About transfer duty

Land includes

• any estate or interest in land
• a mining tenement
• an estate or interest in a mining tenement
• a pastoral lease
• an interest of a pastoral lessee under a pastoral lease
• anything fixed to the land (including land the subject of a mining tenement or pastoral lease), whether or not the thing constitutes a fixture at law, is owned separately from the land, is notionally severed or considered to be legally separate from the land as a result of the operation of any law of the State or Commonwealth, or an estate or interest in anything fixed to land.

Land does not include a carbon right or a carbon covenant registered under the Carbon Rights Act 2003 or a derivative mining right.

A thing fixed to land, or an estate or interest in a thing fixed to land, is not land if

• it is fixed to land on a temporary basis and only for the purpose of being used in construction works or
• it does not constitute a fixture at law and that is held or used in connection with the business of primary production or
• it is a relocatable home fixed to a residential park site, or an addition or structure fixed or attached to the home or site, that does not constitute a fixture at law or
• the thing is acquired without the underlying land as part of the transaction (or another transaction aggregated with that transaction) and there is an arrangement for the purchaser to permanently remove the thing within 90 days after it is transferred (or a longer period approved by the Commissioner).

A right is only dutiable property if a transfer of the property to which the right relates would be dutiable. Rights include

• an option to acquire dutiable property, unless the option is part of simultaneous put and call option over dutiable property
• a right of pre-emption for dutiable property
• a right to acquire dutiable property
• a right under a joint venture relating to dutiable property of the joint venture
• a right to exploit dutiable property
• a right to income from dutiable property
• a right to capital growth of dutiable property
• a fixed infrastructure control right; ­ a fixed infrastructure access right
• a fixed infrastructure statutory licence
• a derivative mining right
• a right under an application under the Mining Act 1978 for a mining tenement
• a licence, or a water entitlement under a licence, under the Rights in Water and Irrigation Act 1914 section 5C and
• a part of, or an interest in, a right.

A transaction over a chattel is not a dutiable transaction if the only property the subject of the transaction is a chattel.

A transaction relating to a chattel is also a dutiable transaction if

• it involves another dutiable transaction and the transactions are treated as a single dutiable transaction or
• it is part of the same arrangement as an acquisition of a significant interest in a landholder or an acquisition of a further interest of a landholder who already holds a significant interest.

A business asset means any of the following:

• goodwill of a business
• a restraint of trade arrangement
• a business identity
• a business licence
• a right of a business under an uncompleted contract to supply commodities or provide services
• intellectual property
• things that a business has that are in the nature of rent rolls and client lists.

A business asset does not include a trade debt.

Certain types of dutiable property (referred to as ‘new dutiable property’) will be dutiable on their creation, grant or issue. New dutiable property includes:

• land in Western Australia
  • land that includes an estate or interest in land, such as certain profit a prendres or leasehold interests.
• the following rights
  • an option to acquire dutiable property, unless the option is part of a simultaneous put and call option over dutiable property
  • a right to acquire dutiable property
  • a fixed infrastructure control right
  • a fixed infrastructure access right
  • a derivative mining right.
• the following Western Australian business assets
  • intellectual property
  • a restraint of trade arrangement
  • a business identity.

The following are not new dutiable property, and will not be dutiable upon their creation grant or issue:

• a security interest in dutiable property
• a partner’s interest in a partnership
• a lease (other than a pastoral lease) if no consideration is paid, or agreed to be paid, for the grant of the lease
• a pastoral lease, or an interest of a pastoral lease under a pastoral lease, if the grant of the lease under the Land Administration Act 1997 section 101 is not subject to the payment of a sale price
• a mining tenement
• a licence, or water entitlement under a licence, under the Rights in Water and Irrigation Act 1914 section 5C
• a profit a prendre created under a timber sharefarming agreement under the Conservation and Land Management Act 1894 or the Forest Products Act 2000, unless a profit a prendre had been previously created in respect of a crop of trees to which the agreement applies
• a plantation interest, created under an agreement under the Tree Plantation Agreements Act 2003, unless the interest had been previously created in respect of a plantation to which the agreement applies.

Certain types of dutiable property (referred to as ‘special dutiable property’) will be dutiable on their surrender. Special dutiable property includes

• a life interest in land
• a remainder interest in land
• a lease (other than a pastoral lease), if consideration is paid, or agreed to be paid, by the lessor for the surrender of the lease
• an easement
• a right of way
• a mining tenement in whole or part, if the surrender is made in contemplation of, or as part of an agreement that, the tenement, or part of the tenement, be granted to, or acquired by, another person
• a right under an application under the Mining Act 1978 for a mining tenement if consideration is paid for the transaction
• a fixed infrastructure control right, if consideration is paid or agreed to be paid for the surrender of the right
• a fixed infrastructure access right, if consideration is paid or agreed to be paid for the surrender of the right
• a derivative mining right, if consideration is paid or agreed to be paid for the surrender of the right.

The Duties Act requires an instrument in hard copy form that effects or evidences a dutiable transaction to be self assessed or lodged within two months after the date that liability for duty on the dutiable transaction arises.

If there is no hard copy instrument effecting or evidencing the transaction, a transfer duty statement in the approved form must be lodged with the Commissioner within two months after the date that liability for duty on the dutiable transaction arises.