Division 3 Exemption from or reduction in duty for certain transfers
The scheme is intended to provide an exemption from or reduction in duty 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.
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.(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.
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.
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) Division 122 of Part 3-3 of the Commonwealth Income Tax Assessment Act 1997 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) and Chapter 4 (Acquisition of interests in landholders) do 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 or 9D 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 or 9D of the Land Tax Management Act 1956.
(1) An application under this Division is to be made to the Chief Commissioner in an approved form.(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 an approved form 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) (Repealed)(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 land use entitlements
This Division applies to the transfer of a land use entitlement in the same way as it applies to a transfer of land, with such modifications as may be necessary.