Division 27Subdivision 1 Off market share transfers
96A Duty on certain transfers of shares
(1) The provisions of paragraphs (2), (3), (4) and (5) under the heading “Transfer of Shares” in the Second Schedule to this Act, and of paragraph (f) of the exemptions under that heading, shall be read and construed as including a transfer of shares or of the right to any shares in (or a transfer of a CUFS or IR in respect of) the stock or funds of any NSW company or any corporation or company which being incorporated out of Australia has a register of members in New South Wales wherein such share or right is registered.(1A) A transfer of marketable securities of a NSW company which is registered, recorded or entered on a register of the members of the company lawfully kept in the United Kingdom and which is stamped with ad valorem duty, or is exempt from duty, in accordance with the law of the United Kingdom is not liable to duty under this Act.(2) This section does not apply to a transfer of shares or of the rights to any shares which are deemed to be duly stamped under section 94H or 97AC (3).(3) During the period on and from 16 August 1993 up to and including the day before the date of commencement of subsection (2), as substituted by the State Revenue Legislation (Amendment) Act 1994, subsection (2) as in force during that period does not apply to a transfer of shares unless the transfer:(a) was stamped with ad valorem duty in accordance with the law of a place prescribed for the purposes of section 96B (1A) (a) (i), as in force during that period, or(b) was exempt from duty in such a prescribed place, or(c) was not liable to duty in such a prescribed place.
96B Duty on transfers of listed shares
Notwithstanding any other provision of this Act, if duty is chargeable on a transfer of shares or of the right to any shares (or on a transfer of a CUFS or IRs) to which this Subdivision applies and the shares, CUFS or IRs are quoted on the market operated by Australian Stock Exchange Limited, the rate of duty is the rate specified in the Second Schedule but as if a reference in that Schedule to 60 cents were a reference to 30 cents.
Subdivision 2 Requirement to stamp transfer of marketable securities before registration
97 Transfer of shares liable to duty not to be registered unless duly stamped
(1) A corporation, company or society shall not register, record or enter a transfer, liable to duty, of any marketable security or right thereto in its records:(a) in the case of a transfer to perfect a sale or purchase the details of which have been recorded in accordance with the provisions of section 97AA of this Act:(i) unless a proper instrument of transfer has been delivered to the corporation, company or society, and(ii) unless the transfer is under subsection (3) of section 97AC of this Act deemed to have been duly stamped, or(b) in the case of any transfer other than a transfer referred to in paragraph (a) of this subsection:(i) unless a proper instrument of transfer has been delivered to the corporation, company or society and, in the case of a transfer by way of sale, the consideration therefor is expressed in the transfer in terms of money, and(ii) unless the instrument is duly stamped.(2) Subject to subsection (2A) of this section, a corporation, company or society which registers, records or enters a transfer of a marketable security or right thereto in its records shall retain the instrument of transfer in an approved place for a period of not less than three years from the date on which it registers, records or enters the transfer.(2A) For the purposes of subsection (2) of this section, an instrument of transfer is retained in an approved place during any period during which it is:(a) retained in New South Wales, or(b) retained outside New South Wales in accordance with conditions relating to the retention of the transfer approved by the Chief Commissioner, which approval the Chief Commissioner is hereby authorised to give.(2B) The Chief Commissioner may revoke any approval referred to in subsection (2A) of this section.(3) A corporation, company or society which contravenes or fails or neglects to comply with any of the provisions of this section shall be liable to a fine for each such offence not exceeding 1 penalty unit.(4) The right or title of any transferee or subsequent holder of any marketable security or any right thereto shall not be invalidated by reason only that the transfer of such security or right was registered, recorded or entered in contravention of the provisions of this section in the records of any corporation, company or society.(5) This section does not apply to or in respect of a transfer of a marketable security or right thereto upon which a relevant transaction included in a return lodged under section 97E is consequential.(6) This section does not prevent the registration of:(a) an SCH-regulated transfer (within the meaning of section 94B) if the transfer document (within the meaning of that section) is taken by section 94H to be duly stamped, or(b) a transfer referred to in section 97AC (1A) that is deemed by section 97AC (3) to be duly stamped.
Subdivision 3 Transfers involving brokers
97A Definitions and application of Subdivision 3
(1) For the purposes of this Act, unless inconsistent with the context or subject matter:Australian Options Market means the market regulated by section 7 of the Business Rules of the Australian Stock Exchange Limited.
Broker means a person who is a member of Australian Stock Exchange Limited.
Broker’s agent means any agent or employee of any person who is a broker within the meaning of any corresponding Act, being an agent or employee who is carrying on business for or on behalf of that person in New South Wales.
Corresponding Act means any law in force in a State or Territory of the Commonwealth that is declared by the Governor by an order for the time being in force under subsection (3) of this section to be a corresponding Act for the purposes of this Act.
Editorial Note. For corresponding Acts see the Historical notes at the end of this Act.Dealer means a broker or a broker’s agent within the meaning of this Act or any corresponding Act.
Futures broker has the same meaning as in the Corporations Law.
Futures contract has the same meaning as in the Corporations Law.
Marketable security includes a right or interest (whether described as a unit or sub-unit or otherwise) of a beneficiary under a unit trust scheme.
New South Wales dealer means a broker or a broker’s agent.
Odd lot means a parcel of marketable securities or rights thereto which is, under the rules of the stock exchange on which the sale or purchase is effected, required to be bought or sold through an odd lot specialist.
Odd lot specialist means a broker who is appointed by Australian Stock Exchange Limited for the purpose of buying and selling odd lots.
Options trader means a person who is a registered independent options trader or clearing member under the Business Rules of the Australian Stock Exchange Limited.
Warrant means a contract that is an option contract within the meaning of section 9 of the Corporations Law and that is admitted to trading status on the stock market of the Australian Stock Exchange Limited in accordance with section 8 of the Business Rules of the Australian Stock Exchange Limited.
Warrant-issuer means a person who is a warrant-issuer under the Business Rules of the Australian Stock Exchange Limited.
(2) The provisions of sections 97AA to 97ADF of this Act and the charge for duty on the return referred to in section 97AB, 97ADC or 97ADF of this Act shall apply to and have effect only in the case of a sale or purchase of a marketable security or a right thereto for a consideration in money or money’s worth of not less than the unencumbered value of the marketable security or a right thereto where such marketable security or right is listed on a recognised stock exchange.(3) The Governor may, by order published in the Gazette, declare a law in force in a State or Territory of the Commonwealth to be a corresponding Act for the purposes of this Act.(4) A declaration under subsection (3) of this section may be limited in its application according to specified exceptions or factors.
97AA Sales and purchases to be recorded
(1) Subject to subsection (3) of this section, a New South Wales dealer shall, forthwith on a sale or purchase being made, or being deemed to have been made, whether within or outside New South Wales:(a) pursuant to an order lodged with him in New South Wales, or(b) on his own account or behalf:make a record of the sale or purchase showing:(i) the date of the sale or purchase,(ii) the name of the principal (if any) for whom the sale or purchase was effected,(iii) the name of the dealer (if any) with whom the sale or purchase was effected,(iv) the quantity and full description of the marketable security or right thereto including, if the amount of stamp duty is calculated under section 97AB (1A) of this Act, details of how the marketable security was short-dated on the date of the sale or purchase,(v) the selling price of the marketable security or right thereto per unit and in total,(vi) the amount of stamp duty chargeable.(2) For the purpose of subsection (1) of this section:(a) a New South Wales dealer who makes a purchase whether on his own account or on behalf of another person from any person who is not a dealer shall notwithstanding that no order to sell was in fact lodged with him be deemed to have also made a sale pursuant to an order to sell lodged with him in New South Wales by the person from whom he made the purchase, and(b) a New South Wales dealer who makes a sale whether on his own account or on behalf of another person to any person who is not a dealer shall notwithstanding that no order to purchase was in fact lodged with him be deemed to have also made a purchase pursuant to an order to purchase lodged with him in New South Wales by the person to whom he made the sale.(3) A New South Wales dealer is not required to make a record:(a) of any sale where the sale is made pursuant to an order to sell lodged with him by or on behalf of another dealer, or(b) of any purchase where the purchase is made pursuant to an order to purchase lodged with him by or on behalf of another dealer, or(c) of any sale or purchase of stock, bonds, debentures or Treasury Bills of the Commonwealth of Australia or of the Government of New South Wales or of any other part of the said Commonwealth or of any public statutory body constituted under the law of the Commonwealth or of the State of New South Wales or of any other State or any Territory of the said Commonwealth, or(d) of any sale where the sale is made pursuant to an order to sell or of any purchase where the purchase is made pursuant to an order to purchase:(i) by Her Majesty in right of the Commonwealth of Australia or of the State of New South Wales or of any other State or any Territory of the said Commonwealth,(ii) by or on behalf of a public hospital as defined in section 3 of this Act, or(e) of any sale or of any purchase where the sale or purchase as the case may be is of an odd lot by an odd lot specialist, or(f) of any sale or purchase of marketable securities or rights thereto in a mining company as defined in section 3 of this Act, or(g) of any sale or purchase which is a securities lending transaction or which comprises a transfer to which paragraph (c), (d) or (e) of the exemptions appearing under the heading “TRANSFER OF SHARES” in the Second Schedule applies.(4)–(7) (Repealed)
97AB Returns to be lodged and duty paid
(1) A New South Wales dealer shall not later than Thursday of each week:(a) lodge with the Chief Commissioner, a return, in an approved form, of sales and purchases details of which have been recorded by him in accordance with the provisions of section 97AA of this Act during the week ending the last preceding Saturday, and(b) subject to subsection (2), pay to the Chief Commissioner as stamp duty in respect of the sales and purchases included in the return an amount calculated on the consideration for each such sale and each such purchase at the rate of 15 cents for every $100, and also for any remaining fractional part of $100, of the sale price or the purchase price, as the case may be:Provided however that where there has been no sale or purchase the return to be lodged shall be a “NIL” return.
(1AA) Despite subsection (1) or (2), in the case of a sale or purchase made following the exercise of an option to purchase a marketable security, stamp duty is to be calculated on the premium paid on the option or the consideration for the sale or purchase of the marketable security, whichever is the greater amount (and a reference in subsection (1) or (2) to the consideration is to be construed as a reference to the greater amount).(1A) (Repealed)(2) Instead of the stamp duty provided for by subsection (1) (b), a New South Wales dealer is required to pay, in the case of:(a) any sale made by the dealer, on the dealer’s own account or behalf, of marketable securities or rights in respect of marketable securities purchased by the dealer on or within 3 months of the day of sale, or(b) any purchase made by the dealer, on the dealer’s own account or behalf, of marketable securities or rights in respect of marketable securities sold by the dealer on or within 3 months of the day of purchase, or(c) any sale or purchase of marketable securities or rights in respect of marketable securities:(i) made on behalf of an options trader in his or her capacity as such and as principal, and(ii) made for hedging purposes, and(iii) of a type in respect of which options are traded or the price of which is included in the calculation of an index in respect of which options are traded, or(d) any sale or purchase of marketable securities or rights in respect of marketable securities:(i) made on behalf of a futures broker in his or her capacity as a futures broker and as principal, and(ii) made for hedging purposes, and(iii) of a type in respect of which futures contracts are traded or the price of which is included in the calculation of an index in respect of which futures contracts are traded, or(e) any sale or purchase of marketable securities or rights in respect of marketable securities:(i) made on behalf of a warrant-issuer in his or her capacity as a warrant-issuer and as principal, and(ii) made for hedging purposes, or(f) any sale or purchase of marketable securities or rights in respect of marketable securities of a body corporate incorporated under the law of New Zealand or Papua New Guinea,an amount calculated on the consideration for the sale or purchase at the rate of 0.25 cents for every $100 and also for any remaining fractional part of $100 of the sale price or purchase price, as the case may be.(2A) No stamp duty shall be payable in accordance with the provisions of subsection (1) or (2) in respect of any sale or purchase of a corporate debt security, where the sale or purchase occurs on or after 15 November 1984.(3) A person who contravenes a provision of subsection (1) of this section is liable to a fine not exceeding 5 penalty units.
97AC Endorsement as to payment of duty
(1) After:(a) recording the details of a sale or purchase as required by section 97AA (1),(b) making a sale or purchase to which that subsection does not apply by virtue of the operation of section 97AA (3) (c), (d), (e), (f) or (g), or(c) effecting a transfer of shares for the sole purpose of:the New South Wales dealer shall endorse the transfer with a statement that the stamp duty (if any) has been or will be paid by the dealer, and shall affix the dealer’s stamp to the transfer and note thereon the date of the endorsement.(i) lending the shares to the transferee, or(ii) returning shares previously borrowed from the transferee, being such shares as are necessary to restore the shareholding of the transferee to the exact number and class of shares of which the transferee would have otherwise become the registered holder, if the loan had not taken place, or(iii) a securities lending transaction,(1A) A New South Wales dealer who is an SCH participant may, if the sale, purchase or transfer referred to in subsection (1) is an SCH-regulated transfer, instead of endorsing the transfer as required by that subsection, include the dealer’s identification code in the transfer document in accordance with section 94G.(2) A New South Wales dealer who so endorses the transfer, or includes the dealer’s identification code in the transfer document, before the record required by subsection (1) of section 97AA of this Act is made shall be liable to a fine for such offence not exceeding 10 penalty units.(3) Subject to subsection (4), the instrument of transfer on being endorsed in respect of the sale and the purchase, or the transfer document on having the dealer’s identification code included in it in accordance with the SCH business rules, in accordance with the provisions of this section or of any corresponding Act shall be deemed to be duly stamped.(4) Where a law in force in a State or Territory of the Commonwealth is declared to be a corresponding Act subject to an exception in relation to a class of sales or purchases, subsection (3) of this section does not apply to or in respect of an instrument of transfer or transfer document giving effect to a sale or purchase of that class notwithstanding that the instrument of transfer is endorsed, or the dealer’s identification code is included in the transfer document, in accordance with the corresponding Act.(5) Expressions used in this section that are defined in section 94B have the same meanings as in that section.
97AD Dealer to have power to recover duty
Any New South Wales dealer who in respect of any sale or purchase pays any amount to the Chief Commissioner under subsection (1) or (1A) of section 97AB of this Act may recover that amount from the vendor or the purchaser for whom he has or is deemed to have made the sale or purchase respectively:(a) by retaining the amount out of any money in his hands belonging to the vendor or the purchaser of the marketable security or the right thereto, or(b) by recovering the amount from the said vendor or purchaser, as the case may be, as a debt in a court of competent jurisdiction.
97ADB Sales and purchases to be recorded by options traders
(1) An options trader must, forthwith on a sale or purchase of marketable securities, or rights in respect of marketable securities, in respect of which stamp duty is payable under section 97AB (2) being made by a dealer on behalf of the options trader in his or her capacity as such, make a record of the sale or purchase showing:(a) the date of the sale or purchase, and(b) the name of the dealer by whom the sale or purchase was effected, and(c) the quantity and full description of the marketable securities or rights sold or purchased, and(d) the purchase or selling price of each marketable security or right and in total, and(e) in the case of the sale of marketable securities or rights, the date on which the marketable securities or rights were purchased.(2) An options trader keeping the record may incorporate in it additional information for his or her own use.(3) The record must be kept in a permanent form and must be retained by the options trader by whom it is made for a period of at least 3 years from the date of the sale or the purchase.(4) The record required to be kept under this section by an options trader must be kept separately from any record required to be kept by the options trader in any capacity other than as an options trader.(5) The Chief Commissioner may require an options trader to keep such additional records, as the Chief Commissioner considers necessary, of sales or purchases.(6) An options trader who, in contravention of the provisions of this section, fails to make or keep and retain any such record or additional records is liable to a fine for each such offence not exceeding 5 penalty units.
97ADC Returns to be lodged and duty paid
(1) An options trader must, not later than 7 days after the end of each month:(a) lodge with the Chief Commissioner a return, in a form approved by the Chief Commissioner, of sales and purchases details of which have been recorded in accordance with section 97ADB being:(i) in the case of a sale of marketable securities or rights, those sales during the month which have occurred more than 3 months after the purchase of the marketable securities or rights, and(ii) in the case of the purchase of marketable securities or rights, those marketable securities or rights which, during the month, have been held for more than 3 months from the date of their purchase, and(b) pay to the Chief Commissioner as stamp duty, in respect of sales and purchases included in the return, an amount calculated on the consideration for each such sale and each such purchase at the rate of 14.75 cents for every $100 and also for any remaining fractional part of $100 of the sale price or purchase price, as the case may be.(2) A registered trader is not required to lodge a return if a “NIL” return would otherwise be lodged.(3) A person who contravenes this section is liable to a fine not exceeding 5 penalty units.
97ADE Sales and purchases to be recorded by futures brokers
(1) A futures broker must, forthwith on a sale or purchase of marketable securities, or rights in respect of marketable securities, in respect of which stamp duty is payable under section 97AB (2) being made by a dealer on behalf of the futures broker as principal, make a record of the sale or purchase showing:(a) the date of the sale or purchase, and(b) the name of the dealer by whom the sale or purchase was effected, and(c) the quantity and full description of the marketable securities or rights sold or purchased, and(d) the purchase or selling price of each marketable security or right and in total, and(e) in the case of the sale of marketable securities or rights, the date on which the marketable securities or rights were purchased.(2) A futures broker keeping the record may incorporate in it additional information for his or her own use.(3) The record must be kept in a permanent form and must be retained by the futures broker by whom it is made for a period of at least 3 years from the date of the sale or purchase.(4) The record required to be kept under this section by a futures broker must be kept separately from any record required to be kept by the futures broker in any capacity other than as a futures broker.(5) The Chief Commissioner may require a futures broker to keep such additional records, as the Chief Commissioner considers necessary, of sales or purchases.(6) A futures broker who, in contravention of the provisions of this section, fails to make, keep or retain any such record or additional records is liable to a fine for each such offence not exceeding 5 penalty units.
97ADF Returns to be lodged and duty paid
(1) A futures broker must, not later than 7 days after the end of each month:(a) lodge with the Chief Commissioner a return, in a form approved by the Chief Commissioner, of sales and purchases details of which have been recorded in accordance with section 97ADE, being:(i) in the case of a sale of marketable securities or rights in respect of marketable securities, those sales during the month which have occurred more than 3 months after the purchase of the marketable securities or rights, and(ii) in the case of the purchase of marketable securities or rights in respect of marketable securities, those marketable securities or rights which, during the month, have been held for more than 3 months from the date of their purchase, and(b) pay to the Chief Commissioner as stamp duty, in respect of sales and purchases included in the return, an amount calculated on the consideration for each such sale and each such purchase at the rate of 14.75 cents for every $100 and also for any remaining fractional part of $100 of the sale price or purchase price, as the case may be.(2) A futures broker is not required to lodge a return if a “NIL” return would otherwise be lodged.(3) A person who contravenes this section is liable to a fine not exceeding 5 penalty units.
97ADH Sales and purchases to be recorded by warrant-issuers
(1) A warrant-issuer must, forthwith on a sale or purchase of marketable securities, or rights in respect of marketable securities, in respect of which stamp duty is payable under section 97AB (2) being made by a dealer on behalf of the warrant-issuer in his or her capacity as a warrant-issuer, make a record of the sale or purchase showing:(a) the date of the sale or purchase, and(b) the name of the dealer by whom the sale or purchase was effected, and(c) the quantity and full description of the marketable securities or rights sold or purchased, and(d) the purchase or selling price of each marketable security or right and in total, and(e) in the case of the sale of marketable securities or rights, the date on which the marketable securities or rights were purchased.(2) A warrant-issuer keeping the record may incorporate in it additional information for his or her own use.(3) The record must be kept in a permanent form and must be retained by the warrant-issuer by whom it is made for a period of at least 5 years from the date of the sale or purchase or at least 3 years from the last day on which the warrant may be exercised, whichever period ends last.(4) The record required to be kept under this section by a warrant-issuer must be kept separately from any record required to be kept by the warrant-issuer in any capacity other than as a warrant-issuer.(5) The Chief Commissioner may require a warrant-issuer to keep such additional records, as the Chief Commissioner considers necessary, of sales or purchases.(6) A warrant-issuer who, in contravention of the provisions of this section, fails to make or keep and retain any such record or additional records is liable to a fine for each such offence not exceeding 5 penalty units.
97ADI Returns to be lodged and duty paid
(1) A warrant-issuer must, not later than 7 days after the end of each month:(a) lodge with the Chief Commissioner a return, in a form approved by the Chief Commissioner, of sales and purchases details of which have been recorded in accordance with section 97ADH being:(i) in the case of a sale of marketable securities or rights in respect of marketable securities, those sales during the month which have occurred more than 30 days after the last day on which the relevant warrant could be exercised, and(ii) in the case of a purchase of marketable securities or rights in respect of marketable securities, those marketable securities or rights which, during the month, have been held for more than 30 days after the last day on which the relevant warrant could be exercised, and(b) pay to the Chief Commissioner as stamp duty, in respect of sales and purchases included in the return, an amount calculated on the consideration for each such sale and each such purchase at the rate of 14.75 cents for every $100 and also for any remaining fractional part of $100 of the sale price or purchase price, as the case may be.(2) A warrant-issuer is not required to lodge a return if a “NIL” return would otherwise be lodged.(3) A person who contravenes this section is liable to a fine not exceeding 5 penalty units.