Part 4Part 4 Exemptions and concessions
An acquisition by a person of an interest in a landholder is an exempt acquisition:(a) if the interest was acquired in the person’s capacity as:(i) a receiver or trustee in bankruptcy, or(ii) a liquidator, or(iii) an executor or administrator of the estate of a deceased person, or(b) if the interest was acquired solely as the result of the making of a compromise or arrangement with creditors under Part 5.1 of the Corporations Act 2001 of the Commonwealth that has been approved by a court, or(c) if the interest concerned is acquired solely from a pro rata increase or decrease in the interests of all unit holders or shareholders, or(d) if the interest was acquired solely as the result of the distribution of the estate of a deceased person, whether effected in the ordinary course of execution of a will or codicil or administration of an intestate estate or as the result of the order of a court, made under Chapter 3 of the Succession Act 2006 or otherwise, varying the application of the provisions of a will or codicil or varying the application of the rules governing the distribution of the property of an intestate estate, or(e) if the land holding of the landholder comprises land used for primary production and the Chief Commissioner is satisfied that, had the landholder transferred the land to the person acquiring an interest as a result of the acquisition immediately before that acquisition, the transfer of the land would not be chargeable with duty under this Act because of the application of section 274, or(f) if the acquisition of an interest in a landholder would be chargeable with duty of $50 under section 54 or 54A if the property being acquired were land in New South Wales and the Chief Commissioner is satisfied that the acquisition is not part of a scheme to avoid duty under this Chapter, or(g) if the interest concerned was acquired before the landholder held land in New South Wales, or(h) if the interest concerned is an interest in a private unit trust scheme acquired before 10 June 1987, or(i) if the interest concerned is an interest in a private company acquired before 21 November 1986, or(j) if the interest concerned is an interest in a private landholder acquired before 1 July 2009 and, at the time of its acquisition, the private landholder was not a land rich landholder within the meaning of Chapter 4A (as in force before its repeal by the State Revenue Legislation Further Amendment Act 2009), or(k) if the interest concerned is an interest in a public landholder acquired before 1 July 2009.
163B Exemption—break-up of marriages and other relationships
(1) An acquisition by a person of an interest in a landholder is an exempt acquisition:(a) if the interest was acquired by the parties to a marriage that is dissolved or annulled, or in the opinion of the Chief Commissioner has broken down irretrievably, or by either of them, or by a child or children of either of them or a trustee of such a child or children, as a result of a transfer made in accordance with:(i) a financial agreement made under section 90B, 90C or 90D of the Family Law Act 1975 of the Commonwealth that, under that Act, is binding on the parties to the agreement, or(ii) an order of a court made under that Act, or(iii) an agreement that the Chief Commissioner is satisfied has been made for the purpose of dividing matrimonial property as a consequence of the dissolution, annulment or breakdown of the marriage, or(b) if the interest was acquired by the parties to a de facto relationship that has, in the opinion of the Chief Commissioner, broken down irretrievably, or by either of them, or by a child or children of either of them or a trustee of such a child or children, as a result of a transfer made in accordance with:(i) a financial agreement made under section 90UB, 90UC or 90UD of the Family Law Act 1975 of the Commonwealth that, under that Act, is binding on the parties to the agreement, or(ii) an order of a court made under that Act, or(c) if the interest was acquired by the parties to a domestic relationship that has, in the opinion of the Chief Commissioner, been terminated, or by either of them, or by a child or children of either of them or a trustee of such a child or children, as a result of a transfer made in accordance with:(i) an order of a court made under the Property (Relationships) Act 1984, or(ii) a termination agreement within the meaning of section 44 of the Property (Relationships) Act 1984 that has been certified in accordance with section 47 of that Act, orNote. Domestic relationship (defined in the Dictionary) has the same meaning as in the Property (Relationships) Act 1984.(d) to the extent that:(i) for purposes of or ancillary to the acquisition of an interest referred to in paragraph (a), (b) or (c), the acquisition consists of the transfer of a share that is matrimonial property or relationship property to a person not a party to the relevant marriage or relationship, in order to comply with a requirement of or prescribed under the Corporations Act 2001 of the Commonwealth, or(ii) the acquisition consists of a declaration of trust by the transferee of a share transferred as referred to in subparagraph (i) for the benefit of a party to the marriage or relationship.(2) If:(a) duty was paid on the acquisition of matrimonial property by the parties to a marriage or by either of them, or by a child or children of either of them or a trustee of such a child or children, and(b) the interest acquired was acquired as a result of a transfer made in accordance with an agreement or order referred to in subsection (1) (a), and(c) the marriage has been dissolved or annulled or has broken down irretrievably,the person who paid the duty is entitled to a refund of it.(3) If:(a) duty was paid on the acquisition of relationship property by the parties to a de facto relationship or by either of them, or by a child or children of either of them or a trustee of such a child or children, and(b) the interest acquired was acquired as a result of a transfer made in accordance with an agreement or order referred to in subsection (1) (b), and(c) the de facto relationship has broken down,the person who paid the duty is entitled to a refund of it.(4) If:(a) duty was paid on the acquisition of relationship property by the parties to a domestic relationship or by either of them, or by a child or children of either of them or a trustee of such a child or children, and(b) the interest acquired was acquired as a result of a transfer made in accordance with an order or agreement referred to in subsection (1) (c), and(c) the domestic relationship has been terminated,the person who paid the duty is entitled to a refund of it.(5) A party to a marriage, de facto relationship or domestic relationship may provide a statement to the Chief Commissioner, in the form of a statutory declaration, to the effect that:(a) in the case of a marriage:(i) the party intends to apply for a dissolution or an annulment of the marriage, or(ii) the parties to the marriage have separated, and there is no reasonable likelihood of cohabitation being resumed, or(b) in the case of a de facto relationship or domestic relationship, the relationship has broken down or been terminated.(6) The Chief Commissioner is required to have regard to any such statement in exercising his or her functions under this section.(7) Subsection (6) does not limit the functions of the Chief Commissioner under section 72 of the Taxation Administration Act 1996.(7A) This section applies in respect of vested bankruptcy property (within the meaning of the Family Law Act 1975 of the Commonwealth) of a party to a marriage or de facto relationship in the same way as it applies to matrimonial property or relationship property.(8) In this section:marriage includes a void marriage.
matrimonial property of a marriage means property of the parties to the marriage or of either of them.
party to a marriage includes a person who was a party to a marriage that has been dissolved or annulled, in Australia or elsewhere.
relationship property of a de facto relationship or domestic relationship means property of the parties to the relationship or of either of them.
163D Concession for primary producers—continuation of land rich requirement
(1) Duty is chargeable under this Chapter in respect of an acquisition of an interest in a primary producer only if, when the acquisition is made, the primary producer is land rich.(2) For the purposes of this section, a primary producer is a landholder whose land holdings in all places, whether within or outside Australia, wholly or predominantly comprise land used for primary production or land that would be considered to be land used for primary production if it were land in New South Wales.(3) A primary producer is land rich if:(a) it has land holdings in New South Wales with an unencumbered value of $2,000,000 or more, and(b) its land holdings in all places, whether within or outside Australia, comprise 80% or more of the unencumbered value of all its property.(4) If at any time within the period of 5 years after an acquisition of an interest in a primary producer is made, the landholder in whom the acquisition is made ceases for any length of time to be a primary producer:(a) the person who made the acquisition must immediately notify the Chief Commissioner:(i) that the landholder has ceased to be a primary producer, and(ii) of the date on which the landholder ceased to be a primary producer, and(b) duty is chargeable under this Chapter in respect of the acquisition on the date on which the landholder ceased to be a primary producer, and(c) the Chief Commissioner must make an assessment of the duty so chargeable.(5) Property is not to be counted in calculating the unencumbered value of the property of a primary producer for the purposes of this section if the primary producer is unable to satisfy the Chief Commissioner that the property was obtained otherwise than to reduce, for the purposes of this Chapter, the ratio of its land holdings in all places, whether within or outside Australia, to the unencumbered value of all its property.
163E Concession for acquisitions securing financial accommodation
(1) If the person lodging an acquisition statement under this Chapter in relation to the acquisition of an interest in a landholder:(a) informs the Chief Commissioner at the time the statement is lodged that the acquisition is effected for the purpose of securing financial accommodation, and(b) the Chief Commissioner is satisfied that the acquisition is effected for that purpose,the statement, in so far as it relates to that acquisition, is not chargeable with duty, except as provided by subsection (2).(2) The statement is chargeable with duty at the expiration of the period of 5 years after the date of the acquisition (or such longer period as may be determined by the Chief Commissioner in the particular case) if the interest concerned is not:(a) re-acquired by the person from whom it was acquired, or(b) in the case of an acquisition by way of mortgage, conveyed by the mortgagee to a third person in exercise of the mortgagee’s power of sale,within that period (or that longer period).(3) A person is not required to lodge an acquisition statement with the Chief Commissioner in respect of a re-acquisition by the person of the interest concerned.
163F Concession for redemption and re-issue arrangements
(1) This section applies if:(a) the trustee of a unit trust scheme that is a widely held trust redeems any units in the trust, and(b) the redemption is done for the purpose of re-issuing or re-offering the units for sale, and(c) as a result of the redemption, the scheme would, but for this section, cease to be a widely held trust because a unit holder, individually or together with any associated person, is entitled to more than 20% of the units in the trust.(2) For a period of 30 days beginning on and including the day on which the redemption occurs, the trust is taken to continue to be a widely held trust, but only if the trust continues to have not less than 300 unit holders none of whom, individually or together with any associated person, is entitled to more than 25% of the units of the trust.(3) If, at the end of that 30-day period, a unit holder, individually or together with any associated person, is entitled to more than 20% of the units in the unit trust scheme:(a) the trust is taken to have ceased to be a widely held trust from the beginning of that 30-day period (as if subsection (2) had never applied), and(b) the Chief Commissioner must make an assessment of the duty chargeable under this Act as if the unit trust scheme had ceased to be a widely held trust scheme at the beginning on that 30-day period, and(c) a tax default occurs for the purposes of the Taxation Administration Act 1996 if the whole of any duty assessed under paragraph (b) is not paid to the Chief Commissioner within 3 months after the assessment.
163FA Concession for acquisitions in connection with persons changing superannuation funds
(1) This section applies to a relevant acquisition that results wholly from a relevant transfer and 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 acquisition 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 acquisition is made.(2) For the purposes of this section, each of the following is a relevant transfer:(a) a transfer of 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 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 a share or a unit in a unit trust scheme from the 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,(d) a transfer of a share or a unit in a unit trust scheme 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,(e) a transfer of a share or a unit in a unit trust scheme 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,(f) a transfer of a share or a unit in a unit trust scheme 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.(3) The duty chargeable under this Chapter on a relevant acquisition to which this section applies is $500.(4) In this section, complying superannuation fund includes a complying approved deposit fund and an eligible rollover fund.
163G Significant holdings in goods
If the Chief Commissioner is satisfied that the unencumbered value of all goods in New South Wales of a landholder comprises not less than 90% of the total unencumbered value of all land holdings and goods in New South Wales of a landholder, the Chief Commissioner may disregard the value of the goods in determining the duty chargeable under this Chapter.
163H Discretion to grant exemption or concession
(1) The Chief Commissioner may, if satisfied that the application of this Chapter to an acquisition in a particular case would not be just and reasonable:(a) grant a full exemption in respect of the acquisition, or(b) grant a partial exemption in respect of the acquisition.(2) If the Chief Commissioner grants a full exemption in respect of the acquisition, the acquisition is an exempt acquisition.(3) If the Chief Commissioner grants a partial exemption in respect of the acquisition, the Chief Commissioner may make any reduction in the duty chargeable in respect of the acquisition that the Chief Commissioner considers just and reasonable in the circumstances.