ByLawyers News and Updates

Duty concession – TAS

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A duty concession of 50% is now available to eligible buyers of newly built medium-density housing in Tasmania.

The new measure is intended to encourage the construction of new apartments and units.

The concession applies to certain apartments and off-the-plan or under-construction units, with a dutiable value of up to $750,000.

The 50% duty concession is available for agreements for sale entered into between 1 July 2024 and 30 June 2026 inclusive. The transfer must occur before 30 June 2031.

The duty concession is available to all Tasmanians who meet the eligibility criteria, not just first-home buyers. To be eligible, transferees must be natural persons, not a company or trust, and be over 18 years of age. At least one transferee must be an Australian citizen or a permanent resident at the date of the dutiable transaction. If a first home buyer grant has been made for the same transaction, the 50% duty concession is not available.

An eligible dwelling comprises a lot in a strata scheme or a dwelling conjoined with one or more other dwellings and must not have had an occupancy permit granted when the agreement for sale was executed.

For more details on eligibility criteria and how to apply, see the Property Transfer Duty page on the State Revenue Office of Tasmania website.

Eligible transferees who have already paid full transfer duty on an eligible property can apply for a 50% refund.

The By Lawyers Conveyancing (TAS) publication has been updated accordingly, including the Purchase of Real Property commentary and the Retainer Instructions – Purchase of Real Property precedent.

Land transfer duty – VIC

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Victorian land transfer duty has undergone a significant reform, however it will be some years before the full effects are felt.

Overview

The Commercial and Industrial Property Tax Reform Act 2024 progressively abolishes land transfer duty on commercial and industrial land and replaces it with an annual property tax known as the commercial and industrial property tax (CIPT).

From 1 July 2024, commercial and industrial properties will enter the CIPT scheme when there is an eligible transaction, which is generally a sale, a subdivision, or consolidation of title. These events are defined in the Act as entry transactions.

Transfer duty still applies to an entry transaction, and any applicable transfer duty concessions also apply, such as the 50% concession for a transfer of eligible commercial and industrial property in regional Victoria. Eligible purchasers will have the option of accessing a government loan through Treasury Corporation of Victoria for the duty payment on the entry transaction. The loan will be secured by a first ranking statutory charge on the applicable land.

Ten years after an entry transaction, CIPT will begin to apply to the land at a flat rate of 1% of the land’s unimproved capital value, assessed annually.

Generally, transactions after the entry transaction will be exempt from land transfer duty if the property continues to be used for commercial and industrial purposes.

CIPT will not apply to any property until it has an entry transaction. Properties that stay in the same ownership will not become liable for CIPT.

Exemptions and concessions

Transactions under a contract entered into before 1 July 2024 are not affected by the scheme.

If, after entry into the CIPT scheme, a property changes ownership in circumstances where a land transfer duty exemption applies, the transaction will generally also be exempt from CIPT. This applies, for example, to transfers from a deceased estate, or between spouses.

For a build-to-rent property that has entered the CIPT scheme, a reduced CIPT rate of 0.5% applies.

By Lawyers updates

Updates to the By Lawyers Conveyancing (VIC) publications reflecting these changes to land transfer duty include:

Revenue measures – QLD

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The Revenue and Other Legislation Amendment Act 2024 (QLD) made a number of changes to state government revenue measures.

Affected revenue measures include transfer duty concessions, the First Home Owner Grant, the surcharge rate of land tax, and additional foreign acquirer duty.

Transfer duty concession changes – From 9 June 2024

Eligibility for the first home concession has been extended to homes with a dutiable value up to $800,000 with no duty payable on homes valued up to $700,000 and a partial concession for homes between $700,000 and $800,000.

Eligibility for the first home vacant land concession has been extended to land valued up to $500,000 with no duty payable on land valued up to $350,000 and a partial concession for land valued between $350,000 and $500,000.

First Home Owner Grant changes

The First Home Owner Grant and Other Home Owner Grants Act 2000 (QLD) has been retrospectively amended from 20 November 2023 to increase the amount of the First Home Owner Grant for eligible transactions entered into between 20 November 2023 and 30 June 2025.

For buying or building a new house, unit, or townhouse, the grant amount is:

  • $30,000 for contracts signed between 20 November 2023 and 30 June 2025, both dates inclusive.
  • $15,000 for contracts signed before 20 November 2023.

For owner-builders, the grant amount is:

  • $30,000 where foundations are laid between 20 November 2023 and 30 June 2025, both dates inclusive.
  • $15,000 where foundations were laid before 20 November 2023.

Surcharge rate of land tax – From 30 June 2024

The surcharge rate of land tax applied in addition to land tax rates for foreign companies and trustees of foreign trusts, and absentees, has increased from 2% to 3%. Ex gratia relief continues to be offered for Australian-based foreign entities whose commercial activities make a significant contribution to the Queensland economy and community.

Additional foreign acquirer duty (AFAD) – From 1 July 2024

The rate of additional foreign acquirer duty has increased from 7% to 8%.

By Lawyers updates

By Lawyers Conveyancing (QLD) publications updated to reflect these changes to revenue measures include:

Transfer duty – NSW

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A recent case dealing with transfer duty on real property in deceased estates has been added to the By Lawyers wills and estates publications in New South Wales.

A reassessment of duty almost 5 years after the transaction is a cautionary tale for practitioners to ensure compliance with the Duties Act 1997 and relevant transfer duty rulings.

Section 63 of the Duties Act 1997 provides for concessions when dutiable property is transferred pursuant to a will or the laws of intestacy. The concessions apply when a transfer is made to a beneficiary in conformity with the trusts contained in a will, or arising on an intestacy, or as an appropriation of the deceased’s property towards satisfaction of a beneficiary’s entitlement in the estate.

When a transfer is made to a beneficiary under an agreement, whether or not in writing, to vary the trusts contained in the will or arising on intestacy, the dutiable value of the property is reduced by the value of the beneficiary’s entitlement.

However, under s 63 and NSW Revenue Ruling DUT 046, the transfer duty concessions do not apply to a contract of sale, only to a transfer.

This was confirmed in Cohen v Chief Commissioner of State Revenue [2024] NSWCATAD 136, in this case, Harry Cohen left a property to his three children, Stephen, Peter, and Wendy, in equal shares. The beneficiaries agreed that Stephen could have the property if he paid each of his siblings for their one-third share plus an extra $100,000 each. Rather than a transfer pursuant to a deed of family arrangement, the executors of the estate executed a contract to sell the property to Stephen for the total value.

The contract was submitted to Revenue NSW in 2017, noting that Stephen was beneficially entitled to a one third share of the property from his father’s estate. Duty was assessed and paid on the reduced dutiable value, reflecting Stephen’s one-third interest in the property.

In 2022, the Chief Commissioner issued a Notice of Investigation and ultimately decided that duty had been underpaid. The reassessment stated the dutiable value was the full value of the property as shown on the contract, not two-thirds as initially assessed, resulting in a further duty liability of $29,315.00 plus interest, which was ultimately waived.

The commentary in the By Lawyers Probate (NSW) and Letters of Administration (NSW) guides has been enhanced to cover this situation, and a summary of the case is being added to both 101 Succession Answers (NSW) and 1001 Conveyancing Answers (NSW).

First home buyers – NSW

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New caps and rules over first home buyers schemes in New South Wales come into force on 1 July 2023.

The newly elected New South Wales government has announced extensions to the First Home Buyer Assistance (FHBA) scheme. First home buyers purchasing a new or existing property valued at less than $800,000 will pay no transfer duty. The cap increases on 1 July 2023 from $650,000. First home buyers who buy a new or existing property valued between $800,000 and $1,000,000 can apply for a concessional transfer duty rate. The qualifying range increases on 1 July 2023 from the previous band of between $650,000 and $800,000.

Purchasers who exchange on or after 1 July 2023 will receive the benefit of these higher caps.

The Minns state government has honoured its pre-election commitment to reverse the annual property tax opt-in for first home buyers. The First Home Buyer Choice scheme does not apply to contracts exchanged after 30 June 2023. Full transfer duty is payable on all contacts exchanged on or after 1 July 2023. Purchasers who exchanged between 16 January 2023 and 30 June 2023 have until settlement to make an election between an annual property tax and full transfer duty.

The residence requirement has been extended – eligible first home buyers must now occupy their home for a continuous period of 12 months instead of six months, within 12 months of settlement. The residence requirement applies to the First Home Buyers Assistance scheme, the First Home Owner grant, and the deferral of transfer duty payment for off the plan transactions.

The  By Lawyers New South Wales conveyancing publications have been updated accordingly. The Purchase of Real Property (NSW) and 1001 Conveyancing Answers (NSW) guides contain detailed coverage of transfer duty concessions and government grants for the purchase of real property.

Duty concessions – VIC

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The Victorian state budget contains provisions commencing on 1 July 2023 that affect transfer duty concessions and exemptions for special disability trusts and pensioners.

From 1 July 2023, pensioners purchasing real property for up to $600,000 are exempted from duty. These purchasers buying property valued between $600,001 and $750,000 pay a concessional rate of land transfer duty. The exemption and concession caps mirror the thresholds for first home buyers. Eligibility is assessed on the total value of the purchase.

From 1 July 2023, the special disability trust transfer duty deduction threshold will be increased from $500,000 to $1,500,000 for transfers of a principal place of residence. A new land transfer duty exemption will apply for the transfer of a home by an immediate family member to an individual eligible to be a beneficiary of a special disability trust. The property can be valued at up to $1,500,000. This new exemption is designed to complement the duty concessions and exemptions in s 38A of the Duties Act 2000. The exemption is intended to assist families who wish to provide a home for a severely disabled family member, but consider the process of creating and managing a special disability trust to be too expensive and complex.

The relevant By Lawyers Victorian conveyancing publications have been updated accordingly. The commentary in the Purchase of Real Property (VIC), Sale of Real Property (VIC), and 1001 Conveyancing Answers (VIC) guides contain extensive coverage of land transfer duty and land transfer duty exemptions.

Qld – PEXA settlements – Transfer duty

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New commentary has been added to the By Lawyers Purchase Guide and 1001 Conveyancing Answers Queensland to clarify the specific stamping requirements for PEXA settlements.

Stamping must commence in the PEXA Workspace so that an ELN Transaction Number generates. This allows OSRconnect to directly verify the transfer duty once stamping has been submitted.

If stamping has already occurred in paper then the ELN Transaction Number does not exist and the system is unable to verify transfer duty so settlement in PEXA is not possible. The transaction will then need to revert to a paper settlement.

See the heading ‘Duties and Grants’ in the By Lawyers Purchase Commentary for details on the procedure to be followed.

TAS – transfer duty concessions

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New commentary and forms have been added to the Purchase of real property (TAS) Guide in relation to the availability of new transfer duty concessions for first home owners purchasing an established home and also pensioners downsizing to an established home.

First home transfer duty concessions – Established home

A 50% discount is available on transfer duty for first home buyers of established homes which have a dutiable value of $400,000 or less. The discount is available for purchases of established homes that settle within the period 7 February 2018 and 6 February 2019. The eligibility requirements are set out in full in our commentary. A link to the SRO form Section 46E Concession from duty -Transfer to first home buyers of an established home has been added to the matter plan.

Transfer duty concessions for pensioners downsizing

This concession provides a 50% discount on transfer duty for eligible pensioners who sell their existing home and downsize to another home (not vacant land) with a dutiable value of $400 000 or less (and also less than that of the former home). Both homes must be in Tasmania and the new home must be an established property.

The concession is available where:

  • the sale of the former home settles within the period 10 February 2018 and 9 February 2019; and
  • the purchase of the new home settles within six months before or after the transfer of the former home.

The eligibility requirements are set out in full in our commentary.

A link to the SRO form Sections 46N & 46O Concession from duty -Transfer to pensioner/s downsizing home has been added to the matter plan.

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