Duties Act 2001

The Act affects:

• Property buyers and sellers: every buyer of Queensland land must assess and pay transfer duty. The obligation falls on the transferee under s. 17.
• Developers and investors: transactions involving land-holding entities, trusts, and partnerships attract landholder duty, corporate trustee duty, or trust acquisition duty under Chapter 2, Part 8.
• Foreign investors and migrants: foreign persons acquiring Queensland residential land pay AFAD in addition to standard transfer duty under Chapter 4.
• Businesses and corporate groups: transfers of Queensland business assets are dutiable; corporate reconstructions within a group can seek exemption under Chapter 10 (ss 397–410).
• Insurers: insurers writing general, life, or accident insurance in Queensland must register under Chapter 12 (s. 437) and pay insurance duty on premiums.
• Trustees and trust beneficiaries: trust acquisitions and trust surrenders are dutiable under Chapter 2, Part 8, with specific rules for public unit trusts (Chapter 2, Part 8, Division 7).
• Partners: partnership acquisitions and certain other dutiable transactions involving partnership property are subject to duty under Chapter 2, Part 7.
• Mortgagors and mortgagees: historically subject to mortgage duty under Chapter 5; most home mortgages now exempt or attracted reduced rates under the concession regime.
• Self-assessors: certain taxpayers (typically institutions and large volume lodgers) can register under Chapter 12 to assess duty themselves without pre-approval from the Commissioner.

Transfer duty: lodgement and payment:

• s. 18: A person who is liable to pay transfer duty on a dutiable transaction must make a statement in the approved form (a transfer duty statement) within the time stated in s. 19 for lodging the statement. Maximum penalty: 40 penalty units.
• s. 19: Lodgement of the instrument, ELN transaction document, or statement within the required period (typically 30 days of the liability date or as specified).

Landholder duty:

• Chapter 3, Part 1, Division 7 (Enforcement): persons acquiring a relevant interest in a landholder must lodge a statement and pay duty.

AFAD:

• Chapter 4: foreign acquirers must lodge a statement and pay AFAD in addition to transfer duty, at the time of the relevant transaction.

Insurance duty:

• Insurers registered under Chapter 12 must lodge returns and pay insurance duty on premiums received.

Corporate trustee duty:

• Chapter 3, Part 2: corporate trustees must assess and pay corporate trustee duty on relevant acquisitions.

Record-keeping:

• The Commissioner has broad power to require information and documents under the Act's review and audit provisions.

Commissioner of State Revenue:

• Power to assess, reassess, and amend assessments of duty across all chapters.
• Power to refund overpayments.
• Power to approve or refuse applications for concessions and exemptions.
• Chapter 13: Power to review assessments and decisions; decisions reviewable before the Queensland Civil and Administrative Tribunal (QCAT) or equivalent.
• Power to register insurers and self-assessors under Chapter 12, and to deregister or impose conditions on registration.
• Power to demand information and documents from taxpayers and third parties.
• Power to issue default assessments where a person fails to lodge a required statement.

Self-assessors:

• Registered self-assessors have authority to assess duty on transactions within their registered categories without pre-approval, subject to audit and reassessment.

Failure to lodge statement (s. 18):

• Maximum penalty: 40 penalty units for failure to lodge a transfer duty statement in the required form within the required time.

General penalty provisions:

• Interest accrues on unpaid duty from the due date.
• Penalties for late payment and failure to pay apply across all duty types.
• The Commissioner may apply penalty tax where a person has understated or failed to pay duty.

Constitutional validation provisions:

• Section 688: contains a complex curative provision dealing with AFAD purportedly imposed on transactions between 1 January 2018 and 8 April 2024 that was invalid due to inconsistency with international tax agreements under the International Tax Agreements Act 1953 (Cth), s. 5(1), which gives the agreement the force of law. The provision deems the AFAD to have been validly imposed and the associated rights and liabilities to have arisen at the same time as they would have arisen if the duty had been valid.

Transfer duty:

1. Dutiable transaction occurs (e.g., contract for sale of land executed).
2. Liability date established.
3. Transfer duty statement lodged and duty assessed within the required period (generally 30 days of the liability event, though specific periods vary by transaction type under s. 19).
4. Commissioner may audit and reassess within the permitted period.
5. Objection and review rights under Chapter 13.

Concessions for homes:

• Parts 9 of Chapter 2 (ss 85 and following): applicant must satisfy the conditions for home concession, first home concession, or new home concession. Applications made at the time of lodging the transfer duty statement.
• Division 3 of Part 9: specifies the conditions for each category of concession (home, first home, first home and new home, vacant land for first home).

Corporate reconstruction exemptions (Chapter 10):

• Chapter 10, Part 1: exemption application is made to the Commissioner (ss 397–410). The Commissioner must be satisfied that the transaction is part of a genuine corporate reconstruction (s. 398). Exemptions can be granted subject to conditions, and clawback provisions apply if the reconstruction conditions are not maintained.

Landholder duty:

• Chapter 3, Part 1, Division 3: liability arises on the acquisition date. Statement must be lodged and duty paid within the required period.
• Division 6: reassessment provisions apply where additional acquisitions later cause a person to cross the relevant threshold.

Reviews:

• Chapter 13: a person may object to an assessment. Reviews by the Commissioner, followed by appeal to QCAT or the court, are available.

• Commonwealth Places (Mirror Taxes) Act 1998 (Cth): s. 2 provides that ss 306(2), 342(2), and 497 commence when an arrangement under s. 9 of that Commonwealth Act is made for Queensland. This connects the Act's application in Commonwealth places to a federal arrangement.
• International Tax Agreements Act 1953 (Cth): s. 688 deals with the constitutional invalidity of AFAD imposed in inconsistency with international tax agreements given force of law under s. 5(1) of that Act. The provision retroactively validates the duty imposed on those transactions.
• Commonwealth Constitution, s. 109: AFAD provisions were affected by inconsistency with Commonwealth law under s. 109 where Queensland legislation conflicted with applicable international tax agreements. Section 688 is the statutory response.
• Acts Interpretation Act 1954 (Qld): the definition of "spouse" in Schedule 6 applies despite s. 32DA(6) of the Acts Interpretation Act 1954 (s. 3(2)).
• Taxation Administration Act 2001 (Qld): the duty regime under the Act is administered alongside the general taxation administration framework, including the Commissioner's general powers, penalties, interest, and review rights.
• Land Title Act 1994 (Qld): transfer of Queensland land title is linked to the duty payment obligation; registrars generally cannot register a transfer without evidence of duty assessment and payment.

Dutiable transactions are broader than land transfers:

Many practitioners focus on the land transfer limb of the dutiable transaction definition, but the Act also imposes duty on agreements for transfer (even conditional ones), vestings, surrenders, and certain rights. A conditional contract for the sale of land is dutiable on execution, not on completion.

Landholder duty can catch corporate and trust restructures:

Chapter 3 targets acquisitions of interests in entities that hold Queensland land. A share or unit transfer in a private company or unit trust that owns Queensland land above the threshold is a dutiable landholder acquisition, even though the underlying land itself has not been transferred. Practitioners restructuring entities with Queensland land assets must assess landholder duty, not just transfer duty.

The home concession has occupancy and use conditions:

Part 9 concessions for homes (ss 85 onwards) require the acquirer to use the property as their home within the specified period and to continue to reside there. Failure to satisfy the occupancy conditions can result in the concession being cancelled and full duty becoming payable, with interest.

AFAD applies to foreign persons in additional ways:

Chapter 4's AFAD is imposed on top of standard transfer duty on residential land acquired by foreign persons. The definition of "foreign person" can catch Australian companies with majority foreign ownership. The 2024 validation provisions in s. 688 address a period where certain AFAD was invalidly imposed.

Self-assessors remain subject to audit:

Registration as a self-assessor under Chapter 12 does not exempt an entity from audit and reassessment by the Commissioner. It is a compliance mechanism, not an immunity. Reassessment can occur within the relevant limitation period.

Section 487 (and related provisions) affect trusts and undivided interests:

Section 487 contains provisions about references to dutiable property that affect how interests in property held by trusts or in partnership are characterised. This section was in issue in George v Fletcher [2010] FCAFC 53 in the context of property held on trust in a bankruptcy.

Example 1: Residential property purchase

A buyer purchases a house in Brisbane for $800,000. The dutiable transaction is the agreement for the transfer of land in Queensland (s. 9). The dutiable value is the greater of the contract price and the unencumbered market value. Transfer duty is assessed at the marginal rates in Schedule 3. If the buyer is purchasing as their principal place of residence (home concession under Part 9), a reduced duty rate or concession may apply. The statement must be lodged and duty paid within the period specified in s. 19.

Example 2: First home buyer

A first home buyer purchases a new house and land package in Queensland under the first home concession and new home concession provisions in Chapter 2, Part 9, Division 3. They must satisfy the conditions set out in the relevant provisions, including an intention to occupy the property as their home within the required period. If the conditions are met, the duty payable is significantly reduced or eliminated. If they fail to occupy within the required period, the Commissioner can reassess and claw back the concession.

Example 3: Corporate group restructure

A parent company transfers Queensland business assets (including Queensland land worth $50 million) to a wholly owned subsidiary as part of an internal group restructure. The transfer is a dutiable transaction (transfer of dutiable property). The group seeks an exemption under Chapter 10, Part 1. To qualify, the transaction must be part of a genuine corporate reconstruction (s. 398), the subsidiary must remain within the group for the required post-completion period, and the Commissioner must be satisfied that the conditions are met. If the subsidiary is subsequently sold out of the group within the clawback period, the exemption may be cancelled and full duty becomes payable.

Example 4: Landholder acquisition

An investor acquires 50% of the units in a private unit trust that holds Queensland land valued at $10 million. This is a relevant acquisition in a landholder under Chapter 3, Part 1. Landholder duty is assessed on the unencumbered value of the acquirer's proportionate interest in the trust's Queensland land. The investor must lodge a statement and pay duty within the required period. If the investor has previously acquired units that, together with this acquisition, take the total interest to or above the threshold, a reassessment may occur under Division 6.

Example 5: Insurance duty

A general insurer writes home and contents policies in Queensland. The insurer must register under Chapter 12 (s. 437). Insurance duty is imposed on the premiums charged for the general insurance policies under Chapter 8 (s. 349). The insurer lodges periodic returns and pays the duty. The rate and base of duty depend on the type of insurance (general, life, or accident) and any applicable apportionment rules under Chapter 8, Part 4.