Division 30Division 30 Acquisitions of company and unit trust interests dutiable as conveyances of land
(1) For the purposes of this Division, unless inconsistent with the context or subject-matter:acquisition, in relation to an interest or land use entitlement in a landholder, includes an acquisition by which a person becomes entitled to an interest or land use entitlement (or an increase in an interest or land use entitlement) by means of:
(a) the purchase, gift, allotment or issue of any share in a private company or unit in a private unit trust scheme,(b) the variation, abrogation or alteration of a right attaching to any share in a private company or unit in a private unit trust scheme, or(c) the redemption, surrender or cancellation of any share in a private company or unit in a private unit trust scheme.de facto partner and de facto relationship have the same meanings as in the De Facto Relationships Act 1984.
designated landholder means a landholder which is entitled to land:
(a) the unencumbered value of which (not including the unencumbered value of land the subject of a land use entitlement) comprises not less than 80 per cent of the unencumbered value of all assets to which it is entitled, not including assets consisting of:(i) cash, whether in Australian currency or otherwise,(ii) money on deposit with a bank, negotiable instruments or corporate debt securities,(iii) loans which by their terms are to be repaid on demand by the lender or within 12 months of the date of the loan,(iv) loans to persons who, in relation to the landholder, are related persons or to the spouse, de facto partner, child, parent, brother or sister of:(A) if the landholder is a private company—a majority shareholder, director or secretary of the company, or(B) if the landholder is a private unit trust scheme—a trustee of, or beneficiary under, the scheme,(v) land use entitlements, or(vi) assets which the landholder is unable to satisfy the Chief Commissioner were obtained otherwise than in order to reduce, for the purposes of the application of this Division, the ratio of the unencumbered value of the land to which the landholder is entitled to the unencumbered value of all its assets, and(b) the unencumbered value of which, in so far as the land is in New South Wales, is not less than $1,000,000.discretionary trust means:
(a) a trust under which the vesting of the whole or any part of the capital of the trust estate, or the whole or any part of the income from that capital, or both:(i) is required to be determined by a person either in respect of the identity of the beneficiaries, or the quantum of interest to be taken, or both, or(ii) will occur in the event that a discretion conferred under the trust is not exercised, or(iii) has occurred but under which the whole or any part of that capital or the whole or any part of that income, or both, will be divested from the person or persons in whom it is vested in the event that a discretion conferred under the trust is exercised, or(b) a trust which is, by or under the regulations, declared to be a discretionary trust for the purposes of this Division,but does not include:(c) a trust which is solely a charitable trust, or(d) a trust which is, by or under the regulations, declared not to be a discretionary trust for the purposes of this Division.interest means an interest (other than a land use entitlement) in a landholder, acquired:
(a) in the case of a landholder, being a private company—on or after 21 November 1986, or(b) in the case of a landholder, being a private unit trust scheme—on or after the date of assent to the Stamp Duties (Amendment) Act 1987,which, if the landholder were to be wound up immediately after the acquisition of the interest, would entitle the person acquiring the interest to participate (otherwise than as a creditor or other person to whom the landholder was liable at the time of the acquisition) in a distribution of the property of the landholder.land means any estate or interest in land, whether the land is situated in New South Wales or elsewhere, but does not include the estate or interest of a mortgagee, chargee or other encumbrancee in land.
land use entitlement means an interest in a landholder which gives the person acquiring the interest an entitlement to the exclusive possession, or substantially exclusive possession, of land in New South Wales (not being such an entitlement in respect of a dwelling in a building containing more than one separate dwelling conferred by the ownership of shares in a private company or of units in a private unit trust scheme).
landholder means:
(a) a private company, or(b) a private unit trust scheme.majority interest means an interest (other than a land use entitlement) in a landholder which, if the landholder were to be wound up:
(a) in the case of an interest acquired by a single acquisition—immediately after that acquisition, or(b) in the case of an interest acquired by 2 or more acquisitions—immediately after the later or latest of those acquisitions,would entitle the person who acquired the interest or that person together with any related person to participate (otherwise than as a creditor or other person to whom the landholder was liable at the time of the acquisition) in a distribution of the property of the landholder to an extent greater than 50 per cent of the value of the property distributable to all the holders of interests in the landholder.majority shareholder, in relation to a private company, means a person who would have a substantial shareholding in the company in accordance with section 136 of the Companies (New South Wales) Code if the reference in that section to the prescribed percentage were a reference to 50 per cent.
prior acquisition, in relation to a designated landholder, means the acquisition by a person or a related person of an interest in the designated landholder:
(a) on or at any time during the period of 3 years before the date of a relevant acquisition by the person of an interest in the designated landholder; but(b) not earlier than:(i) in the case of a designated landholder, being a private company—21 November 1986, or(ii) in the case of a designated landholder, being a private unit trust scheme—the date of assent to the Stamp Duties (Amendment) Act 1987.prior land use entitlement, in relation to a landholder, means a land use entitlement which is acquired in relation to the landholder by a person or a related person:
(a) on or at any time during the period of 3 years before the date of the acquisition of a land use entitlement in relation to the landholder by the person, the acquisition of which required the person to lodge a statement under section 99C; but(b) not earlier than:(i) in the case of a landholder, being a private company—21 November 1986, or(ii) in the case of a landholder, being a private unit trust scheme—the date of assent to the Stamp Duties (Amendment) Act 1987.private company means a company (other than a company the shares of which are listed on a recognised stock exchange) whether or not it is a NSW company:
(a) which is entitled to land in New South Wales, or(b) which carries on business wholly or partly in New South Wales.private unit trust scheme means a unit trust scheme (other than a public unit trust scheme) whether or not its trustees are resident in New South Wales:
(a) the trustees of which are entitled to land in New South Wales, or(b) which carries on business wholly or partly in New South Wales.relevant acquisition, in relation to a designated landholder, means the acquisition by a person of an interest in the designated landholder which requires the lodgment of a statement under section 99E (1) by the person.
(2) For the purposes of this Division, a reference to land owned by a landholder is:(a) in the case of a landholder, being a private company—a reference to land owned by the private company beneficially, and(b) in the case of a landholder, being a private unit trust scheme—a reference to land owned by the trustee (in the capacity of trustee) of the private unit trust scheme.(3) For the purposes of this Division, a private company or a private unit trust scheme (referred to in this Division as a first landholder) is entitled to an asset (including land) if:(a) the asset is owned by a first landholder, or(b) the asset is owned by a landholder (referred to in this Division as the actual landholder) which, if the actual landholder and all other persons (if any, including a private unit trust scheme but not including a company the shares of which are listed on a recognised stock exchange or a public unit trust scheme, and whether in New South Wales or elsewhere) interposed between the actual landholder and the first landholder in a chain of ownership of interests in landholders were to be wound up, would entitle the first landholder, by reason of that chain of ownership of interests, to participate in a distribution of the property of the actual landholder.(4) For the purposes of this Division, the unencumbered value of an asset (including land) to which a landholder is entitled at any particular date is the sum of:(a) in the case of an asset owned by the landholder—the unencumbered value of the asset at that date, and(b) in the case of an asset owned by an actual landholder, the amount to which, if the actual landholder and all other landholders (if any) interposed between the actual landholder and the first landholder in a chain of ownership of interests in landholders were to be wound up on that date, the first landholder would be entitled (without regard to any liabilities of the actual landholder or any other landholder in the chain of ownership of interests) in respect of the unencumbered value at that date of assets owned by the actual landholder at that date.(5) For the purposes of this Division, the entitlement of a person, first landholder, actual landholder or landholder to participate (otherwise than as a creditor or other person to whom the private company or private unit trust scheme is liable) in the distribution of the property of a private company or private unit trust scheme on a winding up of the private company or private unit trust scheme is an entitlement to an amount calculated:(a) as if the winding up were carried out in accordance with the memorandum and articles of association of the private company or the instrument constituting the private unit trust scheme and with any law relevant to the winding up of such a private company or such a private unit trust scheme, respectively, as the memorandum, articles, instrument and law exist at the date of the winding up, or(b) as if the person, first landholder, actual landholder or landholder had, immediately prior to the date of the winding up, exercised all powers and discretions exercisable by the person, first landholder, actual landholder or landholder by reason of having acquired an interest in a landholder:whichever of the amounts under paragraph (a) or (b) results in the greater amount, unless the Chief Commissioner determines, after consideration of the circumstances of the case, and where the calculation under paragraph (b) results in the greater amount, that the amount of the entitlement should be calculated under paragraph (a).(i) to effect or compel an alteration to the memorandum or articles of association of the private company or to the instrument constituting the private unit trust scheme,(ii) to vary the rights conferred by shares in the private company or by units in the private unit trust scheme, or(iii) to effect or compel the substitution or replacement of shares in the private company or units in the private unit trust scheme with other shares in the private company or other units in the private unit trust scheme,in such manner as to maximise that amount,(6) For the purposes of this Division (including any actual or notional winding-up), if a person (including any landholder or person in a chain of interests in landholders):(a) is a person or a member of a class of persons in favour of whom, by the terms of a discretionary trust, capital the subject of the discretionary trust may be applied:(i) in the event of the exercise of a power or discretion in favour of the person or class, or(ii) in the event that a discretion conferred under a discretionary trust is not exercised, or(b) is a person or a member of a class of persons who could become a person or a member of a class of persons referred to in paragraph (a) in respect of a discretionary trust, the settlor or trustee of which is not at arms’ length from the person,the person shall be deemed to own or to be otherwise entitled to the property the subject of the discretionary trust, unless the Chief Commissioner determines that the person shall not be deemed to own or to be otherwise entitled to the property.(6A) In subsection (6), person includes a unit trust scheme.(7) For the purposes of this Division, any property which is (or is deemed by this subsection to be) the subject of a discretionary trust (which is referred to in this subsection as the first discretionary trust) shall be deemed to be the subject of any discretionary trust which is, or any trustee of which (in the capacity of trustee) is, a person or a member of a class of persons referred to in subsection (6) (a) or (b) in relation to the first discretionary trust, unless the Chief Commissioner determines that the property shall not be deemed to be the subject of the discretionary trust.(8) For the purposes of this Division:(a) natural persons are related persons if:(i) they are partners, or(ii) the relationship between them is that of a married couple, de facto partners or parent and child,(b) private companies are related persons if they are related corporations within the meaning of the Companies (New South Wales) Code,(c) trustees are related persons if any person is a beneficiary common to the trusts of which they are trustees,(d) a natural person and a private company are related persons if the natural person is a majority shareholder, director or secretary in or of the company or a private company which is a related corporation within the meaning of the Companies (New South Wales) Code,(e) a natural person and a trustee are related persons if the natural person is a beneficiary under the trust of which the trustee is a trustee, and(f) a private company and a trustee are related persons if:(i) the company, a majority shareholder, director or secretary in or of the company is a beneficiary of the trust of which the trustee is a trustee, or(ii) a related corporation (within the meaning of the Companies (New South Wales) Code) of the company is a beneficiary of the trust of which the trustee is a trustee.
99B Acquisitions to which this Division does not apply
(1) This Division does not apply to or in respect of the acquisition by a person of a land use entitlement or prior land use entitlement in relation to a landholder or an interest in a designated landholder if:(a) the acquisition is by a person in the capacity of:(i) a receiver or trustee in bankruptcy,(ii) a liquidator, or(iii) an executor or administrator of the estate of a deceased person,(b) the acquisition occurred solely as the result of:(i) the making of a compromise or arrangement under Part VIII of the Companies (New South Wales) Code which has been approved by the court,(ii) the distribution of the estate of a deceased person, including an acquisition occurring as the result of:(A) a will, a codicil or an order of a court varying or modifying the application of the provisions of a will or codicil, or(B) an intestacy or an order of a court varying or modifying the application, in relation to the estate of a deceased person, of the provisions of a law relating to the distribution of the assets of persons who die intestate,(c) the acquisition is by:(i) a person who was a partner in a marriage and has occurred solely as the result of the dissolution of the marriage, or(ii) a person who was a de facto partner in a de facto relationship and has occurred solely as the result of the termination of the relationship, or(d) the land to which the land use entitlement, prior land use entitlement or interest relates could have been acquired by the person under an agreement or conveyance which is not chargeable with ad valorem duty.(2) This Division does not apply to or in respect of an acquisition if the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances for the Division to apply.
99C Statement of acquisition of land use entitlement
(1) If a person acquires a land use entitlement in relation to a landholder, the person shall lodge with the Chief Commissioner a statement in respect of the acquisition.(2) The statement shall be lodged within 2 months after the land use entitlement is acquired or within such longer period as the Chief Commissioner may approve in writing.(3) The statement shall be in a form approved by the Chief Commissioner and shall contain the following information:(a) the name and address of the person who has acquired the land use entitlement,(b) the reference to title of the land to which the land use entitlement applies,(c) the date of acquisition of the land use entitlement,(d) the unencumbered value of the land to which the land use entitlement applies as at the date of acquisition,(e) the same information as is specified in paragraphs (a)–(d) in respect of each prior land use entitlement acquired in relation to the landholder by the person or a related person,(f) the amount of stamp duty (or duty of a like nature) paid in respect of the acquisition of each such prior land use entitlement, and(g) such other information as may be required by the Chief Commissioner.(4) The statement shall, for the purposes of this Act, be deemed to be an instrument and is chargeable with ad valorem duty in accordance with section 99D.
99D Assessment and payment of duty—statement of acquisition of land use entitlement
(1) A statement lodged under section 99C in respect of a land use entitlement is chargeable with duty at the rates specified in paragraph (1) under the heading “Conveyances of Any Property” in the Second Schedule on the unencumbered value of the land the subject of the land use entitlement as at the date of acquisition aggregated with the unencumbered value of any land which is the subject of any prior land use entitlement required to be included in the statement as at the date of acquisition of the prior land use entitlement.(2) The duty chargeable under this section shall be reduced by the sum of the stamp duty (or duty of a like nature), if any, paid:(a) under this Division in respect of a prior land use entitlement, and(b) on an instrument which effected or evidences the acquisition of:(i) any land use entitlement, or(ii) any prior land use entitlement in respect of which duty under this Division has not previously been paid,but only in proportion to the extent to which the duty so paid is attributable to the unencumbered value of the land the subject of the land use entitlement or any prior land use entitlement.(3) If the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, the Chief Commissioner may determine that values shall not be aggregated for the purposes of this section.(4) The duty with which the statement is chargeable shall be paid at the time of lodgment of the statement with the Chief Commissioner by the person required to lodge the statement.(5) If duty is chargeable under this section on a statement in respect of a land use entitlement acquired by a person and any prior land use entitlement acquired by a related person, the person and the related person are jointly and severally liable for the duty.
99E Statement of entitlement concerning designated landholder
(1) If a person:(a) acquires a majority interest,(b) acquires an interest which results in the person having a majority interest,(c) acquires an interest which, together with the interest of a related person, is a majority interest, or(d) having a majority interest (including an interest which, together with the interest of a related person, is a majority interest) acquires a further interest,in a designated landholder, the person shall lodge with the Chief Commissioner a statement in respect of the acquisition.(2) The statement shall be lodged within 2 months after the interest is acquired or within such longer period as the Chief Commissioner may approve in writing.(3) The statement shall be in a form approved by the Chief Commissioner and shall contain the following information:(a) in relation to the relevant acquisition of an interest:(i) the name or names and address or addresses of the person or persons who has or have acquired the interest,(ii) the date of the relevant acquisition,(iii) the interest acquired,(iv) the total interest of the person or the person and any related person in the designated landholder at that date,(v) the unencumbered value of all land in New South Wales to which the designated landholder is entitled at that date,(vi) the unencumbered value of the assets of the designated landholder at that date,(b) in relation to each prior acquisition of an interest:(i) the name or names and address or addresses of the person or persons who has or have acquired the interest,(ii) the date of the prior acquisition,(iii) the interest acquired,(iv) the unencumbered value of all land in New South Wales to which the designated landholder is entitled at that date,(v) the unencumbered value of the assets of the designated landholder at that date,(vi) the amount of stamp duty (or duty of a like nature) paid in respect of the prior acquisition,(c) such other information as may be required by the Chief Commissioner.(4) The information in relation to an interest referred to in subsection (3) (a) (iii) or (b) (iii) shall include:(a) the maximum percentage of the property of the designated landholder to which the person required to lodge the statement, or that person together with any related person, would be entitled on a winding up of the designated landholder immediately after the acquisition of the interest (otherwise than as a creditor or other person to whom the designated landholder was liable at the time of the acquisition) in a distribution of the property of the landholder, and(b) the basis and method of calculation of the percentage included pursuant to paragraph (a).(5) The statement shall, for the purposes of this Act, be deemed to be an instrument and is chargeable with ad valorem duty in accordance with section 99F.
99F Assessment and payment of duty—statement of relevant acquisition of an interest etc
(1) A statement lodged under section 99E is chargeable with duty at the rates specified in paragraph (1) under the heading “Conveyances of Any Property” in the Second Schedule on:(a) in the case of a relevant acquisition of an interest in a designated landholder and where there are no prior acquisitions of interests in the designated landholder—the amount calculated by multiplying the unencumbered value of all land in New South Wales to which the designated landholder is entitled at the date of the relevant acquisition by the percentage of the interest acquired by the relevant acquisition and required to be included in the statement, or(b) in the case of a relevant acquisition of an interest in a designated landholder and one or more prior acquisitions of interests in the designated landholder—the aggregate of:(i) in respect of the relevant acquisition—the amount calculated in accordance with paragraph (a), and(ii) in respect of each prior acquisition—each amount calculated by multiplying the unencumbered value of all land in New South Wales to which the designated landholder was entitled at the date of the prior acquisition by the percentage of the interest acquired by the prior acquisition and required to be included in the statement.(2) The duty chargeable under this section shall be reduced by the sum of the stamp duty (or duty of a like nature), if any, paid:(a) under this Division, or under the law of another State or a Territory, in respect of a prior acquisition, and(b) on an instrument which effected or evidences or comprises an agreement for the acquisition of:(i) the relevant acquisition, or(ii) any prior acquisition in respect of which duty under this Division has not previously been paid,but only in proportion to the extent to which the duty so paid is attributable to the amount calculated under subsection (1).(3) If the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, the Chief Commissioner may determine that an amount calculated in accordance with subsection (1) (b) (ii) and specified in the Chief Commissioner’s determination shall not be aggregated for the purposes of this section.(4) The duty with which the statement is chargeable shall be paid at the time of lodgment of the statement with the Chief Commissioner by the person required to lodge the statement.(5) If duty is chargeable under this section on a statement in respect of a relevant acquisition acquired by a person and any prior acquisition acquired by a related person, the person and the related person are jointly and severally liable for the duty.
99G Ascertainment of value of property
Section 68 (Ascertainment of the value of property conveyed) applies to and in respect of a statement under section 99C or 99E in the same way as it applies to and in respect of a conveyance chargeable with ad valorem duty under this Act.
99H Date of first execution of statements under this Division
For the purposes of this Act:(a) a statement under section 99C shall be deemed to have been first executed on:(i) in the case of the acquisition of a land use entitlement—the date on which the land use entitlement is acquired, or(ii) in the case of the acquisition of a prior land use entitlement—the date on which the land use entitlement in respect of which the prior land use entitlement is a prior land use entitlement is acquired, and(b) a statement under section 99E shall be deemed to have been first executed on:(i) in the case of a relevant acquisition—the date of the relevant acquisition, or(ii) in the case of prior acquisition—the date of the relevant acquisition in respect of which the prior acquisition is a prior acquisition.
99I Offences relating to statements
(1) A person:(a) who fails or refuses to lodge a statement under section 99C or 99E:(i) within the period of 6 months, or(ii) if, under section 99C (2) or 99E (2), the Chief Commissioner has approved a longer period for the lodgement of the statement, within the period which is the sum of 4 months and that longer period,after the date on which the statement is deemed, under section 99H, to have been executed, or(b) who lodges a statement under section 99C or 99E which is false or misleading in a material particular,is guilty of an offence and liable to a fine not exceeding 50 penalty units.(2) Proceedings for an offence under this section:(a) may not be instituted without the consent of the Minister,(b) subject to that consent, may be instituted at any time, and(c) may be disposed of:(i) before a Local Court constituted by a Magistrate sitting alone, or(ii) before the Supreme Court in its summary jurisdiction.(3) The consent of the Minister to the institution of proceedings for an offence under this section shall be presumed unless the contrary is proved.
99J Rescission of agreement for sale or conveyance of land
(1) If an agreement (whether or not in writing) for the sale or conveyance of land to a person which causes that person or any other person to become a landholder or designated landholder or to become entitled to land is rescinded, annulled or otherwise terminated (except by completion):(a) any requirement to lodge a statement under section 99C or 99E in relation to the entitlement ceases, and(b) the Chief Commissioner shall assess or reassess the liability to duty or fine of any statement under section 99C or 99E relating to the landholder or designated landholder as if no entitlement to the land had ever been created by the agreement.(2) If, on a reassessment, the amount of duty payable in respect of the statement is less than the amount actually paid, the Chief Commissioner shall refund the difference and any fine paid in respect of the difference, less $25.
99K Application of Division to certain financial arrangements
(1) If the person lodging a statement under section 99C or 99E relating to the acquisition of a land use entitlement in relation to a landholder or a majority interest or an interest, referred to in section 99E (1), in a designated 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 any particular case) if the land use entitlement, majority interest or interest the subject of the acquisition is not:(a) reacquired 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) Sections 99C and 99E do not apply to the reacquisition by a person of the land use entitlement, majority interest or interest concerned.