been paid on the foreclosure.

(6)  The duty chargeable on a declaration of trust that declares the same trusts as those upon and subject to which the same dutiable property was transferred to the person declaring the trust is $2 if ad valorem duty has been paid on the transfer.

(6A)  The duty chargeable on a declaration of trust is $10 if the Chief Commissioner is satisfied that:

(a)  the declaration of trust supersedes another declaration of trust in respect of which duty has been paid and declares the same trusts as were declared under the superseded declaration of trust, and

(b)  the beneficiary under the declaration of trust is the same as under the superseded declaration of trust, and

(c)  the dutiable property subject to the declaration of trust:

(i)  is wholly or substantially the same as the property that was the subject of the superseded declaration of trust at the time of the declaration of the superseded declaration of trust, or

(ii)  represents the proceeds of re-investment of property that was the subject of the superseded declaration of trust at the time of the declaration of the superseded declaration of trust, or

(iii)  is property to which both subparagraphs (i) and (ii) apply.

(7)  A dutiable transaction in respect of marketable securities that confer a land use entitlement is taken to be a dutiable transaction in respect of the land use entitlement only. If duty has been paid on the dutiable transaction in accordance with a law of another Australian jurisdiction, the duty charged by this Chapter on the dutiable transaction is to be reduced by the amount of the duty so paid.

19   What is the rate of duty?

Duty is charged on the dutiable value of the dutiable property subject to the dutiable transaction at the relevant rate set out in Part 3.

20   Concessions and exemptions from duty

Concessions and exemptions from duty charged by this Chapter are dealt with in Parts 6, 7 and 8.

Part 2 Dutiable value

21   What is the “dutiable value” of dutiable property?

(1)  The dutiable value of dutiable property that is subject to a dutiable transaction is the greater of:

(a)  the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration), and

(b)  the unencumbered value of the dutiable property.

(2)  The dutiable value of dutiable property transferred by way of foreclosure is the unencumbered value of the dutiable property and not the value of the debt secured by the mortgaged property.

(3)  The dutiable value of a business asset to which section 28 applies is to be determined in accordance with that section.

(4)  The dutiable value of a partnership interest referred to in section 29 is to be determined in accordance with that section.

22   What is the consideration for the transfer of dutiable property?

(1)  The consideration for the transfer of dutiable property is taken to include the amount or value of all encumbrances, whether certain or contingent, subject to which the dutiable property is transferred.

(2)  The consideration for the transfer of the interest of a transferee under an uncompleted agreement for the sale or transfer of dutiable property is taken to include the balance of the amount or value of the consideration that would be required from the transferee under the agreement in order to complete it in accordance with its terms.

(3)  The consideration for the transfer of the goodwill of a business is taken to include the amount or value of the consideration for any restraint of trade arrangement entered into in connection with the transfer of the goodwill.

23   What is the “unencumbered value” of dutiable property?

(1)  The unencumbered value of dutiable property is the value of the property determined without regard to any encumbrance to which the property is subject.

(2)  The unencumbered value of the goodwill of a business is taken to include the value of any restraint of trade arrangement entered into by the vendor in order to protect the value of the goodwill.

(3)  If, before land is transferred to a transferee, the transferee has made improvements to the land, the unencumbered value of the land is to be determined as if those improvements had not been made.

24   Arrangements that reduce the dutiable value

An arrangement affecting the dutiable value of dutiable property that is subject to a dutiable transaction is to be disregarded in determining the dutiable value of the dutiable property if:

(a)  the dutiable transaction is between associated persons, or

(b)  the Chief Commissioner is satisfied that a significant purpose of any party to the arrangement was the reduction of the dutiable value of the dutiable property.

25   Aggregation of dutiable transactions

(1)  Dutiable transactions relating to separate items of dutiable property, or separate parts of, or interests in, dutiable property are to be aggregated and treated as a single dutiable transaction if:

(a)  they occur within 12 months, and

(b)  the transferee is the same or the transferees are associated persons, and

(c)  the dutiable transactions together form, evidence, give effect to or arise from what is, substantially, one arrangement relating to all of the items or parts of, or interests in, the dutiable property.

Note. Associated person is defined in the Dictionary.

(2)  Dutiable transactions are not to be aggregated under this section if the Chief Commissioner is satisfied that it would not be just and reasonable to do so in the circumstances.

(3)  The dutiable value of aggregated dutiable property is the sum of the dutiable values of the items or parts of, or the interests in, the dutiable property as at the time at which each dutiable transaction occurs.

(4)  The amount of duty payable in accordance with this section is to be reduced by the amount of any ad valorem duty paid on a prior dutiable transaction that is, or prior dutiable transactions that are, aggregated in accordance with this section.

(5)  Duty may be apportioned to the instruments effecting or evidencing the dutiable transactions, or may be charged in accordance with section 18 (1), as determined by the Chief Commissioner.

(6)  A transferee to whom this section applies must disclose to the Chief Commissioner, in writing, at or before the time at which an instrument or statement relating to the dutiable transactions is lodged for stamping, details known to the transferee of:

(a)  all of the items or parts of, or interests in, the dutiable property included or to be included in the arrangement referred to in subsection (1), and

(b)  the consideration for each item or part of, or interest in, that dutiable property.

Maximum penalty (subsection (6)): 100 penalty units.

(7)  The reference in this section to dutiable property does not include a reference to marketable securities.

26   Certain transactions concerning goods and other property

The Chief Commissioner, if satisfied that it would not be just and reasonable in the circumstances to charge duty on the dutiable value of all the dutiable property in a dutiable transaction involving goods and other property, may disregard the value of the goods, or any of them, in determining the dutiable value of the property involved.

27   Apportionment—dutiable property and other property

(1)  If a dutiable transaction relates to dutiable property and property that is not dutiable property, it is chargeable with duty under this Chapter only to the extent that it relates to dutiable property.

(2)  If a dutiable transaction relates to different types of dutiable property for which different rates of duty are chargeable under this Chapter, the dutiable transaction is chargeable with duty under this Chapter as if a separate dutiable transaction had occurred in relation to each such type of dutiable property.

28   Apportionment—business assets in this and other jurisdictions

(1) Business assets to which this section applies
This section applies to a business asset referred to in section 11 (g), being:

(a)  the goodwill of a business if sales of goods or services, or goods and services, have also been made to a non-New South Wales customer of the business during the previous 12 months, or

(b)  intellectual property that has also been used or exploited in one or more other Australian jurisdictions during the previous 12 months, or

(c)  a statutory licence or permission under a Commonwealth law if the rights under the licence or permission have been exercised during the previous 12 months in respect of one or more other Australian jurisdictions.

(2) How is the dutiable value of a business asset determined?
The dutiable value (DV) of a business asset to which this section applies is to be determined in accordance with the following formula:

where:

A is the unencumbered value of the business asset, or so much of the consideration for the dutiable transaction as relates to the business asset, whichever is the greater, and

X is the gross amount of the sales of goods and services (expressed in Australian dollars) made to New South Wales customers of the business during the last 3 completed financial years preceding the dutiable transaction, and

Y is the gross amount of the sales of goods and services (expressed in Australian dollars) made to both New South Wales customers and non-New South Wales customers of the business during the last 3 completed financial years preceding the dutiable transaction.

(3)  Subsection (2) applies to intellectual property together with goodwill as if the intellectual property and goodwill comprise a single business asset.

(4)  If an apportionment cannot be made under subsection (2), the Chief Commissioner may make an apportionment on such basis as the Chief Commissioner considers appropriate in the circumstances.

(5) When is a sale made to NSW customers and non-NSW customers of a business?
For the purposes of this Chapter, a sale of goods or services is taken to be made to:

(a)  a New South Wales customer of a business if the goods are delivered, or the services are provided, in New South Wales to the customer, and

(b)  a non-New South Wales customer of a business if the goods are delivered, or the services are provided, outside New South Wales to the customer.

29   Partnership interests

(1)  The dutiable value of a partnership interest (DV) is to be determined in accordance with the following formula:

where:

A is the value of the partnership interest, or so much of the consideration for the dutiable transaction as relates to the partnership interest, whichever is the greater, and

X is the unencumbered value of all dutiable property of the partnership, and

Y is the unencumbered value of all assets of the partnership.

(2)  For the purposes of this section and despite subsection (1), the unencumbered value of dutiable property that is a business asset to which section 28 applies is the dutiable value of the business asset determined in accordance with section 28.

30   Partitions

(1) What is a partition?
For the purposes of this section, a partition occurs when property (some or all of which is dutiable property) that is held by persons jointly (as joint tenants or tenants in common) and beneficially is transferred or agreed to be transferred to one or more of those persons.

(2) Single dutiable transaction
For the purposes of this section and sections 16 and 18, a partition is taken to be a single dutiable transaction.

(3) Dutiable value
The dutiable value (DV) of a partition is to be determined in accordance with the following formula:

where:

A is the sum of the amounts by which the unencumbered value of the property transferred or agreed to be transferred to a person exceeds the unencumbered value of the interest held by the person in that property immediately before the partition, or the sum of any consideration for the partition paid by any of the parties, whichever is the greater, and

X is the unencumbered value of all dutiable property the subject of the partition, and

Y is the unencumbered value of all property the subject of the partition.

(3A)  For the purposes of this section and despite subsection (3), the unencumbered value of dutiable property that is a business asset to which section 28 applies is the dutiable value of the business asset determined in accordance with section 28.

(4) Minimum duty
The minimum duty chargeable on a transaction that effects a partition is $10.

(5) Who is liable to pay the duty?
Duty charged by this section is payable by the persons making the partition or any one or more of them.

31   Effect of alteration in purchase price

(1)  If after an agreement for the sale or transfer of dutiable property is entered into and before the property is transferred:

(a)  the consideration under the agreement is reduced and the reduced consideration is not less than the unencumbered value of the dutiable property when the consideration was reduced, or

(b)  the consideration under the agreement is reduced because the parties have agreed not to transfer some of the dutiable property previously agreed to be transferred and the reduced consideration is not less than the unencumbered value of the dutiable property that remained to be transferred when the consideration was reduced, or

(c)  the consideration under the agreement is increased and the dutiable value when the consideration was increased is greater than the dutiable value when the agreement was entered into,

      the Chief Commissioner must assess or reassess the liability to duty of the agreement in accordance with the change in the consideration.

(2)  The liability to pay additional duty arising from an increase in the consideration occurs on the date the consideration is agreed to be increased.

Part 3 Rates of duty

32   General rate

(1)  The rate of duty chargeable on a dutiable transaction is as follows:

Dutiable value of the dutiable property subject to the dutiable transaction	Rate of duty
Not more than $14,000	$1.25 for every $100, or part, of the dutiable value
More than $14,000 but not more than $30,000	$175 plus $1.50 for every $100, or part, by which the dutiable value exceeds $14,000
More than $30,000 but not more than $80,000	$415 plus $1.75 for every $100, or part, by which the dutiable value exceeds $30,000
More than $80,000 but not more than $300,000	$1,290 plus $3.50 for every $100, or part, by which the dutiable value exceeds $80,000
More than $300,000 but not more than $1,000,000	$8,990 plus $4.50 for every $100, or part, by which the dutiable value exceeds $300,000
More than $1,000,000	$40,490 plus $5.50 for every $100, or part, by which the dutiable value exceeds $1,000,000

(2)  This rate applies unless other provision is made by this Chapter.

Note. The rates of duty chargeable on dutiable transactions in respect of marketable securities are dealt with in section 33 and section 150. Concessional rates of duty chargeable on certain dutiable transactions are dealt with in Part 6 of this Chapter.

33   Shares, units, derivatives and interests (marketable securities)

(1)  The rate of duty chargeable on dutiable transactions in respect of marketable securities is 60 cents per $100, or part, of the dutiable value of the marketable securities.

(2)  (Repealed)

(3)  A minimum rate of duty of $10 is chargeable under this section in respect of a transfer of shares of a corporation that is not the legal or beneficial owner of land in New South Wales.

(4)  A rate of duty chargeable under this section does not apply to a dutiable transaction that confers a land use entitlement.

Note. Transactions in respect of shares or units that are quoted on the Australian Stock Exchange or a recognised stock exchange, or interests in such shares or units, are not dutiable transactions (see section 11 (2)).

33A   Shares in share management fisheries

The rate of duty chargeable on dutiable transactions in respect of shares in a share management fishery (within the meaning of the Fisheries Management Act 1994) is 60 cents per $100, or part, of the dutiable value of the shares.

Part 4

34–48A (Repealed)

Part 5 Special provisions

49   Interim payment of duty

(1)  If the full dutiable value of dutiable property subject to an agreement for sale or transfer cannot, in the Chief Commissioner’s opinion, be immediately ascertained, the Chief Commissioner may make an assessment by way of estimate under section 11 (2) of the Taxation Administration Act 1996.

(2)  The written instrument or the written statement required by section 15 may be stamped “interim stamp only”.

(3)  When the full dutiable value has been ascertained, the Chief Commissioner must reassess the duty payable on the agreement.

(4)  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.

(5)  If further duty is payable, liability for the further duty arises when the notice of assessment issues, despite section 12.

(6)  On payment of the balance of the duty (and any interest or penalty tax), the written instrument or the written statement required by section 15 is to be stamped with the amount of the balance and marked to indicate that duty has been duly paid.

49A   Purchases “off the plan”

(1)  Liability for duty on an off the plan purchase agreement arises:

(a)  on completion of the agreement, or

(b)  on the assignment of the whole or any part of the purchaser’s interest under the agreement, or

(c)  on the expiration of 12 months after the date of the agreement,

      whichever first occurs.

(2)  This section applies despite section 12.

(3)  Nothing in this section prevents the Chief Commissioner from accepting payment of duty and stamping an off the plan purchase agreement at any time after the agreement has been executed.

(4)  In this section:

off the plan purchase agreement means an agreement for the sale or transfer of dutiable property, being land on which a residence is to be erected or developed before completion of the sale or transfer.

50   Cancelled agreements

(1)  An agreement for the sale or transfer of dutiable property that is rescinded or annulled is not liable to duty under this Chapter if the Chief Commissioner is satisfied:

(a)  that the agreement was not rescinded or annulled to give effect to a subsale, or

(b)  that the purchaser or transferee under the agreement is a promoter of a named company proposed to be incorporated and that the company is the purchaser or transferee of the dutiable property under a subsequent agreement, or

(c)  that the purchaser or transferee under the agreement and the purchaser or transferee under a subsequent agreement relating to the same dutiable property were related persons when the agreement that is rescinded or annulled was entered into.

(2)  If duty has been paid on an agreement that is not liable to duty under this Chapter because of this section, the Chief Commissioner must reassess and refund the duty if an application for a refund is made within:

(a)  5 years of the initial assessment, or

(b)  12 months after the agreement is rescinded or annulled,

      whichever is the later.

50A   Cancelled transfers of dutiable property

(1)  A transfer of dutiable property that is effected by a written instrument is not liable to duty under this Chapter if the Chief Commissioner is satisfied that:

(a)  the transfer instrument has been cancelled and the dutiable property has not been transferred to the transferee, and

(b)  the transfer was not cancelled to give effect to a subsale, and

(c)  the transferee has not claimed any equitable interest in the dutiable property the subject of the transfer (such as, in the case of land, by lodging a caveat on the title to the property).

(2)  If duty has been paid on a transfer of dutiable property that is not liable to duty under this Chapter because of this section, the Chief Commissioner must reassess and refund the duty if an application for a refund is made within 5 years of the initial assessment.

(3)  The transfer instrument in respect of which the application is made must be surrendered to the Chief Commissioner unless the Chief Commissioner dispenses with that requirement.

(4)  In this section, cancelled includes abandoned.

51   Transfers arising from mortgages of land under Real Property Act 1900

(1)  The mortgagor and the mortgagee are jointly and severally liable to pay the duty chargeable on a transfer by way of mortgage of dutiable property that is land under the Real Property Act 1900.

(2)  If the Chief Commissioner is satisfied that:

(a)  duty has been paid in accordance with this section on a transfer of dutiable property to which this section applies, and

(b)  the dutiable property has been re-transferred to the mortgagor (or a person to whom the land has been transmitted by death or bankruptcy) and the mortgagor (or person) is the registered proprietor of the land,

      the Chief Commissioner must refund the ad valorem duty paid on the transfer less the amount of duty that would have been payable on the mortgage under Chapter 7 (Mortgages).

52   Possessory applications

(1)  A possessory application under the Real Property Act 1900 is chargeable with the same duty as a transfer of the land the subject of the application as if the dutiable value of the land were the land value of the land within the meaning of the Valuation of Land Act 1916.

(2)  The person liable to pay the duty is the applicant.

53   Applications to bring land under Real Property Act 1900

(1)  An application to bring land under the Real Property Act 1900 is chargeable with:

(a)  the same duty as on a possessory application under that Act if:

(i)  the application contains an application based on possessory title, and

(ii)  the applicant has not paid ad valorem duty on a transfer of the land, or

(b)  the same duty as on a transfer of the land if the applicant nominates another person as the person for whose estate or interest a folio of the Register is to be created, or

(c)  duty of $10 in any other case.

(2)  The person liable to pay the duty is:

(a)  the applicant, if subsection (1) (a) or (c) applies, or

(b)  the nominee, if subsection (1) (b) applies.

Part 6 Concessional rates of duty

Division 1 Trusts

54   Change in trustees

(1)  In this section:

new trustee means a trustee appointed in substitution for a trustee or a trustee appointed in addition to a trustee or trustees.

responsible entity means a responsible entity within the meaning of the Corporations Act 2001 of the Commonwealth.

special trustee means:

(a)  the Public Trustee, and

(b)  a trustee company within the meaning of the Trustee Companies Act 1964, and

(c)  a corporation constituted under the law of another Australian jurisdiction that, in the Chief Commissioner’s opinion, corresponds in that jurisdiction to the Public Trustee or a trustee company referred to in paragraph (b), and

(d)  the trustees of a fund that is a complying superannuation fund within the meaning of section 267 of the Commonwealth Income Tax Assessment Act 1936 or that, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the execution of:

(i)  an instrument appointing a new trustee, or

(ii)  an instrument by which a trustee retires without a new trustee being appointed in place of the retiree.

(2)  Duty of $10 is chargeable in respect of a transfer of dutiable property to a special trustee as a consequence of the retirement of a trustee or the appointment of a new trustee.

(3)  Duty of $10 is chargeable in respect of a transfer of dutiable property to a person other than a special trustee as a consequence of the retirement of a trustee or the appointment of a new trustee, if the Chief Commissioner is satisfied that, as the case may be:

(a)  none of the continuing trustees remaining after the retirement of a trustee is or can become a beneficiary under the trust, and

(b)  none of the trustees of the trust after the appointment of a new trustee is or can become a beneficiary under the trust, and

(c)  the transfer is not part of a scheme for conferring an interest, in relation to the trust property, on a new trustee or any other person, whether as a beneficiary or otherwise, to the detriment of the beneficial interest or potential beneficial interest of any person.

If the Chief Commissioner is not so satisfied, the transfer is chargeable with the same duty as a transfer to a beneficiary under and in conformity with the trusts subject to which the property is held, unless subsection (3A) applies.

(3A)  Duty of $10 is chargeable in respect of a transfer of property as a consequence of the retirement of a responsible entity of a managed investment scheme or the appointment of a new responsible entity of a managed investment scheme if the Chief Commissioner is satisfied that the only beneficial interest acquired by a person in relation to the property as a result of the transfer is a beneficial interest acquired by the replacement or new responsible entity solely because of its appointment as responsible entity for the scheme.

(4)  Duty of $10 is chargeable in respect of a transfer of dutiable property to a responsible entity if the Chief Commissioner is satisfied that the transfer is necessary to enable an undertaking that existed before the commencement of Chapter 5C of the Corporations Law to become a registered scheme within the meaning of Division 11 of Part 11.2 of the Corporations Law (as continued in effect by section 1408 of the Corporations Act 2001 of the Commonwealth).

54A   Transfers in relation to managed investment schemes

(1)  Duty of $10 is chargeable in respect of a transfer of dutiable property from:

(a)  a responsible entity of a managed investment scheme, or

(b)  a person who held the dutiable property as a trustee of a prescribed interest scheme within the meaning of the Corporations Law as in force immediately before 1 July 1998 when the scheme became a registered scheme within the meaning of Division 11 of Part 11.2 of the Corporations Law (as continued in effect by section 1408 of the Corporations Act 2001 of the Commonwealth),

      to a custodian or agent of the responsible entity as custodian or agent of the scheme in which the transferor held the dutiable property.

(2)  Duty of $10 is chargeable in respect of a transfer of dutiable property from the custodian of the responsible entity of a managed investment scheme to the responsible entity.

55   Property vested in an apparent purchaser

(1)  Duty of $10 is chargeable in respect of:

(a)  a declaration of trust made by an apparent purchaser in respect of identified dutiable property:

(i)  vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property, or

(ii)  to be vested in the apparent purchaser upon trust for the real purchaser, if the Chief Commissioner is satisfied that the money for the purchase of the dutiable property has been or will be provided by the real purchaser, or

(b)  a transfer of dutiable property from an apparent purchaser to the real purchaser, in a case where dutiable property is vested in an apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property.

(2)  In this section, purchase includes an allotment.

56   Transfers back from a nominee

(1)  If:

(a)  dutiable property (other than marketable securities) that was transferred to a person to be held by that person as trustee for the transferor is transferred back to the transferor by the trustee, and

(b)  no person other than the transferor has had a beneficial interest in the dutiable property (other than the trustee’s right of indemnity) between its transfer to the trustee and its transfer back to the transferor,

      the duty chargeable on the transfer of the dutiable property back to the transferor is $10.

(2)  If duty of $10 has been paid on a transfer under subsection (1), the initial transfer to the trustee is also chargeable with duty of $10. The Chief Commissioner must reassess the initial transfer and refund any duty paid in excess of $10 if an application for a refund is made within:

(a)  5 years after the initial assessment, or

(b)  12 months after the transfer back to the original transferor,

      whichever is the later.

(3)  In this section, trustee includes a trustee appointed in substitution for a trustee or a trustee appointed in addition to a trustee or trustees.

56A   Transfer of property subject to a statutory trust to a beneficial owner

(1)  This section applies if dutiable property that is vested in a person as trustee of a statutory trust as a consequence of the making of an order under section 66G of the Conveyancing Act 1919 is transferred or agreed to be transferred by the trustee to one or more of the beneficial owners of the dutiable property.

(2)  The dutiable value of the dutiable property that is the subject of the transfer or agreement is to be calculated by deducting from the unencumbered value of the dutiable property or the consideration for the transfer or agreement, whichever is the greater, the proportion of that amount that is the same as the proportion of the purchaser’s beneficial interest in the dutiable property immediately before the transfer or agreement.

57   Property passing to beneficiaries

(1)  Duty of $10 is chargeable in respect of a transfer for no consideration of dutiable property to a beneficiary made under and in conformity with the trusts contained in a declaration of trust, subject to subsections (2) and (3).

(2)  Subsection (1) applies only to the extent that the property being transferred is property that the Chief Commissioner is satisfied is:

(a)  wholly or substantially the same as the property the subject of the declaration of trust and that:

(i)  duty charged by this Act has been paid in respect of the declaration of trust over that property, or

(ii)  the declaration of trust is exempt from duty, or

(b)  dutiable property representing the proceeds of re-investment of property referred to in paragraph (a), or

(c)  property to which both paragraphs (a) and (b) apply.

(3)  Subsection (1) applies only if the transferee was a beneficiary at the time at which duty became chargeable in respect of the declaration of trust.

58   Establishment of a trust relating to unidentified property and non-dutiable property

(1)  Duty of $200 is chargeable in respect of an instrument executed in New South Wales that declares a trust over New South Wales property none of which is dutiable property.

(2)  Duty of $200 is chargeable in respect of an instrument executed in New South Wales that declares that property, although not identified in the instrument, when vested in the person executing the instrument is to be held in trust for a person or persons or a purpose or purposes mentioned in the instrument.

(3)  It is immaterial whether or not the beneficial owner or person entitled to appoint the property has joined in or assented to the instrument.

(4)  A liability for duty charged by this section arises when the instrument is first executed.

(5)  Duty charged by this section is payable by the person declaring the trust.

(6)  This section does not apply in respect of any property that is a marketable security, if the marketable security is not dutiable property because of section 11 (2).

59   Instrument relating to managed investment scheme

(1)  Duty of $10 is chargeable in respect of an instrument that:

(a)  amends, varies or replaces an instrument that establishes or governs a managed investment scheme, and

(b)  does not transfer, or have the effect of transferring, any dutiable property to a person who does not hold units in the scheme, and

(c)  does not have the effect of reducing the number of persons who hold units in the scheme.

(2)  Duty of $10 is chargeable in respect of a declaration of trust:

(a)  made by a trustee in respect of dutiable property that, immediately before the trust is declared, is held by the trustee as trustee of the prescribed interest scheme within the meaning of the Corporations Law as in force immediately before 1 July 1998, and

(b)  to hold the dutiable property on trust for the responsible entity of the managed investment scheme.

59A   Nomineeing transactions—unquoted marketable securities

Duty of $10 is chargeable in respect of a transfer of marketable securities, other than marketable securities that are not dutiable property, between any of the following persons:

(a)  the beneficial owner,

(b)  a trustee or nominee of the beneficial owner,

(c)  a custodian of a trustee or nominee of the beneficial owner,

(d)  a sub-custodian of a custodian of a trustee or nominee of the beneficial owner,

but only if:

(e)  there is no change in the beneficial ownership of the marketable securities, and

(f)  if the transferee is a person referred to in paragraph (b)–(d), the transferee is to hold the marketable securities solely for another person referred to in paragraph (a)–(c) and there is no contemplation of the marketable securities being held for any other person, and

(g)  if the transferor is a person referred to in paragraph (b)–(d), the marketable securities were held by the person solely for another person referred to in paragraph (a)–(c) and, since the time when the marketable securities were first transferred or issued to the transferor, no person has held the marketable securities other than solely for a person referred to in paragraph (a)–(c).

Division 2 Superannuation

60   Instruments relating to superannuation

(1)  The following instruments are liable to duty of $20 if they were first executed before 1 July 2001:

(a)  an instrument that establishes, or that amends provisions governing, a superannuation fund, an approved deposit fund, a pooled superannuation trust or an eligible rollover fund, being a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund within 12 months after the instrument or amending instrument takes effect,

(b)  an instrument under which an employer agrees to participate in or contribute to a complying superannuation fund or a superannuation fund that, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the employer agrees to participate in or contribute to the fund,

(c)  an instrument that is executed in order to set out or vary the terms of custodial arrangements concerning a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund (whether or not the instrument contains any other terms) or concerning a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund within 12 months after the instrument takes effect.

(2)  A liability for duty charged by this section arises when the instrument is first executed.

(3)  The persons liable to pay the duty are the parties to the instrument.

(4)  The duty may be denoted by adhesive stamp.

(5)  Despite subsection (1), an instrument to which this section applies is not liable to duty if:

(a)  it is exempt from duty under a corresponding Act, or

(b)  the duty for which it is liable under a corresponding Act has been paid.

61   Transfer of property from one superannuation fund to another

(1)  This section applies to the transfer of dutiable property from one superannuation fund to another where:

(a)  the transfer is made from a complying superannuation fund or from a fund that was a complying superannuation fund within the period of 12 months before the transfer was made, and

(b)  the transfer is made to a complying superannuation fund or to a superannuation fund that, in the opinion of the trustees, will be a complying superannuation fund within 12 months after the transfer is made, and

(c)  the transfer occurs in connection with a person’s ceasing to be a member of, or otherwise ceasing to be entitled to benefits in respect of, the fund from which the dutiable property is transferred and the person’s becoming a member of, or otherwise becoming entitled to benefits in respect of, the fund to which the dutiable property is transferred.

(2)  The duty chargeable on a transfer to which this section applies is ad valorem duty in accordance with this Chapter or $200, whichever is the lesser.

(3)  An application for an assessment of duty in accordance with this section is to be accompanied by the following:

(a)  a brief explanation of the background to the transfer and the entitlements to be extinguished and created,

(b)  copies of the governing rules of the complying superannuation funds concerned,

(c)  a statement of the property to be transferred,

(d)  a copy of each instrument relating to the transfer,

(e)  a statutory declaration from a trustee (or a director of a corporate trustee) of each of the superannuation funds concerned stating that, in the opinion of the trustee (or director), the fund will be a complying superannuation fund within 12 months after the transfer occurs.

(4)  The Chief Commissioner may require further information.

(5)  In this section, complying superannuation fund includes a complying approved deposit fund and an eligible rollover fund.

62   Transfers between trustees and custodians of superannuation funds or trusts

(1)  This section applies to the following dutiable transactions:

(a)  a transfer of, or an agreement to transfer, dutiable property from a trustee of:

(i)  a complying superannuation fund, or

(ii)  a pooled superannuation trust, or

(iii)  a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect,

      to a custodian of the trustee of the fund or trust, where there is no change in the beneficial ownership of the property,

(b)  a transfer of, or an agreement to transfer, dutiable property from a custodian of a trustee of:

(i)  a complying superannuation fund, or

(ii)  a pooled superannuation trust, or

(iii)  a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect,

      to a trustee of the fund or trust, where there is no change in the beneficial ownership of the property,

(c)  a transfer of, or an agreement to transfer, dutiable property from a custodian of a trustee of:

(i)  a complying superannuation fund, or

(ii)  a pooled superannuation trust, or

(iii)  a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect,

      to another custodian of the trustee of the fund or trust, where there is no change in the beneficial ownership of the property.

(2)  (Repealed)

(3)  The duty chargeable on a dutiable transaction to which this section applies is:

(a)  except as provided by paragraph (b), ad valorem duty in accordance with this Chapter or $200, whichever is the lesser, or

(b)  if the dutiable property transferred, or agreed to be transferred, is marketable securities, $2.

(4)  In this section, complying superannuation fund includes a complying approved deposit fund and an eligible rollover fund.

Division 3 Miscellaneous

63   Deceased estates

Duty of $10 is chargeable in respect of:

(a)  a transfer of dutiable property not made for valuable consideration by the legal personal representative of a deceased person to a beneficiary, being:

(i)  a transfer made under and in conformity with the trusts contained in the will of the deceased person or arising on an intestacy, or

(ii)  a transfer of property the subject of a trust for sale contained in the will of the deceased person, and

(b)  a consent by a legal personal representative of a deceased person to a transmission application by a beneficiary, and

(c)  a transmission application to a devisee who is also the sole legal personal representative.

64   Conversion of land use entitlement to different form of title

The duty chargeable on the transfer of a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973 or a lot in a deposited plan is $10 if:

(a)  the transferee, immediately before registration of the strata plan or deposited plan, held a land use entitlement in respect of the land or part of the land the subject of the strata plan or deposited plan, and

(b)  the transfer is part of an arrangement under which the transferee will take an interest in the lot similar in effect to and in substitution for the interest the transferee had under the land use entitlement immediately before registration of the strata plan or deposited plan, and

(c)  one of the following applies:

(i)  ad valorem duty was paid at the time the land use entitlement was acquired by the transferee,

(ii)  section 55, 57 or 63 applied to the acquisition of the land use entitlement by the transferee, and duty was paid as provided for by the section that applied,

(iii)  no duty was chargeable on the acquisition of the land use entitlement by the transferee because of section 68.

64A   Amalgamation of Western Lands leases

(1)  This section applies to the transfer of, or an agreement to transfer, a lease under the Western Lands Act 1901, being a lease for a purpose specified in an order of the Governor made for the purposes of this section and published in the Gazette.

Editorial note. For orders published under this section see Gazette No 92 of 13.8.1999, p 5743.

(2)  The duty chargeable on a dutiable transaction, being the transfer of, or an agreement to transfer, a lease to which this section applies is to be reduced if:

(a)  the transferee has transferred another lease under the Western Lands Act 1901 within 3 years before the dutiable transaction, and

(b)  the land subject to the dutiable transaction adjoins land held by the transferee under a lease under the Western Lands Act 1901.

(3)  The duty chargeable on the dutiable transaction is to be reduced by the amount of duty paid on the transfer of, or the agreement to transfer, the other lease within 3 years before the dutiable transaction.

64B   Reduction of duty on transfer of marketable securities—payment in non-Australian jurisdiction

(1)  The amount of duty chargeable under this Chapter on a transfer of marketable securities is to be reduced by the amount of duty of a similar kind paid in relation to the transfer in accordance with the law of a place outside Australia.

(2)  In this section, a reference to a transfer of marketable securities includes a reference to a dealing or arrangement affecting marketable securities by means of a dutiable transaction other than a transfer.

Part 7 Exemptions

65   Exemptions from duty

(1) General
A dutiable transaction is exempt from duty under this Chapter if it is, or occurs as a consequence of any of the following:

(a)  the appointment of a receiver or trustee in bankruptcy,

(b)  the appointment of a liquidator,

(c)  the transfer of dutiable property for no consideration to a former bankrupt from the estate of the former bankrupt,

(d)  a dutiable transaction over dutiable property arising from the discharge or transfer of a mortgage or declaration of trust over a mortgage (and a reference in this paragraph to a mortgage includes a reference to a charge and an interest in a mortgage),

(e)  a dutiable transaction comprising:

(i)  a transfer by way of discharge of mortgage, or

(ii)  a transfer by way of mortgage (not being a transfer by way of mortgage of land, or an estate or interest in land, under the Real Property Act 1900), if duty as on a mortgage has been paid in respect of an instrument evidencing the mortgage or the instrument is exempt from, or is not liable to, duty,

(f)  the vesting of dutiable property in a society or company by virtue of Part 7 or 8 of the Financial Institutions (NSW) Code or a corresponding law of another State or Territory,

(g)  the vesting of dutiable property in a statutory trust as a consequence of the making of an order under section 66G of the Conveyancing Act 1919.

(2) Employee and employer organisations
No duty is chargeable under this Chapter on a transfer of dutiable property made pursuant to, or in accordance with the rules of:

(a)  an association of employees or employers registered as an organisation under the Commonwealth Workplace Relations Act 1996, or

(b)  an industrial union of employers or employees registered under the Industrial Relations Act 1996, or

(c)  any body of a kind referred to in paragraph (a) or (b) that is approved for the time being by the Minister,

      if the transfer is made to another such association, union or body as a consequence of the amalgamation of two or more such associations, unions or bodies.

(3) Registered clubs
No duty is chargeable under this Chapter on a transfer of dutiable property to give effect to an order under section 17A of the Registered Clubs Act 1976 for the amalgamation of two clubs, or for the dissolution of two clubs and the formation of a new club, if such information and documents as the Chief Commissioner may require are given to the Chief Commissioner.

(4) Workers compensation insurers and custodians
No duty is chargeable under this Chapter on a transfer of, or an agreement to transfer, dutiable property:

(a)  made in compliance with a requirement of the WorkCover Authority between:

(i)  a licensed insurer, or a person who was a licensed insurer, under the Workers’ Compensation Act 1926 and an insurer licensed under the Workers Compensation Act 1987, or

(ii)  licensed insurers under the Workers Compensation Act 1987, or

(iii)  the Authority and a licensed insurer under the Workers Compensation Act 1987, or

(b)  made at the direction of the WorkCover Authority:

(i)  from an insurer licensed under the Workers Compensation Act 1987 to a custodian nominated by the Authority, or

(ii)  from such a custodian to another such custodian.

(5) Incorporated legal practices
No duty is chargeable under this Chapter on the transfer of, or an agreement to transfer, dutiable property in the following cases:

(a)  dutiable property of a solicitor corporation formed under the Legal Profession Act 1987 that is transferred or agreed to be transferred to:

(i)  an incorporated legal practice under that Act if the voting shareholders of the solicitor corporation immediately before the transfer or agreement is first executed are solicitor directors or employed solicitors of the incorporated legal practice, or

(ii)  a partnership of solicitors if the voting shareholders of the solicitor corporation immediately before the transfer or agreement is first executed are the same as the members of the partnership, or

(iii)  a solicitor practising as a sole practitioner if the only voting shareholder of the solicitor corporation immediately before the transfer or agreement is first executed is that solicitor,

(b)  dutiable property of a partnership of solicitors formed or originally formed before the commencement of Division 2A of Part 3 of the Legal Profession Act 1987 that is transferred or agreed to be transferred to an incorporated legal practice under that Act if the members of the partnership immediately before the transfer or agreement is first executed are solicitor directors or employed solicitors of the incorporated legal practice,

(c)  dutiable property of a solicitor practising as a sole practitioner before the commencement of Division 2A of Part 3 of the Legal Profession Act 1987 that is transferred or agreed to be transferred to an incorporated legal practice under that Act if the solicitor is the sole solicitor director of the incorporated legal practice.

(6) Transfer or vesting of liquor licence by court order
No duty is chargeable under this Chapter on the transfer or vesting of a liquor licence by order of a court under section 41, 42 or 61 of the Liquor Act 1982 if the Chief Commissioner is satisfied that:

(a)  there is no change of, or contemplated change in, the beneficial ownership of the liquor licence as a consequence of the transfer or vesting, or

(b)  the transfer or vesting is a consequence of an agreement for the sale or transfer of dutiable property on which the duty chargeable in respect of the agreement has been paid.

(7) Poker machine permits and entitlements
No duty is chargeable under this Chapter:

(a)  on the transfer of:

(i)  a Liquor Act poker machine permit (within the meaning of the Gaming Machines Act 2001), or

(ii)  a poker machine entitlement (within the meaning of that Act),

      that occurs as a consequence of the transfer of a hotelier’s licence under the Liquor Act 1982 that is not chargeable with duty under this Chapter, or

(b)  on the vesting or transfer of any such permit or entitlement, if the Chief Commissioner is satisfied that:

(i)  there is no change, or contemplated change, in the beneficial ownership of the permit or entitlement as a consequence of the vesting or transfer, or

(ii)  the vesting or transfer occurs as a consequence of an agreement for the sale or transfer of dutiable property on which the duty chargeable in respect of the agreement has been paid.

(8) Manufactured homes
No duty is chargeable under this Chapter on the transfer of, or an agreement to transfer, a manufactured home in a caravan park or manufactured home estate if the manufactured home, but not the land on which the manufactured home is located, is owned by the transferor.

In this subsection:

manufactured home means a manufactured home as defined in the Local Government Act 1993 where the home is designed to allow its transportation.

manufactured home estate has the same meaning as in the Local Government Act 1993.

(9) Administration agreements under first home owner grant scheme
No duty is chargeable under this Chapter on an administration agreement under the First Home Owner Grant Act 2000.

(10) Instruments relating to superannuation
No duty is chargeable under this Chapter on:

(a)  an instrument referred to in section 60 (1) (a), (b) or (c) that is first executed on or after 1 July 2001, or

(b)  a dutiable transaction effected or evidenced by such an instrument.

(11) Financial agreements
No duty is chargeable under this Chapter on a financial agreement made under section 90B, 90C or 90D of the Family Law Act 1975 of the Commonwealth.

66   Exemptions—marketable securities

(1)–(4)  (Repealed)

(5) Share buy-backs
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of shares comprising a buy-back of the shares in accordance with Division 2 of Part 2J.1 of the Corporations Act 2001 of the Commonwealth, unless the buy-back is effected by the purchaser pursuant to one or more agreements, understandings or arrangements that the purchaser will issue marketable securities.

(6) Rights to shares
No duty is chargeable under this Chapter on the transfer to a person of rights to shares if an earlier transfer of the shares to the person included a right to shares and duty in respect of the rights was paid in connection with that earlier transfer or the earlier transfer was exempt from duty.

(7) Bonus or rights issue
No duty is chargeable under this Chapter on the transfer of shares to a person (the transferee) if:

(a)  as a consequence of the transfer of shares in a company:

(i)  in respect of which ad valorem duty under this Act or a corresponding Act has been paid or that is exempt from duty, and

(ii)  that is not registered in the share register of the company,

      the transferee is, on a bonus issue or the issue of a right to shares subsequent to the transfer, entitled to other shares registered in the name of the transferor, and

(b)  the transferee pays the amount, if any, necessary to take up the other shares.

(8)  (Repealed)

(8A) ADRs
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of an ADR if:

(a)  the ADR relates to rights to shares that upon issue, on exercise of those rights, will be quoted on the Australian Stock Exchange or a recognised stock exchange, and

(b)  the transfer, or the sale or transfer to which the agreement relates, is to:

(i)  a foreign resident on the foreign resident’s own behalf, or

(ii)  a foreign resident acting on behalf of a trustee for another foreign resident, and

(c)  the ADR is to be registered on an overseas register of legal or beneficial title.

(9) Trust mergers
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of units in a qualifying unit trust scheme to the responsible entity or trustee of another qualifying unit trust scheme or a custodian or agent of the responsible entity or trustee if it is proved to the satisfaction of the Chief Commissioner that:

(a)  the purpose of the transfer is to give effect to a merger of 2 qualifying unit trust schemes or a takeover of a qualifying unit trust scheme by another qualifying unit trust scheme, and

(b)  the units are registered on a register kept in New South Wales, and

(c)  the transfer would qualify as a roll-over under Subdivision 124-M of the Income Tax Assessment Act 1997 of the Commonwealth.

(9A)  For the purposes of subsection (9), qualifying unit trust scheme means a unit trust scheme:

(a)  any of the units in which are listed for quotation on the Australian Stock Exchange or on a recognised stock exchange, or

(b)  in respect of which:

(i)  units in the scheme have been issued to the public and 50 or more persons are beneficially entitled to units in the scheme, or

(ii)  a majority of units in the scheme are acquired by, for or on account of, a complying superannuation fund, a pooled superannuation trust or a life company, or

(c)  that, in the opinion of the Chief Commissioner, will satisfy paragraph (b) within 12 months after the Chief Commissioner gives written notice of that opinion to a person who has requested the Chief Commissioner to express that opinion in relation to the unit trust scheme.

(10) Mining securities
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of marketable securities in a company (wherever incorporated) whose sole business is either or both of the following activities:

(a)  mining in New South Wales for minerals within the meaning of the Mining Act 1992 or the Offshore Minerals Act 1999, or

(b)  prospecting or mining in New South Wales for petroleum within the meaning of the Petroleum (Onshore) Act 1991,

      if the consideration for the transfer or agreement is not less than the unencumbered value of the marketable securities.

Note. No duty is chargeable on transactions relating to shares or units that are quoted on the Australian Stock Exchange or a recognised stock exchange or relating to interests in such shares or units (see section 11 (2)).

67   Exemptions—transfers to married couples and de facto partners

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of dutiable property if it is proved to the satisfaction of the Chief Commissioner that:

(a)  as a result of the transfer or agreement, the property is or will be held by a married couple or de facto partners as joint tenants or as tenants in common in equal shares, and

(b)  the dutiable property:

(i)  is land that has erected on it a private dwelling house and was solely or principally used, as at the date of transfer, as the principal place of residence of the married couple or de facto partners, or

(ii)  is vacant land and the married couple or de facto partners intend to use it as the site of a private dwelling house to be solely or principally used as their principal place of residence, or

(iii)  is shares that confer an entitlement to exclusive possession of a company title dwelling that was solely or principally used, as at the date of transfer, as the principal place of residence of the married couple or de facto partners, and

(c)  both the transferor and the transferee are the married couple or one of them or the de facto partners or one of them and no other person is a party to the transfer, and

(d)  in the case of de facto partners, the parties to the relationship have lived in the relationship for at least the 2 years before the date of the transfer.

(1A)  For the purposes of subsection (1) (b), a private dwelling house may be principally used as the principal place of residence of a married couple or de facto partners despite the fact that it may be partly owned by another person or persons or that it may also be the principal place of residence of another person or persons.

(2)  In this section, private dwelling house includes a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973 used as a place of residence.

68   Exemptions—break-up of marriages and domestic relationships

(1) Break-up of marriage
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of matrimonial property if:

(a)  the property is transferred, or agreed to be sold or transferred, to the parties to a marriage that is dissolved or annulled, or in the opinion of the Chief Commissioner has broken down irretrievably, or to either of them, or to a child or children of either of them, and

(b)  the transfer or agreement is effected by or in accordance with:

(i)  a financial agreement made under section 90B, 90C or 90D of the Family Law Act 1975 of the Commonwealth that, under that Act, is binding on the parties to the agreement, or

(ii)  an order of a court under that Act, or

(iia)  an agreement that the Chief Commissioner is satisfied has been made for the purpose of dividing matrimonial property as a consequence of the dissolution, annulment or breakdown of the marriage, or

(iii)  a purchase at public auction of property that, immediately before the auction, was matrimonial property where the public auction is held to comply with any such agreement or order.

(2) Break-up of domestic relationship
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of relationship property if:

(a)  the property is transferred, or agreed to be sold or transferred, to the parties to a domestic relationship that has, in the opinion of the Chief Commissioner, been terminated or to either of them, or to a child or children of either of them, and

(b)  the transfer or agreement is effected by or in accordance with:

(i)  an order of a court made under the Property (Relationships) Act 1984, or

(ii)  a termination agreement within the meaning of section 44 of the Property (Relationships) Act 1984 that has been certified in accordance with section 47 of that Act, or

(iii)  a purchase at public auction of property that, immediately before the auction, was relationship property where the public auction is held to comply with any such order or agreement.

(3) Associated transactions
No duty is chargeable under this Chapter on a dutiable transaction to the extent that:

(a)  for purposes of or ancillary to a transfer referred to in subsection (1) or (2), it transfers a share that is matrimonial property or relationship property to a person not a party to the relevant marriage or domestic relationship, in order to comply with a requirement of or prescribed under the Corporations Act 2001 of the Commonwealth, or

(b)  it is a declaration of trust, by the transferee of a share transferred as referred to in paragraph (a), for the benefit of a party to the marriage or relationship.

(4) Refunds—break-up of marriage
If:

(a)  ad valorem duty was paid on a transfer, or an agreement for the sale or transfer, of matrimonial property to the parties to a marriage or to either of them, or to a child or children of either of them, and

(b)  the transfer or agreement was effected as referred to in section 68 (1) (b), and

(c)  the marriage has been dissolved or annulled or has broken down irretrievably,

      the Chief Commissioner must reassess the transfer or agreement and refund the duty paid.

(4A) Refunds—break-up of domestic relationship
If:

(a)  ad valorem duty was paid on a transfer, or an agreement for the sale or transfer, of relationship property to the parties to a domestic relationship or to either of them, or to a child or children of either of them, and

(b)  the transfer or agreement was effected as referred to in section 68 (2) (b), and

(c)  the domestic relationship has been terminated,

      the Chief Commissioner must reassess the transfer or agreement and refund the duty paid.

(4B) Evidence of exemption
A party to a marriage or domestic relationship may provide a statement to the Chief Commissioner, in the form of a statutory declaration, to the effect that:

(a)  in the case of a marriage:

(i)  the party intends to apply for a dissolution or annulment of the marriage, or

(ii)  the parties to the marriage have separated, and there is no reasonable likelihood of cohabitation being resumed, or

(b)  in the case of a domestic relationship, the domestic relationship has been terminated.

The Chief Commissioner is required to have regard to any such statement in exercising his or her functions under this section.

(4C) Power to require other evidence
Subsection (4B) does not limit the functions of the Chief Commissioner under section 72 of the Taxation Administration Act 1996.

(5) Definitions
In this section:

marriage includes a void marriage.

matrimonial property of a marriage means property of the parties to the marriage or of either of them.

party to a marriage includes a person who was a party to a marriage that has been dissolved or annulled, in Australia or elsewhere.

relationship property of a domestic relationship means property of the parties to the relationship or of either of them.

Part 8 Exemption, discounts and instalment payment schemes

Division 1 First Home Plus

Subdivision 1 Agreements and associated mortgages

69   The nature of the scheme

This scheme is intended to help people who are acquiring their first home. Under the scheme, the acquisition and any mortgage given to assist the financing of the acquisition is subject to a concession or exemption from duty.

70   Commencement

The following transactions and instruments are eligible for consideration under the scheme:

(a)  agreements for sale or transfer entered into on or after 1 July 2000,

(b)  transfers that occur on or after 1 July 2000,

(c)  mortgages over land the subject of those agreements or transfers.

71   Eligible persons

(1)  A purchaser or transferee under an agreement or transfer may apply under the scheme, but will be eligible only if the purchaser or transferee has not at any time owned residential property in Australia (either solely or with someone else) that he or she occupied as his or her principal place of residence.

(2)  If there is more than one purchaser or transferee under an agreement or transfer, they may apply under the scheme, but will be eligible only if at least one of them has not at any time owned residential property in Australia (either solely or with someone else) that he or she occupied as his or her principal place of residence.

72   (Repealed)

73   Ineligible persons

(1)  Companies, partnerships, and persons in their capacity as trustees, are not eligible.

(2)  However, a trustee is eligible if the trustee is an apparent purchaser of the kind referred to in section 55 and the real purchaser is eligible.

(3)  A purchaser or transferee under an agreement or transfer is not eligible if the purchaser or transferee has previously been a party to an application under the scheme and the application was approved by the Chief Commissioner.

(4)  If there is more than one purchase or transferee under the agreement or transfer, the purchasers or transferees are not eligible if any one of them has previously been a party to an application under the scheme and the application was approved by the Chief Commissioner.

(5)  Despite subsection (4), the Chief Commissioner may determine that the purchasers are eligible if the Chief Commissioner is satisfied that the purchaser who has previously been a party to an application under the scheme that was approved is acquiring an interest in the property that is the subject of the current application solely for the purpose of assisting the other purchaser or purchasers in financing the acquisition.

74   Eligible agreements or transfers

(1)  The agreement or transfer must be for the acquisition of a first home or for the acquisition of a vacant block of residential land intended to be used as the site of a first home.

(2)  The agreement or transfer must be for the whole of the property.

(3)  The dutiable value of the dutiable property that is the subject of the agreement or transfer must be less than:

(a)  $300,000 if the property is located in the Metropolitan Area and has a private dwelling built on it, or

(b)  $250,000 if the property is located elsewhere than in the Metropolitan Area and has a private dwelling built on it, or

(c)  $140,000 if the property is located in the Metropolitan Area and comprises a vacant block of residential land, or

(d)  $110,000 if the property is located elsewhere than in the Metropolitan Area and comprises a vacant block of residential land.

Note. The dutiable value of dutiable property is the greater of:

(a)  the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration), and

(b)  the unencumbered value of the dutiable property.

Metropolitan area is defined in the Dictionary.

(4)–(6)  (Repealed)

75   Ineligible agreements and transfers

(1)  An agreement or transfer is not eligible if it involves the acquisition of a business or business premises. However, an agreement for the purchase, or a transfer, of a farming property on which there is a private dwelling is not excluded.

(2)  An agreement for the purchase, or a transfer, of a holiday home is not eligible.

(3)  (Repealed)

76   Residence requirement

(1)  The home must be occupied or intended to be occupied by the person or persons who are acquiring it on or before settlement, or within 12 months after settlement, as the principal place of residence.

(2)  This section does not apply to a person who acquires an interest in the property concerned solely for the purpose of assisting the other purchaser or purchasers in financing the acquisition (as referred to in section 73 (5)).

77   Eligible mortgages

(1)  A mortgage is eligible if it is given to assist the financing of a purchase under an agreement or transfer that is eligible under the scheme and the purchaser or purchasers under the agreement or transfer are eligible under the scheme.

(2)  The mortgage must be over the property purchased.

(3)  In the case of a property which has a private dwelling built on it, the amount of advances secured must not be more than the amount of the dutiable value permitted under section 74 (3) (a) or (b), as the case requires.

(4)  In the case of a property which comprises a vacant block of residential land, the amount of advances secured must not be more than the amount of the dutiable value permitted under section 74 (3) (c) or (d), as the case requires, unless the amount of advances secured under the mortgage includes provision for the building of a private dwelling on the property. In such a case, the amount of advances secured must not be more than the amount of the dutiable value permitted under section 74 (3) (a) or (b), as the case requires.

78   Making of applications

(1)  An application is made to the Chief Commissioner by completing a statutory declaration in a form approved by the Chief Commissioner.

(2)  (Repealed)

(3)  The Chief Commissioner may at any time (whether before or after the approval of an application) require the applicant or applicants to provide such further information as the Chief Commissioner may consider necessary for the proper administration of the scheme.

79   Determination of applications

An application is to be determined solely at the discretion of the Chief Commissioner whose decision is final.

80   Duty payable if application approved

(1)  If an application concerning an eligible agreement or transfer is approved and the dutiable value of the dutiable property that is the subject of the agreement or transfer is not more than the following amounts, no duty is chargeable on the agreement or transfer:

(a)  $200,000 if the property is located in the Metropolitan Area and has a private dwelling built on it, or

(b)  $175,000 if the property is located elsewhere than in the Metropolitan Area and has a private dwelling built on it, or

(c)  $95,000 if the property is located in the Metropolitan Area and comprises a vacant block of residential land, or

(d)  $80,000 if the property is located elsewhere than in the Metropolitan Area and comprises a vacant block of residential land.

(2)  If an application concerning an eligible agreement or transfer is approved and subsection (1) does not apply to the agreement or transfer, duty is chargeable on the agreement or transfer as follows:

(a)  if the property is located in the Metropolitan Area and has a private dwelling built on it—at the rate of 8.99% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $17,980.00, or

(b)  if the property is located elsewhere than in the Metropolitan Area and has a private dwelling built on it—at the rate of 9.65% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $16,885.00, or

(c)  if the property is located in the Metropolitan Area and comprises a vacant block of residential land—at the rate of 7.53% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $7,152.00, or

(d)  if the property is located elsewhere than in the Metropolitan Area and comprises a vacant block of residential land—at the rate of 7.8% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $6,240.00.

Note. Metropolitan Area is defined in the Dictionary.

80A   Definition

In this Subdivision:

residential property means:

(a)  land on which there is a building that is lawfully occupied as a place of residence or suitable for occupation as a place of residence, or

(b)  a company title dwelling.

Subdivision 1A Payment of instalments under First Home Purchase Scheme prior to 1 August 1998

81   Payment of instalments

(1)  Where instalments of duty are to be paid in accordance with an undertaking given under section 78 (2) as in force before 1 August 1998, the first instalment is to be paid by a date which is 1 year after the date of exchange of the agreement.

(2)  Although instalments are payable annually, payments may be made at more frequent intervals.

82   Payment of interest

(1)  No interest is payable unless an instalment is overdue. An instalment is overdue if it is not paid within 21 days after the date fixed for its payment in the undertaking.

(2)  Interest on an instalment that is overdue is payable as on a tax default by a taxpayer under the Taxation Administration Act 1996.

(3)  A person having the benefit of the scheme is not liable, in that capacity, for any penalty under this Act or any interest other than as provided by this section.

83   Overdue instalments

As well as attracting interest, if an instalment is overdue for more than 3 months, the Chief Commissioner (or the Chief Commissioner’s agent) may sue the defaulter to recover, as a debt, the whole of the outstanding balance of the duty and any accrued interest and may, in addition, lodge and maintain a caveat over the subject property until all duty has been paid.

84   Sale or leasing of home or land before all instalments are paid

(1)  If the home or land is sold, leased (wholly or in part) or otherwise disposed of, or if for some other reason the home ceases to be the principal place of residence of the person or both of the persons having the benefit of the scheme:

(a)  any entitlement to a discount under section 87 ceases immediately the home or land is sold, leased or otherwise disposed of or the home so ceases to be the principal place of residence, and

(b)  the whole of the outstanding balance of the duty and any accrued interest becomes immediately payable.

(2)  The Chief Commissioner (or the Chief Commissioner’s agent) may sue the person or persons owing the duty and any interest to recover, as a debt, the amount involved.

85   (Repealed)

Subdivision 2 Discount for full payment of remaining duty

86   Application of Subdivision 2

This Subdivision applies to a person or persons having the benefit of the scheme set out in Subdivision 1 or a first home purchase scheme that operated under the Stamp Duties Act 1920.

87   Discount for full payment of remaining duty

(1)  A person or persons to whom this Subdivision applies may choose at any time to pay out, at a discount of 50%, the total of all instalments of duty remaining at that time.

(2)  There is no entitlement to a discount under this section at any time when an instalment is overdue or any interest payable on an overdue instalment remains unpaid.

Division 2 Flood-prone housing scheme

88   The nature of the scheme

This scheme is intended to assist a person who, as an owner of a home on flood-prone land, has entered into an agreement for the sale of the land to the council of the local government area in which the land is situated and then purchases another home. The scheme enables such a person to choose to pay duty on the agreement for the purchase of the new home by instalments over a period of 5 years (instead of at the time of purchase).

89   Commencement

Agreements for sale or transfer entered into on or after the commencement of this Division are eligible for consideration under the scheme.

90   Eligible persons

A person may apply under the scheme if:

(a)  the person was the owner of at least 50% of the beneficial interest in the land sold or being sold to the council, and

(b)  the person has entered into an agreement for the purchase of a home intended to be occupied as the person’s principal place of residence.

91   Eligible agreements

The agreement for the purchase of the new home is eligible for consideration under the scheme if the amount paid for the home is the full market value. Wholly or partially gifted property is not eligible.

92   Other provisions

(1)  Sections 76 and 79 apply to this scheme in the same way as they apply to First Home Plus.

(2)  Sections 78 and 81–84 apply to this scheme in the same way as they applied to the First Home Purchase Scheme before 1 August 1998.

Division 3 Exemption from or reduction in duty for certain transfers

93   The nature of the scheme

The scheme is intended to provide an exemption from or reduction in duty, at the discretion of the Chief Commissioner, in respect of:

(a)  the transfer of a principal place of residence from a corporation or special trust to certain persons, or

(b)  the transfer of any land owned as at 31 December 1986 by a special trust from the trust to certain persons.

94   Definitions

In this Division:

corporation has the same meaning as in the Corporations Act 2001 of the Commonwealth.

land includes any estate or interest in land.

land tax has the same meaning as in the Land Tax Management Act 1956.

principal shareholder in a corporation means:

(a)  any person (other than a corporation) whose voting entitlement (whether or not through the holding of shares) in the corporation is 50% or more, or

(b)  any person (other than a corporation) who has a voting entitlement (whether or not through the holding of shares) in the corporation where all the persons who have a voting entitlement in the corporation have an equal voting entitlement.

shareholder includes member.

special trust has the same meaning as in the Land Tax Management Act 1956.

voting entitlement has the meaning given by section 95.

95   Meaning of “voting entitlement”

(1)  A person’s voting entitlement in a corporation is that proportion of the total voting rights of all shareholders entitled to vote at general meetings of the corporation which the person is entitled to exercise, as a shareholder, at general meetings of the corporation.

(2)  A person is to be considered to have a voting entitlement in a corporation (corporation A) if the person has a voting entitlement in another corporation (corporation B) which itself has a voting entitlement in corporation A.

(3)  In a case to which subsection (2) applies, the person’s voting entitlement in corporation A is the proportion which results from multiplying the person’s voting entitlement in corporation B by corporation B’s voting entitlement in corporation A.

(4)  If a person has a voting entitlement in the same corporation under different provisions of this section, or under different applications of the same provision of this section, the person’s voting entitlement in the corporation is the aggregate of those entitlements.

(5)  In determining a person’s voting entitlement for the purposes of this section, proxies and other authorities to vote held by a shareholder are to be disregarded.

96   Transfer by corporation of principal place of residence to principal shareholder or spouse

(1)  A transfer of land by a corporation is eligible for exemption under this Division if:

(a)  the corporation owned the land on 11 September 1990, and

(b)  the transferee or each of the transferees is a principal shareholder in the corporation or the spouse of such a principal shareholder (whether or not the principal shareholder is one of the transferees), and

(c)  had the transferee or each of the transferees been an owner of the land within the meaning of the Land Tax Management Act 1956 on 31 December that last preceded the date of the transfer, the land would, by the operation of section 10 (1) (r) of the Land Tax Management Act 1956, be exempt from land tax in respect of the year in which the transfer took effect, or would be so exempt but for the operation of the Premium Property Tax Act 1998.

(2)  If land is transferred by a corporation to two or more persons jointly, each of those persons is, for the purposes of this section (but without affecting any entitlement to be considered to be a principal shareholder apart from this subsection), to be considered to be a principal shareholder in the corporation if:

(a)  each of the persons has a voting entitlement in the corporation, and

(b)  the aggregate of the voting entitlements in the corporation of each of those persons would be sufficient to qualify any one person as a principal shareholder in the corporation.

97   Transfer of principal place of residence by special trust to beneficiary etc

A transfer of land subject to a special trust is eligible for exemption under this Division if:

(a)  the land was subject to the special trust on 11 September 1990, and

(b)  the transferee or each of the transferees was:

(i)  the settler of the land or the person who actually paid the purchase money for the land when the land was acquired by the trustee under the trust, or

(ii)  a beneficiary of the special trust immediately before the transfer took effect and a beneficiary of the trust when the land was acquired by the trustee under the trust, or

(iii)  the spouse of a person referred to in subparagraph (i) or (ii), and

(c)  the transferee or each of the transferees will hold the land beneficially, and

(d)  had the transferee or each of the transferees been an owner of the land within the meaning of the Land Tax Management Act 1956 on 31 December that last preceded the date of the transfer, the land transferred would, by the operation of section 10 (1) (r) of the Land Tax Management Act 1956, be exempt from land tax in respect of the year in which the transfer took effect, or would be so exempt but for the operation of the Premium Property Tax Act 1998.

98   Transfer of principal place of residence by corporation to beneficiary of special trust

A transfer of land by a corporation (not acting in the capacity of a trustee) is eligible for exemption under this Division if:

(a)  the corporation owned the land on 11 September 1990, and

(b)  the transferee or each of the transferees is a person, or the spouse of a person, who is a beneficiary under a special trust and was a beneficiary under the trust when the land was acquired by the corporation, and

(c)  the trustee under the special trust is a principal shareholder in the corporation (or would, if the trustee were not a corporation, be a principal shareholder in the corporation) at the time of the transfer, and

(d)  had the transferee or each of the transferees been the owner within the meaning of the Land Tax Management Act 1956 on 31 December that last preceded the date of the transfer, the land transferred would, by the operation of section 10 (1) (r) of the Land Tax Management Act 1956, be exempt from land tax in respect of the year in which the transfer took effect, or would be so exempt but for the operation of the Premium Property Tax Act 1998.

99   Transfer by special trust to corporation

(1)  A transfer of land to a corporation by a person in the person’s capacity as trustee of a special trust is eligible for exemption under this Division if:

(a)  the land was subject to the special trust on, and at all times between, 31 December 1986 and 11 September 1990, and

(b)  section 160ZZN (Transfer of asset to wholly-owned company) of the Commonwealth Income Tax Assessment Act 1936 applies to the disposal of land effected by the transfer, and

(c)  pursuant to that section, Part IIIA (Capital Gains and Capital Losses) of that Act (except that section) does not apply to that disposal.

(2)  Chapter 3 (Certain transactions treated as transfers) does not apply to the issue or allotment of shares in a corporation pursuant to a transfer for which an exemption from the payment of duty is granted under this Division.

100   Transfer of land not used and occupied solely as a principal place of residence

If:

(a)  a transfer of land would be eligible for exemption under section 96, 97 or 98 but for the fact that the land is not land to which section 96 (1) (c), 97 (d) or 98 (d) applies because it was not used and occupied solely as a principal place of residence at the relevant time, and

(b)  the land value of the land was entitled to be reduced under section 9C of the Land Tax Management Act 1956 at the relevant time,

the amount on which the transfer is to be charged with ad valorem duty is to be reduced in the same proportion as the land value was entitled to be reduced under section 9C of the Land Tax Management Act 1956.

101   Making of applications

(1)  An application under this Division is to be made to the Chief Commissioner in a form approved by the Chief Commissioner.

(2)  If the land to which the transfer relates is or includes land under the Real Property Act 1900, the application must be accompanied by an undertaking from the transferee in a form approved by the Chief Commissioner that:

(a)  the duty that would be payable on the transfer but for the granting of an exemption under this Division will be paid if the transferee does not become the registered proprietor of the land within 3 months (or such longer period as the Chief Commissioner may at any time determine and notify in writing to the transferee) after the transfer is stamped as exempt from the payment of duty, and

(b)  the transferee will, within 1 month after becoming the registered proprietor of the land (or such longer period as the Chief Commissioner may at any time determine and notify in writing to the transferee), provide evidence of that fact to the satisfaction of the Chief Commissioner.

102   Determination of applications

(1)  An application is to be determined solely at the discretion of the Chief Commissioner whose decision is final.

(2)  An application is not to be granted unless the Chief Commissioner is satisfied that all land tax payable in respect of the land (including any additional land tax payable by way of penalty or otherwise) has been paid.

(3)  If the application is granted, the Chief Commissioner is to stamp the transfer as exempt from the payment of duty.

103   Reassessment of duty if undertaking not met

If a requirement of an undertaking from a transferee is not met, the Chief Commissioner may reassess the duty payable on the transfer as if this Division does not apply.

104   Application of scheme to company titles

This Division applies to the transfer of shares in a private company or units in a private unit trust scheme, the ownership of which entitles the owner to the exclusive possession, or substantially exclusive possession, of a dwelling in a building containing more than one separate dwelling, in the same way as it applies to a transfer of land, with such modifications as may be necessary.