There has been a flurry of recent amendments and proposed amendments to the duties regime in various states. Changes have related to:
From 1 July 2009, NSW "land rich duty" will be replaced by "landholder duty", a concept which is currently used in WA, the ACT and Queensland. The introduction of "landholder duty" will substantially alter how, and whether, duty is payable on indirect acquisitions of NSW land.
Currently, duty is payable at conveyancing rates (up to 5.5%) if a person acquires at least 20% of the units in a private unit trust, or at least 50% of the shares in a company, that either directly or indirectly:
Under the new "landholder duty" concept the 60% ratio of land to total assets requirement will be removed and acquisitions of indirect interests in land which were previously exempt from duty (due to the 60% ratio test) will, from 1 July 2009, be dutiable at conveyancing rates.
Although the NSW government had announced 1 July 2009 as the date it would abolish mortgage duty, the date has now moved to 1 July 2012. Until then, the rate of duty chargeable on mortgages remains 0.4% of the amount secured.
A reintroduced Bill in Victoria proposes to amend the Victorian duties legislation in two respects.
At the moment, duty is only payable on leases in Victoria in exceptional circumstances — for example, when a lease is granted for a premium and an agreement exists for the future transfer of the land subject to the lease.
The Bill proposes to impose duty on leases at conveyancing rates (up to 5.5%) in the following 3 circumstances:
These amendments are not intended to apply:
If passed, the Bill will apply retrospectively from 21 November 2008. In view of this, grants of leases made on or about 28 November 2008 should be reviewed carefully to ensure they do not contravene the proposed amendments.
Currently, documents and transactions that are liable for duty in Victoria must be lodged for assessment with the Victorian State Revenue Office within 90 days. The Bill proposes to reduce this timeframe to 14 days. No other State or Territory in Australia maintains such a short lodgement/payment rule. The new rule will take effect when the Bill is passed.
(It is likely that the Bill will be amended to extend the lodgement timeframe to 30 days. Amendments to the Bill are expected to be formally debated in early May 2009.)
A variation to a trust deed will be subject to duty at conveyancing rates (up to 5.25%) in Queensland if the variation amounts to an acquisition or surrender of a trust interest. An acquisition or surrender of a trust interest will occur if the person becomes or ceases to be a beneficiary of a trust that:
However, a variation will not amount to an acquisition or surrender of a trust interest if the following conditions are met:
From 1 May 2009:
From 1 July 2009, in SA, stamp duty will be abolished:
The relevant bill was introduced into the SA House of Assembly on 8 April 2009 to clarify the stamp duty treatment of rental contracts and mortgages entered into both before and after 1 July 2009. The proposed amendments confirm that:
The Duties Act 2008 (WA) came into effect on 1 July 2008. The Act imposes duty on, among other things, the grant of a lease at rates of up to 5.15%. The amount of duty payable on a grant of a lease in Western Australia is based on:
The Duties Regulations 2008 (WA) have been amended to provide that, in determining the amount of consideration for the grant of a lease, the value of any substantial improvement of, or addition to, the leased property carried out by the tenant is disregarded. The amendment applies to all leases granted on or after 1 July 2008.
For questions or more information about the above article, please call Maddocks in Melbourne (03 9288 0555) and ask for a member of the Maddocks Tax and Revenue Team.
Paul is a Senior Associate in the Maddocks Commercial team with particular expertise in commercial agreements for the supply of goods and/or services, the Personal Property Securities Act 2009, the National Consumer Credit Protection Act 2009 and the National Credit Code and the Australian Consumer Law.
Paul's key areas of practice include:
Before joining Maddocks, Paul was employed for 13 years with the Victorian Department of Justice, principally as a Deputy Registrar in the Victorian Magistrate's Court, but also as a legislation, policy and project officer for the Department.
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