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Important note: If an exemption or concession under the Duties Act refers only to a 'transfer' or another specific dutiable transaction, entering into other types of dutiable transactions such as an agreement for sale of land or a deed arrangement, will result in the transaction not being eligible for an exemption/concession.
The First Home Buyers Assistance Scheme (FHBAS) commenced on 1 July 2017 and allows purchasers/transferees who are acquiring their first home to apply for a concession or exemption from transfer duty.
Most First Home Buyers Assistance Applications can be processed on Electronic Duties Returns (EDR).
Before processing, refer to the Duties Document Matrix (PDF, 506.95 KB) for specific First Home Buyer transactions that must be lodged in eDuties, for example, where there is a transfer not in conformity with a contract for sale that involves a First Home Buyers Assistance application.
These transactions must be submitted in eDuties using application type:
First Home Buyer Assistance Scheme (FHBA)
First Home Buyer Assistance Scheme (FHBA) involving a trust - Sections 69 - 80A
Transfers between married couples
An agreement for the sale of land and transfer is a dutiable transaction and would normally be liable to full duty at the general rate under section 32 of the Duties Act 1997.
An exemption from duty may apply under section 104B of the Duties Act 1997 where there is an agreement or transfer between a married couple or de facto partners and the property which is agreed to be transferred:
(i) is residential land on which there is a dwelling that, when the transfer of dutiable property occurs, is used as the principal place of residence of the married couple or de facto partners, or (ii) is a parcel of vacant land, or land on which there is a building under construction, and the married couple or de facto partners intend to use the residential land as the site of a dwelling to be used as their principal place of residence.
As a result of the transfer, the property must be held equally by both partners of the relationship (as joint tenants or tenants in common in equal shares).
In the case of de facto partners, under section 104B(e) of the Duties Act 1997, the parties to the relationship must have lived in the relationship for at least 2 years before the date of the transfer.
Concession - Transfer of land used as principal place of residence and for other purposes
Section 104C of the Duties Act 1997 provides for a concession for mixed development land or mixed use land but only on the residential portion of the land that is used as the principle place of residence.
All transactions under section 104C must be lodged in eDuties under application type: Assessment - transfers of land used as the couple's / partner's principal place of residence and for some other non-residential purpose - section 104C.
Refer to the Duties Act evidentiary requirements: Section 104 - Exemption - transfer of residential land Concession - transfer of land used as principal place of residence and for other purposes.
Where there is an agreement or transfer of dutiable property as a result of a breakdown of a marriage, de facto relationship or domestic relationship, the agreement or transfer may be eligible for an exemption under section 68 of the Duties Act 1997 if specific criteria is met, and the property is transferred to:
a party to the relationship
a child or children of either of the parties to the relationship or a trustee of this child or children
The agreement or transfer must be effected by or in accordance with the relevant supporting documents as set out in the Duties Act:
Transfer of primary production (business property) between family members
An agreement for the sale or transfer of land may be exempt from duty where the land, or an interest in the land, is used for primary production and is transferred between family members.
The exemption can also apply where the land is transferred to, or from, associated companies and trusts under which the relevant family members are shareholders or beneficiaries of those entities.
The land must be land used for primary production in connection with a business carried on by the transferee, or by a member of the family of the transferee (whether alone or with others) immediately before the transaction or the date of first execution of the instrument, and the business is to continue to be carried on by the transferee (whether alone or with others). A transferee includes lessee and assignee, a transferor includes lessor and assignor.
The Revenue Ruling includes information aimed to assist taxpayers and their representatives decide whether a transaction will be liable to duty and includes information such as transactions to which the exemption applies and the meaning of ‘land used for primary production’.
The ruling also includes practical examples where the transaction involves deceased estates, bare trusts, self managed superannuation funds, discretionary trusts, private unit trust schemes and proprietary limited companies.
However, if any parcels of land being transferred are predominantly used for residential purposes the exemption under section 274 may not apply to that parcel of land and surcharge purchaser duty may be payable if foreign persons are acquiring the residential related property.
Sections 275 and 275A of the Duties Act 1997 provides an exemption or partial exemption on certain transactions relating to charitable or benevolent bodies.
Surcharge purchaser duty is not payable if the transaction is exempt from transfer duty under section 275 of the Duties Act 1997.
Transactions that are partially exempt under Section 275A may be liable to Surcharge purchaser duty if the portion of the land liable to duty is residential related property being acquired by foreign persons.
All transactions under this section must be lodged in eDuties under application type: Exemption - charitable and benevolent bodies - sections 275 and 275A.
Councils, county councils and joint organisations
Duty is not chargeable on a dutiable transaction in respect of dutiable property if the person liable to pay the duty is a Council, County Council or joint organisations under the Local Government Act 1993.
However, the exemption does not apply if there is a connection with or arising from the establishment, acquisition and operation of any trading undertaking, being -
the supply of electricity, gas, liquefied petroleum gas or hydraulic power and the supply and installation of associated fittings and appliances, or
the operation of a coal mine and the supply and distribution of coal, or
the operation of a public transport service, or
the supply of building materials.
A statutory declaration from the liable party confirming the dutiable property is not being used for any of the above trading undertakings must be provided to evidence the transaction meets the above criteria.
Department of Housing and Aboriginal Housing Office tenants
Duty is not chargeable on an agreement for the sale or transfer, or a transfer of land, if the purchaser, or at least one of the purchasers at the date of the transaction is a tenant of:
the Department of Housing, or
the Community Tenancy Scheme administered within the Department of Family and Community Services, or
the Aboriginal Housing Office.
A letter must be provided by the Department of Housing, the Community Tenancy Scheme, or the Aboriginal Housing Office to confirm the tenancy.
The eligible tenant must:
obtain not less than 25% of the beneficial ownership of the land, and
occupy the land as his or her principal place of residence for a continuous period of at least 12 months, with that occupation starting within 12 months after completion of the agreement for sale or transfer, or transfer, of the land. This requirement is referred to as ‘the residence requirement’.
Where the eligible tenant obtains less than 100% of the beneficial ownership of the property the exemption applies only if-
the other purchasers are natural persons, and
the Chief Commissioner is satisfied that each of those other purchasers is a member of the eligible tenant’s family or a person who is genuinely assisting the eligible tenant to acquire the land as his or her principal place of residence.
Note: A person is a member of an eligible tenant’s family if one is the spouse or de facto partner of the other, or the relationship between them is that of parent and child, brothers, sisters, or brother and sister.
