Stamp duty disputes and objections in NSW

A stamp duty dispute in NSW usually starts when Revenue NSW reviews a transaction and issues a notice of assessment or reassessment for more duty, often with penalty tax and interest added. A stamp duty objection must generally be lodged in writing within 60 days after the notice is served (Taxation Administration Act 1996 (NSW) (NSW TAA) s 89). If the objection fails, you can seek review in the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court of NSW.

We act for property buyers, families, trustees and businesses in duty audits, objections and reviews, as part of our work as land tax, payroll tax and stamp duty lawyers. Section references below are to the Duties Act 1997 (NSW) (Duties Act) unless we say otherwise.

What does NSW stamp duty apply to?

What most people call stamp duty is now transfer duty (Duties Act Ch 2). It applies to "dutiable transactions" over dutiable property (s 8), including a transfer of NSW land or an agreement to sell it, a declaration of trust, a lease for which a premium is paid, and any other change in beneficial ownership that isn't an excluded transaction.

Transfers of shares and units generally stopped being dutiable on 1 July 2016 (s 34), but acquiring a significant interest in a company or unit trust that holds NSW land can trigger landholder duty instead.

The transferee usually pays (s 13). Liability arises when the transaction occurs or, if it is effected by a document, when that document is first signed (s 12(1), (2)). There is generally no tax default if the duty is paid within 3 months after the liability arises (s 17(1)).

What are the most common stamp duty disputes?

Most transfer duty disputes turn on one of these issues.

Dutiable value

Duty is charged on the greater of the consideration and the unencumbered value of the property (s 21), so a gift, or a sale to a relative at a discount, is generally dutiable on market value. The consideration includes any mortgage or other encumbrance the property is transferred subject to (s 22(1)). An interest or arrangement (other than an encumbrance) that reduces the dutiable value is disregarded unless the Chief Commissioner is satisfied it had no collateral purpose of reducing duty (s 24).

Revenue NSW can require evidence of value, or obtain its own valuation and recover the cost if its value differs from yours by at least 10%, or if you don't answer its written request within 60 days (NSW TAA s 17A). A qualified valuer's report made at the time usually helps most.

Aggregation of transactions

Separate transactions are charged as one if the transferors are the same or associated, the transferees are the same or associated, and together they form "substantially, one arrangement" (s 25(1)). Rates are progressive, so aggregation usually means more duty. The buyer must disclose every item in the arrangement, and the consideration for each, at or before lodgement (s 25(6)). Since 4 September 2023 there has been no time limit on aggregation, so transactions years apart can be aggregated. Revenue NSW still applies the old 12-month limit where the first transaction was before that date (Sch 1 cl 148; Revenue Ruling DUT 036v4, paras 23–24).

For example, suppose two family trusts with a beneficiary in common each buy one of two adjoining lots from the same vendor in a single negotiated deal. The trustees are generally associated persons (Dictionary cl 2(1)(d)), so even with separate contracts, Revenue NSW may charge duty on the combined value.

Trusts and declarations of trust

A declaration of trust over dutiable property is charged as if the property were transferred to the person declaring the trust (ss 8(1)(b)(ii), 9). So is a statement that only acknowledges an existing trust (s 8AA). Disputes often arise when families or business partners put an informal arrangement in writing after the event.

• Apparent purchaser. Only nominal duty applies where property was bought in one person's name on trust for the "real purchaser" who provided the purchase money (s 55). The evidence of who paid usually decides it.
• Change of trustee. A transfer on a change of trustee attracts nominal duty only in defined cases, for example where no trustee is or can become a beneficiary and there's no scheme to avoid duty. Otherwise it can be charged as a transfer to a beneficiary (s 54(3)).

Exemptions and concessions

• First home buyers. Under the First Home Buyers Assistance Scheme, the buyer (or one of the buyers) must generally occupy the home as a principal place of residence for a continuous period (12 months under the current s 76, 6 months for contracts made before 1 July 2023), starting within 12 months after completion or a longer period the Chief Commissioner approves. If not, the Chief Commissioner can reassess (s 79), and the duty is a charge on the buyer's interest in the land (s 80). Where the concession was approved in advance, the buyer must tell Revenue NSW and pay the duty within 14 days after the period for compliance ends (s 76A(2)). The requirement can be modified or waived for good reasons, even after the event (s 76(2), (2A)).
• Corporate reconstructions. A transfer within a corporate group (generally 90% ownership and voting control, s 273E) can be charged at 10% of the normal duty, but only with the Chief Commissioner's approval. It must be undertaken to change the group's structure or asset holdings, not for a purpose of avoiding duty on another transaction, and not for the sole or dominant purpose of avoiding other tax (s 273B). Companies acting as trustees of discretionary trusts are excluded (s 273E(6)). Apply before the transaction or within 5 years after it is assessed (s 273F(1)).
• Relationship breakdown. Transfers of property after a marriage or relationship breaks down can be exempt if the conditions in s 68 are met.

Reviews can come years later. In Walker v Chief Commissioner of State Revenue [2025] NSWCATAD 270, Revenue NSW reviewed a 2019 first home purchase in 2024 and assessed duty, penalty tax and interest. The buyer hadn't updated his address with several organisations, but NCAT accepted his evidence, backed by family, friends and utility and bank records, that he had lived there, and set the decision aside. The onus of proof was on him (NSW TAA s 100(3)).

Foreign purchaser surcharge

Surcharge purchaser duty generally applies on top of transfer duty when a foreign person acquires residential-related property in NSW, at 9% of the dutiable value (s 104U(1)). "Foreign person" follows the Foreign Acquisitions and Takeovers Act 1975 (Cth) with NSW changes, and status is tested when the liability arises (s 104J). Limited exemptions and refunds apply, for example for some Australian-based developers and build-to-rent projects (ss 104ZJA, 104ZJB) and, for transactions entered into from 1 July 2026, some retirement village transactions, so check Revenue NSW's current guidance.

Discretionary trusts are often caught: the trustee is treated as foreign unless no potential beneficiary is a foreign person and the deed can't be amended to add one (s 104JA), subject to a transitional rule for older trusts. Wide beneficiary classes can include relatives overseas. The same test applies for surcharge land tax (Land Tax Act 1956 (NSW) s 5D): see land tax objections in NSW.

Landholder duty

Acquiring 20% or more of a private unit trust, 50% or more of a private company, or 90% or more of a listed company or public unit trust, with NSW land holdings worth $2 million or more, can generally attract landholder duty (ss 146, 149, 150). Interests held by associated persons, or acquired under substantially one arrangement, can be added together (s 149). See landholder duty in NSW.

Revenue NSW duty audits and reassessments

Revenue NSW can require you, by written notice, to give information, attend and give evidence, or produce records (NSW TAA s 72(1)). Not complying in time is an offence (s 72(8)), so ask in writing for any extension you need.

The Chief Commissioner generally can't reassess more than 5 years after the initial assessment, unless an exception applies, such as where the relevant facts weren't fully and truly disclosed and the duty was assessed too low as a result (NSW TAA s 9(3)).

Where a scheme's sole or dominant purpose is to avoid duty, the Chief Commissioner can assess the duty avoided and impose an extra penalty of up to that amount, on top of interest and penalty tax (NSW TAA ss 106F, 106J, 106KA).

What penalties apply to underpaid stamp duty?

Interest runs daily on unpaid duty from the end of the last day for payment, at a market rate component (generally the Reserve Bank's published monthly average yield on 90-day Bank Accepted Bills, reset each quarter) plus 8% a year (NSW TAA ss 21, 22). Penalty tax is on top:

• 25% of the unpaid duty generally (50% for a significant global entity), which can be increased to 75% for intentional disregard of the law (s 27(1), (2)).
• Possibly nil if you took reasonable care, or the default was solely due to circumstances beyond your control, other than financial incapacity (s 27(3)).
• Reduced by 80% for a written disclosure, with enough detail to show the nature and extent of the default, made before you are told of an investigation, or 20% during one (ss 28, 29).
• Increased by 20% if, after being told of an investigation, you take steps to hinder it, such as destroying records or failing without reasonable excuse to comply with an information notice (s 30).

The Chief Commissioner can remit interest, but only in line with Revenue NSW's Remission of Interest Guidelines (TAA 001, from 1 July 2025) (s 25(2)–(3)), and can remit penalty tax by any amount (s 33). The two are decided separately (ss 25(4), 33(2)).

How do you object to a stamp duty assessment?

1. Diarise 60 days from service. The objection must be lodged within 60 days after the notice of assessment is served (NSW TAA s 89(1)). It is lodged only when it is served on the Chief Commissioner, and one served after business hours counts as served the next business day (ss 89(2), 115). A late objection needs permission and a full written explanation of the delay, and can't be made more than 5 years after the initial assessment notice (s 90).
2. State the grounds fully and in detail, in writing (s 87(1)), with the evidence: valuations, contracts, trust deeds, bank records or residence evidence. You carry the onus of proof (s 88). For a reassessment, the grounds are limited to the extent of the reassessment (s 87(2)).
3. Deal with payment. An objection doesn't stop recovery (s 94), but Revenue NSW can extend time or accept instalments (s 47). If you succeed, overpaid duty is refunded with interest (ss 104, 105).
4. Allow for the decision. Revenue NSW should try to decide within 90 days, but that guide (in a note to s 91) isn't binding, and it can suspend the objection while it waits for information it has asked for (s 92).

The 60 days run from the date the notice is served, not the date you read it, and your objection must reach the Chief Commissioner within that time. Check how and when Revenue NSW sent the notice, and act straight away.

If the objection fails: NCAT or the Supreme Court?

If you're dissatisfied with the objection decision, or it hasn't been made within 90 days (not counting any suspension), you can apply to NCAT or the Supreme Court (NSW TAA ss 96(1), 97(1)). If no decision has been made, you must first give Revenue NSW at least 14 days' written notice of the application (s 100(1)). After a decision, the application is generally due within 60 days after the date the notice of determination is issued, not the date you receive it, though NCAT or the Court can allow more time (s 99(1)). You generally can't pursue both for the same decision, unless the first application is withdrawn with approval (ss 96(3), 97(2)).

Neither side is limited to the objection grounds, and you carry the onus of proof (s 100(2), (3)). NCAT conducts a merits review under the Administrative Decisions Review Act 1997 (NSW), as it did in Walker. A Supreme Court review is treated as an appeal (s 97(4)). Cost and risk differ, so the choice depends on the issue and the amount at stake (see our fees page).

Can you get a ruling before you sign?

Often, yes. Revenue NSW issues private rulings at the Chief Commissioner's discretion where the law, or how it applies to your situation, is genuinely unclear (Revenue Ruling G 006 v2, 14 May 2018, para 4). It won't rule where there is no real doubt (for example, because a public ruling or court decision already covers the point), once the documents are signed or the transaction has happened, or to say which of several options attracts the least duty (para 5).

A ruling doesn't have the force of law, but the Chief Commissioner will stand by it if all parties were identified, the facts are the same, full disclosure was made and you act in line with it (para 8). Revenue NSW can still depart from a ruling it later decides is incorrect (para 9). You apply with a submission and draft, unsigned documents (para 6).

So get duty advice before you sign, especially for a restructure: moving property between entities or trusts, changing trustees, interposing a company, buying residential land through a family trust, or transferring property to a relative.

How we help

• Review the assessment. We check the calculation, valuation and law, and tell you plainly whether to object.
• Audits and objections. We respond to Revenue NSW's information requests, prepare objections, act in NCAT and Supreme Court reviews, and seek remission of penalty tax and interest.
• Before the transaction. We advise on duty for restructures and trust arrangements, and prepare private ruling applications.
• Accountants. We work alongside you on your clients' duty matters. See how we work with accountants.

Next step

Send us the notice of assessment or reassessment (every page), with how and when it reached you, the contract or transfer, any trust deed or company documents involved, and Revenue NSW's audit letters. If the transaction hasn't happened yet, send the draft documents instead. In a short first call we'll tell you when your 60 days end, whether an objection or ruling looks worthwhile and what to do first.