Duties Act 1997 No 123
Historical version for 26 June 2009 to 30 June 2009 (accessed 20 December 2014 at 10:24) Current version

Part 1 Preliminary

163   Overview

This Chapter charges duty on certain transactions that are not “dutiable transactions” under Chapter 2.
Note. Duty is chargeable under Part 2 on the acquisition by a person of an interest in a land rich landholder at the same rate as the transfer duty chargeable under Chapter 2.

163A   Meaning of “landholder” and related expressions

(1)  For the purposes of this Chapter, a landholder is any of the following:
(a)  a private unit trust scheme,
(b)  a wholesale unit trust scheme,
(c)  a private company.
Note. Private unit trust scheme, wholesale unit trust scheme and private company are defined in the Dictionary.
(2), (3)  (Repealed)

163B   Meaning of “land rich”

(1)  For the purposes of this Chapter, a landholder 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 60% or more of the unencumbered value of all its property.
(2)  In calculating the unencumbered value of the property of a landholder for the purposes of subsection (1), property of any of the following kinds is not counted:
(a)  cash, whether in Australian or other currency,
(b)  money on deposit with any person, negotiable instruments or debt securities,
(c)  loans that, according to their terms, are to be repaid on demand by the lender or within 12 months after the date of the loan,
(d)  if the landholder is a private unit trust scheme or a wholesale unit trust scheme, loans to persons who, in relation to a trustee or beneficiary of the scheme, are associated persons,
(e)  if the landholder is a private company, loans to persons who, in relation to the company or to a majority shareholder or director of the company, are associated persons,
(f)  land use entitlements,
(g)  units or shares in a linked entity of the landholder,
(h)  property consisting of an interest as a beneficiary in a discretionary trust (within the meaning of section 163U).
Note. Associated person, land use entitlement and majority shareholder are defined in the Dictionary.
(3)  In addition to subsection (2), property is not to be counted in calculating the unencumbered value of the property of a landholder for the purposes of subsection (1) if the landholder 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.

163C   What are the “land holdings” of a landholder?

(1)  For the purposes of this Chapter, a land holding is an interest in land other than the estate or interest of a mortgagee, chargee or other secured creditor or a profit à prendre. An interest in land, however:
(a)  is not a land holding of a unit trust scheme unless the interest is held by the trustees in their capacity as trustees of the scheme, and
(b)  is not a land holding of a private company unless the interest of the private company in the land is a beneficial interest.
(2)  This section is in aid of, but does not limit, the operation of any provision of this Chapter providing for constructive ownership of interests.

163D   What are “interests” and “significant interests” in landholders?

(1)  For the purposes of this Chapter, a person has an interest in a landholder if the person has an entitlement (otherwise than as a creditor or other person to whom the landholder is liable) to a distribution of property from the landholder on a winding up of the landholder or otherwise.
(2)  A person who, by virtue of subsection (1), has an interest in a landholder has a significant interest in the landholder if the person, in the event of a distribution of all the property of the landholder immediately after the interest was acquired, would be entitled to:
(a)  in the case of a private unit trust scheme—20% or more of the property distributed, or
(b)  in the case of a landholder other than a private unit trust scheme—50% or more of the property distributed.
(3)  An interest in a landholder is not counted if the interest concerned:
(a)  is an interest in a unit trust scheme acquired before 10 June 1987, or
(b)  is an interest in a private company acquired before 21 November 1986, or
(c)  was acquired at a time when the landholder did not hold land in New South Wales.
(4)  In this section, person includes a landholder.

163DA   Meaning of “associated person”

(1)  Without limiting the meaning of associated person in the Dictionary, a public company and a subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of a public company are taken to be associated persons for the purposes of this Chapter.
(2)  However, the responsible entity for a managed investment scheme and the responsible entity for another managed investment scheme are considered to be associated persons for the purposes of this Chapter only if a person who is a member of one scheme and is beneficially entitled to more than 20% of the property to which the scheme relates is also a member of the other scheme and is beneficially entitled to more than 20% of the property to which that other scheme relates.
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