Overview of state and territory Budgets 2023-24

The Northern Territory Government delivered its Budget on Tuesday, 9 May 2023. Headlining the Budget was the announcement that stamp duty would be abolished on the conveyance of:

• all non-land property (ie business assets), except for chattels (ie goods) conveyed together with an interest in land; and
• chattels conveyed together with a lease that has nil or nominal dutiable value (eg because the lease requires payment of market value rent).

In future, conveyance duty will only be charged on conveyances of interests in land (including options) and certain goods conveyed together with such interests in land.

The Stamp Duty Amendment Act 2023 (NT) was passed by the Legislative Assembly to implement these changes by:

• deleting the following items from the definition of dutiable property:
  • goodwill
  • rights to use a business name, trading name or trademark
  • rights to use a patent, registered design or copyright
  • rights to use information or technical knowledge
  • patents, registered designs and copyright
  • Commonwealth statutory licence
  • Northern Territory statutory licence; and
• introducing a new exemption from conveyance duty for conveyances of chattels as part of a transaction that includes a conveyance or grant or a lease of land (or interest in such a lease) for nil or only nominal dutiable value, and does not include a conveyance of any other dutiable property.

These amendments take effect from Budget day. However, transitional rules will ensure that conveyances of formerly dutiable property executed, or made under an option entered into, before Budget day remain subject to duty.

This abolition of conveyance duty on business assets will ensure that purchasers of a business are no longer required to apportion the value of intangible business assets, like intellectual property, to the Northern Territory, even if the business only had customers and no physical operations in the Territory, and pay duty accordingly. This is a welcome development, given that the compliance cost was often greater than the duty liability itself.

The abolition of duty by the Northern Territory leaves Queensland and Western Australia as the only jurisdictions that still impose transfer duty on business assets.

The Western Australian Government delivered its Budget on Thursday, 11 May 2023. A sixth consecutive surplus meant that only minor revenue measures were announced:

• off-the-plan transfer duty assistance will change from a rebate to a concession after 31 August 2023, and be extended from 24 October 2023 to 30 June 2025; and
• from Budget day, the rebate/concession thresholds will increase (100% for properties valued up to $650,000, phasing to 50% for properties valued over $750,000, capped at $50,000 in total).

The Western Australian Parliament has passed the Duties Amendment (Off-the-Plan Concession and Foreign Persons Exemptions) Act 2023 (WA) to give effect to these announcements. In addition, the Act:

• extends the off-the-plan transfer duty concession to agreements for the purchase of an apartment in a development already under construction; and
• removes the requirements for the refund of foreign transfer duty and foreign landholder duty in respect of land acquired for the construction/refurbishment or subdivision for construction of 10 or more dwellings that the land not have pre-existing residential property or be substantially vacant (ie to allow refunds where there is a pre-existing residential property on the land).

Implementing an announcement in last year's Budget, the Western Australian Government has also introduced the Land Tax Assessment Amendment (Build-to-Rent) Bill 2023 (WA) into the Parliament.

If passed unamended, the Bill would introduce a 50% land tax exemption for land used for eligible new BTR developments from the 2023–24 financial year.

The eligibility requirements for exemption are:

• the land must be owned by the same owner/group and managed by one management entity
• the development must construct or substantially renovate at least 40 self-contained dwellings for lease under a residential tenancy agreement
• all dwellings become able to be lawfully occupied between 12 May 2022 and 30 June 2032, and are available to rent for a term of at least three years
• the dwellings cannot be restricted to certain classes of person unless this is necessary to ensure public health/safety, or if they are social housing or in other prescribed circumstances.

Where the eligibility requirements are and continue to be satisfied, up to 50% of the taxable value of the land will be exempt from land tax for the following 20 financial years (reduced proportionately for land areas used for other purposes—eg commercial activities).

If the eligibility requirements cease to be satisfied within the first 15 years, the exemption is retrospectively removed and the owner must pay the land tax forgone due to the previous application of the exemption.

The Victorian Government delivered its Budget on Tuesday, 23 May 2023. It announced a number of major tax changes:

• progressively replacing stamp duty with a property tax for commercial and industrial properties
• payroll tax-free threshold changes and temporary surcharge introduced
• land tax thresholds temporarily reduced and temporary surcharge introduced
• absentee owner surcharge rate increased
• business insurance duty to be progressively abolished over the course of the coming decade
• wagering and betting tax rate increased.

With the exception of the proposed property tax and wagering and betting tax rate increases, each of these changes has now been legislated by the State Taxation Acts Amendment Act 2023 (Vic).

The Government was 'proud to announce the intention to introduce a once-in-a-generation reform' of replacing stamp duty for commercial and industrial properties with an annual property tax.¹

From the limited details available in the announcement:

• Transfers of commercial and industrial properties before 1 July 2024 would continue to be subject to transfer duty at ad valorem rates up to 6.5% of unencumbered value (ie market value).
• The first transfer of a commercial or industrial property on or after 1 July 2024 would also be subject to such transfer duty. This could be paid either by:
  • a lump sum; or
  • 10 annual instalments (plus interest at an unspecified rate).
• From 10 years after that transfer, the owner of the property will be subject to an annual property tax of 1% of the unimproved land value (ie the earliest such liability will only arise on 1 July 2034).
• Subsequent transfers of the property would be exempt from transfer duty (ie exiting the transfer duty system and entering the annual property tax system is permanent).
• Owners of residential properties, and owners of commercial and industrial properties that do not sell them, will not be subject to the annual property tax.

The Government will engage in 'targeted consultation' on this proposal, with final details to be confirmed by the end of this year. Given the limited details currently available, we anticipate (and hope) that the consultation will consider the following issues:

• The definition of 'commercial' and 'industrial' properties to which annual property tax could apply (eg including or excluding property used for primary production). Disputes about whether property falls within or outside the inverse concept of residential land have arisen in other jurisdictions.²
• Whether a transfer eligible for corporate reconstruction relief, sub-sale, acquisition of economic entitlements or a relevant acquisition in a landholder that owns a commercial or industrial property will result in the property ceasing to be subject to transfer/landholder duty and becoming subject to the annual property tax.
• How changes in the use of the property would impact upon the application of transfer duty, landholder duty and annual property tax (eg if a commercial property subject to annual property tax is redeveloped into a residential apartment complex).
• The interaction between the annual property tax and existing land tax (eg will the two be separate taxes or will he annual property tax be integrated into the existing land tax rates imposed by the Land Tax Act 2005 (Vic)). It is currently proposed that they will be separate.³

The annual property tax proposal follows the Australian Capital Territory's 20-year program, commenced in 2012, to transition from transfer duty to annual rates, and the recently introduced ability of first home buyers in NSW to elect to pay an annual property tax instead of transfer duty.

Interestingly, on the same day as the Victorian Budget, the newly elected NSW Government introduced the First Home Buyer Legislation Amendment Bill 2023 (NSW) to prevent first home buyers from making such elections from 1 July 2023. That Bill has now been passed as the First Home Buyer Legislation Amendment Act 2023 (NSW), which also increases the thresholds for the first home buyers assistance scheme so that no duty is payable on a first home valued up to $800,000 with concessional duty phasing out at $1 million.

Despite the well-documented relative economic inefficiency of duties compared with annual property taxes, as well as ongoing housing affordability issues in Australia, both the NSW and Victorian governments appear aligned in maintaining the application of transfer duty to residential properties.

The threshold at which a business becomes liable to payroll tax, known as the tax-free threshold, will increase from $700,000 of national wages to $900,000 from 1 July 2024, and then to $1 million from 1 July 2025. The deduction for the tax-free threshold will begin phasing out for every dollar of national wages above $3 million, and cease entirely for businesses with national wages above $5 million (ie such businesses will not receive any benefit from the tax-free threshold). As these thresholds are not indexed, as wage inflation continues, businesses will progressively see less benefit from these amendments.

Described as one half of a COVID Debt Levy, a temporary payroll tax surcharge will be imposed on Victorian wages paid by businesses with national wages over $10 million. The surcharge rate will be 0.5% for businesses with national wages over $10 million, and an additional 0.5% (ie 1% total surcharge) for businesses with national wages over $100 million, and apply to the Victorian share of wages above the relevant threshold. The surcharge will be 'temporary' in that it will only apply for the 10 financial years from 1 July 2023 to 30 June 2033.

As the second half of the COVID Debt Levy, the following land tax changes will apply for 10 years from 1 January 2024:

• the threshold at which general land tax rates apply will be reduced from taxable land with a total taxable value of $300,000 to $50,000 (ie market value of unimproved land); and
• a new land tax surcharge will be imposed on the total taxable value of all taxable land of an owner:

$50,000–$100,000                                      $500 flat rate

$100,000–$300,000⁴                                   $975 flat rate

$300,000 and above                                    $975, plus 0.1% of taxable value over $300,000.

Some concern has been expressed in the media that these increased land tax liabilities will be passed on to residential tenants. While section 99 of the Land Tax Act 2005 (Vic) expressly prohibits provisions in residential tenancy agreements that require tenants to directly pay or reimburse a landlord for land tax, obviously landlords will be able to indirectly pass on the increased liability through rent increases when the next opportunity arises.

The rate of absentee owner surcharge land tax will increase from 2% to 4%, and the threshold at which the surcharge applies will decrease from $300,000 to $50,000 for non-trustees (the current trustee threshold of $25,000 will remain). This will harmonise the rate with that imposed by NSW. The amendments contained in the State Taxation Acts Amendment Act 2023 (Vic) provide for this rate increase to apply for the 2024 and later land tax years.

The current 10% rate of business insurance duty will be progressively reduced by 1% each year from 1 July 2024, until it is completely abolished on 1 July 2034.

This will apply to the following categories of insurance:

• public and product liability
• professional indemnity
• employers' liability
• fire and industrial special risks
• marine and aviation insurance.

The wagering and betting tax rate will increase from 10% to 15% of net wagering revenue from 1 July 2024. This will harmonise the rate with that imposed by NSW.

The Victorian Parliament has passed the Gambling Taxation Act 2023 (Vic) to consolidate the law on various gambling taxes. That Act also includes the rate increase proposed in the Budget.

The State Taxation Acts Amendment Act 2023 (Vic) also inserts provisions into the Duties Act 2000 (Vic) and Land Tax Act 2005 (Vic) regarding how duty and land tax apply to a corporate collective investment vehicle (CCIV), which as a matter of legal form is a company comprised of one or more sub-funds.

In summary, consistent with the federal income tax treatment of CCIVs, each sub-fund of the CCIV is deemed to be a unit trust scheme of which:

• the CCIV is deemed to be the trustee
• the members of the sub-fund are deemed to be the unitholder beneficiaries
• a share in the sub-fund is deemed to be a unit in the trust
• the business, assets and liabilities of the sub-fund are the trust property.

As duty and land tax only apply to the CCIV on this deemed basis (ie they are applied at the sub-fund level), the CCIV itself is effectively disregarded.

An acquisition of dutiable property by a CCIV would be liable to transfer duty regardless of this deeming. However, the deeming has the effect that the reallocation of dutiable property from one sub-fund to another will be liable to transfer duty as a change in beneficial ownership.⁵

It also has the effect that the acquisition of shares/deemed units in each sub-fund/deemed unit trust scheme will potentially be liable to landholder duty. The threshold for a private unit trust for a dutiable acquisition is only 20% as opposed to 50% for an unlisted company. In this regard, the sub-fund/deemed unit trust scheme can potentially register as a wholesale unit trust scheme, which has a 50% threshold, or qualify/register as a public unit trust scheme, which has a 90% threshold.⁶

For land tax purposes, the deeming means that the taxable land of each sub-fund/deemed unit trust scheme will be assessed for land tax separately (ie all the land owned by a CCIV will not be aggregated). It also means that each sub-fund/deemed unit trust scheme may separately be an excluded trust subject to general rates of land tax or an absentee trust subject to land tax surcharge.⁷

Following the Budget and change in Premier, the Victorian Government introduced the State Taxation Acts and Other Acts Amendment Bill 2023 (Vic) into the Parliament. If passed unamended, the Bill would introduce the following significant amendments:

• The Sale of Land Act 1962 (Vic) would be amended to make it an offence from 1 July 2024 for a vendor to enter into a contract for the sale of land requiring the purchaser to pay an amount of tax for which the vendor is or may become liable under the Land Tax Act 2005 (Vic) or an existing assessed amount of windfall gains tax under the Windfall Gains Tax Act 2021 (Vic). It would also be an offence for a person to grant an option to enter into a contract for the sale of land requiring the purchaser to pay existing assessed windfall gains tax. In addition, any such contractual provision would be of no effect. These provisions seem unlikely to change the well-established market practice of apportioning such taxes between vendor and purchaser. Instead, vendors are simply likely to increase their asking price by the estimated apportionment of such taxes.
• The Land Tax Act 2005 (Vic) would be amended to extend the vacant residential land tax to all vacant residential land in Victoria from 1 January 2025. This will mean that homes outside metropolitan Melbourne that are not used and occupied for greater than six months each year (eg holiday homes), will now be subject to additional tax at 1% of the capital improved value of the land⁸. In addition, from 1 January 2026 the vacant residential land tax would be imposed on land within specified areas of metropolitan Melbourne that has been unimproved for more than five years. In essence, the Government is saying 'develop or pay more tax' to developers. To mitigate the potential harshness of this approach, the Commissioner will have discretion to determine that any such land is:
  • not residential land if it is intended to be solely or primarily developed for a non-residential use and there is an acceptable reason for that development not having commenced; and
  • not vacant if satisfied there is a genuine intention for a residence to be constructed on that land and there are acceptable reasons for construction not commencing.

The Bill would also make various other technical amendments, including to permit the corporate reconstruction concession to apply to certain sub-sales of land, providing that the public landholder concession and corporate reconstruction concession are mutually exclusive/not cumulative, to broaden the rezoning error exemption and to clarify the charitable land waiver for windfall gains tax.

As part of its Housing Statement,⁹ the Victorian Government also announced a 7.5% levy on the revenue of short stay accommodation platforms (eg Airbnb and Stayz), with the proceeds from the levy appropriated to Homes Victoria to build social and affordable housing. Given the state-wide application of the levy, local council charges on short stay accommodation will be removed. No legislation to give effect to this announcement has yet been introduced to Parliament.

The Tasmanian Government delivered its Budget on Thursday, 25 May 2023. It contained the following significant announcements aimed at increasing housing supply:

• The land tax exemption for newly constructed dwellings made available for long-term rental (ie fixed term of one year or more) will be extended for another year. The current exemption applies for the three financial years following the financial year in which the dwelling's occupancy permit is issued.¹⁰ To be eligible, the occupancy permit must be issued on or before 30 June 2023. This date will be extended to 30 June 2024.
• Similarly, the one-year land tax exemption for short-stay accommodation converted to long-term rental will be extended for another year. The current exemption applies for the financial year immediately following the year in which the long-term tenancy agreement commenced.¹¹ To be eligible, the agreement must commence on or before 30 June 2023. This date will be extended to 30 June 2024.

Amendments to the Land Tax Act 2000 (Tas) to give effect to these announcements were made by order of the Treasurer: Land Tax (Exemption Extension) Order 2023 (Tas).

The Government  had confirmed its intention to introduce legislation to Parliament in 2024 imposing a road user charge for zero and low emission vehicles from the earlier of 1 July 2027 or when such vehicles make up 30% of all new vehicle sales. This measure was subject to the outcome of the constitutional challenge to an equivalent Victorian tax, which was found to be unconstitutional by the High Court. See our Insight for more details. Presumably this means the Tasmanian measure will not proceed.

Other announcements in the Budget include:

• The first home buyer and pensioner downsizing duty concessions will be extended for another year to 30 June 2024.
• The duty waiver on the purchase of new electric and hydrogen fuel-cell vehicles will be extended to 31 December 2023 if the contract was entered into before Budget day.
• The Government has also confirmed its intention to introduce a new funding model for fire and emergency services.

The Queensland Government delivered its Budget on Tuesday, 13 June 2023. Foremost among the announcements was the introduction of duty and land tax concessions for BTR developments. Those concessions have now been enacted by the Revenue Legislation Amendment Act 2023 (QLD):

• 50% reduction in taxable value of land for land tax purposes (ie a 50% or more reduction in land tax, taking into account marginal rates)
• exemption of land for land tax foreign surcharge purposes
• exemption from any additional foreign acquirer duty payable on the acquisition of land for a BTR development.

To be eligible for the concessions, a BTR development must satisfy the following requirements:

• become operational (ie suitable for occupation) on or after 1 July 2023 and before or on 30 June 2030
• consist of at least 50 self-contained dwellings at least 10% of which are affordable housing (ie rented to tenants that meet income/assets tests for 25% below market rent and offered for a term of three years)
• be owned under a unified ownership structure and be managed by a single entity (although affordable housing may be separately managed by a single registered community housing provider)
• be leased under residential tenancy agreements that do not restrict who may occupy the dwellings except to the extent necessary to protect public health or safety or provide affordable housing.

The land tax concessions will apply from when the BTR development becomes operational and cease after the sooner of 20 years or 30 June 2050.

The additional foreign acquirer duty exemption will apply to agreements for transfer first entered on or after 1 July 2023 provided the development ultimately becomes eligible for the land tax concessions for at least five consecutive financial years (after which time the developer is permitted to transfer or subdivide the land). Failure to satisfy this requirement will result in retrospective reassessment on the basis the duty exemption does not apply.

The Revenue Legislation Amendment Act 2023 (QLD) also includes provisions to implement the following Budget announcements regarding payroll tax:

• extension of the 1% payroll tax discount for regional employers for 7 years until 30 June 2030
• extension of the 50% payroll tax rebate for apprentice and trainee wages for 1 year to 30 June 2024.

The Budget also confirmed a previously announced payroll tax amnesty for medical practices in respect of contracted general practitioners.

The South Australian Government delivered its Budget on Thursday, 15 June 2023. On the same day, it introduced the Statues Amendment (Budget Measures) Bill 2023 (SA) into the Parliament to implement the tax measures announced in the Budget.

The most significant tax measure announced in the Budget and contained in the Bill was the introduction of a land tax concession for BTR projects in the form of a 50% reduction in the taxable value of land used for an eligible BTR project.

To be eligible, the project must satisfy the following requirements:

• construction of the building constituting the project must commence on or after 1 July 2023
• each tenant is offered a lease of a term not less than 3 years
• requirements in relation to the minimum number of dwellings, affordable housing and other matters that will be provided for by regulations.

The concession will be available from the 2024 financial year to 2040 financial year (ie for 17 years).

The proposed concession is largely consistent with one contained in a 2021 Budget measures Bill which was ultimately not passed by the Parliament.

The Budget and Statues Amendment (Budget Measures) Bill 2023 (SA) also include other housing affordability measures for contracts entered into on or after Budget day:

• abolishing stamp duty for eligible first home buyers for new homes valued up to $650,000 with relief phased out progressively up to $700,000
• abolishing stamp duty for eligible first home buyers for vacant land, on which a new home will be constructed, valued up to $400,000 with relief phased out progressively up to $450,000
• increasing the property value cap for the first home owner grant to $650,000.

The Budget also confirmed the South Australian Government's election promise to introduce a low deposit home loan scheme allowing first home buyers to borrow to construct their first home with a 2% deposit.

The Australian Capital Territory Government delivered its Budget on Tuesday, 27 June 2023.

Aside from noting the Territory's ongoing tax reform program, under which conveyance duty rates are progressively decreased and general rates progressively increased, the Budget contained the following announcements:

• increase in the rate of betting operations tax from 20% to 25% from 1 July 2023
• increase in the owner-occupier off-the-plan conveyance duty concession property price to $700,000 from 1 July 2023
• increase in the lease variation charge paid when leases are varied to permit new/additional development to $40,000/dwelling from 1 July 2023 followed by incremental increases to $55,000/dwelling over the next five years
• increase in the rate of utilities network facilities tax by 2.5% above the wage price index for the year ending 31 March 2024
• a payroll tax surcharge from 1 July 2025 on Territory wages above the payroll tax threshold of:
  • 25% for businesses with $50 million or more in Australian wages
  • 5% for businesses with $100 million or more in Australian wages
• unspecified funding for BTR developments (but no tax concessions unlike other jurisdictions).

The Legislative Assembly passed the Revenue Legislation Amendment Act 2023 (ACT) and the Revenue Legislation Amendment Act 2023 (ACT) (ie two Acts in the same year with the same name) to make various technical amendments to the landholder duty provisions of the Duties Act 1999 (ACT) to simplify, modernise and bring those provisions into greater alignment with other jurisdictions.

Prior to the Government delivering its first Budget, the NSW Parliament passed the Revenue Legislation Amendment Act 2023 (NSW), which has removed the concessional rate of duty that applied to relevant acquisitions in public landholders (ie a listed company, a listed unit trust or a widely held unit trust). Although not widely publicised, the change was announced in a Budget Paper in February 2023.¹²

Before the amendment, relevant acquisitions in a private landholder were subject to landholder duty at ad valorem rates up to 5.5% of the percentage interest acquired in the unencumbered value of all NSW land holdings and goods of the landholder.¹³ Relevant acquisitions in public landholders were subject to landholder duty of 10% of the general rates (ie 0.55%).¹⁴ Now, all relevant acquisitions in landholders are subject to landholder duty at ad valorem rates up to 5.5%.

The second reading speech to the Bill that became the Act indicates that the removal of the concessional rate is intended to 'improve fiscal sustainability', 'provide fairness', and introduce consistency with the duty treatment of public landholders in Western Australia and the Northern Territory, as well as private landholders in NSW. The amendment is said to 'remove an incentive to hold land in a public landholder to reduce the duty payable when the land is transferred.'¹⁵

As most transfers of land are liable to transfer duty, this is presumably a reference to holding land in a public landholder, rather than a private landholder, to reduce landholder duty payable when shares or units in the landholder are transferred. It seems unlikely that shareholders in a private company or unitholders in a private unit trust would contrive to list the company or trust, or sell off their units, simply to obtain the future benefit of a NSW landholder duty concession.¹⁶

The Act commenced on 1 July 2023 and contains no transitional rules in relation to the removal of the public landholder concessional duty rate. This lack of transitional rules is unusual. It means that relevant acquisitions in public landholders (ie acquiring 90% or more of the units or shares) made after 1 July 2023 under agreements entered into before that date will not be eligible for the concessional rate of duty.

The NSW Parliament also passed the Revenue, Fines and Other Legislation Amendment Act 2023 (NSW) before the Government delivered the Budget, which enacted some notable amendments to the Duties Act 1997 (NSW):

• the division of a corporation that results in land being held by a new corporation is deemed to be a dutiable transaction
• dutiable transactions that form what is substantially one arrangement can be aggregated regardless of their temporal proximity (previously a 12-month time period applied)
• reassessments for changes in consideration under an agreement for transfer are to be made at the rates applicable on entry into the agreement
• nominal duty is imposed on a transfer of dutiable property from a custodian/responsible entity to a trustee on deregistration of a managed investment scheme
• nominal duty concessions in respect of wholly owned sub-trusts of a managed investment scheme are extended to all sub-trusts indirectly wholly-owned by such a scheme.

The Act also made some significant changes to the Taxation Administration Act 1996 (NSW) by providing:

• a one-year amnesty on payroll tax audits of general practitioners, waiver of interest payable in relation to that period and waiver of any penalty tax payable in relation to any time prior to the end of the period
• for the introduction of a new offence of evading or attempting to evade tax punishable by fine of 500 penalty units (currently $55,000) and two years imprisonment
• for the introduction of new offences punishable by a fine of 10,090 penalty units (currently $1,109,900) for individuals and 50,450 penalty units (currently $5,549,500) otherwise of:
  • knowingly or recklessly disclosing or using confidential tax information
  • knowingly concealing or attempting such a disclosure or use
• the five-year limit on reassessments does not apply if the reassessment is to give effect to an objection or review decision about any assessment (not just initial assessments)
• the five-year limit on reassessments does not apply in any case where all facts and circumstances are not fully and truly disclosed (regardless of whether the undisclosed facts are reassessed)
• the Chief Commissioner's discretion to permit late lodgement of an objection outside the usual 60-day period cannot be exercised more than five years after an assessment or decision is made.

The NSW Government handed down its Budget on Tuesday, 19 September 2023. Please refer to our related Insight on the key measures arising out of the Budget: the landholder duty acquisition threshold for private unit trusts being reduced to 20%, the reintroduction of wholesale unit trust scheme registration and replacement of the corporate reconstruction exemption with a 10% concession.