The cost of property is expensive enough for most buyers without the added cost of transfer duty. When contemplating the purchase or transfer of property, you should consider whether any of the available exemptions or concessions to transfer duty may apply. This article sets out some common exemptions and concessions to transfer duty in Queensland.
Transfers between married couples and de facto partners
Under section 151 of the Duties Act 2001 no duty is chargeable on a transfer of residential property if:
• the transfer is between Husband and Wife or De Facto Spouses who have lived together for two years or persons living in registered relationships;
• the transfer is completely by way of gift;
• the property will be held as tenants in common in equal shares or joint tenants; and
• the residence will be the principal residence of the parties.
Transfers as the result of a breakdown of marriage or de facto relationship
Under section 424 of the Duties Act 2001 and sections 90, 90L and 90WA of the Family Law Act 1975 no duty is chargeable on transactions that give effect to a court order or a financial agreement made under the Family Law Act 1975.
For example, you can be exempt from paying transfer duty if:
• You have entered into Consent Orders, which have been filed and sealed by the Family Court of Australia, and the Consent Orders are dated prior to the date of the transfer; and
• You have entered into a Financial Agreement with the Financial Agreement being dated prior to the date of the transfer. Transfer to effect a change of tenure Under section 143 of the Duties Act 2001 a transaction effecting a change in the registered ownership of a property is exempt, provided the transaction does not change the value of each co-owner’s interest. For instance, no duty is chargeable on transactions that change the registered ownership from:
• Tenants in common in equal shares to joint tenants; or
• Joint tenants to tenants in common in equal shares.
First Home Owner concessions
Part 9 of the Duties Act 2001 provides concessions for the transfer, or agreement for the transfer, of a home, first home, or land on which a first home is to be constructed. To be eligible for the first home owner concession:
• You must have never owned residential land before;
• You must move onto the property:
– within one year of the settlement in the case of an acquisition of residential land, or
– within two years of the settlement in the case of a residence being built on vacant land;
• You must remain living in the property as your principal place of residence for at least one year;
• You must not dispose of part or all of the property prior to, or within one year of moving in;
• You must have never received a first home transfer duty concession before.
To be eligible for a home owner concession:
• You must have owned residential land before;
• You must move into the property within 12 months of settlement;
• You must remain living in the property as your principal place of residence for at least one year;
• You must not dispose of part or all of the property prior to, or within one year of moving in.
Superannuation concessions
Sections 108 and 109 of the Duties Act 2001 provide for a concession on the duty payable on:
• A Transfer between superannuation funds to merge or split superannuation funds; and
• The creation of a trust because of the variation or reconstitution of a superannuation fund.
To qualify for this concession, the superannuation fund must become a “complying superannuation fund” under sections 42 and 42A of the Superannuation Industry (Supervision) Act 1993 (Cwlth) within one year.
Transfers to effect the distribution of a Deceased person’s estate
Under section 124 of the Duties Act 2001 the property distribution of a deceased person’s estate is exempt from transfer duty.
Transfers that arise from particular vestings of dutiable property
Under section 125 of the Duties Act 2001 no duty is chargeable on a transaction that arises from either of the following:
• A vesting of dutiable property on a statutory trust for sale or partition under the Property Law Act 1975, part 5; or
• A vesting of dutiable property in a receiver or trustee in bankruptcy or a retransfer of the property to the bankrupt on the bankrupt’s discharge from
bankruptcy.
Disclaimer
The above is by no means a complete list of exemptions or concessions under the Duties Act 2001. More information is available on the Office of State Revenue website (www.osr.qld.gov.au). If you are seeking to purchase or transfer a property it is recommended that you seek legal advice. For an appointment with one of our solicitors free call 1800 689 303.
