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NSW Budget 2023-24: Significant changes to the NSW duty base

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The Treasury and Revenue Legislation Amendment Bill 2023 (NSW) was introduced into the New South Wales (NSW) Parliament on 19 September 2023 and, if passed in its current form, proposes a significant expansion to NSW duty base. The proposed changes generally more closely align to the Victorian (VIC) stamp duty regime.

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21 September 2023

In Brief

The 2023-24 NSW State Budget was released by the Treasurer Daniel Mookhey on Tuesday, 19 September 2023.  

There have been a number of important changes announced in this Budget, most of which are expected to commence on 1 February 2024, subject to the passage of the Treasury and Revenue Legislation Amendment Bill 2023 (NSW). The Bill includes key changes to the corporate reconstruction / consolidation exemption and landholder duty provisions to more closely align these provisions with the current Victorian (VIC) stamp duty rules. The key changes are summarised below.

Corporate reconstruction and consolidation exemption changed to a 90% concession

The current 100 per cent exemption from duty for eligible corporate reconstruction and consolidation transactions will be replaced with a concession of 10 per cent of the duty that would otherwise be payable.

While the change does align with the current VIC 90 per cent concession, the Bill does not contain a similar exemption for subsequent transactions that form part of an arrangement with an earlier transaction that is eligible for the relief (i.e. if the transactions deal with multiple dealings with the same dutiable property or underlying landholdings that occur within 30 days of the first eligible transaction).

Under the proposed transitional rules, the rules currently in force (i.e. a 100 per cent exemption) are still expected to apply to:

  • transactions occurring before 1 February 2024, or 
  • a transaction occurring on or after 1 February 2024 if an application for the exemption is made on or before 1 April 2024 and the transaction arose from an agreement or arrangement entered into before 19 September 2023.

Landholder duty for private unit trust schemes; introduction of ‘“wholesale unit trusts’” and changes to the Linked Entities Tracing Rule

Reduction of acquisition threshold for private unit trust schemes 

The threshold for acquiring a significant interest in a private unit trust that is a landholder will be reduced from 50 to 20 per cent, being the same as the acquisition threshold for private unit trusts in VIC.

New regime for wholesale unit trusts 

A separate regime is intended to be introduced for wholesale unit trusts. Relevantly, under the proposed amendments, the Chief Commissioner will be allowed to register wholesale unit trust schemes, which is expected to have the effect of preserving the 50 per cent acquisition threshold for these entities. 

The regime for wholesale unit trusts is expected to be broadly similar to VIC (e.g. there is scope for registration as an ‘imminent wholesale unit trust scheme’), except that a wholesale unit trust in NSW will require at least 80 per cent qualified investors (as opposed to 70 per cent which applies in VIC). Like VIC, no qualified investor may hold 50 per cent or more of the units (either alone or together with associates) and foreign investors must apply to the Chief Commissioner to be recognised as a qualified investor (i.e. they do not automatically qualify). There is also scope for the Chief Commissioner to specify additional requirements by Gazette order.

The list of ‘qualified investors’ is also broadly the same as VIC and relevantly includes complying superannuation funds, listed entities, trustees of other wholesale unit trusts, life companies, the Crown (and statutory bodies of such) in right of the Commonwealth or a State or Territory, etc. There are, however, some key differences and improvements (e.g. that a wholly owned subsidiary or wholly owned trust of an external territory or foreign country can be a qualified investor under the current drafting; and wholly owned subsidiaries or trusts of complying superannuation funds are specifically catered for).

Like VIC, registration will generally be valid for three years for existing wholesale unit trusts and one year for imminent wholesale unit trusts, provided that the requirements continue to be satisfied during this period, with renewal required.  After that time a renewal application will need to be made.

Also, unlike VIC, there is no requirement for:

  • the trustee of the unit trust to hold an interest in three or more parcels of Australian land, with at least two of those properties having an unencumbered market value of $10 million or more; or
  • at least six unitholders in the unit trust who are not associated persons to each have a subscription in the unit trust of $3 million or more.
Changes to tracing / linked entity rules

The threshold for tracing property through linked entities of a landholder will also be reduced from 50 to 20 per cent, similar to VIC. The practical effect of this amendment is significant as many entities will, for the first time, become landholders (from 1 February 2024) such that certain dealings in those entities may attract landholder duty (where they otherwise would not under the current laws).  

The landholder duty changes will apply to relevant acquisitions occurring on or after 1 February 2024. There is also some transitional relief for relevant acquisitions occurring on or after 1 February 2024 if the acquisition arose from an earlier agreement or arrangement entered into before 19 September 2023. 

Other

The fixed and nominal duty amounts for various transactions under the Duties Act 1997 (NSW) will be increased. For example, this includes increases in the nominal duty:

  • on a declaration of trust over unidentified property signed in NSW (or electronically by a trustee based in NSW) from $500 to $750;
  • on transfers occurring in conformity with an agreement upon which duty has been paid, from $10 to $20; and 
  • on certain concessions, including change of trustee concession from $50 to $100, or certain managed investment scheme concessions from $50 to $500.  

These changes will apply to most transactions occurring on or after 1 February 2024, regardless of whether they arise under an arrangement entered into before this date.  The exception being that nominal duty for transfers of land under agreements entered into before 1 February 2024 will remain at $10.   

The Bill also includes amendments for the following:

  • remove an exemption from duty in relation to certain electric vehicles
  • revise the land tax indexation formula to ensure that the NSW Valuer General can determine the correct land tax threshold for the 2024 land tax year
  • require that a person occupying a property as their principal place of residence must own at least a 25 per cent interest in the property to be eligible for the land tax exemption
  • re-enact a power of the Chief Commissioner to remit interest and include a new power for the Chief Commissioner to issue guidelines about how interest must be remitted.

Key takeaways

The NSW stamp duty base continues to expand, both in its scope and complexity. Taxpayers should take particular care and consider the timing and implementation of any proposed acquisitions, capital raisings and restructures with regard to the proposed amendments, noting, in particular, the following:

  • Corporate reconstructions implemented prior to 1 February 2024 should be fully exempt (subject to satisfaction of requirements), whereas those occurring on or after this date will generally attract duty at concessional rates.
  • More entities (whether companies or trusts) are expected to constitute landholders from 1 February 2024, on account of the reduced ‘linked entity’ threshold (from 50 to 20 per cent) to enliven the ‘tracing’ or constructive ownership rules at lower levels of indirect ownership.
  • Dealings in landholder private unit trusts, prior to 1 February 2024 will benefit from the existing 50 per cent acquisition threshold, whereas those on or after this date will generally be subject to a lower 20 per cent threshold.
  • Certain unit trusts will be able to qualify as ‘wholesale’ so as to retain the 50 per cent acquisition threshold beyond 1 February 2024; however, this will be subject to a registration and ongoing renewal requirement.
Contact us

If you would like to further discuss the above, reach out to our team or your PwC adviser.

Rachael Cullen

Partner, Tax, Sydney, PwC Australia

+61 409 470 495

Email

Barry Diamond

Partner, State Taxes, Melbourne, PwC Australia

+61 (3) 8603 1118

Email

Cherie Mulyono

Partner, State Taxes & Shine (PwC's LGBTIQ+ network), PwC Australia

+61 2 8266 1055

Email

Matthew Sealey

Partner, Financial Advisory - Tax, Sydney, PwC Australia

+61 400 684 803

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Ari Esmerian

Partner, Global Tax, PwC Australia

+61 420 360 654

Email

Rachael Munro

Partner, Tax Controversy and Dispute Resolution, Perth, PwC Australia

+61 416 108 657

Email

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