A house is not a home: when is the residence requirement for stamp duty met? – Property taxes

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Transfer duty (or “stamp duty”) can represent a significant additional cost when buying real estate. As such, it is important to know when this duty is due.

Generally, a buyer must pay the duties within 3 months of the exchange of contracts. However, an “off-plan” property buyer may be able to delay payment of duties for up to 12 months from the exchange of contracts.1

To do this, the following conditions must be met:

  1. the purchaser must use and occupy the residence as their “principal place of residence”

  2. for a continuous period of at least 6 months

  3. whose occupancy begins no later than 12 months after the conclusion of the sale or transfer contract.2

The Rights Act refers to the above as the “residency requirement”.

What is a primary place of residence?

Recently, the New South Wales Civil and Administrative Court considered what it means to use or occupy a place as a “principal place of residence”.3

In this case, the plaintiff (Mr Peng) claimed to have resided at property in Hornsby for 6 months (and as such met the residency requirement). Revenue NSW argued that he was in fact residing at a property in Burwood during the relevant period.

The Tribunal confirmed that the following principles are applied when determining whether someone occupied a property as their “principal place of residence”:

  1. The issue is examined objectively, with the Tribunal considering the evidence available to it, of these circumstances relating to the actual use and occupancy of the property.4


  2. For example, relevant evidence could potentially include: evidence of where someone eats or sleeps, electricity or other utilities used, or personal mail or driver’s license referring to this address.

  1. While subjective intent is relevant, buyer intent alone does not determine the issue.5


  2. For example, a buyer simply stating that he considered a property his principal place of residence might not be sufficient (especially when other evidence suggests otherwise).

  1. Occupancy by a purchaser must have some degree of permanence (vs. ‘transitory’ or ‘temporary’ occupancy).6


  2. For example, the mere fact of sleeping in a certain residence on occasion, or residing there only briefly, would run counter to a court finding that the property was a director place of residence.

For Mr Peng, evidence of “rent” from the Hornsby property, as well as regular payments from him in the Burwood area, suggested that the Hornsby property was not his primary place of residence. The Tribunal also considered a Border Force passenger statement by Mr. Peng, which listed the Burwood property as his address.

In this case, the key for an off-plan buyer is to know what evidence will be relevant, in case they are ever required to establish that the residency requirement in fact applies to their purchase.

Footnotes

1Rights Act 1997 (New South Wales) s 49A.

2Rights Act 1997 (NSW) s 49A(1A) and s 49A(1B).

3Peng v Chief Commissioner of State Revenue [2022] NSWCATAD 212 (‘Ping‘).

4Pingat [38].

5 Pingat [44].

6Pingat [46].

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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