An Act to create and charge a number of duties.

Chapter 1 Preliminary

1   Name of Act

This Act is the Duties Act 1997.

2   Commencement

This Act commences on 1 July 1998.

3   What does this Act do?

This Act creates and charges a number of duties.

Note. Each duty is dealt with in a separate Chapter of this Act. The Contents pages list the Chapters and their subject-matter.

4   What is a duty?

A duty charged by this Act is, when a liability to pay the duty is created, a debt due to the State of New South Wales.

5   Arrangements for payment of duties

This Act does not contain all the provisions concerning duties. This Act is to be read together with the Taxation Administration Act 1996. The Taxation Administration Act 1996 contains provisions that deal with, for example:

•  how assessments of duty are made

•  how assessments can be challenged

•  what happens if duty is not paid on time

•  how unpaid duty may be recovered

•  what records must be kept by taxpayers

•  how decisions made under this Act can be challenged

•  the investigative powers of tax administrators.

6   Meaning of words and expressions used in this Act

Words and expressions used in this Act (or in any particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings set out in the Dictionary.

7   Notes in the text

Notes included in this Act are explanatory notes and do not form part of this Act.

Chapter 2 Transactions concerning dutiable property

Part 1 Introduction and overview

8   Imposition of duty on certain transactions concerning dutiable property

(1)  This Chapter charges duty on:

(a)  a transfer of dutiable property, and

(b)  the following transactions:

(i)  an agreement for the sale or transfer of dutiable property,

(ii)  a declaration of trust over dutiable property,

(iii)  a surrender of an interest in land in New South Wales,

(iv)  a foreclosure of a mortgage over dutiable property,

(v)  a vesting of dutiable property by or as a consequence of an order of a court of this or another jurisdiction, whether inside or outside Australia,

(vi)  the enlargement of a term in land into a fee simple under section 134 of the Conveyancing Act 1919,

(vii)  a vesting of land in New South Wales by, or expressly authorised by, statute law of this or another jurisdiction, whether inside or outside Australia,

(viii)  a lease in respect of which a premium is paid or agreed to be paid.

Note. See also Part 2 of Chapter 3, which treats a transfer or assignment of an option to purchase dutiable property as a transfer of the dutiable property in certain circumstances.

(2)  Such a transfer or transaction is a dutiable transaction for the purposes of this Act.

(3)  In this Chapter:

declaration of trust means any declaration (other than by a will or testamentary instrument) that any identified property vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the property, or the person entitled to appoint the property, may not have joined in or assented to the declaration.

lease means a lease of land in New South Wales or an agreement for a lease of land in New South Wales.

premium, in respect of a lease entered into pursuant to an option, includes an amount paid or payable for the grant of the option.

transfer includes an assignment, an exchange and a buy-back of shares in accordance with Division 2 of Part 2J.1 of the Corporations Act 2001 of the Commonwealth.

8A   Vesting of land in New South Wales by statute law

(1)  Without limiting section 8 (1) (b) (vii), land in New South Wales is vested under statute law if the law vests the land in an entity that the law states is the successor in law of, continuation of or same entity as, the entity in which the land was previously vested.

(2)  However, land in New South Wales is not vested under statute law on the registration of a company under Part 5B.1 of Chapter 5B of the Corporations Act 2001 of the Commonwealth.

(3)  The merger of a corporation (company A) with and into another corporation (company B) in circumstances where neither subsection (4) nor subsection (5) applies is taken to be a vesting of the land in New South Wales of company A in company B by statute law.

(4)  A merger of corporations (the merging corporations) in circumstances where another corporation (company C) results as a consequence of the merger is taken to be a vesting of the land in New South Wales of the merging corporations in company C by statute law.

(5)  A merger of corporations (the merging corporations) with and into each other in circumstances where each of the merging corporations continues in existence is taken to be a vesting in the merging corporations, jointly, of 50% (in value) of the land in New South Wales of the merging corporations by statute law.

9   Imposition of duty on dutiable transactions that are not transfers

(1)  The duty charged by this Chapter on a dutiable transaction referred to in section 8 (1) (b) is to be charged as if each such dutiable transaction were a transfer of dutiable property.

(2)  Accordingly, for the purpose of charging duty under this Chapter, in relation to a dutiable transaction specified in Column 1 of the following Table:

(a)  the property specified opposite the dutiable transaction in Column 2 is taken to be the property transferred (and a reference in this Act to property transferred includes a reference to such property), and

(b)  the person specified opposite the dutiable transaction in Column 3 is taken to be the transferee of the dutiable property (and a reference in this Act to a transferee includes a reference to such a person), and

(c)  the transfer of the dutiable property is taken to have occurred at the time specified opposite the dutiable transaction in Column 4 (and a reference in this Act to the time at which a transfer occurs includes a reference to such a time).

Table

Column 1	Column 2	Column 3	Column 4
Dutiable transaction	Property transferred	Transferee	When transfer occurs
agreement for sale or transfer	the property agreed to be sold or transferred	the purchaser or transferee	when the agreement is entered into
declaration of trust	the property vested or to be vested in the declarant	the person declaring the trust	when the declaration is made
surrender	the surrendered property	the person to whom the property is surrendered	when the surrender takes place
foreclosure	the mortgaged property	the mortgagee	when the foreclosure order is made
vesting by court order	the vested property	the person in whom the property is vested	when the order is made
enlargement of a term in land into a fee simple	the estate in fee simple	the person who acquires the estate in fee simple	when the term is enlarged
vesting by statute law	the vested land in New South Wales	the person in whom the land is vested	when the vesting by statute law occurs
lease	the leased property	the lessee	when the lease is entered into

10   What form must a dutiable transaction take?

It is immaterial whether or not a dutiable transaction is effected by a written instrument or by any other means, including electronic means.

11   What is “dutiable property”?

(1)  Dutiable property is any of the following:

(a)  land in New South Wales,

(b)  transferable floor space (also known as heritage floor space), being floor space area that:

(i)  is recorded on a register kept by a local government council in New South Wales, and

(ii)  derives from the unutilised development potential of land in New South Wales that contains improvements of heritage value, and

(iii)  may, subject to obtaining all necessary consents and approvals, be utilised in the development of other land in New South Wales,

(c)  a land use entitlement,

(d)  shares:

(i)  in a NSW company, or

(ii)  in a corporation incorporated outside Australia that are kept on the Australian register kept in New South Wales,

Notes. Shares is defined in the Dictionary to include rights to shares.

Some shares (namely, shares quoted on the ASX or a recognised stock exchange) are not dutiable property—see subsection (2).

(e)  units in a unit trust scheme, being units:

(i)  registered on a register kept in New South Wales, or

(ii)  that are not registered on a register kept in Australia, but in respect of which the manager (or, if there is no manager, the trustee) of the unit trust scheme is a NSW company or is a natural person resident in New South Wales,

Notes. Units is defined in the Dictionary to include rights to units.

Some units (namely, units quoted on the ASX or a recognised stock exchange) are not dutiable property—see subsection (2).

(f)  (Repealed)

(g)  a business asset, being, at any relevant time:

(i)  the goodwill of a business, if the business has supplied goods in New South Wales, or provided services in New South Wales, to a customer of the business during the previous 12 months, or

(ii)  intellectual property that has been used or exploited in New South Wales during the previous 12 months, but only if the intellectual property is the subject of an arrangement that includes a dutiable transaction over goodwill referred to in subparagraph (i), or

(iii)  a statutory licence or permission under a Commonwealth law, if the rights under the licence or permission have been exercised, during the previous 12 months, in respect of New South Wales or in an area that includes New South Wales or a part of New South Wales,

Note. Intellectual property is defined in the Dictionary. Business assets are subject to apportionment under section 28.

(h)  a statutory licence or permission under a New South Wales law,

(h1)  a poker machine entitlement within the meaning of the Gaming Machines Act 2001,

(i)  a partnership interest, being an interest in a partnership that has partnership property that is dutiable property elsewhere referred to in this section,

(j)  goods in New South Wales, if the subject of an arrangement that includes a dutiable transaction over any dutiable property (other than intellectual property) elsewhere referred to in this section, not including the following:

(i)  goods that are stock-in-trade,

(ii)  materials held for use in manufacture,

(iii)  goods under manufacture,

(iv)  goods held or used in connection with land used for primary production,

(v)  livestock,

(vi)  a registered motor vehicle,

(vii)  a ship or vessel,

(k)  an option to purchase land in New South Wales,

(l)  an interest in any dutiable property referred to in the preceding paragraphs of this section, except to the extent that:

(i)  it arises as a consequence of the ownership of a unit in a unit trust scheme and is not a land use entitlement, or

(ii)  it is, or is attributable to, an option over dutiable property, or

(iii)  it is an interest in a marketable security, being an interest that is traded on the Sydney Futures Exchange.

(2)  Despite subsection (1), the following marketable securities are not dutiable property:

(a)  shares, or units in a unit trust scheme, that are quoted on the Australian Stock Exchange or a recognised stock exchange,

(b)  an interest in shares, or an interest in units in a unit trust scheme, if:

(i)  the shares or units are quoted on the Australian Stock Exchange or a recognised stock exchange, or

(ii)  the interest is quoted on the Australian Stock Exchange or a recognised stock exchange.

(3)  In the definition of business asset in this section, a reference to services provided to a customer includes a reference to anything done for a customer pursuant to a contractual obligation.

Note. Part 4 of this Chapter provides for the abolition, in stages, of duty on some of the types of dutiable property listed above.

The duty imposed on dutiable transactions involving shares and units referred to in section 11 (1) (d) and (e) is abolished on 1 July 2012. Marketable securities cease to be dutiable property on that date.

The duty imposed on dutiable transactions involving business assets referred to in section 11 (1) (g), statutory licences or permissions referred to in section 11 (1) (h) and poker machine entitlements referred to in section 11 (1) (h1) is abolished on 1 July 2012. Those things cease to be dutiable property on that date.

12   When does a liability for duty arise?

(1)  A liability for duty charged by this Chapter arises when a transfer of dutiable property occurs.

(2)  However, if a transfer of dutiable property is effected by a written instrument, liability for duty charged by this Chapter arises when the instrument is first executed.

13   Who is liable to pay the duty?

Duty charged by this Chapter is payable by the transferee, unless this Chapter requires another person to pay the duty.

14   The liability of joint tenants

For the purpose of assessing duty charged by this Chapter, joint tenants of dutiable property are taken to hold the dutiable property as tenants in common in equal shares.

15   Necessity for written instrument or written statement

(1)  If a dutiable transaction that is liable to ad valorem duty under this Chapter is not effected by a written instrument, the transferee must make a written statement in an approved form.

(2)  The written statement must be made within 3 months after the liability arises.

(3)  (Repealed)

(4)  If a dutiable transaction is completed or evidenced by a written instrument within 3 months after the date on which the dutiable transaction occurs, the requirement to lodge a statement and pay duty in respect of the statement may be satisfied by the lodgment of and payment of duty on the written instrument within 3 months after the date on which the dutiable transaction occurs.

16   Lodging written instrument or written statement with Chief Commissioner

(1)  A transferee who is liable to pay duty in respect of a dutiable transaction must, within 3 months after the liability arises, lodge with the Chief Commissioner:

(a)  the written instrument that effects the dutiable transaction or, if there is more than one such written instrument, each one of them as provided by section 18 (1), or

(b)  the written statement made in compliance with section 15.

(2)  (Repealed)

17   When must duty be paid?

(1)  A tax default does not occur for the purposes of the Taxation Administration Act 1996 if duty is paid within 3 months after the liability to pay the duty arises.

(2)  (Repealed)

18   No double duty

(1)  If a dutiable transaction is effected by more than one instrument, one instrument is to be stamped with the duty payable on the dutiable transaction and each other instrument is chargeable with duty of $50.

Note. Instrument includes a written statement.

(2)  The duty chargeable in respect of a transfer of dutiable property made in conformity with an agreement for the sale or transfer of the dutiable property is $10 if the duty chargeable in respect of the agreement has been paid.

(3)  The duty chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property is $10 if:

(a)  the duty chargeable in respect of the agreement has been paid, and

(b)  the transfer would be in conformity with the agreement if the transferee was the purchaser under the agreement, and

(c)  the transfer occurs at the same time as, or proximately with, the completion or settlement of the agreement, and

(d)  at the time the agreement was entered into, and at the completion or settlement of the agreement:

(i)  the purchaser under the agreement and the transferee under the transfer are related persons, except as provided by subparagraph (ii), or

(ii)  if the purchaser purchased as a trustee, the transferee and the beneficiary are related persons.

(4)  The duty chargeable on a transfer to a trustee of dutiable property subject to a declaration of trust is $10 if ad valorem duty has been paid on the declaration of trust in respect of the same dutiable property.

(5)  The duty chargeable on a transfer of dutiable property as a consequence of a foreclosure order is $10 if ad valorem duty has been paid on the foreclosure.

(6)  The duty chargeable on a declaration of trust that declares the same trusts as those upon and subject to which the same dutiable property was transferred to the person declaring the trust is $10 if ad valorem duty has been paid on the transfer.

(6A)  The duty chargeable on a declaration of trust is $50 if the Chief Commissioner is satisfied that:

(a)  the declaration of trust supersedes another declaration of trust in respect of which duty has been paid and declares the same trusts as were declared under the superseded declaration of trust, and

(b)  the beneficiary under the declaration of trust is the same as under the superseded declaration of trust, and

(c)  the dutiable property subject to the declaration of trust:

(i)  is wholly or substantially the same as the property that was the subject of the superseded declaration of trust at the time of the declaration of the superseded declaration of trust, or

(ii)  represents the proceeds of re-investment of property that was the subject of the superseded declaration of trust at the time of the declaration of the superseded declaration of trust, or

(iii)  is property to which both subparagraphs (i) and (ii) apply.

(7)  A dutiable transaction in respect of marketable securities that confer a land use entitlement is taken to be a dutiable transaction in respect of the land use entitlement only. If duty has been paid on the dutiable transaction in accordance with a law of another Australian jurisdiction, the duty charged by this Chapter on the dutiable transaction is to be reduced by the amount of the duty so paid.

19   What is the rate of duty?

Duty is charged on the dutiable value of the dutiable property subject to the dutiable transaction at the relevant rate set out in Part 3.

20   Concessions and exemptions from duty

Concessions and exemptions from duty charged by this Chapter are dealt with in Parts 6, 7 and 8.

Part 2 Dutiable value

21   What is the “dutiable value” of dutiable property?

(1)  The dutiable value of dutiable property that is subject to a dutiable transaction is the greater of:

(a)  the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration), and

(b)  the unencumbered value of the dutiable property.

(2)  The dutiable value of dutiable property transferred by way of foreclosure is the unencumbered value of the dutiable property and not the value of the debt secured by the mortgaged property.

(3)  The dutiable value of a business asset to which section 28 applies is to be determined in accordance with that section.

(4)  The dutiable value of a partnership interest referred to in section 29 is to be determined in accordance with that section.

(5)  The dutiable value of leased property transferred by way of a lease is taken to be the amount of the premium paid or payable in respect of the lease.

22   What is the consideration for the transfer of dutiable property?

(1)  The consideration for the transfer of dutiable property is taken to include the amount or value of all encumbrances, whether certain or contingent, subject to which the dutiable property is transferred.

(2)  The consideration for the transfer of the interest of a transferee under an uncompleted agreement for the sale or transfer of dutiable property is taken to include the balance of the amount or value of the consideration that would be required from the transferee under the agreement in order to complete it in accordance with its terms.

(3)  The consideration for the transfer of the goodwill of a business is taken to include the amount or value of the consideration for any restraint of trade arrangement entered into in connection with the transfer of the goodwill.

23   What is the “unencumbered value” of dutiable property?

(1)  The unencumbered value of dutiable property is the value of the property determined without regard to any encumbrance to which the property is subject.

(2)  The unencumbered value of the goodwill of a business is taken to include the value of any restraint of trade arrangement entered into by the vendor in order to protect the value of the goodwill.

(3)  If, before land is transferred to a transferee, the transferee has made improvements to the land, the unencumbered value of the land is to be determined as if those improvements had not been made.

(4)  Subsection (3) does not apply to improvements made to the land for or on behalf of the transferee by the transferor.

24   Interests, agreements and arrangements that reduce the dutiable value

(1)  In determining the dutiable value of dutiable property under this Part, any interest, agreement or arrangement (other than an encumbrance) granted or made in respect of the dutiable property that has the effect of reducing the dutiable value is to be disregarded, subject to subsection (2).

(2)  An interest, agreement or arrangement is not to be disregarded if the Chief Commissioner is satisfied that it was not granted or made as a part of an arrangement or scheme with a collateral purpose of reducing the duty otherwise payable on the dutiable transaction.

(3)  In considering whether or not he or she is satisfied for the purposes of subsection (2), the Chief Commissioner may have regard to:

(a)  the duration of the interest, agreement or arrangement before the dutiable transaction, and

(b)  whether the interest, agreement or arrangement has been granted to or made with an associated person, and

(c)  whether there is any commercial efficacy to the granting of the interest or the making of the agreement or arrangement other than to reduce duty, and

(d)  any other matters the Chief Commissioner considers relevant.

25   Aggregation of dutiable transactions

(1)  Dutiable transactions relating to separate items of dutiable property, or separate parts of, or interests in, dutiable property are to be aggregated and treated as a single dutiable transaction if:

(a)  they occur within 12 months, and

(ab)  the transferor is the same or the transferors are associated persons, and

(b)  the transferee is the same or the transferees are associated persons, and

(c)  the dutiable transactions together form, evidence, give effect to or arise from what is, substantially, one arrangement relating to all of the items or parts of, or interests in, the dutiable property.

Note. Associated person is defined in the Dictionary.

(2)  Dutiable transactions are not to be aggregated under this section if the Chief Commissioner is satisfied that:

(a)  the dutiable property to which the transactions relate are comprised of separate allotments of vacant land, and

(b)  the transferee is a person authorised to contract to do residential building work under the Home Building Act 1989, and

(c)  the transferee intends to construct residential premises on the allotments for the purposes of sale to the public.

(3)  The dutiable value of aggregated dutiable property is the sum of the dutiable values of the items or parts of, or the interests in, the dutiable property as at the time at which each dutiable transaction occurs.

(4)  The amount of duty payable in accordance with this section is to be reduced by the amount of any ad valorem duty paid on a prior dutiable transaction that is, or prior dutiable transactions that are, aggregated in accordance with this section.

(5)  Duty may be apportioned to the instruments effecting or evidencing the dutiable transactions, or may be charged in accordance with section 18 (1), as determined by the Chief Commissioner.

(6)  A transferee to whom this section applies must disclose to the Chief Commissioner, in writing, at or before the time at which an instrument or statement relating to the dutiable transactions is lodged for stamping, details known to the transferee of:

(a)  all of the items or parts of, or interests in, the dutiable property included or to be included in the arrangement referred to in subsection (1), and

(b)  the consideration for each item or part of, or interest in, that dutiable property.

Maximum penalty (subsection (6)): 100 penalty units.

(7)  The reference in this section to dutiable property does not include a reference to marketable securities.

(8)  In this section:

vacant land includes land that the Chief Commissioner considers is substantially vacant apart from there being on that land the remnant of any building, or any other object or structure, that the Chief Commissioner is satisfied has been preserved because of its heritage significance.

26   Certain transactions concerning goods and other property

(1)  The Chief Commissioner, if satisfied that it would not be just and reasonable in the circumstances to charge duty on the dutiable value of all the dutiable property in a dutiable transaction involving goods and other property, may disregard the value of the goods, or any of them, in determining the dutiable value of the property involved.

(2)  This section does not enable the Chief Commissioner to disregard the value of goods used in connection with a business in respect of which the goodwill of the business is, or is part of, the dutiable property.

(3)  This section applies only to dutiable transactions that occur before 1 July 2012.

Note. On 1 July 2012, duty on the transfer of business assets is abolished (see Part 4 of this Chapter). Section 26A applies in respect of transfers occurring after that date that remain dutiable transactions.

26A   Transactions involving goods and other property that occur on or after 1 July 2012

(1)  If a dutiable transaction involves goods and other dutiable property, the Chief Commissioner may disregard the value of the goods in the transaction if satisfied that the dutiable value of the other property does not exceed 10% of the dutiable value of all the dutiable property in the transaction.

(2)  This section applies only to dutiable transactions that occur on or after 1 July 2012.

27   Apportionment—dutiable property and other property

(1)  If a dutiable transaction relates to dutiable property and property that is not dutiable property, it is chargeable with duty under this Chapter only to the extent that it relates to dutiable property.

(2)  If a dutiable transaction relates to different types of dutiable property for which different rates of duty are chargeable under this Chapter, the dutiable transaction is chargeable with duty under this Chapter as if a separate dutiable transaction had occurred in relation to each such type of dutiable property.

28   Apportionment—business assets in this and other jurisdictions

(1) Business assets to which this section applies
This section applies to a business asset referred to in section 11 (1) (g), being:

(a)  the goodwill of a business, if the business has also supplied goods outside New South Wales, or provided services outside New South Wales, to a customer of the business during the previous 12 months, or

(b)  intellectual property that has also been used or exploited in one or more other Australian jurisdictions during the previous 12 months, or

(c)  a statutory licence or permission under a Commonwealth law if the rights under the licence or permission have been exercised during the previous 12 months in respect of one or more other Australian jurisdictions.

(2) How is the dutiable value of a business asset determined?
The dutiable value (DV) of a business asset to which this section applies is to be determined in accordance with the following formula:

where:

A is the unencumbered value of the business asset, or so much of the consideration for the dutiable transaction as relates to the business asset, whichever is the greater, and

X is the gross amount (expressed in Australian dollars) of goods supplied, and services provided, in New South Wales by the business to customers of the business during the last 3 completed financial years preceding the dutiable transaction, and

Y is the gross amount (expressed in Australian dollars) of goods supplied, and services provided, in and outside New South Wales by the business to customers of the business during the last 3 completed financial years preceding the dutiable transaction.

(3)  Subsection (2) applies to intellectual property together with goodwill as if the intellectual property and goodwill comprise a single business asset.

(4)  If an apportionment cannot be made under subsection (2), the Chief Commissioner may make an apportionment on such basis as the Chief Commissioner considers appropriate in the circumstances.

(5)  In this section, a reference to a service provided to a customer includes a reference to anything done for a customer pursuant to a contractual obligation.

(6)  This section applies only to dutiable transactions that occur before 1 July 2012.

Note. On 1 July 2012, duty on the transfer of business assets is abolished (see Part 4 of this Chapter).

29   Partnership interests

(1)  The dutiable value of a partnership interest (DV) is to be determined in accordance with the following formula:

where:

A is the value of the partnership interest, or so much of the consideration for the dutiable transaction as relates to the partnership interest, whichever is the greater, and

X is the unencumbered value of all dutiable property of the partnership, and

Y is the unencumbered value of all assets of the partnership.

(2)  For the purposes of this section and despite subsection (1), the unencumbered value of dutiable property that is a business asset to which section 28 applies is the dutiable value of the business asset determined in accordance with section 28.

(3)  If the property of a partnership includes a land-related asset and an interest in the land-related asset is transferred as a result of the transfer of a partnership interest, the unencumbered value of all dutiable property of the partnership (“X” in subsection (1)) is to be reduced by the unencumbered value of the interest in the land-related asset that is transferred, but only if ad valorem duty has been paid or is payable on the transfer of the interest in the land-related asset.

(4)  For the purposes of subsection (3), each of the following items of dutiable property is a land-related asset:

(a)  land in New South Wales,

(b)  transferable floor space,

(c)  a land use entitlement,

(d)  an interest in an item of dutiable property referred to in paragraph (a), (b) or (c).

30   Partitions

(1) What is a partition?
For the purposes of this section, a partition occurs when dutiable property comprised of land in New South Wales that is held by persons jointly (as joint tenants or tenants in common) is transferred or agreed to be transferred to one or more of those persons.

(2) Single dutiable transaction
For the purposes of this section and sections 16 and 18, a partition is taken to be a single dutiable transaction.

(3) Dutiable value
The dutiable value of a partition is the greater of:

(a)  the sum of the amounts by which the unencumbered value of the dutiable property transferred, or agreed to be transferred, to a person by the partition exceeds the unencumbered value of the interest held by the person in the dutiable property transferred, or agreed to be transferred, to each person by the partition immediately before the partition, and

(b)  the sum of any consideration for the partition paid by any of the parties.

(3A)  (Repealed)

(4) Minimum duty
The minimum duty chargeable on a transaction that effects a partition is $50.

(5) Who is liable to pay the duty?
Duty charged by this section is payable by the persons making the partition or any one or more of them.

(6) Anti-avoidance criteria
This section does not apply in respect of a partition if the Chief Commissioner is satisfied that the partition is part of a scheme to avoid duty on an exchange of land that was not jointly held by the parties before the scheme was entered into.

31   Effect of alteration in purchase price

(1)  If after an agreement for the sale or transfer of dutiable property is entered into and before the property is transferred:

(a)  the consideration under the agreement is reduced and the reduced consideration is not less than the unencumbered value of the dutiable property when the consideration was reduced, or

(b)  the consideration under the agreement is reduced because the parties have agreed not to transfer some of the dutiable property previously agreed to be transferred and the reduced consideration is not less than the unencumbered value of the dutiable property that remained to be transferred when the consideration was reduced, or

(c)  the consideration under the agreement is increased and the dutiable value when the consideration was increased is greater than the dutiable value when the agreement was entered into,

      the Chief Commissioner must assess or reassess the liability to duty of the agreement in accordance with the change in the consideration.

(2)  The liability to pay additional duty arising from an increase in the consideration occurs on the date the consideration is agreed to be increased.

Part 3 Rates of duty

32   General rate

(1)  The rate of duty chargeable on a dutiable transaction is as follows:

Dutiable value of the dutiable property subject to the dutiable transaction	Rate of duty
Not more than $14,000	$1.25 for every $100, or part, of the dutiable value
More than $14,000 but not more than $30,000	$175 plus $1.50 for every $100, or part, by which the dutiable value exceeds $14,000
More than $30,000 but not more than $80,000	$415 plus $1.75 for every $100, or part, by which the dutiable value exceeds $30,000
More than $80,000 but not more than $300,000	$1,290 plus $3.50 for every $100, or part, by which the dutiable value exceeds $80,000
More than $300,000 but not more than $1,000,000	$8,990 plus $4.50 for every $100, or part, by which the dutiable value exceeds $300,000
More than $1,000,000	$40,490 plus $5.50 for every $100, or part, by which the dutiable value exceeds $1,000,000

(2)  This rate applies unless other provision is made by this Chapter.

Note. The rates of duty chargeable on dutiable transactions in respect of marketable securities are dealt with in section 33 and section 150. Concessional rates of duty chargeable on certain dutiable transactions are dealt with in Part 6 of this Chapter.

32A   Premium rate for residential land with dutiable value exceeding $3,000,000

(1)  The rate of duty chargeable on a dutiable transaction in respect of residential land that has a dutiable value exceeding $3,000,000 is $150,490 plus $7 for every $100, or part, by which the dutiable value of the residential land exceeds $3,000,000.

(2)  The rate of duty chargeable on a dutiable transaction in respect of residential land that has a dutiable value not exceeding $3,000,000 is as provided for by section 32.

(2A)  If the dutiable property subject to a dutiable transaction comprises 2 or more individual items of residential land and 1 or more of those items has a dutiable value exceeding $3,000,000, the rate of duty chargeable on the dutiable transaction is as follows:

(a)  for each item of residential land that has a dutiable value exceeding $3,000,000—$150,490 plus $7 for every $100, or part, by which the dutiable value of the item exceeds $3,000,000,

(b)  for the rest of the dutiable property—the rate provided for by section 32.

(3)  For the purposes of this section, residential land means:

(a)  a parcel of land on which there is one single dwelling or one flat, or a parcel of land on which there is a building under construction that, when completed, will constitute one single dwelling or one flat, or

(b)  a strata lot, if it is lawfully occupied as a separate dwelling, or suitable for lawful occupation as a separate dwelling, or

(c)  a land use entitlement, if it confers an entitlement to occupy a building, or part of a building, as a separate dwelling, or

(d)  a parcel of vacant land that is zoned or otherwise designated for use under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) for residential or principally for residential purposes.

(4)  For the purpose of subsection (3) (a), land does not cease to be regarded as land on which there is one single dwelling, or one flat, merely because the land is also used or is capable of being used for the purpose of one other residential occupancy, if that residential occupancy is an excluded residential occupancy.

(5)  This section does not apply to a case in which section 32B or 32C applies.

(6)  In this section:

excluded residential occupancy means:

(a)  one room, or

(b)  one suite of rooms (not being a flat) each room of which all occupants of the suite are entitled to occupy, or

(c)  one flat, or

(d)  one suite of rooms (not being a flat) each room of which all occupants of the suite are entitled to occupy, and one room, or

(e)  one flat and one room, or

(f)  2 rooms, each of which is separately occupied.

flat means a room or suite of rooms (whether or not forming part of a building or a detached building):

(a)  occupied or used as a separate dwelling, or

(b)  so constructed, designed or adapted as to be capable of being occupied or used as a separate dwelling,

      but does not include a single dwelling, a strata lot or a dwelling, or portion of a building, that is occupied under a land use entitlement.

single dwelling means a house:

(a)  occupied or used as a separate dwelling, or

(b)  so constructed, designed or adapted as to be capable of being occupied or used as a separate dwelling,

      but does not include a strata lot or a property commonly known as a shop and dwelling.

32B   Rate for residential land used for other purposes

(1)  If a dutiable transaction in respect of residential land has a dutiable value exceeding $3,000,000, and the Chief Commissioner is satisfied that the residential land is used for purposes other than residential purposes, duty is to be charged at the rate of $7 for every $100, or part, of the premium value of the residential land.

(2)  The premium value of the residential land is the amount (if any) by which the dutiable value of the residential land, when reduced by the apportionment factor, exceeds $3,000,000.

(3)  The apportionment factor is:

(a)  if the land is mixed development land or mixed use land and there is an apportionment factor entered in the Register of Land Values in respect of the land value of the land under Division 5 or 5A of Part 1B of the Valuation of Land Act 1916—that apportionment factor, or

(b)  if paragraph (a) is not applicable—such other apportionment factor as the Chief Commissioner considers fair and reasonable to reflect the use of the land for non-residential purposes, subject to subsections (4) and (5).

(4)  If there is no apportionment factor entered in the Register of Land Values in respect of the land value of the land, and the land is mixed development land or mixed use land, the Chief Commissioner may request the Valuer-General to determine the apportionment factor in respect of the land concerned.

(5)  If a request is made under subsection (4):

(a)  the Valuer-General must determine the apportionment factor concerned and enter it in the Register of Land Values under the Valuation of Land Act 1916, and

(b)  that apportionment factor is to be applied in respect of the residential land.

Note. Divisions 5 and 5A of Part 1B of the Valuation of Land Act 1916 allow objections to be made against the amount of an apportionment factor.

(6)  Duty is to be charged, at the rate set out in section 32, in respect of the dutiable value of the dutiable property transferred reduced by the premium value of the residential land.

(7)  In this section:

mixed development land has the same meaning as in Division 5 of Part 1B of the Valuation of Land Act 1916.

mixed use land has the same meaning as in Division 5A of Part 1B of the Valuation of Land Act 1916.

residential land has the same meaning as in section 32A.

32C   Rate for large parcels of residential land

(1)  If a dutiable transaction in respect of residential land that is a parcel of land has a dutiable value exceeding $3,000,000, and the area of the parcel of land exceeds 2 hectares, duty is to be charged at the rate of $7 for every $100, or part, of the premium value of the residential land.

(2)  The premium value of the residential land is the amount (if any) by which the dutiable value of the residential land, when multiplied by the apportionment factor, exceeds $3,000,000.

(3)  The apportionment factor is the proportion that 2 hectares bears to the total area of the parcel of land in hectares.

(4)  Duty is to be charged, at the rate set out in section 32, in respect of the dutiable value of the dutiable property transferred reduced by the premium value of the residential land.

(4A)  This section does not apply in respect of residential land if section 32B applies to the land.

(5)  In this section:

residential land has the same meaning as in section 32A.

33   Shares, units, derivatives and interests (marketable securities)

(1)  The rate of duty chargeable on dutiable transactions in respect of marketable securities is 60 cents per $100, or part, of the dutiable value of the marketable securities.

(2)  (Repealed)

(3)  A minimum rate of duty of $10 is chargeable under this section in respect of a transfer of shares of a corporation that is not the legal or beneficial owner of land in New South Wales.

(4)  A rate of duty chargeable under this section does not apply to a dutiable transaction that confers a land use entitlement.

(5)  If a provision of this Chapter provides that a duty of $50 is chargeable in respect of a transfer of marketable securities, and the duty charged at the rate provided for by subsection (1) would be less than $50, the duty chargeable is that lesser amount.

(6)  This section is subject to section 273, which provides for a minimum duty of $10.

Note. Transactions in respect of shares or units that are quoted on the Australian Stock Exchange or a recognised stock exchange, or interests in such shares or units, are not dutiable transactions (see section 11 (2)).

33A   Shares in share management fisheries

The rate of duty chargeable on dutiable transactions in respect of shares in a share management fishery (within the meaning of the Fisheries Management Act 1994) is 60 cents per $100, or part, of the dutiable value of the shares.

Part 4 Abolition of various duties

34   Abolition of duty on all transfers of marketable securities and commercial fishery shares—effective 1 July 2012

(1)  On and from 1 July 2012, marketable securities and commercial fishery shares are not dutiable property (despite section 11).

(2)  Subsection (1) does not apply in respect of any transfer or transaction with respect to marketable securities or commercial fishery shares that occurs before 1 July 2012 and, accordingly, does not affect any requirement to pay duty under this Chapter in respect of the transfer or transaction.

(3)  In this section:

commercial fishery share means a share in a share management fishery (within the meaning of the Fisheries Management Act 1994).

35   Abolition of duty on transfers of business assets—effective 1 July 2012

(1)  On and from 1 July 2012, a business asset referred to in section 11 (1) (g) is not dutiable property (despite section 11).

(2)  Subsection (1) does not apply in respect of any transfer or transaction with respect to business assets that occurs before 1 July 2012 and, accordingly, does not affect any requirement to pay duty under this Chapter in respect of the transfer or transaction.

36   Abolition of duty on transfers of licences, permissions and entitlements—effective 1 July 2012

(1)  On and from 1 July 2012, a statutory licence or permission referred to in section 11 (1) (h), or a poker machine entitlement referred to in section 11 (1) (h1), is not dutiable property (despite section 11).

(2)  Subsection (1) does not apply in respect of any transfer or transaction with respect to statutory licences or permissions, or poker machine entitlements, that occurs before 1 July 2012 and, accordingly, does not affect any requirement to pay duty under this Chapter in respect of the transfer or transaction.

37   Anti-avoidance measures

Sections 35 and 36 do not apply in respect of a transfer or transaction with respect to a business asset referred to in section 11 (1) (g), a statutory licence or permission referred to in section 11 (1) (h), or a poker machine entitlement referred to in section 11 (1) (h1), that occurs on or after 1 July 2012 if:

(a)  the transfer or transaction replaces a transfer or transaction involving the same business asset, statutory licence or permission, or poker machine entitlement that occurred before 1 July 2012, or

(b)  the transfer or transaction is made or entered into pursuant to an option to purchase the business asset, statutory licence or permission, or poker machine entitlement that was granted before 1 July 2012, or

(c)  the transfer or transaction was made or entered into pursuant to another arrangement, made before 1 July 2012, the only or main purpose of which was to defer the transfer or transaction until 1 July 2012, or later, so that duty would not be chargeable under this Chapter on the transfer or transaction.

38–48A   (Repealed)

Part 5 Special provisions

49   Interim payment of duty

(1)  If the full dutiable value of dutiable property subject to an agreement for sale or transfer cannot, in the Chief Commissioner’s opinion, be immediately ascertained, the Chief Commissioner may make an assessment by way of estimate under section 11 (2) of the Taxation Administration Act 1996.

(2)  A written instrument effecting or evidencing the sale or transfer may be stamped “interim stamp only”.

(3)–(6)  (Repealed)

49A   Purchases “off the plan”

(1)  Liability for duty on an off the plan purchase agreement arises:

(a)  on completion of the agreement, or

(b)  on the assignment of the whole or any part of the purchaser’s interest under the agreement, or

(c)  on the expiration of 12 months after the date of the agreement,

      whichever first occurs.

(2)  This section applies despite section 12.

(3)  Nothing in this section prevents the Chief Commissioner from accepting payment of duty and stamping an off the plan purchase agreement at any time after the agreement has been executed.

(4)  In this section:

off the plan purchase agreement means an agreement for the sale or transfer of dutiable property, being land on which a residence is to be erected or developed before completion of the sale or transfer.

50   Cancelled agreements

(1)  An agreement for the sale or transfer of dutiable property that is cancelled is not liable to duty under this Chapter if the Chief Commissioner is satisfied:

(a)  that the agreement was not cancelled to give effect to a subsale, or

(b)  that the purchaser or transferee under the agreement is a promoter of a named company proposed to be incorporated and that the company is the purchaser or transferee of the dutiable property under a subsequent agreement, or

(c)  that the purchaser or transferee under the agreement and the purchaser or transferee under a subsequent agreement relating to the same dutiable property were related persons when the agreement that is cancelled was entered into.

(2)  If duty has been paid on an agreement that is not liable to duty under this Chapter because of this section, the Chief Commissioner must reassess and refund the duty if an application for a refund is made within:

(a)  5 years of the initial assessment, or

(b)  12 months after the agreement is cancelled,

      whichever is the later.

(3)  In this section, cancelled means rescinded, annulled or otherwise terminated without completion.

50A   Cancelled transfers of dutiable property

(1)  A transfer of dutiable property that is effected by a written instrument is not liable to duty under this Chapter if the Chief Commissioner is satisfied that:

(a)  the transfer instrument has been cancelled and the dutiable property has not been transferred to the transferee, and

(b)  the transfer was not cancelled to give effect to a subsale.

(c)  (Repealed)

(2)  If duty has been paid on a transfer of dutiable property that is not liable to duty under this Chapter because of this section, the Chief Commissioner must reassess and refund the duty if an application for a refund is made within 5 years of the initial assessment.

(3)  The transfer instrument in respect of which the application is made must be surrendered to the Chief Commissioner unless the Chief Commissioner dispenses with that requirement.

(4)  In this section, cancelled includes abandoned.

51   Transfers arising from mortgages of land under Real Property Act 1900

(1)  The mortgagor and the mortgagee are jointly and severally liable to pay the duty chargeable on a transfer by way of mortgage of dutiable property that is land under the Real Property Act 1900.

(2)  If the Chief Commissioner is satisfied that:

(a)  duty has been paid in accordance with this section on a transfer of dutiable property to which this section applies, and

(b)  the dutiable property has been re-transferred to the mortgagor (or a person to whom the land has been transmitted by death or bankruptcy) and the mortgagor (or person) is the registered proprietor of the land,

      the Chief Commissioner must refund the ad valorem duty paid on the transfer less the amount of duty that would have been payable on the mortgage under Chapter 7 (Mortgages).

52   Possessory applications

(1)  A possessory application under the Real Property Act 1900 is chargeable with the same duty as a transfer of the land the subject of the application as if the dutiable value of the land were the land value of the land within the meaning of the Valuation of Land Act 1916.

(2)  The person liable to pay the duty is the applicant.

53   Applications to bring land under Real Property Act 1900

(1)  An application to bring land under the Real Property Act 1900 is chargeable with:

(a)  the same duty as on a possessory application under that Act if:

(i)  the application contains an application based on possessory title, and

(ii)  the applicant has not paid ad valorem duty on a transfer of the land, or

(b)  the same duty as on a transfer of the land if the applicant nominates another person as the person for whose estate or interest a folio of the Register is to be created, or

(c)  duty of $50 in any other case.

(2)  The person liable to pay the duty is:

(a)  the applicant, if subsection (1) (a) or (c) applies, or

(b)  the nominee, if subsection (1) (b) applies.

53A   Duty on lease premiums

In the case of property transferred by way of a lease for which a premium is paid or payable, duty is not chargeable under this Chapter on:

(a)  so much of the premium of a residential lease as relates to premises used, or intended to be used, exclusively as a residence, or

(b)  so much of the premium of a lease as relates to a moveable dwelling site used, or intended to be used, as the principal place of residence of the lessee.

Part 6 Concessional rates of duty

Division 1 Trusts

54   Change in trustees

(1)  In this section:

new trustee means a trustee appointed in substitution for a trustee or a trustee appointed in addition to a trustee or trustees.

responsible entity means a responsible entity within the meaning of the Corporations Act 2001 of the Commonwealth.

special trustee means:

(a)  the NSW Trustee and Guardian, and

(b)  a trustee company within the meaning of the Trustee Companies Act 1964, and

(c)  a corporation constituted under the law of another Australian jurisdiction that, in the Chief Commissioner’s opinion, corresponds in that jurisdiction to the NSW Trustee and Guardian or a trustee company referred to in paragraph (b), and

(d)  the trustees of a fund that is a complying superannuation fund within the meaning of section 267 of the Commonwealth Income Tax Assessment Act 1936 or that, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the execution of:

(i)  an instrument appointing a new trustee, or

(ii)  an instrument by which a trustee retires without a new trustee being appointed in place of the retiree.

(2)  Duty of $50 is chargeable in respect of a transfer of dutiable property to a special trustee as a consequence of the retirement of a trustee or the appointment of a new trustee.

(3)  Duty of $50 is chargeable in respect of a transfer of dutiable property to a person other than a special trustee as a consequence of the retirement of a trustee or the appointment of a new trustee, if the Chief Commissioner is satisfied that, as the case may be:

(a)  none of the continuing trustees remaining after the retirement of a trustee is or can become a beneficiary under the trust, and

(b)  none of the trustees of the trust after the appointment of a new trustee is or can become a beneficiary under the trust, and

(c)  the transfer is not part of a scheme for conferring an interest, in relation to the trust property, on a new trustee or any other person, whether as a beneficiary or otherwise, to the detriment of the beneficial interest or potential beneficial interest of any person.

If the Chief Commissioner is not so satisfied, the transfer is chargeable with the same duty as a transfer to a beneficiary under and in conformity with the trusts subject to which the property is held, unless subsection (3A) applies.

(3A)  Duty of $50 is chargeable in respect of a transfer of dutiable property as a consequence of the retirement of a responsible entity of a managed investment scheme or the appointment of a new responsible entity of a managed investment scheme if the Chief Commissioner is satisfied that the only beneficial interest acquired by a person in relation to the dutiable property as a result of the transfer is a beneficial interest acquired by the replacement or new responsible entity solely because of its appointment as responsible entity for the scheme.

(3B)  Duty of $50 is chargeable in respect of a vesting of land in New South Wales by, or expressly authorised by, statute law (as referred to in section 8 (1) (b) (vii)) in a person or responsible entity if the Chief Commissioner is satisfied that subsection (2), (3) or (3A) would apply in respect of the dutiable transaction if it were a transfer of dutiable property.

(4)  Duty of $50 is chargeable in respect of a transfer of dutiable property to a responsible entity if the Chief Commissioner is satisfied that the transfer is necessary to enable an undertaking that existed before the commencement of Chapter 5C of the Corporations Law to become a registered scheme within the meaning of Division 11 of Part 11.2 of the Corporations Law (as continued in effect by section 1408 of the Corporations Act 2001 of the Commonwealth).

54A   Transfers in relation to managed investment schemes

(1)  Duty of $50 is chargeable in respect of a transfer of dutiable property from:

(a)  a responsible entity of a managed investment scheme, or

(b)  a person who held the dutiable property as a trustee of a prescribed interest scheme within the meaning of the Corporations Law as in force immediately before 1 July 1998 when the scheme became a registered scheme within the meaning of Division 11 of Part 11.2 of the Corporations Law (as continued in effect by section 1408 of the Corporations Act 2001 of the Commonwealth),

      to a custodian or agent of the responsible entity as custodian or agent of the scheme in which the transferor held the dutiable property.

(2)  Duty of $50 is chargeable in respect of a transfer of dutiable property from the custodian of the responsible entity of a managed investment scheme to the responsible entity.

(3)  Duty of $50 is chargeable in respect of a vesting of land in New South Wales by statute law (as referred to in section 8 (1) (b) (vii)) in a responsible entity if the Chief Commissioner is satisfied that subsection (2) would apply in respect of the dutiable transaction if it were a transfer of dutiable property.

(4)  Duty of $50 is chargeable in respect of a transfer of dutiable property from the sub-custodian of a custodian of the responsible entity of a managed investment scheme to the custodian of the responsible entity of the managed investment scheme.

55   Property vested in an apparent purchaser

(1)  Duty of $50 is chargeable in respect of:

(a)  a declaration of trust made by an apparent purchaser in respect of identified dutiable property:

(i)  vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property, or

(ii)  to be vested in the apparent purchaser upon trust for the real purchaser, if the Chief Commissioner is satisfied that the money for the purchase of the dutiable property has been or will be provided by the real purchaser, or

(b)  a transfer of dutiable property from an apparent purchaser to the real purchaser if:

(i)  the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and

(ii)  the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase.

(1A)  For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser.

(1B)  This section applies whether or not there has been a change in the legal description of the dutiable property between the purchase of the property by the apparent purchaser and the transfer to the real purchaser.

Note. For example, if the dutiable property is land, this section continues to apply if there is a change in the legal description of the dutiable property as a consequence of the subdivision of the land.

(2)  In this section, purchase includes an allotment.

56   Transfers back from a nominee

(1)  If:

(a)  dutiable property (other than marketable securities) that was transferred to a person to be held by that person as trustee for the transferor is transferred back to the transferor by the trustee, and

(b)  no person other than the transferor has had a beneficial interest in the dutiable property (other than the trustee’s right of indemnity) between its transfer to the trustee and its transfer back to the transferor,

      the duty chargeable on the transfer of the dutiable property back to the transferor is $50.

(2)  If duty of $50 has been paid on a transfer under subsection (1), the initial transfer to the trustee is also chargeable with duty of $50. The Chief Commissioner must reassess the initial transfer and refund any duty paid in excess of $50 if an application for a refund is made within:

(a)  5 years after the initial assessment, or

(b)  12 months after the transfer back to the original transferor,

      whichever is the later.

(3)  In this section, trustee includes a trustee appointed in substitution for a trustee or a trustee appointed in addition to a trustee or trustees.

56A   Transfer of property subject to a statutory trust to a beneficial owner

(1)  This section applies if dutiable property that is vested in a person as trustee of a statutory trust as a consequence of the making of an order under section 66G of the Conveyancing Act 1919 is transferred or agreed to be transferred by the trustee to one or more of the beneficial owners of the dutiable property.

(2)  The dutiable value of the dutiable property that is the subject of the transfer or agreement is to be calculated by deducting from the unencumbered value of the dutiable property or the consideration for the transfer or agreement, whichever is the greater, the proportion of that amount that is the same as the proportion of the purchaser’s beneficial interest in the dutiable property immediately before the transfer or agreement.

57   Property passing to beneficiaries

(1)  Duty of $50 is chargeable in respect of a transfer for no consideration of dutiable property to a beneficiary made under and in conformity with the trusts contained in a declaration of trust, subject to subsections (2) and (3).

(2)  Subsection (1) applies only to the extent that the property being transferred is property that the Chief Commissioner is satisfied is:

(a)  wholly or substantially the same as the property the subject of the declaration of trust and that:

(i)  duty charged by this Act has been paid in respect of the declaration of trust over that property, or

(ii)  the declaration of trust is exempt from duty, or

(b)  dutiable property representing the proceeds of re-investment of property referred to in paragraph (a), or

(c)  property to which both paragraphs (a) and (b) apply.

(3)  Subsection (1) applies only if the transferee was a beneficiary at the time at which duty became chargeable in respect of the declaration of trust.

58   Establishment of a trust relating to unidentified property and non-dutiable property

(1)  Duty of $500 is chargeable in respect of an instrument executed in New South Wales that declares a trust over New South Wales property none of which is dutiable property.

(2)  Duty of $500 is chargeable in respect of an instrument executed in New South Wales that declares that property, although not identified in the instrument, when vested in the person executing the instrument is to be held in trust for a person or persons or a purpose or purposes mentioned in the instrument.

(3)  It is immaterial whether or not the beneficial owner or person entitled to appoint the property has joined in or assented to the instrument.

(4)  A liability for duty charged by this section arises when the instrument is first executed.

(5)  Duty charged by this section is payable by the person declaring the trust.

(6)  This section does not apply in respect of any property that is a marketable security, if the marketable security is not dutiable property because of section 11 (2).

59   Instrument relating to managed investment scheme

(1)  Duty of $50 is chargeable in respect of an instrument that effects or evidences a dutiable transaction and which:

(a)  amends, varies or replaces an instrument that establishes or governs a managed investment scheme, and

(b)  does not transfer, or have the effect of transferring, any dutiable property to a person who does not hold units in the scheme, and

(c)  does not have the effect of reducing the number of persons who hold units in the scheme.

(2)  Duty of $50 is chargeable in respect of a declaration of trust:

(a)  made by a trustee in respect of dutiable property that, immediately before the trust is declared, is held by the trustee as trustee of the prescribed interest scheme within the meaning of the Corporations Law as in force immediately before 1 July 1998, and

(b)  to hold the dutiable property on trust for the responsible entity of the managed investment scheme.

59A   Nomineeing transactions—unquoted marketable securities

Duty of $50 is chargeable in respect of a transfer of marketable securities, other than marketable securities that are not dutiable property, between any of the following persons:

(a)  the beneficial owner,

(b)  a trustee or nominee of the beneficial owner,

(c)  a custodian of a trustee or nominee of the beneficial owner,

(d)  a sub-custodian of a custodian of a trustee or nominee of the beneficial owner,

but only if:

(e)  there is no change in the beneficial ownership of the marketable securities, and

(f)  if the transferee is a person referred to in paragraph (b)–(d), the transferee is to hold the marketable securities solely for another person referred to in paragraph (a)–(c) and there is no contemplation of the marketable securities being held for any other person, and

(g)  if the transferor is a person referred to in paragraph (b)–(d), the marketable securities were held by the person solely for another person referred to in paragraph (a)–(c) and, since the time when the marketable securities were first transferred or issued to the transferor, no person has held the marketable securities other than solely for a person referred to in paragraph (a)–(c).

Division 2 Superannuation

60   Instruments relating to superannuation

(1)  The following instruments are liable to duty of $20 if they were first executed before 1 July 2001:

(a)  an instrument that establishes, or that amends provisions governing, a superannuation fund, an approved deposit fund, a pooled superannuation trust or an eligible rollover fund, being a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund within 12 months after the instrument or amending instrument takes effect,

(b)  an instrument under which an employer agrees to participate in or contribute to a complying superannuation fund or a superannuation fund that, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the employer agrees to participate in or contribute to the fund,

(c)  an instrument that is executed in order to set out or vary the terms of custodial arrangements concerning a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund (whether or not the instrument contains any other terms) or concerning a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund within 12 months after the instrument takes effect.

(2)  A liability for duty charged by this section arises when the instrument is first executed.

(3)  The persons liable to pay the duty are the parties to the instrument.

(4)  The duty may be denoted by adhesive stamp.

(5)  Despite subsection (1), an instrument to which this section applies is not liable to duty if:

(a)  it is exempt from duty under a corresponding Act, or

(b)  the duty for which it is liable under a corresponding Act has been paid.

61   Transfers of property in connection with persons changing superannuation funds

(1)  This section applies to a relevant transfer that 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 transfer 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 transfer is made.

(1A)  For the purposes of this section, each of the following is a relevant transfer:

(a)  a transfer of dutiable 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 dutiable 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 marketable securities from a 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.

(2)  The duty chargeable on a transfer to which this section applies is ad valorem duty in accordance with this Chapter or $500, whichever is the lesser.

(3)  An application for an assessment of duty in accordance with this section is to be accompanied by the following:

(a)  a brief explanation of the background to the transfer and the entitlements to be extinguished and created,

(b)  copies of the governing rules of the superannuation funds concerned,

(c)  a statement of the property to be transferred,

(d)  a copy of each instrument relating to the transfer,

(e)  a statutory declaration from a trustee (or a director of a corporate trustee) of each of the superannuation funds concerned stating that, in the opinion of the trustee (or director), the fund the person will become a member of, or otherwise become entitled to benefits in respect of, will be a complying superannuation fund within 12 months after the transfer occurs.

(4)  The Chief Commissioner may require further information.

(5)  In this section, complying superannuation fund includes a complying approved deposit fund and an eligible rollover fund.

62   Transfers between trustees and custodians of superannuation funds or trusts

(1)  This section applies to the following dutiable transactions:

(a)  a transfer of, or an agreement to transfer, dutiable property from a trustee of:

(i)  a complying superannuation fund, or

(ii)  a pooled superannuation trust, or

(iii)  a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect,

      to a custodian of the trustee of the fund or trust, where there is no change in the beneficial ownership of the property,

(b)  a transfer of, or an agreement to transfer, dutiable property from a custodian of a trustee of:

(i)  a complying superannuation fund, or

(ii)  a pooled superannuation trust, or

(iii)  a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect,

      to a trustee of the fund or trust, where there is no change in the beneficial ownership of the property,

(c)  a transfer of, or an agreement to transfer, dutiable property from a custodian of a trustee of:

(i)  a complying superannuation fund, or

(ii)  a pooled superannuation trust, or

(iii)  a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect,

      to another custodian of the trustee of the fund or trust, where there is no change in the beneficial ownership of the property.

(2)  (Repealed)

(3)  The duty chargeable on a dutiable transaction to which this section applies is:

(a)  except as provided by paragraph (b), ad valorem duty in accordance with this Chapter or $500, whichever is the lesser, or

(b)  if the dutiable property transferred, or agreed to be transferred, is marketable securities, $10.

(4)  In this section, complying superannuation fund includes a complying approved deposit fund and an eligible rollover fund.

Division 3 Miscellaneous

63   Deceased estates

(1)  Duty of $50 is chargeable in respect of:

(a)  a transfer of dutiable property by the legal personal representative of a deceased person to a beneficiary, being:

(i)  a transfer made under and in conformity with the trusts contained in the will of the deceased person or arising on an intestacy, or

(ii)  a transfer of property the subject of a trust for sale contained in the will of the deceased person, or

(iii)  an appropriation of the property of the deceased person (as referred to in section 46 of the Trustee Act 1925) in or towards satisfaction of the beneficiary’s entitlement under the trusts contained in the will of the deceased person or arising on intestacy, and

(b)  a consent by a legal personal representative of a deceased person to a transmission application by a beneficiary, and

(c)  a transmission application to a devisee who is also the sole legal personal representative.

(2)  If a transfer of dutiable property is made by a legal personal representative of a deceased person to a beneficiary under an agreement (whether or not in writing) between the beneficiary and one or more other beneficiaries to vary the trusts contained in a will of the deceased person or arising on intestacy, the dutiable value of the dutiable property is to be reduced by the portion of the dutiable value that is referable to the dutiable property to which the beneficiary had an entitlement arising under the trusts contained in the will or arising on intestacy.

(3)  Section 25 does not apply to a dutiable transaction to which subsection (2) applies.

(4)  If the duty chargeable in respect of a transfer, consent or transmission application referred to in subsection (1) would, but for that subsection, be less than $50, the duty chargeable is that lesser amount.

(5)  This section is subject to section 273, which provides for a minimum duty of $10.

64   Conversion of land use entitlement to different form of title

The duty chargeable on the transfer of a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973 or a lot in a deposited plan is $50 if:

(a)  the transferee, immediately before registration of the strata plan or deposited plan, held a land use entitlement in respect of the land or part of the land the subject of the strata plan or deposited plan, and

(b)  the transfer is part of an arrangement under which the transferee will take an interest in the lot similar in effect to and in substitution for the interest the transferee had under the land use entitlement immediately before registration of the strata plan or deposited plan, and

(c)  one of the following applies:

(i)  ad valorem duty was paid on the transaction by which the land use entitlement was acquired by the transferee,

(ii)  section 55, 57 or 63 applied to the acquisition of the land use entitlement by the transferee, and duty was paid as provided for by the section that applied,

(iii)  no duty was chargeable on the acquisition of the land use entitlement by the transferee because of section 68,

(iv)  no duty was chargeable on the acquisition of the land use entitlement by the transferee because of section 78A (which relates to the First Home Plus scheme).

64AA   Enlargement of the term in land into fee simple

The duty chargeable on the enlargement of a term in land into a fee simple under section 134 of the Conveyancing Act 1919 is $50 if:

(a)  the Chief Commissioner is satisfied that the grant of the term in the land, and subsequent enlargement, are not part of a scheme to avoid duty on a transfer of land, and

(b)  one of the following applies:

(i)  ad valorem duty was paid by the transferee on the transaction by which the term in the land was acquired,

(ii)  section 55, 57 or 63 applied to the acquisition of the term in the land, and duty was paid as provided for by the section that applied,

(iii)  no duty was chargeable on the acquisition of the term in the land by the transferee because of section 68.

64A   Amalgamation of Western Lands leases

(1)  This section applies to the transfer of, or an agreement to transfer, a lease under the Western Lands Act 1901, being a lease for a purpose specified in an order of the Governor made for the purposes of this section and published in the Gazette.

Editorial note. For orders published under this section see Gazette No 92 of 13.8.1999, p 5743.

(2)  The duty chargeable on a dutiable transaction, being the transfer of, or an agreement to transfer, a lease to which this section applies is to be reduced if:

(a)  the transferee has transferred another lease under the Western Lands Act 1901 within 3 years before the dutiable transaction, and

(b)  the land subject to the dutiable transaction adjoins land held by the transferee under a lease under the Western Lands Act 1901.

(3)  The duty chargeable on the dutiable transaction is to be reduced by the amount of duty paid on the transfer of, or the agreement to transfer, the other lease within 3 years before the dutiable transaction.

64B   Reduction of duty on transfer of marketable securities—payment in non-Australian jurisdiction

(1)  The amount of duty chargeable under this Chapter on a transfer of marketable securities is to be reduced by the amount of duty of a similar kind paid in relation to the transfer in accordance with the law of a place outside Australia.

(2)  In this section, a reference to a transfer of marketable securities includes a reference to a dealing or arrangement affecting marketable securities by means of a dutiable transaction other than a transfer.

Part 7 Exemptions

65   Exemptions from duty

(1) General
A dutiable transaction is exempt from duty under this Chapter if it is, or occurs as a consequence of any of the following:

(a)  the appointment of a receiver or trustee in bankruptcy,

(b)  the appointment of a liquidator,

(c)  the transfer of dutiable property for no consideration to a former bankrupt from the estate of the former bankrupt,

(d)  a dutiable transaction over dutiable property arising from the discharge or transfer of a mortgage or declaration of trust over a mortgage (and a reference in this paragraph to a mortgage includes a reference to a charge and an interest in a mortgage),

(e)  a dutiable transaction comprising:

(i)  a transfer by way of discharge of mortgage, or

(ii)  a transfer by way of mortgage (not being a transfer by way of mortgage of land, or an estate or interest in land, under the Real Property Act 1900), if duty as on a mortgage has been paid in respect of an instrument evidencing the mortgage or the instrument is exempt from, or is not liable to, duty,

(f)  the vesting of dutiable property in a society or company by virtue of Part 7 or 8 of the Financial Institutions (NSW) Code or a corresponding law of another State or Territory,

(g)  the vesting of dutiable property in a statutory trust as a consequence of the making of an order under section 66G of the Conveyancing Act 1919.

(2) Employee and employer organisations
No duty is chargeable under this Chapter on a transfer of dutiable property made pursuant to, or in accordance with the rules of:

(a)  an association of employees or employers registered as an organisation under the Commonwealth Workplace Relations Act 1996, or

(b)  an industrial union of employers or employees registered under the Industrial Relations Act 1996, or

(c)  any body of a kind referred to in paragraph (a) or (b) that is approved for the time being by the Minister,

      if the transfer is made to another such association, union or body as a consequence of the amalgamation of two or more such associations, unions or bodies.

(3) Registered clubs
No duty is chargeable under this Chapter on a transfer of dutiable property to give effect to the amalgamation of two or more registered clubs as referred to in Division 1A of Part 2 of the Registered Clubs Act 1976, if such information and documents as the Chief Commissioner may require are given to the Chief Commissioner.

(4) Workers compensation insurers and custodians
No duty is chargeable under this Chapter on a transfer of, or an agreement to transfer, dutiable property:

(a)  made in compliance with a requirement of the WorkCover Authority between:

(i)  a licensed insurer, or a person who was a licensed insurer, under the Workers’ Compensation Act 1926 and an insurer licensed under the Workers Compensation Act 1987, or

(ii)  licensed insurers under the Workers Compensation Act 1987, or

(iii)  the Authority and a licensed insurer under the Workers Compensation Act 1987, or

(b)  made at the direction of the WorkCover Authority:

(i)  from an insurer licensed under the Workers Compensation Act 1987 to a custodian nominated by the Authority, or

(ii)  from such a custodian to another such custodian.

(5) Incorporated legal practices
No duty is chargeable under this Chapter on the transfer of, or an agreement to transfer, dutiable property in the following cases:

(a)  dutiable property of a solicitor corporation formed under the Legal Profession Act 1987 that is transferred or agreed to be transferred to:

(i)  an incorporated legal practice under the Legal Profession Act 2004 if the voting shareholders of the solicitor corporation immediately before the transfer or agreement is first executed are solicitor directors or employed solicitors of the incorporated legal practice, or

(ii)  a partnership of solicitors if the voting shareholders of the solicitor corporation immediately before the transfer or agreement is first executed are the same as the members of the partnership, or

(iii)  a solicitor practising as a sole practitioner if the only voting shareholder of the solicitor corporation immediately before the transfer or agreement is first executed is that solicitor,

(b)  dutiable property of a partnership of solicitors formed or originally formed before the commencement of Division 2A of Part 3 of the Legal Profession Act 1987 that is transferred or agreed to be transferred to an incorporated legal practice under the Legal Profession Act 2004 if the members of the partnership immediately before the transfer or agreement is first executed are solicitor directors or employed solicitors of the incorporated legal practice,

(c)  dutiable property of a solicitor practising as a sole practitioner before the commencement of Division 2A of Part 3 of the Legal Profession Act 1987 that is transferred or agreed to be transferred to an incorporated legal practice under the Legal Profession Act 2004 if the solicitor is the sole solicitor director of the incorporated legal practice.

(6) Transfer of liquor licence
No duty is chargeable under this Chapter on the transfer of a liquor licence approved under section 60 of the Liquor Act 2007 if the Chief Commissioner is satisfied that:

(a)  there is no change of, or contemplated change in, the beneficial ownership of the liquor licence as a consequence of the transfer, or

(b)  the transfer is a consequence of an agreement for the sale or transfer of dutiable property on which the duty chargeable in respect of the agreement has been paid.

Note. Duty on the transfer of statutory licences is abolished on 1 July 2012. This exemption is relevant only to a transfer that occurs before that date. See Part 4 of this Chapter.

(7) Poker machine permits and entitlements
No duty is chargeable under this Chapter:

(a)  on the transfer of:

(i)  a Liquor Act poker machine permit (within the meaning of the Gaming Machines Act 2001), or

(ii)  a poker machine entitlement (within the meaning of that Act),

      that occurs as a consequence of the transfer of a hotel licence approved under section 60 of the Liquor Act 2007 that is not chargeable with duty under this Chapter, or

(b)  on the vesting or transfer of any such permit or entitlement, if the Chief Commissioner is satisfied that:

(i)  there is no change, or contemplated change, in the beneficial ownership of the permit or entitlement as a consequence of the vesting or transfer, or

(ii)  the vesting or transfer occurs as a consequence of an agreement for the sale or transfer of dutiable property on which the duty chargeable in respect of the agreement has been paid.

Note. Duty on the transfer of statutory licences, permissions and poker machine entitlements is abolished on 1 July 2012. This exemption is relevant only to a transfer or vesting that occurs before that date. See Part 4 of this Chapter.

(8) Manufactured homes
No duty is chargeable under this Chapter on the transfer of, or an agreement to transfer, a manufactured home in a caravan park or manufactured home estate if the manufactured home, but not the land on which the manufactured home is located, is owned by the transferor.

In this subsection:

manufactured home means a manufactured home as defined in the Local Government Act 1993 where the home is designed to allow its transportation.

manufactured home estate has the same meaning as in the Local Government Act 1993.

(9) Administration agreements under first home owner grant scheme
No duty is chargeable under this Chapter on an administration agreement under the First Home Owner Grant Act 2000.

(10) Instruments relating to superannuation
No duty is chargeable under this Chapter on:

(a)  an instrument referred to in section 60 (1) (a), (b) or (c) that is first executed on or after 1 July 2001, or

(b)  a dutiable transaction effected or evidenced by such an instrument.

(11) Financial agreements
No duty is chargeable under this Chapter on a financial agreement made under section 90B, 90C or 90D of the Family Law Act 1975 of the Commonwealth.

(12) Vesting by statute law—deceased estates
No duty is chargeable under this Chapter on the vesting of dutiable property in a legal personal representative of a deceased person.

(12A) Consents to gifts by will to interested witnesses
No duty is chargeable under this Chapter on a consent referred to in section 10 (3) (b) of the Succession Act 2006.

(13) Vesting by statute law—common property under strata plans
No duty is chargeable under this Chapter on the vesting of common property in a body corporate on the registration of a strata plan or strata plan of subdivision under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

(14) Correction of error
No duty is chargeable under this Chapter on a transfer of dutiable property made to correct an error in a previous transfer of the same dutiable property if:

(a)  no additional consideration is paid or payable, and

(b)  the beneficial interests in the property change only to the extent necessary to correct the error.

(15) Home equity release schemes
No duty is chargeable under this Chapter on the transfer of, or an agreement to transfer, land, a land use entitlement, or an interest in land or a land use entitlement if:

(a)  the land concerned is used as the principal place of residence of the transferor, and

(b)  the transferor, or, if there is more than one transferor, at least one of them, is aged 60 years or older, and

(c)  the transfer or agreement is entered into in connection with an approved home equity release scheme.

In this subsection:

approved home equity release scheme means a home equity release scheme approved, or of a class approved, by the Chief Commissioner, in accordance with any guidelines approved by the Treasurer that are published in the Gazette.

home equity release scheme means a scheme that enables an owner of residential property to obtain money from a person (the lender) in exchange for an agreement that a proportion of the value of the residential property will be paid to the lender on the occurrence of a specified event (such as the sale of the residential property or the death of the owner).

(16) Leases—general
No duty is chargeable under this Chapter on the following leases:

(a)  a lease granted by or on behalf of a corporation, society or institution if:

(i)  the purpose of the lease is to grant a retired person or a disabled person the right to occupy residential accommodation, and

(ii)  the lease has not been granted for the purpose of profit by the lessor,

(b)  a lease of premises to the Home Care Service of New South Wales,

(c)  a lease executed in accordance with Part V of the National Health Act 1953 of the Commonwealth,

(d)  a lease of premises in a retirement village within the meaning of section 5 of the Retirement Villages Act 1999.

(17) Pharmacists’ body corporate
No duty is chargeable under this Chapter on the transfer of, or an agreement to transfer, dutiable property in the following cases:

(a)  dutiable property of a partnership carrying on the business of a pharmacist before the commencement of section 25 of the Pharmacy Practice Act 2006 that is transferred or agreed to be transferred to a pharmacists’ body corporate (within the meaning of that Act), if the members of the partnership immediately before the transfer or agreement is first executed are all directors and shareholders of the pharmacists’ body corporate and there are no other directors or shareholders of that pharmacists’ body corporate,

(b)  dutiable property of a pharmacist carrying on the business of a pharmacist before the commencement of section 25 of the Pharmacy Practice Act 2006 that is transferred or agreed to be transferred to a pharmacists’ body corporate (within the meaning of that Act), if the pharmacist is the sole director and shareholder of that pharmacists’ body corporate.

(18) Termination of strata scheme
No duty is chargeable under this Chapter on the vesting of an estate or interest in land by or as a consequence of the termination of a strata scheme to the extent that the persons who were proprietors of the lots the subject of the strata scheme concerned acquire, on the termination, an interest in the land that was the subject of the strata scheme in proportion to their unit entitlements immediately before the termination.

(19)  In subsection (18), a reference to the termination of a strata scheme is a reference to an order under section 51 or 51A of the Strata Schemes (Freehold Development) Act 1973 terminating a strata scheme under that Act.

(20) Termination of scheme under Community Land Development Act 1989
No duty is chargeable under this Chapter on the vesting of an estate or interest in land by or as a consequence of the termination of a scheme to the extent that the persons who were the proprietors in the scheme concerned acquire, on the termination, an interest in the land that was the subject of the scheme in proportion to their unit entitlements immediately before the termination.

(21)  In subsection (20), a reference to the termination of a scheme is a reference to an order under section 70 or 72 of the Community Land Development Act 1989 terminating a scheme under that Act.

66   Exemptions—marketable securities

(1)–(4)  (Repealed)

(5) Share buy-backs
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of shares comprising a buy-back of the shares in accordance with Division 2 of Part 2J.1 of the Corporations Act 2001 of the Commonwealth, unless the buy-back is effected by the purchaser pursuant to one or more agreements, understandings or arrangements that the purchaser will issue marketable securities.

(6) Rights to shares
No duty is chargeable under this Chapter on the transfer to a person of rights to shares if an earlier transfer of the shares to the person included a right to shares and duty in respect of the rights was paid in connection with that earlier transfer or the earlier transfer was exempt from duty.

(7) Bonus or rights issue
No duty is chargeable under this Chapter on the transfer of shares to a person (the transferee) if:

(a)  as a consequence of the transfer of shares in a company:

(i)  in respect of which ad valorem duty under this Act or a corresponding Act has been paid or that is exempt from duty, and

(ii)  that is not registered in the share register of the company,

      the transferee is, on a bonus issue or the issue of a right to shares subsequent to the transfer, entitled to other shares registered in the name of the transferor, and

(b)  the transferee pays the amount, if any, necessary to take up the other shares.

(8)  (Repealed)

(8A) ADRs
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of an ADR if:

(a)  the ADR relates to rights to shares that upon issue, on exercise of those rights, will be quoted on the Australian Stock Exchange or a recognised stock exchange, and

(b)  the transfer, or the sale or transfer to which the agreement relates, is to:

(i)  a foreign resident on the foreign resident’s own behalf, or

(ii)  a foreign resident acting on behalf of a trustee for another foreign resident, and

(c)  the ADR is to be registered on an overseas register of legal or beneficial title.

(9) Trust mergers
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of units in a qualifying unit trust scheme to the responsible entity or trustee of another qualifying unit trust scheme or a custodian or agent of the responsible entity or trustee if it is proved to the satisfaction of the Chief Commissioner that:

(a)  the purpose of the transfer is to give effect to a merger of 2 qualifying unit trust schemes or a takeover of a qualifying unit trust scheme by another qualifying unit trust scheme, and

(b)  the units are registered on a register kept in New South Wales, and

(c)  the transfer would qualify as a roll-over under Subdivision 124-M of the Income Tax Assessment Act 1997 of the Commonwealth.

(9A)  For the purposes of subsection (9), qualifying unit trust scheme means a unit trust scheme:

(a)  any of the units in which are quoted on the Australian Stock Exchange or on a recognised stock exchange, or

(b)  in respect of which:

(i)  units in the scheme have been issued to the public and 50 or more persons are beneficially entitled to units in the scheme, or

(ii)  a majority of units in the scheme are acquired by, for or on account of, a complying superannuation fund, a pooled superannuation trust or a life company, or

(c)  that, in the opinion of the Chief Commissioner, will satisfy paragraph (b) within 12 months after the Chief Commissioner gives written notice of that opinion to a person who has requested the Chief Commissioner to express that opinion in relation to the unit trust scheme.

(10) Mining securities
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of marketable securities in a company (wherever incorporated) whose sole business is either or both of the following activities:

(a)  mining in New South Wales for minerals within the meaning of the Mining Act 1992 or the Offshore Minerals Act 1999, or

(b)  prospecting or mining in New South Wales for petroleum within the meaning of the Petroleum (Onshore) Act 1991,

      if the consideration for the transfer or agreement is not less than the unencumbered value of the marketable securities.

(11) “Top hatting” arrangements
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of marketable securities, or a vesting of marketable securities by or as a consequence of an order of a court, if the Chief Commissioner is satisfied that the transfer or vesting is made to give effect to a scheme that would qualify as a roll-over under Subdivision 124-Q of the Income Tax Assessment Act 1997 of the Commonwealth.

Note. No duty is chargeable on transactions relating to shares or units that are quoted on the Australian Stock Exchange or a recognised stock exchange or relating to interests in such shares or units (see section 11 (2)).

The duty on all marketable securities is to be abolished on 1 July 2012. See Part 4 of this Chapter.

67   Exemptions—transfers to married couples and de facto partners

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of dutiable property if it is proved to the satisfaction of the Chief Commissioner that:

(a)  as a result of the transfer or agreement, the property is or will be held by a married couple or de facto partners as joint tenants or as tenants in common in equal shares, and

(b)  the dutiable property:

(i)  is land that has erected on it a private dwelling house and was solely or principally used, as at the date of transfer, as the principal place of residence of the married couple or de facto partners, or

(ii)  is vacant land and the married couple or de facto partners intend to use it as the site of a private dwelling house to be solely or principally used as their principal place of residence, or

(iii)  is shares that confer an entitlement to exclusive possession of a company title dwelling that was solely or principally used, as at the date of transfer, as the principal place of residence of the married couple or de facto partners, and

(c)  both the transferor and the transferee are the married couple or one of them or the de facto partners or one of them and no other person is a party to the transfer, and

(d)  in the case of de facto partners, the parties to the relationship have lived in the relationship for at least the 2 years before the date of the transfer.

(1A)  For the purposes of subsection (1) (b), a private dwelling house may be principally used as the principal place of residence of a married couple or de facto partners despite the fact that it may be partly owned by another person or persons or that it may also be the principal place of residence of another person or persons.

(2)  In this section, private dwelling house includes a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973 used as a place of residence.

68   Exemptions—break-up of marriages and other relationships

(1) Break-up of marriage
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of matrimonial property if:

(a)  the property is transferred, or agreed to be sold or transferred, to the parties to a marriage that is dissolved or annulled, or in the opinion of the Chief Commissioner has broken down irretrievably, or to either of them, or to a child or children of either of them or a trustee of such a child or children, and

(b)  the transfer or agreement is effected by or 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 under that Act, or

(iia)  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

(iii)  a purchase at public auction of property that, immediately before the auction, was matrimonial property where the public auction is held to comply with any such agreement or order.

(1A) Break-up of de facto relationship
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of relationship property if:

(a)  the property is transferred, or agreed to be sold or transferred, to the parties to a de facto relationship that has, in the opinion of the Chief Commissioner, broken down or to either of them, or to a child or children of either of them or a trustee of such a child or children, and

(b)  the transfer or agreement is effected by or 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 under that Act, or

(iii)  a purchase at public auction of property that, immediately before the auction, was relationship property where the public auction is held to comply with any such agreement or order.

(2) Break-up of domestic relationship
No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of relationship property if:

(a)  the property is transferred, or agreed to be sold or transferred, to the parties to a domestic relationship that has, in the opinion of the Chief Commissioner, been terminated or to either of them, or to a child or children of either of them or a trustee of such a child or children, and

(b)  the transfer or agreement is effected by or 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, or

(iii)  a purchase at public auction of property that, immediately before the auction, was relationship property where the public auction is held to comply with any such order or agreement.

(3) Associated transactions
No duty is chargeable under this Chapter on a dutiable transaction to the extent that:

(a)  for purposes of or ancillary to a transfer referred to in subsection (1), (1A) or (2), it transfers 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

(b)  it is a declaration of trust, by the transferee of a share transferred as referred to in paragraph (a), for the benefit of a party to the marriage or relationship.

(4) Refunds—break-up of marriage
If:

(a)  ad valorem duty was paid on a transfer, or an agreement for the sale or transfer, of matrimonial property to the parties to a marriage or to either of them, or to a child or children of either of them or to a trustee of such a child or children, and

(b)  the transfer or agreement was effected as referred to in section 68 (1) (b), and

(c)  the marriage has been dissolved or annulled or has broken down irretrievably,

      the Chief Commissioner must reassess the transfer or agreement and refund the duty paid.

(4AA) Refunds—break-up of de facto relationship
If:

(a)  ad valorem duty was paid on a transfer, or an agreement for the sale or transfer, of relationship property to the parties to a de facto relationship or to either of them, or to a child or children of either of them or to a trustee of such a child or children, and

(b)  the transfer or agreement was effected as referred to in section 68 (1A) (b), and

(c)  the de facto relationship has broken down,

      the Chief Commissioner must reassess the transfer or agreement and refund the duty paid.

(4A) Refunds—break-up of domestic relationship
If:

(a)  ad valorem duty was paid on a transfer, or an agreement for the sale or transfer, of relationship property to the parties to a domestic relationship or to either of them, or to a child or children of either of them or to a trustee of such a child or children, and

(b)  the transfer or agreement was effected as referred to in section 68 (2) (b), and

(c)  the domestic relationship has been terminated,

      the Chief Commissioner must reassess the transfer or agreement and refund the duty paid.

(4B) Evidence of exemption
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 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.

The Chief Commissioner is required to have regard to any such statement in exercising his or her functions under this section.

(4C) Power to require other evidence
Subsection (4B) does not limit the functions of the Chief Commissioner under section 72 of the Taxation Administration Act 1996.

(5) Definitions
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.

Part 8 Exemption, discounts and instalment payment schemes

Division 1 First Home Plus

Subdivision 1 Agreements and associated mortgages

69   The nature of the scheme

This scheme is intended to help people who are acquiring their first home. Under the scheme, the acquisition and any mortgage given to assist the financing of the acquisition is subject to a concession or exemption from duty.

70   Commencement

The following transactions and instruments are eligible for consideration under the scheme:

(a)  agreements for sale or transfer entered into on or after 4 April 2004,

(b)  transfers that occur on or after 4 April 2004 (other than transfers made in conformity with an agreement for sale or transfer entered into before 4 April 2004),

(c)  mortgages over land the subject of those agreements or transfers.

71   Restrictions on eligibility—previous ownership of residential property or first home concession

(1)  A purchaser or transferee under an agreement or transfer may apply under the scheme, but will be eligible only if the purchaser or transferee is a first home owner.

(2)  A first home owner is an individual:

(a)  who has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner, and

(b)  whose spouse (if any) has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner.

(3)  (Repealed)

(4)  For the purpose of this section, a person is the spouse of another person if:

(a)  they are legally married, or

(b)  they are living together as a couple in a de facto relationship.

(5)  If the Chief Commissioner is satisfied that, at the time of making an application under the scheme, a purchaser or transferee:

(a)  is legally married but not cohabiting with the person to whom the applicant is legally married, and

(b)  has no intention of resuming cohabitation,

      the person to whom the purchaser or transferee is legally married is not to be regarded as the applicant’s spouse.

(6)  For the purpose of determining eligibility, the ownership at any time of another residential property, or a previous application under the scheme, is to be disregarded if the other residential property owned by the purchaser or transferee is or was vested in the purchaser or transferee on trust, or as an executor under a will, or the application was made by the purchaser or transferee in his or her capacity as trustee or executor.

(7)  The fact that a purchaser or transferee under an agreement or transfer is not a first home owner does not prevent the agreement or transfer from being eligible under the scheme if:

(a)  one or more of the purchasers or transferees under the agreement or transfer is a first home owner, and

(b)  the total ownership share in the property to which the application relates that is being acquired by purchasers or transferees who are not first home owners does not exceed 5%.

Note. A purchaser or transferee is not considered to be a first home owner unless both the purchaser or transferee, and his or her spouse (if any), have not owned residential property before. See subsection (2).

(8)  For the purposes of this section, a person who is, or has at any time been, the holder of a leasehold interest granted by the Commonwealth in residential property in the Australian Capital Territory is taken to own or have owned that residential property.

72   (Repealed)

73   Ineligible persons

(1)  Companies, partnerships, and persons in their capacity as trustees, are not eligible.

(2)  However, a trustee is eligible if:

(a)  the trustee is the guardian of a person under a legal disability and the person under a legal disability is a first home owner who will be occupying the home to which the agreement or transfer relates as a principal place of residence in accordance with the residence requirement under section 76, or

(b)  the trustee is an apparent purchaser of a kind referred to in section 55 and the real purchaser is a first home owner.

(3)  A purchaser or transferee under an agreement or transfer who is under 18 years of age is not eligible.

(4)  Despite subsection (3), the Chief Commissioner may determine that a purchaser or transferee under 18 years of age is eligible if the Chief Commissioner is satisfied that:

(a)  the home to which the agreement or transfer relates will be occupied by the purchaser or transferee as his or her principal place of residence in accordance with the residence requirement under section 76, and

(b)  the application does not form part of a scheme to circumvent limitations on, or requirements affecting, eligibility under the scheme.

(5)  A purchaser or transferee under an agreement or transfer is not eligible unless the person is an Australian citizen or a permanent resident, subject to subsection (6).

(6)  If there is more than one purchaser or transferee under an agreement or transfer and at least one of them is a first home owner who is an Australian citizen or permanent resident, the other purchasers or transferees are exempt from compliance with subsection (5).

(7)  In this section:

Australian citizen has the same meaning as in the Australian Citizenship Act 2007 of the Commonwealth.

permanent resident means:

(a)  the holder of a permanent visa within the meaning of section 30 of the Migration Act 1958 of the Commonwealth, or

(b)  a New Zealand citizen who holds a special category visa within the meaning of section 32 of the Migration Act 1958 of the Commonwealth.

73A   Application of eligibility criteria to joint purchasers and transferees

(1)  If there is more than one purchaser or transferee under an agreement or transfer, they may apply under the scheme, but the agreement or transfer will be eligible under the scheme only if all of the purchasers or transferees are eligible under the scheme.

(2)  This section is subject to section 78B.

Note. Section 78B allows a limited duty concession under the scheme to be claimed in respect of residential property that is purchased subject to a shared equity arrangement between a first home owner and a person who is not a first home owner.

74   Eligible agreements or transfers

(1)  The agreement or transfer must be for the acquisition of a first home or for the acquisition of a vacant block of residential land intended to be used as the site of a first home.

(2)  The agreement or transfer must be for the whole of the property or, if the property is a parcel of land on which 2 or more homes are built, or are being built, for that part of the land that is an exclusive occupancy.

(3)  The dutiable value of the dutiable property that is the subject of the agreement or transfer must be less than:

(a)  $600,000 if the property has a private dwelling built on it, or

(b)  $450,000 if the property comprises a vacant block of residential land.

Note. The dutiable value of dutiable property is the greater of:

(a)  the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration), and

(b)  the unencumbered value of the dutiable property.

(4)  For the purposes of this section, land is an exclusive occupancy only if the Chief Commissioner is satisfied that the person acquiring the land will be entitled to occupy a home that is built, or being built, on the land as a place of residence to the exclusion of other persons who occupy or are to occupy the other home or homes built or being built on the parcel of land.

75   Ineligible agreements and transfers

(1)  An agreement or transfer is not eligible if it involves the acquisition of a business or business premises. However, an agreement for the purchase, or a transfer, of a farming property on which there is a private dwelling is not excluded.

(2)  An agreement for the purchase, or a transfer, of a holiday home is not eligible.

(3)  (Repealed)

76   Residence requirement

(1)  The home must be occupied by the first home owner or one of the first home owners who is acquiring it as a principal place of residence for a continuous period of at least 6 months, with that occupation starting within 12 months (or such longer period as the Chief Commissioner may approve) after completion of the agreement or transfer. This requirement is referred to as the residence requirement.

(2)  The Chief Commissioner may, if satisfied there are good reasons to do so in a particular case:

(a)  modify the residence requirement by approving a shorter period of occupation by a first home owner, or

(b)  exempt a first home owner from the requirement to comply with the residence requirement.

(3)  In the case of an agreement or transfer for the acquisition of a vacant block of residential land, it is sufficient that the Chief Commissioner is satisfied that the vacant block is intended to be used as the site of a home to be occupied by the first home owner or one of the first home owners who is acquiring it as a principal place of residence.

(4)  (Repealed)

(5)  For the purpose of this section, an agreement or transfer is completed when a purchaser or transferee becomes entitled to possession of the home and, if the interest in the land acquired by the purchaser or transferee is registrable under a law of the State, the interest is so registered.

(6)  The residence requirement does not apply to an application under the scheme if, on the date of the agreement or transfer:

(a)  the applicant or, if there are 2 or more of them, at least one of the applicants is a member of the Permanent Forces of the Australian Defence Force (within the meaning of the Defence Act 1903 of the Commonwealth), and

(b)  the applicant or, if there are 2 or more of them, each of the applicants is enrolled to vote in State elections (under the Parliamentary Electorates and Elections Act 1912).

76A   Approval of application in advance of satisfaction of residence requirement

(1)  The Chief Commissioner may approve an application in anticipation of compliance with the residence requirement under section 76 if the Chief Commissioner is satisfied that each applicant required to comply with the residence requirement intends to occupy the home as his or her principal place of residence for a continuous period of at least 6 months, with that occupation starting within 12 months after completion of the agreement or transfer or within a longer period approved by the Chief Commissioner.

(2)  If an application is approved in anticipation of compliance with the residence requirement, the approval is given on condition that, if the residence requirement is not complied with, the applicant must within 14 days after the end of the period allowed for compliance:

(a)  give written notice of that fact to the Chief Commissioner, and

(b)  pay the relevant duty to the Chief Commissioner.

(3)  The relevant duty is the difference between the total amount of duty that would have been payable on the transactions and instruments the subject of the application, if they had not been eligible under the scheme, and the total amount of duty (if any) paid in respect of those transactions and instruments.

(4)  A person who fails to comply with the condition prescribed by this section is guilty of an offence.

Maximum penalty: 50 penalty units.

(5)  A failure to comply with the condition prescribed by this section is a tax default for the purposes of the Taxation Administration Act 1996.

77   Eligible mortgages

(1)  A mortgage is eligible if:

(a)  it is given to assist the financing of a purchase under an agreement or transfer that is eligible under the scheme, and

(b)  the purchaser or purchasers under the agreement or transfer are eligible under the scheme (including if the agreement or transfer is eligible under the scheme for a shared equity concession).

(2)  The mortgage must be over the property purchased.

(3)  In the case of a property that has a private dwelling built on it, the amount of advances secured must not be more than the amount of the dutiable value permitted under section 74 (3) (a).

(4)  In the case of a property that comprises a vacant block of residential land, the amount of advances secured must not be more than the amount of the dutiable value permitted under section 74 (3) (b), unless the amount of advances secured under the mortgage includes provision for the building of a private dwelling on the property. In such a case, the amount of advances secured must not be more than the amount of the dutiable value permitted under section 74 (3) (a).

Note. See also section 221B, which extends a general mortgage duty exemption to all mortgages associated with owner occupied housing, and takes effect on and from 1 September 2007.

78   Making of applications

(1)  An application is made to the Chief Commissioner by completing a statutory declaration in an approved form.

(2)  (Repealed)

(3)  The Chief Commissioner may at any time (whether before or after the approval of an application) require the applicant or applicants to provide such further information as the Chief Commissioner may consider necessary for the proper administration of the scheme.

78A   Duty payable if application approved

(1)  If an application concerning an eligible agreement or transfer is approved and the dutiable value of the dutiable property that is the subject of the agreement or transfer is not more than the following amounts, no duty is chargeable on the agreement or transfer:

(a)  $500,000 if the property has a private dwelling built on it, or

(b)  $300,000 if the property comprises a vacant block of residential land.

(2)  If an application concerning an eligible agreement or transfer is approved and subsection (1) does not apply to the agreement or transfer, duty is chargeable on the agreement or transfer as follows:

(a)  if the property has a private dwelling built on it—at the rate of 22.49% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $112,450, or

(b)  if the property comprises a vacant block of residential land—at the rate of 10.49% of the dutiable value of the dutiable property that is the subject of the agreement or transfer, less $31,470.

(3)  This section does not apply in respect of an agreement or transfer that is eligible under the scheme only for a shared equity concession.

78B   Special concession for shared equity arrangements

(1)  If there is more than one purchaser or transferee under an agreement or transfer, and one or more of them is a first home owner, but the agreement or transfer is not eligible under the scheme because one or more of the other purchasers or transferees is not eligible under the scheme, the agreement or transfer may still be eligible for a duty concession under the scheme (a shared equity concession).

(2)  In order to be eligible for a shared equity concession:

(a)  the purchasers or transferees who are first home owners must acquire not less than a 50% share in the ownership of the property, and

(b)  the agreement or transfer must be an agreement or transfer that would be eligible under the scheme if the first home owners were the sole purchasers or transferees under the agreement or transfer.

(3)  If an application concerning an agreement or transfer that is eligible under the scheme for a shared equity concession is approved, duty is chargeable as follows:

where:

D is the duty chargeable.

R is the duty that would be chargeable on the dutiable value of the property if this Subdivision did not apply in respect of the agreement or transfer.

E is the ownership share in the property of the first home owner or owners, expressed as a percentage.

C is the duty (if any) that would be chargeable under section 78A on the agreement or transfer if that section applied in respect of the agreement or transfer.

(4)  Despite anything to the contrary in this section, an agreement or transfer under which one or more of the purchasers or transferees is a company is not eligible under the scheme for a shared equity concession if the Chief Commissioner is satisfied that the application relating to that agreement or transfer should not be approved for any good reason.

(5)  To avoid doubt, a reference in this Subdivision (except section 78A) to an application that has been approved under the scheme includes an application that has been approved under the scheme because of eligibility for a shared equity concession.

79   Reassessment of duty payable where duty concession wrongly applied

(1)  The Chief Commissioner may reassess the duty chargeable in respect of an agreement or transfer that is initially approved under the scheme if the Chief Commissioner forms the opinion that the agreement or transfer is not eligible under the scheme (because of failure to comply with the residence requirement or otherwise).

(2)  The Chief Commissioner may issue a notice of assessment, based on the reassessment, for the duty chargeable in respect of the agreement or transfer.

80   Charge on land for duty liability of applicant

(1)  Any duty liability that an applicant has under the scheme in respect of an agreement or transfer is a charge on the applicant’s interest in the land that is the subject of the agreement or transfer.

(2)  An applicant has a duty liability under the scheme in respect of an agreement or transfer if the applicant is required to pay an amount of duty to the Chief Commissioner, in respect of an agreement or transfer that is initially approved under the scheme:

(a)  under a condition of approval referred to in section 76A, or

(b)  under a notice of assessment referred to in section 79.

(3)  The charge created by this section gives the Chief Commissioner an interest in the land and, accordingly, the Chief Commissioner may lodge a caveat in respect of the land under the Real Property Act 1900 to protect that interest.

(4)  The caveat must be withdrawn when the amount of the duty liability has been paid.

(5)  The amount of the duty liability is the amount of duty that the applicant is required to pay to the Chief Commissioner in respect of the relevant agreement or transfer, together with any interest or penalty tax payable.

(6)  In this section:

applicant includes a former applicant.

80AA   (Renumbered as sec 78B)

80A   Definitions

In this Subdivision:

first home owner has the meaning given by section 71.

guardian of a person under a legal disability includes a trustee who holds property on trust for the person under an instrument of trust or by order or direction of a court or tribunal.

notice of assessment means a notice of assessment under the Taxation Administration Act 1996.

residence requirement—see section 76.

residential property means:

(a)  land on which there is a building that is lawfully occupied as a place of residence or suitable for occupation as a place of residence, or

(b)  a company title dwelling.

shared equity concession has the meaning given by section 78B.

Subdivision 1A Payment of instalments under First Home Purchase Scheme prior to 1 August 1998

81   Payment of instalments

(1)  Where instalments of duty are to be paid in accordance with an undertaking given under section 78 (2) as in force before 1 August 1998, the first instalment is to be paid by a date which is 1 year after the date of exchange of the agreement.

(2)  Although instalments are payable annually, payments may be made at more frequent intervals.

82   Payment of interest

(1)  No interest is payable unless an instalment is overdue. An instalment is overdue if it is not paid within 21 days after the date fixed for its payment in the undertaking.

(2)  Interest on an instalment that is overdue is payable as on a tax default by a taxpayer under the Taxation Administration Act 1996.

(3)  A person having the benefit of the scheme is not liable, in that capacity, for any penalty under this Act or any interest other than as provided by this section.

83   Overdue instalments

As well as attracting interest, if an instalment is overdue for more than 3 months, the Chief Commissioner (or the Chief Commissioner’s agent) may sue the defaulter to recover, as a debt, the whole of the outstanding balance of the duty and any accrued interest and may, in addition, lodge and maintain a caveat over the subject property until all duty has been paid.

84   Sale or leasing of home or land before all instalments are paid

(1)  If the home or land is sold, leased (wholly or in part) or otherwise disposed of, or if for some other reason the home ceases to be the principal place of residence of the person or both of the persons having the benefit of the scheme:

(a)  any entitlement to a discount under section 87 ceases immediately the home or land is sold, leased or otherwise disposed of or the home so ceases to be the principal place of residence, and

(b)  the whole of the outstanding balance of the duty and any accrued interest becomes immediately payable.

(2)  The Chief Commissioner (or the Chief Commissioner’s agent) may sue the person or persons owing the duty and any interest to recover, as a debt, the amount involved.

85   (Repealed)

Subdivision 2 Discount for full payment of remaining duty

86   Application of Subdivision 2

This Subdivision applies to a person or persons having the benefit of the scheme set out in Subdivision 1 or a first home purchase scheme that operated under the Stamp Duties Act 1920.

87   Discount for full payment of remaining duty

(1)  A person or persons to whom this Subdivision applies may choose at any time to pay out, at a discount of 50%, the total of all instalments of duty remaining at that time.

(2)  There is no entitlement to a discount under this section at any time when an instalment is overdue or any interest payable on an overdue instalment remains unpaid.

Division 1A NSW Housing Construction Acceleration Plan (Budget 2009–10)

87A   Nature of the scheme

The scheme established by this Division is intended to provide a reduction in duty in respect of the purchase or construction of new homes by persons who are not eligible for an exemption or reduction under the First Home Plus scheme in Division 1 or a grant under the First Home Owner Grant Act 2000.

87B   Relevant dates for eligibility

(1)  The following agreements or transfers are eligible for consideration under the scheme:

(a)  agreements for sale or transfer of dutiable property entered into on or after 1 July 2009 and before 1 January 2010,

(b)  transfers of dutiable property that occur on or after 1 July 2009 and before 1 January 2010 (other than transfers made in conformity with an agreement for sale or transfer entered into before 1 July 2009).

(2)  An agreement for the sale or transfer of dutiable property is not eligible if:

(a)  it replaces an agreement made before 1 July 2009, and

(b)  the replaced agreement was an agreement for the sale or transfer of substantially the same dutiable property.

87C   Agreements or transfers must be for acquisition of new home

(1)  An agreement for the sale or transfer of dutiable property is eligible under the scheme if:

(a)  it is an agreement for the acquisition of a new home that is complete and ready for occupation, or

(b)  it is an agreement for the sale or transfer of land on which a new home is to be built before completion of the sale or transfer (an off the plan purchase agreement).

(2)  A transfer is eligible under the scheme if the transfer is for the acquisition of a new home that is complete and ready for occupation.

(3)  For the purposes of this Division, a new home is a home that has not been previously occupied or sold as a place of residence, and includes a substantially renovated home.

(4)  An off the plan purchase agreement is eligible only if the agreement states that the sale or transfer must be completed before 30 June 2011 or, in any other case, the agreement is completed before 30 June 2011 or by such later date as the Chief Commissioner may allow for delay caused by circumstances beyond the control of the parties.

(5)  In any case, the agreement or transfer must be for the whole of the land or, if the land is a parcel of land on which 2 or more homes are built, or are being built, for that part of the land that is an exclusive occupancy.

(6)  For the purposes of this section, land is an exclusive occupancy only if the Chief Commissioner is satisfied that the person acquiring the land will be entitled to occupy a home that is built, or being built, on the land as a place of residence to the exclusion of other persons who occupy or are to occupy the other home or homes built or being built on the parcel of land.

(7)  The Chief Commissioner may approve an application in relation to an off the plan purchase agreement in anticipation of compliance with the eligibility requirements of this section.

87D   Restrictions on eligibility

(1)  An agreement or transfer is not eligible if:

(a)  the agreement or transfer is eligible under the First Home Plus scheme in Division 1, or

(b)  the transferee, or any of the transferees, is eligible for or has been paid a grant under the First Home Owner Grant Act 2000 in respect of the purchase or construction of the new home on the land.

(2)  An agreement or transfer is not eligible if the new home, or the land on which the new home is located or to be built, is intended to be used, or made available for use, for any purpose that is not ancillary to the use and occupation of the land for residential purposes (such as a commercial, industrial or professional purpose).

(3)  However, an agreement for the purchase, or a transfer, of a farming property on which there is a new home or on which a new home is to be constructed is not excluded.

87E   Cap on dutiable value of transaction

The dutiable value of the dutiable property that is the subject of the agreement or transfer must not exceed $600,000.

87F   Duty payable if application approved

(1)  If an application concerning an eligible agreement or transfer is approved, the amount of ad valorem duty chargeable on the agreement or transfer is to be reduced by 50%.

(2)  If an eligible agreement or transfer is aggregated with other dutiable transactions, and treated as a single dutiable transaction under section 25, the 50% reduction is to be applied only to the ad valorem duty that would be chargeable (in the absence of aggregation) on the approved agreement or transfer.

87G   Making of applications

(1)  An application under this Division is to be made to the Chief Commissioner in an approved form.

(2)  The Chief Commissioner may at any time (whether before or after the approval of an application) require the applicant or applicants to provide such further information as the Chief Commissioner may consider necessary for the proper administration of the scheme.

87H   Reassessment of duty payable where duty concession wrongly applied

(1)  The Chief Commissioner may reassess the duty chargeable in respect of an agreement or transfer that is initially approved under the scheme if the Chief Commissioner forms the opinion that the agreement or transfer is not eligible under the scheme, including in a case where approval was given in anticipation of compliance with any eligibility requirements that have not been met.

(2)  The Chief Commissioner may issue a notice of assessment, based on the reassessment, for the duty chargeable in respect of the agreement or transfer.

87I   Charge on land for duty liability of applicant

(1)  Any duty liability that an applicant has under the scheme in respect of an agreement or transfer is a charge on the applicant’s interest in the land that is the subject of the agreement or transfer.

(2)  An applicant has a duty liability under the scheme in respect of an agreement or transfer if the applicant is required to pay an amount of duty to the Chief Commissioner, in respect of an agreement or transfer that is initially approved under the scheme, under a notice of assessment referred to in section 87H.

(3)  The charge created by this section gives the Chief Commissioner an interest in the land and, accordingly, the Chief Commissioner may lodge a caveat in respect of the land under the Real Property Act 1900 to protect that interest.

(4)  The caveat must be withdrawn when the amount of the duty liability has been paid.

(5)  The amount of the duty liability is the amount of duty that the applicant is required to pay to the Chief Commissioner in respect of the relevant agreement or transfer, together with any interest or penalty tax payable.

(6)  In this section:

applicant includes a former applicant.

87J   Definitions

(1)  In this Division:

home means a building (affixed to land) that:

(a)  may lawfully be used as a place of residence, and

(b)  is, in the Chief Commissioner’s opinion, a suitable building for use as a place of residence.

new home—see section 87C.

(2)  For the purposes of this Division, a home is a substantially renovated home if:

(a)  the home is new residential premises within the meaning of section 40-75 (1) (b) of the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth, and

(b)  the home, as renovated, has not been previously occupied or sold as a place of residence.

Division 2 Flood-prone housing scheme

88   The nature of the scheme

This scheme is intended to assist a person who, as an owner of a home on flood-prone land, has entered into an agreement for the sale of the land to the council of the local government area in which the land is situated and then purchases another home. The scheme enables such a person to choose to pay duty on the agreement for the purchase of the new home by instalments over a period of 5 years (instead of at the time of purchase).

89   Commencement

Agreements for sale or transfer entered into on or after the commencement of this Division are eligible for consideration under the scheme.

90   Eligible persons

A person may apply under the scheme if:

(a)  the person was the owner of at least 50% of the beneficial interest in the land sold or being sold to the council, and

(b)  the person has entered into an agreement for the purchase of a home intended to be occupied as the person’s principal place of residence.

91   Eligible agreements

The agreement for the purchase of the new home is eligible for consideration under the scheme if the amount paid for the home is the full market value. Wholly or partially gifted property is not eligible.

92   Other provisions

(1)  Section 76 applies to this scheme in the same way as it applies to First Home Plus.

(2)  Sections 78 and 81–84 apply to this scheme in the same way as they applied to the First Home Purchase Scheme before 1 August 1998.

Division 3 Exemption from or reduction in duty for certain transfers

93   The nature of the scheme

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.

94   Definitions

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.

101   Making of applications

(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 company titles

This Division applies to the transfer of shares in a private company or units in a private unit trust scheme, the ownership of which entitles the owner to the exclusive possession, or substantially exclusive possession, of a dwelling in a building containing more than one separate dwelling, in the same way as it applies to a transfer of land, with such modifications as may be necessary.

Chapter 3 Certain transactions treated as transfers

Part 1 Preliminary

105   Introduction and overview

This Chapter charges duty at the same rate as for a transfer of dutiable property under Chapter 2 on certain transactions which are not “dutiable transactions” under Chapter 2.

Part 2 Transactions involving put and call options

106   Definitions

In this Part:

assign or assignment includes transfer, and a reference to the assignment of a right under a call option includes a reference to a transfer of the call option.

call option means a right to require a person to sell dutiable property that is conferred by an agreement or arrangement (being an agreement or arrangement that is not a dutiable transaction).

put option means a right to require a person to purchase dutiable property that is conferred by an agreement or arrangement (being an agreement or arrangement that is not a dutiable transaction).

107   Assignment of rights under call option dutiable as transfer

(1)  If a person (A) assigns his or her right under a call option to require another person (B) to sell dutiable property, so that the option is exercisable by a third person (C), duty under Chapter 2 is chargeable on that assignment as if the assignment were a transfer of the dutiable property concerned.

(2)  For the purposes of this section, if A enters into an agreement or arrangement under which A, for valuable consideration, relinquishes his or her right under a call option to require B to sell dutiable property and a call option to require B to sell the dutiable property is granted to C, A is to be treated as having assigned his or her right under the call option to C.

(3)  An assignment is chargeable with duty as a consequence of this Part only if the person who may be required under the call option to sell the dutiable property (that is, B) has a right under a put option to require A, an associated person of A or, following the assignment of a right under the call option, C to purchase the dutiable property.

(4)  If the assignment is chargeable with duty, Chapter 2 applies in respect of the assignment in the same way as it applies to other transfers of dutiable property, and a reference in this Act to a dutiable transaction includes such an assignment, subject to this Part.

(5)  For the purpose of Chapter 2, the transfer of dutiable property is taken to occur when the assignment is made.

(6)  This section applies regardless of when the call option or put option is exercisable.

(7)  An assignment of a right under a call option to purchase dutiable property, as referred to in subsection (1) or (2), is referred to in this Part as a call option assignment.

108   Person liable to pay duty

(1)  The duty chargeable on a call option assignment is payable by the person who assigns his or her right under the call option to require another person to sell dutiable property (the option holder).

(2)  Accordingly, the option holder is taken, for the purpose of charging duty under Chapter 2, to be the transferee of the dutiable property.

(3)  The duty payable by the option holder is additional to the duty (if any) payable under Chapter 2 by a transferee on the transfer of an option to purchase land in New South Wales.

(4)  However, the duty payable by the option holder as a consequence of this Part is to be reduced by the amount of duty (if any) paid by the option holder under Chapter 2 on the transfer of the call option to the option holder.

(5)  The duty payable by the option holder on a call option assignment as a consequence of this Part is referred to as call option assignment duty.

Note. The following is an example of how this Part operates:

B grants A a call option that confers a right on A (or any assignee of A) to require B to sell land. A also grants B a put option that confers on B a right to require A (or any assignee of A) to purchase the land from B. No duty is payable at this point.

A then transfers the call option to C. Duty is payable as follows:

(a)  A (as the option holder) must pay call option assignment duty, as a consequence of this Part, as if the transfer of the option were a transfer of the land. Duty is payable on the dutiable value of the land (determined as provided for by this Part),

(b)  C (as the transferee of the option) must pay duty under Chapter 2 on the transfer of the option. Duty is payable on the dutiable value of the option (determined as provided for by Chapter 2).

C then transfers the option to D. C (as the option holder) is required to pay call option assignment duty as if the option were a transfer of the land. However, in this case C will receive a credit for the duty paid by C on the transfer of the option to C. D (as the transferee of the option) is required to pay duty under Chapter 2 on the transfer.

109   Determination of dutiable value of transfer

For the purposes of Chapter 2, the dutiable value of dutiable property that is subject to a call option assignment is taken to be the greater of:

(a)  the sum of the consideration for the assignment of the right under the call option and the consideration payable in the event that the call option is exercised (being in either case the amount of monetary consideration or the value of non-monetary consideration), and

(b)  the unencumbered value of the dutiable property.

110   Stamping or endorsement of transactions

(1)  If an instrument that effects or evidences a transfer of an option to purchase land in New South Wales also effects or evidences a call option assignment, and it is stamped under this Act to indicate payment of duty, it must be stamped in a manner approved by the Chief Commissioner to indicate the type of duty (that is, purchaser duty or call option assignment duty) that has been paid.

(2)  If an instrument that effects or evidences a transfer of an option to purchase land in New South Wales also effects or evidences a call option assignment, and it is endorsed under this Act to indicate payment of duty, it must be endorsed in a manner approved by the Chief Commissioner to indicate the type of duty (that is, purchaser duty or call option assignment duty) that has been paid.

(3)  An instrument that effects or evidences a transfer of an option to purchase land in New South Wales and a call option assignment is not duly stamped unless it is stamped or endorsed in accordance with this section.

(4)  In this section:

purchaser duty means the duty (if any) payable under Chapter 2 by a transferee on the transfer of an option to purchase land in New South Wales.

111   Exemptions

(1)  No duty is chargeable as a consequence of this Part on a call option assignment if the Chief Commissioner is satisfied that:

(a)  the call option and put option were granted by the parties concerned for the sole purpose of obtaining finance, or

(aa)  the call option is assigned to a body established solely for the purpose of raising funds in relation to an investment scheme promoted by the person who assigns the call option, or

(b)  the call option and the put option form part of a scheme of call options and put options granted by proprietors of a business that:

(i)  were granted for the sole purpose of facilitating the continuation of the business by one or more of the proprietors (the continuing proprietors), and

(ii)  are not exercisable except on the occurrence of a specified event that would cause the continuing proprietors to seek to acquire the interest of one or more of the other proprietors of the business, or

(c)  the dutiable property the subject of the call option is land and the call option is assigned by a person authorised to contract to do residential building work under the Home Building Act 1989 who:

(i)  has built or is building residential premises on the land for the purposes of sale, or

(ii)  has an agreement with the person to whom the call option is assigned to build residential premises on the land, or

(d)  the call option is assigned by a corporation that is a member of a group of corporations to another corporation that is a member of the same group.

(2)  This section does not affect the duty payable under Chapter 2 (if any) by the transferee on a transfer of an option to purchase land in New South Wales.

(2A)  For the purposes of this section, corporations are members of the same group of corporations if:

(a)  one corporation is a wholly owned subsidiary of the other corporation (that is, the other corporation holds, otherwise than as trustee, not less than 90% of the issued share capital of the first corporation and is in a position to control not less than 50% of the maximum number of votes that might be cast at a general meeting of the first corporation), or

(b)  the corporations are wholly owned subsidiaries (within the meaning of paragraph (a)) of the same corporation.

(2B)  If a corporation that is a wholly owned subsidiary (within the meaning of subsection (2A) (a)) of another corporation (the parent corporation) holds shares, otherwise than as trustee, in a third corporation, then, for the purposes of determining whether the parent corporation and the third corporation are members of the same group of corporations, the shares held by the wholly owned subsidiary in the third corporation are taken also to be shares held by the parent corporation in the third corporation.

Note. The effect of subsection (2B) is that the third corporation will be considered to be a wholly owned subsidiary of the parent corporation if the shareholdings of the parent corporation in the third corporation (if any) together with the shareholdings of any wholly owned subsidiary in the third corporation are sufficient to satisfy subsection (2A) (a).

(3)  In this section:

proprietor of a business means:

(a)  in the case of a business carried on by a partnership, a partner, or

(b)  in the case of a business carried on by a company, a shareholder, or

(c)  in the case of a business carried on by a unit trust scheme, a unit holder, or

(d)  in any other case, a person the Chief Commissioner determines to be a proprietor of the business.

112–123   (Repealed)

Part 3 Entitlements arising from capital reductions or rights alterations

124   Abolition of duty charged by this Part—effective 1 July 2012

(1)  The duty charged by this Part is abolished on and from 1 July 2012.

(2)  The duty charged by this Part remains chargeable on a dutiable entitlement that is acquired before 1 July 2012.

125   Definitions

(1)  In this Part:

capital reduction means:

(a)  the redemption, surrender or cancellation of a share (including cancellation as part of a buy-back of shares in accordance with Division 2 of Part 2J.1 of the Corporations Act 2001 of the Commonwealth), or

(b)  a reduction in the paid up value of a share.

company means a NSW company that is:

(a)  a public company within the meaning of the Corporations Act 2001 of the Commonwealth, and

(b)  not listed on the Australian Stock Exchange or a recognised stock exchange.

dutiable entitlement means a voting share entitlement in respect of whose acquisition a statement is required, under section 129, to be lodged.

person includes persons who are associated persons.

Note. 

Associated person is defined in the Dictionary.

rights alteration, in relation to voting shares, means a variation, abrogation or alteration of rights relating to the shares.

voting shares has the same meaning as in section 9 of the Corporations Act 2001 of the Commonwealth.

(2)  For the purposes of this Part, if voting shares acquired by associated persons severally do not, but taken in the aggregate would, confer an entitlement to which this Part applies, the voting shares acquired by the associated persons are taken to be aggregated and are taken to confer the entitlement on the associated person who last acquired any of those voting shares.

(3)  If, by subsection (2), an entitlement to voting shares is taken to exist as the aggregate of voting shares of associated persons, the associated persons are jointly and severally liable for payment of the duty chargeable on the statement required to be lodged under this Part.

(4)  Voting shares are not to be aggregated in accordance with subsection (2) if the Chief Commissioner is satisfied that the associated persons concerned acquired their several shares independently and for no common purpose.

126   When does a liability for duty arise?

A liability for duty charged by this Part arises when a dutiable entitlement is acquired.

127   When must duty be paid?

A tax default does not occur for the purposes of the Taxation Administration Act 1996 if duty is paid within 3 months after the liability to pay the duty arises.

128   Who is liable to pay the duty?

(1)  Duty chargeable under this Part is payable by the person who acquires a dutiable entitlement.

(2)  If the dutiable entitlement results from an aggregation of the voting share entitlements of associated persons, the associated persons are jointly and severally liable for payment of the duty.

129   Entitlement to voting shares arising from capital reduction or rights alteration

(1)  If:

(a)  a person becomes entitled to at least 50% of the voting shares of a company by means of capital reduction or rights alteration, or both, or

(b)  a person who is entitled to at least 50% of the voting shares of a company becomes entitled to at least 10% more of the voting shares over a period of not more than 12 months by means of capital reduction or rights alteration, or both,

      the person must lodge a statement with the Chief Commissioner in respect of the entitlement.

(2)  The statement must be lodged within 3 months after the entitlement arises.

130   Form of statement

The statement required to be lodged under this Part by a person is to be in an approved form and is to contain the following information:

(a)  the name and address of the person,

(b)  the name of the company,

(c)  the date on which each relevant capital reduction or rights alteration, or both, occurred,

(d)  if the person’s entitlement has arisen:

(i)  from capital reduction—the total of the unencumbered value, immediately prior to each relevant capital reduction, of the shares the subject of the capital reduction, or

(ii)  from rights alteration—the total of the unencumbered value, immediately prior to each relevant rights alteration, of the shares the subject of the rights alteration, or

(iii)  from capital reduction and rights alteration—the aggregate of the totals under subparagraphs (i) and (ii),

(e)  the total consideration paid to the person in relation to all relevant capital reductions or rights alterations, or both,

(f)  such other information as may be required by the Chief Commissioner.

131   Assessment of duty

A statement required to be lodged under this Part by a person is chargeable with duty of 60 cents for every $100, or part, of the higher of:

(a)  the total or aggregate obtained under section 130 (d), and

(b)  the total obtained under section 130 (e).

Part 4 Acquisition of land use entitlements by allotment of shares or issue of units

132   When does a liability for duty arise?

A liability for duty charged by this Part arises when a land use entitlement is acquired by an allotment of shares or an issue of units to any person otherwise than in circumstances to which Part 5 applies.

133   When must duty be paid?

A tax default does not occur for the purposes of the Taxation Administration Act 1996 if duty is paid within 3 months after the liability to pay the duty arises.

134   Who is liable to pay the duty?

Duty chargeable under this Part is payable by the person who acquires the land use entitlement.

135   Acquisition of land use entitlement

(1)  A person who acquires a land use entitlement by an allotment of shares or an issue of units must lodge a statement (an acquisition statement) with the Chief Commissioner in respect of the entitlement.

(2)  The statement must be lodged within 3 months after the entitlement is so acquired.

136   Form of statement

An acquisition statement required to be lodged by a person is to be in an approved form and is to contain the following information:

(a)  the name and address of the person,

(b)  the name of the relevant company or unit trust,

(c)  the date on which the land use entitlement was acquired,

(d)  the consideration paid by the person for the relevant shares or units,

(e)  such other information as may be required by the Chief Commissioner.

137   Assessment of duty

The share allotment or unit issue by which a person acquires a land use entitlement is chargeable with duty at the general rate of duty set out in section 32 on the dutiable value of the land use entitlement.

Part 5 Allotment of shares by direction

137A   Abolition of duty charged by this Part—effective 1 July 2012

(1)  The duty charged by this Part is abolished on and from 1 July 2012.

(2)  The duty charged by this Part remains chargeable on an allotment of shares referred to in section 138 that occurs before 1 July 2012.

138   Application of Part 5

This Part applies to an allotment of shares to any person by a NSW company that is not listed on the Australian Stock Exchange or a recognised stock exchange at another person’s direction, in discharge of an obligation to that other person, whether that obligation arises as consideration for the purchase of property by the company or otherwise.

139   When does a liability for duty arise?

A liability for duty charged by this Part arises when the relevant shares are allotted.

140   When must duty be paid?

A tax default does not occur for the purposes of the Taxation Administration Act 1996 if duty is paid within 3 months after the liability to pay the duty arises.

141   Who is liable to pay the duty?

Duty chargeable under this Part is payable by the person to whom the relevant shares are allotted.

142   Acquisition of shares by allotment

(1)  A person to whom any shares are allotted in an allotment to which this Part applies must lodge a statement (an allotment statement) with the Chief Commissioner in respect of the allotment.

(2)  The statement must be lodged within 3 months after the shares are allotted.

143   Allotment statement

An allotment statement required to be lodged by a person is to be in an approved form and is to contain the following information:

(a)  the name and address of the person,

(b)  the name of the relevant company,

(c)  the date on which the shares were allotted to the person,

(d)  such other information as may be required by the Chief Commissioner.

144   Assessment of duty

An allotment to which this Part applies is chargeable with duty at the rate of duty set out in section 33 in respect of a transfer of marketable securities on the dutiable value of the shares.

Chapter 4 Acquisition of interests in landholders

Part 1 Preliminary

145   Overview

This Chapter charges duty on certain transactions that are not “dutiable transactions” under Chapter 2.

Note. Duty is chargeable under this Chapter on the acquisition by a person of a significant interest in a landholder at the same rate as the transfer duty chargeable under Chapter 2.

146   Meaning of “landholder”

(1)  For the purposes of this Chapter, a landholder is a unit trust scheme, a private company or a listed company that has land holdings in New South Wales with an unencumbered value of $2,000,000 or more.

(2)  A landholder is a private landholder if the landholder is a private unit trust scheme or private company.

(3)  A landholder is a public landholder if the landholder is a public unit trust scheme or a listed company.

147   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, subject to this section.

(2)  An interest in land 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.

(3)  An interest in land is not a land holding of a company if the company holds the land on trust, but only if the company is not a beneficiary of the trust.

(4)  This section is in aid of, but does not limit, the operation of any provision of this Chapter providing for constructive ownership of interests.

Part 2 Charging of duty on acquisitions of interests in landholders

148   When does a liability for duty arise?

A liability for duty charged by this Part arises when a relevant acquisition is made.

149   What is a “relevant acquisition”?

(1)  For the purposes of this Chapter, a person makes a relevant acquisition if the person:

(a)  acquires an interest in a landholder:

(i)  that is of itself a significant interest in the landholder, or

(ii)  that, when aggregated with other interests in the landholder held by the person or an associated person, results in an aggregation that amounts to a significant interest in the landholder, or

(iii)  that, when aggregated with other interests in the landholder acquired by the person or other persons under transactions that form, evidence, give effect to or arise from what is substantially one arrangement between the acquirers, results in an aggregation that amounts to a significant interest in the landholder, or

(b)  having a significant interest, or an interest described in paragraph (a) (ii), in a landholder, acquires a further interest in the landholder.

(2)  However, an acquisition of an interest in a private landholder under an arrangement that results in the private landholder ceasing to be a landholder is not a relevant acquisition because of subsection (1) (a) (iii).

150   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 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 landholder—50% or more of the property distributed, or

(b)  in the case of a public landholder—90% or more of the property distributed.

(3)  An interest in a landholder that was acquired at a time when the landholder did not hold land in New South Wales is not counted during the period of 12 months after the landholder first holds land in New South Wales.

(4)  In this section, person includes a landholder.

151   How may an interest be “acquired”?

(1)  For the purposes of this Chapter, a person acquires an interest in a landholder if the person obtains an interest, or the person’s interest increases, in the landholder regardless of how it is obtained or increased.

(2)  Without limiting subsection (1), a person may acquire an interest in a landholder in the following ways:

(a)  the purchase, gift or issue of a unit or share,

(b)  the cancellation, redemption or surrender of a unit or share,

(c)  the abrogation or alteration of a right for a unit or share,

(d)  the payment of an amount owing for a unit or share,

(e)  if the person holds an interest in the landholder (whether or not as trustee for another person) and the capacity in which the person holds the interest changes (including if there is a change in the beneficial ownership of an interest held by a person as trustee).

Note. For example, the capacity in which a person holds a unit or share in a landholder changes if the person declares a trust in respect of the unit or share.

(3)  To remove any doubt, it is declared that a person may acquire an interest in a landholder without acquiring units or shares in the landholder.

152   Acquisition statements

(1)  A person who has made a relevant acquisition must prepare a statement (an acquisition statement) and lodge it with the Chief Commissioner.

(2)  The acquisition statement is to be prepared in an approved form and must contain the following information:

(a)  the name and address of the person who has acquired the interest,

(b)  in relation to each interest acquired, the date on which it was acquired,

(c)  if the relevant acquisition results from the aggregation of the interests of associated persons, particulars of the interests acquired by the person and any associated persons on the date of the relevant acquisition,

(d)  particulars of the total interest of the person and any associated person in the landholder at that date.

(3)  The acquisition statement must also contain the following additional information:

(a)  the unencumbered value of all land holdings and goods in New South Wales of the landholder as at the date of the relevant acquisition and, if the landholder is a private landholder, as at the date of acquisition of each interest acquired in the landholder during the statement period,

(b)  such other information as the Chief Commissioner may require.

(4)  The additional information referred to in subsection (3) is not required in relation to any exempt acquisition.

(5)  The statement period is the period commencing 3 years before the date of the relevant acquisition and ending on the date of the relevant acquisition.

(6)  However, if the relevant acquisition is related to an acquisition of an interest in the landholder that was made before the start of that 3-year period (an earlier acquisition), the statement period is the period commencing on the date that earlier acquisition was made (or, if there is more than one, the first of them) and ending on the date of the relevant acquisition.

(7)  For the purposes of this section, a relevant acquisition is related to an earlier acquisition if it is made as a result of an arrangement entered into at the time of, or in connection with, the earlier acquisition.

Note. In ascertaining whether or not a liability to lodge a statement under this section exists, it is necessary to have regard to provisions of Part 3 that deal with how a person may be taken to have acquired an interest in a landholder because of the interests in a linked entity.

153   When must duty be paid?

A tax default does not occur for the purposes of the Taxation Administration Act 1996 if duty is paid within 3 months after the liability to pay the duty arises.

154   Who is liable to pay the duty?

(1)  Duty chargeable under this Part is payable by the person who makes the relevant acquisition, except as provided by subsection (2).

(2)  If a relevant acquisition results from an aggregation of the interests of associated persons, the person who made the relevant acquisition and the associated person or persons are jointly and severally liable for payment of the duty.

155   How duty is charged on relevant acquisitions—private landholders

(1)  If an acquisition statement that discloses a relevant acquisition in a private landholder does not disclose any other acquisitions during the statement period, duty is chargeable, at the general rate, on the amount calculated by multiplying the unencumbered value of all land holdings and goods of the landholder in New South Wales (calculated at the date of acquisition of the interest acquired) by the proportion of that value represented by the interest acquired in the relevant acquisition.

(2)  If a relevant acquisition results from the aggregation of the interests of associated persons, the reference in subsection (1) to the interest acquired includes a reference to any interests acquired by associated persons on the same date.

(3)  If an acquisition statement disclosing a relevant acquisition in a private landholder also discloses one or more other acquisitions during the statement period, duty is chargeable, at the general rate, on the aggregate of amounts severally calculated, in the manner provided by subsection (1), in respect of each interest required to be disclosed in the statement.

(4)  Duty payable under this section is to be reduced by the sum of the duty paid or payable under this Act in respect of an acquisition, during the statement period, by the person or any associated person of an interest in the same landholder, but only in proportion to the extent to which the duty paid or payable is attributable to the amount of the duty payable under this section.

(5)  Duty payable under this section is to be reduced by the sum of the amounts severally calculated, in accordance with the following formula, in respect of each acquisition of an interest in the landholder made by the person, or an associated person, during the statement period:

where:

A is the unencumbered value of the land holdings and goods in New South Wales of the landholder at the time the acquisition was made, and

B is the unencumbered value of all property of the landholder at that time, and

C is the sum of:

(a)  the duty under this Act paid or payable in respect of:

(i)  a dutiable transaction in relation to the units or shares acquired, or

(ii)  a capital reduction or a rights alteration under Part 3 of Chapter 3 by which an interest in the landholder was acquired, or

(iii)  an allotment of shares under Part 5 of Chapter 3 by which an interest in the landholder was acquired, and

(b)  any duty of a like nature so paid or payable under a law of another Australian jurisdiction.

(6)  If a relevant acquisition is made owing to the aggregation of the interests of associated persons, but the Chief Commissioner is satisfied that the associated persons acquired their respective interests independently, the Chief Commissioner may assess and charge duty on each separate acquisition without aggregating the interests of the person who made it with the interests of associated persons.

(7)  Duty is not chargeable under this section on the acquisition of an interest in a landholder that is required to be disclosed in an acquisition statement if the acquisition is an exempt acquisition.

(8)  This section is subject to Part 3.

156   How duty is charged on relevant acquisitions—public landholders

(1)  If an acquisition statement discloses a relevant acquisition in a public landholder, the duty chargeable on the relevant acquisition is 10% of the duty that would be chargeable, at the general rate, on a transfer of all the land holdings and goods of the landholder in New South Wales (calculated as if the transfer had occurred at the date of relevant acquisition).

(2)  For that purpose, the dutiable value of the land holdings and goods is the unencumbered value of land holdings and goods at the date of the relevant acquisition.

(3)  If an acquisition disclosed in an acquisition statement is an exempt acquisition, the duty chargeable under this section is to be calculated after deducting from the dutiable value of the land holdings and goods the proportion of that value represented by the value of the interest acquired in the exempt acquisition.

(4)  If the public landholder is a widely held trust, the duty payable under this section is also to be reduced by the following amounts (if applicable):

(a)  the amount of duty under this Act paid or payable in respect of a dutiable transaction in relation to the units concerned,

(b)  the amount of any duty of a like nature so paid or payable under a law of another Australian jurisdiction.

(5)  If duty is chargeable in respect of a relevant acquisition made by a person in a public landholder, no duty is chargeable in respect of any further acquisition made by that person in that public landholder.

(6)  This section is subject to Part 3.

157   What is the “general rate” of duty?

For the purposes of this Chapter, the general rate is the rate of duty specified in section 32 for a transfer of dutiable property.

Part 3 General principles to be applied under this Chapter

158   Constructive ownership of land holdings and other property: linked entities

(1)  In addition to any interest in land or other property that it may hold in its own right, a unit trust scheme, private company or listed company is taken, for the purposes of this Chapter, to hold an interest in land or other property held by a linked entity of the unit trust scheme or company.

(2)  A linked entity of a private unit trust scheme or a private company (the principal entity) means a person:

(a)  who is part of a chain of persons:

(i)  which includes the principal entity, and

(ii)  which is comprised of one or more links, and

(iii)  in which a link exists if a person would be entitled to receive not less than 50% of the unencumbered value of the property of another person if the other person were to be wound up, and

(iv)  which does not include, in any of the links between the person and the principal entity, a public unit trust scheme or a listed company, and

(b)  who is not a public unit trust scheme or a listed company.

(3)  A linked entity of a public unit trust scheme or listed company (the principal entity) means a person who is part of a chain of persons:

(a)  which includes the principal entity, and

(b)  which is comprised of one or more links, and

(c)  in which a link exists if a person would be entitled to receive not less than 50% of the unencumbered value of the property of another person if the other person were to be wound up.

(4)  The value, for duty purposes, of the interest in land or other property that a unit trust scheme, private company or listed company (being a principal entity) is taken, by this section, to hold because of a holding by a linked entity is that portion of the interest’s unencumbered value to which the unit trust scheme or company would be entitled (without regard to any liabilities of the linked entity or any other person in the ownership chain) if each entity in the chain of entities were to be wound up.

159   Constructive ownership of land holdings and other property: discretionary trusts

(1)  A person or a member of a class of persons in whose favour, by the terms of a discretionary trust, capital the subject of the trust may be applied:

(a)  in the event of the exercise of a power or discretion in favour of the person or class, or

(b)  in the event that a discretion conferred under the trust is not exercised,

      is, for the purposes of this section, a beneficiary of the trust.

(2)  A beneficiary of a discretionary trust is taken to own or to be otherwise entitled to the property the subject of the trust.

(3)  For the purposes of this Chapter, any property that is the subject of a discretionary trust is taken to be the subject of any other discretionary trust:

(a)  that is, or

(b)  any trustee of which (in the capacity of trustee) is,

      a beneficiary of it.

(4)  Subsection (3) extends to apply to property that is the subject of a discretionary trust only by the operation of that subsection.

(5)  In this section, person includes a landholder.

Note. Discretionary trust is defined in the Dictionary.

160   Agreements for sale or transfer of land

(1)  For the purposes of this Chapter, the transferor and the transferee under an uncompleted agreement for the sale or transfer of land are taken to be separately entitled to the whole of the land.

Note. If duty is charged on an acquisition that relates to a land holding to which subsection (1) applies, the Chief Commissioner may defer payment of duty under section 47 of the Taxation Administration Act 1996.

(2)  If:

(a)  at the time of acquisition of an interest by any person in a landholder that necessitates the lodgment of an acquisition statement under this Chapter, the landholder was the vendor under an uncompleted agreement for the sale or transfer of land, and

(b)  the agreement is subsequently completed,

      the Chief Commissioner is to assess or reassess the statement as though the land the subject of the agreement was not, at the time of the acquisition concerned, a land holding of the landholder.

(3)  If:

(a)  at the time of acquisition of an interest by any person in a landholder that necessitates the lodgment of an acquisition statement under this Chapter, the landholder was the purchaser under an uncompleted agreement for the sale or transfer of land, and

(b)  the agreement is subsequently rescinded, annulled or otherwise terminated without completion,

      the Chief Commissioner is to assess or reassess the statement as though the land the subject of the agreement was not, at the time of the acquisition concerned, a land holding of the landholder.

(4)  In this section, a reference to a landholder includes a reference to a linked entity of the landholder.

161   Agreements for sale or issue of shares or units in landholder

(1)  For the purposes of this Chapter, if an agreement is made to purchase or issue a share or unit in a landholder, then, on and from completion of the agreement:

(a)  the purchaser or person to whom the unit or share is to be issued is taken to have an entitlement to a distribution of property from the landholder on a winding up of the landholder (as if the purchase or interest acquired by the person were registered on completion), and

(b)  in the case of an agreement to purchase a share or unit, the registered interest of the vendor in the unit or share is to be disregarded.

Note. Accordingly, the purchaser or person to whom a share or unit is issued under an agreement for the sale or issue of a share or unit in a landholder acquires an interest in the landholder when the agreement is completed.

(2)  For the purposes of subsection (1), an agreement is taken to be completed when the necessary transfer or title documents are delivered to the person acquiring the interest, or the consideration for the purchase or issue is paid, whichever first occurs.

(3)  This section does not apply in respect of shares or units in a landholder which is a listed company or a listed trust.

162   Valuation of property

(1)  Subject to this Chapter, the provisions of this Act for ascertaining the value of transfers chargeable with ad valorem duty extend to an acquisition statement under this Chapter and the value of land holdings and goods mentioned in it.

(2)  In determining the unencumbered value of land holdings or goods under this Chapter, any arrangement made in respect of the land holdings that has the effect of reducing the unencumbered value is to be disregarded, subject to subsection (3).

(3)  An arrangement is not to be disregarded if the Chief Commissioner is satisfied that the arrangement was not made as part of an arrangement or scheme with a collateral purpose of reducing the duty otherwise payable in relation to the relevant acquisition.

(4)  In considering whether or not he or she is satisfied for the purposes of subsection (3), the Chief Commissioner may have regard to:

(a)  the duration of the arrangement before the relevant acquisition, and

(b)  whether the arrangement has been made with an associated person, and

(c)  whether there is any commercial efficacy to the making of the arrangement other than to reduce duty, and

(d)  any other matters the Chief Commissioner considers relevant.

163   Maximisation of entitlements on distribution of property

(1)  This section applies to any calculation, for the purposes of this Chapter, of the entitlement of a person (the interested person) to participate in a distribution of the property of a landholder, whether on a winding up of the landholder or otherwise.

(2)  A calculation is to be made based, firstly, on a distribution carried out in accordance with the constitution of the landholder, and with any law relevant to the distribution, as in force at the time of distribution, and the entitlement of the interested person is to be evaluated accordingly.

(3)  Next, a calculation is to be made based on a distribution carried out after the interested person, and any other person whom the interested person has power to direct with respect to such a distribution or who is, in relation to the interested person, an associated person, had exercised all powers and discretions exercisable by them by reason of having acquired an interest in the landholder concerned:

(a)  to effect or compel an alteration to the constitution of the landholder, and

(b)  to vary the rights conferred by units or shares in the landholder, and

(c)  to effect or compel the substitution or replacement of units or shares in the landholder with other units or shares in it,

      in such a manner as would maximise the value of the entitlement, and the entitlement of the interested person is to be evaluated accordingly.

(4)  The results obtained by an evaluation of the interested person’s entitlement in accordance with subsections (2) and (3) are then to be compared, and whichever evaluation results in a greater entitlement is the correct evaluation, for the purposes of this Chapter, of the entitlement, unless the Chief Commissioner, being satisfied that the application of this subsection in the particular case would be inequitable, determines otherwise.

Part 4 Exemptions and concessions

163A   General exemptions

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 under Part 5.1 of the Corporations Act 2001 of the Commonwealth that has been approved by a court, not being a compromise or arrangement that the Chief Commissioner is satisfied was made with the intention of defeating the operation of this Chapter, 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, or

Note. 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.

(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.

163C   Exemption for “top hatting” arrangements

(1)  An acquisition by a person of an interest in a landholder is an exempt acquisition if the Chief Commissioner is satisfied that:

(a)  the acquisition is made for the purpose of giving effect to a scheme that would qualify as a roll-over under Subdivision 124-Q of the Income Tax Assessment Act 1997 of the Commonwealth, and

(b)  when the scheme is completed, the interposed trust will be a public unit trust scheme or a landholder, and

(c)  the acquisition is not part of a scheme a purpose of which is to minimise duty otherwise payable under this Act.

Note. A roll-over involves a scheme for interposing a unit trust scheme (whether a new or existing unit trust scheme) between persons who have an ownership interest in 2 or more unit trust schemes, or in one or more companies and one or more unit trust schemes, and the unit trust schemes or companies in which they have an ownership interest. The interests of the unit holders or shareholders are stapled together to form stapled securities and the interposed unit trust becomes the owner of all the stapled interests.

(2)  An acquisition by a person for the purposes of a scheme referred to in Subdivision 124-Q of the Income Tax Assessment Act 1997 of the Commonwealth ceases to be an exempt acquisition if:

(a)  the interposed trust is not a public unit trust scheme or a landholder when the scheme is completed, or

(b)  the interposed trust ceases to be a public unit trust scheme or a landholder at any time within 12 months after the scheme is completed.

(3)  If an acquisition ceases to be an exempt acquisition:

(a)  duty is chargeable under this Chapter in respect of the acquisition as if the acquisition had never been an exempt acquisition, and

(b)  the person who made the acquisition must lodge an acquisition statement or a revised acquisition statement with the Chief Commissioner to reflect the fact that the acquisition has ceased to be an exempt acquisition, and

(c)  a tax default does not occur for the purposes of the Taxation Administration Act 1996 if the duty (if any) chargeable under this Chapter as a result of the acquisition ceasing to be an exempt acquisition is paid within 3 months after the acquisition ceases to be an exempt acquisition.

(4)  In this section:

interposed trust, in relation to a scheme, has the same meaning as it has in section 124-1045 of the Income Tax Assessment Act 1997 of the Commonwealth.

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.

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.

Part 5 Interpretation

163I   Meaning of expressions used in this Chapter

In this Chapter:

acquisition statement—see section 152.

exempt acquisition means:

(a)  an exempt acquisition under Part 4, or

(b)  an acquisition of an interest in a landholder that is not chargeable with duty because of Chapter 11.

landholder has the meaning given by section 146.

private landholder—see section 146.

public landholder—see section 146.

statement period—see section 152.

Note. Other expressions are defined in the Dictionary.

163J   Meaning of “associated person”

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.

163K   Goods of a landholder

(1)  In this Chapter:

goods does not include the following:

(a)  goods that are stock-in-trade,

(b)  materials held for use in manufacture,

(c)  goods under manufacture,

(d)  goods held or used in connection with land used for primary production,

(e)  livestock,

(f)  a registered motor vehicle,

(g)  a ship or vessel.

(2)  For the purposes of this Chapter, goods are considered to be goods of a landholder if the landholder has any interest in the goods, other than an interest as mortgagee, chargee or other secured creditor.

163L   Meaning of “unit trust scheme”

Without limiting the meaning of unit trust scheme in the Dictionary, the following are taken to be unit trust schemes for the purposes of this Chapter:

(a)  a managed investment scheme,

(b)  any sub-trust of a unit trust scheme (as defined in the Dictionary) or a managed investment scheme.

Chapter 4A

163M–163ZZB(Repealed)

Chapter 5 Lease instruments

Part 1 Introduction and overview

164   Imposition of duty

(1)  This Chapter charges duty on a lease instrument, being an instrument that evidences or effects a lease (as defined in section 164A).

(2)  The duty charged by this Chapter is abolished on and from 1 January 2008. This Chapter does not apply in respect of a lease first executed on or after 1 January 2008.

Notes. Lease is defined in section 164A to include agreements for lease and agreements for rights to use land.

Duty is generally charged on the cost of the lease. Cost is defined in section 166.

The rates of duty are dealt with in Part 2.

Duty is also chargeable on certain variations of leases—see section 169.

Leases that are exempt from duty are dealt with in section 179.

164A   What is a “lease”?

For the purposes of this Chapter, lease means:

(a)  a lease of land in New South Wales or an agreement for a lease of land in New South Wales, or

(b)  an agreement (such as a licence) by which a right to use land in New South Wales at any time and for any purpose is conferred on or acquired by a person (who is taken, for the purposes of this Chapter, to be a lessee of the land), or

(c)  a franchise arrangement that is held in respect of a place or area located in New South Wales and that is first executed before 1 July 2001.

Notes. Franchise arrangement is defined in the Dictionary.

Certain exemptions are available, in particular, if the cost of the lease is less than the amount specified in section 179 (1).

165   How duty is charged on a lease instrument

Duty is chargeable on a lease instrument:

(a)  at the rate prescribed under this Chapter, on the cost of the lease, as determined in accordance with this Chapter, except as provided by paragraph (b), or

(b)  in the case of a lease for which there is no consideration in money or money’s worth, at the rate prescribed under this Chapter on the unencumbered value of the lease.

Note. Part 3 prescribes means of levying duty on indeterminate rents and other indeterminate lease costs.

166   What is the “cost” of a lease?

(1)  The cost of a lease (other than a franchise arrangement) is the aggregate of the following:

(a)  the rent payable during the term of the lease or in advance of the lease and any amount paid or payable for the right to use land under the lease,

(b)  any premium payable for a lease of premises in a retirement village within the meaning of section 5 of the Retirement Villages Act 1999,

(c)  any rates and taxes paid or payable on behalf of the lessor in connection with the lease,

(d)  the value of improvements and additions to the leased premises made or undertaken to be made by or on behalf of, or at the expense of, the lessee under an agreement or covenant by the lessee (other than fit-out costs), to the extent provided by section 175,

(e)  any royalties payable under the lease, including royalties for the right to enter onto and remove something from the land.

(2)  Rent includes any payment under the lease expressed to be rent but does not include any premium paid or payable expressed to be rent.

(3)  The cost of a franchise arrangement is the aggregate of all amounts payable for the grant of the franchise (including any renewal fees where the franchise arrangement is entered into by way of renewal of a previous franchise arrangement) and the exercise of the franchisee’s rights during the term of the arrangement, to the extent that any of those amounts are referable to New South Wales. It includes any amounts so payable under the arrangement for any of the following:

(a)  the right to use the goodwill of the business (including payments by way of royalty or as a percentage of turnover),

(b)  the right to use systems and processes, instruction manuals and operation manuals, business names, logos, trademarks, patents and copyright material in connection with the business,

(c)  the use of goods,

      but not including any amounts payable under the arrangement for goods that are stock-in-trade or materials provided for use in manufacture.

(4)  If a franchise arrangement applies to an area that comprises the whole or part of New South Wales and a place outside New South Wales, duty is not payable on that proportion of the cost of the franchise arrangement that represents the extent to which the franchise has been granted in respect of the place that is outside New South Wales.

167   Splitting or redirection of cost of franchise arrangement (anti-avoidance provision)

The Chief Commissioner may include, as part of the amount payable as the cost of a franchise arrangement, any of the following:

(a)  any payments under the arrangement that the Chief Commissioner is satisfied have been increased for the purpose of minimising duty under this Chapter,

(b)  any payments that would be included in the cost of a franchise arrangement except for the fact that they are paid to a person other than the person who grants the franchise arrangement.

168   Who is liable to pay the duty?

(1)  The person liable to pay the duty is the lessee.

(2)  Lessee means, in the case of a franchise arrangement, the franchisee.

Note. Franchisee is defined in the Dictionary.

(3)  Lessee includes any assignee for the time being of the rights of the lessee under the lease and the assignee of a franchisee.

169   When must the duty be paid?

(1)  A lease instrument becomes liable to duty on the date of first execution.

(2)  A lease instrument also becomes liable to duty on the making of a variation to the lease that increases the cost of the lease. Duty is chargeable on the amount of additional cost resulting from the variation.

Note. A refund of duty may be applied for in case of a variation that decreases the cost of a lease—see section 178.

(3)  Duty must be paid to the Chief Commissioner within 3 months after the lease instrument becomes liable to duty, except as otherwise provided by this Chapter.

Note. Part 3 makes provision for periodic adjustments of duty in certain cases.

Part 2 Rates of duty

170   General rate

(1)  The rate of duty is 35 cents per $100 (or remaining part of $100) of the total cost of the lease, except as otherwise provided by this Chapter.

(2)  (Repealed)

171   Nominal duty

(1)  Duty of $2 is payable on a lease instrument made subsequently to and in conformity with an agreement for a lease for which ad valorem duty under this Chapter has been duly paid.

(2)  If requested by the lessee, the Chief Commissioner must regard the subsequent lease instrument as the instrument dutiable with ad valorem duty and the agreement as the nominally dutiable instrument, and assess or reassess them accordingly. The subsequent lease instrument is taken to have been first executed on the date of first execution of the agreement.

(3)  Duty of $10 is payable on an instrument that evidences a variation of a lease.

Part 3 Unascertainable lease costs

172   Operation of Part 3

(1)  The object of this Part is to enable an unascertainable component of the cost of a lease to be determined as a definite sum for duty assessment purposes.

(2)  The amount of a cost component of a lease is unascertainable if it cannot, at the time duty is liable to be paid in respect of it, be ascertained as a definite sum (so that, consequently, the total cost of the lease over its whole term cannot at that time be so ascertained).

Note. Examples of unascertainable cost components are:

(a)  a royalty on minerals won from the leased land, expressed to be pro rata of (unspecified) tonnage of the minerals won,

(b)  rent expressed to be pro rata of the turnover of a business conducted on the land,

(c)  rent expressed to be “market rent”.

(3)  Cost components whose amounts are partly unascertainable are to be dealt with under section 173 or 174. Cost components whose amounts are wholly unascertainable are to be dealt with under section 176 (2).

(4)  Section 175 applies to the quantification of the value of lessees’ improvements.

173   Estimate and subsequent adjustment

(1)  This section applies in order to determine as a definite sum any unascertainable cost components of a lease, except where the Chief Commissioner and the lessee agree that section 174 should apply instead.

(2)  The Chief Commissioner is to make an initial estimate of the cost of the lease.

(3)  The initial estimate is to be the sum of:

(a)  the amount of each cost component payable in the course of the lease, so far as it is ascertainable, and

(b)  in respect of any interval in the term of the lease in which the amount of a cost component, although unascertainable, is subject to a certain approximate rate—the amount of the cost component that would be paid if it were payable at that approximate rate, and

(c)  in respect of any interval in the term of the lease in which the amount of a cost component, although unascertainable, is subject to a certain minimum rate and to which paragraph (b) cannot be applied—the amount of the cost component that would be paid if it were payable at that minimum rate, and

(d)  in respect of any interval in the term of the lease in which the amount of a cost component is unascertainable and to which paragraphs (b) and (c) cannot be applied—the amount of the cost component that would be paid during the interval if it were payable at the highest certain rate prevailing immediately before the commencement of the interval.

(4)  Following the initial estimate, duty is to be paid to the Chief Commissioner on the cost of the lease determined on the basis of an estimate under this section of the relevant unascertainable cost components.

(5)  Periodic estimates are to be made, at such dates (estimate dates) as the Chief Commissioner, having regard to the provisions of the lease, determines, of the amount of any cost components dealt with under this section payable during the term of the lease, and periodic adjustments of duty are to be made accordingly. A periodic estimate and a periodic assessment of duty may be made more than 5 years after the initial estimate.

(6)  Within 1 month after each estimate date, the lessee must produce to the Chief Commissioner a duly stamped part of the lease instrument and a statutory declaration stating:

(a)  the amount of each cost component dealt with under this section that was paid between the initial estimate date or the last previous estimate, as the case may be, and the date of the current estimate, and

(b)  the rate at which that cost component is payable as at the date of the current estimate.

Maximum penalty: 100 penalty units.

(7)  If the amount of a cost component actually paid during a period between estimation dates is higher than the estimated amount so payable for that period, the Chief Commissioner may make a reassessment of duty in respect of the lease for that period and the balance of the term of the lease, and the lessee must, within 3 months after the date of issue of the notice of assessment, pay any additional duty assessed.

(8)  If the amount of a cost component actually paid during a period between estimation dates is lower than the estimated amount so payable for that period, the Chief Commissioner must, after the lessee has complied with subsection (6), make a refund to the lessee of duty overpaid.

174   CPI method

(1)  This section applies, if the Chief Commissioner and the lessee agree to apply it, in order to determine as a definite sum any unascertainable amounts of any particular cost component of a lease.

(2)  The amount of the relevant cost component payable during any interval of the term of the lease for which it cannot be ascertained is taken to be payable at an annual rate ascertained by compounding the rate at which it is payable during the first year of the lease by the annual percentage increase in the Consumer Price Index last issued before the commencement of the lease.

(3)  If the rate at which the cost component is payable is unascertainable for a part of the first year, the rate for that year is to be calculated in accordance with section 173 (3) (b) and (c).

(4)  The Chief Commissioner may assess and levy duty on the cost of a lease based on a determination under this section of the value of the relevant cost component.

(5)  Duty assessed in accordance with this section may not be varied merely because the actual amount of the cost component paid under the lease is different from the value of the cost component determined under this section.

(6)  In this section, Consumer Price Index means the number appearing in the Consumer Price Index (All Groups Index) for Sydney published under the Commonwealth Census and Statistics Act 1905.

175   Quantification of lessee’s improvements

The value of so much of the cost of a lease as comprises:

(a)  an undertaking by the lessee to make or pay for additions or improvements to the land the subject of the lease, or

(b)  the making of or payment for such additions or improvements by the lessee,

is taken to be the percentage, determined by the following Table, of the value of the additions or improvements:

Table

Term of lease	Percentage of value of additions or improvements
10 years or less	100
More than 10 but not more than 20 years	75
More than 20 but not more than 30 years	50
More than 30 but not more than 40 years	25
More than 40 years	Nil
Periodic lease or lease for a term that cannot be ascertained when the lease is made	100

Part 4 Miscellaneous

176   Interim stamping of lease instrument

(1)  A lease instrument on which duty is assessed under section 173 is to be marked “interim stamp only”.

(2)  A lease instrument on which no part of the duty under this Chapter is immediately ascertainable is, on payment of a duty of $10, to be stamped accordingly and marked “interim stamp only”.

(3)  (Repealed)

177   Reassessment of duty—early termination

(1)  A lessee may apply in an approved form to the Chief Commissioner for a reassessment of duty paid on a lease instrument if the lease is terminated before the end of its term. The means by which the lease was terminated is immaterial.

(2)  The application must be made within 5 years after the initial assessment or 12 months after the termination, whichever is the later, and must be supported by such documents and information as the Chief Commissioner specifies.

(3)  The Chief Commissioner:

(a)  if satisfied that the lease has been terminated before the commencement of the term, must refund the whole of the duty paid, or

(b)  if satisfied that the lease has been terminated early, must refund the difference between the duty actually paid and the duty that would have been payable if the lease had been granted for a term equal to the period for which the lease actually remained in force before termination.

(4)  In this section, a reference to the termination of a lease includes a reference to a lease coming to an end.

(5)  The Chief Commissioner must not refund any duty under this section unless satisfied that neither the lessee, nor an associated person in relation to the lessee, has occupied the premises the subject of the lease with the express or implied agreement of the lessor at any time after the termination of the lease and that neither the lessee, nor an associated person, proposes to so occupy those premises at any time after the termination of the lease.

(6)  Subsection (5) does not apply to an occupation that is consequential on the sale of the premises to the lessee or an associated person.

178   Reassessment of duty—reduction of cost

(1)  A lessee may apply in writing to the Chief Commissioner for a reassessment of duty paid on a lease instrument if the lease is subsequently varied so as to reduce the total cost of the lease.

(2)  The application must be made within 5 years after the initial assessment or 12 months after the variation, whichever is the later, and must be supported by such documents and information as the Chief Commissioner specifies.

(3)  The Chief Commissioner, if satisfied that the lease has been varied so as to reduce the total cost of the lease, must refund the difference between the duty actually paid and the duty that would have been payable if the lease had been granted on the terms as so varied.

179   Exemptions

(1)  A lease instrument for any of the following leases is not chargeable with duty under this Chapter:

(a)  subject to subsection (3), a lease for a term of less than one year whose total cost is not more than:

(i)  $3,000—if the date of first execution of the lease is before 1 July 2001, or

(ii)  $20,000—if the date of first execution of the lease is on or after 1 July 2001,

(b)  subject to subsection (3), a lease for a term of one year or more whose total cost is not more than:

(i)  $3,000 per year—if the date of first execution of the lease is before 1 July 2001, or

(ii)  $20,000 per year—if the date of first execution of the lease is on or after 1 July 2001,

(c)  a lease granted by or on behalf of a corporation, society or institution if:

(i)  the purpose of the lease is to grant a retired person or a disabled person the right to occupy residential accommodation, and

(ii)  the lease has not been granted for the purpose of profit by the lessor,

(d)  a lease of premises to the Home Care Service of New South Wales,

(e)  a lease executed in accordance with Part V of the Commonwealth National Health Act 1953.

(2)  Duty under this Chapter is not chargeable on a lease instrument on:

(a)  so much of the cost of a residential lease as relates to premises used, or intended to be used, exclusively as a residence, or

(b)  so much of the cost of a lease of a moveable dwelling site used, or intended to be used, as the principal place of residence of the lessee.

(c)  (Repealed)

(3)  Subsection (1) (a) or (b) does not apply to a lease that is one of two or more leases:

(a)  that are:

(i)  for terms that are consecutive or not more than 3 months apart, and

(ii)  over the same or substantially the same property, and

(iii)  between the same lessor and lessee or associated persons of the lessee, and

(b)  the date of first execution of each of which is within a period of 12 months, and

(c)  that, if they were taken to be a single lease instrument for a term which is the aggregation of the terms of the leases and for a total cost which is the aggregation of the costs of the leases, would be chargeable with duty.

(4)  The lease instruments for two or more leases that satisfy the requirements of subsection (3) are, for the purposes of this Chapter, taken to be a single lease instrument for a term which is the aggregation of the terms of the leases and for a total cost which is the aggregation of the costs of the leases.

(5)  (Repealed)

Chapter 6

180–203(Repealed)

Chapter 7 Mortgages

Part 1 Introduction and overview

203A   Abolition of mortgage duty—effective 1 July 2012

(1)  Mortgage duty is abolished on and from 1 July 2012.

(2)  However, mortgage duty remains chargeable, and this Chapter continues to apply, in respect of the following:

(a)  a mortgage first executed before 1 July 2012 (including any advances or further advances made in respect of the mortgage before that date),

(b)  an instrument of security referred to in section 208 (3) that first affects land in New South Wales before 1 July 2012,

(c)  an instrument of security referred to in section 208 (3A) that first affects relevant property in New South Wales before 1 July 2012,

(d)  an instrument that first becomes a mortgage or evidences the terms of a mortgage, as referred to in section 208 (4), before 1 July 2012.

(3)  A mortgage does not become liable to the additional duty referred to in section 208 (2) in respect of an advance or further advance that is made on or after 1 July 2012 (even if the mortgage was first executed before that date).

204   Imposition of duty

This Chapter charges duty on instruments that fall within the definition of a mortgage. Duty chargeable under this Chapter is called mortgage duty.

Notes. 

(1)   Mortgage duty is calculated, in most cases, according to “the amount secured by the mortgage”. Contingent liabilities may also be included. This is dealt with in Part 2.

(2)   Ad valorem duty is only chargeable on one of a package of mortgages securing the same advance. This is dealt with in section 214.

(3)   Provision is also made for the apportionment, for duty purposes, of the amount secured by any mortgage over property in different Australian jurisdictions. This is dealt with in section 216.

205   What is a mortgage?

For the purposes of this Chapter, an instrument is a mortgage if it is:

(a)  a security by way of mortgage or charge over property wholly or partly in New South Wales at the liability date, or

(b)  (Repealed)

(c)  a security by way of a transfer or conveyance of any property in New South Wales that is held in trust to be sold or otherwise converted into money, redeemable before such a sale or conversion either by express stipulation or otherwise, except where the transfer or conveyance is made for the benefit of creditors who accept the transfer or conveyance in full satisfaction of debts owed to them, or

(d)  an instrument that, on the deposit of documents of title to property in New South Wales or instruments creating a charge on property in New South Wales, becomes a mortgage or evidences the terms of a mortgage.

Note. Certain instruments that would otherwise be caught by this definition are exempted under Part 4.

206   What is an advance?

In this Chapter, advance means the provision or obtaining of funds by way of financial accommodation, by means of:

(a)  a loan, being:

(i)  an advance of money, or

(ii)  the payment of money for or on account of, or on behalf of, or at the request of, any person, or

(iii)  a forbearance to require the payment of money owing on any account whatever, or

(iv)  any transaction (whatever its terms or form) that in substance effects a loan of money, or

(b)  a bill facility, being one or more agreements, understandings or arrangements as a consequence of which a bill of exchange or promissory note:

(i)  is drawn, accepted, endorsed or made, and

(ii)  is held, negotiated or discounted to obtain funds,

      whether or not the funds are obtained from the person who draws, accepts, endorses or makes the bill of exchange or promissory note and whether or not the funds are obtained from a person who is a party to any such agreement,

and includes contingent liabilities of the kind referred to in section 215.

207   Who is liable to pay the duty?

The person liable to pay mortgage duty is the mortgagor or the person bound.

208   When does a liability arise?

(1)  A mortgage becomes liable to duty on the date of its first execution.

(2)  A mortgage becomes liable to additional duty on the making of an advance or further advance if, as a result of that advance or further advance, the amount secured by the mortgage exceeds the amount secured by the mortgage at the time a liability to duty last arose under this Act.

Note. Section 219 exempts some further advances from duty.

(3)  An instrument of security that does not affect property in New South Wales at the date of first execution but that affects land in New South Wales at any time within 12 months after that date becomes liable to duty as a mortgage on the date on which it first affects the land, unless it is exempt from duty.

(3A)  An instrument of security that does not affect property in New South Wales at the date of first execution but that, at any time after execution, affects relevant property in New South Wales identified in the instrument or identified under an arrangement in place when the instrument was first executed, becomes liable to duty on the date it first affects that property, unless it is exempt from duty.

(4)  An instrument that, on the deposit of documents of title to property in New South Wales or instruments creating a charge on property in New South Wales, becomes a mortgage or evidences the terms of a mortgage becomes liable to duty as a mortgage on the deposit of the documents or instruments.

(5)  A reference in subsection (3) to land does not include a reference to an interest in land that is held by way of security.

(6)  For the purposes of this section, relevant property means any property, excluding land and the following kinds of property:

(a)  a marketable security that is quoted on the Australian Stock Exchange,

(b)  an interest in a marketable security referred to in paragraph (a), or an interest in a marketable security if the interest is quoted on the Australian Stock Exchange,

(c)  an interest in a unit trust scheme, being a unit trust scheme in respect of which units in the scheme have been issued to the public and 50 or more persons are beneficially entitled to units in the scheme,

(d)  property the Chief Commissioner is satisfied is of a similar nature to property referred to in paragraph (a), (b) or (c).

209   When must duty be paid?

A tax default does not occur for the purposes of the Taxation Administration Act 1996 if duty is paid within 3 months after the liability to pay the duty arises.

210   How is mortgage duty charged?

(1)  The amount of duty chargeable on a mortgage is calculated by reference to the amount secured by it at the liability date, as determined under Part 2.

(2)  The amount of duty is:

(a)  $5.00, if no amount is secured by the mortgage or the amount secured by the mortgage is not more than $16,000, or

(b)  if the amount secured by the mortgage is more than $16,000—$5.00, plus a further $4.00 for every $1,000, or part, by which the amount secured exceeds $16,000.

(3)  The amount of duty chargeable on the mortgage at a liability date is to be reduced by the amount of ad valorem duty (if any) for which the mortgage has already been duly stamped under this Act.

(4)  No refund of duty is payable because the amount of ad valorem duty for which a mortgage has already been duly stamped under this Act exceeds the duty chargeable under subsection (2) on the amount secured by the mortgage at a liability date.

211   Consequences of non-payment of duty

A mortgage on which duty is required by this Chapter to be paid is unenforceable to the extent of any amount secured by the mortgage on which duty has not been paid.

212   Where is property located?

(1)  For the purposes of this Chapter, property in the following forms is taken to be located in the place specified:

(a)  shares in or securities of a body corporate:

(i)  in the case of a company within the meaning of the Corporations Act 2001 of the Commonwealth—in the place where the company is taken to be registered for the purposes of that Act, or

(ii)  in any other case—in the place of incorporation of the body corporate,

(b)  units in a unit trust scheme:

(i)  in the place where the register on which the units are registered is kept, or

(ii)  in the place of residence of the manager of the unit trust scheme, if the register on which the units are registered is not kept in Australia,

(c)  debt securities of a Government of a State or Territory of the Commonwealth—in the State or Territory concerned.

(2)  Subsection (1) (a) is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to section 1070A (4) of that Act.

Part 2 Calculating the amount secured by a mortgage

213   Amount secured by mortgage

(1)  For the purposes of this Chapter, the amount secured by a mortgage is the amount of any advances made under an agreement, understanding or arrangement for which the mortgage is security (even if the amount of advances made exceeds the amount of advances recoverable under the mortgage).

(2)  A reference in this Chapter to an advance secured by or made under a mortgage includes a reference to any advance made under an agreement, understanding or arrangement for which the mortgage is security (whether or not the advance is recoverable under the mortgage).

(3)  To avoid doubt, an advance made under an agreement, understanding or arrangement includes any advance made as a consequence of a variation to that agreement, understanding or arrangement.

214   Mortgage packages

(1)  The Chief Commissioner must, at the liability date for a mortgage, assess the mortgage, together with any other instruments of security, as a mortgage package if the mortgage and other instruments secure or partly secure the same money.

(2)  This section applies regardless of when the other instruments of security were first executed.

(3)  Duty on a mortgage package is to be assessed under this Part as if the instruments comprising the mortgage package, to the extent that they secure the same moneys, were a single mortgage.

(4)  One of the mortgages in the mortgage package is to be stamped, or upstamped, with any ad valorem duty paid under this Act for the mortgage package and each other mortgage in the mortgage package is to be stamped as a collateral mortgage.

(5)  If any of the mortgages in the mortgage package partly secures other moneys, that mortgage is to continue to be treated as a separate mortgage under this Chapter in respect of the other moneys that it secures and may be stamped for the duty chargeable in respect of those other moneys.

215   Contingent liabilities

(1)  A mortgage that is used or is capable of being used (whether directly or through a chain of relationships) to recover the whole or any part of an amount contingently payable in connection with an advance:

(a)  by a guarantor or indemnifying party under a guarantee or indemnity, or

(b)  by another party under another instrument of a different kind,

      is liable to duty as if the amount of the contingent liability under the guarantee, indemnity or other instrument (or, where there is more than one guarantee, indemnity or other instrument, the greatest contingent liability) were a separate advance made under the agreement, understanding or arrangement for which the mortgage is security.

(2)  In the case of a mortgage that is part of a chain of relationships referred to in subsection (1), a reference in that subsection to a contingent liability is a reference to a contingent liability limited to the amount of any advance by any party in the chain, and does not include a reference to any other kind of contingent liability.

(3)  This section does not apply if the Chief Commissioner is satisfied that there is no connection between the mortgage and any advance by any party to the arrangements.

(4)  Nothing in this section requires duty to be paid more than once in respect of an advance.

216   Mortgages over property not wholly within New South Wales

(1)  Mortgage duty is to be assessed for a mortgage over property that is partly within and partly outside New South Wales as if the amount secured by the mortgage were only the dutiable proportion.

(2)  The dutiable proportion is to be calculated in accordance with the following formula:

where:

DP is the dutiable proportion.

AS is the amount secured by the mortgage on which duty would, but for this section, be charged at the liability date.

V is the value of the property in New South Wales affected by the mortgage.

T is the value of all property affected by the mortgage.

(3)  The dutiable proportion is to be calculated by reference to the value of the properties according to any referable point specified in subsection (4).

(4)  A referable point is any of the following prepared within 12 months before the liability date for the mortgage:

(a)  an independent valuation of the secured property,

(b)  a statement of the mortgagee based on information obtained by the mortgagee in deciding to make the advance to the mortgagor,

(c)  property valuations used by the mortgagor in preparing an annual return to be lodged under the Corporations Act 2001 of the Commonwealth,

(d)  a financial report of the mortgagor, certified by an independent auditor as presenting a true and fair view of a corporation’s financial position,

(e)  agreed property valuations that form the basis of the mortgagor’s insurance policies,

(f)  another document the Chief Commissioner considers to be appropriate for calculating the dutiable proportion.

(5)  However, if there is more than one referable point for a mortgage, the referable point is the later or latest of the referable points.

(6), (7)  (Repealed)

217   Collateral mortgages—minimum duty

A collateral mortgage is chargeable with a minimum duty of $50.

217A, 218   (Repealed)

218A   Security

(1)  A stamped mortgage or a collateral mortgage that was, but is no longer, part of the same mortgage package and no longer secures the same money secured by that package is not security for any other advance unless duty in respect of the other advance has been paid.

(2)  The withdrawal of a mortgage from a mortgage package will not, for the purposes of this Chapter, affect the amount for which the remaining mortgage or mortgages are security.

218B, 218BA   (Repealed)

218C   Multi-jurisdictional statement

(1)  If mortgage duty is imposed on the dutiable proportion of a mortgage (whether for a mortgage over property not wholly in New South Wales, a mortgage package or on initial or subsequent advances), the mortgagor and mortgagee must, within 3 months after the liability arises:

(a)  make a written statement, in an approved form, about the location and value of the secured property, and

(b)  lodge the statement with the Chief Commissioner.

Maximum penalty: 100 penalty units.

(2)  The making and lodging of a statement under subsection (1) by either the mortgagor or the mortgagee relieves the other person from complying with that subsection.

(3)  The statement may be taken to be the mortgage, or mortgages comprising the mortgage package.

Part 3 Duty concessions

218D   Concession for advances charged with duty under corresponding Acts

(1)  If the total of the amount of ad valorem duty chargeable under this Act in respect of the amount secured by a mortgage at a liability date and the amount of duty paid under a corresponding Act in respect of the mortgage exceeds the maximum duty charge in respect of the mortgage, the amount of ad valorem duty chargeable on the mortgage at the liability date is to be reduced by the amount necessary to ensure that the maximum duty charge is not exceeded.

(2)  The maximum duty charge in respect of the mortgage is the amount of ad valorem duty that would be chargeable in respect of the amount secured by the mortgage at the liability date if:

(a)  it were a single mortgage over property wholly within New South Wales (that is, disregarding section 216), and

(b)  it had not previously been stamped under this Act for any ad valorem duty.

(3)  The amount of duty paid under a corresponding Act in respect of the mortgage is the total of all ad valorem duty already paid in respect of the amount secured by the mortgage under any corresponding Act.

(4)  If a mortgage has already been duly stamped under this Act for an amount of duty, any reduction in the amount of duty chargeable on the mortgage at the liability date that is made under section 210 (3) is to be made after making any reduction required by this section.

(5)  To avoid doubt, this section extends to a mortgage package assessed as a single mortgage.

219   Additional advances of not more than $10,000 in 12 months

Duty is not chargeable on additional advances secured by or under a mortgage if the total of the additional advances so secured does not exceed $10,000 in any 12-month period, not being the period of 12 months following the making of the initial advance.

220   Refinancing of loans

(1)  In this section:

land used for aquaculture means land subject to an aquaculture permit (within the meaning of the Fisheries Management Act 1994).

refinancing mortgage means a mortgage that:

(a)  secures the amount of the balance outstanding under an earlier mortgage that is discharged or to be discharged as part of the arrangements for the new mortgage, and

(b)  is created to secure an advance to the same borrower as under the earlier mortgage, and

(c)  is over the same or substantially the same property or part of the property as the earlier mortgage.

(2)  For the purposes of subsection (1), mortgages are created to secure an advance to the same borrower if, either directly by the mortgages themselves or indirectly through one or more collateral arrangements, the same person obtains the advances secured by them.

(3)  A refinancing mortgage is taken to have been stamped with ad valorem duty as a mortgage in respect of the duty-free refinancing amount, except as provided by subsection (5).

(3A)  For the purposes of this section, the duty-free refinancing amount is the lesser of the following amounts:

(a)  the amount secured by the earlier mortgage on which duty has been paid under this Act or in relation to which an exemption from duty has been obtained,

(b)  $1,000,000.

(3B)  However, if the refinancing mortgage is over land used for primary production or land used for aquaculture, the duty-free refinancing amount is the maximum amount payable under or secured by the earlier mortgage (being an amount in relation to which mortgage duty has been paid or in relation to which an exemption from duty has been obtained).

Note. “Land used for primary production” is defined in the Dictionary.

(4)  If an advance is refinanced by more than one lender, so that mortgages given to the lenders together secure the balance outstanding under an earlier mortgage, the definition of refinancing mortgage in subsection (1) is to be construed as though:

(a)  the reference to a mortgage securing the outstanding balance were a reference to the aggregate of such mortgages, and

(b)  the reference to property were a reference to the property securing the aggregate of refinancing advances made by the lenders under their combined mortgages, to the intent that, if the requirements of the definition, as so construed, are satisfied, each lender is taken, for the purposes of this section, to be the holder of a refinancing mortgage.

(5)  If, as provided by subsection (4), each of a number of lenders is the holder of a refinancing mortgage, a refinancing mortgage held by each lender is taken to have been duly stamped with ad valorem duty as a mortgage in respect of an amount equal to the same proportion of the duty-free refinancing amount as the amount secured by that mortgage bears to the total amount secured by the refinancing mortgages held by all the lenders.

(6)  If each of two or more refinancing mortgages severally secures the same advance:

(a)  the provisions of subsection (3) or (5), as the case may be, apply to such one of the mortgages as the Chief Commissioner determines, and

(b)  no duty is chargeable in respect of any of the others.

(7)  (Repealed)

(8)  Duty at the rate of $4 per $1,000 or remaining part of $1,000 is payable on the amount by which the advance made under a refinancing mortgage (not being a mortgage on which, by virtue of subsection (6) (b), no duty is chargeable) exceeds:

(a)  the duty-free refinancing amount, or

(b)  the proportion of that amount referred to in subsection (5), in the case of a refinancing to which subsection (4) applies.

(8A)  If a borrower is a related body corporate of a borrower under an earlier mortgage, the firstmentioned borrower is taken to be the same borrower or the same person for the purposes of subsection (1) or (2).

(9)  If a borrower under an earlier mortgage dies, or is a party to a marriage that has been dissolved or annulled or, in the opinion of the Chief Commissioner, has broken down irretrievably or is party to a de facto relationship that, in the opinion of the Chief Commissioner, has been terminated, the remaining borrower is, or the remaining borrowers are, taken to be the same borrower or the same person for the purposes of subsection (1) or (2).

(10)  A party to a marriage or de facto 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, the de facto relationship has been terminated.

The Chief Commissioner is required to have regard to any such statement in exercising his or her functions under subsection (9).

(11)  Subsection (10) does not limit the functions of the Chief Commissioner under section 72 of the Taxation Administration Act 1996.

221   Eligible mortgages under First Home Plus

(1)  Duty is payable in accordance with the following paragraphs on an advance secured by an eligible mortgage under Division 1 of Part 8 of Chapter 2 or a mortgage in support of such an eligible mortgage, but only to the extent that the amount of the advances qualifies under section 77 (3) or (4):

(a)  if the property has a private dwelling built on it:

Dutiable value of dutiable property subject to the agreement or transfer	Discount on duty
Not more than $500,000	100%
More than $500,000 but not more than $535,000	75%
More than $535,000 but not more than $565,000	50%
More than $565,000 but less than $600,000	25%

(b)  if the property comprises a vacant block of residential land:

Dutiable value of dutiable property subject to the agreement or transfer	Discount on duty
Not more than $300,000	100%
More than $300,000 but not more than $350,000	75%
More than $350,000 but not more than $400,000	50%
More than $400,000 but less than $450,000	25%

(2)  For the purpose of assessing any further advances secured by such a mortgage, duty is taken to have been paid on the amount of advances to which subsection (1) applies.

(3)  This section does not prevent section 221B from applying in respect of a mortgage.

Note. Section 221B extends a general mortgage duty exemption to all mortgages associated with owner occupied housing, and takes effect on and from 1 September 2007.

Part 3A Exemptions for mortgages associated with housing

221A   Definitions

In this Part:

alterations or additions, in relation to a private dwelling house, includes:

(a)  any improvements to the parcel of land on which the dwelling house is constructed, and

(b)  the maintenance, repair or renovation of the dwelling house or of an improvement referred to in paragraph (a).

APRA reporting standard means a reporting standard determined by the Australian Prudential Regulation Authority under section 13 of the Financial Sector (Collection of Data) Act 2001 of the Commonwealth.

private dwelling house includes:

(a)  a lot within the meaning of the Strata Schemes Management Act 1996, and

(b)  a land use entitlement that confers a right to occupy a private dwelling house.

residential land means a parcel of vacant land that is zoned or otherwise designated for use under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) for residential or principally for residential purposes.

221B   Mortgages associated with owner occupied housing

(1)  Mortgage duty is not chargeable in respect of a mortgage if the mortgage secures an advance or advances made for the purpose of owner occupied housing and no other advances.

(2)  If a mortgage secures an advance made for the purpose of owner occupied housing and another advance that is not made for that purpose, mortgage duty is not chargeable in respect of the mortgage in relation to the amount advanced for the purpose of owner occupied housing.

(3)  This section applies in respect of a mortgage only if the borrower under the mortgage is a natural person or, if there is more than one borrower, each of them is a natural person.

(4)  An advance is made for the purpose of owner occupied housing if it is to be applied wholly or predominantly for one or more of the following purposes:

(a)  financing the acquisition of a residence,

(b)  financing the construction of a residence,

(c)  financing alterations or additions to a residence,

(d)  financing the acquisition of residential land,

(e)  repaying another advance, if the advance to be repaid was made for the purpose of owner occupied housing (within the meaning of this section).

(5)  For the purposes of this section, a residence is a private dwelling house that is used and occupied or intended to be used and occupied by the borrower, or by any of the borrowers, as a place of residence.

(6)  To avoid doubt, an exemption provided for by this section is not available in respect of any advance that is to be applied wholly or predominantly for business or investment purposes (or both).

(7)  The Chief Commissioner may, by written instrument, determine the criteria that may be applied by lenders for the purpose of establishing that the exemption provided for by this section applies in respect of an advance.

(8)  Without limiting subsection (7), the Chief Commissioner may determine that an advance is taken to be made for the purpose of owner occupied housing if it meets criteria set out in any APRA reporting standard relating to housing finance that is specified by the Chief Commissioner to be applicable to the exemption under this section.

(9)  A determination made by the Chief Commissioner under this section:

(a)  may be varied or revoked by the making of a further determination, and

(b)  has effect according to its tenor.

(10)  The exemption provided for by this section takes effect on and from 1 September 2007.

221C   Mortgages associated with investment housing

(1)  Mortgage duty is not chargeable in respect of a mortgage if the mortgage secures an advance or advances made for the purpose of investment housing and no other advances.

(2)  If a mortgage secures an advance made for the purpose of investment housing and another advance that is not made for that purpose, mortgage duty is not chargeable in respect of the mortgage in relation to the amount advanced for the purpose of investment housing.

(3)  This section applies in respect of a mortgage only if the borrower under the mortgage is a natural person or, if there is more than one borrower, each of them is a natural person.

(4)  An advance is made for the purpose of investment housing if it is to be applied wholly or predominantly for one or more of the following purposes:

(a)  financing the acquisition of investment housing,

(b)  financing the construction of investment housing,

(c)  financing alterations or additions to investment housing,

(d)  repaying another advance, if the advance to be repaid was made for the purposes of investment housing (within the meaning of this section).

(5)  For the purposes of this section, investment housing is any private dwelling house that is used, or is intended to be used or sold, for investment or business purposes (or both) by the borrower or by any of the borrowers.

(6)  The Chief Commissioner may, by written instrument, determine the criteria that may be applied by lenders for the purpose of establishing that the exemption provided for by this section applies in respect of an advance.

(7)  Without limiting subsection (6), the Chief Commissioner may determine that an advance is taken to be made for the purpose of investment housing if it meets criteria set out in any APRA reporting standard relating to personal or commercial finance that is specified by the Chief Commissioner to be applicable to the exemption under this section.

(8)  A determination made by the Chief Commissioner under this section:

(a)  may be varied or revoked by the making of a further determination, and

(b)  has effect according to its tenor.

(9)  The exemption provided for by this section takes effect on and from 1 July 2008.

Part 4 Other exemptions

222   Exempt mortgages and supporting instruments

(1)  This Chapter does not apply to a mortgage executed before 1 January 1975.

(2)  Other instruments that are exempt from payment of mortgage duty are:

(a)  a mortgage created solely for the purpose of providing security in accordance with a condition imposed on the grant of bail in criminal proceedings, and

(b)  a mortgage taken by a non-profit organisation in conjunction with a lease in respect of which no duty is chargeable under this Act, and

(c)  a mortgage of any ship or vessel, or of any part, interest, share or property of or in any ship or vessel, and

(d)  a mortgage given by the Government of the Commonwealth or the Government of New South Wales or by any public statutory body constituted under a law of this State, and

(e)  a mortgage to which an offshore banking unit is a party and that would not be liable to duty if it were executed outside New South Wales, and

(f)  a mortgage under the Liens on Crops and Wool and Stock Mortgages Act 1898, and

(f1)  an agricultural goods mortgage under the Security Interests in Goods Act 2005, and

(g)  a mortgage that secures an amount advanced by an employer or a related body corporate of an employer to an employee of the employer, for the purpose of financing a purchase by the employee of shares in the employer, or a related body corporate of the employer, if the amount advanced (and the total of all advances that the mortgage secures) does not exceed $16,000.

(3)  The exemption provided by subsection (2) (d) does not apply to a mortgage given by a public statutory body in relation to a transaction, or any one of a class of transactions, specified in a proclamation made by the Governor and published in the Gazette in respect of the public statutory body concerned.

(4)  Duty is not chargeable in respect of a mortgage made or given by:

(a)  a council or county council under the Local Government Act 1993, or

(b)  the WorkCover Authority.

(5)  Duty is not chargeable on an instrument referred to in section 205 (d) if it is executed for the purposes of money market trading operations conducted or to be conducted by the person executing the instrument.

(6)  Duty is not chargeable in respect of a mortgage:

(a)  that is taken or is to be taken by the Sydney Futures Exchange Clearing House or the Options Clearing House Pty. Limited, and

(b)  that is or will be made available to it by a clearing member of the market, and

(c)  that does not secure an advance.

(7)  Duty under this Chapter is not chargeable on a charge over land that is created under an agreement for the sale or transfer of the land if any part of the deposit or balance of the purchase price for the land is paid to the vendor (or as the vendor directs) before completion of the sale or transfer.

223   Mortgages associated with certain credit contracts

(1)  If:

(a)  a mortgage secures an amount advanced under a consumer credit contract and no other advance, and

(b)  the total amount advanced under the consumer credit contract does not exceed $35,000,

      mortgage duty is not chargeable in respect of the mortgage.

(2)  If:

(a)  a mortgage secures an amount advanced under a consumer credit contract and another advance, and

(b)  the total amount advanced under the consumer credit contract does not exceed $35,000,

      mortgage duty is not chargeable on the mortgage in relation to the amount advanced under the consumer credit contract.

(3)  If:

(a)  a mortgage secures an amount advanced under a consumer credit contract (whether or not it also secures any other advance), and

(b)  the total amount advanced under the consumer credit contract exceeds $35,000,

      the whole of the amount advanced under the consumer credit contract comprises or forms part of the advances secured by the mortgage.

(4)  (Repealed)

(5)  In this section:

consumer credit means credit regulated under the Consumer Credit Code.

Consumer Credit Code means:

(a)  the provisions of the Code by that name set out in the Appendix to the Queensland Consumer Credit (Queensland) Act 1994, as applied and in force in any Australian jurisdiction, or

(b)  the provisions of an Act of an Australian jurisdiction that are in the same, or substantially the same, terms as that Code.

224   Farm machinery and commercial vehicles

(1)  Mortgage duty is not chargeable on so much of an advance to a natural person or a strata corporation for the acquisition of farm machinery or a commercial vehicle as is secured by the mortgage.

(2)  In this section:

commercial vehicle means:

(a)  a motor vehicle or trailer within the meaning of the Road Transport (Vehicle Registration) Act 1997 constructed or adapted principally for the carriage of goods but does not include a motor vehicle of the kind known as a utility, a station wagon or a panel van, or

(b)  a vehicle without motive power of its own and constructed or adapted principally for the carriage of goods and for being drawn by a motor vehicle within the meaning of that Act.

farm machinery means:

(a)  a harvester, binder, tractor, plough or other agricultural implement, or

(b)  a boat within the meaning of the Fisheries Management Act 1994 or fishing gear within the meaning of that Act, or

(c)  any other goods of a class commonly used for the purposes of a farming undertaking that are determined by the Chief Commissioner to be farm machinery for the purposes of this section,

      where the goods are acquired for the purposes of a farming undertaking.

farming undertaking includes:

(a)  any agricultural, apicultural, dairy farming, horticultural, orcharding, pastoral, poultry keeping, viticultural or other business involving the cultivation of the soil, the gathering of crops or the rearing of livestock, and

(b)  the business of taking fish, crustacea, oysters or any other marine, estuarine or fresh-water animal life, and

(c)  the cutting of timber for sale, and

(d)  any class of business determined by the Chief Commissioner to be a farming undertaking.

225   Certain debentures and related instruments

(1)  Mortgage duty is not chargeable on a mortgage solely securing the repayment of advances arising from the issue by a financial corporation or a related corporation of a debenture.

(2)  Mortgage duty is not chargeable on a mortgage in respect of advances arising from the issue by a financial corporation or a related corporation of a debenture if the mortgage secures in part the repayment of those advances.

(3)  This section applies to a debenture issued, or a mortgage executed, by a related corporation only in so far as the debenture is issued, or the mortgage is executed, for the purposes of raising funds to be used for a financial corporation.

(4)  In this section:

financial corporation means a corporation whose sole or principal business is providing finance to the public, including making loans to the public.

related corporation, in relation to a particular financial corporation, means a corporation that is, with respect to the financial corporation, a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

Part 5 Miscellaneous

226   Payment on mortgages associated with debenture issues

(1)  This section applies if:

(a)  a corporation is or will be under a liability to repay money received or to be received by it in respect of its debentures, and

(b)  the repayment is secured by a mortgage first executed before the cut-off date, and

(c)  the corporation is a party to an instrument of trust relating to the debentures.

(2)  If the corporation and the trustee for the debenture holders give a written undertaking in the approved form to the Chief Commissioner:

(a)  a mortgage first executed by the corporation before the cut-off date and solely securing the repayment of money received or to be received by the corporation in respect of its debentures is not liable to mortgage duty in respect of advances made before the debenture concession closure date arising from debentures subscribed for before the cut-off date, and

(b)  a mortgage, not executed by the corporation, and first executed before the cut-off date, solely securing the repayment of such money is liable to duty of $10 in respect of advances made before the debenture concession closure date arising from debentures subscribed for before the cut-off date, and

(c)  a mortgage, whether executed by the corporation or by another party, and first executed before the cut-off date, and securing in part the repayment of such money is not liable to mortgage duty in respect of advances made before the debenture concession closure date arising from debentures subscribed for before the cut-off date.

Note. The State Revenue Legislation Amendment Act 2003 terminated the concession provided for by this section in respect of mortgages executed, or debentures subscribed for, on or after the cut-off date.

(3)  The undertaking binds the corporation and the trustee to lodge with the Chief Commissioner, in July each year, a statutory declaration setting out, in the following categories, the total amount subscribed for in New South Wales before the cut-off date in respect of the corporation’s debentures during the year ending on the previous 30 June (but not including amounts repayable at call or in less than 30 days) and binds the corporation to pay duty in the following amounts:

Money repayable at or after the expiration of not less than 30 days and not more than 3 months	$2 for every $10,000, or part
Money repayable at or after the expiration of not less than 3 months and not more than 6 months	$2 for every $1,000, or part
Other money (except money repayable at call or in less than 30 days)	$4 for every $1,000, or part

Money repayable at call after a specified period is taken to be money repayable at the expiration of that period.

(3A)  The obligation to lodge a statutory declaration in July each year ceases after July 2003.

(3B)  Section 208 (2) applies in respect of a mortgage referred to in subsection (2), or a collateral mortgage that secures the same money as is secured by a mortgage referred to in subsection (2), if an advance or further advance is made on or after the debenture concession closure date, as if the reference to the amount secured by the mortgage at the time a liability to duty last arose were a reference to the total of:

(a)  the disclosed debenture amount, and

(b)  any advances or further advances made on or after the cut-off date in respect of which duty has been paid under this Chapter.

(3C)  (Repealed)

(3CA)  A mortgage executed before the cut-off date that is not liable to duty under subsection (2) and in respect of which no further advances have been made on or after the debenture concession closure date is taken to have been duly stamped.

(3D)  For the purposes of this section, the disclosed debenture amount is the total amount of debentures subscribed for in New South Wales before the cut-off date and disclosed to the Chief Commissioner in a statutory declaration referred to in subsection (3).

(4)  In this section, a reference to an amount subscribed for in respect of debentures includes a reference to an amount represented by debentures issued on the conversion or renewal of an existing holding of debentures or other marketable securities.

(4A)  To avoid any doubt, subsection (3B) extends to a mortgage executed on or after 1 January 1975 and before 1 January 1999.

(5)  In this section:

cut-off date means the date of commencement of Schedule 1 to the State Revenue Legislation Amendment Act 2003.

debenture concession closure date means the date on which the Bill for the State Revenue Legislation Further Amendment Act 2005 was introduced into the Legislative Assembly.

227   Unregistered mortgages protected by caveats (anti-avoidance provision)

(1)  A caveat under the Real Property Act 1900 in which an estate or interest is claimed under an unregistered mortgage is chargeable with duty.

(2)  The amount of duty is:

(a)  if the mortgage is chargeable, but not stamped, with mortgage duty—the same amount as is chargeable on the mortgage, or

(b)  if the mortgage is stamped, or is not chargeable, with mortgage duty—$50.

(3)  The person liable to pay the duty is the mortgagor.

(4)  This section does not apply to a caveat lodged in respect of a mortgage that is exempt from mortgage duty under Part 4.

227A   Transfer of mortgages

(1)  If a mortgage is transferred (whether or not at the request or direction of any party) to:

(a)  a person who, either in connection with the transfer or at a later time, makes an advance or further advance under or secured by the mortgage, or

(b)  a person who is a party to arrangements (referred to in section 215) relating to such an advance or further advance,

      the transferred mortgage is taken, for the purpose of determining its liability to duty under this Act, to be a new mortgage on which no duty has been paid and is liable to duty in respect of the advance or further advance accordingly.

(2)  The date of first execution of the transferred mortgage is taken to be:

(a)  in the case of a mortgage where the advance or further advance was made in connection with the transfer—the date of first execution of the transfer, and

(b)  in the case of a mortgage where the advance or further advance was made at a later time—the date of the first such advance or further advance.

(3)  If an insufficient amount of duty has been paid on a mortgage to which this section applies before it is taken by this section to be a new mortgage, the Chief Commissioner is not prevented from recovering at any time the amount of duty with which, in the Chief Commissioner’s opinion, the mortgage was properly chargeable from the mortgagor or person bound.

(4)  This section does not apply to the following:

(a)  a mortgage referred to in section 220 (3B),

(b)  a transfer of a mortgage by a corporation to another corporation if the Chief Commissioner is satisfied that, had the transfer been a dutiable transaction, it would not be chargeable with duty under section 281 (relating to transfers between members of the same group of corporations),

(c)  a transfer of a mortgage in connection with, or in preparation for creating, issuing, marketing or securing, a mortgage-backed security,

(d)  a transfer of a mortgage from a person who holds the mortgage as trustee for another person to a new trustee appointed in substitution for the former trustee.

(5)  This Chapter applies to a mortgage referred to in subsection (1) in the same way as it applies to any other mortgage, except as provided by subsection (6).

(6)  For the purposes of section 218B (1), a transferred mortgage is not considered to have been duly stamped in respect of any duty paid before the transfer on advances made before the transfer.

228   Stamping counterpart or collateral instrument if mortgage is lost, destroyed or cannot be produced

A counterpart of a mortgage or a collateral security for an amount secured by a mortgage is taken to be the mortgage and may accordingly be stamped or upstamped for mortgage duty purposes if, on application by or on behalf of a person who is a party to the mortgage, the Chief Commissioner is satisfied that the mortgage has been lost or destroyed or, because of being deposited in the Land Titles Office or from other reasonable cause, cannot conveniently be produced.

Chapter 8 Insurance

Part 1 General insurance

229   Imposition of duty

(1)  This Part charges duty on the amount of the premium paid in relation to a contract of insurance that effects general insurance (whether or not it also effects other kinds of insurance).

(2)  The amount of duty is required to be paid each time a premium is paid in relation to a contract of insurance that effects general insurance.

Notes. 

(1)   General insurance is defined in section 230.

(2)   Premium is defined in section 231.

(3)   The time at which a premium is paid is determined by section 232.

(4)   Generally, the insurer to whom the premium is paid is the person liable to pay the duty. But there are circumstances in which the person insured is liable to pay the duty. These circumstances are set out in section 236.

(5)   To facilitate payment of duty, insurers must register themselves with the Chief Commissioner, submit a monthly return showing the total amount of premiums paid to them for general insurance during the preceding month and pay the appropriate amount of duty when submitting the return. The provisions that deal with this are in Part 3.

230   What is “general insurance”?

(1)  General insurance is any kind of insurance that is applicable to:

(a)  property in New South Wales, or

(b)  a risk, contingency or event concerning an act or omission that, in the normal course of events, may occur within, or partly within, New South Wales,

      or both.

(2)  General insurance does not include life insurance, a life insurance rider or insurance that is exempt from duty by Part 5.

231   What is a “premium” in relation to general insurance?

(1)  Premium, in relation to general insurance, means the total consideration given to an insurer by or on behalf of the insured person to effect insurance without deductions for any amounts paid or payable, or allowed or allowable, by way of commission or discount to an insurance intermediary.

(2)  Premium includes a fire service levy and emergency service levy paid or payable in connection with insurance by an insurer or any other person.

(3)  Premium does not include:

(a)  an amount paid to an insurance intermediary by the insured person as a fee, provided that the amount can be clearly identified as a fee, or

(b)  an amount of duty under this or a corresponding Act.

(4)  It is immaterial where the amount is paid or where the insurance is effected.

232   When is a premium “paid”?

(1)  A premium, or an instalment of a premium, is paid for the purposes of this Chapter when the first of the following events occurs:

(a)  the premium or instalment is received by the insurer, or

(b)  an account of the insurer is credited with the amount of the premium or instalment.

(2)  A premium or instalment of a premium (apart from the case where the premium or instalment is received directly by an insurer) is taken to have been received by an insurer if it is received by another person on the insurer’s behalf.

233   Types of general insurance

(1)  For the purpose of charging duty, general insurance is divided into 3 types, Type A insurance, Type B insurance and Type C insurance.

(2)  Type A insurance is general insurance other than Type B insurance or Type C insurance.

(2A)  Type B insurance is:

(a)  motor vehicle insurance, being insurance covering any one or more of the following:

(i)  the loss (including the loss by theft) of a motor vehicle,

(ii)  damage to a motor vehicle,

(iii)  loss of or damage to property by a motor vehicle,

      being a motor vehicle within the meaning of the Motor Accidents Compensation Act 1999, or

(b)  aviation insurance, being insurance covering any one or more of the following:

(i)  the loss (including the loss by theft) of an aircraft,

(ii)  damage to aircraft,

(iii)  the death of or injury to a person by an aircraft or a thing falling from an aircraft,

(iv)  the loss of or damage to property by an aircraft or a thing falling from an aircraft, or

(c)  disability income insurance, being insurance effected by a contract of insurance under which an amount is payable in the event of disablement of the insured by accident or sickness, or

(d)  occupational indemnity insurance, being insurance covering liability arising out of the provision by a person of professional services or other services, or

(e)  hospital and ancillary health benefits insurance, being insurance covering liability incurred in respect of fees or charges for hospital treatment, or for health care ancillary to hospital treatment, if the liability is not covered by a private health insurer within the meaning of the Private Health Insurance Act 2007 of the Commonwealth.

(3)  Type C insurance is:

(a)  crop insurance, being insurance covering:

(i)  loss due to the destruction of, or physical damage to, any pasturage or any crop of grain, fruit, vegetables or other plants, where the destruction or damage occurs while the pasturage or crop is being grown, or

(ii)  loss due to the destruction of, or physical damage to, the product of any such pasturage or crop, where the destruction or damage occurs while the product of the pasturage or crop is being stored or transported,

      but not being insurance covering loss referred to in subparagraph (ii) unless the contract by which the insurance is effected also effects insurance covering the loss referred to in subparagraph (i), or

(b)  livestock insurance, being insurance covering:

(i)  loss due to the death of, or physical damage to, any animal, whether domesticated or wild, or

(ii)  loss due to the death of, or physical damage to, any genetic material of any such animal, or

(iii)  loss due to the theft of any such animal or genetic material, or

(c)  until 31 January 2010, insurance under the Debtor Insurance Scheme of the Stock and Station Agents Association.

234   What duty is payable?

(1)  The amount of duty chargeable on the premium paid in relation to a contract of insurance is 9% of the amount of the premium to the extent to which the premium is paid to effect Type A insurance.

(2)  The amount of duty chargeable on the premium paid in relation to a contract of insurance is 5% of the amount of the premium to the extent to which the premium is paid to effect Type B insurance.

(3)  The amount of duty chargeable on the premium paid in relation to a contract of insurance is 2.5% of the amount of the premium to the extent to which the premium is paid to effect Type C insurance.

235   Who is liable to pay the duty?

The general insurer is liable to pay the duty, except as provided by section 236.

236   Circumstances in which duty is payable by the insured person

(1)  This section applies to a person who obtains, effects, or renews any general insurance as an insured person with a person who is not a registered insurer.

(2)  A person to whom this section applies must, within 21 days after the end of the month in which the premium relating to the insurance is paid to the person who is not a registered insurer:

(a)  lodge with the Chief Commissioner a return in the approved form containing such particulars and information as to the premium and the insurance as the Chief Commissioner may require, and

(b)  pay to the Chief Commissioner as duty the amount calculated in accordance with section 234.

(3)  A person to whom this section applies is taken to have complied with this section if the person’s duty under this section is discharged by another person acting on the person’s behalf.

(4)  The payment of a periodic premium in respect of disability income insurance that is continued, but not renewed, on the payment of the premium is taken to effect the insurance for the purposes of this section.

(5)  In this section:

premium means any amount paid in connection with insurance to a person who is not a registered insurer that would be a premium under this Part if the person to whom it was paid was a registered insurer.

Note. Because this section imposes liability for duty on an insured person if the insured person arranges insurance with an insurer who is not registered, it would always be prudent to check the registered status of the insurer. This may be done by inspecting the register kept under section 252 by the Chief Commissioner.

237   Records to be kept

A person to whom section 236 applies must maintain records that contain information as to:

(a)  the nature and location of the property insured, and

(b)  the nature and location of each risk, contingency or event insured, and

(c)  the amount of the premiums paid in relation to each contract of insurance.

238   Refunds where premiums are returned

(1)  A general insurer or a person to whom section 236 applies is entitled to a refund of duty if the general insurer refunds, or there is refunded to the person, the whole or a part of a dutiable premium in respect of the contract of insurance for which duty has been paid.

(2)  The refund is the duty paid on the amount of the premium refunded.

(3)  A general insurer to whom duty is refunded may apply the amount of the refund to offset any other payment required to be made under this Act by the general insurer.

Part 2 Life insurance

239   Imposition of duty

This Part charges duty on:

(a)  a policy of life insurance, and

(b)  a life insurance rider.

Notes. 

(1)   Insurance is defined in the Dictionary to include assurance.

(2)   Generally, the insurer with whom the policy is effected is the person liable to pay the duty. But there are circumstances in which the person insured is liable to pay the duty. These circumstances are set out in section 245.

240   What is “life insurance”?

Life insurance means insurance described in section 9 (1) (a)–(g) and 9A of the Commonwealth Life Insurance Act 1995 in respect of:

(a)  a life or lives, or

(b)  any event or contingency relating to or depending on a life or lives,

of a person whose principal place of residence is, or persons whose principal places of residence are, in New South Wales at the time the policy that effects the insurance is issued.

241   What is a “life insurance rider”?

A life insurance rider is insurance that:

(a)  is attached to a policy of life insurance, and

(b)  adds specified events and contingencies to those insured under the policy, and

(c)  is subject to the terms and conditions of the policy.

242   Obligation to make out and execute a policy of life insurance

A life company must, on or before the twenty-first day of each month:

(a)  make out and execute a policy of life insurance for each contract or agreement for life insurance effected by or on behalf of the life company in the preceding month, and

(b)  endorse the policy in the manner approved by the Chief Commissioner.

243   What duty is payable?

(1) Policies of life insurance, other than a temporary or term insurance policy or trauma or disability insurance
The amount of duty chargeable on a policy of life insurance, other than a temporary or term insurance policy, a trauma policy, a TPD policy or a disability income policy is:

(a)  on the first $2,000, or part of $2,000, of the sum insured—$1, and

(b)  for every $200, or part of $200, in excess of the first $2,000—20 cents.

(2) Temporary or term insurance policies
The amount of duty chargeable on a temporary or term insurance policy, other than a group term insurance policy, is 5% of the first year’s premium on the policy.

(2A) Group term insurance policies
The amount of duty chargeable on a group term insurance policy is:

(a)  5% of the first year’s premium on the policy, and

(b)  5% of the amount of the premium (if any) payable in any succeeding year in respect of each additional life covered by the insurance policy (that is, each life that was not covered during the previous year).

(3) Life insurance riders
The amount of duty chargeable on a life insurance rider is 5% of the first year’s premium on the life insurance rider.

(4) Trauma or disability insurance
The amount of duty chargeable on a trauma policy, a TPD policy or a disability income policy is 5% of the premium paid to effect the insurance.

(5)  In this section:

disability income policy means a policy of insurance under which an amount is payable as a replacement of income in the event of the disablement of the insured by accident or sickness.

group term insurance policy means a term insurance policy that applies in respect of the lives of a specified group of persons, being a group the membership of which may change during the term of the policy.

TPD policy means a policy of insurance under which an amount is payable in the event of the total and permanent disablement of the insured by accident or sickness.

trauma policy means a policy of insurance under which an amount is payable in the event of the insured being found to have a stated condition or disease.

243A   Meaning of “premium”

Premium, in relation to a policy of life insurance or a life insurance rider, has the same meaning as it does in Part 1 in relation to general insurance.

244   Who is liable to pay the duty?

The life company or the person issuing the policy or life insurance rider is liable to pay the duty, except as provided by section 245.

245   Circumstances in which duty is payable by the insured person

(1)  This section applies to a person (not being a registered insurer) who effects a policy of life insurance or life insurance rider as an insured person with a person who is not a registered insurer.

(2)  A person to whom this section applies must, within 21 days after the end of the month in which the policy of life insurance or life insurance rider was effected:

(a)  lodge with the Chief Commissioner a return in the approved form containing such particulars and information as the Chief Commissioner may require, and

(b)  pay to the Chief Commissioner as duty the amount calculated in accordance with section 243.

(3)  A person to whom this section applies is taken to have complied with this section if the person’s duty under this section is discharged by another person acting on the person’s behalf.

Note. Because this section imposes liability for duty on an insured person if the insured person arranges insurance with an insurer who is not registered, it would always be prudent to check the registered status of the insurer. This may be done by inspecting the register kept under section 252 by the Chief Commissioner.

246   Refund on cancellation of policy of life insurance

If a premium is refunded to a person because the person cancels a policy of life insurance within 30 days after receiving the policy, a person who has paid duty in respect of the policy is entitled to a refund of the duty.

Part 3 How is duty paid by an insurer?

247   Who is an insurer?

(1)  An insurer is a life company that writes life insurance or a general insurer.

(2)  A general insurer is a person:

(a)  who writes general insurance, and

(b)  who does so otherwise than as an insurance intermediary, and

(c)  who is authorised as a general insurer under the Commonwealth Insurance Act 1973.

Note. Life company and insurance intermediary are defined in the Dictionary.

248   Insurers must be registered

An insurer must be registered under this Part.

Maximum penalty: 100 penalty units.

249   Application for registration

The Chief Commissioner must register an insurer who applies in the approved form for registration under this Part.

250   Cancellation of registration by the Chief Commissioner

(1)  The Chief Commissioner may, by written notice, cancel an insurer’s registration under this Part:

(a)  if the insurer’s authorisation under the Insurance Act 1973 of the Commonwealth is revoked, or

(b)  if the insurer is made bankrupt or, being a company, is wound up, or

(c)  if the insurer is convicted of an offence under an Act imposing duty, or

(d)  if the insurer’s registration was made in error or as a consequence of a false or misleading statement made in relation to the application for registration, or

(e)  if the Chief Commissioner is of the opinion that the insurer has ceased to write general insurance in New South Wales, or

(f)  if the insurer ceases to be a life company, or

(g)  for any other reason the Chief Commissioner thinks sufficient.

(2)  A cancellation of registration has effect from the date specified for the purpose by the Chief Commissioner in the notice of cancellation.

251   Cessation of business and cancellation of registration by the insurer

(1)  A registered insurer who ceases to write insurance business in New South Wales must:

(a)  give written notice of that fact to the Chief Commissioner, and

(b)  lodge the return required to be lodged under this Part, and

(c)  pay the duty payable in connection with the return on or before the twenty-first day of the month after which the notice is given.

Maximum penalty: 100 penalty units.

(2)  The notice cancels the insurer’s registration under this Part on the day on which it is received by the Chief Commissioner.

252   Register of insurers

(1)  The Chief Commissioner must keep a register of the insurers who are registered under this Part.

(2)  Anyone may inspect the register without charge at the Chief Commissioner’s principal office during the hours that the office is open to the public.

253   Monthly returns and payment of duty

A registered insurer must, on or before the twenty-first day of each month:

(a)  lodge with the Chief Commissioner a return in the approved form showing:

(i)  the total amount of all premiums for Type A insurance paid to the registered insurer in the preceding month, and

(ii)  the total amount of all premiums for Type B insurance paid to the registered insurer in the preceding month, and

(iii)  the total amount of all premiums for Type C insurance paid to the registered insurer in the preceding month, and

(iv)  the total duty payable on policies of life insurance other than temporary or term insurance effected in the preceding month, and

(v)  the total amount of all first year’s premiums for temporary or term life insurance received by or on behalf of the registered insurer in the preceding month, and all additional premiums referred to in section 243 (2A) (b) (other than premiums for insurance that is exempt from duty by Part 5), and

(vi)  the total amount of all first year’s premiums for life insurance riders received by or on behalf of the registered insurer in the preceding month (other than premiums for insurance that is exempt from duty by Part 5), and

(b)  pay to the Chief Commissioner as duty the amounts determined in accordance with sections 234 and 243.