2016
2016
2016-06-29
act
government
publicspecial
act.reprint
allinforce
retroactivecommencements
2016-06-21
2016-06-21
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2016-06-29
act-1987-015
2016
none
act-2016-032
cd6ece30-8d83-44b1-a6eb-a435f6605f9e
de304521-9d4a-46ce-8ad0-e863abd5a7e8
Repeal:
The Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 29.6.2016.
An Act to amend State revenue legislation to
implement certain revenue-related measures in the 2016–17 State
budget.
1Name of
Act
This Act is the State Revenue
Legislation Amendment (Budget Measures) Act
2016.
2Commencement
(1)
Schedule 1 is taken to have commenced on 21 June
2016.
(2)
This Act (except Schedule 1) commences on the
date of assent to this Act.
3Explanatory
notes
The matter appearing under the heading
“Explanatory note” in any of the Schedules does not form part of
this Act.
Schedule 1Amendment of Duties Act 1997 No
123
[1]Section 15 Necessity for
written instrument or written statement
Insert “or Chapter 2A” after
“this Chapter” in section 15 (1).
[2]Section 15
(4)
Insert “under this Chapter or Chapter
2A” after “pay duty”.
[3]Section 16 Lodging written
instrument or written statement with Chief Commissioner
Insert “under this Chapter or Chapter
2A” after “duty” in section 16 (1).
[4]Section 16 (1)
(a)
Omit “section 18 (1)”. Insert instead
“sections 18 (1) and 104X (1)”.
[5]Section
16A
Insert after section 16:
16ALodging 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 written instrument or written
statement lodged under section 16 (1).
[6]Sections 18 (4)–(6), 25
(4), 29 (3), 53 (1) (a) (ii), 62B (1) (b), 64AA (b) (i) and 68 (4) (a), (4AA)
(a) and (4A) (a)
Insert “under this Chapter” after
“ad valorem duty” wherever occurring.
[7]Section 18 (6A)
(a)
Insert “under this Chapter” after
“duty”.
[8]Section 30
Partitions
Omit “and 18” from section 30 (2).
Insert instead “, 18 and 104X”.
[9]Sections 32A (3) (c) and 104A
(1) (c)
Omit “confers an entitlement”
wherever occurring.
Insert instead “entitles the holder of the
land use entitlement”.
[10]Section 49A Purchases
“off the plan”
Insert after section 49A (3):
(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).
[11]Section 51 Transfers arising
from mortgages of land under Real Property Act
1900
Insert after section 51 (2):
(3)
In this section:
ad
valorem duty means ad valorem duty under this
Chapter.
[12]Section 57 Property passing to
beneficiaries
Omit “this Act” from section 57 (2)
(a) (i). Insert instead “this Chapter”.
[13]Section 64 (c)
(i)
Insert “under this Chapter or Chapter
3” after “ad valorem duty”.
[14]Chapter
2A
Insert after Chapter 2:
Chapter 2ADuty charged on certain
residential land transactions involving foreign persons
Part 1Preliminary
104GIntroduction and
overview
(1)
This Chapter charges duty on certain dutiable
transactions in respect of residential land that are, or are taken to be,
transfers to foreign persons.
(2)
The duty charged by this Chapter is additional to
any duty charged by Chapter 2.
(3)
The duty charged by this Chapter is referred to
as surcharge
purchaser duty.
104HApplication of Chapter
2
Except as provided by this Chapter or Chapter 2,
Chapter 2 does not apply in relation to duty charged by this
Chapter.
Note—
See, for example, sections 15, 16 and
16A.
104IDefinitions
In this Chapter:
dwelling means a house, or a room or
a suite of rooms (whether or not forming part of a building or a detached
building), that is:
(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.
partnership interest—see
section 104K.
residential land means any of the
following and does not include any land used for primary production:
(a)
a parcel of land on which there are one or more
dwellings, or a parcel of land on which there is a building or buildings under
construction that, when completed, will constitute one or more
dwellings,
(b)
a strata lot, if it is lawfully occupied as a
separate dwelling, or suitable for lawful occupation as a separate
dwelling,
(c)
a utility lot (within the meaning of the Strata Schemes Management Act 2015), if
its use is restricted to the owner or occupier of a strata lot referred to in
paragraph (b),
(d)
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,
(e)
a parcel of vacant land (including any land that
the Chief Commissioner is satisfied is substantially vacant) 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 purposes
or principally for residential purposes.
Note—
Land used
for primary production is defined in the
Dictionary.
residential-related
property—see section 104K.
104JMeanings of “foreign
person” and “foreign trustee”
(1)
In this Chapter:
foreign
person means a person who is a foreign person within the
meaning of the Foreign Acquisitions and Takeovers Act
1975 of the Commonwealth, as modified by this
section.
foreign
trustee means a person who is a foreign person because of
the person’s capacity as the trustee of a
trust.
(2)
The definition of foreign
person in the Foreign Acquisitions and Takeovers Act
1975 of the Commonwealth is modified as follows:
(a)
an Australian citizen is taken to be ordinarily
resident in Australia, whether or not the person is ordinarily resident in
Australia under that definition,
(b)
a New Zealand citizen who holds a special
category visa, within the meaning of section 32 of the Migration Act
1958 of the Commonwealth, at any particular time is taken
at that time to be an individual whose continued presence in Australia is not
subject to any limitation as to time imposed by
law.
Note—
Section 5 of the Foreign Acquisitions and Takeovers Act
1975 of the Commonwealth provides that an individual who
is not an Australian citizen is ordinarily resident in Australia at a
particular time (and is therefore not a foreign person) if and only if:
(a)
the individual has actually been in Australia
during 200 or more days in the period of 12 months immediately preceding that
time, and
(b)
at that time:
(i)
the individual is in Australia and the
individual’s continued presence in Australia is not subject to any
limitation as to time imposed by law, or
(ii)
the individual is not in Australia but,
immediately before the individual’s most recent departure from
Australia, the individual’s continued presence in Australia was not
subject to any limitation as to time imposed by
law.
(3)
For the purposes of charging surcharge purchaser
duty on a surcharge duty transaction, a person is taken to be a foreign person
if the person is a foreign person when a liability for duty charged by Chapter
2 on the transaction arises (or would arise but for section 53A or a
concession or exemption from duty under that Chapter).
Note—
See section 12.
104KMeaning of
“residential-related property”
(cf section 11)
Residential-related property is any
of the following dutiable property:
(a)
residential land in New South
Wales,
(b)
an option to purchase residential land in New
South Wales,
(c)
an interest in any residential-related property
referred to in paragraph (a) or (b), 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
residential-related property, or
(iii)
it is a marketable
security,
(d)
a partnership interest (being an
interest in a partnership that has partnership property that is
residential-related property elsewhere referred to in this
section).
104LTransactions on which
surcharge purchaser duty is charged
(cf section 8)
(1)
Surcharge purchaser duty is chargeable on the
following dutiable transactions:
(a)
a transfer of residential-related property to a
foreign person,
(b)
the following transactions:
(i)
an agreement for the sale or transfer of
residential-related property to a foreign person,
(ii)
a declaration of trust over residential-related
property by a person who, because of the declaration, is a foreign trustee in
respect of the trust,
(iii)
a surrender of an interest in residential land in
New South Wales to a foreign person,
(iv)
a foreclosure of a mortgage over
residential-related property by a mortgagee who is a foreign
person,
(v)
a vesting of residential-related property in a
foreign person 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 residential land
into a fee simple under section 134 of the Conveyancing Act
1919 where the person who acquires the estate in fee
simple (or, if there is more than one such person, at least one of those
persons) is a foreign person,
(vii)
a vesting of residential land in New South Wales
in a foreign person by, or expressly authorised by, statute law of this or
another jurisdiction, whether inside or outside Australia,
(viii)
a lease of residential land to a foreign person,
being a lease in respect of which a premium is paid or agreed to be
paid.
(2)
Such a transfer or transaction is a surcharge
duty transaction for the purposes of this
Act.
Note—
The above listed transfers and transactions are
all also dutiable transactions under Chapter 2. Generally speaking, a
transferee (including a person taken to be a transferee under sections 9 and
104N) who is a foreign person is liable to pay duty on those transactions
under Chapter 2 and under this Chapter.
(3)
A reference in subsection (1) (b) (ii) to a
person who, because of a declaration of trust, is a foreign trustee in respect
of the trust includes a reference to a person who would be a foreign trustee
in respect of the trust if any identified property to be vested in the person
were actually vested in the person when the declaration is
made.
(4)
In this Chapter:
declaration of trust and premium have the same meanings as in
Chapter 2.
Note—
See section 8 for definitions of the above
expressions.
lease or lease of
residential land means a lease of residential land in New
South Wales or an agreement for a lease of residential land in New South
Wales.
transfer includes an assignment and
an exchange.
Note—
See also sections 104N and 104O in relation to
transactions treated as transfers.
104MVesting of land in New South
Wales by statute law
(1)
Section 8A is to be applied, for the purposes of
this Chapter, in determining whether or not residential land is vested in New
South Wales under statute law and in identifying a person in whom residential
land is so vested.
(2)
For those purposes, a reference in section 8A to
section 8 (1) (b) (vii) is taken to include a reference to section 104L (1)
(b) (vii).
104NImposition of surcharge
purchaser duty on transactions that are not transfers
(cf section 9)
(1)
The duty charged by this Chapter on a surcharge
duty transaction referred to in section 104L (1) (b) is to be charged as if
each such surcharge duty transaction were a transfer of residential-related
property.
(2)
Accordingly, for the purpose of charging duty
under this Chapter, in relation to a surcharge duty transaction specified in
Column 1 of the following Table:
(a)
the property specified opposite the surcharge
duty 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 surcharge duty
transaction in Column 3 is taken to be the transferee of the
residential-related property (and a reference in this Act to a transferee
includes a reference to such a person), and
(c)
the transfer of the residential-related property
is taken to have occurred at the time specified opposite the surcharge duty
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
Surcharge
duty transaction
Property
transferred
Transferee
When
transfer occurs
agreement
for sale or transfer
the
property agreed to be sold or transferred
any foreign
person who is a purchaser or transferee
when the
agreement is entered into
declaration
of trust
the
property vested or to be vested in the declarant
any person
declaring the trust who, because of the declaration, is a foreign trustee in
respect of the trust
when the
declaration is made
surrender
the
surrendered property
any foreign
person to whom the property is surrendered
when the
surrender takes place
foreclosure
the
mortgaged property
any foreign
person who is a mortgagee
when the
foreclosure order is made
vesting by
court order
the vested
property
any foreign
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
any foreign
person who acquires the estate in fee simple
when the
term is enlarged
vesting by
statute law
the vested
land in New South Wales
any foreign
person in whom the land is vested
when the
vesting by statute law occurs
lease
the leased
property
any foreign
person who is the lessee
when the
lease is entered into
Note—
See also section 104O and Part 2 of Chapter 3 for
other transactions that are deemed to be transfers of residential-related
property under this Chapter.
104OOther transactions taken to be
transfers
(1)
Sections 9A–9C apply, subject to this
section and to any other necessary modifications, for the purpose of charging
surcharge purchaser duty under this Chapter.
(2)
For that purpose:
(a)
a change in partnership arrangements that is of a
kind referred to in section 9A is taken to be a transfer of a partnership
interest (within the meaning of this Chapter) if the partnership has
partnership property that is residential-related property,
and
(b)
a transaction of a kind referred to in section 9B
in respect of an option to purchase residential land in New South Wales is
taken to be a transfer of an option to purchase residential land,
and
(c)
a transaction of a kind referred to in section 9C
that is a novation of an agreement for the lease of residential land in New
South Wales is taken to be a transfer of residential-related property as
if:
(i)
the lessee’s interest in the agreement were
residential-related property, and
(ii)
the novation of the agreement were a transfer of
that residential-related property.
(3)
Surcharge purchaser duty is chargeable on any
such transfer if any of the persons taken to be transferees by section 9A, 9B
or 9C (as the case may be) are foreign persons.
(4)
To avoid doubt:
(a)
this section does not affect liability for
surcharge purchaser duty on a transfer of a partnership interest that occurs
otherwise than because of a change in partnership arrangements,
and
(b)
a reference in this Act to a transfer of
residential-related property includes a reference to a transaction taken to be
a transfer by this section, and
(c)
a reference in this Act to a surcharge duty
transaction includes a reference to a transaction chargeable with surcharge
purchaser duty under this section, and
(d)
a reference in this Act to residential-related
property includes, in relation to a transfer that is taken to occur under
subsection (2) (c), a reference to a lessee’s interest in an agreement
for the lease of residential land in New South
Wales.
104PWhat form must a surcharge
duty transaction take?
To avoid doubt, section 10 extends to dutiable
transactions that are surcharge duty transactions.
104QWhen does a liability for duty
arise?
(1)
Section 12 applies in respect of surcharge
purchaser duty in the same way as it applies in respect of duty charged by
Chapter 2.
(2)
For that purpose, references in section 12 are to
be read as follows:
(a)
a reference to duty charged by Chapter 2 is to be
read as a reference to surcharge purchaser duty,
(b)
a reference to dutiable property is to be read as
a reference to residential-related property,
(c)
a reference to a dutiable transaction is to be
read as a reference to a surcharge duty
transaction.
104RWho is liable to pay surcharge
purchaser duty?
(cf section 13)
(1)
The person liable to pay surcharge purchaser duty
is the transferee.
(2)
Only transferees who are foreign persons are
liable to pay surcharge purchaser duty.
104SLiability for surcharge
purchaser duty on certain trust-related transactions
(1)
This section applies to a surcharge duty
transaction that is:
(a)
a transfer, or an agreement for the sale or
transfer, of residential-related property where the transferee is acquiring
the residential-related property in a trustee capacity, or
(b)
a declaration of trust over residential-related
property by a person who, because of the declaration, is a foreign trustee in
respect of the trust.
(2)
The transferee is only liable to pay surcharge
purchaser duty on any such surcharge duty transaction if the transferee is a
foreign trustee in respect of the trust.
(3)
In applying the provisions of this Chapter to a
surcharge duty transaction referred to in subsection (1) (a), the transferee
is not to be treated as a foreign person unless the transferee is a foreign
trustee.
Note—
For example, a trustee who is not a foreign
trustee will not be liable for surcharge purchaser duty, even if the trustee
is otherwise a foreign person.
104TProperty purchased by apparent
purchaser
(1)
This section applies to a transfer, or an
agreement for the sale or transfer, of residential-related property if the
Chief Commissioner is satisfied that the transferee is an apparent purchaser
and that the money for the purchase has been or will be provided by the real
purchaser.
(2)
In applying the provisions of this Chapter in
relation to a transfer or agreement to which this section applies:
(a)
the apparent purchaser is taken to be acquiring
the residential-related property in a trustee capacity,
and
(b)
if any of the real purchasers are foreign
persons, the apparent purchaser is taken to be a foreign trustee in respect of
the trust.
(3)
Accordingly, section 104S (3) applies in relation
to the apparent purchaser.
(4)
For the purposes of this section, 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.
(5)
This section applies whether or not there has
been a change in the legal description of the residential-related property
between the purchase of the property by the apparent purchaser and the
transfer to the real purchaser.
Note—
For example, if the residential-related property
is land, this section continues to apply if there is a change in the legal
description of the residential-related property as a consequence of the
subdivision of the land.
104UCharging of duty at relevant
rate
(cf section 19 and Part 3 of Chapter
2)
(1)
Except as otherwise provided by this section,
surcharge purchaser duty is to be charged on the dutiable value of the
residential-related property subject to the surcharge duty transaction at a
rate of 4% of the dutiable value of the residential-related
property.
(2)
If any of the transferees are not foreign
persons, surcharge purchaser duty is to be charged only on the proportion of
the dutiable value of the residential-related property that is the same as the
proportion of the share or shares in that property transferred to foreign
persons.
(3)
If the surcharge duty transaction consists of a
partition and any of the transferees are not foreign persons, surcharge
purchaser duty is to be charged only on the proportion of the dutiable value
of the partition that is the same as the proportion of the share or shares in
the residential land transferred, or agreed to be transferred, to foreign
persons.
(4)
In this section:
partition has the same meaning as in
section 30.
104VThe liability of joint
tenants
(1)
Section 14 applies in respect of surcharge
purchaser duty in the same way as it applies in respect of duty charged by
Chapter 2.
(2)
For that purpose, a reference in section 14 to
duty charged by Chapter 2 is to be read as a reference to surcharge purchaser
duty.
104WWhen must surcharge purchaser
duty be paid?
(cf section 17)
A tax default does not occur for the purposes of
the Taxation Administration Act 1996 if
surcharge purchaser duty is paid within 3 months after the liability to pay
the duty arises.
104XNo double surcharge purchaser
duty
(cf section 18)
(1)
If a surcharge duty transaction is effected by
more than one instrument, one instrument is to be stamped with the surcharge
purchaser duty payable on the surcharge duty transaction and each other
instrument is not chargeable with surcharge purchaser
duty.
(2)
Surcharge purchaser duty is not chargeable on a
transfer of residential-related property made in conformity with an agreement
for the sale or transfer of the residential-related property if:
(a)
surcharge purchaser duty has been paid on the
agreement, and
(b)
no surcharge purchaser duty is chargeable under
section 104Y on the transfer.
(3)
Surcharge purchaser duty is not chargeable on a
transfer of residential-related property that is not made in conformity with
an agreement for the sale or transfer of the residential-related property
if:
(a)
surcharge purchaser duty has been paid on the
agreement, and
(b)
no surcharge purchaser duty is chargeable under
section 104Y on the transfer, and
(c)
the transfer would be in conformity with the
agreement if the transferee was the purchaser under the agreement,
and
(d)
the transfer occurs at the same time as, or
proximately with, the completion or settlement of the agreement,
and
(e)
at the time the agreement was entered into, and
at the completion or settlement of the agreement:
(i)
the purchaser under the agreement and the
transferee under the transfer are related persons, except as provided by
subparagraph (ii), or
(ii)
if the purchaser purchased as a trustee, the
transferee and the beneficiary are related persons.
(4)
Surcharge purchaser duty is not chargeable on a
transfer to a trustee of residential-related property subject to a declaration
of trust if surcharge purchaser duty has been paid on the declaration of trust
in respect of the same residential-related property.
(5)
Surcharge purchaser duty is not chargeable on a
transfer of residential-related property as a consequence of a foreclosure
order if surcharge purchaser duty has been paid on the
foreclosure.
(6)
Surcharge purchaser duty is not chargeable on a
declaration of trust that declares the same trusts as those upon and subject
to which the same residential-related property was transferred to the person
declaring the trust if surcharge purchaser duty has been paid on the
transfer.
(7)
Surcharge purchaser duty is not chargeable on a
declaration of trust if the Chief Commissioner is satisfied that:
(a)
the declaration of trust supersedes another
declaration of trust in respect of which surcharge purchaser duty 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 residential-related 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.
(8)
Despite subsection (1), if a single surcharge
duty 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 surcharge duty transaction.
Note—
See section 290.
104YChange in proportion of share
transferred to foreign persons
(1)
If the share or shares in the residential-related
property agreed to be sold or transferred to foreign persons are less than the
share or shares actually transferred to foreign persons, surcharge purchaser
duty is to be charged on the additional proportion of the share or shares
transferred to foreign persons.
(2)
If the share or shares in the residential-related
property agreed to be sold or transferred to foreign persons exceed the share
or shares actually transferred to foreign persons under the transfer and
surcharge purchaser duty was paid on the agreement:
(a)
surcharge purchaser duty is not chargeable on the
transfer, and
(b)
the Chief Commissioner is to reassess the
agreement, by calculating the surcharge purchaser duty chargeable in
proportion to the share or shares in the residential-related property actually
transferred to foreign persons, and refund any excess surcharge purchaser duty
paid.
Note—
Section 104ZF provides for a full refund in cases
where no surcharge purchaser duty is payable on the actual transfer because
the transferees are no longer foreign persons.
Part 2Dutiable
value
104ZWhat is the “dutiable
value” of residential-related property?
(cf section 21)
(1)
Part 2 of Chapter 2 applies, subject to this Part
and to any other necessary modifications, in respect of surcharge duty
transactions and surcharge purchaser duty in the same way as it applies in
respect of dutiable transactions and the duty chargeable under Chapter
2.
(2)
For the purposes of this Chapter, references in
Part 2 of Chapter 2 are to be read as follows:
(a)
a reference to a dutiable transaction is to be
read as a reference to a surcharge duty transaction,
(b)
a reference to dutiable property is to be read as
a reference to residential-related property,
(c)
a reference to duty chargeable under Chapter 2 or
to ad valorem duty is to be read as a reference to surcharge purchaser
duty.
(3)
Sections 21 (3) and (4), 25, 26, 28, 29 and 30
(5) do not apply in respect of surcharge duty
transactions.
104ZAWhat is the “dutiable
value” of a partnership interest?
(cf section 29)
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 surcharge duty transaction
as relates to the partnership interest, whichever is the greater,
and
X is the unencumbered value of all
residential-related property of the partnership, and
Y is the unencumbered value of all
assets of the partnership.
104ZBReduction of dutiable value of
land used for non-residential purposes
(1)
If the Chief Commissioner is satisfied that the
residential land to which the residential-related property relates is used for
purposes other than residential purposes, the duty chargeable under this
Chapter is to be calculated after reducing the dutiable value of the
residential-related property by the apportionment
factor.
(2)
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 (3) and (4).
(3)
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.
(4)
If a request is made under subsection (3):
(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.
(5)
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.
104ZCTransfer of property subject
to a statutory trust to a beneficial owner
(cf section 56A)
(1)
This section applies if residential-related
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 residential-related property who are foreign
persons.
(2)
For the purposes of calculating surcharge
purchaser duty on the vesting of the residential-related property, the
dutiable value of the residential-related property is to be calculated by
deducting from the unencumbered value of the residential-related 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 any foreign
transferee’s beneficial interest in the residential-related property
immediately before the transfer or agreement.
(3)
A reference in this section to a foreign
transferee is a reference to a transferee who is a foreign
person.
104ZDDeceased estates where trusts
under will are varied
(cf section 63 (2) and (2A))
(1)
This section applies if a transfer of
residential-related property is made by a legal personal representative of a
deceased person to a foreign beneficiary under an agreement (whether or not in
writing) between the foreign beneficiary and one or more other beneficiaries
to vary the trusts contained in a will of the deceased person or arising on
intestacy.
(2)
For the purposes of calculating surcharge
purchaser duty on the transfer, the dutiable value of the residential-related
property is to be reduced by the portion of the dutiable value that is
referable to the residential-related property to which the foreign beneficiary
had an entitlement arising under the trusts contained in the will or arising
on intestacy.
(3)
A transmission application made in respect of
residential-related property 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 residential-related property by
the legal personal representative to the beneficiary.
(4)
In this section:
foreign
beneficiary means a beneficiary who is a foreign
person.
Part 3Refunds and special
provisions
104ZECancelled agreements and
transfers
(1)
The following transactions are not liable to
surcharge purchaser duty if they are not liable to duty under Chapter 2
because of section 50 or 50A:
(a)
an agreement for the sale or transfer of
residential-related property that is cancelled (within the meaning of section
50),
(b)
a transfer of residential-related property that
is effected by a written instrument.
(2)
Section 50 (2) extends to surcharge purchaser
duty that has been paid on an agreement that is not liable to surcharge
purchaser duty because of this section.
(3)
Section 50A (2) and (3) extend to surcharge
purchaser duty that has been paid on a transfer that is not liable to
surcharge purchaser duty because of this section and to any transfer
instrument in respect of which the application for a refund is
made.
104ZFRefund if property transferred
to persons who are no longer foreign on transfer
If surcharge purchaser duty has been paid on an
agreement for the sale or transfer of residential-related property and the
Chief Commissioner is satisfied that none of the transferees in respect of a
transfer made in conformity or partial conformity with the agreement are
foreign persons, the Chief Commissioner must reassess and refund that duty if
an application is made within 5 years of the initial
assessment.
104ZGTransfers back from a
nominee
The Chief Commissioner must reassess, and refund
any surcharge purchaser duty paid on, an initial transfer to a trustee
referred to in section 56 (2) if the Chief Commissioner is required by that
subsection to reassess, and refund any duty under Chapter 2 paid on, the
initial transfer.
104ZHBreak-up of marriages, de
facto relationships or domestic relationships
The Chief Commissioner must reassess, and refund
any surcharge purchaser duty paid on, a transfer or agreement referred to in
section 68 (4), (4AA) or (4A) if the Chief Commissioner is required by that
subsection to reassess, and refund any duty under Chapter 2 paid on, the
transfer or agreement.
104ZIPossessory
applications
(1)
A possessory application under the Real Property Act 1900 in respect of
residential land that is chargeable with ad valorem duty under Chapter 2
because of section 52 is chargeable with surcharge purchaser duty, as a
transfer of the land, if any of the applicants are foreign
persons.
(2)
For that purpose:
(a)
the dutiable value of the land is the land value
of the land within the meaning of the Valuation of Land
Act 1916, and
(b)
applicants who are foreign persons are liable to
pay the surcharge purchaser duty.
104ZJApplications to bring land
under Real Property Act
1900
(1)
An application to bring residential land under
the Real Property Act 1900 that is
chargeable with ad valorem duty under Chapter 2 because of section 53 is
chargeable with surcharge purchaser duty if any of the persons liable to pay
duty under Chapter 2 on the application are foreign
persons.
(2)
The surcharge purchaser duty chargeable is to be
determined by applying section 53 as if a reference in that section to duty or
ad valorem duty were a reference to surcharge purchaser
duty.
(3)
Any foreign persons liable to pay duty under
Chapter 2 on the application are liable to pay the surcharge purchaser
duty.
Part 4Exemptions and
concessions
104ZKTransactions exempt from ad
valorem duty under Chapter 2
(1)
Subject to this Part, no surcharge purchaser duty
is chargeable on a surcharge duty transaction if:
(a)
ad valorem duty is not chargeable on the
transaction as a dutiable transaction under Chapter 2 because of any of the
provisions of Parts 6 and 7 of that Chapter (other than sections 55, 57, 62,
62A and 62B), or
(b)
the transaction is a relevant transfer to which
section 61 applies, or
(c)
the transaction is a dutiable transaction to
which section 62 applies, or
(d)
the transaction is a transfer, an agreement for
the sale or transfer, of residential-related property and a duty concession is
granted under Division 5 of Part 8 of Chapter 2 in respect of the
transaction.
(2)
To avoid doubt, the exemptions and concessions
provided for in Part 8 of Chapter 2 do not (except as provided by subsection
(1) (d)) extend to surcharge duty transactions.
104ZLChange in
trustees
(1)
This section applies to a surcharge duty
transaction if:
(a)
the transaction is a transfer of
residential-related property to a person as a consequence of the retirement of
a trustee or the appointment of a new trustee, and
(b)
as a consequence of section 54 (3), the transfer
is chargeable with the same duty under Chapter 2 as a transfer to a
beneficiary under and in conformity with the trusts subject to which the
property is held.
(2)
Surcharge purchaser duty is chargeable on the
surcharge duty transaction if ad valorem duty is chargeable on the transaction
as a dutiable transaction.
104ZMReduction of duty on
transactions involving apparent purchasers
(1)
Any surcharge purchaser duty chargeable on a
declaration of trust to which section 55 (1) (a) applies is to be reduced by
the amount of surcharge purchaser duty (if any) paid on the transfer, or
agreement for the sale or transfer, of the identified residential-related
property to the apparent purchaser.
(2)
Any surcharge purchaser duty chargeable on a
transfer to which section 55 (1) (b) applies from an apparent purchaser to the
real purchaser is to be reduced by the amount of surcharge purchaser duty (if
any) paid on:
(a)
any declaration of trust to which section 55 (1)
(a) applies made by the apparent purchaser in respect of the
residential-related property, and
(b)
the transfer, or agreement for the sale or
transfer, to the apparent purchaser.
104ZNExemption for property passing
to beneficiaries
(cf section 57)
(1)
No surcharge purchaser duty is chargeable on a
transfer for no consideration of residential-related 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)
any surcharge purchaser duty has been paid on the
declaration of trust over that property, or
(ii)
the declaration of trust is exempt from surcharge
purchaser 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 on the declaration
of trust.
104ZOReduction of duty on transfers
made on exercise of option to purchase land
(cf section 64D)
The surcharge purchaser duty chargeable on a
transfer of residential land in New South Wales that occurs as a consequence
of the exercise of an option to purchase the land is to be reduced by the
amount of surcharge purchaser duty (if any) paid on the transfer of the option
to the transferee.
Part 5Stamping and
enforcement
104ZPDefinition of “purchaser
duty”
For the purposes of this Part, purchaser duty is the duty (if any)
payable in respect of a dutiable transaction under Chapter
2.
104ZQStamping and endorsement of
surcharge duty transactions
(1)
If an instrument that effects or evidences a
dutiable transaction that is also a surcharge duty transaction is stamped
under this Act to indicate payment of duty, it must be stamped in a manner
approved by the Chief Commissioner to indicate that surcharge purchaser duty
has been paid.
(2)
If an instrument that effects or evidences a
dutiable transaction that is also a surcharge duty transaction is endorsed
under this Act to indicate payment of duty, it must be endorsed in a manner
approved by the Chief Commissioner to indicate that surcharge purchaser duty
has been paid.
Note—
See section 289A, which allows stamping to occur
by means of an endorsement.
(3)
An instrument that effects or evidences a
dutiable transaction that is also a surcharge duty transaction is not duly
stamped unless it is stamped or endorsed in accordance with this
section.
104ZRStamping of surcharge duty
transactions not chargeable with duty
(1)
If a surcharge duty transaction is not chargeable
with surcharge purchaser duty, an instrument that effects or evidences the
surcharge duty transaction must be stamped in a manner approved by the Chief
Commissioner to indicate that the transaction is not chargeable with surcharge
purchaser duty.
(2)
If a surcharge duty transaction is not chargeable
with purchaser duty, an instrument that effects or evidences the transaction
must be stamped in a manner approved by the Chief Commissioner to indicate
that the transaction is not chargeable with purchaser
duty.
Note—
See section 301 in relation to the registration
of an instrument that effects or evidences a surcharge duty
transaction.
104ZSInterim payment of
duty
(1)
In this section:
relevant
dutiable transaction means an agreement for sale or transfer
that is a dutiable transaction.
relevant
surcharge duty transaction means an agreement for sale or
transfer that is a surcharge duty transaction.
(2)
Section 49 applies in respect of
residential-related property subject to a relevant surcharge duty transaction
in the same way as it applies in respect of dutiable property subject to a
relevant dutiable transaction.
(3)
For that purpose, references in section 49 are to
be read as follows:
(a)
a reference to the dutiable value of dutiable
property is to be read as a reference to the dutiable value of
residential-related property, determined in accordance with this
Chapter,
(b)
a reference to duty is to be read as a reference
to surcharge purchaser duty.
104ZTDuplicates or
counterparts
The duty chargeable under section 271 in respect
of a duplicate or counterpart of an instrument is not payable in respect of
any duplicate or counterpart of an instrument that effects or evidences a
surcharge duty transaction.
[15]Section 105 Introduction and
overview
Insert at the end of section 105:
(2)
This Chapter also charges duty on certain
transactions involving foreign persons that are not “surcharge duty
transactions” under Chapter 2A, at the same rate under that Chapter as
for a transfer of residential-related property to a foreign
person.
[16]Section 106
Definitions
Insert in alphabetical order:
residential land has the same
meaning as in Chapter 2A.
[17]Section 107 Assignment of
rights under call option dutiable as transfer
Insert “The duty chargeable on that
assignment is referred to in this Part as call
option assignment duty.” after
“concerned.” in section 107 (1).
[18]Section 107
(1A)
Insert after section 107 (1):
(1A)
Duty under Chapter 2A is also chargeable on the
assignment if A is a foreign person and the dutiable property concerned is
residential-related property. The duty chargeable on that assignment is
additional to call option assignment duty and is referred to in this Part as
surcharge
call option assignment duty.
[19]Section 107
(4)
Omit “duty”. Insert instead
“call option assignment duty”.
[20]Section 107
(4A)
Insert after section 107 (4):
(4A)
If the assignment is chargeable with surcharge
call option assignment duty, Chapter 2A applies in respect of the assignment
in the same way as it applies to other transfers of residential-related
property, and a reference in this Act to a surcharge duty transaction includes
such an assignment, subject to this Part.
[21]Section 107
(5)
Omit “purpose of Chapter 2, the transfer of
dutiable property”.
Insert instead “purposes of Chapters 2 and
2A, the transfer of dutiable property (including dutiable property that is
residential-related property)”.
[22]Section 108 Person liable to
pay call option assignment duty
Omit “The duty” wherever occurring
from section 108 (1) and (3).
Insert instead “The call option assignment
duty”.
[23]Section 108
(4)
Omit “the duty”. Insert instead
“the call option assignment duty”.
[24]Section 108
(5)
Omit the subsection.
[25]Section
108A
Insert after section 108:
108APerson liable to pay surcharge
call option assignment duty
(1)
Surcharge call option assignment duty on a call
option assignment is payable by any foreign person who assigns the right under
the call option to require another person to sell residential-related property
(the
foreign option holder).
(2)
Accordingly, the foreign option holder is taken,
for the purposes of charging duty under Chapter 2A, to be the transferee of
the residential-related property.
(3)
The duty payable by the foreign option holder is
additional to the duty (if any) payable under Chapter 2A by a transferee on
the transfer of an option to purchase residential land in New South
Wales.
(4)
However, the duty payable by the foreign option
holder as a consequence of this Part is to be reduced by the amount of duty
(if any) paid by the foreign option holder under Chapter 2A on the transfer of
the call option to the foreign option holder.
[26]Section 109 Determination of
dutiable value of transfer
Omit “Chapter 2, the dutiable value of dutiable
property”.
Insert instead “Chapters 2 and 2A, the
dutiable
value of dutiable property (including residential-related
property that is dutiable property)”.
[27]Section 110 Stamping or
endorsement of transactions
Omit “or call option assignment duty”
wherever occurring from section 110 (1) and (2).
Insert instead “, surcharge purchaser duty,
call option assignment duty or surcharge call option assignment
duty”.
[28]Section 111
Exemptions
Insert “or 2A” after “Chapter
2” in section 111 (2).
[29]Chapter 3, Part
4A
Insert after Part 4 of Chapter 3:
Part 4AAcquisition by foreign person
of land use entitlement to which Part 4 applies
137AAMeaning of “residential
land use entitlement”
In this Part:
residential land use entitlement
means a land use entitlement that entitles a person to occupy residential land
(within the meaning of Chapter 2A) in New South
Wales.
137ABWhen does a liability for duty
arise?
A liability for duty charged by this Part arises
when a residential land use entitlement is acquired by an allotment of shares
or an issue of units to a foreign person otherwise than in circumstances to
which Part 5 applies.
137ACWho is liable to pay the
duty?
(1)
Duty under this Part is payable by the person who
acquires the residential land use entitlement.
(2)
Only acquirers who are foreign persons are liable
to pay duty under this Part.
137ADAssessment of
duty
(1)
The share allotment or unit issue by which a
foreign person acquires a residential land use entitlement is chargeable with
duty at 4% of the dutiable value of the residential land use
entitlement.
(2)
If any of the acquirers are not foreign persons,
duty under subsection (1) is to be charged only on the proportion of the
dutiable value of the residential land use entitlement that is the same as the
proportion of the total shares or units allotted or issued in respect of the
land use entitlement to acquirers who are foreign
persons.
(3)
The dutiable value of the residential land use
entitlement is to be determined, for the purposes of this section, in
accordance with Part 2 of Chapter 2A, with any necessary
modifications.
137AEApplication of Part
4
(1)
The duty chargeable under this Part in respect of
a share allotment or unit issue by which a person acquires a land use
entitlement is in addition to any duty chargeable under Part 4 in respect of
the share allotment or unit issue.
(2)
Sections 133, 135 and 136 apply, with any
necessary modifications, in respect of duty chargeable under this Part and a
person liable to pay duty chargeable under this Part in the same way as those
sections apply in respect of duty chargeable under Part 4 and a person liable
to pay duty chargeable under that Part.
[30]Section 145
Overview
Insert “or “surcharge duty
transactions” under Chapter 2A” after “Chapter
2”.
[31]Section 145,
note
Insert “Part 2B of this Chapter charges
additional duty, at the same rate as the surcharge purchaser duty chargeable
under Chapter 2A, if the person acquiring the significant interest is a
foreign person and the landholder concerned is a private landholder.”
after “Chapter 2.”.
[32]Part 2B
Insert after Part 2A of Chapter 4:
Part 2BCharging of surcharge duty on
acquisitions made by foreign persons
157DMeaning of “residential
land holding”
(1)
In this Part:
residential land holding means any
land holding that is an interest in residential land (within the meaning of
Chapter 2A).
(2)
For the purposes of charging duty under this Part
in respect of a relevant acquisition in a landholder, a person is taken to be
a foreign person if the person is a foreign person when the relevant
acquisition is made.
157ECircumstances in which
surcharge duty is chargeable
Duty is chargeable under this Part on a relevant
acquisition in a private landholder if:
(a)
the private landholder has any residential land
holding in New South Wales, and
(b)
any person who makes the relevant acquisition
(or, if a relevant acquisition results from the aggregation of interests of
associated persons, any of the associated persons) is a foreign person on the
date of the relevant acquisition.
157FRelationship with Part
2
(1)
This Part charges duty in addition to any other
duty chargeable under Part 2 on a relevant acquisition.
(2)
Part 2 applies in respect of duty charged by this
Part, subject to this Part and any necessary modifications, in the same way as
it applies in respect of duty charged by Part 2.
(3)
Sections 154–157 do not apply in respect of
duty charged by this Part.
157GWho is liable to pay the
duty?
(1)
Duty chargeable under this Part is payable by any
foreign person who makes the relevant acquisition, except as provided by
subsection (2).
(2)
If a relevant acquisition results from an
aggregation of the interests of associated persons, any foreign person who
made the relevant acquisition and any associated person who is a foreign
person is jointly and severally liable for payment of the
duty.
157HHow duty is charged on
relevant acquisitions by foreign persons
(1)
If an acquisition statement that discloses a
relevant acquisition in a private landholder does not disclose any other
acquisitions by a foreign person during the statement period, duty is
chargeable, at 4% (the
general surcharge rate), on the amount calculated by
multiplying the unencumbered value of all residential land holdings of the
landholder in New South Wales (calculated at the date of acquisition of the
interest acquired) by the proportion of that value represented by the interest
acquired in the relevant acquisition.
(2)
If a relevant acquisition results from the
aggregation of the interests of associated persons who are foreign persons,
the reference in subsection (1) to the interest acquired includes a reference
to any interests acquired by any such associated persons on the same
date.
(3)
If an acquisition statement disclosing a relevant
acquisition in a private landholder also discloses one or more other
acquisitions by a foreign person during the statement period, duty is
chargeable, at the general surcharge rate, on the aggregate of amounts
severally calculated, in the manner provided by subsection (1), in respect of
each interest required to be disclosed in the statement that is an interest of
a foreign person.
(4)
Duty payable under this Part is to be reduced by
the sum of the duty paid or payable under this Part in respect of an
acquisition, during the statement period, by the foreign person or any
associated person who is a foreign person of an interest in the same
landholder, but only in proportion to the extent to which the duty paid or
payable is attributable to the amount of the duty payable under this
Part.
(5)
Duty is not chargeable under this Part on the
acquisition of an interest in a landholder that is required to be disclosed in
an acquisition statement if the acquisition is an exempt
acquisition.
[33]Section 163A General
exemptions
Insert at the end of section 163A:
(2)
Without limiting subsection (1), an acquisition
by a foreign person of an interest in a landholder is an exempt acquisition
for the purposes of duty chargeable under Part 2B if the interest concerned is
an interest in a private landholder acquired before 21 June
2016.
[34]Section 221A
Definitions
Omit “confers a right” from paragraph
(b) of the definition of private
dwelling house.
Insert instead “entitles the holder of the
land use entitlement”.
[35]Section 271 Duplicates or
counterparts
Insert at the end of section 271:
Note—
See section 104ZT in relation to the duplicates
or counterparts of an instrument that effects a surcharge duty
transaction.
[36]Section 275A Partial exemption
for certain transactions by charitable and benevolent
bodies
Insert “or 2A” after “Chapter
2” in section 275A (1).
[37]Section 288 Stamping of
instruments
Insert at the end of section 288:
Note—
In relation to dutiable transactions that are
surcharge duty transactions, see Part 5 of Chapter 2A.
[38]Section 293
Reassessments—failed instruments
Insert “See Part 3 of Chapter 2A for
refunds of surcharge purchaser duty on failed instruments.” after
“failed instruments.” in the note to section
293.
[39]Section 301 Registration of
transactions and instruments
Insert at the end of section 301:
(2)
In the case of a dutiable transaction that is
also a surcharge duty transaction, the transaction or instrument referred to
in subsection (1) must be stamped or endorsed, in accordance with Part 5 of
Chapter 2A, in a manner that indicates:
(a)
that purchaser duty has been paid in respect of
the transaction or that the transaction is not chargeable with purchaser duty,
and
(b)
that surcharge purchaser duty has been paid in
respect of the transaction or that the transaction is not chargeable with
surcharge purchaser duty.
[40]Schedule 1 Savings,
transitional and other provisions
Insert at the end of Schedule 1:
Part 45Provisions consequent on
enactment of State Revenue Legislation Amendment
(Budget Measures) Act 2016
118Definition
In this Part:
amending
Act means the State Revenue
Legislation Amendment (Budget Measures) Act
2016.
119Application of amendments to
Chapter 2
(1)
An amendment made to Chapter 2 by the amending
Act applies in respect of a dutiable transaction that occurs on or after the
commencement of the amendment.
(2)
However, an amendment made to Chapter 2 by the
amending Act does not apply to a transfer of dutiable property made in
conformity with an agreement for sale or transfer of the dutiable property
that was entered into before the commencement of the
amendment.
120Application of surcharge
purchaser duty
(1)
The duty charged by Chapter 2A, as inserted by
the amending Act, is charged on surcharge duty transactions that occur on or
after the commencement of that Chapter, except as otherwise provided by this
clause.
(2)
Surcharge purchaser duty is not chargeable on a
transfer of residential-related property made in conformity with an agreement
for sale or transfer of the residential-related property entered into before
the commencement of Chapter 2A.
(3)
Surcharge purchaser duty is not chargeable on a
surcharge duty transaction that results from the exercise of an option for the
sale or purchase of residential-related property, if the option was granted
before the commencement of Chapter 2A.
(4)
However, surcharge purchaser duty is chargeable
on any of the following surcharge duty transactions occurring on or after the
commencement of Chapter 2A:
(a)
a transaction that is taken by section 9B (as
applied by section 104O) to be the transfer of an option,
(b)
a transaction that results from the exercise of
an option that, on or after the commencement of Chapter 2A, is taken by
section 9B (as applied by section 104O) to have been
transferred.
121Application of amendments to
Chapter 3 relating to surcharge call option assignment
duty
An amendment made to Part 2 of Chapter 3 by the
amending Act applies only in respect of a call option assignment (within the
meaning of that Part) made on or after the commencement of the
amendment.
122Application of Part 4A of
Chapter 3
The duty charged by Part 4A of Chapter 3, as
inserted by the amending Act, applies only in respect of an allotment of
shares or an issue of units made on or after the commencement of that
Part.
123Application of amendments to
Chapter 4
The duty charged by Part 2B of Chapter 4, as
inserted by the amending Act, applies only in respect of a relevant
acquisition (within the meaning of that Chapter) occurring on or after the
commencement of that Part.
[41]Dictionary
Insert in alphabetical order in clause 1:
foreign
person has the meaning given by Chapter 2A.
residential-related property has the
meaning given by Chapter 2A.
surcharge
duty transaction has the meaning given by Chapter
2A.
surcharge
purchaser duty means duty charged by Chapter
2A.
Explanatory
note
Schedule 1 amends the Duties
Act 1997 to impose additional duty of 4% on transactions
involving the acquisition by foreign persons of interests in residential land
in New South Wales. The transactions concerned are generally already dutiable
under Chapter 2, 3 or 4 of that Act. The additional duty is payable by the
foreign persons concerned on relevant transactions occurring on or after 21
June 2016.
The various kinds of additional duty are
explained in detail below.
Surcharge purchaser
duty
Item [14] of the proposed amendments inserts a
new Chapter 2A into the Duties Act 1997,
which provides for the charging of a duty (referred to as surcharge purchaser
duty), in addition to duty under Chapter 2, on certain dutiable transactions
(referred to as surcharge
duty transactions) involving a transfer of
residential-related property to a foreign person.
Foreign
person is defined in proposed section 104J and has the same
meaning as in the Foreign Acquisitions and Takeovers Act
1975 of the Commonwealth, with modifications relating to
Australian citizens and New Zealand citizens. Under that Act, an individual
who is not ordinarily resident in Australia is a foreign person. If the
individual is an Australian citizen, the modifications will ensure that the
individual is taken to be ordinarily resident in Australia. If the individual
is a New Zealand citizen holding a special category visa under the Migration Act
1958 of the Commonwealth, the modifications will ensure
that (generally in line with permanent residents) the individual will be
regarded as ordinarily resident in Australia if the individual has actually
been in Australia during 200 or more days in the preceding 12
months.
Residential-related property is
defined in proposed section 104K as any of the following:
(a)
residential land in New South
Wales,
(b)
an option to purchase residential land in New
South Wales,
(c)
an interest in any residential-related property
referred to in paragraph (a) or (b), 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
residential-related property, or
(iii)
it is a marketable
security,
(d)
a partnership interest (being an
interest in a partnership that has partnership property that is
residential-related property elsewhere referred to in the proposed
section).
The additional duty is charged at the rate of 4%
of the dutiable value of the residential-related property (proposed section
104U). Dutiable value is generally determined in accordance with the
principles already set out in Chapter 2 of the Duties Act
1997 (proposed section 104Z). If the residential land to
which the residential-related property relates is used for non-residential
purposes, surcharge purchaser duty will apply only to the dutiable value that
is attributable to the residential use of the land. This will involve an
apportionment of the dutiable value of the residential-related property
(proposed section 104ZB).
General exemptions under Chapter 2 of the Duties Act 1997 will also apply in
respect of surcharge purchaser duty. Generally, a transaction that is not
chargeable with ad valorem duty under Chapter 2 (including transactions
chargeable with nominal duty of $50 under that Chapter) is not chargeable with
surcharge purchaser duty (proposed section 104ZK).
An instrument that effects a dutiable transaction
that is also a surcharge duty transaction will need to be stamped to indicate
that the surcharge purchaser duty has been paid, or that no surcharge
purchaser duty is payable on the transaction.
Items [1]–[8], [11]–[13],
[35]–[39] and [41] make consequential amendments.
Surcharge call option
assignment duty
Item [18] provides for the charging of duty, in
addition to the call option assignment duty that is chargeable on the
assignment of a right under a call option to purchase dutiable property, if
the property is residential-related property and the person assigning the
right is a foreign person. The additional duty is referred to as surcharge
call option assignment duty.
Item [20] provides that, if the assignment is
chargeable with surcharge call option assignment duty, Chapter 2A applies to
the assignment in the same way as it applies to other transfers of
residential-related property. Accordingly, duty on the assignment is charged
at the rate of 4% of the dutiable value of the residential-related
property.
Item [25] ensures that surcharge call option
assignment duty is payable by the foreign person.
Items [15]–[17], [19], [21]–[24] and
[26]–[28] make consequential amendments.
Additional duty on acquisition
of residential land use entitlements
Item [29] inserts a new Part 4A into Chapter 3 of
the Duties Act 1997, which provides for the
charging of duty, in addition to the duty charged by Part 4 of that Chapter,
on the acquisition by a foreign person of a land use entitlement that entitles
a person to occupy residential land in New South Wales. The additional duty is
payable by the foreign person at the rate of 4% of the dutiable value of the
residential land use entitlement.
Additional duty on acquisition
of interests in landholders
Item [32] inserts a new Part 2B into Chapter 4 of
the Duties Act 1997, which provides for the
charging of duty, in addition to the duty charged by Part 2 of that Chapter,
on a relevant acquisition in a private landholder that has any residential
land holding in New South Wales if the person making the relevant acquisition
is a foreign person. Duty is charged at 4% of the amount calculated by
multiplying the unencumbered value of all of the landholder’s
residential land holdings in New South Wales by the proportion of that value
represented by the interest acquired in the relevant acquisition. Items [30]
and [31] make consequential amendments.
Item [33] ensures that an acquisition by a
foreign person in a private landholder is an exempt acquisition for the
purposes of the additional duty provided for in proposed Part 2B of Chapter 4
if the interest was acquired before 21 June 2016.
Other
amendments
Item [10] ensures that a concession provided for
in Chapter 2 of the Duties Act 1997 in
relation to an off the plan purchase agreement is not available if any
purchaser or transferee under the agreement is a foreign person. Under the
concession, the date on which liability for duty under Chapter 2 arises on an
off the plan purchase agreement is deferred.
Item [40] provides for savings and transitional
matters.
Items [9] and [34] make amendments by way of
statute law revision.
Schedule 2Amendment of Land Tax Act 1956 No
27
[1]Section
5A
Insert before section 6:
5ALevy of surcharge land tax on
residential land owned by foreign persons—2017 and subsequent land tax
years
(1)
Land tax is payable under this section in respect
of residential land owned by a foreign person (surcharge
land tax).
(2)
In respect of the taxable value of all the
residential land owned by the foreign person at midnight on 31 December in any
year (commencing with 2016), surcharge land tax is to be charged, levied,
collected and paid under the provisions of the Principal Act and in the manner
prescribed under that Act for the period of 12 months commencing on 1 January
in the next succeeding year at the rate of 0.75% of that taxable value as
assessed under the Principal Act.
(3)
Surcharge land tax is payable in addition to any
land tax payable in respect of the residential land under the other provisions
of this Act, and is so payable even if no land tax is payable under those
other provisions.
(4)
The Principal Act applies to surcharge land tax
in respect of residential land owned by a foreign person subject to the
following:
(a)
surcharge land tax is payable as if the
residential land were the only land owned by the foreign
person,
(b)
if the residential land is also owned by a person
who is not a foreign person, the taxable value of the land is to be reduced to
the proportionate value of the interest in the land of the foreign
person,
(c)
if the foreign person is a joint owner of the
residential land, the person is to be individually (and not jointly) assessed
and is liable in respect of the value of the person’s proportionate
interest in the land as if the person were the owner of a part of the land in
proportion to the person’s interest (and accordingly section 27
(2)–(4) of the Principal Act does not apply),
(d)
if the Chief Commissioner is satisfied that the
residential land is used for purposes other than residential purposes, the
taxable value of the land is to be reduced by the apportionment factor
determined in accordance with section 104ZB of the Duties
Act 1997 in relation to the land,
(e)
if the foreign person is the trustee of a fixed
trust (within the meaning of section 3A of the Principal Act) in relation to
the residential land, the person is not liable to surcharge land
tax,
(f)
the provisions of the Principal Act relating to
the persons who are taken to be owners of the residential land apply to
surcharge land tax, except that section 23 of the Principal Act does not
operate to make a mortgagee in possession an owner of the land unless the
mortgagor is a foreign person,
(g)
the residential land is not exempt from surcharge
land tax because it is the principal place of residence of the foreign person
(and accordingly sections 9C and 9D of the Principal Act do not operate to
reduce the land value of the residential land if it is the principal place of
residence of the person),
(h)
the tax thresholds under Division 4A of Part 7 of
the Principal Act do not apply to surcharge land tax,
(i)
any other modification prescribed by the
regulations under the Principal Act applies to surcharge land
tax.
(5)
If a foreign person defaults in the payment of
surcharge land tax then, without releasing the foreign person from his or her
liability, the following provisions apply as long as the default
continues:
(a)
if the foreign person is a joint owner of the
land concerned—any other joint owner (whether or not a foreign person)
is, on being served with a notice by the Chief Commissioner requiring payment
of the unpaid surcharge land tax, responsible for its payment and the unpaid
tax may be recovered from that other joint owner as if he or she were the
defaulting taxpayer,
(b)
if the foreign person is a beneficiary of a trust
relating to the land concerned—the trustee (whether or not a foreign
person) is, on being served with a notice by the Chief Commissioner requiring
payment of the unpaid surcharge land tax, responsible for its payment and the
unpaid tax may be recovered from that trustee as if he or she were the
defaulting taxpayer,
(c)
all payments made under this subsection by that
other joint owner or that trustee are taken to be made on behalf of the
defaulting taxpayer,
(d)
that other joint owner or that trustee may
recover from the foreign person any amount paid by that other joint owner or
that trustee under this subsection.
(6)
In this section:
foreign
person and residential land have the same
meanings as in Chapter 2A of the Duties Act
1997.
[2]Section 6 Land tax liability
in respect of flood liable land
Insert at the end of the section:
(3)
This section does not apply to surcharge land tax
under section 5A.
Explanatory
note
Item [1] of the proposed amendments to the
Land Tax Act 1956 imposes surcharge land
lax at the rate of 0.75% of the taxable value of residential land owned by a
foreign person. The tax is to be separately assessed in relation to each
parcel of land owned by the foreign person and is payable in addition to land
tax otherwise payable by the foreign person. There will be no tax threshold to
exempt land below a specified value nor any exemption for land occupied by the
foreign person as a principal place of residence. The meanings of residential land and foreign person are linked to the
meanings of those expressions in the proposed surcharge purchaser duty
provisions in the amendments to the Duties Act
1997 set out in Schedule 1 to the proposed
Act.
Item [2] makes a consequential
amendment.
Schedule 3Amendment of Payroll Tax Rebate Scheme (Jobs Action Plan) Act
2011 No 19
[1]Section 12 Excluded
employment
Insert at the end of section 12 (1) (k):
, or
(l)
in the case of employment commencing on or after
31 July 2016—the number of full time equivalent employees of the
employer (excluding the person) is more than 50 on the date on which the
employment commences.
[2]Section 15 Amount of
rebate
Insert “and before 31 July 2016”
after “2013” in section 15 (1A) (b).
[3]Section 15 (1A)
(c)
Insert at the end of section 15 (1A) (b)
(ii):
, or
(c)
for eligible employment commencing on or after 31
July 2016:
(i)
$2,000 for the first year of employment,
and
(ii)
$4,000 for the second year of
employment.
Explanatory
note
Item [3] of the proposed amendments to the
Payroll Tax Rebate Scheme (Jobs Action Plan) Act
2011 increases the payroll tax rebate payable under that
Act in respect of new jobs. In particular, the rebate payable, in relation to
eligible employment commencing on or after 31 July 2016, is increased for the
second year of employment from $3,000 to $4,000. Item [2] makes a
consequential amendment.
Item [1] restricts the rebate payable, in
relation to employment commencing on or after 31 July 2016, to employers that
have 50 or fewer full-time equivalent employees (apart from the new employee
or employees) on the date on which the employment
commences.
Historical
notes
Table of amending
instruments
State Revenue
Legislation Amendment (Budget Measures) Act 2016 No 32.
Assented to 28.6.2016. Date of commencement, Sch 1 excepted, assent, sec 2
(2); date of commencement of Sch 1, 21.6.2016, sec 2
(1).