New South Wales Consolidated Acts

DUTIES ACT 1997 - SECT 8

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.

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.