New South Wales Consolidated Acts

DUTIES ACT 1997

- As at 11 November 2009
- Act 123 of 1997

TABLE OF PROVISIONS

           Long Title

CHAPTER 1 - PRELIMINARY

   1.      Name of Act
   2.      Commencement
   3.      What does this Act do?
   4.      What is a duty?
   5.      Arrangements for payment of duties
   6.      Meaning of words and expressions used in this Act
   7.      Notes in the text

CHAPTER 2 - TRANSACTIONS CONCERNING DUTIABLE PROPERTY

   PART 1 - INTRODUCTION AND OVERVIEW

   8.      Imposition of duty on certain transactions concerning dutiable property
   8A.     Vesting of land in New South Wales by statute law
   9.      Imposition of duty on dutiable transactions that are not transfers
   10.     What form must a dutiable transaction take?
   11.     What is “dutiable property”?
   12.     When does a liability for duty arise?
   13.     Who is liable to pay the duty?
   14.     The liability of joint tenants
   15.     Necessity for written instrument or written statement
   16.     Lodging written instrument or written statement with Chief Commissioner
   17.     When must duty be paid?
   18.     No double duty
   19.     What is the rate of duty?
   20.     Concessions and exemptions from duty

   PART 2 - DUTIABLE VALUE

   21.     What is the “dutiable value” of dutiable property?
   22.     What is the consideration for the transfer of dutiable property?
   23.     What is the “unencumbered value” of dutiable property?
   24.     Interests, agreements and arrangements that reduce the dutiable value
   25.     Aggregation of dutiable transactions
   26.     Certain transactions concerning goods and other property
   26A.    Transactions involving goods and other property that occur on or after 1 July 2012
   27.     Apportionment-dutiable property and other property
   28.     Apportionment-business assets in this and other jurisdictions
   29.     Partnership interests
   30.     Partitions
   31.     Effect of alteration in purchase price

   PART 3 - RATES OF DUTY

   32.     General rate
   32A.    Premium rate for residential land with dutiable value exceeding $3,000,000
   32B.    Rate for residential land used for other purposes
   32C.    Rate for large parcels of residential land
   33.     Shares, units, derivatives and interests (marketable securities)
   33A.    Shares in share management fisheries

   PART 4 - ABOLITION OF VARIOUS DUTIES

   34.     Abolition of duty on all transfers of marketable securities and commercial fishery shares-effective 1 July 2012
   35.     Abolition of duty on transfers of business assets-effective 1 July 2012
   36.     Abolition of duty on transfers of licences, permissions and entitlements-effective 1 July 2012
   37.     Anti-avoidance measures
           38-48A. (Repealed)

   PART 5 - SPECIAL PROVISIONS

   49.     Interim payment of duty
   49A.    Purchases “off the plan”
   50.     Cancelled agreements
   50A.    Cancelled transfers of dutiable property
   51.     Transfers arising from mortgages of land under Real Property Act 1900
   52.     Possessory applications
   53.     Applications to bring land under Real Property Act 1900
   53A.    Duty on lease premiums

   PART 6 - CONCESSIONAL RATES OF DUTY

           Division 1 - Trusts

   54.     Change in trustees
   54A.    Transfers in relation to managed investment schemes
   55.     Property vested in an apparent purchaser
   56.     Transfers back from a nominee
   56A.    Transfer of property subject to a statutory trust to a beneficial owner
   57.     Property passing to beneficiaries
   58.     Establishment of a trust relating to unidentified property and non-dutiable property
   59.     Instrument relating to managed investment scheme
   59A.    Nomineeing transactions-unquoted marketable securities

           Division 2 - Superannuation

   60.     Instruments relating to superannuation
   61.     Transfers of property in connection with persons changing superannuation funds
   62.     Transfers between trustees and custodians of superannuation funds or trusts

           Division 3 - Miscellaneous

   63.     Deceased estates
   64.     Conversion of land use entitlement to different form of title
   64AA.   Enlargement of the term in land into fee simple
   64A.    Amalgamation of Western Lands leases
   64B.    Reduction of duty on transfer of marketable securities-payment in non-Australian jurisdiction

   PART 7 - EXEMPTIONS

   65.     Exemptions from duty
   66.     Exemptions-marketable securities
   67.     Exemptions-transfers to married couples and de facto partners
   68.     Exemptions-break-up of marriages and other relationships

   PART 8 - EXEMPTION, DISCOUNTS AND INSTALMENT PAYMENT SCHEMES

           Division 1 - First Home Plus

              Subdivision 1 - Agreements and associated mortgages

   69.     The nature of the scheme
   70.     Commencement
   71.     Restrictions on eligibility-previous ownership of residential property or first home concession
   72.     (Repealed)
   73.     Ineligible persons
   73A.    Application of eligibility criteria to joint purchasers and transferees
   74.     Eligible agreements or transfers
   75.     Ineligible agreements and transfers
   76.     Residence requirement
   76A.    Approval of application in advance of satisfaction of residence requirement
   77.     Eligible mortgages
   78.     Making of applications
   78A.    Duty payable if application approved
   78B.    Special concession for shared equity arrangements
   79.     Reassessment of duty payable where duty concession wrongly applied
   80.     Charge on land for duty liability of applicant
   80AA.   (Renumbered)
   80A.    Definitions

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

   81.     Payment of instalments
   82.     Payment of interest
   83.     Overdue instalments
   84.     Sale or leasing of home or land before all instalments are paid
   85.     (Repealed)

              Subdivision 2 - Discount for full payment of remaining duty

   86.     Application of Subdivision 2
   87.     Discount for full payment of remaining duty

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

   87A.    Nature of the scheme
   87B.    Relevant dates for eligibility
   87C.    Agreements or transfers must be for acquisition of new home
   87D.    Restrictions on eligibility
   87E.    Cap on dutiable value of transaction
   87F.    Duty payable if application approved
   87G.    Making of applications
   87H.    Reassessment of duty payable where duty concession wrongly applied
   87I.    Charge on land for duty liability of applicant
   87J.    Definitions

           Division 2 - Flood-prone housing scheme

   88.     The nature of the scheme
   89.     Commencement
   90.     Eligible persons
   91.     Eligible agreements
   92.     Other provisions

           Division 3 - Exemption from or reduction in duty for certain transfers

   93.     The nature of the scheme
   94.     Definitions
   95.     Meaning of “voting entitlement”
   96.     Transfer by corporation of principal place of residence to principal shareholder or spouse
   97.     Transfer of principal place of residence by special trust to beneficiary etc
   98.     Transfer of principal place of residence by corporation to beneficiary of special trust
   99.     Transfer by special trust to corporation
   100.    Transfer of land not used and occupied solely as a principal place of residence
   101.    Making of applications
   102.    Determination of applications
   103.    Reassessment of duty if undertaking not met
   104.    Application of scheme to company titles

CHAPTER 3 - CERTAIN TRANSACTIONS TREATED AS TRANSFERS

   PART 1 - PRELIMINARY

   105.    Introduction and overview

   PART 2 - TRANSACTIONS INVOLVING PUT AND CALL OPTIONS

   106.    Definitions
   107.    Assignment of rights under call option dutiable as transfer
   108.    Person liable to pay duty
   109.    Determination of dutiable value of transfer
   110.    Stamping or endorsement of transactions
   111.    Exemptions
           112-123. (Repealed)

   PART 3 - ENTITLEMENTS ARISING FROM CAPITAL REDUCTIONS OR RIGHTS ALTERATIONS

   124.    Abolition of duty charged by this Part-effective 1 July 2012
   125.    Definitions
   126.    When does a liability for duty arise?
   127.    When must duty be paid?
   128.    Who is liable to pay the duty?
   129.    Entitlement to voting shares arising from capital reduction or rights alteration
   130.    Form of statement
   131.    Assessment of duty

   PART 4 - ACQUISITION OF LAND USE ENTITLEMENTS BY ALLOTMENT OF SHARES OR ISSUE OF UNITS

   132.    When does a liability for duty arise?
   133.    When must duty be paid?
   134.    Who is liable to pay the duty?
   135.    Acquisition of land use entitlement
   136.    Form of statement
   137.    Assessment of duty

   PART 5 - ALLOTMENT OF SHARES BY DIRECTION

   137A.   Abolition of duty charged by this Part-effective 1 July 2012
   138.    Application of Part 5
   139.    When does a liability for duty arise?
   140.    When must duty be paid?
   141.    Who is liable to pay the duty?
   142.    Acquisition of shares by allotment
   143.    Allotment statement
   144.    Assessment of duty

CHAPTER 4 - ACQUISITION OF INTERESTS IN LANDHOLDERS

   PART 1 - PRELIMINARY

   145.    Overview
   146.    Meaning of “landholder”
   147.    What are the “land holdings” of a landholder?

   PART 2 - CHARGING OF DUTY ON ACQUISITIONS OF INTERESTS IN LANDHOLDERS

   148.    When does a liability for duty arise?
   149.    What is a “relevant acquisition”?
   150.    What are “interests” and “significant interests” in landholders?
   151.    How may an interest be “acquired”?
   152.    Acquisition statements
   153.    When must duty be paid?
   154.    Who is liable to pay the duty?
   155.    How duty is charged on relevant acquisitions-private landholders
   156.    How duty is charged on relevant acquisitions-public landholders
   157.    What is the “general rate” of duty?

   PART 3 - GENERAL PRINCIPLES TO BE APPLIED UNDER THIS CHAPTER

   158.    Constructive ownership of land holdings and other property: linked entities
   159.    Constructive ownership of land holdings and other property: discretionary trusts
   160.    Agreements for sale or transfer of land
   161.    Agreements for sale or issue of shares or units in landholder
   162.    Valuation of property
   163.    Maximisation of entitlements on distribution of property

   PART 4 - EXEMPTIONS AND CONCESSIONS

   163A.   General exemptions
   163B.   Exemption-break-up of marriages and other relationships
   163C.   Exemption for “top hatting” arrangements
   163D.   Concession for primary producers-continuation of land rich requirement
   163E.   Concession for acquisitions securing financial accommodation
   163F.   Concession for redemption and re-issue arrangements
   163G.   Significant holdings in goods
   163H.   Discretion to grant exemption or concession

   PART 5 - INTERPRETATION

   163I.   Meaning of expressions used in this Chapter
   163J.   Meaning of “associated person”
   163K.   Goods of a landholder
   163L.   Meaning of “unit trust scheme”

CHAPTER 4A - (Repealed)
           None

CHAPTER 5 - LEASE INSTRUMENTS

   PART 1 - INTRODUCTION AND OVERVIEW

   164.    Imposition of duty
   164A.   What is a “lease”?
   165.    How duty is charged on a lease instrument
   166.    What is the “cost” of a lease?
   167.    Splitting or redirection of cost of franchise arrangement (anti-avoidance provision)
   168.    Who is liable to pay the duty?
   169.    When must the duty be paid?

   PART 2 - RATES OF DUTY

   170.    General rate
   171.    Nominal duty

   PART 3 - UNASCERTAINABLE LEASE COSTS

   172.    Operation of Part 3
   173.    Estimate and subsequent adjustment
   174.    CPI method
   175.    Quantification of lessee’s improvements

   PART 4 - MISCELLANEOUS

   176.    Interim stamping of lease instrument
   177.    Reassessment of duty-early termination
   178.    Reassessment of duty-reduction of cost
   179.    Exemptions

CHAPTER 6 - (Repealed)
           None

CHAPTER 7 - MORTGAGES

   PART 1 - INTRODUCTION AND OVERVIEW

   203A.   Abolition of mortgage duty-effective 1 July 2012
   204.    Imposition of duty
   205.    What is a mortgage?
   206.    What is an advance?
   207.    Who is liable to pay the duty?
   208.    When does a liability arise?
   209.    When must duty be paid?
   210.    How is mortgage duty charged?
   211.    Consequences of non-payment of duty
   212.    Where is property located?

   PART 2 - CALCULATING THE AMOUNT SECURED BY A MORTGAGE

   213.    Amount secured by mortgage
   214.    Mortgage packages
   215.    Contingent liabilities
   216.    Mortgages over property not wholly within New South Wales
   217.    Collateral mortgages-minimum duty
           217A, 218. (Repealed)
   218A.   Security
           218B, 218BA. (Repealed)
   218C.   Multi-jurisdictional statement

   PART 3 - DUTY CONCESSIONS

   218D.   Concession for advances charged with duty under corresponding Acts
   219.    Additional advances of not more than $10,000 in 12 months
   220.    Refinancing of loans
   221.    Eligible mortgages under First Home Plus

   PART 3A - EXEMPTIONS FOR MORTGAGES ASSOCIATED WITH HOUSING

   221A.   Definitions
   221B.   Mortgages associated with owner occupied housing
   221C.   Mortgages associated with investment housing

   PART 4 - OTHER EXEMPTIONS

   222.    Exempt mortgages and supporting instruments
   223.    Mortgages associated with certain credit contracts
   224.    Farm machinery and commercial vehicles
   225.    Certain debentures and related instruments

   PART 5 - MISCELLANEOUS

   226.    Payment on mortgages associated with debenture issues
   227.    Unregistered mortgages protected by caveats (anti-avoidance provision)
   227A.   Transfer of mortgages
   228.    Stamping counterpart or collateral instrument if mortgage is lost, destroyed or cannot be produced

CHAPTER 8 - INSURANCE

   PART 1 - GENERAL INSURANCE

   229.    Imposition of duty
   230.    What is “general insurance”?
   231.    What is a “premium” in relation to general insurance?
   232.    When is a premium “paid”?
   233.    Types of general insurance
   234.    What duty is payable?
   235.    Who is liable to pay the duty?
   236.    Circumstances in which duty is payable by the insured person
   237.    Records to be kept
   238.    Refunds where premiums are returned

   PART 2 - LIFE INSURANCE

   239.    Imposition of duty
   240.    What is “life insurance”?
   241.    What is a “life insurance rider”?
   242.    Obligation to make out and execute a policy of life insurance
   243.    What duty is payable?
   243A.   Meaning of “premium”
   244.    Who is liable to pay the duty?
   245.    Circumstances in which duty is payable by the insured person
   246.    Refund on cancellation of policy of life insurance

   PART 3 - HOW IS DUTY PAID BY AN INSURER?

   247.    Who is an insurer?
   248.    Insurers must be registered
   249.    Application for registration
   250.    Cancellation of registration by the Chief Commissioner
   251.    Cessation of business and cancellation of registration by the insurer
   252.    Register of insurers
   253.    Monthly returns and payment of duty
   254.    Recovery of duty by registered insurer

   PART 4 - APPORTIONMENT

           Division 1 - Apportionment of premiums and other amounts between Australian jurisdictions

   255.    Application of Division 1
   256.    Schedule of Apportionment
   257.    Apportionment in practice

           Division 2 - Apportionment of premiums and other amounts as between different types of insurance

   258.    Apportionment between different types of insurance

   PART 5 - EXEMPT INSURANCE

   259.    What insurance is exempt from duty?

   PART 6 - MISCELLANEOUS

   260.    Effect on contract of insurance of failure to comply with this Chapter

CHAPTER 9 - MOTOR VEHICLE REGISTRATION

   PART 1 - INTRODUCTION AND OVERVIEW

   261.    Imposition of duty
   262.    Lodgment of statement of dutiable value
   263.    Who is liable to pay the duty?
   264.    When does duty become payable?
   265.    What is the rate of duty?
   266.    What is the “dutiable value” of a motor vehicle?

   PART 2 - CIRCUMSTANCES IN WHICH DUTY NOT CHARGEABLE

   267.    Exemptions
   268.    Avoidance of double duty-duty paid in a corresponding Australian jurisdiction
   269.    Reassessment of duty-repossession of stolen motor vehicle

   PART 3 - MISCELLANEOUS EXEMPTIONS AND REDUCTIONS

   270.    Exemptions for motor dealers
   270A.   Reduction in dutiable value-modified vehicles for people with disabilities
   270B.   Exemption for caravans

CHAPTER 10 - MISCELLANEOUS DUTIES

   271.    Duplicates or counterparts
   272.    Replicas
   273.    Minimum amount of duty

CHAPTER 11 - GENERAL EXEMPTIONS FROM DUTY

   274.    Transfer of certain business property between family members
   275.    Charitable and benevolent bodies
   275A.   Partial exemption for certain transactions by charitable and benevolent bodies
   276.    Public hospitals
   277.    Councils and county councils
   278.    Department of Housing and Aboriginal Housing Office tenants
   279.    Specialised agencies
   280.    Aboriginal land councils
   281.    Corporate reconstructions
   282.    Mortgage-backed securities
   283.    Instruments issued for the purpose of creating, issuing or marketing mortgage-backed securities
   284.    Loan-backed securities
   284A.   Joint government enterprise-water savings projects
   284B.   Restructuring of unit trust for land tax purposes

CHAPTER 11A - TAX AVOIDANCE SCHEMES

   284C.   Object of Chapter
   284D.   Payment of duty avoided as a result of tax avoidance scheme
   284E.   What is a tax avoidance scheme?
   284F.   Matters relevant to whether scheme is tax avoidance scheme
   284G.   When does a liability to pay avoided duty arise?
   284H.   Reasons for decision to be given
   284I.   Innocent participants
   284J.   Meaning of “scheme”

CHAPTER 12 - MISCELLANEOUS

   PART 1 - STAMPING INSTRUMENTS

   285.    Provision of stamps
   286.    Limitation on use of designated stamps
   287.    Form of stamps to be used
   288.    Stamping of instruments
   288A.   Reassessment following interim payment of duty
   289.    When is an instrument duly stamped?
   289A.   Stamping by means of endorsement
           290-292. (Repealed)
   293.    Reassessments-failed instruments
   294.    Instruments to be separately charged with duty in certain cases
   295.    Execution of instruments
   296.    Stamping of instruments after execution
   297.    Stamping taken to constitute assessment
   298.    Deferred payments for certain stamped instruments
   299.    Copies of instruments
   300.    Calculation of time

   PART 2 - ENFORCEMENT

   301.    Registration of transactions and instruments
           302, 303. (Repealed)
   304.    Receipt of instruments in evidence
   305.    Valuation of property
   306.    Ascertainment of value of certain interests
   307.    Impounding of instruments
   308.    Application of Act to Crown

   PART 3 - THE PUBLIC EQUITY PARTNERSHIP AND THE RENT/BUY SCHEME

   309.    Liability to duty in respect of certain housing schemes

   PART 4 - HARDSHIP REVIEW BOARD

   310.    Waiver, deferral and writing off of duty in hardship cases
   311.    Notation by Chief Commissioner in cases of waiver
   312.    (Repealed)

   PART 5 - MISCELLANEOUS

   313.    Regulations
   314.    Savings, transitional and other provisions
   315.    (Repealed)
   316.    Repeal of Educational Institutions (Stamp Duties Exemption) Act 1961 No 37
   317.    Review of Act
           SCHEDULE 1
           SCHEDULE 2
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