New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 10 (1) (r))
(1) In this Schedule--
"principal place of residence exemption" --see clause 2.
"residential land" --see clause 3.
"strata lot" means a lot under the Strata Schemes Development Act 2015 .
"taxing date" --means midnight on the thirty-first day of December.
(2) For the purposes of this Schedule, a reference to the owner of land includes, if there are joint owners, any one or more of those joint owners.
(1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing 1 January 2005 or any succeeding year, if the land is--(a) a parcel of residential land, or(b) a strata lot or, subject to this Schedule, land comprised of 2 or more strata lots.
(2) Land is not used and occupied as the principal place of residence of a person unless--(a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or(b) in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person's principal place of residence.
(3) If the owner of land is entitled to the exemption conferred by this Schedule, no other person is liable to be assessed for taxation under this Act in respect of the land during the period of the owner's entitlement to the exemption.
(4) The exemption conferred by this Schedule is referred to as the
"principal place of residence exemption" .
(5) The principal place of residence exemption is subject to the restrictions set out in Part 4.
(1) In this Schedule,
"residential land" means land that is used and occupied for residential purposes and for no other purpose, that use and occupation being use and occupation of a building or buildings designed, constructed or adapted for residential purposes, other than a building or buildings--(a) comprised of strata lots or residential units, or(b) containing (out of the total of all rooms in the building or buildings) occupancies other than that of the owner, or(c) from any part of which income is derived.
(2) Land does not cease to be used and occupied as provided by subclause (1) by reason of there being on that land any building or improvement that is used or occupied for a purpose ancillary to the purposes for which the building is, or the buildings are, designed, constructed or adapted.
Note--: Clause 4 allows one residential occupancy to be disregarded in applying the principal place of residence exemption. Clause 5 allows the use of land for purposes ancillary to a business conducted at a different place to be disregarded in certain circumstances.
(1) For the purposes of the principal place of residence exemption, if a building or buildings used or occupied for residential purposes contains or contain a residential occupancy other than that of the owner, the use of the building or buildings for the purpose of that residential occupancy may be disregarded if--(a) the residential occupancy is an excluded residential occupancy, and(b) the building contains or buildings contain (out of a total of all rooms in the building or buildings) not more than one of those excluded residential occupancies (not including the occupancy of the owner).
(2) For the purposes of this clause, each of the following residential occupancies is an
"excluded residential occupancy" --(a) one room,(b) one suite of rooms (not being a flat) each room of which all occupants of the suite are entitled to occupy,(c) one flat,(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,(e) one flat and one room,(f) 2 rooms, each of which is separately occupied.
(3) Accordingly, land does not cease to be residential land because there is on the land one, but not more than one, such excluded residential occupancy, even if income is derived from the residential occupancy.
(4) If land is comprised of 2 or more lots or strata lots, the excluded residential occupancy must be located on a lot or strata lot that is also used and occupied by the owner of the land for residential purposes.
(1) For the purposes of the principal place of residence exemption, if land owned by a person is used and occupied by the owner primarily for residential purposes but not more than one room is used primarily for business purposes, the use of the land for the purpose of the business may be disregarded if the business is primarily conducted elsewhere.
(2) Accordingly, land does not cease to be residential land because of the use of one room primarily for business purposes, even if income is derived from the use of the land for that purpose.
(3) Nothing in this clause affects, or is affected by, clause 3.
(1) An owner of unoccupied land is entitled to claim the land as the owner's principal place of residence if the owner intends to use and occupy the land solely as the owner's principal place of residence. In such a case, the owner is taken, for the purpose of the principal place of residence exemption, to use and occupy the unoccupied land as the owner's principal place of residence.Note--: It is an offence under section 55 of the Taxation Administration Act 1996 to make a statement to a tax officer, or give information to a tax officer, orally or in writing, knowing that it is false or misleading in a material particular.
(2) This clause does not apply unless--(a) the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate the owner's intended use and occupation of the land as a principal place of residence, and(b) if those building or other works have physically commenced on the land, no income has been derived from the use and occupation of the land since that commencement, and(c) the intended use and occupation of the land is not unlawful.
(3) This clause applies in respect of the assessment of a person's ownership of land only in the period of--(a) 4 tax years immediately following the year in which the person became owner of the land, or(b) if, after the person became owner and before the building or other works physically commence, the land is used and occupied for residential purposes by another person--4 tax years immediately following the tax year in which the other person ceases to use and occupy the land for those purposes.
(4) Without limiting subclause (3) (a)--(a) this clause does not apply in respect of the assessment of a person's ownership of land in a period referred to in subclause (3) (b) unless the Chief Commissioner is satisfied that, by the end of the first of the 4 tax years concerned--(i) the building or other works will be, or have been, physically commenced, or(ii) significant steps will be, or have been, taken to enable those works to physically commence, and(b) if the building or other works are not physically commenced by the end of that tax year (or the Chief Commissioner is not satisfied that, by the end of that tax year, significant steps have been taken to enable those works to physically commence)--(i) the principal place of residence exemption applying by operation of this clause to the land is taken not to have applied to the land in respect of that tax year (unless subclause (3) (a) applied to the assessment in that tax year), and(ii) land tax liability is to be assessed or reassessed accordingly.
(5) If the principal place of residence exemption applies by operation of this clause to land not actually used and occupied by a person as the person's principal place of residence on a taxing date, that exemption is revoked if the person fails to actually use and occupy the land as the person's principal place of residence by the end of the period in which this clause applies in respect of the assessment of the person's ownership of the land and to continue to so use and occupy the land for at least 6 months.
(6) The effect of the revocation is that the principal place of residence exemption is taken not to have applied to the land in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly.
(6A) For the purposes of section 9 (3) (c) of the Taxation Administration Act 1996 , any reassessment under this clause is authorised to be made more than 5 years after the initial assessment.
(7) This clause does not apply in respect of land owned by a person if--(a) the person or any member of the person's family (within the meaning of clause 12) is entitled to have the person's or member's actual use and occupation of other land taken into account under section 9C or 9D or under this Schedule, or(b) the person owns land outside New South Wales that is the principal place of residence of the person or a member of the person's family (within the meaning of clause 12), or(c) the land, or the land if combined with any adjoining land of which the person is an owner, is capable of having more than 2 residences or residential units lawfully built on it.
(7A) The Chief Commissioner may extend the period of 4 tax years in subclause (3)(a) or (b) to a period of up to 6 tax years if the Chief Commissioner is satisfied--(a) there has been a delay in the completion of the building or other works necessary to facilitate the owner's intended use and occupation of the land as a principal place of residence, and(b) the delay is due primarily to exceptional circumstances beyond the control of the owner, and(c) the delay could not reasonably have been avoided by the owner.
(7B) The Treasurer may, for the purposes of subclause (7A), approve guidelines by publishing the guidelines in the Gazette.
(7C) The Chief Commissioner must, when making a decision under subclause (7A), consider any guidelines approved under subclause (7B).
(8) For the purposes of this clause--
"unoccupied land" means land that is not being used or occupied for any purpose.
(1) If the Chief Commissioner is satisfied that, on a taxing date (
"the relevant taxing date" )--(a) a person is the owner of land (
"the former residence" ) that was the principal place of residence of the person on the relevant taxing date or was the principal place of residence of the person on the preceding taxing date, and(b) the person is the owner of other land (both the former residence and the new residence are taken, for the purpose of the principal place of residence exemption, to be used and occupied by the person as the person's principal place of residence on the relevant taxing date.
"the new residence" ) that is being or is intended to be used and occupied by the person as the person's principal place of residence,
(2) This clause applies in respect of land owned by a person only if the Chief Commissioner is satisfied that--(a) the former residence has not been used or occupied except as the person's principal place of residence, and no income has been derived from the use or occupation of the residence, since the preceding 1 July, except--(i) income derived from an excluded residential occupancy (within the meaning of clause 4), or(ii) income derived under a lease or licence entered into by the purchaser under a contract for the sale of the former residence for a period pending completion of the sale, and(b) the person became the owner of the new residence within the period of 6 months before the relevant taxing date, and(c) since the person became owner of the new residence the new residence has not been used or occupied except--(i) as the person's principal place of residence, or(ii) by a tenant under a lease entered into by the previous owner.
(3) The principal place of residence exemption cannot be claimed for both a former residence and a new residence under this clause for more than one taxing date.
(3A) A principal place of residence exemption that applies, by operation of this clause, to land not actually used and occupied by a person at the relevant taxing date is revoked if the person is not actually using and occupying the new residence as the person's principal place of residence by the next taxing date immediately following the relevant taxing date.
(4) The effect of the revocation is that the principal place of residence exemption is taken not to have applied in respect of the tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly.
(1) A person is taken, for the purpose of the principal place of residence exemption, to continue to use and occupy land formerly used and occupied by the person as a principal place of residence (a
"former residence" ), after the person ceases to so use and occupy the former residence, if the Chief Commissioner is satisfied that--(a) the person used and occupied the former residence as a principal place of residence for a continuous period of at least 6 months, and(b) the person does not own any other land used and occupied by the person as a principal place of residence.
(2) The maximum period for which a person may be taken, under this clause, to continue to use and occupy a former residence as a principal place of residence is 6 years starting at the end of the last period (of at least 6 months) during which the former residence was used and occupied by the person as a principal place of residence (not including any period for which the person may be taken, under clause 7 or this clause, to have used and occupied the former residence as a principal place of residence).
(3) If the principal place of residence exemption applies to the former residence of a person by operation of this clause, the exemption ceases to have effect if the person is the owner of the former residence at the end of the 6-year period referred to in subclause (2) and fails--(a) to resume actual use and occupation of the residence as a principal place of residence by the end of that period, and(b) to continue that use and occupation for at least 6 months.
(3A) The principal place of residence exemption also ceases to have effect if the land ceases to be capable of being used and occupied as a residence and remains incapable of being so used and occupied for a period exceeding 4 years.
(4) Any period during which a person is in full time care is not to be counted toward the maximum period referred to in subclause (2). Accordingly, a person who is in full time care may continue to be taken to use and occupy the person's former residence as the person's principal place of residence during any period in which he or she is in full time care.
(5) For the purposes of this clause, a person is in
"full time care" during any period in which the person--(a) resides at a hospital or mental hospital as a patient of the hospital, or(b) resides at an aged care establishment (within the meaning of section 10R) while being provided with residential care, or respite care, or(c) resides with another person (a
"carer" ) who is eligible for a carer payment under the Social Security Act 1991 of the Commonwealth because the carer provides care to the person.
(6) This clause applies in respect of the assessment of a person's ownership of land in a tax year only if the Chief Commissioner is satisfied that no income has been derived from the use or occupation of the former residence in the preceding tax year, except as permitted by subclause (7).
(7) Income may be derived from the use or occupation of the former residence in a tax year if--(a) the income is derived from a lease, licence or other arrangement under which a person has a right to occupy the former residence and the period for which any such right of occupation is conferred does not exceed a continuous period of 6 months, or a total period of 182 days, in the tax year, or(b) the income is derived from any arrangement under which a person occupies the former residence, but the income is no more than is reasonably required to cover council, water and energy rates and charges and maintenance costs of the owner in respect of the residence.
(7A) For the purposes of subclause (7), each overnight stay counts as one day.
(8) This clause is subject to clause 12 (which limits members of a family to one principal place of residence exemption).
(9) In this clause--
"hospital" means an institution at which relief is given to sick or injured people through the provision of care or treatment.
"mental hospital" means an institution conducted principally for the treatment of mentally ill persons, and includes a hospital within the meaning of the Mental Health Act 1990 .
(1) If, immediately before the death of a person, the person was an owner of land and used and occupied the land as the person's principal place of residence, liability for land tax in respect of the land is to be assessed as if the person had not died and had continued to so use and occupy the land.
(2) Subclause (1) operates only until whichever of the following happens first--(a) a period of 2 years expires after the date of the deceased person's death,(b) the land is transferred to any person (other than the deceased person's personal representative, or a beneficiary of the deceased person's estate).
(3) The Chief Commissioner may extend (and further extend) the period of 2 years referred to in subclause (2) (a) if--(a) the land has not been leased to any person since the date of the deceased person's death, and(b) the land has not been transferred to any person (other than the deceased person's personal representative), and(c) the Chief Commissioner is satisfied that--(i) a person is using and occupying the land as the person's principal place of residence, and(ii) that person is likely to be a person in whom the deceased's interest in the land vests pursuant to the administration of the deceased's estate.
(4) Such an extension or further extension by the Chief Commissioner can only be granted in writing and can be withdrawn by the Chief Commissioner at any time by notice in writing given to the deceased's personal representative.
(5) For the purposes of this section, if the deceased is a registered proprietor under the Real Property Act 1900 in respect of the deceased's interest in the land, the deceased's interest in the land is taken to vest in another person when that other person is registered as the proprietor of that interest under that Act.
(1) For the purposes of the principal place of residence exemption, if the owner of land dies and the land is used and occupied as the principal place of residence of--(a) a person using and occupying the land under a right of occupancy created by the will of that owner, or(b) a person (other than a tenant) who resided with that owner immediately before the owner's death and who continues to use and occupy the land with the permission of the deceased person's personal representative, or of any other person, granted under a power or right conferred by the will of that owner or with the permission of any other person to whom the land is transferred following that death,then the person who so uses and occupies the land is taken to be the owner of the land, but only while that use and occupation continues.
(2) A person who is taken to be the owner of land under this clause is taken to be the owner to the exclusion of any company that owns the land in its capacity as the deceased person's personal representative.
(1) The principal place of residence exemption extends to land used and occupied as the principal place of residence of a natural person who owns the land, even if the land is jointly owned by a disqualified person, if--(a) the agreement or transfer under which the land was acquired by the natural person was eligible under a first home owner's duty concession scheme for a shared equity concession, and(b) an application in respect of the agreement or transfer under the relevant scheme is approved by the Chief Commissioner.
(2) For the purposes of this clause, a
"disqualified person" means--(a) a company, other than a trustee company acting in its representative capacity or a company acting in its capacity as trustee of a concessional trust, or(b) a person who is a trustee acting in the person's capacity as trustee of a special trust.Note--: Under clause 11, the principal place of residence exemption cannot be claimed in respect of land that is jointly owned by a disqualified person except in specified circumstances. This clause provides for a further exception to that general principle.
(3) However, the principal place of residence exemption does not extend to a disqualified person or to the interest of a disqualified person in the land, and clause 2 (3) does not apply to the disqualified person.
(4) Accordingly, a disqualified person who jointly owns the land is liable to be assessed for taxation under this Act in respect of the land, as provided for by section 27, exclusive of the interest of any joint owner who is exempt from taxation under the principal place of residence exemption or under clause 2 (3).
(5) This clause ceases to apply in respect of land, and is taken never to have applied, if the Chief Commissioner revokes the Chief Commissioner's approval under a first home owner's duty concession scheme of the application in respect of the agreement or transfer concerned.
(6) This clause applies despite clause 11.
(7) In this clause--
"first home owner's duty concession scheme" means the First Home Buyers Assistance Scheme under Division 1 of Part 8 of Chapter 2 of the Duties Act 1997 or any of the predecessors to that scheme under that Act.
The principal place of residence exemption extends to land used and occupied as the principal place of residence of a natural person who owns the land, even if the land is jointly owned by any other person, if the land was acquired by the natural person under an approved shared equity scheme (within the meaning of the Duties Act 1997 ).
(1) This clause applies if land owned by one person, or by 2 or more joint owners, is the site of a flat that is used and occupied by the owner, or by one of them, as a principal place of residence, and there is also situated on the land one or more other flats that are used, or adapted for use, as a separate occupation to that of the owner (not being an excluded residential occupancy that may be disregarded under clause 4).
(2) Section 9C applies in respect of the land as if the land were mixed use land.
(3) For the purposes of applying Division 5A of Part 1B of the Valuation of Land Act 1916 to the land, a reference in that Division to that part of the land that is occupied or used for non-residential purposes is to be read as a reference to that part of the land that is adapted for use as a separate occupation to that of the owner (and which is not an excluded residential occupancy that may be disregarded under clause 4).
(4) This clause does not apply to land comprised of one or more strata lots.
(1) Land is not exempt from taxation under the principal place of residence exemption if--(a) the land is owned, or jointly owned, by a company, unless the land is owned or jointly owned by a trustee company acting in its representative capacity or a company acting in its capacity as trustee of a concessional trust, or(b) the owner of the land, or each of the joint owners, who use and occupy the land as a principal place of residence is an owner only by reason of being a trustee, or(c) the land is owned, or jointly owned, by a person who is a trustee acting in the person's capacity as trustee of a special trust.Note--: The expression
"trustee company" (as referred to in subclause (1) (a)) is defined in section 3 (1).
(2) For the purposes of the principal place of residence exemption, land that is owned by a company acting in its capacity as trustee of a concessional trust is taken to be used and occupied as the principal place of residence of the owner of the land only if the person, or one of the persons, who so uses and occupies the land is a person who is a beneficiary of the trust.
(3) For the purposes of this clause, land that is a parcel of residential land or a lot in a freehold strata scheme under the Strata Schemes Development Act 2015 is owned by a company if--(a) the land is owned by a company, or(b) the land is owned on behalf of a company and is land of which a mortgagee or person (by way of security for money) is in possession, or(c) the land is owned by a trustee for or on behalf of a company, or(d) a company is a joint owner of the land with any other person.
(4) For the purposes of this clause, land that is a lot in a leasehold strata scheme under the Strata Schemes Development Act 2015 is owned by a company if--(a) the lot is leased by a company, or(b) the lot is leased on behalf of a company and is land of which a mortgagee or person (by way of security for money) is in possession, or(c) the lot is leased by a trustee for or on behalf of a company, or(d) a company is jointly assessable in respect of the lot with any other person.
(5) For the purposes of this clause, a person is a
"beneficiary" of a trust if the person is a person, or a member of a class of persons--(a) in whose favour, by the terms of the trust, capital or income the subject of the trust may be applied--(i) in the event of the exercise of a power or discretion in favour of the person, or(ii) in the event that a discretion conferred under the trust is not exercised, or(b) entitled or permitted, under the terms of the trust, to use and occupy land that is the subject of the trust.
(5A) To avoid doubt, land that is taken to be owned by more than one person under this Act is taken, for the purposes of this clause, to be jointly owned by them.Note--: See, for example, sections 20 and 25.
(6) This clause does not prevent the principal place of residence exemption applying to land owned by a company if a provision of this Act deems a natural person to be the owner of the land, to the exclusion of the company.
Note--: Section 20 provides for circumstances in which a life tenant is taken to be the owner of land, to the exclusion of another owner (including a company). Section 21A provides that a company title unit is not to be regarded as being owned by the company in which the relevant shares are held. Section 26 provides for circumstances in which a purchaser or vendor of land (including a company purchaser or vendor) is to be regarded as the owner of the land when the purchase is not complete.
See also clause 10 (2).
(1) For the purposes of the principal place of residence exemption, only one place of residence may be treated as the principal place of residence of all members of the same family.
(2) If members of a family own (whether jointly or separately) more than one residence used and occupied by any of them as a principal place of residence, the Chief Commissioner is to treat the one place of residence elected as the principal place of residence of the family as the principal place of residence of all members of the family in respect of a tax year.
(3) Such an election is to be made, by or on behalf of the members of the family, in writing and must be lodged with the Chief Commissioner within the period for the lodging of objections under section 89 of the Taxation Administration Act 1996 .
(4) An election may be made, in respect of a tax year, by the end of the period allowed for the lodging of an objection to a notice of assessment of land tax liability (being an initial assessment of land tax liability) for that tax year.
(5) If an election is not made, the Chief Commissioner is to treat the residence that has the highest land value for land tax purposes as the principal place of residence of all members of the family.
(6) For the purposes of this clause, a
"family" consists of the following--(a) a person and the person's spouse (if any),(b) any dependent child or dependent step-child of the person and the person's spouse (or of either of them) who ordinarily resides with the person or the person's spouse.
(7) A person is the
"spouse" of another person if--(a) they are legally married, or(b) the person is the de facto partner of the other person.
(8) However, if the Chief Commissioner is satisfied that a person--(a) is legally married to or is in a registered relationship or an interstate registered relationship, within the meaning of the Relationships Register Act 2010 , with another person but not cohabiting with that other person, and(b) has no intention of resuming cohabitation with that other person,the person is not to be regarded as the spouse of that other person and if a dependent child or dependent step-child of the person has a joint interest in the principal place of residence of the spouse, that interest is to be disregarded.
(9) A person who is the child or step-child of another person is a
"dependent child" or a
"dependent step-child" if the person is under 18 years of age and is not legally married.
(10) Nothing in this clause prevents more than one residence from being treated as the principal place of residence of members of a family under clause 7 (Concession for change to principal place of residence).
(1) The principal place of residence exemption does not extend to a parcel of residential land that is comprised of 2 or more lots of land, and that is used and occupied by the owner of the lots (or by one of them) as a principal place of residence, unless--(a) the lots are adjoining, and(b) the lots are in the same ownership, and(c) the lots are the site of a single residence (excluding any additional residential occupancy that may be disregarded under clause 4).
(1A) Lots are in the same ownership if--(a) the lots are owned by the same person or, if any of the lots are jointly owned, the lots are all jointly owned by the same persons, or(b) each lot is beneficially owned by the same person or, if any of the lots have more than one beneficial owner, each lot is beneficially owned by the same persons (subject to clause 11).
(2) For the purposes of this clause--(a) separate lots are not to be regarded as adjoining merely because one lot has a single corner point on its boundary that is common to the boundary of another lot, and(a1) separate lots that are divided by a fence, wall or other structure are not to be regarded as adjoining unless access is readily available between the lots, by means of gates, doors, steps, stiles, elevators or openings or by similar means, and(b) separate buildings erected on separate lots are not to be regarded as a single residence if the buildings are separately occupied or capable of being used for separate occupation.
(3) This clause does not apply to land comprised of 2 or more strata lots.
(1) The principal place of residence exemption does not extend to land that is comprised of 2 or more strata lots, and that is used and occupied by the owner of the lots (or by one of them) as a principal place of residence, unless--(a) the strata lots (excluding any ancillary lot) have adjoining walls or floors, and(b) the strata lots are in the same ownership, and(c) the strata lots comprise a single residence (excluding any additional residential occupancy that may be disregarded under clause 4).
(1A) Strata lots are in the same ownership if--(a) the lots are owned by the same person or, if any of the lots are jointly owned, the lots are all jointly owned by the same persons, or(b) each lot is beneficially owned by the same person or, if any of the lots have more than one beneficial owner, each lot is beneficially owned by the same persons (subject to clause 11).
(2) For the purposes of this clause, 2 or more strata lots are not to be regarded as comprising a single residence unless there is internal access between all the strata lots (other than any ancillary lot), such as internal connecting doors or internal staircases.
(3) In this clause--
"ancillary lot" means a strata lot that is used for purposes ancillary to another strata lot and which is not used or adapted for habitation (for example, a garage or storage area).
(1) A person is not entitled to a principal place of residence exemption in relation to land unless all the persons who use and occupy the land as a principal place of residence together own at least a 25% interest in the land.
(2) This clause does not apply to a home buyer who is a participant in a shared equity scheme that is approved by the Chief Commissioner under the Duties Act 1997 , section 281.