Duties Act 1997 No 123
Historical version for 26 June 2009 to 30 June 2009 (accessed 27 November 2014 at 00:44) Current version
Chapter 2Part 8Division 1

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 4 April 2004,
(b)  transfers that occur on or after 4 April 2004 (other than transfers made in conformity with an agreement for sale or transfer entered into before 4 April 2004),
(c)  mortgages over land the subject of those agreements or transfers.

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(3)  (Repealed)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)  Despite the other provisions of this section, the ownership at any time of another residential property, or a previous application under the scheme, is to be disregarded if:
(a)  the other 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, or
(b)  the ownership share in the property to which the application relates that is being acquired by purchasers or transferees who own or have owned other residential property, or have previously been a party to an application, does not exceed 5%.

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)  In this section:

Australian citizen means an Australian citizen as defined in the Australian Citizenship Act 1948 of the Commonwealth.

permanent resident means:

(a)  the holder of a permanent visa within the meaning of section 30 of the Migration Act 1958 of the Commonwealth, or
(b)  a New Zealand citizen who holds a special category visa within the meaning of section 32 of the Migration Act 1958 of the Commonwealth.

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 80AA.
Note. Section 80AA 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 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 or, if the property is a parcel of land on which 2 or more homes are built, or are being built, for that part of the land that is an exclusive occupancy.
(3)  The dutiable value of the dutiable property that is the subject of the agreement or transfer must be less than:
(a)  $600,000 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)  For the purposes of this section, land is an exclusive occupancy only if the Chief Commissioner is satisfied that the person acquiring the land will be entitled to occupy a home that is built, or being built, on the land as a place of residence to the exclusion of other persons who occupy or are to occupy the other home or homes built or being built on the parcel of 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)  (Repealed)

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.

77   Eligible mortgages

(1)  A mortgage is eligible if:
(a)  it is given to assist the financing of a purchase under an agreement or transfer that is eligible under the scheme, and
(b)  the purchaser or purchasers under the agreement or transfer are eligible under the scheme (including if the agreement or transfer is eligible under the scheme for a shared equity concession).
(2)  The mortgage must be over the property purchased.
(3)  In the case of a property that 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).
(4)  In the case of a property that 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) (b), 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).
Note. See also section 221B, which extends a general mortgage duty exemption to all mortgages associated with owner occupied housing, and takes effect on and from 1 September 2007.

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.

79   (Repealed)

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)  $500,000 if the property has a private dwelling built on it, or
(b)  $300,000 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 22.49% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $112,450, or
(b)  if the property comprises a vacant block of residential land—at the rate of 10.49% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $31,470.
(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.

80AA   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 Subdivision 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 80 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 Subdivision (except section 80) 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.

80A   Definitions

In this Subdivision:

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.

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 80AA.

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.
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