Are all intergenerational rural land transfers stamp duty free?

TRIt depends. It is always important to review the requirements of the Duties Act in each case before assuming that a rural land transfer will be stamp duty free.

Mum and dad have owned a rural property since the 1970s. The farming business is carried on by a proprietary limited company. The shareholders and directors are mum and dad.

As the son and daughter-in-law now run and guide the farming business, mum and dad have decided to transfer part of the farming land to them valued at about $1.5 million. Mum and dad also propose to make the son and daughter-in-law directors of the farming operations company.

As the land was acquired prior to the introduction of Capital Gains Tax, there is no pre-CGT taxation on the transfer of the land.

Will the land however attract stamp duty of about $68,000.00 or will it be stamp duty free under the intergenerational transfer provisions contained in the Duties Act?

In order to obtain the benefit of the exemption, the primary production business must be carried on by the son and daughter-in-law and be continued to be carried on by them or a member of their family.

While the word “member” in relation to the family of the transferee (the son and daughter-in-law) is defined broadly and goes both up and down the family tree, it does not include family owned or controlled entities such as companies and trusts.

Since neither the son nor daughter-in-law will be carrying on the business and as the trading company is not a member of their family, the exemption will not be available. $68,000.00 stamp duty would be incurred if the transaction proceeds.

It is always important to review closely the requirements of the Act in each particular circumstance before proceeding with a family farm transaction.

At Everingham Solomons we have the experience to assist you with all your property needs because Helping You is Our Business.

Click here for more information on Terry Robinson

Changes to Business Name Registrations

TRAt present, business name registrations have been handled on a state by state basis by differing departments in each state. For example Fair Trading in NSW and Consumer Affairs in Victoria.

As and from 28 May 2012 the registration and renewal of business names will be managed by the Australian Securities and Investment Commission (ASIC) on a national level. Accordingly ASIC will oversee a national business names database and will handle all Australian business name applications and renewals.

This means that if you have the same name registered in multiple states, you will no longer need to renew them in multiple locations. All names will be registered from the various state locations on the new database. If you are in this situation it will be up to you to decide whether you ought cancel any duplicated names as they will all appear on the new national data base.

The change is about making it easier for businesses to operate in different states of Australia and making it easier for people to know who it is they are dealing with in a business, by cutting the red tape.

The change will not affect existing registered business names, as they will be automatically transferred to the new ASIC register and retain their existing expiry dates.

After 28 May, renewal notices will be sent from ASIC. Payment and renewal applications can be attended to online.

You should note however that the registration of a business name does not provide protection to you from someone else being permitted to register a similar business name. If this is what you require then consideration to registering a trademark ought to be considered.

If there are similar or identical names already registered in different states, then ASIC will register the names notwithstanding that they are similar or identical and will then identify them by indicating that the name was previously recorded in a particular state so that the public can differentiate the name when searching.

If you require any assistance with respect to business names, trademarks or any other business related matter we at Everingham Solomons have the expertise to help you because Helping You is Our Business.

Click here for more information on Terry Robinson