You may be liable for landholder duty when you acquire shares or units in a company or unit trust which owns land (‘landholder’).
A landholder is a unit trust scheme or a private or a publicly listed company that holds land (‘landholdings’) in NSW with a ‘threshold value’ of $2 million or more.
A landholding is an interest in land other than the estate or interest of a mortgagee, charge or other secured creditor.
The threshold value is the total value of all ‘landholdings’ in NSW as registered by the Valuer-General as at 1 July the previous year.
A liability for landholder duty arises when you make a ‘relevant acquisition’.
A relevant acquisition occurs when you acquire an interest that:
A significant interest means, in the event of a distribution of all the property of the landholder immediately after the interest was acquired, you are entitled to:
Acquiring a significant interest does not have to occur in one event. For instance, if you already hold a 45% interest in a landholder and then acquire another 5%, you may be liable to pay landholder duty.
You can acquire an interest in a landholder in various ways, including:
If you’ve made a relevant acquisition in a landholder, you need to lodge an Acquisition Statement within three months of your acquisition. Where landholder duty is payable, complete and lodge the appropriate form.
If you make a relevant acquisition as a result of the combined interests of other persons or companies, which are related or associated to you, each person or company must complete their own acquisition statement.
Each form gives you information on the supporting documents you will need to submit.
Landholder duty is charged at the same rate as transfer duty and is calculated on the unencumbered value of the landholdings and goods of the landholder. However, there is a specific provision for certain goods that are excluded from the calculation.
A different formula is then applied to this amount for private and public landholders.
If you make one acquisition in the statement period, landholder duty will be charged on the unencumbered value of all NSW landholdings and goods multiplied by the proportion of the landholder you acquire.
If you make more than one acquisition in the statement period, duty will be calculated by taking into account the proportion of your combined interest in the landholder.
Duty will be reduced by the amount of duty paid in a previous acquisition within the statement period.
Any proportion of the duty paid or payable on a share or unit transfer (only applicable to relevant acquisitions prior to 1 July 2016) is reduced by the formula A/B x C, where
A = the unencumbered value of the landholder’s land and goods in NSW
B = the total unencumbered value of all the landholder’s property
C = any duty already paid (e.g. duty on shares or a capital reduction or rights alteration).
If you make a relevant acquisition in a public landholder, duty is 10 per cent of the duty that would be charged on a transfer of all the landholdings and goods of the landholder in NSW.
Once duty has been paid on a relevant acquisition by a person in a public landholder, further acquisitions made by that person in that public landholder will not attract duty.
Companies and unit trusts can hold land and property in their own right, or they can hold an interest via linked entities.
A linked entity is a chain of entities – such as companies, unit trusts or partnerships – that are each entitled to the others’ property if it is distributed.
For linked entities, either one or both of the following apply.
The value of a linked entity’s interest is the portion of unencumbered value the company or unit trust would be entitled to if each entity was wound up.
Where the landholder is the beneficiary of a discretionary trust, any land or property it owns are considered to be interests of the landholder.
If you are a foreign person, and you have made a relevant acquisition in an landholder that has an interest in residential land, you may also need to pay Surcharge Duty in addition to landholder duty.