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TASMANIA
__________
DUTIES AMENDMENT BILL 2009
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 6 amended (Imposition of duty on certain transactions
concerning dutiable property)
5. Section 7 amended (Imposition of duty on dutiable transactions
that are not transfers)
6. Section 10 substituted
10. When does a liability for duty arise?
7. Section 16 substituted
16. No double duty
8. Section 19 amended (What is the consideration for the transfer
of dutiable property?)
9. Section 20 amended (What is the unencumbered value of
dutiable property?)
10. Section 22 amended (Aggregation of dutiable transactions)
11. Section 27 substituted
27. Effect of alteration in purchase price
12. Sections 32 and 33 repealed
13. Section 34 substituted
34. Transfer arising from mortgage of land
14. Chapter 2, Part 4A inserted
PART 4A Transactions Treated as Subsales of Land
[Bill 42]-I
Division 1 Introduction
36A. Definitions
Division 2 Transfers involving additional consideration
36B. Application of Division
36C. How duty is charged on transfer
36D. Dutiable value of transactions
36E. When does liability to duty arise?
36F. Who is liable to pay duty?
36G. Exemptions and concessions
Division 3 Miscellaneous
36H. Provisions for determining consideration
36I. Parties required to provide information to
Commissioner
15. Section 54 repealed
16. Section 91 amended (Application of Act to put and call option,
&c.)
17. Section 259B inserted
259B. Transitional provisions consequent on Duties
Amendment Act 2009
2
DUTIES AMENDMENT BILL 2009
(Brought in by the Premier, the Honourable David John
Bartlett)
A BILL FOR
An Act to amend the Duties Act 2001
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Duties Amendment
Act 2009.
2. Commencement
This Act is taken to have commenced on
1 July 2009.
3. Principal Act
In this Act, the Duties Act 2001* is referred to as
the Principal Act.
*No. 15 of 2001
[Bill 42] 3
Duties Amendment Act 2009
Act No. of
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4. Section 6 amended (Imposition of duty on certain
transactions concerning dutiable property)
Section 6(1)(b) of the Principal Act is amended
as follows:
(a) by omitting subparagraph (i);
(b) by omitting from subparagraph (v)
"Division 6 of Part 2 of the Strata Titles
Act 1998; and" and substituting
"Division 6 of Part 2 of the Strata Titles
Act 1998;";
(c) by inserting the following subparagraph
after subparagraph (v):
(vi) any other transaction that results
in a change of beneficial
ownership of dutiable property;
and
5. Section 7 amended (Imposition of duty on dutiable
transactions that are not transfers)
Section 7(2) of the Principal Act is amended as
follows:
(a) by omitting the following item from the
table:
agreement for the property the purchaser or when the
sale or transfer agreed to be transferee agreement is
sold or entered into
transferred
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Act No. of
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(b) by inserting in the table after
giving, granting the licence the person to when the licence
or issue of whom the is issued
licence licence is issued
the following item:
any other the property the the person who when beneficial
transaction that beneficial obtains the ownership
results in a ownership of beneficial changes
change in which is ownership or
beneficial changed (but whose
ownership of only to the beneficial
dutiable extent of the ownership is
property change in increased
beneficial
ownership)
6. Section 10 substituted
Section 10 of the Principal Act is repealed and
the following section is substituted:
10. When does a liability for duty arise?
A liability for duty charged by this
Chapter arises when a dutiable
transaction occurs.
7. Section 16 substituted
Section 16 of the Principal Act is repealed and
the following section is substituted:
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Act No. of
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16. No double duty
(1) If a dutiable transaction is effected by
more than one instrument, one
instrument is to be stamped with the duty
payable on the dutiable transaction and
each other instrument is to be denoted
with a statement of the amount, and date
of payment, of the duty.
(2) If a dutiable transaction is effected
electronically (in accordance with the
Electronic Transactions Act 2000) in
whole or in part and duty has been paid,
no further duty is payable in respect of an
instrument or electronic transaction that
forms part of the dutiable transaction.
(3) No duty is chargeable under this Chapter
on a transfer to a trustee of dutiable
property subject to a declaration of trust
if ad valorem duty has been paid on the
declaration of trust in respect of the same
dutiable property.
(4) No duty is chargeable under this Chapter
on a declaration of trust that declares the
same trusts as those upon and subject to
which the same dutiable property was
transferred to the person declaring the
trust if ad valorem duty has been paid on
the transfer.
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8. Section 19 amended (What is the consideration for
the transfer of dutiable property?)
Section 19 of the Principal Act is amended by
omitting subsections (2) and (3).
9. Section 20 amended (What is the unencumbered
value of dutiable property?)
Section 20 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) The unencumbered value of
dutiable property is the amount
for which the property might
reasonably have been sold in the
open market or as calculated by
sections 247 and 248(2) and (2A),
as may be appropriate
(a) in the case of a transfer of
dutiable property on a sale
of the property, at the
time the agreement for
sale was entered into; or
(b) in any other case, at the
time the dutiable
transaction occurred
free from any encumbrance to
which the property was subject at
that time.
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(b) by omitting subsection (2).
10. Section 22 amended (Aggregation of dutiable
transactions)
Section 22(1) of the Principal Act is amended by
omitting paragraph (a) and substituting the
following paragraph:
(a) either
(i) in the case of dutiable
transactions that are transfers on a
sale of an item or part of dutiable
property, the agreements for sale
are entered into within 12
months; or
(ii) in any other case, the dutiable
transactions occur within 12
months; and
11. Section 27 substituted
Section 27 of the Principal Act is repealed and
the following section is substituted:
27. Effect of alteration in purchase price
If, after an agreement for the sale of
dutiable property is entered into and
before the property is transferred
(a) the consideration under the
agreement is reduced and the
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reduced consideration is not less
than the unencumbered value of
the dutiable property when the
consideration was reduced; or
(b) the consideration under the
agreement is reduced because the
parties have agreed not to transfer
some of the dutiable property
previously agreed to be
transferred and the reduced
consideration is not less than the
unencumbered value of the
dutiable property that remained to
be transferred when the
consideration was reduced; or
(c) the consideration under the
agreement is increased and the
dutiable value when the
consideration was increased is
greater than the dutiable value
when the agreement was entered
into
the Commissioner must assess or
reassess the liability to duty of the
transfer in accordance with the change in
the consideration.
12. Sections 32 and 33 repealed
Sections 32 and 33 of the Principal Act are
repealed.
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13. Section 34 substituted
Section 34 of the Principal Act is repealed and
the following section is substituted:
34. Transfer arising from mortgage of land
If a mortgage also operates as a
conveyance of the equity, right of
redemption or reversion of the property
comprised in the instrument to or in trust
for, and according to the direction of, the
purchaser, it is chargeable with duty as a
transfer under this Chapter, but, if the
equity or right of redemption or reversion
is thereby conveyed or limited in any
other manner, it is not chargeable with
duty under this Chapter.
14. Chapter 2, Part 4A inserted
After section 36 of the Principal Act, the
following Part is inserted in Chapter 2:
PART 4A TRANSACTIONS TREATED AS
SUBSALES OF LAND
Division 1 Introduction
36A. Definitions
(1) In this Part
"associate" of a person means an
associated person of that person;
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"consideration" means the amount of
a monetary consideration or the
value of a non-monetary
consideration;
"first purchaser"
(a) for the purposes of
Division 2, has the
meaning given in
section 36B(1)(a); and
(b) for the purposes of
Division 3, has the
meaning given in
section 36I(1)(a);
"sale agreement" has the meaning
given in section 36B(1)(a);
"subsequent purchaser" has the
meaning given in
section 36B(1)(b);
"subsequent transaction" has the
meaning given in section 36B(3);
"transfer right" has the meaning
given in section 36B(1)(b);
"vendor"
(a) for the purposes of
Division 2, has the
meaning given in
section 36B(1)(a); and
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(b) for the purposes of
Division 3, has the
meaning given in
section 36I(1)(a).
(2) For the purposes of this Part
(a) if a person who has a transfer
right obtains an increased transfer
right by a subsequent transaction,
the person is a subsequent
purchaser in relation to that
subsequent transaction only to the
extent of the increase in the
transfer right; and
(b) if, by a subsequent transaction, a
person retains a transfer right and
another person obtains a transfer
right, that other person is a
subsequent purchaser in relation
to that subsequent transaction
only to the extent of the transfer
right obtained by that other
person.
Division 2 Transfers involving additional consideration
36B. Application of Division
(1) This Division applies to a transfer of
dutiable property referred to in section 9
if
(a) a person (the "vendor") enters
into an agreement (the "sale
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agreement") to sell or transfer
the property to another person
(the "first purchaser"); and
(b) any of the following persons (a
"subsequent purchaser")
obtains the right (a "transfer
right") to have the property or
any part of it transferred, on
completion of the sale agreement,
to the subsequent purchaser:
(i) a person other than the
first purchaser;
(ii) the first purchaser and a
person other than the first
purchaser;
(iii) if there is more than one
first purchaser, one or
more of the first
purchasers in different
proportions from those in
the sale agreement; and
(c) a subsequent purchaser or an
associate of the subsequent
purchaser gives or agrees to give
additional consideration in order
for the subsequent purchaser to
obtain the transfer right; and
(d) the vendor transfers the property
or any part of it to a subsequent
purchaser.
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(2) It is immaterial whether a subsequent
purchaser obtains a transfer right
(a) by way of an assignment,
nomination, novation or
otherwise; or
(b) from the first purchaser or from
another subsequent purchaser.
(3) Each assignment, nomination, novation
or other arrangement by which a
subsequent purchaser obtains a transfer
right is called a "subsequent
transaction".
(4) In this section
"additional consideration" for a
transfer right means any
consideration given or agreed to
be given by a subsequent
purchaser or an associate of the
subsequent purchaser in order for
the subsequent purchaser to
obtain the transfer right and
(a) if the subsequent purchaser
obtained the transfer right from
the first purchaser, the additional
consideration is the amount that
exceeds the consideration given
or agreed to be given to the
vendor by the first purchaser
under the sale agreement in
respect of the property that is the
subject of the transfer right; or
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(b) if the subsequent purchaser
obtained the transfer right from
another subsequent purchaser, the
additional consideration is the
amount that exceeds the
consideration given or agreed to
be given by that other subsequent
purchaser or an associate of that
other subsequent purchaser in
order for that other subsequent
purchaser to obtain a transfer
right, to the extent that the
consideration relates to the first-
mentioned transfer right.
36C. How duty is charged on transfer
(1) Duty on a transfer to which this Division
applies is not charged in respect of the
transfer from the vendor to the transferee,
but is charged separately and distinctly
on
(a) the dutiable value of the sale
agreement as if it had been
completed by the first purchaser;
and
(b) the dutiable value of the
subsequent transaction by which
the final subsequent purchaser
obtained the transfer right; and
(c) if there were any other
subsequent transactions, the
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dutiable value of each of those
transactions.
(2) Duty is charged at the rate set out in
Part 3 on the dutiable value referred to in
section 36D.
(3) If a subsequent purchaser or an associate
of a subsequent purchaser has not given
or agreed to give additional consideration
in order to obtain a transfer right and
(a) if the subsequent purchaser
obtained the transfer right from
the first purchaser, duty is not
chargeable under this Division on
the sale agreement to the extent
of the transfer right obtained by
the subsequent purchaser; or
(b) in the case of a subsequent
transaction referred to in
subsection (1)(c), duty is not
chargeable under this Division on
the subsequent transaction, by
which the subsequent purchaser
obtained the transfer right, to the
extent of the transfer right
obtained by the subsequent
purchaser.
(4) Subsection (3)(b) applies only where a
subsequent purchaser obtained a transfer
right from another subsequent purchaser.
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36D. Dutiable value of transactions
(1) For the purposes of this Division, the
dutiable value of the sale agreement
referred to in section 36C(1)(a) is the
greater of
(a) the consideration given or agreed
to be given under the sale
agreement; and
(b) the amount for which the
property might reasonably have
been sold if it had been sold, free
from encumbrances, in the open
market on the date on which the
sale agreement was entered into,
or as calculated by sections 247
and 248(2) and (2A), as may be
appropriate.
(2) For the purposes of this Division, the
dutiable value of a subsequent
transaction referred to in
section 36C(1)(b) or (c) is the greater of
the following:
(a) the consideration given or agreed
to be given by the subsequent
purchaser or an associate of the
subsequent purchaser in order for
the subsequent purchaser to
obtain the transfer right under the
transaction;
(b) the amount for which the
property might reasonably have
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Act No. of
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been sold if it had been sold, free
from encumbrances, in the open
market on the date on which the
sale agreement was entered into
or as calculated by sections 247
and 248(2) and (2A), as may be
appropriate.
36E. When does liability to duty arise?
A liability for duty charged by this
Division arises when the transfer occurs.
36F. Who is liable to pay duty?
(1) Duty charged by this Division is
payable
(a) in the case of duty referred to in
section 36C(1)(a), by the first
purchaser; or
(b) in the case of duty referred to in
section 36C(1)(b) or (c), by the
subsequent purchaser who
obtains a transfer right under the
relevant subsequent transaction.
(2) A transferee who pays duty payable by
another person under this Division may
recover the amount of that duty as a debt
due to the transferee from the other
person.
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36G. Exemptions and concessions
(1) Duty is not chargeable under
section 36C(1)(a) if the sale agreement
would be exempt from duty under this
Chapter if it were a transfer of dutiable
property to the first purchaser.
(2) If the first purchaser would be entitled to
a concession under this Chapter if the
sale agreement were a transfer to the first
purchaser, the first purchaser is entitled
to that concession in respect of duty
charged under section 36C(1)(a).
(3) Duty is not chargeable under
section 36C(1)(b) or (c) if the subsequent
transaction would be exempt from duty
under this Chapter if it were a transfer of
dutiable property to the subsequent
purchaser who obtains the transfer right
under the subsequent transaction.
(4) If a subsequent purchaser would be
entitled to a concession under this
Chapter if the subsequent transaction
were a transfer to the subsequent
purchaser, the subsequent purchaser is
entitled to that concession in respect of
duty charged under section 36C(1)(b) or
(c).
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Division 3 Miscellaneous
36H. Provisions for determining consideration
(1) This section applies for the purpose of
determining in Division 2
(a) the consideration given or agreed
to be given under a sale
agreement; or
(b) the consideration given or agreed
to be given to obtain a transfer
right under a subsequent
transaction.
(2) The consideration is taken to include the
amount or value of all encumbrances,
whether certain or contingent, subject to
which the property would be transferred
in accordance with, or as contemplated
by, the relevant transaction.
36I. Parties required to provide information to
Commissioner
(1) This section applies if
(a) a person (the "vendor") enters
into an agreement to sell or
transfer any dutiable property
referred to in section 9 to another
person (the "first purchaser"), or
an option is granted in respect of
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Act No. of
s. 15
that property to or by the first
purchaser; and
(b) the transfer executed by the
vendor transfers the property or
any part of it not to the first
purchaser but to another person
("the transferee").
(2) The transferee must give the
Commissioner a statutory declaration in
the approved form, containing the details
required by the Commissioner for the
purposes of determining any liability of
the transferee or any other person to duty
under this Chapter.
(3) If the Commissioner considers it
necessary for the purposes of
determining liability to duty under this
Chapter, the Commissioner may require
any person he or she reasonably believes
may be liable to duty to give the
Commissioner a statutory declaration in
the approved form, containing the details
required by the Commissioner.
15. Section 54 repealed
Section 54 of the Principal Act is repealed.
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Act No. of
s. 16
16. Section 91 amended (Application of Act to put and
call option, &c.)
Section 91 of the Principal Act is amended as
follows:
(a) by omitting "an agreement for sale" and
substituting "a transfer";
(b) by omitting "section 6(1)(b)(i)" and
substituting "section 6(1)(a)";
(c) by omitting paragraph (b) and
substituting the following paragraph:
(b) the dutiable property which is the
subject of the call option and the
put option is taken to be property
which is transferred by that
transfer of dutiable property; and
(d) by omitting from paragraph (c)
"agreement for sale" and substituting
"transfer".
17. Section 259B inserted
After section 259A of the Principal Act, the
following section is inserted in Part 3:
259B. Transitional provisions consequent on Duties
Amendment Act 2009
Any obligation to pay or refund duty
under this Act immediately before the
commencement of the Duties
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Act No. of
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Amendment Act 2009 continues on and
after that commencement until it is
discharged in accordance with the
provisions of this Act as in force
immediately before the commencement
of the Duties Amendment Act 2009.
Government Printer, Tasmania 23