DUTIES ACT 1997

New South Wales Consolidated Acts

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- As at 16 October 2024
- Act 123 of 1997

TABLE OF PROVISIONS

Long Title

CHAPTER 1 - PRELIMINARY

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

CHAPTER 2 - TRANSACTIONS CONCERNING DUTIABLE PROPERTY

PART 1 - INTRODUCTION AND OVERVIEW

8. Imposition of duty on certain transactions concerning dutiable property
8AA. Imposition of duty on acknowledgment of trust
8A. Vesting of land in New South Wales by statute law
9. Imposition of duty on dutiable transactions that are not transfers
9A. Transfer of partnership interest occurring on change in partnership arrangements
9B. Transfer of option occurring on nomination or other change
9C. Novation of agreement for lease
10. Form of dutiable transaction is immaterial
11. What is "dutiable property"?
12. When does a liability for duty arise?
13. Who is liable to pay the duty?
14. The liability of joint tenants
15. Necessity for instrument or written statement
16. Lodging instrument or written statement with Chief Commissioner
16A. Lodging purchaser's declaration with Chief Commissioner
17. When must duty be paid?
18. No double duty
18A. Land subject to property tax
19. What is the rate of duty?
20. Concessions and exemptions from duty

PART 2 - DUTIABLE VALUE

21. What is the "dutiable value" of dutiable property?
22. What is the consideration for the transfer of dutiable property?
23. What is the "unencumbered value" of dutiable property?
24. Interests, agreements and arrangements that reduce the dutiable value
25. Aggregation of dutiable transactions
26. Certain transactions concerning goods and other property
26A. (Repealed)
27. Apportionment--dutiable property and other property
28. Apportionment--business assets in this and other jurisdictions
29. Partnership interests
30. Partitions
31. Effect of alteration in purchase price

PART 3 - RATES OF DUTY

Division 1 - Preliminary

32AA. Definitions

Division 2 - Rates of duty

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

Division 3 - Indexation of amounts

33AB. Interpretation
33AC. Adjustable amounts
33AD. Base amounts
33AE. References to adjustable amounts and base amounts
33AF. Publication of adjusted amounts

PART 4 - ABOLITION OF VARIOUS DUTIES

33B. (Repealed)
34. Abolition of duty on transfers of marketable securities and commercial fishery shares
35. Abolition of duty on transfers of business assets
36. Abolition of duty on transfers of statutory licences or permissions and gaming machine entitlements
37. Anti-avoidance measures
38-48A. (Repealed)

PART 5 - SPECIAL PROVISIONS

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

PART 6 - CONCESSIONAL RATES OF DUTY

Division 1 - Trusts

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

Division 2 - Superannuation

60. Instruments relating to superannuation
61. Transfers of property in connection with persons changing superannuation funds
62. Transfers between trustees and custodians of superannuation funds or trusts
62A. Transfers to self managed superannuation funds
62B. Declaration of trust by custodian

Division 3 - Miscellaneous

63. Deceased estates
64. Conversion of land use entitlement to different form of title
64AA. Enlargement of the term in land into fee simple
64A. Amalgamation of Western Lands leases
64B. Reduction of duty on transfer of marketable securities--payment in non-Australian jurisdiction
64C. Transfers made in partial conformity with agreements
64D. Transfers made on exercise of option to purchase land

PART 7 - EXEMPTIONS

65. Exemptions from duty
66. Exemptions--marketable securities
67. (Repealed)
68. Exemptions--break-up of marriages and other relationships

PART 8 - OTHER EXEMPTIONS AND CONCESSIONS

Division 1 - First Home Buyers Assistance Scheme

69. The nature of the scheme
70. Commencement
71. Restrictions on eligibility--previous ownership of residential property or first home concession
72. (Repealed)
73. Ineligible persons
73A. Application of eligibility criteria to joint purchasers and transferees
74. Eligible agreements or transfers
74A. Application of scheme to multiple occupancy contracts
75. Ineligible agreements and transfers
76. Residence requirement
76A. Approval of application in advance of satisfaction of residence requirement
77. (Repealed)
78. Making of applications
78A. Duty payable if application approved
78AA. Duty payable on certain agreements and transfers entered into during year commencing 1 August 2020
78B. Special concession for shared equity arrangements
79. Reassessment of duty payable where duty concession wrongly applied
80. Charge on land for duty liability of applicant
80AA. (Renumbered)
80A. Definitions

Division 1A - New Home Grant Scheme

81. Object of scheme
82. Grant payable under scheme
83. Types of agreements or transfers that are eligible
84. Relevant dates for eligibility
85. Restrictions on eligibility
85A. Maximum of one eligible transaction per financial year
85B. Grant not available to foreign nationals
86. Agreement or transfer must be completed
87. Cap on dutiable value of transaction
87A. Making of applications
87B. Application may be approved in advance
87C. Method by which new home grant is to be paid
87D. Recovery of grant amount wrongly paid
87E. Charge on land for duty liability of applicant
87F. Standing appropriation
87G. Definitions
87H-87J. (Repealed)
Divisions 1B, 2

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

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

Division 4 - Transfers between married couples and de facto partners

104A. Meaning of "residential land"
104B. Exemption--transfer of residential land
104C. Concession--transfer of land used as principal place of residence and for other purposes

Division 5 - Concession for persons who have transferred property affected by loose-fill asbestos insulation to State

104D. Definitions
104E. Concession
104F. Application

CHAPTER 2A - DUTY CHARGED ON CERTAIN RESIDENTIAL LAND TRANSACTIONS INVOLVING FOREIGN PERSONS

PART 1 - PRELIMINARY

104G. Introduction and overview
104H. Application of Chapter 2
104I. Definitions
104J. Meanings of "foreign person" and "foreign trustee"
104JA. Special provisions for discretionary trusts
104K. Meaning of "residential-related property"
104L. Transactions on which surcharge purchaser duty is charged
104M. Vesting of land in New South Wales by statute law
104N. Imposition of surcharge purchaser duty on transactions that are not transfers
104O. Other transactions taken to be transfers
104P. What form must a surcharge duty transaction take?
104Q. When does a liability for duty arise?
104R. Who is liable to pay surcharge purchaser duty?
104S. Liability for surcharge purchaser duty on certain trust-related transactions
104T. Property purchased by apparent purchaser
104U. Charging of duty at relevant rate
104V. The liability of joint tenants
104W. When must surcharge purchaser duty be paid?
104X. No double surcharge purchaser duty
104Y. Change in proportion of share transferred to foreign persons

PART 2 - DUTIABLE VALUE

104Z. What is the "dutiable value" of residential-related property?
104ZA. What is the "dutiable value" of a partnership interest?
104ZB. Reduction of dutiable value of land used for non-residential purposes
104ZC. Transfer of property subject to a statutory trust to a beneficial owner
104ZD. Deceased estates where trusts under will are varied

PART 3 - REFUNDS AND SPECIAL PROVISIONS

104ZE. Cancelled agreements and transfers
104ZF. Refund if property transferred to persons who are no longer foreign on transfer
104ZG. Transfers back from a nominee
104ZH. Break-up of marriages, de facto relationships or domestic relationships
104ZI. Possessory applications
104ZJ. Applications to bring land under Real Property Act 1900
104ZJA. Certain development by Australian-based developers that are foreign persons
104ZJB. Exemption for certain build-to-rent properties transferred to foreign persons

PART 4 - EXEMPTIONS AND CONCESSIONS

104ZK. Transactions exempt from ad valorem duty under Chapter 2
104ZKA. Exemption for certain permanent residents in respect of principal place of residence
104ZKB. Exemption for retirement visa holders in respect of principal place of residence
104ZL. Change in trustees
104ZM. Reduction of duty on transactions involving apparent purchasers
104ZN. Exemption for property passing to beneficiaries
104ZO. Reduction of duty on transfers made on exercise of option to purchase land

PART 5 - STAMPING AND ENFORCEMENT

104ZP. Definition of "purchaser duty"
104ZQ. Stamping and endorsement of surcharge duty transactions
104ZR. Stamping of surcharge duty transactions not chargeable with duty
104ZS. Interim payment of duty
104ZT. Duplicates or counterparts

CHAPTER 3 - CERTAIN TRANSACTIONS TREATED AS TRANSFERS

PART 1 - PRELIMINARY

105. Introduction and overview

PART 2 - TRANSACTIONS INVOLVING PUT AND CALL OPTIONS

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

PART 3 - ENTITLEMENTS ARISING FROM CAPITAL REDUCTIONS OR RIGHTS ALTERATIONS

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

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

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

PART 4A - ACQUISITION BY FOREIGN PERSON OF LAND USE ENTITLEMENT TO WHICH PART 4 APPLIES

137AA. Meaning of "residential land use entitlement"
137AB. When does a liability for duty arise?
137AC. Who is liable to pay the duty?
137AD. Assessment of duty
137AE. Application of Part 4

PART 5 - ALLOTMENT OF SHARES BY DIRECTION

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

CHAPTER 4 - ACQUISITION OF INTERESTS IN LANDHOLDERS

PART 1 - PRELIMINARY

145. Overview
146. Meaning of "landholder"
146A. (Repealed)
147. What are the "land holdings" of a landholder?
147A. What does "land" include?

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

Division 1 - Charging of duty

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

Division 2 - Registration of wholesale unit trust schemes

157AA. Definitions
157AB. Qualified investors
157AC. Wholesale unit trust schemes
157AD. Registration of scheme by Chief Commissioner
157AE. Length of registration
157AF. Cancellation of registration
157AG. Disqualifying circumstances
157AH. Consequences of disqualifying circumstance

PART 2A - CHARGING OF DUTY ON ACQUISITIONS MADE BY TRUSTEES

157A. Application of Part
157B. Beneficial owner--meaning
157C. Beneficial owners liable for duty on acquisitions in landholders

PART 2B - CHARGING OF SURCHARGE DUTY ON ACQUISITIONS MADE BY FOREIGN PERSONS

157D. Meaning of "residential land holding"
157E. Circumstances in which surcharge duty is chargeable
157F. Relationship with Part 2
157G. Who is liable to pay the duty?
157H. How duty is charged on relevant acquisitions by foreign persons

PART 3 - GENERAL PRINCIPLES TO BE APPLIED UNDER THIS CHAPTER

158. Meaning of "linked entity"
158A. Constructive ownership of land holdings and other property through linked entities
159. Constructive ownership of land holdings and other property: discretionary trusts
159A. Inclusion of land holdings recently transferred or agreed to be transferred
160. Agreements for sale or transfer of land
161. Agreements for sale or issue of shares or units in landholder
162. Valuation of property
163. Maximisation of entitlements on distribution of property

PART 4 - EXEMPTIONS AND CONCESSIONS

163A. General exemptions
163B. Exemption--break-up of marriages and other relationships
163C. (Repealed)
163D. Concession for primary producers--continuation of land rich requirement
163E. Concession for acquisitions securing financial accommodation
163F. Concession for redemption and re-issue arrangements
163FA. Concession for acquisitions in connection with persons changing superannuation funds
163G. Significant holdings in goods
163H. Discretion to grant exemption or concession

PART 5 - INTERPRETATION

163I. Meaning of expressions used in this Chapter
163J. (Repealed)
163K. Goods of a landholder
163L. Meaning of "unit trust scheme"

CHAPTERS 4A-6 - (Repealed)
None

CHAPTER 7 - MORTGAGES

PART 1 - INTRODUCTION AND OVERVIEW

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

PART 2 - CALCULATING THE AMOUNT SECURED BY A MORTGAGE

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

PART 3 - DUTY CONCESSIONS

218D. Concession for advances charged with duty under corresponding Acts
219. Additional advances of not more than $10,000 in 12 months
220. Refinancing of loans
221. (Repealed)

PART 3A - EXEMPTIONS FOR MORTGAGES ASSOCIATED WITH HOUSING

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

PART 4 - OTHER EXEMPTIONS

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

PART 5 - MISCELLANEOUS

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

CHAPTER 8 - INSURANCE

PART 1 - GENERAL INSURANCE

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

PART 2 - LIFE INSURANCE

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

PART 3 - HOW IS DUTY PAID BY AN INSURER?

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

PART 4 - APPORTIONMENT

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

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

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

258. Apportionment between different types of insurance

PART 5 - EXEMPT INSURANCE

259. What insurance is exempt from duty?

PART 5A - EXEMPTIONS FOR SMALL BUSINESS

259A. Meaning of "small business"
259B. Exemptions for small business
259C. Insurer to obtain small business declaration
259D. Liability of insured person for wrongly claiming exemption

PART 6 - MISCELLANEOUS

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

CHAPTER 9 - MOTOR VEHICLE REGISTRATION

PART 1 - INTRODUCTION AND OVERVIEW

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

PART 2 - CIRCUMSTANCES IN WHICH DUTY NOT CHARGEABLE

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

PART 3 - MISCELLANEOUS EXEMPTIONS AND REDUCTIONS

270. Exemptions for motor dealers
270A. Reduction in dutiable value--modified vehicles for people with disabilities
270B. Exemption for caravans
270C. Exemption for heavy vehicle trailers
270D. (Repealed)

CHAPTER 10 - MISCELLANEOUS DUTIES

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

CHAPTER 11 - GENERAL EXEMPTIONS AND CONCESSIONS

PART 1 - CORPORATE RECONSTRUCTIONS AND CONSOLIDATIONS

273A. Definitions
273B. Reduction in duty for corporate reconstruction and corporate consolidation transactions
273BA. (Repealed)
273C. Corporate reconstruction transaction
273D. Corporate consolidation transaction
273E. Meaning of "corporate group"
273F. Applications for approval for reduction in duty

PART 2 - OTHER EXEMPTIONS

274. Transfer of certain business property between family members
275. Charitable and benevolent bodies
275A. Partial exemption for certain transactions by charitable and benevolent bodies
276. Public hospitals
277. Councils, county councils and joint organisations
278. Department of Housing and Aboriginal Housing Office tenants
279. Specialised agencies
280. Aboriginal land councils
280A. Registered native title body corporates
281. Approved shared equity schemes
282. Mortgage-backed securities
283. Instruments issued for the purpose of creating, issuing or marketing mortgage-backed securities
284. Asset-backed securities
284A. Joint government enterprise--water savings projects
284B. Restructuring of unit trust for land tax purposes
284BA. MySuper transitional arrangements

CHAPTER 11A - (Repealed)
None

CHAPTER 12 - MISCELLANEOUS

PART 1 - STAMPING INSTRUMENTS

285. Provision of stamps
286. Limitation on use of designated stamps
287. Form of stamps to be used
288. Stamping of instruments
288A. (Repealed)
289. When is an instrument duly stamped?
289A. Stamping by means of endorsement
290. Special procedures for electronic registry instruments
291-292. (Repealed)
293. Reassessments--failed instruments
294. Instruments to be separately charged with duty in certain cases
295. Execution of instruments
296. Stamping of instruments after execution
297. Stamping taken to constitute assessment
298. Deferred payments for certain stamped instruments
299. Copies of instruments
300. Calculation of time

PART 2 - ENFORCEMENT

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

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

309. Liability to duty in respect of certain housing schemes

PART 4 - HARDSHIP REVIEW BOARD

310. Functions of Hardship Review Board
311. Notation by Chief Commissioner in cases of waiver

PART 5 - MISCELLANEOUS

312. Disclosures of information in connection with ELN transactions
313. Regulations
314. Savings, transitional and other provisions
315. Duty exemption relating to Sydney Desalination Plant
316. Repeal of Educational Institutions (Stamp Duties Exemption) Act 1961 No 37
317. Review of amendments by State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022
SCHEDULE 1
SCHEDULE 2
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