Abolition of Duties – 1 July 2016

Key Points
  • From 1 July 2016 mortgage duty on all mortgages is abolished.
  • From 1 July 2016, business asset duties charged on business assets, statutory licences and gaming machine entitlements will be abolished.
  • From1 July 2016 shares in a NSW company and shares in a corporation incorporated outside Australia that are kept on the Australian register (kept in NSW) and units in a unit trust scheme will cease to be dutiable property.

On 1 July 2016, mortgage duty, certain business asset duties and marketable duties (shares and units) are being abolished in New South Wales. 

Mortgage Duty
Abolition of mortgage duty

Mortgage duty is duty charged on the amount secured by a mortgage.

Duty of $5 is payable on the first $16 000 of advances secured and then $4 for every $1000 thereafter.
From1 July 2016 mortgage duty on all mortgages is abolished.

Mortgages executed on or after 1 July 2016 will not be liable to duty.

Further advances made on or after 1 July 2016 are also not liable to duty, irrespective of the date of the mortgage.

No duty is payable on a caveat, protecting an interest under an unregistered mortgage executed on or after 1 July 2016.

Mortgages do not need to be stamped or marked in respect of any of the above.

Business Assets Duty
Abolition of duties on business assets

On or after 1 July 2016, business asset duties charged on the following types of property will be abolished:

  1. Business assets include:
    1. the goodwill of a business, if the business supplied in NSW, or provided services in NSW, to a customer of the business; or
    2. intellectual property that has been used or exploited in NSW; or
    3. statutory licence or permission under a Commonwealth law if the rights under the licence or permission have been exercised in NSW;
  2. Statutory licences or permission under a NSW law (for example a taxi licence or water access licence); and
  3. Gaming machine entitlement within the meaning of the Gaming Machines Act 2001.
Duties to be retained on some business assets

On or after 1 July 2016, certain types of property will remain dutiable property, these are as follows:

  1. land and an interest in land (including a leasehold interest and fixtures); and
  2. goods in NSW (subject to exclusions, such as stock-in-trade, listed in section 11(1)(j) of the Duties Act 1997 (NSW), if the subject of an arrangement that includes a dutiable transaction over other dutiable property, such as land.
Anti-avoidance measures

Abolition does not apply for a transfer or transaction that occurs on or after 1 July 2016 if it:

  1. replaces a transfer or transaction involving the same business asset, statutory licence or permission, or gaming machine entitlement that occurred before 1 July 2016; or
  2. is made or entered into pursuant to an option to purchase the business asset, statutory licence or permission, or gaming machine entitlement that was granted before 1 July 2016; or
  3. was made or entered into pursuant to another arrangement, made before 1 July 2016, the only or main purpose of which was to defer the transfer or transaction until 1 July 2016, or later, so that duty would not be chargeable on the transfer or transaction.
Interim stamped agreements for sale

An agreement to transfer any of the abolished dutiable property first executed before 1 July 2016 that was interim stamped with estimate duty (under section 49 of the Duties Act) will continue to be liable to additional duty even if the date of final purchase price or completion occurs on or after 1 July 2016.

A refund of estimate duty will also be provided in these circumstances if the estimate duty was more than should have been paid at completion.

Marketable Securities (shares and units) Duty abolition
Property that will cease to be dutiable property from 1 July 2016

On and from 1 July 2016, the following types of property cease to be dutiable property:

  1. shares in a NSW company, and shares in a corporation incorporated outside Australia that are kept on the Australian register kept in NSW; and
  2. units in a unit trust scheme, being units:
    1. registered on a register kept in NSW; or
    2. that are not registered on a register kept in Australia, but in respect of which the manager (or, if there is no manager, the trustee) of the unit trust scheme is a NSW company* or is a natural person resident in NSW.

NSW company* means:

  • a company incorporated or taken to be incorporated under the Corporations Act 2001 (Cth) that is taken to be registered in New South Wales for the purposes of that Act, or
  • any other body corporate that is incorporated under an Act of New South Wales.
Commercial fishery shares

On and from 1 July 2016, duty on transfers of shares in a share management fishery (defined in the Fisheries Management Act 1994) is abolished.

Other transactions not liable to duty on and from 1 July 2016

  1. Entitlements arising from capital reductions or right alterations under Part 3 of Chapter 2 (sections 124 to 131).
  2. Allotment of shares by direction under Part 5 of Chapter 2 (sections 137A to 144).
    Interim stamped agreements for sale

An agreement to transfer any of the abolished dutiable property first executed before 1 July 2016 which was interim stamped with estimate duty (under section 49 of the Duties Act 1997 (NSW) will continue to be liable to additional duty even if the date of final purchase price or completion occurs on or after 1 July 2016.

A refund of estimate duty will also be provided in these circumstances if the estimate duty was more than should have been paid at completion.

Landholder duty

A landholder is a unit trust scheme, a private company or a listed company that has land holdings in New South Wales with a threshold value of $2,000,000 or more.

Duty on certain acquisitions of shares or units in landholders remains liable to duty under the Duties Act 1997(NSW).

Accordingly, whilst a marketable security duty is not payable on the share or unit acquisition from 1 July 2016, the acquisition could attract landholder duty.

Company title dwellings and land use entitlements

A transfer of shares or units in a company title dwelling* or land use entitlement* is still liable to duty from 1 July 2016.

Company title dwelling* is defined in the dictionary of the Duties Act 1997 (NSW) as a separate dwelling in a building containing more than one separate dwelling situated in NSW owned or leased by a company in which shares issued by the company are owned or leased by a company in which shares issued by the company are owned by persons who, by virtue of the ownership of their shares, have an exclusive right to occupy a part of the building.

Land use entitlement* is defined in the dictionary of the Duties Act 1997 (NSW) as an entitlement to occupy land within NSW conferred through an ownership of shares in a company or an ownership of units in a unit trust scheme, or a combination of a shareholding or ownership of units together with a lease or licence.

Duty on transactions involving company title dwellings and land use entitlements are chargeable at the general rate (set out in section 33 of the Act) on the dutiable value of the property transferred.

This article is a reproduction of the following article published by NSW Office of State Revenue: http://www.osr.nsw.gov.au/taxes/abolished/iga
 

Post by Cara McKenna and Bernard Evans 

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