Exemption from Duty - Intergenerational Rural Transfers and Leases

Preamble

1. Since 1994, families in the rural sector have been able to claim relief from stamp duty on the transfer of farming properties to younger generations. The exemption is intended to encourage younger members of farming families to stay on the farm, and to allow the older generation to retire without the value of the farm affecting their entitlement to a pension.

2. Section 274 of the Duties Act 1997 provides that duty is not chargeable on certain transactions relating to land used for primary production. The exemption is limited by reference to the use of the land, the parties to the transaction, and other requirements contained in guidelines approved from time to time by the Treasurer.

3. A number of recent cases indicated situations that were not adequately covered by previous guidelines. The guidelines have been updated, particularly in relation to the parties to the transaction and the extent to which the exemption applies to transfers of fractional interests. This ruling replaces ruling DUT 002, and includes guidelines approved by the Treasurer with effect from 1 February 2002.

4. Applications should be made on the form ODA 016.

Ruling

Transactions which qualify for exemption

5. The following transactions are eligible for exemption:

   • a transfer of land

   • an agreement for the sale or transfer of land

   • a lease of land

   • a transfer or assignment of a lease or permit in respect of land

   • a transfer of shares in a share management fishery within the meaning of the Fisheries Management Act 1994.

6. If the transaction relates to land and other property, the exemption extends to any other dutiable property that is an integral part of the business of primary production, such as shares in a co-operative.

7. The persons who will own the property after the transfer must take legal and beneficial ownership of the entire property. For example, the transfer of a fractional interest that results in the transferee obtaining full title (that is, where the transferee is already a part owner) is eligible.

8. The transfer of a fractional interest that results in the transferor retaining an interest in the property is not eligible, provided that the transferor may retain the farmhouse and the existing area of land on which the farmhouse is situated.

9. The transfer of one of two or more properties owned by the transferor is eligible provided the separate properties were previously, and will continue to be, operated as separate primary production businesses.

Land used for primary production

10. The land to which the transaction relates must be land used for primary production, as defined in section 274 (3) of the Duties Act. This means land used primarily for:

    1. the cultivation of the land for the purpose of selling the produce of the cultivation, or

    2. the maintenance of animals or poultry on the land for the purpose of selling them or their natural increase or bodily produce, or

    3. the keeping of bees on the land for the purpose of selling their honey, or

    4. a commercial plant nursery, but not including a nursery at which the principal cultivation is the maintenance of plants pending their sale to the general public, or

    5. the propagation for sale of mushrooms, orchids or flowers, or

    6. aquaculture, being land subject to an aquaculture permit within the meaning of the Fisheries Management Act 1994.

11. The Chief Commissioner must be satisfied that the land:

    1. was used for primary production by the transferor, lessor or assignor (or by the deceased in the case of a transfer by an executor) immediately before the transaction; and

    2. will continue to be used for primary production by the transferee, lessee or assignee.

12. Exemption will not be granted if the primary production business is leased to a person who is not a descendant.

Parties to the transaction

13. The transferee, lessee or assignee must be a natural person who is a descendant of the transferor, lessor or assignor. For the purposes of these guidelines, descendant means:

    • child or step child;

    • grandchild;

    • brother or sister;

    • brother-in-law or sister-in-law

    • niece or nephew;

    or the spouse of any of them.

14. The following table details the person in relation to whom the transferee, lessee or assignee must be related.

    Transferor, lessor or assignor	Transferee, lessee or assignee
    Natural person (not acting in the capacity of executor or trustee)	Descendant of the transferor, lessor or assignor
    Executor of a deceased estate	Descendant of the deceased
    Proprietary limited company	Descendant of a shareholder or shareholders: who hold the shares beneficially; who are entitled to vote at meetings of the company; and who are entitled (as shareholders) to 25% of the assets of the company on winding up, being an entitlement that existed for at least 3 years prior to the date of transfer or lease, or from the date of incorporation of the company
    Trustee of a bare trust	Descendant of a named beneficiary of the trust
    Trustee of a discretionary trust	Descendant of a person or persons who are entitled (as takers in default of appointment) to a 25% interest in the capital of the trust fund, being an entitlement which existed for at least 3 years prior to the date of transfer or lease, or from the date of establishment of the trust
    Trustee of a private unit trust	Descendant of a unitholder or unitholders: who hold the units beneficially; and who are entitled (as unitholders) to 25% of the assets of the unit trust on winding up, being an entitlement that existed for at least 3 years prior to the date of transfer or lease, or from the date of establishment of the trust

15. If land is owned by a company or unit trust which in turn is owned or partially owned by another company or unit trust, the subsidiary company or trust is to be notionally wound up to determine whether the transferee is a descendant of a shareholder or unitholder.

16. Applications for exemption should contain the following supporting information.

    • Where the transferor is executor – a copy of the will.

    • Where the transferor is a proprietary limited company – copies of the memorandum and articles of association, and the latest balance sheet of the company, together with a certified copy of the share register.

    • Where the transferor is trustee of a unit trust – copies of the stamped trust deed and the latest balance sheet of the unit trust.

    • Where the transferor is a trustee of a discretionary trust or a trust for a named beneficiary – a copy of the stamped trust deed and any amendments.