Duties Act 1997 No 123
Historical version for 29 November 2002 to 31 December 2002 (accessed 21 December 2014 at 00:41) Current version
Chapter 2Part 8

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72   (Repealed)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.
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