STATE REVENUE LEGISLATION FURTHER AMENDMENT ACT 2020 - SCHEDULE 1
This legislation has been repealed.
STATE REVENUE LEGISLATION FURTHER AMENDMENT ACT 2020 - SCHEDULE 1
SCHEDULE 1 – Amendment of Duties Act 1997 No 123
[1] Section 104JA
Insert after section 104J--
104JA Special provisions for discretionary trusts(1) The trustee of a discretionary trust is taken to be a foreign trustee for the purposes of this Chapter unless the trust prevents a foreign person from being a beneficiary of the trust.(2) If a discretionary trust prevents a foreign person from being a beneficiary of the trust, the trustee of the trust is not in that capacity a foreign trustee for the purposes of this Chapter.(3) A discretionary trust is considered to prevent a foreign person from being a beneficiary of the trust if (and only if) both of the following requirements are satisfied--(a) no potential beneficiary of the trust is a foreign person (the
"no foreign beneficiary requirement" ),(b) the terms of the trust are not capable of amendment in a manner that would result in there being a potential beneficiary of the trust who is a foreign person (the
"no amendment requirement" ).Note : Under the transitional arrangements for this section in Schedule 1, the no amendment requirement does not apply to a trust that satisfies the no foreign beneficiary requirement immediately before the commencement of this section.(4) A person is a
"potential beneficiary" of a discretionary trust if the exercise or failure to exercise a discretion under the terms of the trust can result in any property of the trust being distributed to or applied for the benefit of the person.Note : A potential beneficiary is not limited to persons named in the trust instrument and extends to the members of any class of persons to whom or for whose benefit trust property can be distributed or applied pursuant to the discretions of the trust.(5) For the removal of doubt, a person is not a potential beneficiary of a discretionary trust if the terms of the trust prevent any property of the trust from being distributed to or applied for the benefit of the person.(6) In this section,
"property" includes money, and a reference to the distribution or application of property includes a reference to the payment of money.
[2] Section 104ZQ Stamping and endorsement of surcharge duty transactions
Insert after section 104ZQ(3)--
(4) The Chief Commissioner may approve a manner of stamping or endorsement that does not require separate stamping or endorsement of an instrument for purchaser duty and surcharge purchaser duty so that stamping or endorsement by means of a single unique transaction identifier or reference number or a single endorsement is sufficient to indicate payment of both purchaser duty and surcharge purchaser duty.
[3] Section 107 Assignment of rights under call option dutiable as transfer
Insert at the end of section 107(2)(b)--
, and
(c) if A enters into an agreement or arrangement under which A, for valuable consideration, relinquishes the right under a call option to require B to sell dutiable property and B agrees to sell the dutiable property to a third person (
"C" ), A is to be treated as having assigned that right under the call option so that the option is exerciseable by C.
[4] Section 146 Meaning of "landholder"
Omit "a threshold value" from section 146(1). Insert instead "an unencumbered value".
[5] Section 146A Threshold value of land holdings
Omit the section.
[6] Section 147A
Insert after section 147--
147A What does "land" include?(1) For the purposes of this Chapter,
"land" includes anything fixed to the land, whether or not the thing--(a) constitutes a fixture at law, or(b) is owned separately from the land, or(c) is notionally severed or considered to be legally separate from the land as a result of the operation of any other Act or law.(2) Land does not include anything excluded under section 163K from the definition of
"goods" in this Chapter.(3) The Chief Commissioner may determine that land does not include a thing fixed to land if--(a) the thing is owned by a person who is not the person who owns the land or an associated person of the person who owns the land, and(b) the thing is not used in connection with the use of the land.(4) For the removal of doubt, anything that is land because of this section is not goods for the purposes of section 163G (Significant holdings in goods).
[7] Section 154
Omit the section. Insert instead--
154 Who is liable to pay the duty?(1) The following persons are jointly and severally liable to pay duty chargeable under this Part--(a) the person who makes the relevant acquisition,(b) the landholder or, if the landholder is a unit trust scheme, the trustee of the landholder,(c) if the relevant acquisition results from an aggregation of the interests of the person referred to in paragraph (a) and other persons--each of those other persons.(2) A person who pays an amount of duty chargeable under this Part is entitled to recover as a debt the amount paid (together with any penalty or interest paid by the person in respect of that duty) from another person who is jointly and severally liable to pay the duty, as follows--(a) the landholder or trustee of the landholder is entitled to recover from a person referred to in subsection (1)(a) or (c),(b) the person who makes the relevant acquisition is entitled to recover from the other persons referred to in subsection (1)(c) (but not from the landholder or trustee of the landholder) with recovery from each of those other persons limited to an amount that is proportionate to the interest of the other person,(c) a person referred to in subsection (1)(c) is not entitled to recover.(3) Any liability of a landholder, or the trustee of a landholder, to pay duty chargeable under this Part (together with any interest or penalty tax payable) is a charge on the land holdings of the landholder or trustee.(4) A charge created by this section gives the Chief Commissioner an interest in the land and, accordingly, the Chief Commissioner may lodge a caveat in respect of the land under the Real Property Act 1900 to protect that interest.(5) A caveat must be withdrawn when the amount of the duty for which the landholder or trustee is liable (together with any interest or penalty tax payable) has been paid.(6) Section 45(3) of the Taxation Administration Act 1996 (which relates to rights of contribution or indemnity between persons who are jointly and severally liable for duty) does not apply to joint and several liability under this section.
[8] Schedule 1 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering--
Part - Provisions consequent on enactment of State Revenue Legislation Further Amendment Act 2020
Definition In this Part--
"amending Act" means the State Revenue Legislation Further Amendment Act 2020 .
Surcharge purchaser duty--discretionary trusts(1) Section 104JA extends to a surcharge duty transaction that occurred before the commencement of that section.(2) If the trustee of a discretionary trust is liable as a foreign trustee for surcharge purchaser duty on a transfer of dutiable property that occurs before the commencement of section 104JA, or after that commencement but before midnight on 31 December 2020--(a) the trustee is exempt from that duty if the terms of the trust have been amended, before midnight on 31 December 2020 and before the due date for payment of duty, so that the trust prevents a foreign person from being a beneficiary, or(b) if that duty has been paid, the trustee is entitled to a refund of that duty if the terms of the trust have been amended, before midnight on 31 December 2020, so that the trust prevents a foreign person from being a beneficiary.(3) A trust that satisfies the no foreign beneficiary requirement under section 104JA immediately before the commencement of that section is considered for the purposes of that section to prevent a foreign person from being a beneficiary of the trust (without having to satisfy the no amendment requirement under that section).(4) Despite section 104JA, the trustee of an Australian testamentary trust is not in that capacity a foreign trustee for the purposes of Chapter 2A (even if the trust does not prevent a foreign person from being a beneficiary of the trust) if--(a) for a trust arising from a will or codicil--the will or codicil was executed on or before 31 December 2020, or(b) for a trust arising from the administration of an intestate estate--the deceased died before, or within 2 years after, the commencement of that section, or(c) for a trust resulting from an order of a court varying the application of the provisions of a will or codicil or of the rules governing the distribution of an intestate estate--the order was made on or before 31 December 2020.(5) The Chief Commissioner may in a particular case extend the due date for payment of surcharge purchaser duty by a trustee so that the trustee qualifies for exemption from that duty under this clause if the terms of the trust have been amended before midnight on 31 December 2020 (but after the date that would otherwise be the due date for payment) so that the trust prevents a foreign person from being a beneficiary.(6) In this clause--
"Australian testamentary trust" means a discretionary trust arising from a will or codicil or the administration of an intestate estate (or as a result of an order of a court varying the application of the provisions of a will or codicil or of the rules governing the distribution of an intestate estate) where the deceased was not a foreign person immediately before his or her death.
"due date" for payment of duty means the date that is 3 months after the liability for duty arises.(7) Expressions in this clause have the same meanings as in section 104JA.
Assignment of rights under call option Section 107(2)(c) does not apply to an agreement or arrangement referred to in that paragraph that is entered into before the commencement of that paragraph.
Acquisition of interests in landholders The amendments made by the amending Act to Part 1 of Chapter 4 do not apply to a relevant acquisition (within the meaning of that Chapter) made before the commencement of those amendments or made after that commencement pursuant to an agreement entered into before that commencement.
Liability for landholder duty Section 154 (as substituted by the amending Act) applies to duty chargeable under Chapter 4 on or after the day it is substituted.
First Home Buyers Assistance Scheme The amendment made by the amending Act to section 78A applies to the following--(a) agreements for sale or transfer entered into on or after 1 July 2020,(b) transfers that occur on or after 1 July 2020, other than transfers made in conformity with an agreement for sale or transfer entered into before 1 July 2020.