Northern Territory Explanatory Statements Northern Territory Explanatory Statements[Index] [Search] [Download] [Bill] [Help]
· Insert provisions from the existing Stamp Duty Act and rename the Taxation (Administration) Act such that it becomes the new Stamp Duty Act.
· Align this Act with the new Taxation Administration Act, which commences on the same date.
· Remove administrative provisions now contained in the new Taxation Administration Act.
· Provide consistency in the use of terminology within this new Stamp Duty Act with the new Taxation Administration Act and Pay-roll Tax Act.
· Improve the interpretation of this new Stamp Duty Act and incorporate contemporary legislative drafting styles.
These amendments do not impose stamp duty on instruments and transactions that were not taxable before the commencement of the amendments. Even though the amendments will result in some stamp duty provisions appearing different in form to the current provisions, the application of those provisions will remain the same.
NOTES ON CLAUSES
PART 1 – PRELIMINARY
Clause 1. Short title
This is a formal clause which provides for the citation of the Bill. When passed, the Bill may be referred to as the Revenue Law Reform (Stamp Duty) Act 2007.
Clause 2. Commencement
The Bill will commence on 1 January 2008, the same date as the new Taxation Administration Act.
PART 2 – REPEAL OF LAWS
Clause 3. Repeal of laws
This clause repeals the laws specified in Schedule 2 to the Bill, which are the current Stamp Duty Act and the Taxation (Administration) Regulations.
PART 3 – AMENDMENT OF TAXATION (ADMINISTRATION) ACT
Clause 4. Act amended
The Act being amended by this Part is the Taxation (Administration) Act (referred to in this Explanatory Statement as “the Act”).
Clause 5. Amendment of long title
This clause amends the long title of the Act, which can be cited as the Stamp Duty Act from 1 January 2008 (see clause 7 below), to reflect that this Act imposes stamp duty, whereas the general administrative provisions will be provided for in the new Taxation Administration Act.
Clause 6. Amendment of Part I heading
This clause amends the heading to the first Part of the Act to reflect contemporary legislative drafting styles.
Clause 7. Repeal and substitution of section 1
The effect of this clause is to repeal and replace section 1 of the Act to rename the Taxation (Administration) Act the Stamp Duty Act.
Clause 8. Repeal of section 3
This clause repeals section 3 of the Act. Section 3 is no longer required as it is a historic transitional provision relating to the repeal of the various Stamp Ordinances set out in the Schedule. That Schedule is repealed by Clause 58.
Clause 9. Amendment of section 4 (Interpretation)
Subclause (1) removes numerous definitions from section 4(1) of the Act. These terms are being removed as they are no longer utilised in the Act, or the defined terms have been redrafted (or similar terms inserted) by subclause (2) to use more contemporary drafting styles or to align the terms with the new Taxation Administration Act.
Subclause (2) inserts new definitions into section 4(1) of the Act (or replaces definitions removed by subclause (1)):
The new definition of “associate” acts to ‘signpost’ the location of that definition in section 4(2) of the Act.
The new definition of “authorised stamp” means a stamp that the Commissioner has approved to signify that duty has been paid or that no duty is payable. This reflects the fact that the new Taxation Administration Act provides that an assessment includes a decision that no tax is payable. This term replaces the old terms “adhesive stamp” and “impressed stamp”.
The new definition of “beneficiary” means that an object of a discretionary trust is a beneficiary of the trust for the purposes of the Act. This term should be read in conjunction with the definitions of “discretionary trust” and “object”.
The new definition of “brother” / “sister” makes it very clear that half-brothers or half-sisters are considered brothers or sisters (respectively) under the definition of “family relationship”. These relationships are provided for in the current legislation.
The new definition of "change in control" of a corporation” was inserted because the same concept is utilised in both Division 8AAA and Division 8A of Part 3 of the Act. The definition is based on the definition of “change in control” in section 56BAA of the Act (prior to amendment by this Bill). However, the concept has been narrowed from its previous implementation because a review of former section 56BAA indicated that it would have application to a wider range of circumstances than intended. A literal reading of the provision meant that any change of a person who was a director or shareholder of a corporation would constitute a “change in control” of that corporation.
The new implementation of this definition provides that a change of control only occurs where a person or group of associates (as defined in section 4(2)) become able to control (directly or indirectly) the exercise of a majority of the votes at meetings of directors or shareholders of the corporation. Examples of controlling the exercise of votes include:
· Company A holds 55 per cent of the voting shares in Company B. If C is the sole director of Company A, then C controls the exercise of 55 per cent of the voting shares in Company B.
· Where person X is in a position of influence over person Y, who is the director of a company, such that person Y is accustomed or under an obligation to act in accordance with the directions, instructions or wishes of person X at votes of directors’ meetings, then person X indirectly controls Y’s votes at the directors’ meetings.
The new definition of “‘change in control’ of a trust” is based on section 56BAC(4) of the Act (prior to amendment by this Bill). This definition was inserted because the same concept is utilised in both Division 8AAA and Division 8A of Part 3 of the Act.
The new definition of “conveyance” amends the definition to reflect contemporary legislative drafting styles, mainly by utilising a ‘list’ of transactions or actions that are conveyances, rather than a single large paragraph that was difficult to read. While the definition refers to “property” rather than “dutiable property” or a “marketable security”, the amendment will not result in stamp duty being imposed on instruments and transactions that were previously not taxable, as duty is imposed on conveyances of “dutiable property” (refer to Item 1 of new Schedule 1 inserted by clause 58).
The new definition of “conveyee” reflects contemporary legislative drafting styles.
The new definition of “declaration of trust” was inserted because the same concept is utilised in both Division 8AA and Division 8A of Part 3. The definition is based on section 56BA(3) of the Act (prior to amendment by this Bill).
The new definition of “discretionary trust” reflects contemporary legislative drafting styles and utilises the new definitions of “beneficiary” and “object”.
The new definition of “dutiable instrument” was inserted to simplify the drafting of the Act. It essentially provides that instruments that are liable to duty under the Act are dutiable instruments.
The new definition of “dutiable transaction” was inserted to simplify the drafting of the Act and in particular Division 15 of Part 3, which imposes duty on transactions not evidenced by dutiable instruments.
The new definition of “dutiable value” acts to ‘signpost’ the location of that definition in section 4AB of the Act.
The new definition of “duty” simplifies references to “stamp duty”.
The new definition of “exempt instrument or transaction” and section 5(2) of the Act (see clause 14) ensures that all stamp duty exemptions will continue to apply.
The new definitions of “family” and “family relationship” are based on sections 4A(6) and 56BAA of the Act (prior to amendment by this Bill) and section 8E of the repealed Stamp Duty Act. These terms are utilised in a number of provisions in the Act and so removes the need to have separately defined terms such as “family member” and “relative” in other sections of the Act.
Essentially, persons are members of the same family where any two of those people are connected by family relationships. This means, for example, that step-brothers or step-sisters (who do not have a parent in common) are in the same family because each is in a family relationship with their respective parent, who are in turn in a family relationship with each other as spouses.
The new definitions of “family company”, family trust”, “farming land”, “farming property”, “farming purposes” and “primary production” are based on section 8E of the repealed Stamp Duty Act.
The new definition of “insurer” is simply updated for contemporary drafting style and to replace the word “tax” with “duty”.
The new definition of “interest” is to be read in conjunction with the definitions of “property”, “object” and “discretionary trust”.
The new definition of “land-holding corporation” is a ‘signpost’ to that definition in Part 3, Division 8A because that term is also used to in the new Taxation Administration Act and refers to the Stamp Duty Act definition.
The new definition of “lease” is in the same terms as the old definition, but removes some unnecessary exclusions under the old definition. These exclusions related to:
· attornments under a mortgage, which are not leases within the ordinary meaning of the word;
· certain rights granted by a company, which are not leases within the ordinary meaning of the word; and
· options to renew leases, which were required when stamp duty was imposed on the grant of a lease to ensure that the rent on which duty was calculated did not include rent possibly payable if an option to renew a lease was exercised. This part of the amended definition reflects the fact that the definition of “lease” should have been updated when stamp duty on the grant of leases was abolished from 1 July 2006 by the Treasury Legislation and Consequential Amendment Act 2006.
The new definition of “legislation” simplifies drafting by providing that a reference to legislation includes subordinate legislation and instruments made under legislation.
The new definition of “majority shareholder” is based on the definition in section 56C(5)(b) of the Act (prior to amendment by this Bill).
The new definition of “object” should be read in conjunction with the definitions of “discretionary trust” and “beneficiary”.
The new definition of “partnership acquisition” acts to ‘signpost’ the location of that definition in section 27(2) of the Act.
The new definition of “partnership interest” acts to ‘signpost’ the definition in Part 3, Division 3 of the Act.
The new definition of “property” provides that “property” includes an estate or interest in property. This simply reflects that the definition of “dutiable property” previously included an estate or interest in dutiable property.
The new definition of “recognised financial market” incorporates regulation 11 of the repealed Taxation (Administration) Regulations.
The new definition of “related” is based on section 56C(3)(b) of the Act (prior to amendment by this Bill) and is consistent with that definition used in the Pay-roll Tax Act.
The new definition of “responsible party” was inserted to simplify the drafting of Part 3, Division 15 of the Act that imposes duty on transactions not evidenced by dutiable instruments.
The new definition of “spouse” was inserted to simplify the Act. The stamp duty laws previously either specifically defined a spouse to include a de facto partner (for example, section 8E(1) of the repealed Stamp Duty Act) or referred to the joint term “spouse or de facto partner” (for example, section 8B of the repealed Stamp Duty Act).
The new definition of “stamp duty” (in conjunction with the new definition of “duty”) ensures that references to “duty” or “stamp duty” means stamp duty imposed under either the new or repealed Stamp Duty Act.
The new definition of “statutory vesting” was inserted because the same concept is utilised in both Division 8A and Division 8B of Part 3 of the Act. It is based on section 56V of the Act (prior to amendment by this Bill).
The new definition of “trust property” means both capital and income of the trust and was inserted as the concept is used in the definitions of “change of control”, “discretionary trust” and “object”.
Subclause (3) amends paragraph (j)(v) of the definition of “dutiable property” to clarify that a motor vehicle certificate of registration needs to be issued to the conveyee if the motor vehicle is not to be regarded as dutiable property.
Subclause (4) replaces section 4(3) of the Act with new sections 4(2), 4(3) and 4(4).
New section 4(2) details the circumstances in which a person will be regarded as an associate of another. This replaces a number of different concepts of "related person” or “associated person” throughout the former stamp duty legislation, such as section 4A(4) of the Act (prior to amendment by this Bill).
New section 4(3) expands the definition of “statutory vesting” in section 4(2) to ensure that a statutory vesting includes situations where legislation makes a person the successor in title to the property of another person. This is consistent with the definition of “statutory vesting” in sections 56C(1) and 56V of the Act (prior to amendment by this Bill).
New section 4(4) sets out when an instrument is duly stamped and replaces section 4(3) of the Act, which referred to adhesive and impressed stamps (terms that are being repealed by this Bill). The new section provides that duly stamped means where either:
· there is an “authorised stamp” (a new definition in section 4(1)) on the instrument; or
· the instrument is endorsed in a manner approved by the Commissioner. This will be utilised where, for example, the Commissioner authorises a special tax return arrangement pursuant to section 49 of the new Taxation Administration Act. An example of such an arrangement is the ‘Conveyance By Return’ system whereby authorised conveyancers calculate and collect the duty payable on certain conveyances of land.
Clause 10. Amendment of section 4A (Unencumbered value)
This clause replaces sections 4A(3A), (3B), (4), (5), and (6) of the Act with new sections 4A(4) and (5).
New section 4A(4) replaces previous section 4A(3A), retaining the same meaning for an “encumbrance”, except that it uses the new term “associates” defined in section 4(2), rather than the term “ related parties”. Using the new term “associates” has made sections 4A(3B) to (6) redundant.
New section 4A(5) inserts a provision in the same terms as section 8A(2) of the repealed Stamp Duty Act. It provides that the unencumbered value of land may be reduced by an amount that the Commissioner considers reflects the value of improvements on the land that were built by (or at the expense of) the conveyee, prior to the land being conveyed to the conveyee. New section 4AB of the Act will operate such that duty will be assessed on the consideration paid to acquire the land where that consideration is greater than the reduced unencumbered value resulting from the operation of new section 4A(5).
Clause 11. Repeal and substitution of section 4AB
This clause replaces section 4AB of the Act with new sections 4AB and 4AC.
New section 4AB(1) provides for the meaning of “dutiable value”, which is based on item 5(1) of Schedule 1 of the repealed Stamp Duty Act. “Dutiable value” is defined as the amount or value of the consideration or the unencumbered value of the property (whichever is the greater) or simply the unencumbered value of the property (if no consideration is given for the property).
This term was defined because the concept of “unencumbered value or consideration, whichever was greater” was used extensively through the Act and the repealed Stamp Duty Act.
New section 4AB(2) reflects the principle established by the courts that stamp duty is assessed on the maximum consideration payable on the acquisition of property. Accordingly, the new section provides that the dutiable value of property is established on the basis that it is assumed that any relevant contingencies will operate such that the maximum consideration payable will actually be given for the property.
New section 4AB(3) replaces section 97A of the Act and provides for the reassessment (on application) of duty payable if the consideration actually paid is less than the assumed consideration, provided that there is no possibility that the consideration will increase in the future.
New section 4AC(1) is in the same terms as section 4AB of the Act (prior to amendment by this Bill) and provides that the value of an interest in property held by a person who owns the property in common with another person is the total value of the property multiplied by a fraction that represents the person’s proportionate interest in the property.
New section 4AC(2) is in the same terms as section 8A(1) of the repealed Stamp Duty Act and provides that where property is held jointly, the value of a joint owner is to be determined as though they were tenants in common (that is, in accordance with section 4AC(1)).
New section 4AC(3) provides that the valuation provisions set out in section 4AC(1) and (2) are applicable whether dealing with unencumbered value or dutiable value.
Clause 12. Amendment of section 4B (Tax avoidance schemes)
This clause replaces section 4B(2) of the Act with a new section 4B(2) to reflect contemporary legislative drafting styles and to remove redundant provisions. Section 4B defines a tax avoidance scheme, which is a term used elsewhere in the Act to condition the operation of certain taxing or exemption provisions. Paragraphs (c) to (g) of this section are removed, as it is sufficient for the provisions containing a tax avoidance scheme test to make reference to a tax avoidance scheme.
Clause 13. Repeal and substitution of section 4D
This clause replaces section 4D of the Act with a new section 4D to reflect contemporary legislative drafting styles.
A technical change has been made in that a surrender of dutiable property where property does not accrue to another person (for example, where it removes a restriction on a right to use the property) is now a conveyance of dutiable property, rather than “taken” to be a conveyance of dutiable property, but there is no change in the type of transactions liable to stamp duty under this provision.
New section 4D(1) defines what a surrender of property is. A surrender of property is the relinquishment, renunciation, abandonment, cancellation, abrogation, forfeiture or extinguishment of property.
New section 4D(2) sets out the three situations where a surrender of property is a conveyance of property:
· It results in an accretion to the interest of someone in the property.
· It removes a restriction on the right that someone has to use the property.
· It enables someone to convey the property (or substantially similar property) to a third person.
Clause 14. Repeal and substitution of Part II
This clause repeals Part II of the Act because it contained administrative provisions that will be set out in the new Taxation Administration Act. The exception is previous section 8 which is replaced by section 94(2) of the Act (inserted by clause 57 of the Bill).
This clause also inserts a new Part 2 (comprising new sections 5 and 6) into the Act.
New section 5 is based on sections 4 and 6 of the repealed Stamp Duty Act, and provides that stamp duty is imposed on all “dutiable instruments” and “dutiable transactions” (new terms defined in section 4(2) of the Act). Stamp duty is not charged in respect of exempt instruments or transactions.
New section 6 is based on section 5 of the repealed Stamp Duty Act and provides that Schedule 1 of the Act sets out the various rates of duty that apply to different transactions and instruments.
Clause 15. Repeal and substitution of Part III heading
This clause amends the heading to Part III to reflect contemporary legislative drafting styles and removes an unnecessary reference to “tax”. All references to “tax” have been replaced with “duty” or “stamp duty”.
Clause 16. Repeal and substitution of sections 9 and 9A
This clause replaces sections 9 and 9A of the Act with new sections 9 and 9A to reflect contemporary legislative drafting styles and to adopt new terminology.
New section 9 has the same effect as the previous provision and sets out the times for lodgement of instruments and payment of duty. However, sections 9(3) and 9(4) are not required, as these are provided for in the new Taxation Administration Act.
New section 9(1) provides that dutiable instruments must be lodged within 60 days of first execution or becoming effective without execution.
New section 9(2) provides that the obligation to lodge is not affected by where the instrument is first executed or the location of the instrument itself.
New section 9(3) provides for the classes of instruments that do not need to be lodged. This gives effect to administrative practices under the Act that provide ways for stamp duty to be paid on policies of insurance and motor vehicle certificates of registration that do not require the lodging of instruments and also makes it clear that there is no requirement to lodge instruments that are exempted from stamp duty under the items specified.
New section 9(4) provides that statements and returns must be lodged on or before the last date provided for lodgement.
New section 9(5) provides that duty is payable within the period provided for lodgement unless a later date for payment is provided in a notice of assessment.
New section 9(6) provides that it is the responsibility of the person liable for duty to ensure lodgement and payment of duty within the specified time periods.
New section 9(7) reflects the position in section 83 of the Act (prior to amendment by this Bill) and provides that where the Act does not specify who is liable to pay duty, then all of the parties to a transaction or instrument are liable to pay the duty.
New section 9A provides that a person must not register, enrol or enter a dutiable instrument in an official register or record unless it is duly stamped. It has the same effect as the previous section 9A, but has been updated to use the new terminology of “dutiable instrument” and “duly stamped”.
Clause 17. Amendment of section 9BB (Apportioning certain dutiable property where business in Territory and elsewhere)
This clause amends section 9BB(2) and (3) to simplify its operation by making use of the term “dutiable value” which is provided for in new section 4AB of the Act. There is no change in the operation of the provision.
Clause 18. Amendment of section 9C (Copies of instruments)
This clause makes a consequential amendment to section 9C(2) of the Act to update the reference to “penalty” to the new terminology of “interest” and “penalty tax”, as a result of the new Taxation Administration Act having separate provisions for interest and penalty tax.
Clause 19. Repeal and substitution of sections 10 to 13
This clause repeals sections 10, 11, 12 and 13 of the Act because:
· the offence of evasion of stamp duty in section 10 is provided for in the new Taxation Administration Act;
· section 11 is replaced by a new section 11 that is updated to use the new terminology “authorised stamp”;
· section 12 is replaced by new section 94 of the Act (inserted by clause 57); and
· section 13 is no longer necessary as the use of adhesive stamps ceased on 1 July 2006 and from 1 July 2007 the Commissioner must not make a refund on the value of adhesive stamps.
This clause also inserts a new section 10, which is based on sections 6A and 6B of the repealed Stamp Duty Act. New section 10 provides that an instrument is not exempt from stamp duty merely because a statutory corporation or Government Business Division is a party to that instrument. Such an instrument would only be exempt from stamp duty if it is of a specific class of instrument specifically exempted.
Clause 20. Repeal and substitution of sections 15 to 17A
This clause repeals sections 15, 16, 17 and 17A of the Act because:
· section 15(1) is replaced by a new section 15, and section 15(2) is replaced by a new section 16(1), to reflect contemporary legislative drafting styles;
· section 16, relating to the valuation of currency, is now provided for in section 28 of the new Taxation Administration Act;
· section 17 is replaced by new sections 16(2), 17 and 17A to reflect contemporary legislative drafting styles; and
· section 17A, which set out the rules for accounting for stamp duty by returns (rather than lodging individual instruments), is removed, as such arrangements are regulated by Part 6, Division 2 of the new Taxation Administration Act as “special tax return arrangements”.
Clause 21. Repeal and substitution of section 19
This clause replaces section 19 of the Act with a new section 19 that replicates the operation of the former section 19 and has been redrafted to reflect contemporary legislative drafting styles.
Clause 22. Amendment of section 21 (Meaning of "group property" in section 20)
This clause makes a consequential amendment to section 21(c) of the Act as a result of section 19 of the Act being amended to use the new term “target corporation”.
Clause 23. Amendment of section 23 (Reassessment for the purposes of paying duty on a conveyance, transfer or relevant acquisition exempted under section 19 or 20)
This clause replaces the heading to section 23 with a new heading and makes consequential amendments to section 23 of the Act to utilise the terminology used in the new Taxation Administration Act, such as the term “reassessment” and to reflect the new provisions in the new Taxation Administration Act regarding interest and penalty tax.
Clause 24. Amendment of section 24 (Time for parties to give notice that require reassessment)
This clause replaces the heading to section 24 with a new heading. It also makes consequential amendments to section 24 of the Act to update the provision with terminology used in the new Taxation Administration Act, such as using the term “reassessment”, and to reflect contemporary legislative drafting styles.
Clause 25. Amendment of section 25 (Application for ruling regarding proposed corporate re-construction)
This clause makes consequential amendments to section 25 of the Act to update the provision with terminology used in the new Taxation Administration Act, such as using the term “notice”. It also makes changes to reflect contemporary legislative drafting styles.
Clause 26. Amendment of section 26 (Application for exemption regarding corporate re-construction)
This clause makes a number of amendments to section 26 of the Act to reflect contemporary legislative drafting styles.
Clause 27. Amendment of section 28 (Acquiring a partnership interest)
This clause inserts two new subsections into section 28:
New section 28(3) is based on the definition of “conveyance” in section 4(1) of the Act (prior to amendment by this Bill), which defined a “conveyance” to include an acquisition of a partnership interest. A consequential amendment is necessary as the new definition of “conveyance” (inserted by clause 9(2) of the Bill) no longer specifically refers to the acquisition of a partnership interest.
New section 28(4) clarifies that a partnership interest in dutiable property held by the partnership is equivalent to the percentage that defines the extent of the partnership interest.
Clause 28. Amendment of section 38 (Imposition of tax on policies of insurance)
This clause replaces the references to “tax” in section 38 of the Act with references to “duty” and “stamp duty”, including in the heading to that section.
Clause 29. Amendment of section 39 (Australian insurers to be registered)
This clause replaces the reference to “tax” in section 39 of the Act with references to “duty”.
Clause 30. Repeal and substitution of sections 41 to 44A
This clause replaces sections 41, 42, 43, 44 and 44A of the Act with new equivalent sections to reflect contemporary legislative drafting styles. The effect of these provisions has not altered.
Clause 31. Amendment of section 44C (Imposition of tax on life policies)
This clause replaces the references to “tax” in section 44C of the Act with references to “duty” and “stamp duty’, including in the heading to that section.
Clause 32. Amendment of section 45 (Life insurer in the Territory to be registered)
This clause amends section 45(1) of the Act to reflect contemporary legislative drafting styles.
Clause 33. Repeal and substitution of sections 47 to 49
This clause replaces sections 47, 48 and 49 of the Act with new equivalent sections to reflect contemporary legislative drafting styles. The effect of these provisions has not altered.
Clause 34. Amendment of section 49C (Apportionment in practice)
This clause amends section 49C of the Act.
Subclause (1) removes the words “in writing” in section 49C(2), as the new Taxation Administration Act requires applications to the Commissioner to be in writing.
Subclause (2) replaces the references to “tax” in section 49C(3) of the Act with references to “duty”.
Clause 35. Repeal and substitution of section 50
This clause amends section 50 of the Act to reflect contemporary legislative drafting styles. The effect of the provision has not altered.
Clause 36. Amendment of section 52A (Computation of duty where 2 or more instruments)
This clause makes a consequential amendment to section 52A of the Act, as the Commissioner’s ability to create a memorandum of a transaction will be provided for in section 86 of the Act. Prior to amendment by this Bill, this power was set out in section 94.
Clause 37. Repeal of section 55A
Section 55A of the Act is being repealed. That section provided for the situation where a conveyance was ineffective due to the non-execution of the instrument by an essential party. New section 56A(1)(b)(i) of the Act (see clause 38) deals with the matters previously provided for by section 55A.
Clause 38. Amendment of section 56A (Refund or remission of duty if transaction does not proceed etc.)
This clause amends section 56A of the Act to reflect contemporary legislative drafting styles and to recognise that the refund and assessment provisions are in the new Taxation Administration Act. In addition, the former section 55A is now incorporated into this section and subsection (7) is no longer required, as section 4 now establishes who is associated for the purposes of the Act.
Clause 39. Repeal of section 56B
This clause repeals section 56B of the Act as new section 56A(2)(a) allows the Commissioner to extend the time to apply for a refund or remission of stamp duty where a transaction does not proceed.
Clause 40. Repeal and substitution of section 56BA
This clause replaces section 56BA of the Act with a new section 56BA to reflect contemporary legislative drafting styles. A technical change has been made in that a declaration of trust is now a conveyance of dutiable property, rather than assessed “as if” it was a conveyance of dutiable property, but there is no change in the type of transactions liable to stamp duty under this provision.
Section 56BA(3) is no longer required because “declaration of trust” is defined in section 4(1) of the Act (see clause 9 of this Bill).
Clause 41. Repeal and substitution of sections 56BAA to 56BAC
This clause replaces sections 56BAA, 56BAB and 56BAC of the Act with new sections 56BAA, 56BAB and 56BAC because:
· the definitions in section 56BAA are now in section 4(1) of the Act (see clause 9 of this Bill); and
· sections 56BAB and 56BAC have been amended to reflect contemporary legislative drafting styles and to recognise the definitions in section 4(1) of the Act.
Clause 42. Amendment of section 56BC (Duty payable on call and put option)
This clause replaces section 56BC(7) of the Act with a new section 56BC(7) to reflect contemporary legislative drafting styles and is consistent with the policy in new sections 17A(2)(b) and (c) of the Act (see clause 20 of this Bill).
Clause 43. Amendment of section 56BD (Duty payable if neither option exercised)
This clause replaces section 56BD(5) of the Act with a new section 56BD(5) that reflects contemporary legislative drafting styles.
Section 56BD(6) of the Act is repealed because it is no longer required. New section 56BD(5)(a) incorporates the matters previously contained in section 56BD(6).
Clause 44. Amendment of section 56C (Interpretation)
This clause amends section 56C of the Act to reflect contemporary legislative drafting styles and to utilise the new definitions in section 4(1). There are no changes to the effect of the provisions, other than a minor amendment to the definition of “private unit trust scheme” (see subclause (4) below).
Subclause (1) removes the definitions of “beneficiary”, “change in control”, “declaration of trust over shares”, “land-holding corporation” and “statutory vesting” from section 56C(1) because these definitions are now in section 4(1) of the Act (see clause 9 of this Bill).
Subclause (2) replaces paragraphs (cd) and (ce) of the definition of “acquire” in section 56C(1) with new paragraphs (cd) and (ce) that utilise the definitions of “change in control” and “statutory vesting” in section 4(1).
Subclause (3) replaces sub-paragraph (d)(v) of the definition of “acquire” in section 56C(1) with a new sub-paragraph (d)(v) to remove reference to a redundant transitional provision.
Subclause (4) replaces paragraph (b)(iii) of the definition of “private unit trust scheme” with a new paragraph (b)(iii) to clarify that the prospectus or product disclosures may be lodged with or simply notified to ASIC (as not all of these documents need to be lodged with ASIC).
Subclause (5) replaces section 56C(1A)(a)(iii) with a new section 56C(1A)(a)(iii) to utilise the definition of “related” in section 4(1).
Subclause (6) replaces section 56C(3)(a) to (c) with a new section 56C(3)(a) to (c) to utilise the definitions of “spouse” and “related” and to use contemporary legislative drafting styles.
Subclause (7) replaces section 56C(3)(e) and (f) with a new section 56C(3)(e) and (f) to utilise the definitions of “majority shareholder” and “related” in section 4(1).
Subclause (8) replaces section 56C(3)(h) with a new section 56C(3)(h) to utilise the definition of “declaration of trust” in section 4(1).
Subclause (9) removes sections 56C(4) and (5) and replaces section 56C(4) with a new section 56C(4) updated for contemporary legislative drafting styles. Section 56C(5) is no longer required as “majority shareholder” is defined in section 4(1) (see clause 9 of this Bill).
Subclause (10) replaces section 56C(9) with a new section 56C(9) to utilise the definition of “farming land” in section 4(1) and to update the legislative reference from section 8E(1) of the repealed Stamp Duty Act to section 87 of the new Stamp Duty Act (see clause 57 of this Bill).
Clause 45. Repeal of section 56CA
This clause repeals section 56CA of the Act. It is no longer required because of the new definition of “change in control” inserted into section 4(1) of the Act (see clause 9 of this Bill).
Clause 46. Amendment of section 56D (Lodgement of statements by trustees)
This clause replaces section 56D(2)(a) and (b) of the Act with a new section 56D(2)(a) and (b) to reflect contemporary legislative drafting styles and the new definition of “beneficiary” inserted into section 4(1) of the Act (see clause 9 of this Bill).
Clause 47. Repeal of sections 56E to 56J
This clause repeals sections 56E, 56F, 56G, 56H and 56J of the Act because the new Taxation Administration Act regulates valuations (see section 25 of the new Taxation Administration Act) and statutory charges on land (see Part 7, Division 3 of the new Taxation Administration Act).
Clause 48. Amendment of section 56K (When statement to be lodged)
This clause replaces sections 56K(2) and 56K(4) of the Act with new sections 56K(2) and 56K(4).
Subclause (1) replaces section 56K(2) with a new section 56K(2) to reflect contemporary legislative drafting styles.
Subclause (2) replaces section 56K(4) with a new section 56K(4) to reflect contemporary legislative drafting styles and recognises that section 56K(4)(e) of the Act, which relates to interests acquired before 27 May 2003, is no longer required.
Clause 49. Amendment of section 56M (Statement chargeable with duty)
This clause makes several amendments to section 56M of the Act.
Subclause (1) replaces section 56M(1) of the Act with a new section 56M(1) to reflect contemporary legislative drafting styles and the new definition of “dutiable value” in section 4(1) of the Act.
Subclause (2) replaces section 56M(2)(a)(i) with a new section 56M(2)(a)(i), recognising that provisions specifically relating to interests acquired before 27 May 2003 are no longer required.
Subclause (3) removes section 56M(2)(iii) and (iv), recognising that provisions specifically relating to interests acquired before 20 August 2001 and 27 May 2003 are no longer required.
Subclause (4) replaces section 56M(2)(c)(vi)(A) with a new section 56M(2)(c)(vi)(A). The new section reflects contemporary legislative drafting styles and the new definitions of “beneficiary” and “family” in section 4(1) of the Act.
Subclause (5) replaces section 56M(2)(c)(vii) with a new section 56M(2)(c)(vii). The new section reflects contemporary legislative drafting styles and the new definitions of “beneficiary”, “change in control” and “discretionary trust” in section 4(1) of the Act.
Subclause (6) replaces section 56M(2A)(a) with a new section 56M(2A)(a) to reflect contemporary legislative drafting styles
Clause 50. Amendment of section 56S (Liability for duty)
This clause makes several amendments to section 56S of the Act.
Subclause (1) replaces section 56S(1)(c) of the Act with a new section 56S(1)(c) to reflect contemporary legislative drafting styles.
Subclause (2) omits section 56S(2) of the Act. That section is no longer required because section 58 of the new Taxation Administration Act regulates recovery by persons jointly liable for tax.
Subclause (3) makes a consequential amendment to section 56S(3) of the Act as a result of the new Taxation Administration Act using the term “reassess”.
Subclause (4) omits section 56S(4) of the Act. That section is no longer required because section 97 is repealed and the new Taxation Administration Act regulates reassessments.
Clause 51. Repeal and substitution of sections 56V and 56W
This clause repeals sections 56V and 56W of the Act because the definition of “statutory vesting” in section 56V is moved to new sections 4(1) and (3) of the Act.
Section 56W is replaced with a new equivalent section to reflect contemporary legislative drafting styles. In addition, a technical change has been made in that a declaration of trust is now a conveyance of dutiable property, rather than assessed “as if” it was a conveyance of dutiable property, but there is no change in the type of transactions liable to stamp duty under this provision.
Clause 52. Repeal and substitution of section 57
This clause replaces section 57 of the Act with a new section 57 to reflect contemporary legislative drafting styles.
Clause 53. Amendment of section 58 (Registrar not to register unless duty paid)
This clause replaces section 58(1)(b) of the Act with a new section 58(1)(b) to reflect contemporary legislative drafting styles and utilises the term “dutiable value”.
Clause 54. Repeal of Part III, Division 14
This clause repeals Part III, Division 14 of the Act, relating to miscellaneous instruments that are not otherwise subject to stamp duty under another Division of this Part. Division 14 is no longer required as adequate provision is made for these miscellaneous instruments elsewhere in the Act and the new Taxation Administration Act.
Clause 55. Substitution of sections 83A and 83B
This clause repeals sections 83A and 83B of the Act and replaces them with new sections 83B and 83C.
The new sections reflect contemporary legislative drafting styles and the new definitions of “dutiable instrument” and “dutiable transaction” inserted into section 4(1) of the Act.
While reference is no longer made to “a change in beneficial ownership” or to “dutiable property being acquired or created”, the scope of Part 3, Division 15 is the same. The amendments are not intended to result in stamp duty being imposed on transactions that were previously not taxable. The amendments should only result in duty continuing to be imposed on those transactions that were previously taxable.
Clause 56. Repeal of sections 83D and 83F
This clause repeals sections 83D and 83F of the Act because new section 16(2) of the Act regulates the stamping of instruments and Part 8 of the new Taxation Administration Act regulates offences.
Clause 57. Repeal and substitution of Parts IV to XII
This clause repeals Parts IV to XII of the Act and substitutes new Parts 4, 5 and 6. The Parts removed are administrative provisions now regulated by the new Taxation Administration Act, provisions that have been moved to a new location in the Stamp Duty Act or transitional provisions that are not required in the new Stamp Duty Act (see table below).
Repealed Part | New reference |
| Parts IV (Assessments) | Taxation Administration Act, Part 3 (Assessment of Tax Liability) |
| Part V (Objections and Appeals) | Taxation Administration Act, Part 11 (Objections and Appeals) |
| Part VA (Taxation and Royalty Appeals Tribunal) | Taxation Administration Act, Part 12 (Taxation and Royalty Appeals Tribunal) |
| Part VI (Recovery of Debt) | Taxation Administration Act, Part 7 (Payment and Recovery of Debt) |
| Part VII (Proceedings and Prosecutions) | Taxation Administration Act, Part 13 (Prosecutions and Offence Provisions) |
| Part VIIA (Reciprocal Powers) | Taxation Administration Act, Part 9 (Investigations) |
| Part VIII (Miscellaneous) |  |
| · Section 118 | Taxation Administration Act, section 33 |
| · Sections 119 - 122 | Stamp Duty Act, section 96 |
| · Section 123 | Taxation Administration Act, section 138 |
| · Section 123A | Stamp Duty Act, section 95 |
| · Section 124 | Taxation Administration Act, Part 14, Division 3 |
| · Section 125 | Taxation Administration Act, section 146 |
| · Section 126 | Taxation Administration Act, Part 8 |
| · Section 127 | Taxation Administration Act, Part 9 |
| · Section 128 | Taxation Administration Act, section 12 |
| · Section 129 | Stamp Duty Act, section 97 |
| Part IX (Transitional Matters For Taxation (Administration) Amendment (Objections And Appeals) Act 2005) | Transitional provision removed because it is not required in the new Stamp Duty Act |
| Part X (Transitional Matters For Taxation (Administration) Amendment Act 2005) | Transitional provision removed because it is not required in the new Stamp Duty Act |
| Part XI (Transitional Matters For Treasury Legislation And Consequential Amendment Act 2006 | Transitional provision removed because it is not required in the new Stamp Duty Act |
| Item 5 - Conveyance of Dutiable Property | Item 1 - Conveyances |
| Item 6 – Deeds of any kind whatsoever … | Item 2 – Deeds not otherwise charged |
| Item 7 – Foreclosure Order | Item 1(10) |
| Item 11 – Instrument of Appointment Any Trustee | Item 3 – Instrument for the appointment of trustee |
| Item 12 – Lease | Item 4 – Lease of land in the Territory |
| Item 16 - Motor Vehicle Certificate of Registration | Item 5 – Motor vehicle certificate of registration |
| Item 17 – Policies of Insurance | Item 6 – Policy of insurance |
| Item 18 – Policies of life Insurance | Item 6 – Policy of insurance |
| Item 22 – Counterparts or Copies | Item 8 – Counterpart or copy of duly stamped instrument |
| Item 23 – Instrument to Correct Error | Item 7 – Instrument to correct error |
| Item 24 – Instruments Relating to Managed Investment Schemes | Section 92 of the Stamp Duty Act (see clause 57 of the Bill) |
| Item 5 | Item 15 |
| Item 6A | Item 1 |
| Item 6B | Item 16 |
| Item 7 | Items 2 and17 |
| Item 8 | Item 3 |
| Item 8A | Item 4 |
| Item 9 | Item 5 |
| Item 9A | Item 6 |
| Item 9B | Item 7 |
| Item 23 | Item 8 |
| Item 26 | Item 24 |
| Item 30 | Item 19 |
| Item 31 | Item 20 |
| Item 32 | Item 21 |
| Item 32A | Item 22 |
| Item 33 | Item 9 |
| Item 33A | Item 10 |
| Item 33AA | Item 11 |
| Item 33B | Item 12 |
| Item 33C | Item 13 |
| Item 34 | Item 25 |
| Item 35 | Item 26 |
| Item 36 | Item 14 |
| Item 37 | Item 23 |
| Item 38 | Item 27 |
| Item 39 | Item 28 |