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Minor Interests in Land

Minor interest provisions have been introduced into the Land Tax Act 1936 (the “Act”) to address the practice where owners of more than one piece of land avoid paying higher marginal rates of land tax by structuring their ownerships so that another party (or parties) hold a minor interest in an individual piece of land thereby creating different legal ownerships. These provisions came into operation at midnight on 30 June 2008.

Minor Interest of 5 per cent or less

Where land is owned by two or more persons and one or more of those persons hold an interest in the land of 5 per cent or less (the “Minor Interest”), the person or persons holding the Minor Interest will be taken not to be an owner of the land for the purposes of the Act. In such cases, the land tax payable in respect of the relevant land will be assessed, and is payable, as if the land were wholly owned by the owner or owners of the land who do not hold the Minor Interest (the “Owner”). The relevant land will therefore be aggregated with any other land owned by the Owner for the purposes of assessing land tax.

The Owner may apply to the Commissioner of State Taxation (the “Commissioner”) in writing, to request that the Minor Interest not be disregarded for the purposes of the Act, on the basis that the Minor Interest was created solely for a purpose, or entirely for purposes, unrelated to reducing the amount of land tax payable in respect of any land. Where an application is made and the Commissioner is satisfied that there is no doubt that the Minor Interest was created solely for a purpose, or entirely for purposes, unrelated to reducing the amount of land tax payable in respect of any land, the Minor Interest will not be disregarded by the Commissioner for the purposes of assessing land tax.

Minor Interest between 5 per cent and 50 per cent

Where a person or persons hold an interest in land of greater than 5 per cent but less than 50 per cent the interest will be disregarded for the purposes of assessing land tax only if the Commissioner forms the opinion that the purpose or one of the purposes for the creation of the interest was to reduce the amount of land tax payable in respect of any land.

Additional Information

The Commissioner may have regard to the following criteria to determine whether a minor interest should or should not be disregarded for the purposes of the Act:

  1. the nature of any relationships between the owners of the relevant land, or between the owners of two
    or more pieces of land;
  2. the lack of consideration, or the amount, value or source of the consideration, provided in association with the creation of the interest;
  3. the form and substance of any transaction associated with the creation or operation of the interest, including the legal and economic obligations of the parties and the economic and commercial substance of any such transaction;
  4. the way in which any transaction associated with the creation or operation of the interest was entered into or carried out; and
  5. any other matter the Commissioner considers relevant.

An interest in land will not be disregarded if the effect of disregarding the interest is to decrease the amount of land tax payable in respect of any land.

An interest may be disregarded by the Commissioner regardless of whether it was created before or after the commencement of the provisions.

A person who is dissatisfied with a decision of the Commissioner may lodge a written notice of objection with the Minister for Finance. Information on objections is available here.

Effective from the 2008-09 financial year, where a minor interest in land has been disregarded under the Land
Tax Act 1936, the holder of the disregarded interest is not eligible for an exemption.

For further information, please refer to Guide to Land Tax Legislation or contact RevenueSA.

 

This page was last reviewed 20 April, 2012