New South Wales Consolidated Acts
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DUTIES ACT 1997
- As at 7 July 2017
- Act 123 of 1997
TABLE OF PROVISIONS
CHAPTER 1 - PRELIMINARY
1. Name of Act
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
9A. Transfer of partnership interest occurring on change in partnership arrangements
9B. Transfer of option occurring on nomination or other change
9C. Novation of agreement for lease
10. Form of dutiable transaction is immaterial
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 instrument or written statement
16. Lodging instrument or written statement with Chief Commissioner
16A. Lodging purchaser’s declaration 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
27. Apportionment-dutiable property and other property
28. Apportionment-business assets in this and other jurisdictions
29. Partnership interests
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 transfers of marketable securities and commercial fishery shares
35. Abolition of duty on transfers of business assets
36. Abolition of duty on transfers of statutory licences or permissions and gaming machine entitlements
37. Anti-avoidance measures
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
59B. Change in custodians
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
62A. Transfers to self managed superannuation funds
62B. Declaration of trust by custodian
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
64C. Transfers made in partial conformity with agreements
64D. Transfers made on exercise of option to purchase land
PART 7 - EXEMPTIONS
65. Exemptions from duty
66. Exemptions-marketable securities
68. Exemptions-break-up of marriages and other relationships
PART 8 - OTHER EXEMPTIONS AND CONCESSIONS
Division 1 - First Home Buyers Assistance Scheme
69. The nature of the scheme
71. Restrictions on eligibility-previous ownership of residential property or first home concession
73. Ineligible persons
73A. Application of eligibility criteria to joint purchasers and transferees
74. Eligible agreements or transfers
74A. Application of scheme to multiple occupancy contracts
75. Ineligible agreements and transfers
76. Residence requirement
76A. Approval of application in advance of satisfaction of residence requirement
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
Division 1A - New Home Grant Scheme
81. Object of scheme
82. Grant payable under scheme
83. Types of agreements or transfers that are eligible
84. Relevant dates for eligibility
85. Restrictions on eligibility
85A. Maximum of one eligible transaction per financial year
85B. Grant not available to foreign nationals
86. Agreement or transfer must be completed
87. Cap on dutiable value of transaction
87A. Making of applications
87B. Application may be approved in advance
87C. Method by which new home grant is to be paid
87D. Recovery of grant amount wrongly paid
87E. Charge on land for duty liability of applicant
87F. Standing appropriation
Divisions 1B, 2
Division 3 - Exemption from or reduction in duty for certain transfers
93. The nature of the scheme
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 land use entitlements
Division 4 - Transfers between married couples and de facto partners
104A. Meaning of “residential land”
104B. Exemption-transfer of residential land
104C. Concession-transfer of land used as principal place of residence and for other purposes
Division 5 - Concession for persons who have transferred property affected by loose-fill asbestos insulation to State
CHAPTER 2A - DUTY CHARGED ON CERTAIN RESIDENTIAL LAND TRANSACTIONS INVOLVING FOREIGN PERSONS
PART 1 - PRELIMINARY
104G. Introduction and overview
104H. Application of Chapter 2
104J. Meanings of “foreign person” and “foreign trustee”
104K. Meaning of “residential-related property”
104L. Transactions on which surcharge purchaser duty is charged
104M. Vesting of land in New South Wales by statute law
104N. Imposition of surcharge purchaser duty on transactions that are not transfers
104O. Other transactions taken to be transfers
104P. What form must a surcharge duty transaction take?
104Q. When does a liability for duty arise?
104R. Who is liable to pay surcharge purchaser duty?
104S. Liability for surcharge purchaser duty on certain trust-related transactions
104T. Property purchased by apparent purchaser
104U. Charging of duty at relevant rate
104V. The liability of joint tenants
104W. When must surcharge purchaser duty be paid?
104X. No double surcharge purchaser duty
104Y. Change in proportion of share transferred to foreign persons
PART 2 - DUTIABLE VALUE
104Z. What is the “dutiable value” of residential-related property?
104ZA. What is the “dutiable value” of a partnership interest?
104ZB. Reduction of dutiable value of land used for non-residential purposes
104ZC. Transfer of property subject to a statutory trust to a beneficial owner
104ZD. Deceased estates where trusts under will are varied
PART 3 - REFUNDS AND SPECIAL PROVISIONS
104ZE. Cancelled agreements and transfers
104ZF. Refund if property transferred to persons who are no longer foreign on transfer
104ZG. Transfers back from a nominee
104ZH. Break-up of marriages, de facto relationships or domestic relationships
104ZI. Possessory applications
104ZJ. Applications to bring land under Real Property Act 1900
PART 4 - EXEMPTIONS AND CONCESSIONS
104ZK. Transactions exempt from ad valorem duty under Chapter 2
104ZKA. Exemption for certain permanent residents in respect of principal place of residence
104ZL. Change in trustees
104ZM. Reduction of duty on transactions involving apparent purchasers
104ZN. Exemption for property passing to beneficiaries
104ZO. Reduction of duty on transfers made on exercise of option to purchase land
PART 5 - STAMPING AND ENFORCEMENT
104ZP. Definition of “purchaser duty”
104ZQ. Stamping and endorsement of surcharge duty transactions
104ZR. Stamping of surcharge duty transactions not chargeable with duty
104ZS. Interim payment of duty
104ZT. Duplicates or counterparts
CHAPTER 3 - CERTAIN TRANSACTIONS TREATED AS TRANSFERS
PART 1 - PRELIMINARY
105. Introduction and overview
PART 2 - TRANSACTIONS INVOLVING PUT AND CALL OPTIONS
107. Assignment of rights under call option dutiable as transfer
108. Person liable to pay call option assignment duty
108A. Person liable to pay surcharge call option assignment duty
109. Determination of dutiable value of transfer
110. Stamping or endorsement of transactions
PART 3 - ENTITLEMENTS ARISING FROM CAPITAL REDUCTIONS OR RIGHTS ALTERATIONS
124. Abolition of duty charged by this Part
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 4A - ACQUISITION BY FOREIGN PERSON OF LAND USE ENTITLEMENT TO WHICH PART 4 APPLIES
137AA. Meaning of “residential land use entitlement”
137AB. When does a liability for duty arise?
137AC. Who is liable to pay the duty?
137AD. Assessment of duty
137AE. Application of Part 4
PART 5 - ALLOTMENT OF SHARES BY DIRECTION
137A. Abolition of duty charged by this Part
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
146. Meaning of “landholder”
146A. Threshold value of land holdings
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 2A - CHARGING OF DUTY ON ACQUISITIONS MADE BY TRUSTEES
157A. Application of Part
157B. Beneficial owner-meaning
157C. Beneficial owners liable for duty on acquisitions in landholders
PART 2B - CHARGING OF SURCHARGE DUTY ON ACQUISITIONS MADE BY FOREIGN PERSONS
157D. Meaning of “residential land holding”
157E. Circumstances in which surcharge duty is chargeable
157F. Relationship with Part 2
157G. Who is liable to pay the duty?
157H. How duty is charged on relevant acquisitions by foreign persons
PART 3 - GENERAL PRINCIPLES TO BE APPLIED UNDER THIS CHAPTER
158. Meaning of “linked entity”
158A. Constructive ownership of land holdings and other property through linked entities
159. Constructive ownership of land holdings and other property: discretionary trusts
159A. Inclusion of land holdings recently transferred or agreed to be transferred
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
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
163FA. Concession for acquisitions in connection with persons changing superannuation funds
163G. Significant holdings in goods
163H. Discretion to grant exemption or concession
PART 5 - INTERPRETATION
163I. Meaning of expressions used in this Chapter
163K. Goods of a landholder
163L. Meaning of “unit trust scheme”
CHAPTERS 4A-6 - (Repealed)
CHAPTER 7 - MORTGAGES
PART 1 - INTRODUCTION AND OVERVIEW
203A. Abolition of mortgage duty
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
216A. Calculation of dutiable proportion-goodwill and intellectual property
217. Collateral mortgages-minimum duty
217A, 218. (Repealed)
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
PART 3A - EXEMPTIONS FOR MORTGAGES ASSOCIATED WITH HOUSING
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
228A. Electronic mortgages
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 5A - EXEMPTIONS FOR SMALL BUSINESS
259A. Meaning of “small business”
259B. Exemptions for small business
259C. Insurer to obtain small business declaration
259D. Liability of insured person for wrongly claiming exemption
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
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
270C. Exemption for heavy vehicle trailers
CHAPTER 10 - MISCELLANEOUS DUTIES
271. Duplicates or counterparts
273. Minimum amount of duty
CHAPTER 11 - GENERAL EXEMPTIONS AND CONCESSIONS
PART 1 - CORPORATE RECONSTRUCTIONS AND CONSOLIDATIONS
273B. Exemption for corporate reconstruction and corporate consolidation transactions
273BA. Concession for agreements connected to corporate consolidation transactions
273C. Corporate reconstruction transaction
273D. Corporate consolidation transaction
273E. Meaning of “corporate group”
273F. Applications for exemptions
PART 2 - OTHER EXEMPTIONS
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. Approved shared equity schemes
282. Mortgage-backed securities
283. Instruments issued for the purpose of creating, issuing or marketing mortgage-backed securities
284. Asset-backed securities
284A. Joint government enterprise-water savings projects
284B. Restructuring of unit trust for land tax purposes
284BA. MySuper transitional arrangements
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
289. When is an instrument duly stamped?
289A. Stamping by means of endorsement
290. Special procedures for electronic registry instruments
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
PART 5 - MISCELLANEOUS
312. Disclosures of information in connection with ELN transactions
314. Savings, transitional and other provisions
315. Duty exemption relating to Sydney Desalination Plant
316. Repeal of Educational Institutions (Stamp Duties Exemption) Act 1961 No 37
317. Review of Act
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