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TASMANIA
__________
TAXATION AND RELATED LEGISLATION
(MISCELLANEOUS AMENDMENTS) BILL
2004
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
PART 2 DUTIES ACT 2001 AMENDED
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 6 amended (Imposition of duty on certain
transactions concerning dutiable property)
6. Section 21 substituted
21. Arrangements that reduce the dutiable value
7. Section 37 amended (Change in trustees)
8. Section 53 amended (Exemptions relating to various
transactions)
9. Section 55 amended (Exemptions - transfers to partners
in a marriage or relationship)
10. Section 57 amended (Exemptions - personal
relationships)
11. Section 147 amended (Secured amount)
[Bill 45]-III
12. Section 150 amended (Advances secured by mortgage
package)
13. Section 157 amended (Refinancing of loans)
14. Section 199 amended (Exemptions)
15. Section 231 substituted
231. Stamping of instruments
16. Section 233 amended (Adhesive stamps)
PART 3 DUTIES ACT 2001 FURTHER AMENDED
17. Principal Act
18. Section 142 amended (When does a liability arise?)
PART 4 DUTIES ACT 2001 FURTHER AMENDED
19. Principal Act
20. Section 16 amended (No double duty)
21. Section 219 substituted
219. Duplicates or counterparts
PART 5 FIRST HOME OWNER GRANT ACT 2000
AMENDED
22. Principal Act
23. Section 25 amended (Objections)
24. Section 26 amended (Powers of Commissioner on
objection)
25. Section 40 amended (Protection of confidential
information)
26. Section 42 amended (Time for commencing prosecution)
PART 6 LAND TAX ACT 2000 AMENDED
27. Principal Act
28. Section 3 amended (Interpretation)
29. Section 10 amended (Liability for land tax)
30. Section 16 amended (Notice of change in use of land)
31. Section 18 amended (Exempt trust land)
2
32. Section 24 amended (Aggregate land value)
PART 7 LOCAL GOVERNMENT ACT 1993 AMENDED
33. Principal Act
34. Section 139 substituted
139. Application of money from sale
PART 8 PAY-ROLL TAX ACT 1971 AMENDED
35. Principal Act
36. Section 2 amended (Interpretation)
37. Sections 2AAA and 2AAB inserted
2AAA.Certain trust distributions constitute wages for
pay-roll tax purposes
2AAB.Central fund scheme contributions constitute
wages for pay-roll tax purposes
38. Section 11I amended (Exclusion of persons from groups)
39. Section 11K inserted
11K. Arrangements for tax avoidance may be
disregarded
40. Section 49 amended (Regulations)
PART 9 TAXATION ADMINISTRATION ACT 1997
AMENDED
41. Principal Act
42. Section 4 amended (Meaning of taxation laws)
43. Section 19 amended (Reassessment)
44. Section 55 substituted
55. Recovery of tax, &c.
45. Section 77 amended (Permitted disclosures)
46. Section 79E amended (Disclosure of information)
47. Part 10, Division 4 inserted
Division 4 Other cases
95A. Refunds payable, &c., consequent on related
objections affecting taxation liability
3
4
TAXATION AND RELATED LEGISLATION
(MISCELLANEOUS AMENDMENTS) BILL
2004
(Brought in by the Treasurer, the Honourable Paul
Anthony Lennon)
A BILL FOR
An Act to amend the Duties Act 2001, the First Home
Owner Grant Act 2000, the Land Tax Act 2000, the
Local Government Act 1993, the Pay-roll Tax Act
1971 and the Taxation Administration Act 1997
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:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Taxation and Related
Legislation (Miscellaneous Amendments) Act 2004.
Commencement
2. (1) Except as provided by this section, the provisions of
this Act commence on 1 December 2004.
(2) Parts 6, 7 and 8 commence on 1 July 2005.
[Bill 45] 5
s. 2 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
(3) Part 3 is taken to have commenced on
1 July 2001.
(4) Part 4 is taken to have commenced on
1 July 2004.
6
2004 Taxation and Related Legislation No. s. 3
(Miscellaneous Amendments)
PART 2 DUTIES ACT 2001 AMENDED
Principal Act
3. In this Part, the Duties Act 2001* is referred to as the
Principal Act.
Section 3 amended (Interpretation)
4. Section 3 of the Principal Act is amended as follows:
(a) by omitting the definition of "caring partner"
and substituting the following definition:
"caring partner", in relation to a
person, means the person who is
in a caring relationship with that
person, being a caring relationship
that
(a) is the subject of a deed of
relationship registered
under Part 2 of the
Relationships Act 2003; or
(b) is declared to exist by virtue
of a declaration of the
Supreme Court in force
under Part 7 of that Act;
(b) by omitting the definition of "child of de facto
partners";
(c) by omitting paragraph (a) from the definition
of "recognised stock exchange" and
substituting the following paragraph:
*No. 15 of 2001
7
s. 5 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
(a) a stock exchange that is a member
of the World Federation of
Exchanges; or
(d) by omitting "de facto" from the definition of
"relationship property" and substituting
"personal";
(e) by inserting the following definition after the
definition of "shares":
"significant relationship" has the
same meaning as in the
Relationships Act 2003;
(f) by omitting ", within the meaning of the
Relationships Act 2003," from the definition of
"spouse".
Section 6 amended (Imposition of duty on certain
transactions concerning dutiable property)
5. Section 6 of the Principal Act is amended as follows:
(a) by omitting subparagraphs (v) and (vi) from
subsection (1)(b) and substituting the
following subparagraph:
(v) the giving, granting or issuing of a
licence to another person in the
circumstances referred to in
section 9(2); and
(b) by inserting the following paragraph after
paragraph (b) in subsection (1):
(c) a vesting of dutiable property
(i) by, or expressly authorised
under, a statute of this State
8
2004 Taxation and Related Legislation No. s. 6
(Miscellaneous Amendments)
or any other jurisdiction,
whether in Australia or
elsewhere; or
(ii) by, or under, an order of a
court of this State or any
other jurisdiction, whether
in Australia or elsewhere.
(c) by omitting from subsection (2) "or
transaction" and substituting ", transaction or
vesting";
(d) by inserting the following subsection after
subsection (2):
(2A) For the purposes of, but without
limiting, subsection (1)(c)(i)
(a) property is vested by or under a
statute if the statute vests the
property in an entity that is the
successor in law to or continuation
of, or the same entity as, the
entity in which the property was
formerly vested; but
(b) property is not vested by or under
a statute on the registration of a
company under Part 5B.1 of
Chapter 5B of the Corporations
Act.
Section 21 substituted
6. Section 21 of the Principal Act is repealed and the
following section is substituted:
9
s. 6 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
Arrangements that reduce the dutiable value
21. (1) In determining the dutiable value of dutiable
property under this Part, any interest, agreement or
arrangement (other than an encumbrance) granted
or made in respect of the dutiable property that has
the effect of reducing the dutiable value is to be
disregarded, subject to subsection (2).
(2) An interest, agreement or arrangement is
not to be disregarded if the Commissioner is
satisfied that it was not granted or made as part of
an arrangement or scheme with a collateral purpose
of reducing the duty otherwise payable on the
dutiable transaction.
(3) In considering whether or not he or she is
satisfied for the purposes of subsection (2), the
Commissioner may have regard to
(a) the duration of the interest, agreement
or arrangement before the dutiable
transaction; and
(b) whether the interest, agreement or
arrangement has been granted to or
made with an associated person; and
(c) whether there is any commercial efficacy
to the granting of the interest or the
making of the agreement or
arrangement other than to reduce duty;
and
(d) any other matters the Commissioner
considers relevant.
10
2004 Taxation and Related Legislation No. s. 7
(Miscellaneous Amendments)
Section 37 amended (Change in trustees)
7. Section 37 of the Principal Act is amended by omitting
subsections (3) and (4) and substituting the following
subsections:
(3) Duty of $20 is chargeable in respect of a
transfer of dutiable property to a person other than
a special trustee if the Commissioner is satisfied
that the transfer is made solely
(a) because of the retirement of a trustee,
the appointment of a new trustee or
other change in trustees; and
(b) in order to vest the property in the
trustees for the time being entitled to
hold it.
(4) If the Commissioner becomes aware that a
transfer in respect of which duty was chargeable
under subsection (3) was not a transfer of the kind
referred to in that subsection, the Commissioner
may re-assess that transfer for the duty that would
otherwise be payable.
Section 53 amended (Exemptions relating to various
transactions)
8. Section 53(b) of the Principal Act is amended by
omitting "or transfer".
Section 55 amended (Exemptions - transfers to
partners in a marriage or relationship)
9. Section 55(1) of the Principal Act is amended as follows:
11
s. 10 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
(a) by omitting from paragraph (a) "personal
relationship" and substituting "significant
relationship, or by caring partners,";
(b) by omitting from paragraph (b)(i) "personal
relationship" and substituting "significant
relationship, or of the caring partners,";
(c) by omitting from paragraph (b)(ii) "personal
relationship" and substituting "significant
relationship, or the caring partners,";
(d) by omitting from paragraph (b)(iii) "personal
relationship" and substituting "significant
relationship, or of the caring partners,";
(e) by omitting from paragraph (c) "personal
relationship" and substituting "significant
relationship, or are the caring partners,".
Section 57 amended (Exemptions - personal
relationships)
10. Section 57 of the Principal Act is amended as follows:
(a) by inserting in subsection (1)(b)(i) "or a
prescribed agreement" after "Relationships Act
2003";
(b) by inserting in subsection (1)(b)(ii) "or
prescribed agreement" after "order";
(c) by inserting in subsection (1)(b)(iii) "or
prescribed agreement" after "order";
(d) by inserting the following subsection after
subsection (2):
(3) In this section
12
2004 Taxation and Related Legislation No. s. 11
(Miscellaneous Amendments)
"prescribed agreement" means an
agreement that is
(a) a personal relationship
agreement or separation
agreement within the
meaning of the
Relationships Act 2003; and
(b) in accordance with
paragraphs (b), (c), (d) and
(e) of section 62(1) of the
Relationships Act 2003.
Section 147 amended (Secured amount)
11. Section 147 of the Principal Act is amended as follows:
(a) by inserting in subsection (4)(b) ", or a person
authorised by the Commissioner," after
"Commissioner";
(b) by inserting in subsection (5) ", or a person
authorised by the Commissioner," after
"Commissioner".
Section 150 amended (Advances secured by
mortgage package)
12. Section 150 of the Principal Act is amended as follows:
(a) by omitting subsections (1), (2) and (3) and
substituting the following subsections:
(1) If
13
s. 12 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
(a) at a liability date, 2 or more
security instruments secure or
partly secure the same money; and
(b) at least one of the instruments is a
security affecting property wholly
or partly outside Tasmania; and
(c) at least one of the instruments is a
mortgage
the instruments are known as a mortgage
package.
(2) Also, a mortgage package may
include
(a) a mortgage executed after the
liability date if the Commissioner
is satisfied that the mortgage was
intended to be part of the package;
and
(b) a mortgage previously collateral to
an earlier advance under some or
all of the other mortgages in the
package.
(3) Mortgage duty must be assessed in
accordance with this Part on the mortgage
package as if the instruments comprising the
mortgage package were one mortgage first
executed on the day the last instrument to be
executed was executed.
(b) by omitting from subsection (4) "duty payable
under this Act and the remaining mortgages"
and substituting "mortgage duty paid in
Tasmania for the mortgage package and the
other mortgages";
14
2004 Taxation and Related Legislation No. s. 13
(Miscellaneous Amendments)
(c) by omitting subsection (6);
(d) by omitting from subsection (9) "money" and
substituting "advance".
Section 157 amended (Refinancing of loans)
13. Section 157 of the Principal Act is amended as follows:
(a) by inserting in subsection (1) `(in this section
called "the new mortgage")' after "Any
mortgage";
(b) by omitting paragraph (c) from subsection (2)
and substituting the following paragraph:
(c) was a partner in a personal
relationship, and mortgaged
property of that relationship is
being transferred pursuant to
(i) the revocation, under the
Relationships Act 2003, of
the deed of relationship for
that relationship; or
(ii) an order for adjustment
made under Part 5 of that
Act; or
(iii) a prescribed agreement
(c) by omitting from subsection (2) "this section."
and substituting "subsection (1).";
(d) by inserting the following subsections after
subsection (2):
(3) If
15
s. 14 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
(a) an original borrower is joined by a
new borrower for the purposes of
the new mortgage; and
(b) the Commissioner is satisfied that
the new mortgage is being entered
into by those joint borrowers
consequent on a transfer, or an
agreement for the sale or transfer,
of dutiable property on which, by
virtue of section 55, no duty is
payable under Chapter 2
the original borrower and the new borrower
are taken to be the same borrower for the
purposes of this section.
(4) In this section
"prescribed agreement" means an
agreement that is
(a) a personal relationship
agreement or separation
agreement within the
meaning of the
Relationships Act 2003; and
(b) in accordance with
paragraphs (b), (c), (d) and
(e) of section 62(1) of the
Relationships Act 2003.
Section 199 amended (Exemptions)
14. Section 199(1) of the Principal Act is amended by
inserting after paragraph (e) the following paragraph:
16
2004 Taxation and Related Legislation No. s. 15
(Miscellaneous Amendments)
(ea) the acquisition of a registered motor vehicle by
a person who is in the bona fide business of
motor vehicle wrecking, where the
Commissioner is satisfied that
(i) the acquisition is for the sole purpose of
wrecking the motor vehicle in the course
of that business; and
(ii) the motor vehicle will never be re-
registered;
Section 231 substituted
15. Section 231 of the Principal Act is repealed and the
following section is substituted:
Stamping of instruments
231. (1) The Commissioner must stamp an
instrument in respect of which duty is chargeable
under this Act, or that effects or evidences a dutiable
transaction, and that has been lodged for stamping
with the Commissioner if the duty, and any interest
or penalty tax under Part 5 of the Taxation
Administration Act 1997, is paid in full.
(2) If this Act provides that no duty is
chargeable on an instrument, the Commissioner
may endorse it as he or she sees fit.
Section 233 amended (Adhesive stamps)
16. Section 233(1) of the Principal Act is amended by
omitting paragraphs (b) and (c).
17
s. 17 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
PART 3 DUTIES ACT 2001 FURTHER AMENDED
Principal Act
17. In this Part, the Duties Act 2001* is referred to as the
Principal Act.
Section 142 amended (When does a liability arise?)
18. Section 142 of the Principal Act is amended by
omitting subsection (3) and substituting the following
subsection:
(3) An instrument of security that does not
affect property in Tasmania at the date of first
execution but affects land in Tasmania, other than a
security interest in land in Tasmania, at any time
within 12 months after that date becomes liable to
duty as a mortgage on the date on which it first
affects the land unless it is exempt from duty or is
duly stamped under a corresponding Act.
*No. 15 of 2001
18
2004 Taxation and Related Legislation No. s. 19
(Miscellaneous Amendments)
PART 4 DUTIES ACT 2001 FURTHER AMENDED
Principal Act
19. In this Part, the Duties Act 2001* is referred to as the
Principal Act.
Section 16 amended (No double duty)
20. Section 16 of the Principal Act is amended as follows:
(a) by omitting paragraph (b) from subsection (1)
and substituting the following paragraph:
(b) each other instrument is to be
stamped with nil duty payable.
(b) by omitting from subsection (2) "The duty" and
substituting "No duty is";
(c) by omitting from subsection (2) "is $20";
(d) by omitting subsection (3);
(e) by omitting from subsection (4) "The duty" and
substituting "No duty is";
(f) by omitting from subsection (4) "is $20";
(g) by omitting from subsection (5) "The duty" and
substituting "No duty is";
(h) by omitting from subsection (5) "is $20";
(i) by omitting from subsection (6) "The duty" and
substituting "No duty is";
*No. 15 of 2001
19
s. 21 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
(j) by omitting from subsection (6) "is $20";
(k) by omitting from subsection (7) "The duty" and
substituting "No duty is";
(l) by omitting from subsection (7) "is $20";
(m) by omitting from subsection (8) "The duty" and
substituting "No duty is";
(n) by omitting from subsection (8) "is $20";
(o) by omitting from subsection (9) "The duty" and
substituting "No duty is";
(p) by omitting from subsection (9) "is $20";
(q) by omitting subsections (10) and (11).
Section 219 substituted
21. Section 219 of the Principal Act is repealed and the
following section is substituted:
Duplicates or counterparts
219. (1) Subject to subsection (2), no duty is
chargeable on a duplicate or counterpart of an
instrument that effects a dutiable transaction.
(2) A duplicate or counterpart of an
instrument that effects a dutiable transaction is not
to be stamped as a duplicate or counterpart unless
the proper duty has been paid on that instrument.
20
2004 Taxation and Related Legislation No. s. 22
(Miscellaneous Amendments)
PART 5 FIRST HOME OWNER GRANT ACT 2000
AMENDED
Principal Act
22. In this Part, the First Home Owner Grant Act 2000* is
referred to as the Principal Act.
Section 25 amended (Objections)
23. Section 25(1) of the Principal Act is amended by
inserting ", or the Commissioner's decision to impose a
penalty under section 38," after "application".
Section 26 amended (Powers of Commissioner on
objection)
24. Section 26 of the Principal Act is amended by
inserting after subsection (2) the following subsections:
(3) The Commissioner must ensure that any
delegate who considers and decides on an objection
(a) was not involved in making the decision
to which the objection relates; or
(b) is not, or was not at the relevant time, a
subordinate of a person who was
involved in making the decision to which
the objection relates.
(4) In this section
*No. 19 of 2000
21
s. 25 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
"delegate" means a person to whom the
Commissioner has delegated powers
under subsection (1).
Section 40 amended (Protection of confidential
information)
25. Section 40(1) of the Principal Act is amended by
omitting "applicant" from the definition of "protected
information" and substituting "application".
Section 42 amended (Time for commencing
prosecution)
26. Section 42 of the Principal Act is amended by omitting
"12 months" and substituting "3 years".
22
2004 Taxation and Related Legislation No. s. 27
(Miscellaneous Amendments)
PART 6 LAND TAX ACT 2000 AMENDED
Principal Act
27. In this Part, the Land Tax Act 2000* is referred to as
the Principal Act.
Section 3 amended (Interpretation)
28. Section 3 of the Principal Act is amended as follows:
(a) by inserting the following definition after the
definition of "dwelling":
"educational institution" means
(a) the University of Tasmania;
or
(b) the Australian Maritime
College; or
(c) an institution, conducted by
or on behalf of the State
government, that provides
post-secondary vocational
and educational training; or
(d) a school within the meaning
of the Education Act 1994;
(b) by omitting the definition of "school".
*No. 74 of 2000
23
s. 29 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
Section 10 amended (Liability for land tax)
29. Section 10(3) of the Principal Act is amended by
omitting "Land tax" and substituting "Except as provided
by Division 11 of Part 9 of the Local Government Act 1993,
land tax".
Section 16 amended (Notice of change in use of
land)
30. Section 16 of the Principal Act is amended by omitting
"by written notice" and substituting "in writing".
Section 18 amended (Exempt trust land)
31. Section 18 of the Principal Act is amended as follows:
(a) by omitting from paragraph (a) "ownership,";
(b) by omitting from paragraph (f) "a school;" and
substituting "an educational institution;".
Section 24 amended (Aggregate land value)
32. Section 24 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "several
parcels of land" and substituting "more than
one parcel of land of the same class";
(b) by inserting the following subsection after
subsection (1):
(1A) For subsection (1), there are 3
classes of land: principal residence land,
primary production land and general land.
24
2004 Taxation and Related Legislation No. s. 33
(Miscellaneous Amendments)
PART 7 LOCAL GOVERNMENT ACT 1993
AMENDED
Principal Act
33. In this Part, the Local Government Act 1993* is
referred to as the Principal Act.
Section 139 substituted
34. Section 139 of the Principal Act is repealed and the
following section is substituted:
Application of money from sale
139. (1) Any money received on the sale of land is to
be applied as follows:
(a) firstly in paying the costs of the sale
and any other costs incurred in
proceeding under this Division;
(b) secondly in discharging any liabilities
to the council and the Crown in respect
of the land, the money, if it is
insufficient to discharge the liabilities in
full, being applied between the council
and the Crown in the same proportions
as the respective liabilities bear to the
total amount of the liabilities combined;
(c) thirdly in discharging any liabilities
secured by registered mortgages,
encumbrances or charges;
*No. 95 of 1993
25
s. 34 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
(d) fourthly in discharging any other
mortgages, encumbrances and charges
of which the council has notice;
(e) fifthly in payment to the previous
owner of the land if that person becomes
known within 12 months of the sale.
(2) This section prevails over section 10(3) of
the Land Tax Act 2000.
26
2004 Taxation and Related Legislation No. s. 35
(Miscellaneous Amendments)
PART 8 PAY-ROLL TAX ACT 1971 AMENDED
Principal Act
35. In this Part, the Pay-roll Tax Act 1971* is referred to
as the Principal Act.
Section 2 amended (Interpretation)
36. The definition of "wages" in section 2(1) of the
Principal Act is amended as follows:
(a) by omitting from paragraph (f)(iii)
"employee " and substituting "employee;
and";
(b) by inserting the following paragraph after
paragraph (f):
(g) anything else that is taken, by or
under this Act, to constitute wages
for the purposes of this Act
Sections 2AAA and 2AAB inserted
37. After section 2 of the Principal Act, the following
sections are inserted in Part I:
Certain trust distributions constitute wages
for pay-roll tax purposes
2AAA. (1) A distribution to a person as a
beneficiary under a trust constitutes wages for the
purposes of this Act to the extent that the
*No. 43 of 1971
27
s. 37 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
distribution is in lieu of wages for work done for the
trust by the person.
(2) For the purposes of subsection (1), work
that constitutes the provision of services to the
trustee of a trust or for the purposes of a business
conducted by the trustee of a trust is taken to be
work that is done for the trust.
(3) This section applies in respect of a
distribution to a person only if
(a) there is a wages shortfall in respect of
work done for the trust by the person;
and
(b) the distribution is made in the same
financial year in which the work is done
or in the following financial year.
(4) There is a wages shortfall in respect of
work done for the trust by the person if the total
wages, if any, paid or payable to the person during
the financial year in which the work is done is less
than the wages that would be payable to the person
for that work if wages were payable at the market
rate for that work (with the difference constituting
the wages shortfall for the purposes of
subsection (5)).
(5) If the distribution does not exceed the
wages shortfall in respect of the work, the whole of
the distribution is in lieu of wages for work done for
the trust by the person or, alternatively, if the
distribution exceeds the wages shortfall in respect of
the work, the distribution is in lieu of wages to the
extent of the shortfall.
(6) For the purpose of determining whether a
particular distribution is in lieu of wages for work
28
2004 Taxation and Related Legislation No. s. 37
(Miscellaneous Amendments)
done for the trust, the total wages, if any, paid or
payable to the person during a financial year for the
work is taken to include any previous distribution
(whether made during that financial year or the
following financial year) that, by application of this
section, is a distribution in lieu of wages for the
same work.
(7) For the purposes of this section, the
market rate for work is taken to be the minimum
wage rate applicable in respect of the work (or work
that is comparable to the work) pursuant to
(a) an industrial instrument in force under
a law of the State; or
(b) if paragraph (a) does not apply, an
industrial instrument in force under a
law of the Commonwealth; or
(c) if neither paragraph (a) or (b) applies, a
determination of that minimum wage
rate in accordance with the regulations.
Central fund scheme contributions constitute
wages for pay-roll tax purposes
2AAB. (1) The value of any contribution that is
provided or liable to be provided to a central fund
scheme on behalf of an employee constitutes wages
paid or payable (as the case requires) for the
purposes of this Act (where the contribution does not
constitute wages under another provision of this
Act).
(2) For the purposes of this section, a
contribution to a central fund scheme that is
provided or liable to be provided on behalf of an
employee by a person acting for, or in concert with,
or under an arrangement or undertaking (whether
29
s. 38 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
formal or informal and whether express or implied)
with, the employer is taken to be provided by the
employer.
(3) In this section
"central fund scheme" means a scheme or
trust that
(a) is established and maintained in
Tasmania or elsewhere; and
(b) pools and manages contributions
that various employers pay into
the scheme or trust on behalf of
their employees, for the purpose of
providing benefits for those
employees (other than
superannuation benefits) if they
(i) are made redundant; or
(ii) leave their industry; or
(iii) retire; or
(iv) take leave (including sick
leave, annual holidays or
long service leave);
"provided", in relation to a contribution to a
central fund scheme, includes paid,
given, conferred or granted.
Section 11I amended (Exclusion of persons from
groups)
38. Section 11I(2B) of the Principal Act is amended as
follows:
30
2004 Taxation and Related Legislation No. s. 39
(Miscellaneous Amendments)
(a) by omitting "whether";
(b) by omitting from paragraph (a) "transactions"
and substituting "whether transactions";
(c) by omitting from paragraph (b) "day-to-day"
first occurring and substituting "whether day-
to-day";
(d) by omitting from paragraph (c) "services" and
substituting "whether services";
(e) by omitting from paragraph (c) "rates." and
substituting "rates; and";
(f) by inserting the following paragraph after
paragraph (c):
(d) any other matter the
Commissioner considers relevant.
Section 11K inserted
39. After section 11J of the Principal Act, the following
section is inserted in Part IIIA:
Arrangements for tax avoidance may be
disregarded
11K. (1) In determining whether or not any persons
constitute a group for the purposes of this Act, the
Commissioner may disregard any agreement,
arrangement or transaction, written or otherwise, if
the Commissioner is satisfied that the agreement,
arrangement or transaction was entered into mainly
to circumvent the grouping provisions of this Part
and thereby reduce or avoid the pay-roll tax liability
of any or all of those persons.
31
s. 39 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
(2) For the purposes of subsection (1), the
Commissioner may have regard to
(a) the nature and extent of any connections
between the parties to the agreement,
arrangement or transaction; and
(b) the timing, subject matter and
consideration for the agreement,
arrangement or transaction; and
(c) whether there was any commercial
justification for entering into the
agreement, arrangement or transaction;
and
(d) how long, in the case of an agreement or
arrangement, it has been, or is expected
to be, in force; and
(e) any other matter the Commissioner
considers relevant.
(3) Where
(a) the Commissioner determines that
persons constitute a group under this
Act; and
(b) the decisive factor in making that
determination was the disregarding of
an agreement, arrangement or
transaction pursuant to subsection (1)
the Commissioner is to serve notice of the
determination on those persons who are thereby
taken to be employers for the purposes of this Act.
(4) The notice is also to state the
Commissioner's reasons for making the
32
2004 Taxation and Related Legislation No. s. 40
(Miscellaneous Amendments)
determination and any facts the Commissioner
relied on in that regard.
Section 49 amended (Regulations)
40. Section 49 of the Principal Act is amended by
inserting after subsection (1) the following subsection:
(1A) The Governor may make regulations
prescribing or providing for any other matter for or
about which regulations are expressly or impliedly
authorised or required by this Act to be made.
33
s. 41 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
PART 9 TAXATION ADMINISTRATION ACT 1997
AMENDED
Principal Act
41. In this Part, the Taxation Administration Act 1997* is
referred to as the Principal Act.
Section 4 amended (Meaning of taxation laws)
42. Section 4 of the Principal Act is amended as follows:
(a) by omitting paragraph (b);
(b) by omitting paragraphs (c) and (d) and
substituting the following paragraph:
(c) Pay-roll Tax Act 1971.
Section 19 amended (Reassessment)
43. Section 19(3) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (b)
"Commissioner." and substituting
"Commissioner; or";
(b) by inserting the following paragraph after
paragraph (b):
(c) the initial assessment was an
assessment by way of estimate
under section 21(2).
*No. 74 of 1997
34
2004 Taxation and Related Legislation No. s. 44
(Miscellaneous Amendments)
Section 55 substituted
44. Section 55 of the Principal Act is repealed and the
following section is substituted:
Recovery of tax, &c.
55. The Commissioner may, in a court of competent
jurisdiction, do either or both of the following:
(a) recover an amount of unpaid tax;
(b) recover, as a debt due to the Crown, any
costs and expenses incurred by the
Commissioner in connection with the
recovery or attempted recovery of an
amount of unpaid tax.
Section 77 amended (Permitted disclosures)
45. Section 77(1)(e) of the Principal Act is amended as
follows:
(a) by omitting subparagraph (ii) and substituting
the following subparagraph:
(ii) a commissioned police officer;
(b) by omitting subparagraph (vi) and
substituting the following subparagraphs:
(vi) the Australian Securities and
Investments Commission (ASIC);
(vii) the National Crime Authority;
(viii) the Australian Federal Police;
(ix) a police officer, above the rank of
inspector, of the police force of
35
s. 46 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
another State, or a Territory, of
the Commonwealth;
(x) a prescribed person.
Section 79E amended (Disclosure of information)
46. Section 79E of the Principal Act is amended as
follows:
(a) by omitting paragraphs (c), (d), (e), (f) and (g)
from subsection (1) and substituting the
following paragraphs:
(c) the Ombudsman under the
Ombudsman Act 1978;
(d) a commissioned police officer;
(e) the State Archivist under the
Archives Act 1983;
(f) the Australian Statistician;
(g) the Auditor-General appointed
under the Financial Management
and Audit Act 1990;
(h) the Australian Securities and
Investments Commission (ASIC);
(i) the National Crime Authority;
(j) the Australian Federal Police;
(k) a police officer, above the rank of
inspector, of the police force of
another State, or a Territory, of
the Commonwealth;
36
2004 Taxation and Related Legislation No. s. 47
(Miscellaneous Amendments)
(l) a prescribed person.
(b) by omitting subsection (4).
Part 10, Division 4 inserted
47. After section 95 of the Principal Act, the following
Division is inserted in Part 10:
Division 4 Other cases
Refunds payable, &c., consequent on related
objections affecting taxation liability
95A. (1) This section applies where, as a result of
an objection under section 28 of the Valuation of
Land Act 2001, the valuation of any land in respect
of which a land tax assessment has been made is
lowered by the Valuer-General under section 30 of
that Act.
(2) If this section applies
(a) the Commissioner is, as soon as
practicable, to reassess the land tax
payable in respect of the revalued land;
and
(b) if the Commissioner determines from
the reassessment that there has been an
overpayment of land tax by the
taxpayer, the Commissioner is to refund
the amount of the overpayment,
together with interest on that amount
calculated at the market rate referred to
in section 35(1)(a) on a daily basis from
whichever of the following is the later
date until the date of the refund:
37
s. 47 No. Taxation and Related Legislation 2004
(Miscellaneous Amendments)
(i) the date of payment of the amount
overpaid;
(ii) the date on which the
Commissioner made the land tax
assessment referred to in
subsection (1).
(3) In this section
"land tax assessment" means an assessment
pursuant to section 12(1) of the Land
Tax Act 2000;
"valuation" means the valuation on a
valuation roll within the meaning of the
Valuation of Land Act 2001.
38 Government Printer, Tasmania