05 Jun 2013

NSW Duties Act amendments will hit property, resources and agribusiness sectors

Nominations under options and the treatment of mining tenements and primary production land under the landholder provisions are the subject of amendments to the Duties Act 1997 currently before the NSW State Parliament.

Once passed, the State Revenue Legislation Amendment Act 2013 will effect the following amendments:

  • Nominations under, and novations of, options to purchase land, if effected for valuable consideration, will be deemed to be transfers of options to purchase land, attracting transfer duty. This reflects OSR practice prior to the recent decision of Justice Gzell in CTI Joint Venture Company Pty Ltd v CCSR. The new section will apply to all nominations or novations made for valuable consideration on or after the later of 1 July 2013 and the date of assent to the Bill. It has no impact on the existing provisions relating to put and call options.
  • A new definition of "mining tenements" and a revised definition of "interest in land" have been included so that assessment leases, exploration licences and opal prospecting licences will be deemed to be interests in land under the Act, including for landholder duty purposes. In addition, the unencumbered value of an interest in land arising because of a mining tenement will now include the value of any information about the land.
  • The 80% landrich test in respect of land used for primary production has been removed from the landholder duty provisions. Thus land used for primary production is to be treated in the same way as any other land.
  • The exemption from landholder duty in circumstances where the Chief Commissioner is satisfied it would not be just and reasonable to levy duty has been removed.

These changes are likely to become effective on 1 July 2013. Accordingly, it may be necessary to bring forward any transactions which might be affected by them.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.