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STAMP DUTIES ACT 1920 - SECT 78D Duty payable in respect of rental variations

This legislation has been repealed.

STAMP DUTIES ACT 1920 - SECT 78D

Duty payable in respect of rental variations

78D Duty payable in respect of rental variations

(1) This section applies to a lease under which the rent may be varied during its term so that the total rent payable for the term cannot be calculated at the commencement of the lease. The duty payable in respect of the lease may be determined in one of two ways. The first way applies unless there is agreement between the Chief Commissioner and the lessee to use the second way.
(2) Under the first way:
(a) The Chief Commissioner makes an initial determination and a redetermination at the end of the term and, if the term of the lease is for more than 3 years, redeterminations after each 3 years.
(b) Duty is to be paid following the initial determination on the total rent for the full term of the lease calculated according to such rate or rates as may, subject to variation, be expressed to apply throughout the term. If, when making the initial determination, no rate of rent payable after the first variation can be determined, duty, in the first instance, is payable on the total rent for the full term of the lease calculated as if the rate of rent payable before the first variation were to be paid throughout the full term (or, if there are different rates before the first variation, at the higher or highest of those rates).
(c) Within 1 month after each redetermination is required to be made, the lessee must produce to the Chief Commissioner a duly stamped part of the lease and a statutory declaration stating, firstly, the total amount of rent payable between the date on which the initial determination or the last redetermination, as the case may be, was made and the date on which the current redetermination is required to be made and, secondly, the rate of rent payable as at the date on which the current redetermination is required to be made. The duty to be paid following the redetermination is the duty payable on any increase in the amount of rent paid or payable since the initial determination or last redetermination and, in respect of the balance of the term following the redetermination, on the amount of rent calculated as if the rate of rent payable at the time of the redetermination were to be paid throughout the balance of the term.
(d) A lessee who does not comply with paragraph (c) is guilty of an offence and is liable on conviction to a penalty not exceeding 20 penalty units.
(e) If, following a redetermination, a re-assessment of duty is made by the Chief Commissioner, the lessee must pay any additional duty assessed or the Chief Commissioner must make a refund of duty to the lessee, as the case requires.
(3) The second way requires the agreement of both the Chief Commissioner and the lessee. Under the second way:
(a) The Chief Commissioner assesses duty as if the total rent payable under the lease were the amount of rent (if any) which is not subject to variation under the lease together with the amount of the other rent calculated under paragraph (b).
(b) The amount of the other rent is the amount that would be payable for the first year at the rate payable before the first variation (or, if there are different rates before the first variation, at the higher or highest of those rates) compounded for each year, or part, after the first year by the amount of the annual percentage increase in the Consumer Price Index last issued before the commencement of the lease.
(c) The duty assessed may not be varied merely because the actual rent is different from the estimated rent.
(4) This section applies to and in respect of any premium, fine, foregift or consideration other than rent reserved by a lease in the same way as it applies to and in respect of rent reserved by a lease.
(5) A lease on which only part of the duty has, in accordance with subsection (2), been paid may be marked "interim stamp only". A lease on which no part of the duty is immediately ascertainable may, on payment of duty of $10, be stamped accordingly and marked "interim stamp only". Section 41 (5) applies to a lease marked "interim stamp only" in the same way as it applies to an agreement referred to in that subsection marked "interim stamp only".
(6) In this section:

"Consumer Price Index" means the number appearing in the Consumer Price Index (All Groups Index) for Sydney published by the Commonwealth Statistician under the Census and Statistics Act 1905 of the Commonwealth.

"lessee" includes a person to whom a lease is transferred or assigned.

"variation" means a variation made for any reason or on any basis and includes a further variation.