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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Duties Amendment (Land Rich)
Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Duties Act 1997 No 123 2
Schedule 1 Land rich amendments 3
Schedule 2 Other amendments 40
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Duties Amendment (Land Rich)
Bill 2004
Act No , 2004
An Act to amend the Duties Act 1997 to make further provision with respect to the
duty chargeable on certain transactions; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Duties Amendment (Land Rich) Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Duties Amendment (Land Rich) Act 2004.
2 Commencement
(1) This Act commences on the date of assent, except as provided by
subsection (2).
(2) Schedule 1 is taken to have commenced on the date the Bill for this Act
is introduced in the Legislative Assembly.
3 Amendment of Duties Act 1997 No 123
The Duties Act 1997 is amended as set out in Schedules 1 and 2.
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Schedule 1 Land rich amendments
(Section 3)
[1] Section 99 Transfer by special trust to corporation
Omit "does not apply" from section 99 (2).
Insert instead "and Chapter 4A (Acquisition and disposal of interests in land
rich landholders) do not apply".
[2] Section 105 Introduction and overview
Omit the note.
[3] Chapter 3, Part 2
Omit the Part.
[4] Chapter 4A
Insert after Chapter 4:
Chapter 4A Acquisition and disposal of
interests in land rich landholders
Part 1 Preliminary
163 Overview
This Chapter charges duty on certain transactions that are not
"dutiable transactions" under Chapter 2 or "vendor duty
transactions" under Chapter 4.
Note. Duty is chargeable under Part 2 on the acquisition by a person of
an interest in a land rich landholder at the same rate as the transfer duty
chargeable under Chapter 2.
Duty is chargeable under Part 3 on the disposal by a person of an
interest in a land rich landholder at the same rate as the vendor duty
chargeable under Chapter 4.
163A Meaning of "landholder" and related expressions
(1) For the purposes of this Chapter, a landholder is any of the
following:
(a) a private unit trust scheme,
(b) a wholesale unit trust scheme,
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(c) a private company.
Note. Private unit trust scheme, wholesale unit trust scheme and
private company are defined in the Dictionary.
(2) However, for the purposes of Part 3, and any of the other
provisions of this Chapter insofar as they relate to the duty
chargeable under Part 3:
public unit trust scheme does not include a unit trust scheme
registered as an imminent public unit trust scheme under this
Chapter.
wholesale unit trust scheme does not include a unit trust scheme
registered as an imminent wholesale unit trust scheme under this
Chapter.
(3) Accordingly, a unit trust scheme registered as an imminent public
unit trust scheme or an imminent wholesale unit trust scheme
under this Chapter is a private unit trust scheme and a landholder
for the purposes of Part 3 and those related provisions.
163B Meaning of "land rich"
(1) For the purposes of this Chapter, a landholder is land rich if:
(a) it has land holdings in New South Wales with an
unencumbered value of $2,000,000 or more, and
(b) its land holdings in all places, whether within or outside
Australia, comprise 60% or more of the unencumbered
value of all its property.
(2) In calculating the unencumbered value of the property of a
landholder for the purposes of subsection (1), property of any of
the following kinds is not counted:
(a) cash, whether in Australian or other currency,
(b) money on deposit with any person, negotiable instruments
or debt securities,
(c) loans that, according to their terms, are to be repaid on
demand by the lender or within 12 months after the date of
the loan,
(d) if the landholder is a private unit trust scheme or a
wholesale unit trust scheme, loans to persons who, in
relation to a trustee or beneficiary of the scheme, are
associated persons,
(e) if the landholder is a private company, loans to persons
who, in relation to the company or to a majority
shareholder or director of the company, are associated
persons,
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(f) land use entitlements,
(g) units or shares in a linked entity of the landholder,
(h) property consisting of an interest as a beneficiary in a
discretionary trust (within the meaning of section 163U).
Note. Associated person, land use entitlement and majority
shareholder are defined in the Dictionary.
(3) In addition to subsection (2), property is not to be counted in
calculating the unencumbered value of the property of a
landholder for the purposes of subsection (1) if the landholder is
unable to satisfy the Chief Commissioner that the property was
obtained otherwise than to reduce, for the purposes of this
Chapter, the ratio of its land holdings in all places, whether within
or outside Australia, to the unencumbered value of all its
property.
163C What are the "land holdings" of a landholder?
(1) For the purposes of this Chapter, a land holding is an interest in
land other than the estate or interest of a mortgagee, chargee or
other secured creditor or a profit à prendre. An interest in land,
however:
(a) is not a land holding of a unit trust scheme unless the
interest is held by the trustees in their capacity as trustees
of the scheme, and
(b) is not a land holding of a private company unless the
interest of the private company in the land is a beneficial
interest.
(2) This section is in aid of, but does not limit, the operation of any
provision of this Chapter providing for constructive ownership of
interests.
163D What are "interests" and "significant interests" in landholders?
(1) For the purposes of this Chapter, a person has an interest in a
landholder if the person has an entitlement (otherwise than as a
creditor or other person to whom the landholder is liable) to a
distribution of property from the landholder on a winding up of
the landholder or otherwise.
(2) A person who, by virtue of subsection (1), has an interest in a
landholder has a significant interest in the landholder if the
person, in the event of a distribution of all the property of the
landholder immediately after the interest was acquired, would be
entitled to:
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(a) in the case of a private unit trust scheme--20% or more of
the property distributed, or
(b) in the case of a landholder other than a private unit trust
scheme--50% or more of the property distributed.
(3) For the purposes of Part 2 only, an interest in a landholder is not
counted if the interest concerned:
(a) is an interest in a unit trust scheme acquired before 10 June
1987, or
(b) is an interest in a private company acquired before 21
November 1986, or
(c) was acquired at a time when the landholder did not hold
land in New South Wales.
(4) In this section, person includes a landholder.
Part 2 Charging of duty on acquisitions of
interests in land rich landholders
163E When does a liability for duty arise?
A liability for duty charged by this Part arises when a relevant
acquisition is made.
163F What is a "relevant acquisition"?
(1) For the purposes of this Chapter, a person who:
(a) acquires an interest in a land rich 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 land rich landholder, acquires a
further interest in the landholder,
has made a relevant acquisition.
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(2) However, an acquisition of an interest in a land rich landholder
under an arrangement that results in the land rich landholder
ceasing to be a landholder is not a relevant acquisition because of
subsection (1) (a) (iii).
(3) For the purposes of this Part, persons in their capacity as
qualifying investors of a wholesale unit trust scheme are taken
not to be associated persons of other qualifying investors in
relation to the scheme.
163G How may an interest be "acquired"?
(1) For the purposes of this Part, a person acquires an interest in a
land rich 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 land rich landholder in the following ways:
(a) the purchase, gift, allotment 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.
(3) To remove any doubt, it is declared that a person may acquire an
interest in a land rich landholder without acquiring units or shares
in the land rich landholder.
163H 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 and whether it is an exempt transaction,
(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,
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(e) the unencumbered value of all land holdings in New South
Wales of the landholder as at the date of the relevant
acquisition and as at the date of acquisition of each interest
acquired in the landholder during the 3 years prior to the
date of the relevant acquisition,
(f) the unencumbered value of the property of the landholder
at the date of the relevant acquisition,
(g) the amount of duty paid under this Act or under a law of
another Australian jurisdiction in respect of each earlier
acquisition of an interest referred to in paragraph (e),
(h) such other information as the Chief Commissioner may
require.
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 4
that deal with how a person may be taken to have acquired an interest
in a land rich landholder because of the interests in a linked entity.
163I 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.
163J 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.
163K How duty is charged on relevant acquisitions
(1) If an acquisition statement does not disclose any acquisitions
during the 3 years preceding the relevant acquisition, duty is
chargeable, at the rate specified under section 32 of this Act for a
transfer of dutiable property, on the amount calculated by
multiplying the unencumbered value of all land holdings 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.
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(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 discloses one or more acquisitions
during the 3 years preceding the relevant acquisition, duty is
chargeable, at the rate specified under section 32 of this Act for a
transfer of dutiable property, 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 the acquisition,
during the 3 years preceding the relevant acquisition, 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 an amount (if
any) calculated in accordance with the following formula:
A
--- × C
-
B
where:
A is the unencumbered value of the land holdings in New South
Wales of the landholder at the time the dutiable 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, 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.
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(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 transaction.
(8) This section is subject to Part 4.
(9) In this section:
exempt transaction means an acquisition that is an exempt
transaction under Part 5.
163L Primary producers--special provisions
(1) No duty is chargeable under this Part in respect of a relevant
acquisition if:
(a) the relevant acquisition is made in a landholder that is a
primary producer, and
(b) when the acquisition is made, the landholder's land
holdings in all places, whether within or outside Australia,
comprise less than 80% of the unencumbered value of all
its property.
(2) However, if at any time within the period of 5 years after a
relevant acquisition to which subsection (1) applies 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 Part 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.
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(3) The provisions of section 163B (2) and (3) apply to the
calculation of the unencumbered value of the land holdings of the
primary producer under this section.
(4) In this section, primary producer means a landholder whose land
holdings in all places, whether within or outside Australia,
wholly or predominantly comprise land used for primary
production (within the meaning of section 274).
Part 3 Charging of duty on disposals of interests
in land rich landholders
163M When does a liability for duty arise?
A liability for duty charged by this Part arises when a relevant
disposal is made.
163N What is a "relevant disposal"?
(1) For the purposes of this Chapter, a person who is a significant
interest holder in relation to a landholder and who disposes of an
interest in the land rich landholder has made a relevant disposal.
(2) A person is a significant interest holder in relation to a
landholder if the person has or has had, at any time within the
period of 3 years before the disposal, a significant interest in the
landholder or an interest that, when aggregated with other
interests held by any associated persons, amounts to a significant
interest in the landholder.
(3) For the purposes of this Part, persons in their capacity as
qualifying investors of a wholesale unit trust scheme are taken
not to be associated persons of other qualifying investors in
relation to the scheme.
163O How may an interest be "disposed of"?
(1) A person who has an interest in a land rich landholder disposes of
an interest in the landholder if the person ceases to have an
interest in the landholder, or the person's interest in the
landholder decreases, regardless of how that happens.
(2) Without limiting subsection (1), a person may dispose of an
interest in a land rich landholder in the following ways:
(a) the sale, gift, allotment 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,
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(d) the payment of an amount owing for a unit or share.
(3) To remove any doubt, it is declared that a person may dispose of
an interest in a land rich landholder without disposing of units or
shares in the land rich landholder.
163P Disposal statements
(1) A person who has made a relevant disposal must prepare a
statement (a disposal statement) and lodge it with the Chief
Commissioner.
(2) The disposal 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 disposed of
the interest,
(b) the date on which it was disposed of,
(c) particulars of the interest of the person and any associated
persons in the landholder immediately before the relevant
disposal,
(d) particulars of any other interests of the person or any
associated persons in the landholder disposed of within the
3-year period before the date of the relevant disposal,
(e) the unencumbered value of all land holdings in New South
Wales of the landholder as at the date of the relevant
disposal,
(f) the unencumbered value of the property of the landholder
at the date of the relevant disposal,
(g) such other information as the Chief Commissioner may
require.
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 4
that deal with how a person may be taken to have disposed of an interest
in a land rich landholder because of the interests in a linked entity.
Section 163Z allows valuations prepared within 12 months before a
disposal to be used in certain circumstances for the purpose of
determining the unencumbered value of land holdings of a landholder at
the date of the relevant disposal.
163Q 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.
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163R Who is liable to pay the duty?
Duty chargeable under this Part is payable by the person who
makes the relevant disposal.
163S How duty is charged on relevant disposals
(1) Duty is chargeable on a relevant disposal, at the rate specified
under Chapter 4 for a dutiable transaction in respect of
land-related property, on the amount calculated by multiplying
the unencumbered value of all land holdings of the landholder in
New South Wales by the proportion of that value represented by
the interest disposed of in the relevant disposal.
(2) Duty is not chargeable under this section on the disposal of an
interest in a landholder if the disposal is an exempt transaction.
(3) If a land holding of a landholder is an exempt land holding in
relation to a particular disposal, the unencumbered value of the
land holding is to be disregarded when calculating the duty
chargeable on the disposal.
(4) This section is subject to Part 4.
(5) In this section:
exempt land holding means a land holding that is an exempt land
holding under Part 6.
exempt transaction means a disposal that is an exempt
transaction under Part 5.
Part 4 General principles to be applied under this
Chapter
163T 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 or a private 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 private company.
(2) In this section, a linked entity of a 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
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(iii) in which a link exists if a person would be entitled
to receive not less than 20% 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, a wholesale unit trust scheme or a company
whose shares are listed on the Australian Stock
Exchange or an exchange of the World Federation
of Exchanges, and
(b) who is not a public unit trust scheme, a wholesale unit trust
scheme or a company whose shares are listed on the
Australian Stock Exchange or an exchange of the World
Federation of Exchanges.
Note. The expressions "public unit trust scheme" and "wholesale unit
trust scheme" have a different meaning in this provision from the
meaning given in the Dictionary insofar as this provision relates to the
duty chargeable under Part 3 (see section 163A).
(3) The value, for duty purposes, of the interest in land or other
property that a unit trust scheme or a private company (being a
principal entity) is taken, by subsection (1), 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 private
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.
163U 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:
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(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.
163V Effect of uncompleted agreements
(1) For the purposes of this Chapter, the transferor and the transferee
under an uncompleted agreement for the transfer of land are
taken to be separately entitled to the whole of the land.
Note. If duty is charged on an acquisition or disposal 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) For the purposes of this Chapter:
(a) if a landholder has agreed to dispose of property other than
land, the agreement is taken to have been completed even
if it is not completed, and
(b) if a landholder has agreed to acquire property other than
land and has not completed the agreement, the agreement
is to be disregarded.
163W Agreements for sale or conveyance of land
(1) If:
(a) at the time of acquisition or disposal of an interest by any
person in a land rich landholder that necessitates the
lodgment of an acquisition statement or disposal statement
under this Chapter, the landholder was the vendor under an
uncompleted agreement for the sale or conveyance 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 or disposal concerned, a land holding of the
landholder.
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(2) If:
(a) at the time of acquisition or disposal of an interest by any
person in a land rich landholder that necessitates the
lodgment of an acquisition statement or disposal statement
under this Chapter, the landholder was the purchaser under
an uncompleted agreement for the sale or conveyance 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 or disposal concerned, a land holding of the
landholder.
(3) In this section, a reference to a landholder includes a reference to
a linked entity of the landholder.
163X Agreements for disposal or acquisition of property other than land
(1) If, at the time of an acquisition or disposal of an interest by a
person in a land rich landholder that necessitates the lodgment of
an acquisition statement or disposal statement under this Chapter,
the landholder had agreed to dispose of property other than land,
and the agreement has subsequently been rescinded, annulled or
otherwise terminated without completion, the Chief
Commissioner is to assess or reassess the statement as though the
property the subject of the agreement was, at the time of the
acquisition or disposal concerned, property of the landholder.
(2) Subsection (1) does not apply unless the Chief Commissioner is
satisfied that the rescission, annulment or other termination of the
agreement is not part of a scheme or arrangement under which the
object of the agreement has been or is intended to be achieved in
another way.
(3) If, at the time of an acquisition or disposal of an interest by a
person in a land rich landholder that necessitates the lodgment of
an acquisition statement or disposal statement under this Chapter,
the landholder had agreed to acquire property other than land, and
the agreement is subsequently completed, the Chief
Commissioner is to assess or reassess the statement as though the
property the subject of the agreement was, at the time of the
acquisition or disposal concerned, property of the landholder.
(4) In this section, a reference to a landholder includes a reference to
a linked entity of the landholder.
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163Y 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 or disposal statement under this Chapter
and the value of land holdings mentioned in it.
(2) In determining the unencumbered value of land holdings 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 or relevant disposal.
(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 or relevant disposal, 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.
163Z Use of valuations prepared within 12-month period before
disposal
(1) For the purpose of determining the duty chargeable on a relevant
disposal under Part 3, the unencumbered value of all land
holdings of the landholder in New South Wales is to be calculated
by reference to the value of those land holdings according to any
relevant valuation specified in subsection (2).
(2) A relevant valuation is any of the following documents prepared
within 12 months before the date a liability for duty under Part 3
arises:
(a) an independent valuation of the land holdings of the
landholder,
(b) a property valuation used by the landholder in preparing an
annual return to be lodged under the Corporations Act
2001 of the Commonwealth,
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(c) a financial report of the landholder, certified by an
independent auditor as presenting a true and fair view of a
landholder's financial position,
(d) any other document the Chief Commissioner considers to
be appropriate for calculating the value of the land
holdings of the landholder.
(3) However, if there is more than one relevant document, the most
recently prepared of those relevant documents is to be used for
the purpose of determining the value of land holdings of the
landholder.
(4) This section does not apply in respect of a relevant disposal made
by a person if, as a consequence of that disposal, another person
has made a relevant acquisition.
163ZA 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.
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(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 5 Exemptions and concessions
163ZB Exempt transactions
(1) An acquisition or disposal by a person of an interest in a
landholder is an exempt transaction:
(a) if the interest was acquired or disposed of 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 or disposed of 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 the 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 or disposed of solely
from a pro rata increase or decrease in the interests of all
unit holders or shareholders, or
(d) if the interest was acquired or disposed of 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 the Family
Provision Act 1982 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 interest was acquired or disposed of 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
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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
(f) if the interest was acquired or disposed of 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.
(g) to the extent that:
(i) for purposes of or ancillary to the acquisition or
disposal of an interest referred to in paragraph (e) or
(f), the acquisition or disposal 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 domestic relationship, in order
to comply with a requirement of or prescribed under
the Corporations Act 2001 of the Commonwealth,
or
(ii) the acquisition or disposal 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, or
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(h) if the land holding of the landholder comprises land used
for primary production and the Chief Commissioner is
satisfied that:
(i) the land was used for primary production
immediately before the acquisition or disposal, and
(ii) the land will continue to be used for primary
production after the acquisition or disposal, and
(iii) the parties between whom the acquisition or
disposal has occurred are persons of a class
identified in guidelines approved under section 274,
and
(iv) the acquisition or disposal satisfies such other
requirements as may be contained in those
guidelines, or
(i) if the acquisition or disposal of an interest in a landholder
would be chargeable with duty of $10 under section 54 if
the property being acquired or disposed of were land in
New South Wales.
(2) An acquisition or disposal by a person of an interest in a
landholder is an exempt transaction if the Chief Commissioner,
being satisfied that the application of this Chapter to the
acquisition or disposal in the particular case would not be just and
reasonable, so determines.
(3) If:
(a) duty was paid on the acquisition or disposal 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 or disposed of was acquired or
disposed of as a result of a transfer made in accordance
with an agreement or order referred to in subsection (1) (e)
(i), (ii) or (iii), 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.
(4) If:
(a) duty was paid on the acquisition or disposal 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
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(b) the interest acquired or disposed of was acquired or
disposed of as a result of a transfer made in accordance
with an order or agreement referred to in subsection (1) (f)
(i) or (ii), 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 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 domestic relationship, the domestic
relationship has been terminated.
The Chief Commissioner is required to have regard to any such
statement in exercising his or her functions under subsection (1)
(e) or (f).
(6) Subsection (5) does not limit the functions of the Chief
Commissioner under section 72 of the Taxation Administration
Act 1996.
(7) In this section:
land used for primary production has the same meaning as in
section 274.
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 domestic relationship means property
of the parties to the relationship or of either of them.
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163ZC Duty concession: 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 land rich
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) Section 163H does not apply to the re-acquisition by a person of
the interest concerned.
163ZD Duty concession: disposals securing financial accommodation
(1) If the person lodging a disposal statement under this Chapter in
relation to the disposal of an interest in a land rich landholder:
(a) informs the Chief Commissioner at the time the statement
is lodged that the disposal is effected for the purpose of
securing financial accommodation, and
(b) the Chief Commissioner is satisfied that the disposal is
effected for that purpose,
the statement, in so far as it relates to that disposal, 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 disposal (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 who disposed of it, or
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(b) in the case of a disposal 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) Section 163P does not apply to the disposal of the interest
concerned for the purpose of its re-acquisition by the person who
disposed of it.
163ZE Concession for buy-back 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 beneficially 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 beneficially 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 beneficially 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.
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Part 6 Further exemptions and concessions for
disposal duty
Division 1 Exempt land holdings
163ZF Vendor duty exemptions to be applied
(1) A land holding of a landholder is an exempt land holding in
relation to a disposal if the Chief Commissioner is satisfied that,
had the landholder transferred the land that is the subject of the
land holding immediately before the disposal took place, the
transfer of the land by the landholder would not be chargeable
with duty under Chapter 4 because of the application of one or
more of the following provisions:
(a) section 162H (Exemption for farms),
(b) the provisions set out in Division 4 of Part 5 of Chapter 4
(Exemptions for new and substantially new buildings),
(c) section 162S (Improved vacant land).
(2) For that purpose, the provisions of this Act referred to in
subsection (1) are to be applied subject to any modifications the
Chief Commissioner considers necessary.
(3) A person who makes a relevant disposal (including any
associated person) is entitled to claim a particular land holding is
an exempt land holding because of the application of a provision
referred to in subsection (1) (b) in relation to one disposal by the
person (or an associated person) only. That is, a land holding that
consists of an interest in a particular parcel of land cannot be
claimed to be an exempt land holding in relation to a disposal
under those provisions if the land holding has been claimed to be
an exempt land holding in relation to a previous disposal by the
person or an associated person.
163ZG Land subject to conservation instruments
(1) A land holding is an exempt land holding in relation to a disposal
if it consists of an interest in land that the Chief Commissioner is
satisfied is the subject of a conservation agreement under the
National Parks and Wildlife Act 1974, or a trust agreement
registered as referred to in section 36 of the Nature Conservation
Trust Act 2001, being in either case an agreement that remains in
force in perpetuity. These conservation agreements and
registered trust agreements are referred to in this section as
conservation instruments.
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(2) If the land is only partly the subject of a conservation instrument
then, for the purpose of charging duty under this Chapter, the
unencumbered value of the land holding is to be reduced by the
conservation apportionment factor.
(3) The conservation apportionment factor is the proportion that the
area of the land that is the subject of the conservation instrument
bears to the total area of the land.
Division 2 Concession for land holdings that have not
significantly increased in value
163ZH Exemption for land holdings that have not increased in value
In determining the duty to be charged under Part 3 of this Chapter
in respect of a relevant disposal, the unencumbered value of a
particular land holding of a land rich landholder is to be
disregarded if the Chief Commissioner is satisfied that the
unencumbered value of the land holding at the disposal date does
not exceed the unencumbered value of the land holding at the
disposer acquisition date.
163ZI Exemption for land holdings where increase in value does not
exceed 12 per cent
In determining the duty to be charged under Part 3 of this Chapter
in respect of a relevant disposal, the unencumbered value of a
particular land holding of a land rich landholder is to be
disregarded if the Chief Commissioner is satisfied that the
unencumbered value of the land holding at the disposal date
exceeds the unencumbered value of the land holding at the
disposer acquisition date by not more than 12 per cent of the
unencumbered value of the land holding at the disposer
acquisition date.
163ZJ Concession for increases between 12 and 15 per cent
(1) This section applies in respect of a relevant disposal if the Chief
Commissioner is satisfied that the unencumbered value of a
particular land holding of the land rich landholder on the disposal
date exceeds the unencumbered value of the land holding on the
disposer acquisition date by more than 12 per cent, but not more
than 15 per cent, of the unencumbered value of the land holding
on the disposer acquisition date.
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(2) If this section applies, the unencumbered value of the land
holding at the disposal date is to be discounted, for the purpose of
calculating the duty chargeable under Part 3 of this Chapter, in
accordance with the following table:
Increase in unencumbered value of Discount on
land holding (expressed as % of unencumbered
unencumbered value of land holding value
on disposer acquisition date)
More than 12% but not more than 13% 75%
More than 13% but not more than 14% 50%
More than 14% but not more than 15% 25%
163ZK What is the disposal date?
For the purposes of this Division, the disposal date, in relation to
a relevant disposal, is the date on which a liability for the duty
chargeable under Part 3 arises or would, but for this Division,
arise.
163ZL What is the disposer acquisition date?
(1) For the purposes of this Division, the disposer acquisition date in
relation to a particular land holding of a land rich landholder is:
(a) the date on which the person making the relevant disposal
first acquired an interest in the landholder or, if the person
acquired separate interests in the landholder on separate
dates, the earliest date on which the person acquired an
interest in the landholder (other than an interest that has
previously been disposed of by the person), or
(b) the date on which the landholder first acquired the land
holding,
whichever is the later.
(2) If a person making a relevant disposal acquired an interest in the
landholder as the legal personal representative of a deceased
person, as a beneficiary under a will of a deceased person or as a
result of the intestacy of a deceased person, the person is taken to
have first acquired an interest in the landholder on the date on
which the deceased person first acquired an interest in the
landholder.
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163ZM Landholder that holds multiple interests in land
For the purpose of applying this Division in respect of a disposal
by a person in a land rich landholder:
(a) if the land holdings of the landholder comprise interests in
more than one parcel of land, this Division is to be applied
separately in respect of each such parcel of land, and
(b) if a landholder's interest in a particular parcel of land at the
disposal date is different from the interest of the landholder
in that land at the disposer acquisition date, the
unencumbered value of the land holding at the disposer
acquisition date is to be determined as if the landholder had
held the same interest in the land at the disposer acquisition
date as the interest held at the disposal date.
163ZN Determination of value of land holding under this Division
(1) For the purposes of this Division, the unencumbered value of a
land holding on a particular date is to be determined by reference
to any of the following documents:
(a) an independent valuation of the land holding as at the
relevant disposal date and the disposer acquisition date,
(b) any other document the Chief Commissioner considers to
be appropriate for calculating the value of the land holding.
(2) If, after the disposer acquisition date, improvements were made
to land in which a landholder has an interest, the unencumbered
value of the land holding at the disposer acquisition date is to be
determined as if those improvements had not been made.
(3) The Chief Commissioner may, by notice in writing, require a
landholder to provide such information or evidence as the Chief
Commissioner may reasonably require for the purpose of
ascertaining the unencumbered value of a land holding of the
landholder or the disposer acquisition date in relation to such a
land holding.
(4) The Chief Commissioner may refuse to grant an exemption under
this Division if the landholder fails to comply with any such
notice.
(5) This section applies despite section 163Z.
Note. Section 305 allows the Chief Commissioner to require the person
making the disposal to obtain a declaration as to the value of property.
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Division 3 Other exemptions and concessions
163ZO No double duty
If a relevant disposal consists of a redemption of units in a unit
trust scheme and the Chief Commissioner is satisfied that the
disposal forms part of an arrangement under which any land
holdings of the landholder are transferred, the duty chargeable in
respect of the relevant disposal under Part 3 of this Chapter is to
be reduced by the amount of duty (if any) paid under Chapter 4
in respect of the transfer of the land holdings.
163ZP Passive disposals
(1) A disposal by a person of an interest in a landholder is an exempt
transaction if the Chief Commissioner is satisfied that the
disposal is a passive disposal and does not form part of an
arrangement to avoid the payment of duty under this Act.
(2) A disposal by a person of an interest in a landholder is a passive
disposal if:
(a) the disposal occurs entirely as a consequence of actions,
decisions or events over which the person and any
associated persons had no control, and
(b) the person and any associated persons do not receive any
consideration or benefit as a consequence of the disposal.
163ZQ Disposals for no consideration by charities and others
A disposal by a person of an interest in a land rich landholder is
an exempt transaction if the disposal consists of the disposal of
property to another person for no consideration and the Chief
Commissioner is satisfied that, had the disposal been a transfer by
the person of land to that other person, the other person would not
be liable to pay duty on the transfer under this Act (disregarding
Division 1 of Part 8 of Chapter 2 and section 278).
Division 4 General
163ZR General
(1) This Part does not affect a determination under this Chapter as to
whether a landholder is land rich.
(2) This Part does not affect any liability for the duty chargeable
under Part 2 in respect of a relevant acquisition.
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Part 7 Registration of unit trust schemes
163ZS Application for registration
(1) The responsible entity of a unit trust scheme may apply to the
Chief Commissioner for registration of the scheme as:
(a) an imminent public unit trust scheme, or
(b) a wholesale unit trust scheme, or
(c) an imminent wholesale unit trust scheme.
(2) An application must be made by the applicant in an approved
form.
(3) In considering an application for registration under this Part, the
Chief Commissioner may take into account any matter he or she
considers relevant.
163ZT Registration of imminent public unit trust scheme
(1) On application by the responsible entity of a unit trust scheme,
the Chief Commissioner may register the unit trust scheme as an
imminent public unit trust scheme if the Chief Commissioner is
satisfied that the scheme meets the criteria for registration as an
imminent public unit trust scheme.
(2) The criteria for registration as an imminent public unit trust
scheme are that:
(a) the unit trust scheme will become a listed trust or widely
held trust within 12 months (or such longer period as the
Chief Commissioner may determine) after the Chief
Commissioner gives written notice of his or her intention
to register the unit trust scheme as an imminent public unit
trust scheme, and
(b) the units issued in the trust before the scheme becomes a
listed trust or widely held trust have been or will be issued
only for the purpose of the unit trust scheme becoming a
listed trust or widely held trust, and
(c) those units are or will be the only units issued until the unit
trust scheme becomes a listed trust or widely held trust.
163ZU Registration of wholesale unit trust schemes
(1) On application by the responsible entity of a unit trust scheme,
the Chief Commissioner may register the unit trust scheme as a
wholesale unit trust scheme if the Chief Commissioner is
satisfied that the scheme meets the criteria for registration as a
wholesale unit trust scheme.
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(2) The criteria for registration as a wholesale unit trust scheme are
that:
(a) not less than 80% of the units in the unit trust scheme are
held by qualifying investors, being any of the following:
(i) the trustee of a complying superannuation fund
which has not less than 300 members,
(ii) the trustee of a complying approved deposit fund
which has not less than 300 members,
(iii) the trustee of a pooled superannuation trust,
(iv) the trustee of a public unit trust,
(v) a life company if its holding of the units in the unit
trust scheme is an investment of a statutory fund
maintained by it under the Life Insurance Act 1995
of the Commonwealth (and, for the purposes of this
subparagraph, the holding of units by a life company
by way of an investment of a statutory fund of the
life company is taken to be a holding of units by the
life company in a separate capacity from a holding
of units by the life company by way of investment
of another statutory fund of the life company),
(vi) a custodian for a trustee, or a trustee for a life
company, referred to in any of the preceding
subparagraphs in its capacity as such a custodian or
trustee,
(vii) the trustee of another wholesale unit trust scheme,
(viii) the custodian or trustee for an IDPS, or investor
directed portfolio service, within the meaning of the
relevant ASIC policy statement, in its capacity as
such a custodian or trustee, if the IDPS has not less
than 300 clients or investors, none of whom
(individually or together with any associated
person) is beneficially entitled to more than 20% of
the property to which the IDPS relates,
(ix) the Crown in right of the Commonwealth, a State or
a Territory (including any statutory body
representing the Crown in right of the
Commonwealth, a State or a Territory), and
(b) each qualifying investor holds less than 50% of the units in
the unit trust scheme or, if a qualifying investor holds units
in the unit trust scheme in more than one capacity, the
qualifying investor holds less than 50% of the units in each
capacity.
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(3) A listed trust is not eligible for registration as a wholesale unit
trust scheme.
(4) In this section:
relevant ASIC policy statement means the policy statement PS
148: Investor Directed Portfolio Services published by the
Australian Securities and Investments Commission, or such other
policy statement published by the Commission as the Chief
Commissioner may from time to time approve for the purpose of
this section.
163ZV Registration of imminent wholesale unit trust schemes
(1) On application by the responsible entity of a unit trust scheme,
the Chief Commissioner may register the unit trust scheme as an
imminent wholesale unit trust scheme if the Chief Commissioner
is satisfied that the scheme meets the criteria for registration as an
imminent wholesale unit trust scheme.
(2) The criteria for registration as an imminent wholesale unit trust
scheme are that:
(a) the unit trust scheme will meet the criteria for registration
as a wholesale unit trust scheme within 12 months (or such
longer period as the Chief Commissioner may determine)
after the Chief Commissioner gives written notice of his or
her intention to register the trust as an imminent wholesale
unit trust scheme, and
(b) the units issued in the trust before the scheme meets the
criteria for registration as a wholesale unit trust scheme
have been or will be issued only for the purpose of the unit
trust scheme meeting those criteria, and
(c) those units are or will be the only units issued before the
trust meets those criteria.
163ZW Duration of registration
(1) Registration of a unit trust scheme under this Part takes effect on
the day specified by the Chief Commissioner in respect of the
scheme, which may be a day occurring before the day on which
registration is granted.
(2) Registration of a wholesale unit trust scheme remains in force
until it is cancelled by the Chief Commissioner.
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(3) Unless cancelled earlier, registration of an imminent public unit
trust scheme or an imminent wholesale unit trust scheme remains
in force for 12 months from the date on which registration takes
effect or for such further period as the Chief Commissioner may,
from time to time, specify in respect of the unit trust scheme.
163ZX Register
(1) The Chief Commissioner is to keep a register of unit trust
schemes registered as wholesale unit trust schemes under this
Part.
(2) The following information is to be entered in the register in
relation to each unit trust scheme registered as a wholesale unit
trust scheme:
(a) the name of the unit trust scheme,
(b) the date of registration,
(c) such other information relating to the unit trust scheme as
the Chief Commissioner may approve.
(3) The register is to be kept in such form as the Chief Commissioner
considers appropriate.
(4) A copy of the register is to be made available for public
inspection by publication on the website of the Office of State
Revenue in the Treasury, and in such other manner as the Chief
Commissioner may approve.
163ZY Reporting requirements
(1) As a condition of registration under this Part, the Chief
Commissioner may impose requirements on the responsible
entity of the registered unit trust scheme to give the Chief
Commissioner information specified by the Chief Commissioner
about the unit trust scheme at the times required by the Chief
Commissioner.
(2) Requirements may be imposed under subsection (1) at the time of
registration or at any subsequent time.
163ZZ Cancellation of registration
(1) The Chief Commissioner may cancel the registration of a unit
trust scheme at any time if the Chief Commissioner is satisfied
that:
(a) a disqualifying circumstance within the meaning of section
163ZZA has occurred in respect of that scheme, or
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(b) the responsible entity of the unit trust scheme has
contravened a condition of registration of the unit trust
scheme imposed under this Part, or
(c) in the case of an imminent public unit trust scheme, the
unit trust scheme has become a listed trust or a widely held
trust, or
(d) in the case of an imminent wholesale unit trust scheme, the
unit trust scheme is registered as a wholesale unit trust
scheme.
(2) The Chief Commissioner cancels the registration of a unit trust
scheme by giving written notice of cancellation to the responsible
entity of the scheme including the reasons for the cancellation.
163ZZA Disqualifying circumstances for registered unit trust schemes
(1) In this section, disqualifying circumstance means a
circumstance that causes a unit trust scheme that is registered
under this Part to fail or cease to meet the relevant criteria for
registration.
(2) If a disqualifying circumstance occurs in respect of a unit trust
scheme:
(a) the responsible entity of the unit trust scheme must give the
Chief Commissioner notice of the disqualifying
circumstance within 28 days after it occurs, and
(b) the unit trust scheme is taken to have not been a public unit
trust scheme or a wholesale unit trust scheme on and from
the disqualification date, and
(c) the Chief Commissioner must make an assessment of duty
chargeable under this Act in respect of any acquisition of
an interest in the unit trust scheme as if the unit trust
scheme had not been a wholesale unit trust scheme or a
public unit trust scheme, as the case requires, on and from
the disqualification date, and
(d) a tax default occurs for the purposes of the Taxation
Administration Act 1996 if the whole of any duty assessed
under paragraph (c) is not paid to the Chief Commissioner
within 3 months after the assessment.
(3) For the purposes of this section, the disqualification date means:
(a) in respect of a unit trust scheme registered under this Part
as a wholesale unit trust scheme--the date on which the
disqualifying circumstance occurs, and
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Duties Amendment (Land Rich) Bill 2004
Land rich amendments Schedule 1
(b) in respect of a unit trust scheme registered under this Part
as an imminent public unit trust scheme or an imminent
wholesale unit trust scheme--the date on which
registration of the unit trust scheme under this Part first
took effect.
163ZZB Meaning of "responsible entity"
In this Part, a reference to the responsible entity for a unit trust
scheme is, in the case of a unit trust scheme for which there is no
responsible entity, a reference to the trustee of that unit trust
scheme.
[5] Chapter 5, Part 1, sections 163 and 164
Re-number the sections as sections 164 and 164A respectively.
[6] Section 164 (as re-numbered by this Act)
Omit "section 164" wherever occurring. Insert instead "section 164A".
[7] Section 275 Charitable and benevolent bodies
Insert after section 275 (2):
(2A) Land rich duty is not chargeable on the acquisition or disposal of
an interest in a land rich landholder by an exempt charitable or
benevolent body.
[8] Section 275 (3)
Insert at the end of paragraph (b) (ii) of the definition of exempt charitable or
benevolent body:
, or
(iii) (in the application of this definition for the purposes
of subsection (2A)) the land holdings of the
landholder are being used or are to be used for such
purposes as the Chief Commissioner may approve
in accordance with guidelines approved by the
Treasurer.
[9] Section 275 (3)
Insert in alphabetical order:
land rich duty means the duty chargeable under Chapter 4A.
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Duties Amendment (Land Rich) Bill 2004
Schedule 1 Land rich amendments
[10] Schedule 1 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Duties Amendment (Land Rich) Act 2004
[11] Schedule 1, Part 20
Insert at the end of the Schedule:
Part 20 Provisions consequent on enactment of
Duties Amendment (Land Rich) Act 2004
44 Definition
In this Part:
amending Act means the Duties Amendment (Land Rich) Act
2004.
45 Application of land rich acquisition and disposal provisions
(1) The duty charged by Chapter 4A, as inserted by the amending
Act, is charged on an acquisition or disposal of an interest in a
landholder (within the meaning of that Chapter) if the acquisition
or disposal is made on or after the commencement of Schedule 1
to that Act, subject to this clause.
(2) Duty under Part 3 of Chapter 4A is not chargeable on a disposal
of an interest in a landholder if the disposal is made pursuant to
an agreement entered into before 7 May 2004.
(3) Despite Part 3 of Chapter 4A, a liability for duty in respect of a
relevant disposal made on or after the commencement of
Schedule 1 to the amending Act but before the date of assent to
that Act arises on the date of assent to the amending Act.
Accordingly, the 3-month period referred to in section 163Q
starts on the date of assent to the amending Act.
(4) The period of 3 years referred to in sections 163N (2) and 163P
(2) (d) is taken to exclude any part of that period that occurred
before the commencement of Schedule 1 to the amending Act.
46 Continuation of obligations under Part 2 of Chapter 3
(1) Part 2 of Chapter 3, as in force immediately before the
commencement of Schedule 1 to the amending Act, continues to
apply in respect of any acquisition of an interest in a landholder
made before that commencement, as if the amending Act had not
been enacted.
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Duties Amendment (Land Rich) Bill 2004
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(2) In relation to acquisitions made on or after the commencement of
Schedule 1 to the amending Act, clause 35 applies as if a
reference to Part 2 of Chapter 3 or section 118 included a
reference to Chapter 4A or section 163K respectively.
47 Wholesale unit trust schemes
(1) A unit trust scheme that is a wholesale unit trust scheme, within
the meaning of the former wholesale unit trust scheme definition,
is taken to be wholesale unit trust scheme for the purposes of
Chapter 4A.
(2) Subclause (1) ceases to apply in respect of a unit trust scheme:
(a) at the end of the transitional period, or
(b) on the actual registration of the unit trust scheme as a
wholesale unit trust scheme under Chapter 4A, or
(c) on the unit trust scheme becoming a listed trust or widely
held trust,
whichever happens first.
(3) For the purposes of this clause, the transitional period means the
period commencing on the commencement of Schedule 1 to the
amending Act and ending at the end of:
(a) 30 June 2005, or
(b) such later date as may be fixed by the Chief
Commissioner, by order published in the Gazette.
(4) In this clause:
former wholesale unit trust scheme definition means paragraph
(a) of the definition of wholesale unit trust scheme as in force
under this Act immediately before the commencement of
Schedule 1 to the amending Act.
48 Imminent public unit trust schemes and imminent wholesale unit
trust schemes
(1) A unit trust scheme that, immediately before the commencement
of Schedule 1 to the amending Act, was a public unit trust scheme
or a wholesale unit trust scheme as a consequence of the Chief
Commissioner giving notice under the former concessionary
provisions, is taken to be registered as an imminent public unit
trust scheme, or an imminent wholesale unit trust scheme,
respectively, under Chapter 4A.
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(2) Subclause (1) ceases to apply in respect of a unit trust scheme:
(a) at the end of the period of 12 months after the
commencement of this clause, or
(b) on the occurrence of a disqualifying circumstance (within
the meaning of section 124, as in force before the
commencement of Schedule 1 to the amending Act) in
respect of the unit trust scheme, or
(c) on the actual registration of the unit trust scheme as an
imminent public unit trust scheme, wholesale unit trust
scheme or an imminent wholesale unit trust scheme under
Chapter 4A, or
(d) on the unit trust scheme becoming a listed trust or widely
held trust,
whichever happens first.
(3) Section 124, as in force before the commencement of Schedule 1
to the amending Act, continues to apply in respect of a unit trust
scheme that, immediately before the commencement of Schedule
1 to the amending Act, was a public unit trust scheme or a
wholesale unit trust scheme as a consequence of the Chief
Commissioner giving notice under the former concessionary
provisions.
(4) In this clause:
former concessionary provisions means the provisions of
paragraph (c) of the definition of public unit trust scheme, and
paragraph (b) of the definition of wholesale unit trust scheme, as
in force immediately before the commencement of Schedule 1 to
the amending Act.
[12] Dictionary
Omit "Part 2 of Chapter 3 (Certain transactions treated as transfers)" from the
definition of associated person.
Insert instead "Chapter 4A (Acquisition and disposal of interests in land rich
landholders)".
[13] Dictionary, definition of "interest in a landholder"
Omit the definition.
[14] Dictionary, definition of "lease"
Omit "section 164". Insert instead "section 164A".
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Duties Amendment (Land Rich) Bill 2004
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[15] Dictionary, definition of "linked entity"
Omit "section 109 (2)". Insert instead "section 163T (2)".
[16] Dictionary
Insert in alphabetical order:
listed trust means a unit trust scheme any of the units in which are
listed for quotation on the Australian Stock Exchange or any
exchange of the World Federation of Exchanges.
qualifying investor, in relation to a wholesale unit trust scheme,
means a qualifying investor referred to in section 163ZU (2) (a).
widely held trust means a unit trust scheme which has not less
than 300 unit holders none of whom, individually or together
with any associated person, is beneficially entitled to more than
20% of the units in the trust.
[17] Dictionary, definition of "public unit trust scheme"
Omit the definition. Insert instead:
public unit trust scheme means any of the following unit trust
schemes:
(a) a listed trust,
(b) a widely held trust,
(c) a unit trust scheme registered under Part 7 of Chapter 4A
as an imminent public unit trust scheme.
[18] Dictionary, definition of "wholesale unit trust scheme"
Omit the definition. Insert instead:
wholesale unit trust scheme means a unit trust scheme, not being
a listed trust, that is registered under Part 7 of Chapter 4A as a
wholesale unit trust scheme or as an imminent wholesale unit
trust scheme.
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Duties Amendment (Land Rich) Bill 2004
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Schedule 2 Other amendments
(Section 3)
[1] Section 32C Rate for large parcels of residential land
Omit "vacant" from section 32C (1).
[2] Section 32C (4A)
Insert after section 32C (4):
(4A) This section does not apply in respect of residential land if section
32B applies to the land.
[3] Section 49 Interim payment of duty
Omit section 49 (2)(6). Insert instead:
(2) A written instrument effecting or evidencing the sale or transfer
may be stamped "interim stamp only".
[4] Section 158 What is the "dutiable value" of land-related property?
Omit section 158 (3). Insert instead:
(3) For the purpose of determining under this Chapter the dutiable
value of land-related property that is subject to a vendor duty
transaction:
(a) if the monetary consideration expressed to be paid or
payable by the purchaser under the vendor duty transaction
includes an amount payable for GST, any part of the
amount payable for GST that exceeds 10% of the monetary
consideration (exclusive of amounts payable for GST or
vendor duty) is to be disregarded, and
(b) if the monetary consideration expressed to be paid or
payable by the purchaser under the vendor duty transaction
includes an amount payable to discharge the vendor's
liability for vendor duty, any part of the amount payable to
discharge that liability that exceeds 2.25% of the monetary
consideration (exclusive of an amount payable for vendor
duty) is to be disregarded.
Note. As both vendor duty and GST are calculated by reference to the
total consideration payable in respect of a transaction, subsection (3) is
intended to prevent a cascading effect that is produced if the amount
payable for the 2 taxes is added to the consideration payable and each
tax then increases by reference to the other.
(4) Section 25 does not apply in respect of vendor duty transactions.
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[5] Section 162B Principal place of residence exemption
Omit section 162B (3) (c). Insert instead:
(c) if the vendor became an owner of the land (or the land use
entitlement to which the land is subject) less than 2 years
before the date on which, but for this Division, a liability
for vendor duty would arise, the Chief Commissioner is
satisfied that the land, and no other land, has been
continuously used and occupied by the person for
residential purposes and for no other purposes since the
vendor became an owner of the land (or land use
entitlement).
[6] Section 162B (4) and (5)
Omit the subsections.
[7] Sections 162D162DB
Insert after section 162C:
162D Occupier must be natural person with significant interest in the
land
(1) The principal place of residence exemption does not apply to the
use or occupation of land owned solely by one person unless the
Chief Commissioner is satisfied that the land is used and
occupied as a principal place of residence by that person and that
the person is a natural person.
(2) The principal place of residence exemption does not apply to the
use or occupation of land owned by 2 or more persons unless the
Chief Commissioner is satisfied that:
(a) the land is used and occupied as the principal place of
residence by one or more owners of the land (an occupying
owner), and
(b) the occupying owner or occupying owners are natural
persons, and
(c) at least one of the occupying owners has a significant
interest in the land or the occupying owners together have
a significant interest in the land.
(3) If land to which a vendor duty transaction relates is owned by 2
or more persons at least one of whom is an occupying owner, and
the vendor in relation to the transaction is not an occupying
owner, the vendor is entitled to be taken, for the purpose of the
principal place of residence exemption, to use and occupy the
land as a principal place of residence but only if the principal
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place of residence exemption would apply if the occupying
owner or owners were the vendor in relation to the transaction.
Note. Subsection (3) extends the principal place of residence exemption
to a part owner of land (including a corporate part owner) who does not
actually use and occupy the land as a principal place of residence, but
only if the land is used and occupied as a principal place of residence by
one or more of the other owners of the land, being natural persons who
have a significant interest in the land.
(4) For the purpose of this section, a significant interest in land is an
ownership share, or combined ownership share, in the land of
50% or more.
(5) If land is the subject of a land use entitlement, a reference in this
section to the owner or the ownership of the land includes a
reference to the owner or the ownership of the land use
entitlement.
162DA Trustees
The principal place of residence exemption does not apply to land
if the person using and occupying the land as a principal place of
residence is an owner of the land by reason of being a trustee.
162DB Only one principal place of residence for all members of same
family
(1) For the purposes of the principal place of residence exemption,
only one place of residence may be treated as the principal place
of residence of all members of the same family.
(2) Accordingly, a vendor is not entitled to claim the principal place
of residence exemption in respect of a period of use and
occupation of land if any member of the vendor's family has been
granted the principal place of residence exemption in respect of
that same period in relation to other land.
(3) However, a vendor is not prevented from claiming the principal
place of residence exemption in respect of land that the vendor
started to use and occupy as a principal place of residence before
the vendor had a spouse because the spouse has already been
granted the principal place of residence exemption in relation to
other land that the spouse started to use and occupy as a principal
place of residence before the marriage or de facto relationship.
(4) For the purposes of this section, a family consists of the
following:
(a) a person and his or her spouse (if any),
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Duties Amendment (Land Rich) Bill 2004
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(b) any dependent child or dependent step-child of the person
and his or her spouse (or of either of them) who ordinarily
resides with the person or his or her spouse.
(5) 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.
(6) However, if the Chief Commissioner is satisfied that a person:
(a) is legally married to another person but not cohabiting with
that other person, and
(b) has no intention of resuming cohabitation with that other
person,
the person is not to be regarded as the spouse of that other person
and if a dependent child or dependent step-child of the person has
a joint interest in the principal place of residence of the spouse,
that interest is to be disregarded.
(7) A person who is the child or step-child of another person is a
dependent child or a dependent step-child if the person is under
18 years of age and is not legally married.
[8] Section 162L What is the transfer date?
Omit "would, but for this Division, arise".
Insert instead "arises or would, but for this Division, arise".
[9] Section 162M
Omit the section. Insert instead:
162M What is the vendor acquisition date?
(1) For the purposes of this Division, the vendor acquisition date, in
relation to a vendor duty transaction, is the date on which the
vendor acquired the land-related property.
(2) If a vendor acquired a beneficial interest in land-related property
before acquiring a legal interest in the property, the vendor is
taken to have acquired the land-related property when the vendor
acquired the beneficial interest in the land-related property.
Note. See also section 162OA, which deals with other situations in
which interests in land-related property are acquired on separate
occasions.
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(3) If the property was acquired by the vendor by means of a dutiable
transaction (within the meaning of Chapter 2), the vendor
acquisition date is the date on which the transfer of dutiable
property occurred or is taken to have occurred under Chapter 2.
Note. See section 9 for an explanation of when some transfers of
dutiable property are taken to have occurred.
(4) The following are examples of how this section operates:
(a) A vendor acquired a beneficial interest in land-related
property by entering into an agreement for sale or transfer
of the land-related property as purchaser or transferee, and
subsequently acquired the legal interest in the land-related
property by transfer. The vendor is taken to have acquired
the land-related property on the date the agreement for sale
or transfer was entered into.
(b) A vendor acquired a beneficial interest in land-related
property under a trust, and subsequently acquired the legal
interest in the land-related property when the trust property
was transferred to the vendor. The vendor is taken to have
acquired the land-related property on the date the vendor
acquired the beneficial interest under the trust.
(5) However, if the vendor acquired the land-related property as the
legal personal representative of a deceased person, as a
beneficiary under a will of a deceased person or as a result of the
intestacy of a deceased person, the vendor acquisition date is
taken to be the date on which the deceased person acquired the
land-related property. A reference in this Division to the vendor,
in relation to the acquisition of such land-related property, is to
be read as a reference to the deceased person.
[10] Section 162N Determining the dutiable value of land-related property for
the purposes of this Division
Omit section 162N (2) and (3). Insert instead:
(2) The dutiable value of land-related property on the vendor
acquisition date is, if the vendor acquired the land-related
property on the vendor acquisition date by means of a dutiable
transaction (within the meaning of Chapter 2), the dutiable value
of the land-related property when it was the subject of the
dutiable transaction (determined in accordance with Part 2 of
Chapter 2).
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(3) In any other case, the dutiable value of the land-related property
on the vendor acquisition date is the unencumbered value of the
land-related property on the vendor acquisition date (determined
as if it were dutiable property in accordance with Part 2 of
Chapter 2).
[11] Section 162N (5)
Omit "first acquired a legal or equitable interest in the land-related property".
Insert instead "acquired the land-related property on the vendor acquisition
date".
[12] Section 162N (6) and (7)
Insert after section 162N (5) (before the note):
(6) If a vendor acquires land-related property and the form or
description of the vendor's title to the land-related property
changes after the acquisition (for example, because of a
subdivision, or the land being brought under the Real Property
Act 1900), that change in the vendor's title is to be disregarded.
Accordingly, the vendor acquisition date, and the dutiable value
of the land-related property at that date, are to be determined as
if the vendor's title to the land had not changed (subject to
subsection (7)).
(7) To avoid doubt, if the land-related property the subject of a
vendor duty transaction is part only of the land-related property
acquired by the vendor on the vendor acquisition date (for
instance, because it is a smaller parcel of land than the parcel
acquired on the vendor acquisition date), the dutiable value of the
land-related property on the vendor acquisition date is to be
determined as if only the part of the land-related property the
subject of the transaction were acquired by the vendor on the
vendor acquisition date.
[13] Section 162O Transactions relating to multiple items of land-related
property
Omit section 162O (2).
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[14] Section 162OA
Insert after section 162O:
162OA Transactions relating to separately acquired interests
(1) For the purposes of this Division, if a vendor acquired separate
interests in land-related property the subject of a vendor duty
transaction on separate occasions, the vendor is taken to have
acquired the land-related property on the earliest date on which
the vendor acquired any interest in the land-related property,
other than an interest that has previously been disposed of by the
vendor.
(2) However, if a vendor duty transaction is a transfer, or an
agreement for sale or transfer, of the entire interest of a vendor in
land-related property and the vendor acquired separate interests
in the land-related property on separate occasions, the amount if
any by which the dutiable value of the land-related property on
the transfer date exceeds the dutiable value of the land-related
property on the vendor acquisition date is, for the purposes of this
Division, to be assessed and determined separately as if each of
those separate interests were disposed of in separate vendor duty
transactions, and duty is chargeable accordingly.
(3) The acquisition of a beneficial interest in land-related property
followed by the acquisition of a legal interest in the property
(such as in the situations set out in the examples in section 162M)
are not acquisitions of separate interests in land-related property
for the purposes of this section.
[15] Sections 162P162QB
Omit sections 162P and 162Q. Insert instead:
162P Exemption for sale of new buildings
(1) Exemption for new buildings (never occupied)
An agreement for the sale or transfer, or a transfer, of land is not
chargeable with vendor duty if:
(a) a vendor constructed building is situated on the land or, if
the land is a strata lot, the strata lot is contained in a vendor
constructed building, and
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Duties Amendment (Land Rich) Bill 2004
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(b) the vendor constructed building or, if the land is a strata
lot, the strata lot has never been occupied or used for any
purpose prior to the first execution of the agreement or
transfer or (if the Chief Commissioner is satisfied that the
vendor constructed building was constructed to be
occupied or used for residential purposes) has never been
occupied or used for residential purposes before that first
execution, and
(c) the sale or transfer is the first sale or transfer of the land
since the vendor constructed building was completed.
(2) Exemption for new buildings sold within 12 months after
completion
An agreement for the sale or transfer, or a transfer, of land is not
chargeable with vendor duty if:
(a) a vendor constructed building is situated on the land or, if
the land is a strata lot, the strata lot is contained in a vendor
constructed building, and
(b) the vendor constructed building or, if the land is a strata
lot, the strata lot has never been occupied or used for any
purpose prior to completion of the vendor constructed
building, and
(c) the agreement for the sale or transfer, or the transfer, of the
land was first executed within 12 months after the vendor
constructed building was completed, and
(d) the sale or transfer is the first sale or transfer of the land
since the vendor constructed building was completed.
(3) Exemption for new buildings to be constructed on subdivided
lots before completion
An agreement for the sale or transfer of a lot in a plan of
subdivision (including an unregistered plan of subdivision) is not
chargeable with vendor duty if:
(a) one or more buildings are to be constructed, by or on
behalf of the vendor, on the lot before completion of the
sale or transfer, and
(b) the sale or transfer is the first sale or transfer of the lot.
162Q Exemption for sale of substantially new buildings
(1) Exemption for substantially new buildings not occupied
between completion and sale
An agreement for the sale or transfer, or a transfer, of land is not
chargeable with vendor duty if:
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(a) a vendor constructed building is situated on the land or, if
the land is a strata lot, the strata lot is contained in a vendor
constructed building, and
(b) the vendor constructed building is a substantially new
building, and
(c) the vendor constructed building or, if the land is a strata
lot, the strata lot has not been occupied or used for any
purpose after the vendor constructed building was
completed and prior to the first execution of the agreement
or transfer, and
(d) the sale or transfer is the first sale or transfer of the land
since the vendor constructed building was completed.
(2) Exemption for substantially new buildings sold within 12
months after completion
An agreement for the sale or transfer, or a transfer, of land is not
chargeable with vendor duty if:
(a) a vendor constructed building is situated on the land or, if
the land is a strata lot, the strata lot is contained in a vendor
constructed building, and
(b) the vendor constructed building is a substantially new
building, and
(c) the agreement for the sale or transfer, or the transfer, of the
land was first executed within 12 months after the vendor
constructed building was completed, and
(d) the sale or transfer is the first sale or transfer of the land
since the vendor constructed building was completed.
(3) For the purposes of this section, a building is a substantially new
building if the Chief Commissioner is satisfied that all parts of
the building have been replaced with the exception of the
following:
(a) parts of the building (if any) that have heritage
significance,
(b) parts of the building required to be retained for structural
necessity,
(c) major plant and equipment associated with the building.
162QA Vendor constructed buildings must be a significant improvement
to land
This Division does not apply in respect of a vendor duty
transaction unless:
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Duties Amendment (Land Rich) Bill 2004
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(a) the Chief Commissioner is satisfied that the building or
buildings constructed, or to be constructed, by or on behalf
of the vendor (the exempt buildings) are a significant
improvement to the parcel of land on which they are
situated or to be situated, and
(b) there are no other buildings on the parcel or, at the
completion of the exempt buildings, will be no other
buildings on the parcel, that are suitable for use or
occupation for residential, commercial or other purposes,
other than heritage buildings.
162QB Definitions
(1) In this Division:
vendor constructed building means a building or buildings
constructed by or on behalf of a vendor that are suitable for use
or occupation for residential, commercial or other purposes.
(2) For the purposes of this Division, a building is completed when:
(a) an occupation certificate under the Environmental
Planning and Assessment Act 1979 has been issued for the
building or, if the agreement for sale or transfer, or
transfer, relates to land that is a strata lot, for the part of the
building containing the strata lot, or
(b) if such an occupation certificate is not required before the
building can be lawfully occupied--the Chief
Commissioner is satisfied that the building is ready for
occupation for a purpose for which it has been constructed.
[16] Section 162S Improved vacant land
Insert ", or rehabilitation works," after "remediation works" in section 162S
(2) (c).
[17] Section 162S (2A)
Insert after section 162S (2):
(2A) For the purposes of 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.
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[18] Section 162S (3)
Insert in alphabetical order:
rehabilitation works means works carried out for the purpose of
filling in, levelling, or contouring of land that has been damaged
or adversely affected by a previous use (such as prospecting or
mining).
remediation works means works carried out for the purpose of
removing, reducing or containing a substance found in or under
the land, if the substance is at a concentration above the
concentration at which the substance is normally present in or
under land in the same locality and it presents a risk of harm to
human health or any other aspect of the environment.
[19] Section 162U
Omit the section. Insert instead:
162U Compulsory acquisitions and dedications of land
(1) No vendor duty is chargeable on a vendor duty transaction that
gives effect to an acquisition of land (by agreement or
compulsory process) if the Land Acquisition (Just Terms
Compensation) Act 1991 applies to the acquisition.
Note. Section 5 of the Land Acquisition (Just Terms Compensation) Act
1991 provides that that Act applies to the acquisition of land by an
authority of the State which is authorised to acquire land by compulsory
process. The Act does not apply to an acquisition if the land is available
for public sale and is acquired by agreement.
(2) No vendor duty is chargeable on a vendor duty transaction that
gives effect to a dedication of land required by a consent
authority under section 94 or 94F of the Environmental Planning
and Assessment Act 1979.
(3) Without limiting subsection (2), an agreement for the sale or
transfer, or transfer, of land is not chargeable with vendor duty if
the Chief Commissioner is satisfied that the land is intended to be
used for affordable housing (within the meaning of the
Environmental Planning and Assessment Act 1979) and the
transaction is an approved transaction.
(4) For the purposes of this section, an approved transaction is a
transaction, or a transaction of a class, approved in writing for the
purposes of this section by the Minister administering Part 4 of
the Environmental Planning and Assessment Act 1979 after
consultation with the Treasurer.
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[20] Section 162V Land subject to conservation instruments
Omit "or a trust agreement registered as referred to in section 36 of the Nature
Conservation Trust Act 2001" from section 162V (1).
Insert instead ", or a trust agreement registered as referred to in section 36 of
the Nature Conservation Trust Act 2001, being in either case an agreement that
remains in force in perpetuity".
[21] Section 162ZCA
Insert after section 162ZC:
162ZCA Interim payment of duty
(1) If the full dutiable value of land-related 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".
[22] Section 176 Interim stamping of lease instrument
Omit section 176 (3).
[23] Section 275 Charitable and benevolent bodies
Insert after section 275 (1):
(1A) Duty under section 58 (Establishment of a trust relating to
unidentified property and non-dutiable property) is not
chargeable on an instrument that declares a trust over property
held or to be held on trust for an exempt charitable or benevolent
body.
[24] Section 275 (2)
Omit "over land-related property by".
Insert instead "over land-related property held or to be held on trust for".
[25] Section 275 (3)
Insert "or (1A)" after "subsection (1)" in paragraph (b) (i) of the definition of
exempt charitable or benevolent body.
[26] Section 275 (3)
Insert "or, in the case of a declaration of trust, is to be used" after "was used"
in paragraph (b) (ii) of the definition of exempt charitable or benevolent body.
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[27] Section 275A
Insert after section 275:
275A Partial exemption for certain transactions by charitable and
benevolent bodies
(1) If the Chief Commissioner is satisfied, in relation to a transfer, or
an agreement for the sale or transfer, of land to a charitable or
benevolent body, or a declaration of trust over land held or to be
held on trust for a charitable or benevolent body, that the land is
used or to be used partly for an exempt purpose, the dutiable
value of the land is, for the purpose of charging duty under
Chapter 2, to be reduced by the portion of that dutiable value that
is referable to the portion of the land used or to be used for an
exempt purpose.
(2) If the Chief Commissioner is satisfied, in relation to a transfer, or
an agreement for the sale or transfer, of land by a charitable or
benevolent body, or a declaration of trust over land held or to be
held on trust for a charitable or benevolent body, that the land was
used or, in the case of a declaration of trust, is to be used partly
for an exempt purpose, the dutiable value of the land is, for the
purpose of charging duty under Chapter 4, to be reduced by the
portion of that dutiable value that is referable to the portion of the
land used or to be used for an exempt purpose.
(3) If the Chief Commissioner is satisfied, in relation to a lease to a
charitable or benevolent body, that the land the subject of the
lease is to be used partly for an exempt purpose, the cost of the
lease is, for the purpose of charging duty under Chapter 5, to be
reduced by the portion of that cost that is referable to the portion
of the land to be used for an exempt purpose.
(4) If the Chief Commissioner is satisfied, in relation to a mortgage
given by or on behalf of a charitable or benevolent body, that the
land the subject of the mortgage is used or to be used partly for
an exempt purpose, the amount secured by the mortgage is, for
the purpose of charging duty under Chapter 7, to be reduced by
the proportion of the amount secured that is referable to the
portion of the land used or to be used for an exempt purpose.
(5) If the Chief Commissioner is satisfied, in relation to an
acquisition or disposal of an interest in a land rich landholder by
a charitable or benevolent body, that any of the land holdings of
the landholder are used or to be used for an exempt purpose, the
unencumbered value of that land holding is to be disregarded
when calculating the duty chargeable on the acquisition or
disposal under Chapter 4A.
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(6) This section does not limit section 275.
(7) In this section:
charitable or benevolent body means any society or institution
that, in the opinion of the Chief Commissioner, is of a charitable
or benevolent nature, or has as its primary object the promotion
of the interests of Aborigines.
exempt purpose means a purpose approved by the Chief
Commissioner under section 275.
[28] Section 288A
Insert after section 288:
288A Reassessment following interim payment of duty
(1) If an instrument that is chargeable with duty or that effects or
evidences a dutiable transaction is marked "interim stamp only"
in accordance with this Act, the Chief Commissioner must, when
the relevant value of the instrument has been ascertained,
reassess the duty payable in respect of the instrument.
(2) If no further duty is payable, the interim stamp is to be cancelled
and any amount paid in excess of the amount assessed is to be
refunded.
(3) If further duty is payable, liability for the further duty arises when
the notice of assessment issues, despite any other provision of
this Act.
(4) On payment of the balance of the duty (and any interest or penalty
tax), the instrument is to be stamped with the amount of the
balance and marked to indicate that duty has been duly paid.
(5) For the purposes of this section, the relevant value of an
instrument means:
(a) in the case of a lease instrument marked "interim stamp
only" under Chapter 5, the full cost of the lease, and
(b) in any other case, the full dutiable value of the dutiable
transaction effected or evidenced by the instrument.
Note. A reference in this section to a dutiable transaction includes a
vendor duty transaction (see Part 6 of Chapter 4).
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[29] Schedule 1 Savings, transitional and other provisions
Insert after clause 39 (2):
(3) Sections 32A32C do not apply in respect of a dutiable
transaction that results from the exercise of an option for the sale
or purchase of dutiable property, if the option was granted before
7 May 2004.
(4) The imposition, payment and recovery of duty under this Act
before the commencement of subclause (3) is taken to have been
validly done to the extent that it would have been validly done
had subclause (3) been in force at the time that it was done.
[30] Schedule 2, heading
Omit "and restrictions".
[31] Schedule 2, clause 3
Omit "if the business is primarily conducted elsewhere" from clause 3 (1).
[32] Schedule 2, clause 5
Omit "clause 10" from clause 5 (5). Insert instead "section 162DB".
[33] Schedule 2, clauses 9 and 10
Insert after clause 8:
9 Concession for construction of new residence
(1) If the Chief Commissioner is satisfied, in relation to land to
which a vendor duty transaction relates, that the vendor was
unable to use and occupy the land as a principal place of
residence for part of the PPR qualification period because, during
that part of the period, the vendor's residence was being
constructed on that land, the vendor is taken, for the purpose of
the principal place of residence exemption, to have used and
occupied the land as a principal place of residence during the
period in which he or she was so unable to use and occupy that
land as a principal place of residence.
(2) This clause applies only if the Chief Commissioner is satisfied
that:
(a) the vendor actually used and occupied the land, and no
other land, as a principal place of residence for a
continuous period of at least 6 months starting after
completion of the vendor's residence, and
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Other amendments Schedule 2
(b) no income was derived from the use or occupation of the
land during any part of the PPR qualification period.
(3) In this clause:
liability date in relation to a vendor duty transaction means the
date on which, but for this clause, a liability for vendor duty
would arise in respect of the transaction.
PPR qualification period means:
(a) if the vendor became an owner of the land less than 2 years
before the liability date, the period during which the
vendor has been an owner of the land, and
(b) in any other case, the period of 2 years ending immediately
before the liability date.
10 Concession for persons under legal disability
(1) If the vendor in respect of a vendor duty transaction is the
guardian of a person under a legal disability (the protected
person), and the transaction relates to land used and occupied by
the protected person as his or her principal place of residence, the
following provisions apply:
(a) the use and occupation of the land by the protected person
is taken, for the purpose of the principal place of residence
exemption, to be the use and occupation of the land by the
vendor,
(b) the principal place of residence exemption applies in
respect of the vendor duty transaction in the same way as
it would apply if the protected person were the vendor in
relation to the transaction.
(2) Section 162D does not apply in respect of a vendor duty
transaction if this clause applies.
(3) In this clause:
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.
[34] Schedule 2, Part 3
Omit the Part.
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[35] Dictionary
Insert in alphabetical order:
heritage building means a building that the Chief Commissioner
is satisfied has heritage significance.
Page 56
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