Duties Act 1997 No 123
Historical version for 30 January 2012 to 29 March 2012 (accessed 25 November 2014 at 09:32) Current version
Chapter 2Part 6

Part 6 Concessional rates of duty

Division 1 Trusts

54   Change in trustees

(1)  In this section:

licensed trustee company means a licensed trustee company within the meaning of Chapter 5D of the Corporations Act 2001 of the Commonwealth.

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)  a licensed trustee company in its capacity as trustee or administrator of a deceased estate, and
(b)  the trustee of a complying superannuation fund, within the meaning of section 42 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, in its capacity as trustee of that fund.

(2)  Duty of $50 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.
(2A)  Duty of $50 is chargeable in respect of a transfer of dutiable property to a licensed trustee company (that is not a special trustee), to a trustee of a self managed superannuation fund, or to a trustee of a special disability trust, as a consequence of the retirement of a trustee or the appointment of a new trustee, if the Chief Commissioner is satisfied that 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.
(3)  Duty of $50 is chargeable in respect of a transfer of dutiable property to a person other than a licensed trustee company, a special trustee or trustee of a special disability trust 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 $50 is chargeable in respect of a transfer of dutiable 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 dutiable 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.
(3B)  Duty of $50 is chargeable in respect of a vesting of land in New South Wales by, or expressly authorised by, statute law (as referred to in section 8 (1) (b) (vii)) in a person or responsible entity if the Chief Commissioner is satisfied that subsection (2), (2A), (3) or (3A) would apply in respect of the dutiable transaction if it were a transfer of dutiable property.
(4)  Duty of $50 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 $50 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 $50 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.
(3)  Duty of $50 is chargeable in respect of a vesting of land in New South Wales by statute law (as referred to in section 8 (1) (b) (vii)) in a responsible entity if the Chief Commissioner is satisfied that subsection (2) would apply in respect of the dutiable transaction if it were a transfer of dutiable property.
(4)  Duty of $50 is chargeable in respect of a transfer of dutiable property from the sub-custodian of a custodian of the responsible entity of a managed investment scheme to the custodian of the responsible entity of the managed investment scheme.

55   Property vested in an apparent purchaser

(1)  Duty of $50 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 if:
(i)  the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and
(ii)  the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase.
(1A)  For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser.
(1B)  This section applies whether or not there has been a change in the legal description of the dutiable property between the purchase of the property by the apparent purchaser and the transfer to the real purchaser.
Note. For example, if the dutiable property is land, this section continues to apply if there is a change in the legal description of the dutiable property as a consequence of the subdivision of the land.
(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 $50.
(2)  If duty of $50 has been paid on a transfer under subsection (1), the initial transfer to the trustee is also chargeable with duty of $50. The Chief Commissioner must reassess the initial transfer and refund any duty paid in excess of $50 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 $50 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 $500 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 $500 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 $50 is chargeable in respect of an instrument that effects or evidences a dutiable transaction and which:
(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 $50 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 $50 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).

59B   Change in custodians

Duty of $50 is chargeable in respect of a transfer of dutiable property by a custodian of the trustee of a trust to another custodian of the trustee of the trust if:
(a)  there is no change in the beneficial ownership of the dutiable property, and
(b)  the transferee is to hold the dutiable property solely for a trustee as trustee of the trust and there is no contemplation of the dutiable property being held for any other person or being held in any other capacity, and
(c)  the dutiable property was held by the transferor solely for a trustee as trustee of the trust and, since the time when the dutiable property was first transferred to the transferor, no person has held the dutiable property otherwise than solely for a trustee as trustee of the trust.

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   Transfers of property in connection with persons changing superannuation funds

(1)  This section applies to a relevant transfer that occurs in connection with a person:
(a)  ceasing to be a member of, or otherwise ceasing to be entitled to benefits in respect of, a superannuation fund that is a complying superannuation fund or was a complying superannuation fund within the period of 12 months before the transfer was made, and
(b)  becoming a member of, or otherwise becoming entitled to benefits in respect of, another superannuation fund that is also a complying superannuation fund or will, in the opinion of the trustees of both funds concerned, be a complying superannuation fund within 12 months after the transfer is made.
(1A)  For the purposes of this section, each of the following is a relevant transfer:
(a)  a transfer of, or an agreement to transfer, dutiable property from a trustee of a superannuation fund, or a custodian of the trustee, to the trustee of another superannuation fund, or to a custodian of the trustee of another superannuation fund,
(b)  a transfer of, or an agreement to transfer, dutiable property from a trustee of a superannuation fund to a custodian of the trustee, or from a custodian of the trustee of a superannuation fund to the trustee,
(c)  a transfer of, or an agreement to transfer, marketable securities from a trustee of a pooled superannuation trust, made in exchange for a redemption of units in the trust, to the trustee of a superannuation fund, or a custodian of the trustee of a superannuation fund,
(c1)  a transfer of, or an agreement to transfer, marketable securities from the trustee of a superannuation fund, or a custodian of the trustee of a superannuation fund, made in exchange for the issue of units in a pooled superannuation trust, to a trustee of the pooled superannuation trust,
(d)  a transfer of, or an agreement to transfer, marketable securities from a life company or custodian for a life company to the trustee of a superannuation fund or a custodian of the trustee of a superannuation fund if the transfer is made in consideration of the surrender or termination, by the trustee of the superannuation fund of which the person has ceased to be a member, of a policy of life insurance issued by the life company,
(e)  a transfer of, or an agreement to transfer, marketable securities from the trustee of a superannuation fund or a custodian of the trustee of a superannuation fund to a life company or custodian for a life company if the transfer is made in consideration of the issue, by the life company, of a policy of life insurance to the trustee of the superannuation fund of which the person has become a member.
(2)  The duty chargeable on a relevant transfer to which this section applies is ad valorem duty in accordance with this Chapter or $500, whichever is the lesser.
(2A)  This section applies despite section 18 (2) and (3).
(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 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 the person will become a member of, or otherwise become entitled to benefits in respect of, 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 $500, whichever is the lesser, or
(b)  if the dutiable property transferred, or agreed to be transferred, is marketable securities, $10.
(4)  In this section, complying superannuation fund includes a complying approved deposit fund and an eligible rollover fund.

62A   Transfers to self managed superannuation funds

(1)  Duty of $50 is chargeable on a transfer of, or an agreement to transfer, dutiable property from a person (the transferor) to the trustee of a self managed superannuation fund but only if:
(a)  the transferor is the only member of the superannuation fund or the property is to be held by the trustee solely for the benefit of the transferor, and
(b)  the property is to be used solely for the purpose of providing a retirement benefit to the transferor.
(2)  Property held by the trustee of a superannuation fund is held solely for the benefit of the transferor if:
(a)  the property is held specifically for the benefit of the transferor, as a member of the superannuation fund, and
(b)  the property (or proceeds of sale of the property) cannot be pooled with property held for another member of the superannuation fund, and
(c)  no other member of the superannuation fund can obtain an interest in the property (or the proceeds of sale of the property).
(3)  Duty of $500 is chargeable on a transfer of, or an agreement to transfer, dutiable property from a person (the transferor) to the custodian of the trustee of a self managed superannuation fund but only if:
(a)  the transferor is the only member of the superannuation fund, or
(b)  the property is to be used solely for the purpose of providing a retirement benefit to the transferor.
(4)  This section does not apply in respect of a transfer of, or an agreement to transfer, dutiable property if, as a result of the transfer, the superannuation fund will cease to be a complying superannuation fund.

Division 3 Miscellaneous

63   Deceased estates

(1)  Duty of $50 is chargeable in respect of:
(a)  a transfer of dutiable property 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, or
(iii)  an appropriation of the property of the deceased person (as referred to in section 46 of the Trustee Act 1925) in or towards satisfaction of the beneficiary’s entitlement under the trusts contained in the will of the deceased person or arising on intestacy, 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, and
(d)  a declaration by an executor of a will under section 11 of the Trustee Act 1925 if the Chief Commissioner is satisfied that the declaration is consistent with the entitlements of beneficiaries under the trusts contained in the will.
(2)  If a transfer of dutiable property is made by a legal personal representative of a deceased person to a beneficiary under an agreement (whether or not in writing) between the beneficiary and one or more other beneficiaries to vary the trusts contained in a will of the deceased person or arising on intestacy, the dutiable value of the dutiable property is to be reduced by the portion of the dutiable value that is referable to the dutiable property to which the beneficiary had an entitlement arising under the trusts contained in the will or arising on intestacy.
(3)  Section 25 does not apply to a dutiable transaction to which subsection (2) applies.
(4)  If the duty chargeable in respect of a transfer, consent or transmission application referred to in subsection (1) would, but for that subsection, be less than $50, the duty chargeable is that lesser amount.
(5)  This section is subject to section 273, which provides for a minimum duty of $10.

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 $50 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 on the transaction by which 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,
(iv)  no duty was chargeable on the acquisition of the land use entitlement by the transferee because of section 78A (which relates to the First Home—New Home scheme).

64AA   Enlargement of the term in land into fee simple

The duty chargeable on the enlargement of a term in land into a fee simple under section 134 of the Conveyancing Act 1919 is $50 if:
(a)  the Chief Commissioner is satisfied that the grant of the term in the land, and subsequent enlargement, are not part of a scheme to avoid duty on a transfer of land, and
(b)  one of the following applies:
(i)  ad valorem duty was paid by the transferee on the transaction by which the term in the land was acquired,
(ii)  section 55, 57 or 63 applied to the acquisition of the term in the land, and duty was paid as provided for by the section that applied,
(iii)  no duty was chargeable on the acquisition of the term in the land 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.
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