Duties Act 1997 No 123
Current version for 28 October 2014 to date (accessed 24 November 2014 at 02:58)
Chapter 2Part 8Division 1

Division 1 First Home—New Home

69   The nature of the scheme

This scheme is intended to help people who are acquiring a new home that is their first home. Under the scheme, 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 January 2012,
(b)  transfers that occur on or after 1 January 2012 (other than transfers made in conformity with an agreement for sale or transfer entered into before 1 January 2012),
(c)  (Repealed)

71   Restrictions on eligibility—previous ownership of residential property or first home concession

(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 is a first home owner.
(2)  A first home owner is an individual:
(a)  who has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner, and
(b)  whose spouse (if any) has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner.
(3)  (Repealed)
(4)  For the purpose of this section, a person is the spouse of another person if:
(a)  they are legally married, or
(b)  they are living together as a couple in a de facto relationship.
(5)  If the Chief Commissioner is satisfied that, at the time of making an application under the scheme, a purchaser or transferee:
(a)  is legally married but not cohabiting with the person to whom the applicant is legally married, and
(b)  has no intention of resuming cohabitation,
the person to whom the purchaser or transferee is legally married is not to be regarded as the applicant’s spouse.
(6)  For the purpose of determining eligibility, the ownership at any time of residential property, or a previous application under the scheme, is to be disregarded if the residential property owned by the purchaser or transferee is or was vested in the purchaser or transferee on trust, or as an executor under a will, or the application was made by the purchaser or transferee in his or her capacity as trustee or executor.
(7)  The fact that a purchaser or transferee under an agreement or transfer is not a first home owner does not prevent the agreement or transfer from being eligible under the scheme if:
(a)  one or more of the purchasers or transferees under the agreement or transfer is a first home owner, and
(b)  the total ownership share in the property to which the application relates that is being acquired by purchasers or transferees who are not first home owners does not exceed 5%.
Note. A purchaser or transferee is not considered to be a first home owner unless both the purchaser or transferee, and his or her spouse (if any), have not owned residential property before. See subsection (2).
(8)  For the purposes of this section, a person who is, or has at any time been, the holder of a leasehold interest granted by the Commonwealth in residential property in the Australian Capital Territory is taken to own or have owned that residential property.

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:
(a)  the trustee is the guardian of a person under a legal disability and the person under a legal disability is a first home owner who will be occupying the home to which the agreement or transfer relates as a principal place of residence in accordance with the residence requirement under section 76, or
(b)  the trustee is an apparent purchaser of a kind referred to in section 55 and the real purchaser is a first home owner.
(3)  A purchaser or transferee under an agreement or transfer who is under 18 years of age is not eligible.
(4)  Despite subsection (3), the Chief Commissioner may determine that a purchaser or transferee under 18 years of age is eligible if the Chief Commissioner is satisfied that:
(a)  the home to which the agreement or transfer relates will be occupied by the purchaser or transferee as his or her principal place of residence in accordance with the residence requirement under section 76, and
(b)  the application does not form part of a scheme to circumvent limitations on, or requirements affecting, eligibility under the scheme.
(5)  A purchaser or transferee under an agreement or transfer is not eligible unless the person is an Australian citizen or a permanent resident, subject to subsection (6).
(6)  If there is more than one purchaser or transferee under an agreement or transfer and at least one of them is a first home owner who is an Australian citizen or permanent resident, the other purchasers or transferees are exempt from compliance with subsection (5).
(7)  (Repealed)

73A   Application of eligibility criteria to joint purchasers and transferees

(1)  If there is more than one purchaser or transferee under an agreement or transfer, they may apply under the scheme, but the agreement or transfer will be eligible under the scheme only if all of the purchasers or transferees are eligible under the scheme.
(2)  This section is subject to section 78B.
Note. Section 78B allows a limited duty concession under the scheme to be claimed in respect of residential property that is purchased subject to a shared equity arrangement between a first home owner and a person who is not a first home owner.

74   Eligible agreements or transfers

(1)  The agreement or transfer must be for the acquisition of a new home that is 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)  $650,000 if the property has a private dwelling built on it, or
(b)  $450,000 if the property 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.
(4)  (Repealed)

74A   Application of scheme to multiple occupancy contracts

(1)  The provisions of this Part apply in respect of an agreement for the sale or transfer of a parcel of land on which 2 or more homes are built or being built (a multiple occupancy contract) as if:
(a)  the multiple occupancy contract were a separate agreement or transfer in relation to each home built or to be built on the land as an exclusive occupancy, and
(b)  the purchasers or transferees who will be entitled to occupy a home as an exclusive occupancy are the only purchasers or transferees under the separate agreement or transfer relating to the home.
(2)  Any such separate agreement or transfer is taken to be an agreement or transfer for the whole of the property if it is for all of the land to be used or occupied for the purposes of the exclusive occupancy.
(3)  In this Part, a reference to the dutiable property the subject of the agreement or transfer is a reference to that part of the land that is to be used or occupied for the purposes of the exclusive occupancy.
(4)  For the purposes of this section, a home that is being acquired or built under a multiple occupancy contract is an exclusive occupancy only if the Chief Commissioner is satisfied that a person is or will be entitled to occupy the home as a place of residence to the exclusion of other persons who, under the contract, are to occupy the other home or homes built or being built on the relevant land.

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 by the first home owner or one of the first home owners who is acquiring it as a principal place of residence for a continuous period of at least 6 months, with that occupation starting within 12 months (or such longer period as the Chief Commissioner may approve) after completion of the agreement or transfer. This requirement is referred to as the residence requirement.
(2)  The Chief Commissioner may, if satisfied there are good reasons to do so in a particular case:
(a)  modify the residence requirement by approving a shorter period of occupation by a first home owner, or
(b)  exempt a first home owner from the requirement to comply with the residence requirement.
(3)  In the case of an agreement or transfer for the acquisition of a vacant block of residential land, it is sufficient that the Chief Commissioner is satisfied that the vacant block is intended to be used as the site of a home to be occupied by the first home owner or one of the first home owners who is acquiring it as a principal place of residence.
(4)  (Repealed)
(5)  For the purpose of this section, an agreement or transfer is completed when a purchaser or transferee becomes entitled to possession of the home and, if the interest in the land acquired by the purchaser or transferee is registrable under a law of the State, the interest is so registered.
(6)  The residence requirement does not apply to an application under the scheme if, on the date of the agreement or transfer:
(a)  the applicant or, if there are 2 or more of them, at least one of the applicants is a member of the Permanent Forces of the Australian Defence Force (within the meaning of the Defence Act 1903 of the Commonwealth), and
(b)  the applicant or, if there are 2 or more of them, each of the applicants is enrolled to vote in State elections (under the Parliamentary Electorates and Elections Act 1912).

76A   Approval of application in advance of satisfaction of residence requirement

(1)  The Chief Commissioner may approve an application in anticipation of compliance with the residence requirement under section 76 if the Chief Commissioner is satisfied that each applicant required to comply with the residence requirement intends to occupy the home as his or her principal place of residence for a continuous period of at least 6 months, with that occupation starting within 12 months after completion of the agreement or transfer or within a longer period approved by the Chief Commissioner.
(2)  If an application is approved in anticipation of compliance with the residence requirement, the approval is given on condition that, if the residence requirement is not complied with, the applicant must within 14 days after the end of the period allowed for compliance:
(a)  give written notice of that fact to the Chief Commissioner, and
(b)  pay the relevant duty to the Chief Commissioner.
(3)  The relevant duty is the difference between the total amount of duty that would have been payable on the transactions and instruments the subject of the application, if they had not been eligible under the scheme, and the total amount of duty (if any) paid in respect of those transactions and instruments.
(4)  A person who fails to comply with the condition prescribed by this section is guilty of an offence.

Maximum penalty: 50 penalty units.

(5)  A failure to comply with the condition prescribed by this section is a tax default for the purposes of the Taxation Administration Act 1996.

77   (Repealed)

78   Making of applications

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

78A   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)  $550,000 if the property has a private dwelling built on it, or
(b)  $350,000 if the property 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 has a private dwelling built on it—at the rate of 24.74% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $136,070, or
(b)  if the property comprises a vacant block of residential land—at the rate of 15.74% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $55,090.
(3)  This section does not apply in respect of an agreement or transfer that is eligible under the scheme only for a shared equity concession.

78B   Special concession for shared equity arrangements

(1)  If there is more than one purchaser or transferee under an agreement or transfer, and one or more of them is a first home owner, but the agreement or transfer is not eligible under the scheme because one or more of the other purchasers or transferees is not eligible under the scheme, the agreement or transfer may still be eligible for a duty concession under the scheme (a shared equity concession).
(2)  In order to be eligible for a shared equity concession:
(a)  the purchasers or transferees who are first home owners must acquire not less than a 50% share in the ownership of the property, and
(b)  the agreement or transfer must be an agreement or transfer that would be eligible under the scheme if the first home owners were the sole purchasers or transferees under the agreement or transfer.
(3)  If an application concerning an agreement or transfer that is eligible under the scheme for a shared equity concession is approved, duty is chargeable as follows:


where:

D is the duty chargeable.

R is the duty that would be chargeable on the dutiable value of the property if this Division did not apply in respect of the agreement or transfer.

E is the ownership share in the property of the first home owner or owners, expressed as a percentage.

C is the duty (if any) that would be chargeable under section 78A on the agreement or transfer if that section applied in respect of the agreement or transfer.

(4)  Despite anything to the contrary in this section, an agreement or transfer under which one or more of the purchasers or transferees is a company is not eligible under the scheme for a shared equity concession if the Chief Commissioner is satisfied that the application relating to that agreement or transfer should not be approved for any good reason.
(5)  To avoid doubt, a reference in this Division (except section 78A) to an application that has been approved under the scheme includes an application that has been approved under the scheme because of eligibility for a shared equity concession.

79   Reassessment of duty payable where duty concession wrongly applied

(1)  The Chief Commissioner may reassess the duty chargeable in respect of an agreement or transfer that is initially approved under the scheme if the Chief Commissioner forms the opinion that the agreement or transfer is not eligible under the scheme (because of failure to comply with the residence requirement or otherwise).
(2)  The Chief Commissioner may issue a notice of assessment, based on the reassessment, for the duty chargeable in respect of the agreement or transfer.

80   Charge on land for duty liability of applicant

(1)  Any duty liability that an applicant has under the scheme in respect of an agreement or transfer is a charge on the applicant’s interest in the land that is the subject of the agreement or transfer.
(2)  An applicant has a duty liability under the scheme in respect of an agreement or transfer if the applicant is required to pay an amount of duty to the Chief Commissioner, in respect of an agreement or transfer that is initially approved under the scheme:
(a)  under a condition of approval referred to in section 76A, or
(b)  under a notice of assessment referred to in section 79.
(3)  The charge created by this section gives the Chief Commissioner an interest in the land and, accordingly, the Chief Commissioner may lodge a caveat in respect of the land under the Real Property Act 1900 to protect that interest.
(4)  The caveat must be withdrawn when the amount of the duty liability has been paid.
(5)  The amount of the duty liability is the amount of duty that the applicant is required to pay to the Chief Commissioner in respect of the relevant agreement or transfer, together with any interest or penalty tax payable.
(6)  In this section:

applicant includes a former applicant.

80AA   (Renumbered as sec 78B)

80A   Definitions

In this Division:

first home owner has the meaning given by section 71.

guardian of a person under a legal disability includes a trustee who holds property on trust for the person under an instrument of trust or by order or direction of a court or tribunal.

home means a building (affixed to land) that:

(a)  may lawfully be used as a place of residence, and
(b)  is, in the Chief Commissioner’s opinion, a suitable building for use as a place of residence.

new home means a home that has not been previously occupied or sold as a place of residence, and includes a substantially renovated home.

notice of assessment means a notice of assessment under the Taxation Administration Act 1996.

residence requirement—see section 76.

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.

shared equity concession has the meaning given by section 78B.

substantially renovated home means a home that:

(a)  is new residential premises within the meaning of section 40-75 (1) (b) of the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth, and
(b)  as renovated, has not been previously occupied or sold as a place of residence.

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