New South Wales Consolidated Acts

DUTIES ACT 1997 - SECT 104ZJA

104ZJA Certain development by Australian-based developers that are foreign persons

(1) An Australian corporation that is the transferee under a transfer of residential-related property is entitled to a refund of surcharge purchaser duty paid by the transferee that is chargeable on the transfer if the Chief Commissioner is satisfied that--

(a) a new home has been constructed on the land concerned by the transferee or a related body corporate after completion of the transfer to the transferee and then sold by the transferee to a person who is not an associated person of the transferee without the home having been used or occupied for any purpose (other than as a display home) before the completion of that sale, or

(b) the land concerned has been subdivided by the transferee for the purpose of its use for new home construction and then sold by the transferee after the issue of a subdivision certificate (as referred to in the Environmental Planning and Assessment Act 1979 , section 6.4) for the subdivision, or

(c) the land has been used by the transferee or a related body corporate, after completion of the transfer, wholly or predominantly for commercial or industrial purposes.

(2) The amount of the refund to which a transferee is entitled under this section is the amount that is determined in accordance with an order made by the Treasurer for the purposes of this section and published in the Gazette. The amount of the refund may be the full amount of duty paid or a lesser amount (as determined in accordance with the order).

(3) The Chief Commissioner may approve a person as an exempt transferee for a particular transfer or class of transfers if the Chief Commissioner is of the opinion that the person is likely to become entitled under this section to a refund of the full amount of surcharge purchaser duty chargeable on a transfer to which the approval applies.

(4) No surcharge purchaser duty is chargeable on a transfer of residential-related property if the transferee under the transfer is approved as an exempt transferee for the transfer at the time liability for duty would otherwise have arisen.

(5) The approval of a person as an exempt transferee is subject to the following provisions--

(a) an approval may be given subject to conditions and the approval operates subject to any such conditions,

(b) the conditions of an approval may be varied by the Chief Commissioner at any time by notice to the person,

(c) an approval remains in force until it is revoked and can be revoked by the Chief Commissioner at any time by notice to the person,

(d) the revocation of an approval can be backdated to extend to a transfer in respect of which liability for surcharge purchaser duty would (but for the approval) have arisen before the revocation is notified (an
"exempted transfer" ),

(e) if the revocation of an approval is backdated to extend to an exempted transfer, surcharge purchaser duty is payable and is to be assessed or reassessed as if the approval had never applied to the transfer and as if liability for duty arose when revocation of the approval was notified.

(6) Surcharge purchaser duty may be refunded under this section only if an application for the refund is made--

(a) within 12 months after the entitling event, and

(b) no later than 10 years after completion of the transfer of the residential-related property to the Australian corporation.

(6A) For the purposes of the Taxation Administration Act 1996 , section 9(3)(c), a reassessment under this section is authorised to be made more than 5 years after the initial assessment.

(7) This section does not apply to a transfer of residential-related property that is a surcharge duty transaction referred to in section 104L (1) (b) except an agreement for the sale or transfer of residential-related property.

(8) In this section--

"Australian corporation" means a corporation that is incorporated or taken to be incorporated under the Corporations Act 2001 of the Commonwealth.

"entitling event" means--

(a) for a refund under subsection (1)(a)--the completion of the sale of the new home, or

(b) for a refund under subsection (1)(b)--the issue of the subdivision certificate, or

(c) for a refund under subsection (1)(c)--the start of the use of the land wholly or predominantly for commercial or industrial purposes.

"new home" has the same meaning as in the First Home Owner Grant (New Homes) Act 2000 .