Navigating the family farm duty exemption

Many farms have been in the family for decades, but farms are much more than a piece of land – they are a business, an asset, and for some an intended source of generational wealth. Keeping the farm in the family, however, can be a fraught and complicated process, particularly when administrative nuance threatens to impact farm transfers and the farm duty exemption, as seen in a recent decision out of New South Wales.

The NSW Civil and Administrative Tribunal (NCAT) handed down a significant decision in Camwall Pty Ltd atf Antap Trust v Chief Commissioner of State Revenue [2025] NSWCATAD 136, shedding light on how family farm transfers involving trusts are scrutinised under the Duties Act 1997 (NSW) (Act).

This case serves as an important reminder that care is required when carrying out family farm transfers to effect an intergenerational shift in ownership of assets used in primary production or farming businesses.

Timing is everything: Circumstances surrounding Camwall

Patricia Anne Wallace (Patricia) owned farmland and her son John Cameron Wallace (John) had long carried on the Wallace family business of primary production on that land.

Camwall Pty Ltd (Camwall), as trustee of the Antap Trust, agreed to acquire farmland from on 26 October 2023. John is the sole director of Camwall and the Antap Trust is a discretionary family trust, where John is named as the Principal and beneficiary in the trust deed.

On 24 January 2024, a new clause was inserted into the trust deed such that John Wallace was entitled as taker in default and John’s children only became so entitled in the event John was no longer alive.

Prior to an amendment, John’s children were listed as being entitled, as takers in default of the Antap Trust.

Was the transfer eligible for the family farm duty exemption?

The Chief Commissioner assessed duty on the transaction and refused to apply the duty exemption under section 274 of the Duties Act.  Section 274 stipulates that the transferee must be listed for at least 3 years after the date of transfer. In short, the Chief Commissioner contended that the removal of John’s children under the amendment which occurred in January 2024 meant that the three-year requirement in section 274(4A)(b)(ii) of the Duties Act was not satisfied.

The first issue in dispute before the NSW Civil and Administrative Tribunal (NCAT) was the date on which the matters in section 274(2) to (4) of the Act had to be considered:

• at the time the contract of sale was executed on 26 October 2023, or
• at the time the instrument of transfer was dated on 24 January 2024.

The second issue was whether the post-contract amendment to the trust deed altered who the default beneficiaries were and therefore affected the 3-year requirement under subsection (4A)(b)(ii).

Tribunal outcome

The Tribunal found as follows:

First issue: The words “transfer” or “transfer of land” in section 274 of the Act have the same meaning and application as found in Chapter 2 of the Act. Accordingly, in this case, the relevant date is when the contract was entered into on 26 October 2023.

Second issue: Due to John always being a beneficiary of the Antap Trust, Patricia’s son and the father of his children, as well as being the sole director of the trustee company, and the person who continues to operate the Wallace family primary production business, it would be difficult to see the amendment to the trust deed disentitling the family farm exemption under section 274 of the Act.

The Tribunal set aside the assessment and remitted the matter for reconsideration, clarifying that the amended trust deed did not automatically disqualify the taxpayer.

Practical lessons for family farm transfers

This case offers valuable guidance for families and their advisors when navigating family farm succession in New South Wales. A similar family farm duty exemption also exists in Victoria under section 56 of the Duties Act 2000 (Vic) (Victorian Act) so the lessons here are much the same.

1. Trust deed terms matter

Ensure trust deeds clearly identify default beneficiaries who fall within the definition of “family member” under the Act or “relative” under the Victorian Act. Ambiguities or overly broad classes of beneficiaries may create issues.

2. Timing of amendments

Avoid amending trust deeds after contracts are executed. While this case ultimately favoured the taxpayer, the exemption was placed at risk due to poor timing.

3. Understand ‘relevant time’ for duty

When liability for duty arises is provided for in Chapter 2 of the Act and the Victorian Act. It will be noted that the timing distinction depends on whether there is a transfer of dutiable property, or if there is an instrument effecting the transfer of dutiable property. This timing distinction is critical when assessing eligibility under section 274 of the Act or section 56 of the Victorian Act particularly when ascertaining whether the various elements of the family farm exemptions in section 274 of the Act or section 56 of the Victorian Act are satisfied.

4. Document and seek advice early

Transferors and transferees should document family relationships and trust structures early in the transaction. Legal advice at the structuring stage can prevent costly objections and litigation.

Precision required in estate and succession planning

The Camwall decision reinforces the need for precision in estate and succession planning, especially when family farms are involved.

Trust structures must be carefully aligned with statutory requirements, and timing is critical. While the NCAT’s decision ultimately favoured the taxpayer, the process highlights the risks of post-agreement trust amendments and the importance of compliance at the right time.

Family farm succession planning is a sensitive and strategic process. Obtaining specialist duty advice plays a vital role in ensuring that duty exemptions being applied for are upheld by the respective revenue offices and that family farm businesses can transition smoothly across generations.

For tailored legal advice on family farm succession and duty exemptions, contact Thomas Abraham and our Tax and Structuring lawyers.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.