New South Wales act

Duties Act 1997

In ForceNSW

Jurisdiction

New South Wales

Act Number

123 of 1997

Collection

act

Plain English Summary

9/10 complexity

The Duties Act 1997 sets when and how New South Wales taxes (“duties”) apply to common financial transactions—especially transfers of land or homes, insurance, mortgages, certain vehicle registrations, and interests in companies or trusts holding land. It tells who pays, how duties are calculated, timing, and available exemptions or concessions (for example first-home buyers, family transfers, or charities).

These rules affect buyers, sellers, insurers, borrowers and businesses and can add thousands to transaction costs; failure to comply brings penalties, interest, or blocked registrations.

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What it does

The Duties Act 1997 (NSW) is the principal statute governing the imposition, calculation, collection, and administration of a range of State taxes collectively known as “duties”. At its core the Act replaces the former Stamp Duties Act 1920 and modernises the taxation of transactions that change legal or beneficial ownership of property, create security interests, or give rise to insurable risks.

The Act operates through five substantive charging regimes:

Chapter 2 – Duty on “dutiable transactions” (transfers, agreements for sale, declarations of trust, surrenders, foreclosures, vesting orders, lease premiums, and certain changes in beneficial ownership of dutiable property). The tax base is the greater of consideration and unencumbered value (s 21). Rates are progressive for residential land (ss 32–32C) and flat for other dutiable property.
Chapter 2A – Surcharge purchaser duty on residential-related property acquired by foreign persons. The rate is a flat 8 % (as at 1 July 2024) in addition to ordinary transfer duty (s 104U).
Chapter 3 – Deemed transfers arising from the assignment of call options, novation of lease agreements, and certain partnership changes (ss 9A–9C). These are taxed as if they were transfers of the underlying dutiable property.
Chapter 4 – Landholder duty. A person who acquires a “significant interest” (generally 50 % or more for private landholders, 90 % for public landholders) in a landholder (a private company or unit trust that holds land valued at $2 m or more) is taxed on the unencumbered value of the landholder’s land and goods in New South Wales (s 155). The rate mirrors the general transfer-duty scale.

Current sections

Direct links to the current provisions in Duties Act 1997.

529

Name of Act

1 Name of Act

This Act is the Duties Act 1997.

Commencement

2 Commencement

This Act commences on 1 July 1998.

What does this Act do?

3 What does this Act do?

This Act creates and charges a number of duties.

Note.

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

What is a duty?

4 What is a duty?

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

Arrangements for payment of duties

5 Arrangements for payment of duties

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

• how assessments of duty are made

• how assessments can be challenged

• what happens if duty is not paid on time

• how unpaid duty may be recovered

• what records must be kept by taxpayers

• how decisions made under this Act can be challenged

• the investigative powers of tax administrators.

Application of Act to corporate collective investment vehicles

5A Application of Act to corporate collective investment vehicles

(1) For this Act, each sub-fund of a CCIV is taken to be a unit trust scheme of which—

(a) the CCIV is the trustee, and

(b) the business, assets and liabilities of the sub-fund are the trust property, and

(c) the members of the sub-fund are the beneficiaries.

(2) For a sub-fund that is taken to be a unit trust scheme—

(a) a share in the CCIV that is referable to the sub-fund is taken to be a unit in the unit trust scheme, and

(b) a shareholder of the share, as a member of the sub-fund, is taken to be a registered unit holder of the unit in the unit trust scheme, and

(c) the rights, entitlements, obligations and other characteristics attaching to the share are taken, as far as practicable, to be the same rights, entitlements, obligations and other characteristics attaching to the unit, and

(d) a winding up of the sub-fund is taken to be a winding up of the unit trust scheme, and

(e) a person who has an entitlement to a distribution of property in the event of the distribution of all the property of the sub-fund is taken to have the same entitlement to a distribution of property in the event of the distribution of all the property of the unit trust scheme.

(3) For this Act, a CCIV is taken to be a separate person in relation to each unit trust scheme of which it is the trustee under subsection (1).

(4) This Act does not apply to a CCIV or the members of a sub-fund of a CCIV except as provided for by this section.

s 5A: Ins 2024 No 90, Sch 1[1].

Meaning of words and expressions used in this Act

6 Meaning of words and expressions used in this Act

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

Notes in the text

7 Notes in the text

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

Part 1

Introduction and overview

Part 1 Introduction and overview

Imposition of duty on certain transactions concerning dutiable property

8 Imposition of duty on certain transactions concerning dutiable property

(1) This Chapter charges duty on—

(a) a transfer of dutiable property, and

(b) the following transactions—

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

(ii) a declaration of trust over dutiable property,

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

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

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

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

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

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

(ix) another transaction that results in a change in beneficial ownership of dutiable property, other than an excluded transaction.

(c) (Repealed)

Note.

There are other provisions in this Act that deem certain transactions to be a transfer of dutiable property under this Chapter, for example—

(a) section 9A, which provides for certain circumstances in which a transfer of a partnership interest is taken to occur, and

(b) section 9B, which provides for certain circumstances in which a transfer of an option to purchase land is taken to occur, and

(c) section 9C, which provides for circumstances in which a novation of an agreement for the lease of land in New South Wales is taken to be a transfer of dutiable property, and

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

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

(2A) Despite subsection (1)(b)(ix), an excluded transaction that results in a change in beneficial ownership of dutiable property is a dutiable transaction if it is part of a scheme or arrangement that, in the Chief Commissioner’s opinion, was made with a collateral purpose of reducing the duty otherwise chargeable under this Chapter.

(3) In this Chapter—

beneficial ownership includes ownership of dutiable property by a person as trustee of a trust.

change in beneficial ownership includes the following—

(a) the creation of dutiable property,

(b) the extinguishment of dutiable property,

(c) a change in equitable interests in dutiable property,

(d) dutiable property becoming the subject of a trust,

(e) dutiable property ceasing to be the subject of a trust.

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

excluded transaction means the following—

(a) the purchase, gift, allotment or issue of a unit in a unit trust scheme,

(b) the cancellation, redemption or surrender of a unit in a unit trust scheme,

(c) the abrogation or alteration of a right relating to a unit in a unit trust scheme,

(d) the payment of an account owing for a unit in a unit trust scheme,

(e) the grant, renewal or variation of a lease for no consideration,

(f) the grant of an easement for no consideration,

(g) the grant of a profit a prendre for no consideration,

(h) the provision of a security interest within the meaning of the Personal Property Securities Act 2009 of the Commonwealth,

(i) a change in a trustee’s right of indemnity,

(j) the creation of an interest in dutiable property by statute,

(k) a transaction of a kind prescribed by the regulations,

(l) a combination of the transactions referred to in paragraphs (a)–(k).

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

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

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

s 8: Am 1998 No 104, Sch 2 [1] [2]; 2001 No 34, Sch 4.14 [1]; 2002 No 108, Sch 1 [1]; 2003 No 80, Sch 1 [1] [2]; 2004 No 33, Sch 4 [1]; 2005 No 51, Sch 1 [1]; 2006 No 49, Sch 1 [1] [2]; 2008 No 67, Sch 1 [1]; 2012 No 76, Sch 1 [1]; 2014 No 56, Sch 1 [1] [2]; 2022 No 16, Sch 1[1]–[3].

8AA

Imposition of duty on acknowledgment of trust

8AA Imposition of duty on acknowledgment of trust

(1) This Chapter also charges duty on the making of a statement that—

(a) purports to be a declaration of trust over dutiable property, but

(b) merely has the effect of acknowledging that identified property vested, or to be vested, in the person making the statement is already held, or to be held, in trust for a person or purpose mentioned in the statement.

(2) For the purpose of charging the duty—

(a) the making of the statement is taken to be a declaration of trust over dutiable property and, accordingly, is a dutiable transaction, and

(b) the property vested, or to be vested, in the person making the statement is taken to be the property transferred, and

(c) the person making the statement is taken to be the transferee, and

(d) the transfer is taken to occur when the statement is made.

s 8AA: Ins 2022 No 16, Sch 1[4].

Vesting of land in New South Wales by statute law

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

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

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

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

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

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

(6) A division of a corporation (the dividing corporation) in circumstances where the dividing corporation does not continue in existence and 2 or more other corporations (the new corporations) result as a consequence of the division is taken to be a vesting in each new corporation by statute law of the land in New South Wales of the dividing corporation that is held by the new corporation as a result of the division.

(7) A division of a corporation (the dividing corporation) in circumstances where the dividing corporation continues in existence and 1 or more other corporations (the new corporations) result as a consequence of the division is taken to be a vesting in each new corporation by statute law of the land in New South Wales of the dividing corporation that is held by the new corporation as a result of the division.

s 8A: Ins 2003 No 80, Sch 1 [3]. Am 2023 No 18, Sch 1[1].

Imposition of duty on dutiable transactions that are not transfers

9 Imposition of duty on dutiable transactions that are not transfers

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

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

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

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

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

Table

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

s 9: Am 1998 No 104, Sch 2 [3]; 2002 No 108, Sch 1 [2]; 2003 No 80, Sch 1 [4]; 2006 No 49, Sch 1 [3]; 2022 No 16, Sch 1[5].

Transfer of partnership interest occurring on change in partnership arrangements

9A Transfer of partnership interest occurring on change in partnership arrangements

(1) A transfer of a partnership interest is taken to occur when a change in partnership arrangements occurs.

(2) A change in partnership arrangements occurs if—

(a) a partner in an existing partnership retires so that a new partnership is formed (with or without the admission of new partners), or

(b) a new partner is admitted to an existing partnership so that a new partnership is formed.

(3) A new partnership is formed when a partner in an existing partnership retires, unless the partnership is wound up on that retirement (sometimes referred to as a general dissolution of the partnership).

(4) A new partnership is formed whenever a new partner is admitted to an existing partnership.

(5) For the purposes of this Act—

(a) if a change in partnership arrangements occurs because of the retirement of a partner in an existing partnership, the retiring partner’s partnership interest is taken to be transferred to the partners in the new partnership (a retirement transfer), and

(b) if a change in partnership arrangements occurs because of the admission of a new partner to an existing partnership, the new partner’s partnership interest is taken to be transferred to the partners in the new partnership (an admission transfer).

(6) If a change in partnership arrangements results in both one or more retirement transfers and one or more admission transfers, duty is chargeable only on—

(a) the retirement transfer or retirement transfers, if the dutiable value of the retirement transfer or retirement transfers exceeds the dutiable value of the admission transfer or admission transfers, or

(b) the admission transfer or admission transfers, if the dutiable value of the admission transfer or admission transfers exceeds the dutiable value of the retirement transfer or retirement transfers.

(7) This section does not affect liability for duty on a transfer of a partnership interest that occurs otherwise than because of a change in partnership arrangements.

Note.

For example, a transfer of a partnership interest from one partner to another partner in an existing partnership will also be dutiable under this Chapter.

(7A) To avoid doubt, a transfer of a partnership interest that is taken to occur under this section is a transfer of dutiable property and a reference in this Act to a transfer of dutiable property or a dutiable transaction includes a reference to such a transfer.

(8) In this section, retirement of a partner includes retirement as a consequence of the death of a partner.

s 9A: Ins 2012 No 76, Sch 1 [2]. Am 2014 No 56, Sch 1 [3].

Transfer of option occurring on nomination or other change

9B Transfer of option occurring on nomination or other change

(1) A transfer of an option to purchase land in New South Wales is taken to occur if, for valuable consideration—

(a) another person is nominated to exercise the option, or

(b) another person is nominated as purchaser or transferee of the land the subject of the option on or before the exercise of the option, or

(c) the option holder agrees to a novation of the option, or otherwise relinquishes rights under the option, so that another person obtains a right to exercise the option or to purchase the land.

(2) For the purposes of this Act, in a case referred to in subsection (1) (a) or (b)—

(a) the option is taken to be transferred when the nomination is made (and a reference in this Act to the time at which a transfer occurs includes a reference to such a time), and

(b) the person nominated is taken to be the transferee of the option (and a reference in this Act to a transferee includes a reference to such a person).

(3) For the purposes of this Act, in a case referred to in subsection (1) (c)—

(a) the option is taken to be transferred when the option holder agrees to the novation or otherwise relinquishes rights under the option (and a reference in this Act to the time at which a transfer occurs includes a reference to such a time), and

(b) the person who obtains a right to exercise the option or to purchase the land is taken to be the transferee of the option (and a reference in this Act to a transferee includes a reference to such a person).

(4) This section applies regardless of when the option is exercisable.

(5) For the purposes of this section, anything done by a person under a power of appointment or other authority granted by an option holder is taken to have been done by the option holder.

(6) To avoid doubt, a person who has a right to accept an offer to sell land has a right to purchase the land.

(7) To avoid doubt, a transfer of an option to purchase land that is taken to occur under this section is a transfer of dutiable property and a reference in this Act to a transfer of dutiable property or a dutiable transaction includes a reference to such a transfer.

(8) In this section—

option holder, in relation to an option to purchase land in New South Wales, means a person who has a right to purchase the land under the option (whether vested or contingent).

s 9B: Ins 2014 No 56, Sch 1 [4].

Novation of agreement for lease

9C Novation of agreement for lease

(1) A novation of an agreement for the lease of land in New South Wales is taken to be a transfer of dutiable property as if—

(a) the lessee’s interest in the agreement were dutiable property, and

(b) the novation of the agreement were a transfer of that dutiable property.

(2) For the purposes of this Act—

(a) the transfer is taken to occur when the agreement for lease is novated (and a reference in this Act to the time at which a transfer occurs includes a reference to such a time), and

(b) the new lessee is taken to be the transferee of the dutiable property (and a reference in this Act to a transferee includes a reference to such a person).

(3) A reference in this Act to dutiable property includes, in relation to a transfer that is taken to occur under this section, a reference to a lessee’s interest in an agreement for the lease of land in New South Wales.

(4) To avoid doubt, a reference in this Act to a dutiable transaction includes a reference to a transfer of dutiable property that is taken to occur under this section.

s 9C: Ins 2014 No 56, Sch 1 [4].

Form of dutiable transaction is immaterial

10 Form of dutiable transaction is immaterial

The duty charged by this Chapter is payable whether a dutiable transaction is effected by an instrument or by any other means.

s 10: Subst 2017 No 11, Sch 1 [1]. Am 2024 No 90, Sch 1[2].

What is “dutiable property”?

11 What is “dutiable property”?

(1) Dutiable property is any of the following—

(a) land in New South Wales,

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

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

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

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

(c) a land use entitlement,

(d) shares—

(i) in a NSW company, or

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

Notes.

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

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

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

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

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

Notes.

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

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

(f) (Repealed)

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

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

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

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

Note.

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

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

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

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

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

(i) goods that are stock-in-trade,

(ii) materials held for use in manufacture,

(iii) goods under manufacture,

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

(v) livestock,

(vi) a registered motor vehicle,

(vii) a ship or vessel,

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

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

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

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

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

Note.

In relation to interests in land, see clause 4 of the Dictionary.

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

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

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

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

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

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

Note.

Part 4 of this Chapter provides for the abolition, on 1 July 2016, of duty on transfers of some of the types of dutiable property listed above.

The following types of dutiable property cease to be dutiable property on 1 July 2016—

(a) shares and units referred to in subsection (1) (d) and (e),

(b) business assets referred to in subsection (1) (g),

(c) statutory licences or permissions referred to in subsection (1) (h),

(d) gaming machine entitlements referred to in subsection (1) (h1).

s 11: Am 1998 No 44, Sch 1 [1]–[4]; 1998 No 104, Sch 2 [4] [5]; 2000 No 44, Sch 2 [1]–[5]; 2001 No 96, Sch 1 [1]; 2001 No 127, Sch 5.1 [1]; 2006 No 49, Sch 1 [4]; 2008 No 48, Sch 1 [1]; 2008 No 122, Sch 1.1 [1] [2]; 2009 No 51, Sch 1.5 [1] [2]; 2009 No 91, Sch 1 [1]; 2011 No 72, Sch 5.2 [1], 2012 No 46, Sch 1.1 [1]; 2012 No 76, Sch 1 [3]; 2013 No 50, Sch 1 [1]; 2014 No 37, Sch 1 [1] [2].

When does a liability for duty arise?

12 When does a liability for duty arise?

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

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

(3) A liability for duty in respect of a dutiable transaction that is charged with duty as if it were a transfer of dutiable property arises even if the dutiable property is not in existence at the time that the transfer is taken to have occurred, or the instrument effecting the transfer is first executed, as the case requires.

(4) An electronic registry instrument is taken to be first executed—

(a) if the instrument is digitally signed by a subscriber within the meaning of the Electronic Conveyancing National Law (NSW)—on the date the instrument is first digitally signed by the subscriber, or

(b) otherwise—when the Chief Commissioner first receives information relating to the instrument.

s 12: Am 2010 No 46, Sch 1.3 [1]; 2014 No 67, Sch 1 [1]; 2017 No 11, Sch 1 [2]; 2023 No 18, Sch 1[2].

Who is liable to pay the duty?

13 Who is liable to pay the duty?

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

s 13: Am 2004 No 33, Sch 4 [2]; 2008 No 67, Sch 1 [2].

The liability of joint tenants

14 The liability of joint tenants

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

Necessity for instrument or written statement

15 Necessity for instrument or written statement

(1) If a dutiable transaction that is liable to ad valorem duty under this Chapter or Chapter 2A is not effected by an instrument, the transferee must make a written statement in an approved form.

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

(3) (Repealed)

(4) If a dutiable transaction is completed or evidenced by an instrument within 3 months after the date on which the dutiable transaction occurs, the requirement to lodge a statement and pay duty under this Chapter or Chapter 2A in respect of the statement may be satisfied by the lodgment of and payment of duty on the instrument within 3 months after the date on which the dutiable transaction occurs.

s 15: Am 2000 No 44, Sch 2 [6] [7]; 2003 No 80, Sch 1 [5]; 2016 No 32, Sch 1 [1] [2]; 2017 No 11, Sch 1 [3] [4].

Lodging instrument or written statement with Chief Commissioner

16 Lodging instrument or written statement with Chief Commissioner

(1) A transferee who is liable to pay duty under this Chapter or Chapter 2A in respect of a dutiable transaction must, within 3 months after the liability arises, lodge with the Chief Commissioner—

(a) the instrument that effects the dutiable transaction or, if there is more than one such instrument, each one of them as provided by sections 18 (1) and 104X (1), or

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

(2) If the instrument is in a digital form, the instrument must be lodged with the Chief Commissioner in a form and manner approved by the Chief Commissioner.

s 16: Am 2000 No 44, Sch 2 [8]; 2016 No 32, Sch 1 [3] [4]; 2017 No 11, Sch 1 [5] [6].

16A

Lodging purchaser’s declaration with Chief Commissioner

16A Lodging purchaser’s declaration with Chief Commissioner

A transferee who is liable to pay duty in respect of a dutiable transaction under this Chapter or Chapter 2A must lodge a declaration in the approved form with the instrument or written statement lodged under section 16.

s 16A: Ins 2016 No 32, Sch 1 [5]. Am 2017 No 11, Sch 1 [7] [8].

When must duty be paid?

17 When must duty be paid?

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

(2) (Repealed)

s 17: Am 2000 No 44, Sch 2 [9].

No double duty

18 No double duty

(1) If a dutiable transaction is effected by more than one instrument, one instrument is to be stamped with the duty payable on the dutiable transaction and each other instrument is chargeable with duty of $100.

Note.

Instrument includes a written statement.

(2) The duty chargeable in respect of a transfer of dutiable property made in conformity with an agreement for the sale or transfer of the dutiable property is $20 if the duty chargeable in respect of the agreement has been paid.

(3) The duty chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property is $20 if—

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

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

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

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

(i) the purchaser under the agreement (other than a purchaser who purchased as a trustee) and the transferee under the transfer were related persons, or

(ii) if the purchaser purchased as a trustee (other than as a trustee of a self managed superannuation fund)—the transferee and the beneficiary were related persons, or

(iii) if the purchaser purchased as a trustee of a self managed superannuation fund—the transferee under the transfer was the custodian of that trustee.

Note.

Section 64C also provides for a duty concession in respect of a transfer of dutiable property that is made in partial conformity with an agreement for the sale or transfer of the property. The concession applies if the interest in the property transferred to the transferee is not identical to the interest agreed to be transferred to the transferee under the agreement.

(4) The duty chargeable on a transfer to a trustee of dutiable property subject to a declaration of trust is $20 if ad valorem duty under this Chapter has been paid on the declaration of trust in respect of the same dutiable property.

(5) The duty chargeable on a transfer of dutiable property as a consequence of a foreclosure order is $20 if ad valorem duty under this Chapter has been paid on the foreclosure.

(6) The duty chargeable on a declaration of trust that declares the same trusts as those upon and subject to which the same dutiable property was transferred to the person declaring the trust is $20 if ad valorem duty under this Chapter has been paid on the transfer.

(6A) The duty chargeable on a declaration of trust is $100 if the Chief Commissioner is satisfied that—

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

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

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

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

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

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

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

(8) Despite subsection (1), if a single dutiable transaction is effected by more than one electronic registry instrument it is sufficient that one of those instruments is duly stamped with the duty chargeable on the dutiable transaction.

Note.

See section 290.

s 18: Am 2000 No 105, Sch 1 [1]; 2002 No 108, Sch 1 [3]; 2005 No 51, Sch 1 [2]; 2008 No 122, Sch 1.2 [1] [2]; 2012 No 20, Sch 1 [1]; 2014 No 67, Sch 1 [2]; 2016 No 32, Sch 1 [6] [7]; 2017 No 11, Sch 1 [9]; 2023 No 26, Sch 1[1] [2].

18A

Land subject to property tax

18A Land subject to property tax

(1) For transactions involving land that is subject to property tax, including transactions that cause land to become subject to property tax, the requirements of this Chapter are subject to the Property Tax (First Home Buyer Choice) Act 2022.

(2) Terms used in this section have the same meanings as in the Property Tax (First Home Buyer Choice) Act 2022.

s 18A: Ins 2022 No 60, Sch 5.1.

What is the rate of duty?

19 What is the rate of duty?

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

Concessions and exemptions from duty

20 Concessions and exemptions from duty

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

Part 2

Dutiable value

Part 2 Dutiable value

What is the “dutiable value” of dutiable property?

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

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

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

(b) the unencumbered value of the dutiable property.

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

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

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

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

s 21: Am 2001 No 22, Sch 1 [1]; 2006 No 49, Sch 1 [5].

What is the consideration for the transfer of dutiable property?

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

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

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

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

(4) The consideration for a transfer of land in New South Wales that occurs as a consequence of the exercise of an option to purchase land is taken to include the amount or value of the consideration provided by or on behalf of the transferee for the option (whether for its grant, transfer, exercise or otherwise).

Note.

This section extends to an agreement for sale or transfer of dutiable property. Under sections 8 and 9 such agreements are treated as transfers of dutiable property.

s 22: Am 2014 No 56, Sch 1 [5].

What is the “unencumbered value” of dutiable property?

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

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

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

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

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

s 23: Am 2006 No 51, Sch 1 [1].

Interests, agreements and arrangements that reduce the dutiable value

24 Interests, agreements and arrangements that reduce the dutiable value

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

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

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

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

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

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

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

s 24: Subst 2002 No 108, Sch 1 [4]; 2003 No 80, Sch 1 [6].

Aggregation of dutiable transactions

25 Aggregation of dutiable transactions

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

(a) (Repealed)

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

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

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

Note.

Associated person is defined in the Dictionary.

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

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

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

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

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

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

(4A) The amount of duty payable on dutiable transactions aggregated in accordance with this section is to be calculated at the rate applicable under this Chapter at the time at which the earliest of the aggregated dutiable transactions occur.

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

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

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

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

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

Note.

An offence against subsection (6) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 121 of the Taxation Administration Act 1996.

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

(8) In this section—

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

s 25: Am 2006 No 87, Sch 1 [1]–[3]; 2012 No 97, Sch 1.9 [1]; 2016 No 32, Sch 1 [6]; 2019 No 8, Sch 1 [1]; 2023 No 18, Sch 1[3].

Certain transactions concerning goods and other property

26 Certain transactions concerning goods and other property

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

(2) (Repealed)

s 26: Am 2003 No 80, Sch 1 [7]; 2006 No 49, Sch 1 [6]; 2008 No 48, Sch 1 [2]; 2008 No 122, Sch 1.1 [3]; 2012 No 46, Sch 1.1 [2]. Subst 2013 No 50, Sch 1 [2]. Am 2022 No 16, Sch 1[6].

26A

26A (Repealed)

Apportionment—dutiable property and other property

27 Apportionment—dutiable property and other property

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

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

Apportionment—business assets in this and other jurisdictions

28 Apportionment—business assets in this and other jurisdictions

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

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

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

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

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

where—

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

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

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

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

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

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

(6) This section applies only to dutiable transactions that occur before 1 July 2016 (the date on which duty on transfers of business assets is abolished).

s 28: Am 2006 No 49, Sch 1 [8]; 2008 No 48, Sch 1 [2]; 2008 No 122, Sch 1.1 [5]; 2009 No 51, Sch 1.5 [3]–[7]; 2012 No 46, Sch 1.1 [1]; 2013 No 50, Sch 1 [3]; 2014 No 37, Sch 1 [3].

Partnership interests

29 Partnership interests

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

where—

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

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

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

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

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

Note.

For example, 3 partners jointly hold land valued at $9 million and other non-dutiable property valued at $3 million. The partnership has liabilities of $6 million. One partner retires, and is paid $2 million for his or her partnership interest. The retiring partner transfers a one-third interest in the land to the remaining partners. Duty is payable at an ad valorem rate on the transfer of the one-third interest in the land. The transfer of the interest in land has a dutiable value of $3 million. Under this section, the partnership interest has a dutiable value of $1.5 million (DV = $2M × $9M/$12M). As the dutiable value of the interest in land transferred exceeds the dutiable value of the partnership interest transferred, the minimum duty would be payable on the transfer of the partnership interest.

(3A) The minimum duty chargeable in respect of a transfer of a partnership interest to which subsection (3) applies is $100.

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

(a) land in New South Wales,

(b) transferable floor space,

(c) a land use entitlement,

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

s 29: Am 2000 No 105, Sch 1 [2]; 2005 No 51, Sch 1 [3]; 2012 No 76, Sch 1 [4]; 2016 No 32, Sch 1 [6]; 2023 No 26, Sch 1[1].

Partitions

30 Partitions

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

(2) Single dutiable transaction For the purposes of this section and sections 16, 18 and 104X, a partition is taken to be a single dutiable transaction.

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

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

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

(3A) (Repealed)

(4) Minimum duty The minimum duty chargeable on a transaction that effects a partition is $100.

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

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

s 30: Am 1998 No 44, Sch 1 [5]–[7]; 1998 No 104, Sch 2 [6]; 2000 No 105, Sch 1 [3]; 2005 No 51, Sch 1 [4] [5]; 2008 No 67, Sch 1 [3]; 2008 No 122, Sch 1.2 [3]; 2016 No 32, Sch 1 [8]; 2023 No 26, Sch 1[1].

Effect of alteration in purchase price

31 Effect of alteration in purchase price

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

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

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

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

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

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

(3) The amount of duty assessed or reassessed in accordance with this section must be calculated at the rate applicable under this chapter when the agreement for the sale or transfer was first executed.

s 31: Subst 1998 No 104, Sch 2 [7]. Am 2023 No 18, Sch 1[4].

Part 3

Rates of duty

Part 3 Rates of duty

Division 1

Preliminary

Division 1 Preliminary

ch 2, pt 3, div 1: Ins 2019 No 8, Sch 1 [2].

32AA

Definitions

32AA Definitions

In this Part—

adjustable amount means an amount specified in this Part as an adjustable amount for the purposes of Division 3.

base amount means the amount specified for a threshold range in Column 4 of the table to section 32 (1).

fixed rate means the rate specified for a threshold range in Column 5 of the table to section 32 (1).

maximum threshold amount means the amount specified for a threshold range in Column 3 of the table to section 32 (1).

minimum threshold amount means the amount specified for a threshold range in Column 2 of the table to section 32 (1).

premium base amount—see section 32A (2).

threshold range—see section 32 (2).

s 32AA: Ins 2019 No 8, Sch 1 [2].

Division 2

Rates of duty

Division 2 Rates of duty

ch 2, pt 3, div 2: Ins 2019 No 8, Sch 1 [2].

General rate

32 General rate

(1) The rate of duty chargeable on a dutiable transaction is the base amount for the threshold range that applies to the dutiable transaction plus the amount determined at the fixed rate in respect of the dutiable value of the dutiable property involved in the transaction.

| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 | | Threshold range | Minimum threshold amount | Maximum threshold amount | Base amount | Fixed rate | | 1 | $0 | $14,000 | $0 | $1.25 for every $100 (or part) of the dutiable value | | 2 | $14,000 | $30,000 | $175 | $1.50 for every $100 (or part) by which the dutiable value exceeds the minimum threshold amount | | 3 | $30,000 | $81,000 | $415 | $1.75 for every $100 (or part) by which the dutiable value exceeds the minimum threshold amount | | 4 | $81,000 | $304,000 | $1,307 | $3.50 for every $100 (or part) by which the dutiable value exceeds the minimum threshold amount | | 5 | $304,000 | $1,013,000 | $9,112 | $4.50 for every $100 (or part) by which the dutiable value exceeds the minimum threshold amount | | 6 | $1,013,000 | — | $41,017 | $5.50 for every $100 (or part) by which the dutiable value exceeds the minimum threshold amount |

(2) For the purposes of this Part, a threshold range applies to a dutiable transaction if the dutiable value of the dutiable property involved in the transaction is more than the minimum threshold amount but not more than the maximum threshold amount (if any) specified for that threshold range.

(3) The rate of duty provided for by this section applies unless other provision is made by this Chapter.

(4) Each minimum threshold amount and maximum threshold amount is an adjustable amount for the purposes of Division 3.

s 32: Subst 2019 No 8, Sch 1 [2].

32A

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

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

(1) The rate of duty chargeable on a dutiable transaction in respect of residential land that has a dutiable value exceeding $3,040,000 is the premium base amount plus $7 for every $100, or part, by which the dutiable value of the residential land exceeds $3,040,000.

(2) The premium base amount is the amount of duty chargeable in respect of a dutiable transaction involving dutiable property that has a dutiable value of $3,040,000, determined in accordance with section 32.

Note.

The premium base amount in respect of a dutiable transaction occurring in the financial year commencing on 1 July 2019 is $152,502.

(2A) The rate of duty chargeable on a dutiable transaction in respect of residential land that has a dutiable value not exceeding $3,040,000 is as provided for by section 32.

(2B) If the dutiable property subject to a dutiable transaction comprises 2 or more individual items of residential land and 1 or more of those items has a dutiable value exceeding $3,040,000, the rate of duty chargeable on the dutiable transaction is as follows—

(a) for each item of residential land that has a dutiable value exceeding $3,040,000—the premium base amount plus $7 for every $100, or part, by which the dutiable value of the item exceeds $3,040,000,

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

(2C) The amount of $3,040,000 specified in any provision of this section is an adjustable amount for the purposes of Division 3.

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

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

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

(c) a land use entitlement, if it entitles the holder of the land use entitlement to occupy a building, or part of a building, as a separate dwelling, or

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

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

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

(6) In this section—

excluded residential occupancy means—

(a) one room, or

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

(c) one flat, or

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

(e) one flat and one room, or

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

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

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

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

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

single dwelling means a house—

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

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

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

s 32A: Ins 2004 No 33, Sch 3.1 [1]. Am 2004 No 67, Sch 1 [1]; 2008 No 67, Sch 1 [4] [5]; 2016 No 32, Sch 1 [9]; 2019 No 8, Sch 1 [3].

32B

Rate for residential land used for other purposes

32B Rate for residential land used for other purposes

(1) If a dutiable transaction in respect of residential land has a dutiable value exceeding $3,040,000, and the Chief Commissioner is satisfied that the residential land is used for purposes other than residential purposes, duty is to be charged at the rate of $7 for every $100, or part, of the premium value of the residential land.

(2) The premium value of the residential land is the amount (if any) by which the dutiable value of the residential land, when reduced by the apportionment factor, exceeds $3,040,000.

(2A) The amount of $3,040,000 specified in subsections (1) and (2) is an adjustable amount for the purposes of Division 3.

(3) The apportionment factor is—

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

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

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

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

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

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

Note.

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

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

(7) In this section—

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

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

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

s 32B: Ins 2004 No 33, Sch 3.1 [1]. Am 2019 No 8, Sch 1 [4] [5].

32C

Rate for large parcels of residential land

32C Rate for large parcels of residential land

(1) If a dutiable transaction in respect of residential land that is a parcel of land has a dutiable value exceeding $3,040,000, and the area of the parcel of land exceeds 2 hectares, duty is to be charged at the rate of $7 for every $100, or part, of the premium value of the residential land.

(2) The premium value of the residential land is the amount (if any) by which the dutiable value of the residential land, when multiplied by the apportionment factor, exceeds $3,040,000.

(2A) The amount of $3,040,000 specified in subsections (1) and (2) is an adjustable amount for the purposes of Division 3.

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

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

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

(5) In this section—

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

s 32C: Ins 2004 No 33, Sch 3.1 [1]. Am 2004 No 96, Sch 2 [1] [2]; 2019 No 8, Sch 1 [4] [5].

Shares, units, derivatives and interests (marketable securities)

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

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

(2) (Repealed)

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

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

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

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

Note.

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

s 33: Am 1998 No 104, Sch 2 [8]; 2000 No 44, Sch 2 [10]–[13]; 2008 No 122, Sch 1.2 [4]; 2009 No 51, Sch 1.5 [8] [9]; 2012 No 76, Sch 1 [3].

33A

Shares in share management fisheries

33A Shares in share management fisheries

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

s 33A: Ins 2001 No 96, Sch 1 [2].

Division 3

Indexation of amounts

Division 3 Indexation of amounts

ch 2, pt 3, div 3 (ss 33AB–33AF): Ins 2019 No 8, Sch 1 [6].

33AB

Interpretation

33AB Interpretation

(1) In this Division—

CPI number means the Consumer Price Index (All Groups Index) for Sydney published by the Australian Bureau of Statistics in the latest published series of that index.

(2) If, after 1 July in any year, the Australian Statistician publishes a CPI number in respect of the latest March quarter in substitution for a CPI number previously published in respect of that quarter, the publication of the later CPI number is to be disregarded for the purposes of any adjustment under this Division.

ch 2, pt 3, div 3 (ss 33AB–33AF): Ins 2019 No 8, Sch 1 [6].

33AC

Adjustable amounts

33AC Adjustable amounts

(1) Each adjustable amount is to be adjusted for the year commencing on 1 July 2020, and each subsequent year, in accordance with this section.

(2) The adjustable amounts that are to apply for a year are to be calculated by multiplying the adjustable amounts that applied before any adjustment under this Division by A/B where—

A is the CPI number for the March quarter in the year immediately preceding the year for which the amount is calculated.

B is the CPI number for the March quarter of 2019.

A/B is calculated to the nearest 3 decimal places (and a fourth decimal place of 5 is to be rounded up).

(3) An adjustable amount determined in accordance with this section is to be rounded to the nearest $1,000 (and an amount of $500 is to be rounded up).

(4) However, if the adjustable amount calculated for any year is less than the amount that applied for the previous year, then the amount for that previous year applies instead.

ch 2, pt 3, div 3 (ss 33AB–33AF): Ins 2019 No 8, Sch 1 [6].

33AD

Base amounts

33AD Base amounts

(1) Each base amount for a threshold range is to be adjusted for the year commencing on 1 July 2020, and each subsequent year, so that it is equal to the sum of all fixed rate amounts determined for the preceding threshold ranges.

(2) The fixed rate amount for a threshold range is the amount determined at the fixed rate in respect of dutiable property that has a dutiable value equal to the maximum threshold amount for the threshold range.

(3) An adjusted base amount determined in accordance with this section is to be rounded to the nearest dollar (and an amount of 50 cents is to be rounded down).

ch 2, pt 3, div 3 (ss 33AB–33AF): Ins 2019 No 8, Sch 1 [6].

33AE

References to adjustable amounts and base amounts

33AE References to adjustable amounts and base amounts

(1) The adjustable amounts and base amounts adjusted for a year in accordance with this Division replace the amounts that applied for the previous year.

(2) Accordingly, a reference to a rate or amount of duty as provided for by, or determined in accordance with, section 32 is a reference to the rate or amount subject to any adjustment under this Division.

ch 2, pt 3, div 3 (ss 33AB–33AF): Ins 2019 No 8, Sch 1 [6].

33AF

Publication of adjusted amounts

33AF Publication of adjusted amounts

(1) The Chief Commissioner is to publish a notice on the NSW legislation website before the start of each year commencing on 1 July specifying the following amounts that are to apply for that year—

(a) each adjustable amount, as adjusted in accordance with this Division,

(b) each base amount, as adjusted in accordance with this Division,

(c) the premium base amount, determined by reference to any relevant amount adjusted in accordance with this Division.

Editorial note.

For notices under this subsection see Notice of Adjusted Amounts Under Section 33AF of Duties Act 1997 (2025-282).

(2) However, failure to publish the notice or late publication of the notice does not affect the validity of an adjustment under this Division.

ch 2, pt 3, div 3 (ss 33AB–33AF): Ins 2019 No 8, Sch 1 [6].

Part 4

Abolition of various duties

Part 4 Abolition of various duties

ch 2, pt 4: Rep 2000 No 44, Sch 2 [14]. Ins 2006 No 49, Sch 1 [9]. Subst 2014 No 37, Sch 1 [4].

ch 2, pt 4, introduction: Am 1998 No 54, Sch 2.10 [1]. Rep 2000 No 44, Sch 2 [14].

ch 2, pt 4, div 1: Rep 2000 No 44, Sch 2 [14].

33B

33B (Repealed)

Abolition of duty on transfers of marketable securities and commercial fishery shares

34 Abolition of duty on transfers of marketable securities and commercial fishery shares

(1) On and from 1 July 2016, marketable securities and commercial fishery shares are not dutiable property (despite section 11).

(2) Subsection (1) does not apply in respect of any transfer or transaction with respect to marketable securities or commercial fishery shares that occurs before 1 July 2016 and, accordingly, does not affect any requirement to pay duty under this Chapter in respect of the transfer or transaction.

(3) In this section—

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

s 34: Rep 2000 No 44, Sch 2 [14]. Ins 2006 No 49, Sch 1 [9]. Am 2008 No 48, Sch 1 [3]–[5]; 2008 No 122, Sch 1.1 [6]; 2012 No 46, Sch 1.1 [1]; 2013 No 50, Sch 1 [5] [6]. Subst 2014 No 37, Sch 1 [4].

Abolition of duty on transfers of business assets

35 Abolition of duty on transfers of business assets

(1) On and from 1 July 2016, a business asset is not dutiable property (despite section 11).

(2) Subsection (1) does not apply in respect of any transfer or transaction with respect to business assets that occurs before 1 July 2016 and, accordingly, does not affect any requirement to pay duty under this Chapter in respect of the transfer or transaction.

s 35: Rep 2000 No 44, Sch 2 [14]. Ins 2006 No 49, Sch 1 [9]. Am 2008 No 48, Sch 1 [6]; 2008 No 122, Sch 1.1 [7]; 2012 No 46, Sch 1.1 [1]; 2013 No 50, Sch 1 [7]–[9]. Subst 2014 No 37, Sch 1 [4].

Abolition of duty on transfers of statutory licences or permissions and gaming machine entitlements

36 Abolition of duty on transfers of statutory licences or permissions and gaming machine entitlements

(1) On and from 1 July 2016, a statutory licence or permission, or a gaming machine entitlement, is not dutiable property (despite section 11).

(2) Subsection (1) does not apply in respect of any transfer or transaction with respect to statutory licences or permissions, or gaming machine entitlements, that occurs before 1 July 2016 and, accordingly, does not affect any requirement to pay duty under this Chapter in respect of the transfer or transaction.

(3) In this section—

gaming machine entitlement means a gaming machine entitlement within the meaning of the Gaming Machines Act 2001.

statutory licence or permission means a statutory licence or permission under a New South Wales law.

s 36: Rep 2000 No 44, Sch 2 [14]. Ins 2006 No 49, Sch 1 [9]. Am 2008 No 48, Sch 1 [6]; 2008 No 122, Sch 1.1 [8]; 2011 No 72, Sch 5.2 [1]; 2012 No 46, Sch 1.1 [1]; 2013 No 50, Sch 1 [10]–[12]. Subst 2014 No 37, Sch 1 [4].

Anti-avoidance measures

37 Anti-avoidance measures

Section 35 or 36 does not apply in respect of a transfer or transaction that occurs on or after 1 July 2016 if—

(a) the transfer or transaction replaces a transfer or transaction involving the same business asset, statutory licence or permission, or gaming machine entitlement, that occurred before 1 July 2016, or

(b) the transfer or transaction is made or entered into pursuant to an option to purchase the business asset, statutory licence or permission, or gaming machine entitlement, that was granted before 1 July 2016, or

(c) the transfer or transaction was made or entered into pursuant to another arrangement, made before 1 July 2016, the only or main purpose of which was to defer the transfer or transaction until 1 July 2016, or later, so that duty would not be chargeable under this Chapter on the transfer or transaction.

s 37: Rep 2000 No 44, Sch 2 [14]. Ins 2006 No 49, Sch 1 [9]. Am 2008 No 48, Sch 1 [6]; 2008 No 122, Sch 1.1 [9]; 2011 No 72, Sch 5.2 [1]; 2012 No 46, Sch 1.1 [1]. Subst 2013 No 50, Sch 1 [13]; 2014 No 37, Sch 1 [4].

38

38–48A (Repealed)

Part 5

Special provisions

Part 5 Special provisions

Interim payment of duty

49 Interim payment of duty

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

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

(3) The Chief Commissioner must, when the full dutiable value of the dutiable property has been ascertained, reassess the duty payable in respect of the instrument.

(4) 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.

(5) If further duty is payable, liability for the further duty arises when a notice of assessment is issued, despite any other provision of this Act.

(6) 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.

s 49: Am 2004 No 96, Sch 2 [3]; 2010 No 46, Sch 1.3 [2]; 2017 No 11, Sch 1 [10].

49A

Purchases “off the plan”

49A Purchases “off the plan”

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

(a) on completion of the agreement, or

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

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

whichever first occurs.

(1A) This section applies in relation to an off the plan purchase agreement only if the Chief Commissioner is satisfied, when assessing liability for duty after the agreement is lodged for stamping, that the purchaser or transferee under the agreement (or, if there is more than one purchaser or transferee, at least one of them) intends to use and occupy the residence to which the agreement relates as a principal place of residence in accordance with the residence requirement.

(1B) The residence must be used and occupied by the purchaser or transferee (or, if there is more than one purchaser or transferee, at least one of them) as the purchaser or transferee’s principal place of residence for a continuous period of at least 12 months, with occupation commencing no later than 12 months (or such longer period as the Chief Commissioner may approve) after completion of the agreement for the sale or transfer. This requirement is referred to as the residence requirement.

(1C) If the residence requirement is not complied with in relation to the residence, this section is taken never to have applied in relation to the off the plan purchase agreement, including for the purposes of the Taxation Administration Act 1996.

(1D) The residence requirement does not apply to a purchaser or transferee if, on the date of the agreement or transfer—

(a) the purchaser or transferee or, if there are 2 or more of them, at least 1 of the purchasers or transferees is a member of the Permanent Forces of the Australian Defence Force within the meaning of the Defence Act 1903 of the Commonwealth, and

(b) the purchaser or transferee or, if there are 2 or more of them, each of the purchasers or transferees is enrolled to vote in State elections under the Electoral Act 2017.

(2) This section applies despite section 12.

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

(3A) This section does not apply in relation to an off the plan purchase agreement if any purchaser or transferee under the agreement is a foreign person (within the meaning of Chapter 2A).

(4) In this section—

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

s 49A: Ins 1998 No 104, Sch 2 [10]. Subst 1999 No 60, Sch 2 [2]. Am 2016 No 32, Sch 1 [10]; 2017 No 33, Sch 3 [1]; 2022 No 16, Sch 1[7]–[9]; 2023 No 4, Sch 1[1].

Cancelled agreements

50 Cancelled agreements

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

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

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

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

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

(a) 5 years of the initial assessment, or

(b) 12 months after the agreement is cancelled,

whichever is the later.

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

s 50: Am 2003 No 80, Sch 1 [8] [9].

50A

Cancelled transfers of dutiable property

50A Cancelled transfers of dutiable property

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

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

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

(c) (Repealed)

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

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

(4) In this section, cancelled includes abandoned.

s 50A: Ins 2002 No 108, Sch 1 [5]. Am 2006 No 51, Sch 1 [2]; 2017 No 11, Sch 1 [11].

Transfers arising from mortgages of land under Real Property Act 1900

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

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

(2) If the Chief Commissioner is satisfied that—

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

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

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

(3) In this section—

ad valorem duty means ad valorem duty under this Chapter.

s 51: Am 2016 No 32, Sch 1 [11].

Possessory applications

52 Possessory applications

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

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

Applications to bring land under Real Property Act 1900

53 Applications to bring land under Real Property Act 1900

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

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

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

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

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

(c) duty of $100 in any other case.

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

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

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

s 53: Am 2008 No 122, Sch 1.2 [5]; 2016 No 32, Sch 1 [6]; 2023 No 26, Sch 1[1].

53A

Duty on lease premiums

53A Duty on lease premiums

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

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

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

s 53A: Ins 2006 No 49, Sch 1 [10].

53B

Land under Help to Buy arrangement

53B Land under Help to Buy arrangement

(1) For the purposes of assessing liability for duty on a transfer of, or an agreement for the sale or transfer of, land purchased under a Help to Buy arrangement, no account is to be taken of an interest the Commonwealth or Housing Australia has in the land.

(2) In this section—

Help to Buy arrangement has the same meaning as in the Help to Buy Act 2024 of the Commonwealth.

Housing Australia has the same meaning as in the Housing Australia Act 2018 of the Commonwealth.

s 53B: Ins 2025 No 31, Sch 1.1[1].

Part 6

Concessional rates of duty

Part 6 Concessional rates of duty

Change in trustees

54 Change in trustees

(1) In this section—

dutiable trust property means dutiable property that is trust property.

licensed trustee company means a licensed trustee company within the meaning of Chapter 5D of the Corporations Act 2001 of the Commonwealth.

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

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

special trustee means—

(a) a licensed trustee company in its capacity as trustee or administrator of a deceased estate, and

(b) the trustee of a complying superannuation fund, within the meaning of section 42 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, in its capacity as trustee of that fund.

(2) Duty of $100 is chargeable in respect of a transfer of dutiable trust property to a special trustee as a consequence of the retirement of a trustee or the appointment of a new trustee.

(2A) Duty of $100 is chargeable in respect of a transfer of dutiable trust property to any of the following as a consequence of the retirement of a trustee or the appointment of a new trustee if the Chief Commissioner is satisfied that the transfer is not part of a scheme to avoid duty that involves conferring an interest, in relation to the dutiable trust property, on a new trustee or any other person (whether or not as a beneficiary) so as to cause any person to cease holding the whole or any part of a beneficial interest (or potential beneficial interest) in that property—

(a) a licensed trustee company that is not a special trustee,

(b) a trustee of a self managed superannuation fund,

(c) a trustee of a special disability trust.

(3) Duty of $100 is chargeable in respect of a transfer of dutiable trust property to a person (other than to a licensed trustee company, a special trustee, a trustee of a self managed superannuation fund or a trustee of a special disability trust) as a consequence of the retirement of a trustee or the appointment of a new trustee if the Chief Commissioner is satisfied that, as the case may be—

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

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

(c) the transfer is not part of a scheme to avoid duty that involves conferring an interest, in relation to the dutiable trust property, on a new trustee or any other person (whether or not as a beneficiary) so as to cause any person to cease holding the whole or any part of a beneficial interest (or potential beneficial interest) in that property.

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

(3A) Duty of $100 is chargeable in respect of a transfer of dutiable trust property as a consequence of the retirement of a responsible entity of a managed investment scheme or the appointment of a new responsible entity of a managed investment scheme if the Chief Commissioner is satisfied that the only beneficial interest acquired by a person in relation to the dutiable trust property as a result of the transfer is a beneficial interest acquired by the replacement or new responsible entity solely because of its appointment as responsible entity for the scheme.

(3B) Duty of $100 is chargeable in respect of a vesting of land in New South Wales by, or expressly authorised by, statute law (as referred to in section 8 (1) (b) (vii)) in a person or responsible entity if the Chief Commissioner is satisfied that subsection (2), (2A), (3) or (3A) would apply in respect of the dutiable transaction if it were a transfer of dutiable property.

(4) Duty of $100 is chargeable in respect of a transfer of dutiable trust property to a responsible entity if the Chief Commissioner is satisfied that the transfer is necessary to enable an undertaking that existed before the commencement of Chapter 5C of the Corporations Law to become a registered scheme within the meaning of Division 11 of Part 11.2 of the Corporations Law (as continued in effect by section 1408 of the Corporations Act 2001 of the Commonwealth).

s 54: Am 1998 No 44, Sch 1 [9]; 1998 No 63, Sch 1 [1] [2]; 1998 No 104, Sch 2 [11]; 1999 No 10, Sch 2 [1]–[3]; 2000 No 51, Sch 2 [1]; 2001 No 34, Sch 4.14 [2] [3]; 2005 No 51, Sch 1 [6]; 2008 No 122, Sch 1.2 [5]; 2009 No 49, Sch 2.22; 2009 No 51, Sch 1.5 [10]; 2009 No 109, Sch 2.2 [1] [2]; 2010 No 46, Sch 1.3 [3]–[6]; 2010 No 118, Sch 1 [1]; 2014 No 19, Sch 1 [1]; 2017 No 11, Sch 1 [12]–[15]; 2023 No 26, Sch 1[1].

54A

Transfers in relation to managed investment schemes

54A Transfers in relation to managed investment schemes

(1) Duty of $500 is chargeable in respect of a transfer of dutiable property from—

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

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

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

(2) Duty of $500 is chargeable in respect of a transfer of dutiable property from the custodian of the responsible entity of a managed investment scheme to the responsible entity.

(3) Duty of $500 is chargeable in respect of a vesting of land in New South Wales by statute law (as referred to in section 8 (1) (b) (vii)) in a responsible entity if the Chief Commissioner is satisfied that subsection (2) would apply in respect of the dutiable transaction if it were a transfer of dutiable property.

(4) Duty of $500 is chargeable in respect of a transfer of dutiable property from the sub-custodian of a custodian of the responsible entity of a managed investment scheme to the custodian of the responsible entity of the managed investment scheme.

(5) Duty of $500 is chargeable in respect of a transfer of dutiable property from a trustee of a wholly owned sub-trust of a managed investment scheme to a custodian of the trustee of that wholly owned sub-trust.

(6) Duty of $500 is chargeable in respect of a transfer of dutiable property from a custodian of the trustee of a wholly owned sub-trust of a managed investment scheme to that trustee.

(7) Duty of $500 is chargeable for a transfer of dutiable property arising from the deregistration of a managed investment scheme from the custodian of a trustee that was, immediately before the deregistration, the responsible entity of the scheme, to the trustee.

(8) In this section, a reference to a wholly owned sub-trust of a managed investment scheme includes—

(a) a sub-trust that is part of a chain of sub-trusts—

(i) that starts with a wholly owned sub-trust of a managed investment scheme, and

(ii) in which a link in the chain is formed if the sub-trust wholly owns the next sub-trust in the chain, and

(b) a sub-trust in which all of the units are owned, in any combination, by—

(i) the managed investment scheme, and

(ii) 1 or more other wholly owned sub-trusts of the managed investment scheme.

Example for paragraph (b)—

Managed Investment Scheme A owns 100% of the units in Sub-trust B. Managed Investment Scheme A owns 80% of the units in Sub-trust C. Sub-trust B owns the remaining 20% of units in Sub-trust C. Sub-trust C is a wholly owned sub-trust of Managed Investment Scheme A.

(9) A sub-trust is taken to be a wholly owned sub-trust of a managed investment scheme or sub-trust (the controlling trust) if—

(a) the units in the sub-trust are wholly owned by the trustee of the controlling trust in the trustee’s capacity as trustee of the controlling trust, or

(b) for a wholly owned sub-trust referred to in subsection (8)(b)—the units in the sub-trust owned by the trustee of any of the controlling trusts are owned by the trustee in the trustee’s capacity as trustee of the controlling trust.

Example for paragraph (b)—

Managed Investment Scheme A owns 100% of the units in Sub-trust B. Managed Investment Scheme A owns 80% of the units in Sub-trust C. The trustee of Sub-trust B owns the remaining 20% of units in Sub-trust C in the trustee’s capacity as trustee for Sub-trust B. Sub-trust C is taken to be a wholly owned sub-trust of both Managed Investment Scheme A and Sub-trust B.

s 54A: Ins 1998 No 104, Sch 2 [12]. Subst 1999 No 10, Sch 2 [4]. Am 2001 No 34, Sch 4.14 [4]; 2005 No 51, Sch 1 [7]; 2008 No 122, Sch 1.2 [5]; 2009 No 51, Sch 1.5 [11]; 2012 No 76, Sch 1 [5]; 2023 No 18, Sch 1[5]; 2023 No 26, Sch 1[3].

54B

Transfers in relation to corporate collective investment vehicles

54B Transfers in relation to corporate collective investment vehicles

(1) This section applies to dutiable property over which a CCIV is taken to be a trustee because of section 5A.

(2) Duty of $500 is chargeable for the transfer of dutiable property between a CCIV and a custodian or agent of the CCIV.

(3) Duty of $500 is chargeable for the transfer of dutiable property from a sub-custodian of a custodian of the CCIV to the custodian.

(4) Duty of $500 is chargeable for the declaration of trust over dutiable property—

(a) by a custodian of a CCIV, or

(b) by a sub-custodian of a custodian of a CCIV.

s 54B: Ins 2024 No 90, Sch 1[3].

Property vested in an apparent purchaser

55 Property vested in an apparent purchaser

(1) Duty of $100 is chargeable in respect of—

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

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

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

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

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

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

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

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

Note.

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

(1C) This section applies to the legal personal representative of an apparent purchaser or real purchaser who has died in the same way as it applies to an apparent purchaser or real purchaser.

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

s 55: Am 2006 No 51, Sch 1 [3] [4]; 2008 No 122, Sch 1.2 [5]; 2023 No 18, Sch 1[6]; 2023 No 26, Sch 1[1].

Transfers back from a nominee

56 Transfers back from a nominee

(1) If—

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

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

the duty chargeable on the transfer of the dutiable property back to the transferor is $100.

(2) If duty of $100 has been paid on a transfer under subsection (1), the initial transfer to the trustee is also chargeable with duty of $100. The Chief Commissioner must reassess the initial transfer and refund any duty paid in excess of $100 if an application for a refund is made within—

(a) 5 years after the initial assessment, or

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

whichever is the later.

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

s 56: Am 1998 No 54, Sch 2.10 [2]; 2008 No 122, Sch 1.2 [5]; 2023 No 26, Sch 1[1].

56A

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

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

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

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

s 56A: Ins 1999 No 60, Sch 2 [3].

Property passing to beneficiaries

57 Property passing to beneficiaries

(1) Duty of $100 is chargeable in respect of a transfer for no consideration of dutiable property to a beneficiary made under and in conformity with the trusts contained in a declaration of trust, subject to subsections (2) and (3).

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

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

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

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

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

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

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

s 57: Am 1999 No 10, Sch 2 [5]; 2008 No 122, Sch 1.2 [5]; 2016 No 32, Sch 1 [12]; 2023 No 26, Sch 1[1].

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

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

(1) Duty of $750 is chargeable in respect of an instrument executed in New South Wales that declares a trust over New South Wales property none of which is dutiable property.

(2) Duty of $750 is chargeable in respect of an instrument executed in New South Wales that declares that property, although not identified in the instrument, when vested in the person executing the instrument is to be held in trust for a person or persons or a purpose or purposes mentioned in the instrument.

(2A) For subsections (1) and (2), an instrument that is electronically signed under the Electronic Transactions Act 2000 is taken to have been executed in New South Wales if—

(a) for a trustee of the trust that is a corporation—the trustee’s registered office or principal place of business is in New South Wales, or

(b) for a trustee of the trust that has an ABN—the trustee’s registered business address is in New South Wales, or

(c) otherwise—the principal place of residence of the trustee of the trust is in New South Wales.

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

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

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

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

(7) In this section—

ABN means the ABN (Australian Business Number) within the meaning of the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth.

s 58: Am 2000 No 44, Sch 2 [15]; 2008 No 122, Sch 1.2 [6]; 2012 No 76, Sch 1 [6]; 2023 No 18, Sch 1[7] [8]; 2023 No 26, Sch 1[4].

Instrument relating to managed investment scheme

59 Instrument relating to managed investment scheme

(1) Duty of $500 is chargeable in respect of an instrument that effects or evidences a dutiable transaction and which—

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

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

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

(2) Duty of $500 is chargeable in respect of a declaration of trust—

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

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

s 59: Subst 1998 No 63, Sch 1 [3]. Am 1998 No 104, Sch 2 [13] [14]; 1999 No 10, Sch 2 [6]; 2006 No 87, Sch 1 [4] (am 2006 No 120, Sch 2.91); 2008 No 122, Sch 1.2 [5]; 2023 No 26, Sch 1[3].

59A

Nomineeing transactions—unquoted marketable securities

59A Nomineeing transactions—unquoted marketable securities

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

(a) the beneficial owner,

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

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

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

but only if—

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

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

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

s 59A: Ins 2000 No 44, Sch 2 [16]. Am 2008 No 122, Sch 1.2 [5].

59B

Change in custodians

59B Change in custodians

Duty of $100 is chargeable in respect of a transfer of dutiable property by a custodian of the trustee of a trust to another custodian of the trustee of the trust if—

(a) there is no change in the beneficial ownership of the dutiable property, and

(b) the transferee is to hold the dutiable property solely for a trustee as trustee of the trust and there is no contemplation of the dutiable property being held for any other person or being held in any other capacity, and

(c) the dutiable property was held by the transferor solely for a trustee as trustee of the trust and, since the time when the dutiable property was first transferred to the transferor, no person has held the dutiable property otherwise than solely for a trustee as trustee of the trust.

s 59B: Ins 2010 No 46, Sch 1.3 [7]. Am 2010 No 118, Sch 1 [2]; 2023 No 26, Sch 1[1].

Instruments relating to superannuation

60 Instruments relating to superannuation

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

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

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

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

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

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

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

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

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

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

s 60: Am 2001 No 39, Sch 2 [1].

Transfers of property in connection with persons changing superannuation funds

61 Transfers of property in connection with persons changing superannuation funds

(1) This section applies to a relevant transfer that occurs in connection with a person—

(a) ceasing to be a member of, or otherwise ceasing to be entitled to benefits in respect of, a superannuation fund that is a complying superannuation fund or was a complying superannuation fund within the period of 12 months before the transfer was made, and

(b) being or becoming a member of, or otherwise being or becoming entitled to benefits in respect of, another superannuation fund that is also a complying superannuation fund or will, in the opinion of the trustees of both funds concerned, be a complying superannuation fund within 12 months after the transfer is made.

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

(a) a transfer of, or an agreement to transfer, dutiable property from a trustee of a superannuation fund, or a custodian of the trustee, to the trustee of another superannuation fund, or to a custodian of the trustee of another superannuation fund,

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

(c) a transfer of, or an agreement to transfer, marketable securities from a trustee of a pooled superannuation trust, made in exchange for a redemption of units in the trust, to the trustee of a superannuation fund, or a custodian of the trustee of a superannuation fund,

(c1) a transfer of, or an agreement to transfer, marketable securities from the trustee of a superannuation fund, or a custodian of the trustee of a superannuation fund, made in exchange for the issue of units in a pooled superannuation trust, to a trustee of the pooled superannuation trust,

(d) a transfer of, or an agreement to transfer, marketable securities from a life company or custodian for a life company to the trustee of a superannuation fund or a custodian of the trustee of a superannuation fund if the transfer is made in consideration of the surrender or termination, by the trustee of the superannuation fund of which the person has ceased to be a member, of a policy of life insurance issued by the life company,

(e) a transfer of, or an agreement to transfer, marketable securities from the trustee of a superannuation fund or a custodian of the trustee of a superannuation fund to a life company or custodian for a life company if the transfer is made in consideration of the issue, by the life company, of a policy of life insurance to the trustee of the superannuation fund of which the person has become a member.

(1B) This section does not apply to a relevant transfer if—

(a) the dutiable property transferred, or agreed to be transferred, has a value that is more than the value of the benefits to which the person is entitled—

(i) at the time of the transfer or agreement to transfer, and

(ii) in respect of the superannuation fund for which the person ceases to be entitled to benefits, or

(b) consideration is given for dutiable property transferred or agreed to be transferred except as provided in subsection (1A)(d) and (e).

(1C) For subsection (1B)(b), an undertaking by the trustee of a superannuation fund to provide rights and benefits to a person in accordance with the rules of the superannuation fund is not consideration.

(2) The duty chargeable on a relevant transfer to which this section applies is ad valorem duty in accordance with this Chapter or $750, whichever is the lesser.

(2A) This section applies despite section 18 (2) and (3).

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

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

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

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

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

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

(4) The Chief Commissioner may require further information.

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

s 61: Am 1998 No 44, Sch 1 [10]; 2005 No 111, Sch 1 [1]–[3]; 2008 No 122, Sch 1.2 [7]; 2010 No 46, Sch 1.3 [8]; 2010 No 118, Sch 1 [3]–[6]; 2011 No 50, Sch 1 [1]; 2017 No 25, Sch 2.4 [1]; 2023 No 18, Sch 1[9] [10]; 2023 No 26, Sch 1[4].

Transfers between trustees and custodians of superannuation funds or trusts

62 Transfers between trustees and custodians of superannuation funds or trusts

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

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

(i) a complying superannuation fund, or

(ii) a pooled superannuation trust, or

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

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

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

(i) a complying superannuation fund, or

(ii) a pooled superannuation trust, or

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

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

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

(i) a complying superannuation fund, or

(ii) a pooled superannuation trust, or

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

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

(2) (Repealed)

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

(a) except as provided by paragraph (b), ad valorem duty in accordance with this Chapter or $750, whichever is the lesser, or

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

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

s 62: Am 1998 No 104, Sch 2 [15]; 2001 No 22, Sch 1 [2] [3]; 2008 No 122, Sch 1.2 [8] [9]; 2023 No 26, Sch 1[4].

62A

Transfers to self managed superannuation funds

62A Transfers to self managed superannuation funds

(1) Duty of $750 is chargeable on a transfer of, or an agreement to transfer, dutiable property from a member or members of a self managed superannuation fund to the trustee or custodian of the trustee of the self managed superannuation fund but only if—

(a) there are no other members of the superannuation fund (besides the member or members transferring or agreeing to transfer the property) or the dutiable property is segregated from other fund property, and

(b) the property is to be used solely for the purpose of providing a retirement benefit to the member or members transferring or agreeing to transfer the property, and

(c) if there is more than one member transferring or agreeing to transfer the property, the property is to be used for the benefit of those members in the same proportions as it was held by them before the transfer or agreement to transfer.

(2) Dutiable property is segregated from other fund property if—

(a) the property is held specifically for the benefit of the member or members transferring or agreeing to transfer the dutiable property, as fund members, and

(b) the property (or proceeds of sale of the property) cannot be pooled with property held for any other member of the superannuation fund (besides the member or members transferring or agreeing to transfer the property), and

(c) no other member of the superannuation fund (besides the member or members transferring or agreeing to transfer the property) can obtain an interest in the property (or the proceeds of sale of the property).

(3) This section does not apply to a transfer of, or agreement to transfer, dutiable property held by a member of a self managed superannuation fund in a trustee capacity.

(3A) (Repealed)

(4) This section does not apply in respect of a transfer of, or an agreement to transfer, dutiable property if, as a result of the transfer, the superannuation fund will cease to be a complying superannuation fund.

(5) A superannuation fund that has not been confirmed as a complying superannuation fund may be treated as a complying superannuation fund for the purposes of this section only if the trustee is satisfied, at the time a liability for duty arises, that the fund will be confirmed as a complying superannuation fund.

(6) A superannuation fund is confirmed as a complying superannuation fund when the Regulator first gives a notice to the trustee under section 40 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth stating that the fund is a complying superannuation fund.

(7) The Chief Commissioner may assess or reassess the duty chargeable in respect of a transfer or agreement to transfer if the Chief Commissioner is not satisfied that the superannuation fund was a complying superannuation fund at the time the liability for duty arose.

s 62A: Ins 2010 No 46, Sch 1.3 [9]. Am 2010 No 118, Sch 1 [7]; 2012 No 20, Sch 1 [2]–[5]; 2014 No 56, Sch 1 [6]; 2023 No 26, Sch 1[4].

62B

Declaration of trust by custodian

62B Declaration of trust by custodian

(1) Duty of $750 is chargeable on a declaration of trust made by a custodian of the trustee of a self managed superannuation fund that dutiable property is or is to be held in trust for the trustee of the self managed superannuation fund if—

(a) the declaration of trust names the self managed superannuation fund, and

(b) ad valorem duty under this Chapter has been paid on the acquisition of the property by the custodian or the trustee of the fund or section 62A applied to that acquisition, and

(c) the Chief Commissioner is satisfied that the consideration for the acquisition of the dutiable property was or will be provided by the trustee of the self managed superannuation fund.

(2) This section applies whether or not there has been a change in the legal description of the dutiable property between the acquisition of the property by the custodian or trustee and the declaration of trust.

Note.

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

(3) This section applies despite sections 55 and 65 (10).

s 62B: Ins 2014 No 56, Sch 1 [7]. Am 2016 No 32, Sch 1 [6]; 2023 No 26, Sch 1[4].

Deceased estates

63 Deceased estates

(1) Duty of $100 is chargeable in respect of—

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

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

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

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

(b) (Repealed)

(c) a transmission application by a devisee who is also the sole legal personal representative, and

(d) a declaration by an executor of a will under section 11 of the Trustee Act 1925 if the Chief Commissioner is satisfied that the declaration is consistent with the entitlements of beneficiaries under the trusts contained in the will.

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

(2A) A transmission application made by a beneficiary under a will, with the consent of the legal personal representative of a deceased person, is taken, for the purposes of this section, to be a transfer of dutiable property by the legal personal representative to the beneficiary.

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

(4) If the duty chargeable in respect of a transfer or transmission application referred to in subsection (1) would, but for that subsection, be less than $100, the duty chargeable is that lesser amount.

(5) This section is subject to section 273, which provides for a minimum duty of $20.

s 63: Am 2008 No 67, Sch 1 [6]–[9]; 2008 No 122, Sch 1.2 [10]; 2009 No 51, Sch 1.5 [12]; 2010 No 46, Sch 1.3 [10]; 2012 No 20, Sch 1 [6]–[9]; 2023 No 26, Sch 1[1] [2].

Conversion of land use entitlement to different form of title

64 Conversion of land use entitlement to different form of title

The duty chargeable on the transfer of a lot in a freehold strata scheme within the meaning of the Strata Schemes Development Act 2015 or a lot in a deposited plan is $100 if—

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

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

(c) one of the following applies—

(i) ad valorem duty under this Chapter or Chapter 3 was paid on the transaction by which the land use entitlement was acquired by the transferee,

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

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

(iv) no duty was chargeable on the acquisition of the land use entitlement by the transferee because of section 78A or 78AA (which relate to the First Home Buyers Assistance scheme).

s 64: Am 2000 No 51, Sch 2 [2]. Subst 2002 No 108, Sch 1 [6]. Am 2008 No 67, Sch 1 [10]; 2008 No 122, Sch 1.2 [10]; 2009 No 51, Sch 1.1 [1]; 2011 No 43, Sch 1 [1]; 2015 No 51, Sch 9.7 [1]; 2016 No 32, Sch 1 [13]; 2017 No 33, Sch 1.1 [1]; 2020 No 19, Sch 1[1]; 2023 No 26, Sch 1[1].

64AA

Enlargement of the term in land into fee simple

64AA Enlargement of the term in land into fee simple

The duty chargeable on the enlargement of a term in land into a fee simple under section 134 of the Conveyancing Act 1919 is $100 if—

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

(b) one of the following applies—

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

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

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

s 64AA: Ins 2008 No 67, Sch 1 [11]. Am 2008 No 122, Sch 1.2 [10]; 2016 No 32, Sch 1 [6]; 2023 No 26, Sch 1[1].

64A

Amalgamation of Western Lands leases

64A Amalgamation of Western Lands leases

(1) This section applies to the transfer of, or an agreement to transfer, a Western lands lease (within the meaning of Schedule 3 to the Crown Land Management Act 2016), being a lease for a purpose specified in an order of the Governor made for the purposes of this section and published in the Gazette.

Editorial note.

For orders published under this section see Gazette No 92 of 13.8.1999, p 5743. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.

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

(a) the transferee has transferred another Western lands lease within 3 years before the dutiable transaction, and

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

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

s 64A: Ins 1999 No 10, Sch 2 [7]. Am 2017 No 17, Sch 4.23 [1] [2].

64B

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

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

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

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

s 64B: Ins 2000 No 44, Sch 2 [17].

64C

Transfers made in partial conformity with agreements

64C Transfers made in partial conformity with agreements

(1) The duty chargeable in respect of a transfer of dutiable property is to be calculated in accordance with this section if—

(a) the transfer is made in partial conformity with an agreement for transfer or sale of the dutiable property, and

(b) the duty chargeable in respect of the agreement has been paid.

(2) A transfer is made in partial conformity with an agreement for transfer or sale if the transfer conforms with the agreement, apart from the fact that a share in the dutiable property transferred to one or more of the transferees under the transfer exceeds the share agreed to be transferred to the relevant transferee under the agreement.

(3) Duty is to be charged only on the excess proportion of the dutiable value of the dutiable property transferred.

(4) The excess proportion is the proportion, or the total of the proportions, by which the share or shares in the dutiable property transferred to each transferee exceed the share or shares in the dutiable property (if any) agreed to be transferred to each transferee.

(5) If a share in dutiable property is transferred to a transferee who was not a transferee under the agreement for transfer or sale, this section applies as if the share agreed to be transferred to that transferee is nil.

(6) This section does not apply if section 18 (3) applies in respect of the transfer.

Note.

Example 1: An agreement provides for the transfer of dutiable property to 3 purchasers as equal tenants in common. Accordingly, the share of the dutiable property agreed to be transferred to each purchaser is one-third each. When the property is transferred, it is transferred to only 2 of the purchasers so that each purchaser acquires a one-half share. The shares transferred exceed the shares agreed to be transferred. That is, each purchaser has acquired a one-half share in the property instead of a one-third share. The excess proportion is the total of the proportions by which the shares transferred to the transferees exceed the shares agreed to be transferred. The total of (one-half minus one-third) and (one-half minus one-third) is one-third. Duty is charged on one-third of the dutiable value of the property transferred.

Example 2: An agreement provides for the transfer of dutiable property to 2 purchasers as equal tenants in common. Accordingly, the share of the dutiable property agreed to be transferred to each purchaser is one-half each. When the property is transferred, it is transferred to 3 transferees so that each transferee acquires a one-third share. The 2 one-third shares transferred to the original purchasers under the agreement do not exceed the shares agreed to be transferred. The excess proportion is the proportion by which the share transferred to the new transferee (one-third) exceeds the share agreed to be transferred (nil). Duty is charged on one-third of the dutiable value of the property transferred.

s 64C: Ins 2012 No 20, Sch 1 [10].

64D

Transfers made on exercise of option to purchase land

64D Transfers made on exercise of option to purchase land

The duty chargeable in respect of a transfer of land in New South Wales that occurs as a consequence of the exercise of an option to purchase land is to be reduced by the amount of duty (if any) paid by the transferee on the transfer of the option to the transferee.

s 64D: Ins 2014 No 56, Sch 1 [8].

Part 7

Exemptions

Part 7 Exemptions

More sections below

Source text: opening excerpt

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