When a mineral or petroleum interest is transferred, often there is accompanying mining information. A separate consideration may be provided for the transfer of this mining information for income tax purposes so that the transferee may claim a deduction under the Tax Acts. It is accepted law that mining information as distinct from the material in which that mining information is recorded is not property. Therefore mining information does not form part of the tenements to which it relates and has a separate market value. This has been confirmed by a recent Federal Court decision.
However NSW is proposing amendments to the Duties Act, 1997, the effect of which is that the unencumbered value of an interest in land arising because of a mining tenement is to be determined having regard to any information about the land, as if the information were an attribute of the land. This therefore treats mining information, which although itself is not property or dutiable property, as an attribute of the land namely part of the land. The value of the mining tenement will now include the value of the mining information in NSW.
A mining tenement for this purpose will be a mining lease, mineral claim, assessment lease, exploration licence or opal prospecting licence under the Mining Act 1992. However it should be noted that the definition of “mining tenement” does not include interests under either the Petroleum (Onshore) Act 1991 or the Petroleum (Offshore) Act 1982. Therefore this new provision will not apply to interests under either of those Acts.
The Northern Territory already has a similar provision in its Stamp Duty Act.
WA has a provision which purports to deal with this issue but arguably has no effect because it seems to assume an attribution of the value of the information to the underlying property without deeming such an attribution so it may not have any effect.