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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Duties Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
CHAPTER 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 1
3. Definitions 2
4. Division of Act into Chapters 15
5. Taxation Administration Act 1997 15
6. Act binds the Crown 15
CHAPTER 2--TRANSACTIONS CONCERNING DUTIABLE
PROPERTY 16
PART 1--INTRODUCTION AND OVERVIEW 16
7. Imposition of duty on certain transactions concerning dutiable
property 16
8. Imposition of duty on dutiable transactions that are not transfers 17
9. What form must a dutiable transaction take? 19
10. What is "dutiable property"? 19
11. When does a liability for duty arise? 21
12. Who is liable to pay the duty? 22
13. The liability of joint tenants 22
14. Necessity for written instrument or written statement 22
15. Lodging written instrument or statement with Commissioner 22
16. When must duty be paid? 23
17. No double duty 23
18. What is the rate of duty? 23
19. Concessions and exemptions from duty 23
PART 2--DUTIABLE VALUE 24
20. What is the "dutiable value" of dutiable property? 24
21. What is the consideration for the transfer of dutiable property? 24
22. What is the "unencumbered value" of dutiable property? 26
23. Arrangements that reduce the dutiable value of marketable
securities 27
24. Aggregation of certain dutiable transactions 28
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25. Apportionment--dutiable property and other property 30
26. Partitions of marketable securities 30
27. Partitions of land 30
PART 3--RATES OF DUTY 32
28. General rate 32
29. Marketable securities 32
PART 4--SPECIAL PROVISIONS 33
30. Interim payment of duty 33
31. Sub sales of land 33
32. Transfers arising from mortgages of land 36
PART 5--EXEMPTIONS AND CONCESSIONAL RATES OF
DUTY 38
Division 1--Trusts 38
33. Change in trustees 38
34. Property vested in an apparent purchaser 40
35. Transfers to and from a trustee or nominee 41
36. Property passing to beneficiaries 41
37. Establishment of a trust relating to unidentified property and
non-dutiable property 42
38. Exemptions from duty under section 37 42
Division 2--Superannuation 43
39. Instruments relating to superannuation 43
40. Transfer of property from one superannuation fund to another 44
41. Transfers to trustees or custodians of superannuation funds or
trusts 46
Division 3--Other General Exemptions and Concessions 46
42. Deceased estates 47
43. Marriage and de facto relationships 47
44. Breakdown of marriage and defacto relationships 48
45. Charities and friendly societies 49
46. Co-operatives 49
47. Government bodies and diplomats 50
48. Bankruptcies and administrations 50
49. Reductions in capital 51
50. Adjustment of dutiable value of transfer on company wind-up 51
Division 4--Exemptions and Concessions in relation to Land 53
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51. Crown grants and public rights of way 54
52. Government bodies 54
53. Defence service homes 54
54. Joint tenants and tenants in common 54
55. Foreclosures of mortgages 55
56. Transfers of farms to relatives or charities 55
57. Subsequent transfer not dutiable if duty paid on lease 57
Division 5--Pensioner and First Home Owner Exemptions and
Concessions 57
58. Who is an eligible pensioner? 57
59. Eligible pensioner exemption or concession where dwelling
exists at the time of transfer 58
60. Eligible pensioner exemption or concession where dwelling is
constructed after transfer 59
61. Who is an eligible first home owner? 60
62. Eligible first home owner exemption or concession where
dwelling exists at the time of transfer 62
63. Eligible first home owner exemption or concession where
dwelling is constructed after transfer 63
64. Double duty for false or misleading statements 64
Division 6--Exemptions and Concessions in relation to Marketable
Securities 65
65. Co-operatives and co-operative housing societies 65
66. Loans and temporary transfers 65
67. Nomineeing transactions--unquoted marketable securities 66
68. Share buy-backs 66
69. Reduction of duty--payment in non-Australian jurisdiction 67
CHAPTER 3--CERTAIN TRANSACTIONS TREATED AS
TRANSFERS 68
PART 1--INTRODUCTION AND OVERVIEW 68
70. Introduction and overview 68
PART 2--ACQUISITION OF INTERESTS IN CERTAIN
LANDHOLDERS 69
Division 1--Land-rich Private Corporations 69
71. Meaning of "private corporation" 69
72. When is a private corporation "land-rich"? 69
73. Land holdings of private corporations 71
74. Constructive ownership of land holdings and other property:
subsidiaries 71
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75. Constructive ownership of land holdings and other property:
discretionary trusts 72
Division 2--Acquisitions of Interests in Private Corporations 73
76. What are "interests" and "majority interests" in private
corporations? 73
77. How may an interest be acquired? 74
Division 3--Charging of Duty 74
78. When does a liability for duty arise? 74
79. What is a "relevant acquisition"? 75
80. Acquisition statements 75
81. When must duty be paid? 76
82. Who is liable to pay the duty? 76
83. How duty is charged on relevant acquisitions 76
Division 4--General and Supplemental 78
84. Exempt acquisitions 78
85. Maximisation of entitlements on distribution of property 79
86. Valuation of property 81
87. Phasing-in of duty 82
88. Agreements for sale or transfer of land 82
89. Duty concessions--acquisitions securing financial
accommodation 83
PART 3--ENTITLEMENTS ARISING FROM CAPITAL
REDUCTIONS OR RIGHTS ALTERATIONS 85
90. Definitions 85
91. When does a liability for duty arise? 86
92. When must duty be paid? 86
93. Who is liable to pay the duty? 86
94. Entitlement to voting shares arising from capital reduction or
rights alteration 86
95. Content of statement 87
96. Assessment of duty 88
PART 4--ALLOTMENT OF SHARES BY DIRECTION 89
97. Application of Part 89
98. When does a liability for duty arise? 89
99. When must duty be paid? 89
100. Who is liable to pay the duty? 89
101. Acquisition of shares by allotment 90
102. Allotment statement 90
103. Assessment of duty 90
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CHAPTER 4--FINANCIAL SECTOR (TRANSFERS OF
BUSINESS) 91
104. Imposition of duty 91
105. When does a liability for duty arise? 91
106. Who is liable to pay the duty? 91
107. Statement on transfer of property 91
108. Assessment of duty 91
109. Exemption 92
CHAPTER 5--LEASE INSTRUMENTS 93
PART 1--INTRODUCTION AND OVERVIEW 93
110. Imposition of duty 93
111. What is a "lease"? 93
112. How duty is charged on a lease instrument 93
113. What is the cost of a lease? 94
114. Who is liable to pay the duty? 94
115. When must the duty be paid? 94
PART 2--RATES OF DUTY 95
116. General rate 95
117. Subsequent lease instruments 95
PART 3--UNASCERTAINABLE LEASE COSTS 96
118. Operation of Part 96
119. Estimate and subsequent adjustment 96
120. CPI method 98
PART 4--MISCELLANEOUS 100
121. Interim stamping of lease instrument 100
122. Reassessment of duty--early termination 100
123. Reassessment of duty--reduction of cost 101
124. Exemptions 101
CHAPTER 6--HIRE OF GOODS 104
PART 1--INTRODUCTION AND OVERVIEW 104
125. Imposition of duty 104
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126. What is a commercial hire business? 104
127. Hire of goods to which this Chapter applies--jurisdictional
nexus 104
128. What are "goods"? 105
129. What is a "hire of goods"? 105
130. What is an "equipment financing arrangement"? 105
131. What form may a hire of goods take? 106
132. Exclusions from the definition of "hire of goods" 106
133. Special hiring agreements 108
134. What is the rate of duty? 108
135. What are "hiring charges"? 109
136. Payments exempted from "hiring charges" 109
137. Credit for duty paid in another Australian jurisdiction 110
138. Splitting or redirection of hiring charges (anti-avoidance
provision) 110
139. Ascertainment and disclosure of place of use of goods 110
PART 2--REGISTRATION OF COMMERCIAL HIRE
BUSINESSES AND PAYMENT OF DUTY 112
140. Commercial hire businesses must be registered 112
141. Registration of commercial hire businesses 112
142. Cancellation of registration of commercial hire business 112
143. Register of commercial hire businesses 113
144. Duty base 113
145. Lodgement of returns and payment of duty 114
146. Statement of special hiring agreement 115
147. Lodgement of statement and payment of duty 116
CHAPTER 7--MORTGAGES 117
PART 1--INTRODUCTION AND OVERVIEW 117
148. Imposition of duty 117
149. What is a "mortgage"? 117
150. What is an advance? 118
151. Who is liable to pay the duty? 118
152. When does a liability arise? 119
153. When must duty be paid? 119
154. How is mortgage duty charged? 119
155. Consequences of non-payment of duty 120
156. Where is property located? 121
PART 2--CALCULATING THE AMOUNT SECURED BY A
MORTGAGE 123
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157. Secured amount 123
158. Contingent liabilities 123
159. Mortgages over property not wholly within Victoria 124
160. Advances secured by mortgage package 126
161. Stamping before advance 128
162. Security 128
163. Exchange of information 128
164. Collection of duty and endorsement of instruments 129
165. Collateral securities 129
PART 3--DUTY CONCESSIONS 131
166. Refinancing of loans 131
167. Eligible mortgages under concession schemes 133
PART 4--EXEMPT INSTRUMENTS 135
168. Exempt mortgages and supporting instruments 135
169. Mortgages associated with certain credit contracts 136
170. Farm machinery and commercial vehicles 138
171. Certain debentures and related instruments 138
PART 5--MISCELLANEOUS 140
172. Payment of duty on mortgages associated with debenture issues 140
173. Unregistered mortgages protected by caveats (anti-avoidance
provision) 141
174. Stamping counterpart or collateral instrument if mortgage is lost,
destroyed or cannot be produced 142
CHAPTER 8--INSURANCE 144
PART 1--INTRODUCTION AND OVERVIEW 144
175. Imposition of duty 144
PART 2--GENERAL INSURANCE 145
Division 1--Duty in respect of General Insurance 145
176. What is general insurance? 145
177. What is a premium in relation to general insurance? 145
178. When is a premium paid? 146
179. What duty is payable? 146
180. Who is liable to pay the duty? 146
181. Circumstances in which duty is payable by the insured person 146
182. Records to be kept 147
183. Refunds where premiums are returned 147
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Division 2--How Duty is Paid by a General Insurer 148
184. Who is a general insurer? 148
185. General insurers must be registered 148
186. Application for registration 148
187. Cancellation of registration by the Commissioner 148
188. Cessation of business and cancellation of registration by the
general insurer 149
189. Register of general insurers 150
190. Monthly returns and payment of duty 150
191. Recovery of duty by registered insurer 150
Division 3--Apportionment of Premiums and Other Amounts
between States and Territories 150
192. Application of Division 151
193. Schedule of Apportionment 151
194. Apportionment in practice 151
Division 4--Apportionment of Premiums and Other Amounts as
between Different Types of Insurance 152
195. Apportionment between different types of insurance 152
Division 5--Exempt Insurance 153
196. What insurance is exempt from duty? 153
Division 6--Miscellaneous 155
197. Effect on contract of insurance of failure to comply with this
Chapter 155
PART 3--LIFE INSURANCE 156
Division 1--Duty in respect of Life Insurance 156
198. What is life insurance? 156
199. Obligation to make out and execute policies of life insurance 156
200. What duty is payable? 157
201. Who is liable to pay the duty? 157
Division 2--Approved Life Insurers 157
202. Who is a life insurer? 157
203. Approval of life insurers 158
204. Cancellation of registration by the Commissioner 158
205. Cessation of business and cancellation of registration by the
insurer 159
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206. Register of approved life insurers 159
207. How duty is paid by approved life insurers 159
Division 3--Exemptions 160
208. Exemptions from life insurance duty 160
PART 4--TRANSPORT ACCIDENT CHARGES 161
209. Imposition of duty 161
210. Who is liable to pay the duty? 161
211. Rate of duty 161
212. How is duty paid? 161
213. Refund of duty if transport accident charge is refunded 161
CHAPTER 9--MOTOR VEHICLE DUTY 162
PART 1--INTRODUCTION AND OVERVIEW 162
214. Imposition of duty 162
215. Lodgement of statement of dutiable value 162
216. Who is liable to pay the duty? 163
217. When does duty become payable? 163
218. What is the rate of duty? 164
219. What is the dutiable value of a motor vehicle? 164
220. Prohibition on registration of motor vehicles 165
PART 2--REGISTERED USED CAR DEALERS 166
221. Registration 166
222. Cessation of business and cancellation of registration 166
223. Register of used car dealers 166
224. Endorsement of code number on application 167
225. Monthly returns and payment of duty 167
226. Penalty tax and interest payable by dealer in some
circumstances 168
227. Further penalty for failure to lodge or late lodgement 168
228. Unauthorised endorsement of code number 169
PART 3--EXEMPTIONS 171
229. Ownership by devolution of title and deceased estates 171
230. Registered used car dealers--trading stock, demonstrator
vehicles and driver education 171
231. Licensed motor car traders--trading stock, demonstrator vehicles
and driver education 172
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232. Applications by interstate licensed motor car traders 173
233. Exemption if no registration fee payable 173
234. Corporate windings up and reductions in capital 174
235. Marriage and de facto relationships and their breakdown 174
236. Minors and trustees 175
237. Vehicles previously registered in the same name interstate 176
PART 4--DUTY ON CHANGE OF USE OR CHANGE OF
OWNERSHIP 177
238. Duty on statement of change of use 177
239. Duty on statement of acquisition 178
PART 5--REFUND OF DUTY 180
240. Entitlement to refund 180
CHAPTER 10--MISCELLANEOUS DUTIES 181
PART 1--SALE OF CATTLE 181
241. Imposition of duty 181
242. What is the rate of duty? 181
243. What is the purchase money? 182
PART 2--SALE OF SHEEP AND GOATS 183
244. Imposition of duty 183
245. What is the rate of duty? 183
PART 3--SALE OF PIGS 184
246. Imposition of duty 184
247. What is the rate of duty? 184
248. What is the purchase money? 184
CHAPTER 11--GENERAL EXEMPTIONS FROM DUTY 185
249. Security for payment of tax 185
250. Corporate reconstructions 185
251. Managed investment schemes 186
CHAPTER 12--ADMINISTRATION AND ENFORCEMENT 188
PART 1--STAMPING INSTRUMENTS 188
252. Provision of stamps 188
253. Limitation on use of designated stamps 188
254. Form of stamps to be used 188
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255. Stamping of instruments 189
256. When is an instrument duly stamped? 189
257. Adhesive stamps 189
258. Licences to deal in stamps 190
259. Refunds--spoiled and unused stamps 191
260. Reassessments--failed instruments 191
261. Instruments to be separately charged with duty in certain cases 191
262. Execution of instruments 192
263. Counterparts and replicas 192
PART 2--AUTHORISATION OF RETURNS SYSTEMS 194
264. Authorised persons 194
265. Endorsement of instruments by authorised persons 194
266. Payment of duty by authorised persons 195
267. Offset of overpaid amounts 195
268. Unauthorised endorsement 196
PART 3--ENFORCEMENT 198
269. Registration of instruments 198
270. Registration of transfer of shares in private companies 198
271. Registration of transfer of units 199
272. Receipt of instruments in evidence 200
273. Commissioner may obtain Valuer-General valuation 201
274. Ascertainment of value of certain items 201
275. Impounding of instruments 202
276. Injunction to prevent unregistered businesses trading 202
PART 4--PAYMENT OF FEES AND CHARGES UNDER
OTHER ACTS BY STAMPS OR OTHER METHODS 203
277. Introduction and overview 203
278. Governor in Council may determine method of payment of fees
and charges 203
279. Stamps to be impressed or adhesive 203
280. Penalty for failing to pay as directed 203
281. Unstamped instrument not admissible 204
CHAPTER 13--GENERAL 205
282. Payments from Consolidated Fund 205
283. Regulations 205
CHAPTER 14--REPEALS, CONSEQUENTIAL AMENDMENTS
AND TRANSITIONAL PROVISIONS 206
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284. Repeal of Stamps Act 1958 206
285. Consequential amendments 206
286. Transitional provisions 206
__________________
SCHEDULES 207
SCHEDULE 1--Consequential Amendments 207
SCHEDULE 2--Transitional Provisions 211
ENDNOTES 216
INDEX 217
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PARLIAMENT OF VICTORIA
Initiated in Assembly 4 October 2000
A BILL
to create and charge a number of duties, to repeal the Stamps Act
1958, to make consequential amendments to other Acts and for other
purposes.
Duties Act 2000
The Parliament of Victoria enacts as follows:
CHAPTER 1
PRELIMINARY
1. Purpose1
The main purpose of this Act is to create and
5 charge a number of duties.
2. Commencement
This Act comes into operation on 1 July 2001.
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3. Definitions
In this Act--
"acquisition statement", in Part 2 of Chapter 3,
means a statement referred to in
5 section 80(1);
"advance", in Chapter 7, has the meaning given
by section 150;
"allotment statement", in Part 4 of Chapter 3,
means a statement referred to in section 101;
10 "approved" means approved by the
Commissioner;
"associated person" means a person who is
associated with another person in accordance
with any of the following provisions--
15 (a) persons are associated persons if they
are related persons;
(b) natural persons are associated persons
if they are partners in a partnership to
which the Partnership Act 1958
20 applies;
(c) private companies are associated
persons if common shareholders have a
majority interest in each private
company;
25 (d) trustees are associated persons if any
person is a beneficiary common to the
trusts (not including a public unit trust)
of which they are trustees;
(e) a private company and a trustee are
30 associated persons if a related body
corporate of the company (within the
meaning of the Corporations Law) is a
beneficiary of the trust (not including a
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public unit trust) of which the trustee is
a trustee--
and, for the purposes of Part 2 of Chapter 3,
a public company and a subsidiary of a
5 public company are taken to be associated
persons;
"Australian register" has the same meaning as
in the Corporations Law;
"Australian Stock Exchange" means the
10 Australian Stock Exchange Limited;
"calf" means any cattle less than 6 weeks of age;
"cattle" means bull, cow, ox, steer, heifer or
buffalo;
"charge" includes impose;
15 "commercial hire business" has the meaning
given by section 126;
"commercial vehicle" means--
(a) a motor vehicle or trailer within the
meaning of the Road Safety Act 1986
20 constructed or adapted principally for
the carriage of goods but does not
include a motor vehicle of the kind
known as a utility, a station wagon or a
panel van; or
25 (b) a vehicle without motive power of its
own and constructed or adapted
principally for the carriage of goods
and for being drawn by a motor vehicle
within the meaning of that Act;
30 "Commissioner" means the Commissioner of
State Revenue referred to in section 62 of the
Taxation Administration Act 1997;
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"complying approved deposit fund" means an
entity that is a complying approved deposit
fund in accordance with section 43 of the
Superannuation Industry (Supervision) Act
5 1993 of the Commonwealth;
"complying superannuation fund" means an
entity that is a complying superannuation
fund in accordance with section 42 of the
Superannuation Industry (Supervision) Act
10 1993 of the Commonwealth and an exempt
public sector superannuation scheme and in
section 40 includes a complying approved
deposit fund and an eligible rollover fund;
"co-operative" has the same meaning as in the
15 Co-operatives Act 1996;
"co-operative housing society" has the same
meaning as in the meaning of the Co-
operative Housing Societies Act 1958;
"corporation" means a body corporate, whether
20 incorporated in this State or elsewhere;
"corresponding Act" means an Act of another
State or of a Territory corresponding to this
Act;
"cost" of a lease has the meaning given by
25 section 113;
"counterpart" includes a duplicate;
"Crown leasehold" means a lease under the
Land Act 1958 or any other Act or
enactment in respect of which a Crown grant
30 in fee-simple is by law directed or authorised
to be made to the lessee on payment of all
sums (whether referred to as rent or
otherwise) reserved by the lease and on
compliance with the other covenants of the
35 lease;
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"de facto spouse" means a person who is living
with a person of the opposite sex as if they
were married although they are not;
"discretionary trust" means a trust under which
5 the vesting of the whole or any part of the
capital of the trust estate, or the whole or any
part of the income from that capital, or
both--
(a) is required to be determined by a
10 person either in respect of the identity
of the beneficiaries or the quantum of
interest to be taken, or both; or
(b) will occur if a discretion conferred
under the trust is not exercised; or
15 (c) has occurred but under which the whole
or any part of that capital or the whole
or any part of that income, or both, will
be divested from the person or persons
in whom it is vested if a discretion
20 conferred under the trust is exercised;
"dutiable property" has the meaning given by
section 10;
"dutiable transaction" has the meaning given by
section 7(2);
25 "dutiable value"--
(a) of dutiable property has the meaning
given by section 20;
(b) of a motor vehicle has the meaning
given by section 219;
30 "eligible first home owner" has the meaning
given by section 61;
"eligible pensioner" has the meaning given by
section 58;
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"eligible rollover fund" means an entity that is
an eligible rollover fund in accordance with
section 242 of the Superannuation Industry
(Supervision) Act 1993 of the
5 Commonwealth and includes an entity the
trustee of which is satisfied will be an
eligible rollover fund within 12 months after
the date on which a liability to duty arises (or
would otherwise arise);
10 "entitled", in Chapter 3, means beneficially
entitled;
"execute", in relation to an instrument not under
seal, means sign;
"farm machinery" means--
15 (a) a harvester, binder, tractor, plough or
other agricultural implement; or
(b) a boat;
(c) fishing equipment;
(d) any other goods of a class commonly
20 used for the purposes of primary
production that are determined by the
Commissioner to be farm machinery for
the purposes of sections 132(j) and
170--
25 where the goods are acquired for the
purposes of primary production;
"friendly society" means a body that was a
society within the meaning of the Friendly
Societies (Victoria) Code immediately
30 before the transfer date within the meaning
of the Financial Sector Reform (Victoria)
Act 1999 or is a friendly society for the
purposes of the Life Insurance Act 1995 of
the Commonwealth;
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"general insurance" has the meaning given by
section 176;
"general insurer" has the meaning given by
section 184;
5 "GST" has the same meaning as it has in the A
New Tax System (Goods and Services Tax)
Act 1999 of the Commonwealth except that
it includes notional GST of the kind for
which payments may be made under Part 3
10 of the National Taxation Reform
(Consequential Provisions) Act 2000 by a
person that is a State entity within the
meaning of that Act;
"heavy trailer" means a trailer or semi-trailer
15 within the meaning of the Road Safety Act
1986 with an MRC exceeding 4ˇ5 tonnes;
"hire of goods" has the meaning given by
section 129;
"hire purchase agreement" has the meaning
20 given by section 130(2);
"hiring charges" has the meaning given by
section 135;
"instrument" includes a written document and a
written statement;
25 "insurance" includes assurance;
"insurance intermediary" has the same meaning
as in the Insurance (Agents and Brokers) Act
1984 of the Commonwealth;
"interest" includes an estate or proprietary right;
30 "lease" has the meaning given by section 111;
"licensed motor car trader" has the same
meaning as in the Motor Car Traders Act
1986;
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"life insurance" has the meaning given by
section 198;
"life insurer" has the meaning given by
section 202;
5 "managed investment scheme" means a
managed investment scheme within the
meaning of Chapter 5C of the Corporations
Law, and includes a public unit trust scheme;
"marketable securities" means the following--
10 (a) shares referred to in section 10(1)(b);
(b) units referred to in section 10(1)(c);
(c) an interest in shares or units referred to
in paragraph (a) or (b);
"mortgage", in Chapter 7, has the meaning given
15 by section 149;
"mortgage package" has the meaning given by
section 160;
"motor vehicle" means--
(a) a motor vehicle within the meaning of
20 the Road Safety Act 1986; or
(b) a heavy trailer;
"MRC" has the same meaning as in the Schedule
to the Road Transport Charges (Australian
Capital Territory) Act 1993 of the
25 Commonwealth;
"passenger car" means--
(a) a motor vehicle constructed principally
for the carriage of passengers; or
(b) a motor vehicle that--
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(i) is designed principally for the
conveyance of not more than
8 adults; and
(ii) is constructed either on a truck
5 chassis or with special features
for off-road operation--
but does not include--
(c) a motor cycle; or
(d) a motor vehicle having a utility or
10 panel van type body in which the
forward part of the body form and the
greater part of the mechanical
equipment are the same as those in a
passenger car manufactured by the
15 manufacturer of the motor vehicle; or
(e) a motor vehicle constructed for the
carriage of passengers and equipped to
seat more than 8 adults (including the
driver);
20 "person" includes an unincorporated association
and a partnership;
"pooled superannuation trust" means an entity
that is a pooled superannuation trust in
accordance with section 44 of the
25 Superannuation Industry (Supervision) Act
1993 of the Commonwealth;
"premium", in relation to general insurance, has
the meaning given by section 177;
"primary production" means the use of land
30 primarily for--
(a) cultivation for the purpose of selling
the produce of cultivation; or
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(b) the maintenance of animals or poultry
for the purpose of selling them or their
natural increase or bodily produce; or
(c) the keeping of bees for the purpose of
5 selling their honey; or
(d) commercial fishing, including the
preparation for commercial fishing or
the storage or preservation of fish or
fishing gear; or
10 (e) the cultivation or propagation of plants,
seedlings, mushrooms or orchids;
"private company" means a corporation that is
not limited by shares, or whose shares are
not quoted on the Australian Stock Exchange
15 or a recognised stock exchange;
"private corporation", in Part 2 of Chapter 3,
has the meaning given by section 71;
"private unit trust scheme" means a unit trust
scheme that is not a public unit trust scheme;
20 "public unit trust scheme" means a unit trust
scheme--
(a) any of the units of which are listed for
quotation on the Australian Stock
Exchange or on a recognised stock
25 exchange; or
(b) that is a managed investment scheme
within the meaning of Chapter 5C of
the Corporations Law or an undertaking
to which Division 11 of Part 11.2 of the
30 Corporations Law applies and in
respect of which--
(i) some or all of the units have been
offered to the public; and
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(ii) no fewer than 50 persons hold
units in it; or
(c) that, in the opinion of the
Commissioner, will satisfy paragraph
5 (a) or (b) within 12 months after the
Commissioner gives written notice of
that opinion to a person who has
requested the Commissioner to express
that opinion in relation to the unit trust
10 scheme;
"receiving body", in Chapter 4, has the same
meaning as in the Financial Sector (Transfers
of Business) Act 1999 of the
Commonwealth.
15 "recognised stock exchange" means--
(a) a stock exchange that is a member of
the Fédération Internationale des
Bourses de Valeurs; or
(b) the Stock Exchange of Newcastle; or
20 (c) a stock exchange prescribed as a
recognised stock exchange for the
purposes of this Act;
"registered insurer" means an insurer registered
under Part 2 of Chapter 8;
25 "registered operator" has the same meaning as
in the Road Safety Act 1986;
"registered used car dealer" means a person
registered under Part 2 of Chapter 9;
"related body corporate" has the same meaning
30 as in the Corporations Law;
"related person" means a person who is related
to another person in accordance with any of
the following provisions--
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(a) natural persons are related persons if
one of them is a relative of the other;
(b) private companies are related persons if
they are related bodies corporate within
5 the meaning of the Corporations Law;
(c) a natural person and a private company
are related persons if the natural person
is a majority shareholder or director of
the company or of another private
10 company that is a related body
corporate of the company within the
meaning of the Corporations Law;
(d) a natural person and a trustee are
related persons if the natural person is a
15 beneficiary of the trust (not being a
public unit trust) of which the trustee is
a trustee;
(e) a private company and a trustee are
related persons if the company, or a
20 majority shareholder or director of the
company, is a beneficiary of the trust
(not being a public unit trust) of which
the trustee is a trustee;
"relative" in relation to a natural person, means a
25 person who is--
(a) a child or remoter lineal descendant of
the person or of the spouse of the
person;
(b) a parent or remoter lineal ancestor of
30 the person or of the spouse of the
person;
(c) a brother or sister of the person or of
the spouse of the person;
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(d) the spouse of the person or a spouse of
any person referred to in paragraph (a),
(b) or (c);
(e) a child of a brother or sister of the
5 person or of the spouse of the person;
(f) a brother or sister of a parent of the
person or of a parent of the spouse of
the person;
"responsible entity" of a managed investment
10 scheme, has the same meaning as in the
Corporations Law;
"right" to shares or units means any right
(whether actual, prospective or contingent)
of a person to have shares or units issued by
15 a company or trust to the person, whether or
not on payment of money or for other
consideration;
"shares" includes rights to shares;
"special dealer" means a person who would be a
20 motor car trader within the meaning of the
Motor Car Traders Act 1986 but for the
fact that the motor vehicles in which the
person trades are not motor cars within the
meaning of that Act;
25 "special hiring agreement" has the meaning
given by section 133;
"spouse" includes de facto spouse;
"stamp" means duty stamp whether impressed by
machine imprint or adhesive;
30 "Territory" means Territory of the
Commonwealth;
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"transfer" includes an assignment, a conveyance,
an exchange and a buy-back of shares in
accordance with Division 2 of Part 2J.1 of
the Corporations Law;
5 "unencumbered value" of dutiable property has
the meaning given by section 22;
"unit" in a unit trust scheme means--
(a) a right or interest (whether described as
a unit or a sub-unit or otherwise) of a
10 beneficiary under the scheme; or
(b) a right to any such right or interest;
"unit trust scheme" means any arrangements
made for the purpose, or having the effect, of
providing, for persons having funds available
15 for investment, facilities for the participation
by them, as beneficiaries under a trust, in any
profits, income or distribution of assets
arising from the acquisition, holding,
management or disposal of any property
20 whatever pursuant to the trust;
"variation" of a lease means a variation made for
any reason or on any basis and includes a
further variation;
"Victorian company" means a company
25 incorporated or taken to be incorporated
under the Corporations Law of Victoria, and
includes a body corporate that is
incorporated under any other Act of Victoria
and that is not a company incorporated or
30 taken to be incorporated under the
Corporations Law of another State or of a
Territory.
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4. Division of Act into Chapters
(1) This Act is divided into Chapters, Parts and
Divisions.
(2) If a provision of this Act refers to a Chapter by
5 number, the reference must, unless the context
otherwise requires, be construed as a reference to
the Chapter designated by that number in this Act.
(3) If a provision of this Act refers to a Part by a
number, the reference must, unless the context
10 otherwise requires, be construed as a reference to
the Part designated by that number of the Chapter
in which the reference occurs.
5. Taxation Administration Act 1997
This Act is to be read together with the Taxation
15 Administration Act 1997 which provides for the
administration and enforcement of this Act and
other taxation laws.
6. Act binds the Crown
(1) This Act binds the Crown in right of Victoria and,
20 so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
(2) Nothing in this Act makes the Crown in any of its
capacities liable to be prosecuted for an offence.
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CHAPTER 2
TRANSACTIONS CONCERNING DUTIABLE
PROPERTY
PART 1--INTRODUCTION AND OVERVIEW
5 7. Imposition of duty on certain transactions concerning
dutiable property
(1) This Chapter charges duty on--
(a) a transfer of dutiable property; and
(b) the following transactions--
10 (i) a declaration of trust relating to
dutiable property the specification of
which forms part of the declaration of
trust or part of the transaction
constituted by the declaration of trust;
15 (ii) a surrender of an estate in land in
Victoria, other than a surrender of a
lease, a discharge of a mortgage or a
redemption of units in a unit trust
scheme;
20 (iii) a vesting of dutiable property by a court
order or an order of the Registrar of
Titles;
(iv) the enlargement of a term into a fee-
simple under section 153 of the
25 Property Law Act 1958; or
(v) the granting of a lease of land in
Victoria for which any consideration
other than the rent reserved is paid or
agreed to be paid, and in which any
30 covenant or agreement for the future
transfer or sale of the fee-simple on the
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occurrence of any contingency
whatever is expressed or implied; or
(vi) any other transaction that results in a
change in beneficial ownership of
5 dutiable property (other than a change
in beneficial ownership of an estate in
land as a result of the issue, transfer,
redemption or cancellation of units in a
unit trust scheme).
10 (2) Such a transfer or transaction is a "dutiable
transaction" for the purposes of this Act.
(3) Despite sub-section (1), the assignment of a term
referred to in section 153 of the Property Law
Act 1958 is not a dutiable transaction.
15 (4) In this Chapter--
"declaration of trust" means any declaration
(other than by a will or testamentary
instrument) that any identified property
vested or to be vested in the person making
20 the declaration is or is to be held in trust for
the person or persons, or the purpose or
purposes, mentioned in the declaration
although the beneficial owner of the
property, or the person entitled to appoint the
25 property, may not have joined in or assented
to the declaration.
8. Imposition of duty on dutiable transactions that are
not transfers
(1) The duty charged by this Chapter on a dutiable
30 transaction referred to in section 7(1)(b) is to be
charged as if each such dutiable transaction were a
transfer of dutiable property.
(2) Accordingly, for the purpose of charging duty
under this Chapter, in relation to a dutiable
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transaction specified in Column 1 of the following
Table--
(a) the property specified in Column 2 opposite
the dutiable transaction is taken to be the
5 property transferred (and a reference in this
Act to property transferred includes a
reference to such property); and
(b) the person specified in Column 3 opposite
the dutiable transaction is taken to be the
10 transferee of the dutiable property (and a
reference in this Act to a transferee includes
a reference to such a person); and
(c) the transfer of the dutiable property is taken
to have occurred at the time specified in
15 Column 4 opposite the dutiable transaction
(and a reference in this Act to the time at
which a transfer occurs includes a reference
to such a time).
TABLE
Column 1 Column 2 Column 3 Column 4
Dutiable Property Transferee When transfer
transaction transferred occurs
declaration of the property the person when the
trust vested in the declaring, or declaration
declarant as is directing the becomes
subjected to the declaration of, effective
trust the trust
surrender the surrendered the person to when the
estate whom the surrender takes
property is place
surrendered
vesting by court the vested the person in when the order
order property whom the takes effect
property is
vested
vesting by order the vested the person in when the order
of the Registrar property whom the takes effect
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Column 1 Column 2 Column 3 Column 4
Dutiable Property Transferee When transfer
transaction transferred occurs
of Titles property is
vested
enlargement of the estate in fee the person in when the interest
interest into fee- simple whom the term is enlarged
simple was previously
vested
granting of lease the property the lessee when the lease is
with covenant leased granted
for future
transfer or sale
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 changed ownership or
beneficial (but only to the whose beneficial
ownership of extent of the ownership is
dutiable property change in increased
beneficial
ownership)
9. What form must a dutiable transaction take?
(1) A dutiable transaction may be effected or
evidenced--
(a) wholly in writing; or
5 (b) partly in writing and partly orally; or
(c) wholly orally as evidenced by whole or part
performance.
(2) A dutiable transaction may be effected or recorded
by any means, including electronic means.
10 10. What is "dutiable property"?
(1) "Dutiable property" is any of the following--
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(a) each of the following estates in land in
Victoria--
(i) an estate in fee-simple;
(ii) a Crown leasehold estate;
5 (iii) a term referred to in section 153 of the
Property Law Act 1958 that may be
enlarged into a fee-simple under that
section;
(iv) a leasehold estate, if the lease is of a
10 kind referred to in section 7(1)(b)(v);
(b) shares--
(i) in a Victorian company; or
(ii) in a corporation incorporated outside
Australia that are kept on the Australian
15 register kept in Victoria;
(c) units in a unit trust scheme, being units--
(i) registered on a register kept in Victoria;
or
(ii) that are not registered on a register kept
20 in Australia, but in respect of which the
manager (or, if there is no manager, the
trustee) of the unit trust scheme is a
Victorian company or is a natural
person resident in Victoria;
25 (d) goods in Victoria held or used in connection
with a dutiable transaction in respect of any
estate in land elsewhere referred to in this
section, including goods used in connection
with a business carried on or in connection
30 with the land, but not including the
following--
(i) goods that are stock-in-trade;
(ii) materials held for use in manufacture;
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(iii) goods under manufacture;
(iv) goods held or used in connection with
land used for primary production;
(v) livestock;
5 (e) an interest--
(i) under the will or codicil of a deceased
person disposing of property elsewhere
referred to in this section; or
(ii) in or under the estate of a deceased
10 person comprising property elsewhere
referred to in this section;
(f) an interest of a purchaser of an estate in land
elsewhere referred to in this section under an
agreement to purchase the estate;
15 (g) an interest in shares referred to in
paragraph (b) or in units referred to in
paragraph (c).
(2) Despite sub-section (1), the following marketable
securities are not dutiable property--
20 (a) shares, or units in a unit trust scheme, that
are quoted on the Australian Stock Exchange
or a recognised stock exchange;
(b) an interest in shares or units referred to in
paragraph (a), whether or not the interest is
25 quoted on the Australian Stock Exchange or
a recognised stock exchange.
11. When does a liability for duty arise?
(1) A liability for duty charged by this Chapter arises
30 when a dutiable transaction occurs.
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(2) However, if a dutiable transaction is effected by a
written instrument, liability for duty charged by
this Chapter arises when the instrument is first
executed.
5 12. Who is liable to pay the duty?
Duty charged by this Chapter is payable by the
transferee, unless this Chapter requires another
person to pay the duty.
13. The liability of joint tenants
10 For the purpose of assessing duty charged by this
Chapter, joint tenants of dutiable property are
taken to hold the dutiable property as tenants in
common in equal shares.
14. Necessity for written instrument or written statement
15 (1) If a dutiable transaction that is liable to ad
valorem duty under this Chapter is not effected by
a written instrument, the transferee must make a
written statement in the approved form.
(2) The written statement must be made within
20 3 months after the liability arises.
(3) If a dutiable transaction is completed or evidenced
by a written instrument within 3 months after the
date on which the dutiable transaction occurs, the
requirement to lodge a statement and pay duty in
25 respect of the statement may be satisfied by the
lodgement of, and payment of duty on, the written
instrument within 3 months after the date on
which the dutiable transaction occurs.
15. Lodging written instrument or statement with
30 Commissioner
A transferee who is liable to pay duty in respect of
a dutiable transaction must, within 3 months after
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the liability arises, lodge with the
Commissioner--
(a) the written instrument that effects the
dutiable transaction or, if there is more than
5 one such written instrument, each one of
them as provided by section 10; or
(b) the written statement made in compliance
with section 14.
16. When must duty be paid?
10 A tax default does not occur for the purposes of
the Taxation Administration Act 1997 if duty is
paid within 3 months after the liability to pay the
duty arises.
17. No double duty
15 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
20 the duty.
18. What is the rate of duty?
Duty is charged on the dutiable value of the
dutiable property the subject of the dutiable
transaction at the relevant rate set out in Part 3.
25 19. Concessions and exemptions from duty
Concessions and exemptions from duty charged
by this Chapter are dealt with in Part 5.
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PART 2--DUTIABLE VALUE
20. What is the "dutiable value" of dutiable property?
The "dutiable value" of dutiable property that is
the subject of a dutiable transaction is the greater
5 of--
(a) the consideration (if any) for the dutiable
transaction (being the amount of a monetary
consideration or the value of a non-monetary
consideration); and
10 (b) the unencumbered value of the dutiable
property.
21. What is the consideration for the transfer of dutiable
property?
(1) The consideration for the transfer of dutiable
15 property is taken to include the amount or value of
all encumbrances, whether certain or contingent,
subject to which the dutiable property is
transferred.
(2) The consideration for the transfer of the interest of
20 a transferee under an uncompleted agreement for
the sale or transfer of dutiable property is taken to
include the balance of the amount or value of the
consideration that would be required from the
transferee under the agreement in order to
25 complete it in accordance with its terms.
(3) The consideration for the transfer of land on the
sale of that land does not include any amount paid
or payable in respect of the construction of a
building to be constructed on that land on or after
30 the date on which the contract of sale was entered
into.
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(4) The consideration for the transfer of land that is a
lot on a plan of subdivision within the meaning of
the Subdivision Act 1988 on a sale of that lot is
taken not to include an amount, attributable
5 exclusively to that lot, in respect of refurbishment
of that lot carried out on or after the date on which
the contract of sale was entered into and before
the date of the transfer if--
(a) the transferor is the first registered proprietor
10 within the meaning of the Transfer of Land
Act 1958 of that lot; and
(b) the transfer of that lot to the transferee is the
first transfer of the lot after registration of
the plan of subdivision; and
15 (c) the transferee has not entered into a contract
for refurbishment of the lot, other than in
respect of the refurbishment referred to
above; and
(d) the transfer, when presented to or lodged
20 with the Commissioner, is accompanied
by--
(i) a copy of the building permit, or
building approval or permit; and
(ii) a copy of the contract with the
25 transferee for the refurbishment; and
(iii) a statutory declaration in the approved
form by the transferor as to the
prescribed matters and as to whether or
not the transferor has entered into any
30 agreement with the transferee in respect
of works (other than refurbishment) to
be undertaken in relation to the lot
before the transfer; and
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(iv) if the Commissioner requires, a
statutory declaration in the approved
form by the transferee declaring that the
transferee has not entered any contract,
5 other than the contract referred to in
sub-paragraph (ii), for the
refurbishment of the lot; and
(v) if the Commissioner requires, a
statutory declaration in the approved
10 form by the person that issued the
building permit of building approval or
permit.
(5) In this section--
"refurbishment" means building work for which
15 a building permit has been issued under the
Building Act 1993, being work for the
conversion of an existing building for which
such a permit or approval is required.
22. What is the "unencumbered value" of dutiable
20 property?
(1) The "unencumbered value" of dutiable property
is the amount for which the property might
reasonably have been sold in the open market at
the time the dutiable transaction occurred free
25 from any encumbrance to which the property was
subject at that time.
(2) In determining the amount for which land or
goods might reasonably have been sold free from
encumbrances, there must be disregarded subject
30 to sub-section (3), any interest, agreement or
arrangement (other than an encumbrance) granted
or made in respect of the land or goods, that has
the effect of reducing the value of the land or
goods.
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(3) An interest, agreement or arrangement referred to
in sub-section (2) is not to be disregarded if the
Commissioner is satisfied that it was not granted
or made as a part of an arrangement or scheme
5 with a collateral purpose of reducing the duty
otherwise payable on the transfer of the land or
goods.
(4) In considering whether or not he or she is satisfied
for the purposes of sub-section (3), the
10 Commissioner may have regard to--
(a) the duration of the interest, agreement or
arrangement before the transfer; and
(b) whether the interest, agreement or
arrangement has been granted to or made
15 with an associate, a related corporation or a
trustee of the transferor or transferee; 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
20 reduce duty; and
(d) any other matters he or she considers
relevant.
23. Arrangements that reduce the dutiable value of
marketable securities
25 (1) In computing for the purposes of this Chapter the
unencumbered value of any marketable securities
of a company, the Commissioner may include the
value of any assets formerly owned or controlled
by the company if--
30 (a) those assets were transferred to the
ownership or control of the transferee of the
marketable securities or to an associated
person of the transferee before the transfer of
the marketable securities; and
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(b) those assets are necessary for the continuing
operation of the company after the transfer
of the marketable securities; and
(c) the value of the marketable securities was
5 reduced following the transfer of ownership
or control of assets because the proceeds of
that transfer were not retained by the
company.
(2) In determining whether assets are necessary for
10 the continuing operation of a company the
Commissioner may take into account--
(a) whether or not the assets were removed from
the company's premises after the transfer of
ownership or control;
15 (b) whether or not the assets continued to be
used by the company under an arrangement
with the transferee.
(3) This section does not apply if the Commissioner is
satisfied that the transfer of ownership or control
20 of assets--
(a) was part of the normal business operations of
the transferee; or
(b) was not part of a scheme or arrangement
devised for the principal purpose of
25 minimising duty chargeable under this
Chapter on the transfer of marketable
securities.
24. Aggregation of certain dutiable transactions
(1) Dutiable transactions relating to separate items of
30 dutiable property referred to in section 10(1)(a) or
(d) or section 10(1)(e) as it relates to dutiable
property referred to in section 10(1)(a) or (d), or
separate parts of such property are to be
aggregated and treated as a single dutiable
35 transaction if--
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(a) they occur within 12 months; and
(b) the transferee is the same or the transferees
are associated persons; and
(c) the dutiable transactions together form,
5 evidence, give effect to or arise from what is,
substantially, one arrangement relating to all
of the items or parts of the dutiable property.
(2) Dutiable transactions are not to be aggregated
under this section if the Commissioner is satisfied
10 that it would not be just and reasonable to do so in
the circumstances.
(3) The dutiable value of aggregated dutiable property
is the sum of the dutiable values of the items or
parts of the dutiable property as at the time at
15 which each dutiable transaction occurs.
(4) The amount of duty payable in accordance with
this section is to be reduced by the amount of any
ad valorem duty paid on a prior dutiable
transaction that is, or prior dutiable transactions
20 that are, aggregated in accordance with this
section.
(5) Duty may be apportioned to the instruments
effecting or evidencing the dutiable transactions,
or may be charged in accordance with section 17,
25 as determined by the Commissioner.
(6) A transferee to whom this section applies must
disclose to the Commissioner, in writing, at or
before the time at which an instrument or
statement relating to the dutiable transactions is
30 lodged for stamping, details known to the
transferee of--
(a) all of the items or parts of the dutiable
property included or to be included in the
arrangement referred to in sub-section (1);
35 and
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(b) the consideration for each item or part of that
dutiable property.
Penalty: 100 penalty units.
25. Apportionment--dutiable property and other property
5 (1) If a dutiable transaction relates to dutiable
property and property that is not dutiable property,
it is chargeable with duty under this Chapter only
to the extent that it relates to dutiable property.
(2) If a dutiable transaction relates to different types
10 of dutiable property for which different rates of
duty are chargeable under this Chapter, the
dutiable transaction is chargeable with duty under
this Chapter as if a separate dutiable transaction
had occurred in relation to each such type of
15 dutiable property.
26. Partitions of marketable securities
In determining the duty to be paid on any dutiable
transaction that gives effect to a partition or
division of any marketable securities the
20 Commissioner must, before assessing the duty (if
any) payable on the transaction, deduct from the
value of those marketable securities the value of
the beneficial interest in those marketable
securities held prior to the transaction by the
25 transferee.
27. Partitions of land
In determining the duty to be paid on any dutiable
transaction that gives effect to a partition or
division of any estate in land, the Commissioner
30 must, before assessing the duty (if any) payable on
the transaction, deduct from the value of that
estate the value of the beneficial interest in that
estate held prior to the transaction by the
transferee.
35 _______________
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PART 3--RATES OF DUTY
28. General rate
(1) The rate of duty chargeable on a dutiable
transaction is chargeable to the nearest whole
5 dollar of the amount determined as follows or, if
that amount is an amount of dollars and fifty
cents, to the nearest whole dollar below that
amount--
Dutiable value of the
dutiable property the
subject of the dutiable
transaction Rate of duty
Not more than $20 000 1!4% of the dutiable value
More than $20 000 but not $280 plus 2!4% of that part
more than $115 000 of the dutiable value that
exceeds $20 000
More than $115 000 but not $2560 plus 6% of that part
more than $870 000 of the dutiable value that
exceeds $115 000
More than $870 000 5!5% of the dutiable value
(2) This rate applies unless other provision is made by
this Chapter2.
10
29. Marketable securities
The rate of duty chargeable on dutiable
transactions in respect of marketable securities is
60 cents per $100, or part, of the dutiable value of
15 the marketable securities.
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PART 4--SPECIAL PROVISIONS
30. Interim payment of duty
(1) If the full dutiable value of dutiable property the
subject of a dutiable transaction cannot, in the
5 Commissioner's opinion, be immediately
ascertained, the Commissioner may make an
assessment by way of estimate under section 11(2)
of the Taxation Administration Act 1997.
(2) The written instrument or the written statement
10 required by section 14 may be stamped "interim
stamp only".
(3) When the full dutiable value has been ascertained,
the Commissioner must reassess the duty payable
on the dutiable transaction.
15 (4) If no further duty is payable, the interim stamp is
to be cancelled and any amount paid in excess of
the amount assessed is to be refunded.
(5) If further duty is payable, liability for the further
duty arises when the notice of assessment issues,
20 despite section 11.
(6) On payment of the balance of the duty (and any
interest or penalty tax), the written instrument or
the written statement required by section 14 is to
be stamped with the amount of the balance and
25 marked to indicate that duty has been duly paid.
31. Sub sales of land
(1) If--
(a) a person ("the vendor") agrees to transfer
any dutiable property referred to in
30 section 10(1)(a) or (d) ("the agreement") to
another person ("the first purchaser")
(whether or not the agreement provides for
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that other person to nominate another person
as purchaser); and
(b) the transfer executed by the vendor transfers
the whole or any part of the property not to
5 the first purchaser but to another person
("the transferee") who has acquired,
whether directly or indirectly, the whole or
any part of the rights and interest under the
agreement of the first purchaser in the
10 property--
the transfer is not chargeable with duty in respect
of the transfer from the vendor to the transferee
but is separately and distinctly chargeable with
duty in respect of--
15 (c) the value of the property in the agreement
(whether or not the agreement has been
discharged by performance, novation or
agreement or has otherwise ceased to exist);
and
20 (d) the value of the property transferred to the
transferee; and
(e) if the transferee did not acquire those rights
and interest directly from the first purchaser,
the value of the property in each other
25 transaction or agreement as a result of which
the rights and interest of the first purchaser
in the property were acquired.
(2) For the purposes of sub-section (1), the value of
the property is--
30 (a) if there was a consideration for the
agreement or transaction in respect of which
duty is chargeable--
(i) that consideration; or
(ii) the amount for which the property
35 might reasonably have been sold if it
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had been sold, free from encumbrances,
in the open market on the date of the
agreement or transaction in respect of
which duty is chargeable--
5 whichever is the greater; and
(b) in any other case, the amount for which the
property might reasonably have been sold,
free from encumbrances, in the open market
on the date of the agreement or transaction in
10 respect of which duty is chargeable.
(3) A transfer referred to in sub-section (1) is not
separately and distinctly chargeable with duty in
accordance with that sub-section if--
(a) the agreement was entered into by the first
15 purchaser--
(i) as agent for another person and with the
authority in writing of the transferee to
enter into the transaction on behalf of
the transferee; or
20 (ii) in anticipation of the incorporation of
the transferee and, at the time of the
transfer, the first purchaser or a relative
of the first purchaser holds a bona fide
beneficial interest in the transferee or in
25 a holding company (within the meaning
of the Corporations Law) of the
transferee; or
(iii) as trustee for the transferee under a
trust recorded in writing on or before
30 the entering into of the agreement; or
(b) the transferee is a body corporate and the
first purchaser was a director of the body
corporate when the agreement was entered
into; or
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(c) the transferee is a relative of the first
purchaser; or
(d) the first purchaser was a related corporation
of the transferee when the agreement was
5 entered into; or
(e) a transfer executed in respect of the
agreement would be exempt from duty under
another provision of this Act.
(4) Duty charged under sub-section (1)(c), (d) or (e)
10 in relation to an agreement or transaction is
payable by the person acquiring rights or an
interest under the agreement or transaction.
(5) A transferee who pays duty in respect of a
transaction or agreement payable under this
15 section by another person, may recover the
amount of that duty as a debt due to the transferee
from the person.
(6) For the purposes of this section but without
limiting the ways in which a person may be taken
20 to acquire the rights and interest of another person
in property, a person who has rights or an interest
in property ("the first person") acquires the
rights and interest of another person ("the second
person") in that property if, as a direct or indirect
25 result of an agreement, arrangement or
understanding involving those persons (with or
without other persons)--
(a) the second person acquires rights or an
interest in the property; and
30 (b) the rights or interest of the first person in the
property are increased.
32. Transfers arising from mortgages of land
(1) The mortgagor and the mortgagee are jointly and
severally liable to pay the duty chargeable on a
35 transfer by way of mortgage of dutiable property
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that is land registered under the Transfer of Land
Act 1958.
(2) If the Commissioner is satisfied that--
(a) duty has been paid in accordance with this
5 section on a transfer of dutiable property to
which this section applies; and
(b) the dutiable property has been re-transferred
to the mortgagor (or a person to whom the
land has been transmitted by death or
10 bankruptcy) and the mortgagor (or person) is
the registered proprietor of the land--
the Commissioner must refund the ad valorem
duty paid on the transfer less the amount of duty
that would have been payable on a mortgage
15 under Chapter 7 (Mortgages).
(3) For the purposes of this section, a transfer by way
of mortgage of land registered under the Transfer
of Land Act 1958 means a transfer as a result of
which the transferee becomes the registered
20 proprietor of an estate in fee simple in the land but
holds that estate, as against the transferor, by way
of security.
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PART 5--EXEMPTIONS AND CONCESSIONAL RATES OF
DUTY
Division 1--Trusts
33. Change in trustees
5 (1) In this section--
"new trustee" means a trustee appointed in
substitution for a trustee or trustees or a
trustee appointed in addition to a trustee or
trustees;
10 "special trustee" means--
(a) a trustee company within the meaning
of the Trustee Companies Act 1984;
(b) a corporation constituted under the law
of another State or a Territory that, in
15 the Commissioner's opinion,
corresponds to a trustee company
referred to in paragraph (a);
(c) the trustees of a fund that is a
complying superannuation fund within
20 the meaning of section 267 of the
Income Tax Assessment Act 1936 of
the Commonwealth or that, in the
opinion of the trustees, will become a
complying superannuation fund within
25 12 months after the execution of--
(i) an instrument appointing a new
trustee; or
(ii) an instrument by which a trustee
retires without a new trustee being
30 appointed in place of the retiree.
(2) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property to a
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special trustee because of the retirement of a
trustee or the appointment of a new trustee.
(3) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property to a
5 person other than a special trustee only because of
the retirement of a trustee or the appointment of a
new trustee, if the Commissioner is satisfied that,
as the case may be--
(a) none of the continuing trustees remaining
10 after the retirement of a trustee is or can
become a beneficiary under the trust; and
(b) none of the trustees of the trust after the
appointment of a new trustee is or can
become a beneficiary under the trust; and
15 (c) the transfer is not part of a scheme for
conferring an interest, in relation to the trust
property, on a new trustee or any other
person, whether as a beneficiary or
otherwise, to the detriment of the beneficial
20 interest or potential beneficial interest of any
person.
(4) If the Commissioner is not satisfied as mentioned
in sub-section (3)--
(a) the transfer is chargeable with the same duty
25 as a transfer to a beneficiary under and in
conformity with the trusts subject to which
the property is held, unless sub-section (5)
applies; and
(b) each of the continuing trustees and new
30 trustees is taken to have been a beneficiary at
the time at which duty first became
chargeable in respect of the declaration of
trust.
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(5) No duty is chargeable under this Chapter in
respect of a transfer of property as a consequence
of--
(a) the retirement of a responsible entity of a
5 managed investment scheme; or
(b) the appointment of a new responsible entity
of a managed investment scheme--
if the Commissioner is satisfied that the only
beneficial interest acquired by a person in relation
10 to the property as a result of the transfer is a
beneficial interest acquired by the replacement or
new responsible entity solely because of its
appointment as responsible entity for the scheme.
34. Property vested in an apparent purchaser
15 (1) No duty is chargeable under this Chapter in
respect of--
(a) a declaration of trust made by an apparent
purchaser in respect of identified dutiable
property--
20 (i) vested in the apparent purchaser upon
trust for the real purchaser who
provided the money for the purchase of
the dutiable property; or
(ii) to be vested in the apparent purchaser
25 upon trust for the real purchaser, if the
Commissioner is satisfied that the
money for the purchase of the dutiable
property has been or will be provided
by the real purchaser; or
30 (b) a transfer of dutiable property from an
apparent purchaser to the real purchaser in a
case where dutiable property is vested in an
apparent purchaser upon trust for the real
purchaser who provided the money for the
35 purchase of the dutiable property.
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(2) In this section, "purchase" includes an allotment.
35. Transfers to and from a trustee or nominee
(1) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property (other
than marketable securities3) that is made by the
5
transferor to a trustee or nominee to be held solely
as trustee or nominee of the transferor without any
change in the beneficial ownership of the dutiable
property or made by way of re-transfer to the
10 transferor.
(2) A reference in sub-section (1) to a change in
beneficial ownership of dutiable property does not
include a reference to the creation of a trustee's
right of indemnity from the property.
15 36. Property passing to beneficiaries
(1) No duty is chargeable under this Chapter in
respect of a transfer for no consideration of
dutiable property to a beneficiary made under and
in conformity with the trusts contained in a
20 declaration of trust, subject to sub-sections (2) and
(3).
(2) Sub-section (1) applies only to the extent that the
property being transferred is property that the
Commissioner is satisfied is--
25 (a) wholly or substantially the same as the
property the subject of the declaration of
trust and that--
(i) duty charged by this Act has been paid
in respect of the declaration of trust
30 over that property; or
(ii) the declaration of trust is exempt from
duty; or
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(b) dutiable property representing the proceeds
of re-investment of property referred to in
paragraph (a); or
(c) property to which both paragraphs (a) and
5 (b) apply.
(3) Sub-section (1) applies only if the transferee was a
beneficiary at the time at which duty became
chargeable in respect of the declaration of trust.
37. Establishment of a trust relating to unidentified
10 property and non-dutiable property
(1) Duty of $200 is chargeable in respect of an
instrument executed in Victoria that declares a
trust over Victorian property none of which is
dutiable property.
15 (2) Duty of $200 is chargeable in respect of an
instrument executed in Victoria that declares that
property, although not identified in the instrument,
when vested in the person executing the
instrument is to be held in trust for a person or
20 persons or a purpose or purposes mentioned in the
instrument.
(3) It is immaterial whether or not the beneficial
owner or person entitled to appoint the property
has joined in or assented to the instrument.
25 (4) A liability for duty charged by this section arises
when the instrument is executed.
(5) Duty charged by this section is payable by the
person declaring the trust.
38. Exemptions from duty under section 37
30 (1) No duty is chargeable under section 37 in respect
of a declaration of trust made in consideration of
marriage if--
(a) the parties to the marriage and their children
(or any of them) are the sole beneficiaries; or
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(b) if there are other beneficiaries, the
Commissioner is satisfied that the marriage
is the sole and real consideration for the
declaration of trust.
5 (2) No duty is chargeable under section 37 in respect
of a declaration of trust if--
(a) the Commissioner is satisfied that the
declaration of trust has been made because
of the breakdown of a marriage; and
10 (b) the settlor is or was a party to the marriage;
and
(c) no person other than a party to the marriage
or a child of a party to the marriage is a
beneficiary of the trust.
15 (3) No duty is chargeable under section 37 in respect
of a declaration of trust over property to be held
on trust solely for--
(a) a religious, charitable or educational
purpose; or
20 (b) a corporation or body of persons established
for a religious, charitable or educational
purpose.
Division 2--Superannuation
39. Instruments relating to superannuation
25 The following instruments are exempt from
duty--
(a) an instrument that establishes, or that
amends provisions governing, a fund or trust
that--
30 (i) at the time of the instrument is; or
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(ii) within 12 months after the instrument
takes effect, in the opinion of the
trustees, will be--
a complying superannuation fund, a
5 complying approved deposit fund, a pooled
superannuation trust or an eligible rollover
fund;
(b) an instrument under which an employer
agrees to participate in or contribute to a
10 fund that--
(i) at the time the employer agrees to
participate or contribute is; or
(ii) within 12 months after that time, in the
opinion of the trustees, will be--
15 a complying superannuation fund;
(c) an instrument that is executed in order to set
out or vary the terms of custodial
arrangements concerning a fund or trust
that--
20 (i) at the time of the instrument is; or
(ii) within 12 months after the instrument
takes effect, in the opinion of the
trustees, will be--
a complying superannuation fund, a
25 complying approved deposit fund, a pooled
superannuation trust or an eligible rollover
fund (whether or not the instrument contains
any other terms).
40. Transfer of property from one superannuation fund to
30 another
(1) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property from one
superannuation fund to another if the
Commissioner is satisfied that--
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(a) the transfer is made from a complying
superannuation fund or from a fund that was
a complying superannuation fund within the
period of 12 months before the transfer was
5 made; and
(b) the transfer is made to a complying
superannuation fund or to a superannuation
fund that, in the opinion of the trustees, will
be a complying superannuation fund within
10 12 months after the transfer is made; and
(c) the transfer occurs in connection with a
person's ceasing to be a member of, or
otherwise ceasing to be entitled to benefits in
respect of, the fund from which the dutiable
15 property is transferred and the person's
becoming a member of, or otherwise
becoming entitled to benefits in respect of,
the fund to which the dutiable property is
transferred.
20 (2) An application to the Commissioner for the
purposes of this section is to be accompanied by
the following--
(a) a brief explanation of the background to the
transfer and the entitlements to be
25 extinguished and created;
(b) copies of the governing rules of the
complying superannuation funds concerned;
(c) a statement of the property to be transferred;
(d) a copy of each instrument relating to the
30 transfer;
(e) a statutory declaration from a trustee (or a
director of a corporate trustee) of each of the
superannuation funds concerned stating that,
in the opinion of the trustee (or director), the
35 fund will be a complying superannuation
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fund within 12 months after the transfer
occurs.
(3) The Commissioner may require further
information for the purposes of this section.
5 (4) In this section, "complying superannuation
fund" includes a complying approved deposit
fund and an eligible rollover fund.
41. Transfers to trustees or custodians of superannuation
funds or trusts
10 (1) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property to a
trustee or custodian of a complying
superannuation fund, a complying approved
deposit fund, a pooled superannuation trust or an
15 eligible rollover fund, or a fund or trust that, in the
opinion of the trustees, will be a complying
superannuation fund, a complying approved
deposit fund, a pooled superannuation trust or an
eligible rollover fund within 12 months after the
20 transfer takes effect, where there is no change in
the beneficial ownership of the property.
(2) A transfer of property to or from a trustee or
custodian of a pooled superannuation trust in
exchange for the issue or redemption of units in
25 the trust does not, for the purposes of this section,
effect a change in the beneficial ownership of the
property.
(3) A transfer of property to a trustee or custodian of
a complying superannuation fund, a complying
30 approved deposit fund or an eligible rollover fund
by a beneficiary of the fund does not, for the
purposes of this section, effect a change in the
beneficial ownership of the property.
Division 3--Other General Exemptions and Concessions
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42. Deceased estates
(1) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property not made
for valuable consideration by the legal personal
5 representative of a deceased person to a
beneficiary, being--
(a) a transfer made under and in conformity with
the trusts contained in the will of the
deceased person or arising on an intestacy;
10 or
(b) a transfer of property the subject of a trust
for sale contained in the will of the deceased
person.
(2) No duty is chargeable under this Chapter in
15 respect of the vesting of any dutiable property by
virtue of section 13 of the Administration and
Probate Act 1958.
43. Marriage and de facto relationships
(1) No duty is chargeable under this Chapter in
20 respect of a transfer of dutiable property made in
consideration of marriage if--
(a) the parties to the marriage and their children
(or any of them) are the sole beneficiaries; or
(b) if there are other beneficiaries, the
25 Commissioner is satisfied that the marriage
is the sole and real consideration for the
transfer--
and the transfer is made before the marriage or
after the marriage in pursuance of a written
30 agreement made before the marriage.
(2) No duty is chargeable under this Chapter in
respect of the re-transfer to the original transferor
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of a transfer referred to in sub-section (1) because
of the marriage not taking place.
(3) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property from one
5 person to another person, or from two people to
one of them, or from one person to themselves
and another person if--
(a) both people are married to each other or are
de facto spouses of each other; and
10 (b) no other person takes or is entitled to take an
interest in the property under the transfer.
44. Breakdown of marriage and defacto relationships
(1) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property from one
15 person to another person, or from two people to
one of them, or from one person to themselves
and another person if--
(a) both people have been married to each other
or de facto spouses of each other; and
20 (b) the Commissioner is satisfied that the
transfer has been made because of the
breakdown of the marriage or de facto
relationship; and
(c) no other person takes or is entitled to take an
25 interest in the property under the transfer.
(2) No duty is chargeable under this Chapter in
respect of a declaration of trust or a transfer of
dutiable property to a trustee if--
(a) the Commissioner is satisfied that the
30 declaration of trust or the transfer has been
made because of the breakdown of a
marriage; and
(b) the transferor is or was a party to the
marriage; and
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(c) no person other than a party to the marriage
or a child of a party to the marriage is a
beneficiary of the trust.
45. Charities and friendly societies
5 No duty is chargeable under this Chapter in
respect of a transfer of dutiable property to, or a
declaration of trust over dutiable property to be
held on trust for--
(a) a religious, charitable or educational
10 purpose; or
(b) a corporation or body of persons established
for a religious, charitable or educational
purpose; or
(c) a friendly society.
15 46. Co-operatives
(1) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property to a co-
operative that--
(a) has as its primary activity the providing of
20 any community service or benefit; and
(b) was, before it was incorporated under the
Co-operatives Act 1996, an unincorporated
club, association or body operating to
provide sporting or recreational facilities for
25 its members and not carried on for the
pecuniary profit of its members--
being property that, immediately before the co-
operative was incorporated, was held by or on
behalf of the unincorporated club, association or
30 body.
(2) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property--
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(a) because of, or to give effect to, section 335
of the Co-operatives Act 1996 (mergers of
co-operatives); or
(b) because of, or to give effect to, section 386
5 of the Co-operatives Act 1996 in respect of
a transfer of engagements; or
(c) because of, or to give effect to, section 386
of the Co-operatives Act 1996 in respect of
a merger if the co-operative formed by the
10 merger is a non-trading co-operative within
the meaning of that Act.
47. Government bodies and diplomats
(1) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property to--
15 (a) the Crown in right of Victoria; or
(b) a Council within the meaning of the Local
Government Act 1989; or
(c) the Municipal Association of Victoria; or
(d) the Western Metropolitan Market Trust; or
20 (e) an authority within the meaning of the
Water Act 1989; or
(f) any person on behalf of any of the above
persons.
(2) No duty is chargeable under this Chapter in
25 respect of a transfer of dutiable property to--
(a) the representative in Australia of the
government of another country; or
(b) a foreign consul; or
(c) a trade commissioner of any part of the
30 British Commonwealth.
48. Bankruptcies and administrations
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No duty is chargeable under this Chapter in
respect of--
(a) a transfer of dutiable property because of--
(i) the appointment of a receiver or trustee
5 in bankruptcy; or
(ii) the appointment of a liquidator; or
(b) the vesting of any dutiable property in a
liquidator by an order under section 474(2)
of the Corporations Law; or
10 (c) a transfer of dutiable property for no
consideration to a former bankrupt from the
estate of the former bankrupt; or
(d) the vesting of any dutiable property by a
vesting order made under section 51 of the
15 Trustee Act 1958.
49. Reductions in capital
No duty is chargeable under this Chapter in
respect of a transfer of dutiable property to a
shareholder of a company if--
20 (a) the transfer is made in the course of a
distribution of the assets of the company
because of the reduction of the capital of the
company (other than a reduction of capital
made because of the redemption of
25 redeemable preference shares); and
(b) the Commissioner is satisfied that the
transfer does not arise from arrangements or
a scheme devised for the principal purpose
of taking advantage of the benefit of this
30 exemption.
50. Adjustment of dutiable value of transfer on company
wind-up
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(1) Subject to this section, if a transfer of dutiable
property is made to a shareholder of a company in
the course of a distribution of assets because of
the winding-up of the company, the dutiable value
5 of the transfer is to be reduced by--
(a) if the shareholder is not a creditor of the
company--the value of the shareholder's
entitlement in the undistributed assets of the
company immediately before the transfer; or
10 (b) if the shareholder is a creditor of the
company--the amount (if any) by which the
value of the shareholder's entitlement in the
undistributed assets of the company
immediately before the transfer exceeds the
15 amount owed by the company to the
shareholder as a creditor.
(2) If--
(a) a transfer of dutiable property is made to a
shareholder of a company in the course of a
20 distribution of assets because of the winding-
up of the company; and
(b) the dutiable property is property referred to
in section 10(1)(a); and
(c) the winding-up is a voluntary winding-up--
25 the dutiable value of the transfer is to be reduced
in accordance with sub-section (1) only if the
Commissioner is satisfied that the company is not
being wound up as part of an arrangement or
scheme devised with the collateral purpose of
30 reducing the duty otherwise payable on the
transfer.
(3) In considering whether or not he or she is satisfied
for the purpose of sub-section (2), the
Commissioner may have regard to--
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(a) the duration of the shareholder's
shareholding in the company;
(b) whether or not the shareholder held shares in
a related corporation of the company that
5 owned the dutiable property before it was
owned by the company;
(c) the period for which the dutiable property
has been owned by the company or a related
corporation of the company;
10 (d) any dealing in shares of the company or a
related corporation of the company--
(i) by the shareholder or a related
corporation of the shareholder;
(ii) by a previous owner of the dutiable
15 property;
(e) whether there is any commercial efficacy to
an arrangement or scheme of transactions
involving any one or more of--
(i) the company;
20 (ii) the shareholder;
(iii) a related corporation of the company or
the shareholder;
(iv) a substantial shareholder (within the
meaning of Part 6.7 of the Corporations
25 Law) of a person referred to in sub-
paragraph (i), (ii) or (iii)--
in relation to the winding up, other than to
reduce the duty otherwise payable on the
transfer;
30 (f) any other matters he or she considers
relevant.
Division 4--Exemptions and Concessions in relation to Land
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51. Crown grants and public rights of way
No duty is chargeable under this Chapter in
respect of--
(a) a grant by the Crown in right of Victoria of
5 any Crown lands; or
(b) the dedication of a free and perpetual right of
way to the use of the public.
52. Government bodies
No duty is chargeable under this Chapter in
10 respect of a transfer of dutiable property referred
to in section 10(1)(a) to--
(a) the Minister administering the Crown Land
(Reserves) Act 1978; or
(b) the Minister administering the Planning and
15 Environment Act 1987; or
(c) the Director of Housing; or
(d) a Corporation within the meaning of the
Transport Act 1983; or
(e) a person on behalf of a public department of
20 Victoria or the Commonwealth.
53. Defence service homes
No duty is chargeable under this Chapter in
respect of a transfer of dutiable property referred
to in section 10(1)(a) by the Director of Defence
25 Service Homes--
(a) to a purchaser within the meaning of
section 4 of the Defence Service Homes Act
1918 of the Commonwealth; or
(b) to the personal representative of such a
30 purchaser.
54. Joint tenants and tenants in common
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No duty is chargeable under this Chapter in
respect of a transfer of dutiable property referred
to in section 10(1)(a)--
(a) by joint tenants to themselves as tenants in
5 common in equal shares; or
(b) by tenants in common in equal shares to
themselves as joint tenants.
55. Foreclosures of mortgages
No duty is chargeable under this Chapter in
10 respect of the vesting of dutiable property referred
to in section 10(1)(a) by a decree or order of a
court or the Registrar of Titles because of the
foreclosure of a mortgage.
56. Transfers of farms to relatives or charities
15 (1) No duty is chargeable under this Chapter in
respect of a transfer of dutiable property if the
Commissioner is satisfied that--
(a) the dutiable property is an estate in fee
simple in land referred to in section 9(1)(ga),
20 (h) or (ha) of the Land Tax Act 1958; and
(b) the transferor is a person referred to in sub-
section (2); and
(c) the transferee is a person referred to in sub-
section (3); and
25 (d) the transfer does not arise from arrangements
or a scheme devised for the principal
purpose of taking advantage of the benefit of
this section.
(2) The transferor must be--
30 (a) a natural person; or
(b) a trustee for a natural person; or
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(c) a company all the shares in which are owned
by natural persons who are relatives of each
other.
(3) The transferee must be--
5 (a) a relative of a natural person referred to in
sub-section (2); or
(b) a trustee under a fixed trust, the beneficiaries
of which are limited to--
(i) a present or future relative of a natural
10 person referred to in sub-section (2); or
(ii) a charitable institution; or
(iii) a present or future relative of a natural
person referred to in sub-section (2)
and a charitable institution; or
15 (iv) a present or future relative of a natural
person referred to in sub-section (2)
and a natural person referred to in sub-
section (2); or
(v) a charitable institution and a natural
20 person referred to in sub-section (2); or
(vi) a present or future relative of a natural
person referred to in sub-section (2), a
natural person referred to in sub-section
(2) and a charitable institution; or
25 (c) a trustee under a discretionary trust the terms
of which do not allow the distribution of the
whole or any part of the capital of the trust
that comprises land referred to in
section 9(1)(ga), (h) or (ha) of the Land Tax
30 Act 1958 to any person or body other than a
person or body referred to in paragraph (b);
or
(d) a natural person referred to in sub-section
(2)(c).
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(4) In this section--
"charitable institution" means a corporation or
body of persons associated for charitable
purposes;
5 "fixed trust" means a trust under which the
identity of the beneficiaries and the quantum
of their interests are ascertained.
57. Subsequent transfer not dutiable if duty paid on lease
If duty is paid under this Chapter in respect of a
10 dutiable transaction referred to in
section 7(1)(b)(v) (lease with covenant for future
transfer), no duty is chargeable under this Chapter
in respect of the subsequent transfer of the land in
accordance with the terms of the lease.
15 Division 5--Pensioner and First Home Owner Exemptions
and Concessions
58. Who is an eligible pensioner?
(1) A person is an "eligible pensioner" for the
purposes of this Division if the Commissioner is
20 satisfied that the person--
(a) is an eligible beneficiary within the meaning
of the State Concessions Act 1986; and
(b) is a bona fide purchaser of an estate in fee
simple in land for adequate consideration;
25 and
(c) intends to reside in a dwelling on the land as
a principal place of residence; and
(d) has not received an exemption, refund or
rebate of duty in respect of a transfer--
30 (i) under section 59 or 60; or
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(ii) under section 71A of the Stamps Act
1958.
(2) Two or more persons together are eligible
beneficiaries in respect of a transfer if each of
5 them satisfies the criteria set out in sub-section
(1).
59. Eligible pensioner exemption or concession where
dwelling exists at the time of transfer
(1) No duty is chargeable under this Chapter in
10 respect of a transfer to an eligible pensioner of
dutiable property being an estate in fee simple in
land, if--
(a) at the time of the transfer there is a dwelling
on the land; and
15 (b) the dutiable value of the dutiable property
does not exceed $100 000.
(2) An eligible pensioner is entitled to a concession
from duty under this Chapter in respect of a
transfer to the eligible pensioner of dutiable
20 property being an estate in fee simple in land, if--
(a) at the time of the transfer there is a dwelling
on the land; and
(b) the dutiable value of the dutiable property
exceeds $100 000 but does not exceed
25 $130 000.
(3) The concession is an amount calculated in
accordance with the formula--
28 600 22P
-
3 300
where P is the dutiable value of the dutiable
30 property.
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60. Eligible pensioner exemption or concession where
dwelling is constructed after transfer
(1) No duty is chargeable under this Chapter in
respect of a transfer to an eligible pensioner of
5 dutiable property being an estate in fee simple in
land, if--
(a) at the time of the transfer there is not a
dwelling on the land; and
(b) a dwelling is constructed on the land within
10 3 years after that time; and
(c) the aggregate of the dutiable value of the
dutiable property and the cost of the
construction of the dwelling does not exceed
$100 000.
15 (2) An eligible pensioner is entitled to a concession
from or partial refund of duty under this Chapter
in respect of a transfer to the eligible pensioner of
dutiable property being an estate in fee simple in
land, if--
20 (a) at the time of the transfer there is not a
dwelling on the land; and
(b) a dwelling is constructed on the land within
3 years after that time; and
(c) the aggregate of the dutiable value of the
25 dutiable property and the cost of the
construction of the dwelling exceeds
$100 000 but does not exceed $130 000.
(3) If the aggregate amount referred to in sub-section
(2)(c) does not exceed $115 000, the concession
30 or refund is an amount calculated in accordance
with the formula--
22(130 000 - P)
D×
(7 2P - 60 000)
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where--
D is the amount of duty paid or payable (but
for this Division) on the transfer;
P is the aggregate amount referred to in sub-
5 section (2)(c).
(4) If the aggregate amount referred to in sub-section
(2)(c) exceeds $115 000 but does not exceed
$130 000, the concession or refund is an amount
calculated in accordance with the formula--
11(130 000 - P)
D×
10
3(3P - 217 000)
where--
D is the amount of duty paid or payable (but
for this Division) on the transfer;
P is the aggregate amount referred to in sub-
15 section (2)(c).
61. Who is an eligible first home owner?
(1) A person is an "eligible first home owner" for
the purposes of this Division if the Commissioner
is satisfied that--
20 (a) the person is a bona fide purchaser of an
estate in fee simple in land for adequate
consideration; and
(b) the person intends to reside in a dwelling on
the land as a principal place of residence;
25 and
(c) the person has a dependent child and had a
dependent child at the time when, or within
11 months after--
(i) if there was a dwelling on the land
30 when the contract of sale of the land
was entered into--the date on which
the contract of sale was entered into; or
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(ii) if there was no dwelling on the land
when the contract of sale of the land
was entered into--the earlier of--
(A) the date on which the contract for
5 the construction of the dwelling
was entered into; and
(B) the date on which the building of
the dwelling commenced; and
(d) having regard to any information the
10 Commissioner considers sufficient, the
person's taxable income during the current
financial year is not likely to exceed--
(i) $39 000 if the person has only one
dependent child; or
15 (ii) $40 000 if the person has 2 or more
dependent children; and
(e) the person has not previously held an estate
in fee simple in land on which was erected a
dwelling which was used as a principal place
20 of residence by that person anywhere in
Australia.
(2) A person and his or her spouse together are
eligible first home owners if each of them satisfies
the criteria set out in sub-section (1).
25 (3) For the purposes of sub-section (2), a reference in
sub-section (1)(d) to a person's income is taken to
be a reference to the sum of the incomes of the
person and his or her spouse.
(4) In this section--
30 "dependent child", in relation to a person, means
a child under the age of 18 years in the
custody, care and control of, and ordinarily
resident with, the person.
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62. Eligible first home owner exemption or concession
where dwelling exists at the time of transfer
(1) No duty is chargeable under this Chapter in
respect of a transfer to an eligible first home
5 owner of dutiable property being an estate in fee
simple in land, if--
(a) at the time of the transfer there is a dwelling
on the land; and
(b) the dutiable value of the dutiable property
10 does not exceed $115 000.
(2) An eligible first home owner is entitled to a
concession from duty under this Chapter in
respect of a transfer to the eligible home owner of
dutiable property being an estate in fee simple in
15 land, if at the time of the transfer there is a
dwelling on the land, and--
(a) if there was a dwelling on the land at the
time the contract of sale of the land was
entered into--the dutiable value of the
20 dutiable property exceeds $115 000 but does
not exceed $165 000; or
(b) if the dwelling was constructed after the time
the contract of sale of the land was entered
into--the aggregate of the dutiable value of
25 the dutiable property and the cost of
construction of the dwelling exceeds
$115 000 but does not exceed $165 000.
(3) If sub-section (2)(a) applies, the concession is an
amount calculated in accordance with the
30 formula--
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256P
8448 -
5000
where P is the dutiable value of the property.
(4) If sub-section (2)(b) applies, the concession is an
amount calculated in accordance with the
5 formula--
256(165 000 - P)
D×
100(3P - 217 000)
where--
D is the amount of duty paid or payable (but
for this Division) on the transfer.
10 P is the aggregate amount referred to in sub-
section (2)(b).
63. Eligible first home owner exemption or concession
where dwelling is constructed after transfer
(1) No duty is chargeable under this Chapter in
15 respect of a transfer to an eligible first home
owner of dutiable property being an estate in fee
simple in land, if--
(a) at the time of the transfer there is not a
dwelling on the land; and
20 (b) a dwelling is constructed on the land within
3 years after that time; and
(c) the aggregate of the dutiable value of the
dutiable property and the cost of the
construction of the dwelling does not exceed
25 $115 000.
(2) An eligible first home owner is entitled to a
concession from or partial refund of duty under
this Chapter in respect of a transfer to the eligible
first home owner of dutiable property being an
30 estate in fee simple in land, if--
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(a) at the time of the transfer there is not a
dwelling on the land; and
(b) a dwelling is constructed on the land within
3 years after that time; and
5 (c) the aggregate of the dutiable value of the
dutiable property and the cost of the
construction of the dwelling exceeds
$115 000 but does not exceed $165 000.
(3) The concession or refund is an amount calculated
10 in accordance with the formula--
256(165 000 - P)
D×
100(3P - 217 000)
where--
D is the amount of duty paid or payable (but
for this Division) on the transfer.
15 P is the aggregate amount referred to in sub-
section (2)(c).
64. Double duty for false or misleading statements
(1) If a person--
(a) represents to a tax officer that duty is not
20 chargeable, or that the person is entitled to a
concession or refund of duty, because of this
Division; and
(b) is convicted of an offence against section 57
of the Taxation Administration Act 1997
25 as a consequence--
the person is liable, by way of further penalty, to
pay an amount equal to double the amount of duty
that, but for the offence, would have been payable,
less any amount of duty that the person did pay.
30 (2) The penalty in sub-section (1) is in addition to any
penalty tax or interest that may be payable under
the Taxation Administration Act 1997.
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Division 6--Exemptions and Concessions in relation to
Marketable Securities
65. Co-operatives and co-operative housing societies
No duty is chargeable under this Chapter in
5 respect of a transfer of marketable securities--
(a) in a co-operative, if the transfer is made for a
consideration of not less than the
unencumbered value of the marketable
securities; or
10 (b) in a co-operative housing society.
66. Loans and temporary transfers
(1) No duty is chargeable under this Chapter in
respect of--
(a) a transfer of marketable securities that is
15 made as a security, other than a transfer to
secure the rights of a purchaser or intended
purchaser of the marketable securities under
a contemplated sale; or
(b) a re-transfer of marketable securities referred
20 to in paragraph (a) to the original transferee.
(2) No duty is chargeable under this Chapter in
respect of a transfer of marketable securities that
is made for the sole purpose of--
(a) vesting the marketable securities in the
25 transferee for sale and delivery; or
(b) qualifying the transferee as nominee director
to act and vote on behalf of a holding
company as it directs; or
(c) re-transferring marketable securities to a
30 holding company referred to in paragraph
(b).
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67. Nomineeing transactions--unquoted marketable
securities
No duty is chargeable under this Chapter in
respect of a transfer of marketable securities
5 between any of the following persons--
(a) the beneficial owner;
(b) a trustee or nominee of the beneficial owner;
(c) a custodian of a trustee or nominee of the
beneficial owner;
10 (d) a sub-custodian of a custodian of a trustee or
nominee of the beneficial owner--
but only if--
(e) there is no change in the beneficial
ownership of the marketable securities; and
15 (f) if the transferee is a person referred to in
paragraph (b), (c) or (d)--the transferee is to
hold the marketable securities solely for
another person referred to in paragraph (a),
(b) or (c) and there is no contemplation of
20 the marketable securities being held for any
other person; and
(g) if the transferor is a person referred to in
paragraph (b), (c) or (d)--the marketable
securities were held by the person solely for
25 another person referred to in paragraph (a),
(b) or (c) and, since the time when the
marketable securities were first transferred
or issued to the transferor, no person has
held the marketable securities other than
30 solely for a person referred to in paragraph
(a), (b) or (c).
68. Share buy-backs
No duty is chargeable under this Chapter in
respect of a dutiable transaction arising because of
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a buy-back of shares in accordance with Division
2 of Part 2J.1 of the Corporations Law, unless the
buy-back is effected by the purchaser under one or
more agreements, understandings or arrangements
5 that the purchaser will issue marketable securities.
69. Reduction of duty--payment in non-Australian
jurisdiction
(1) The amount of duty chargeable under this Chapter
in respect of a transfer of marketable securities is
10 to be reduced by the amount of duty of a similar
kind paid in relation to the transfer in accordance
with the law of a place outside Australia.
(2) In this section, a reference to a transfer of
marketable securities includes a reference to a
15 dealing or arrangement affecting marketable
securities by means of a dutiable transaction other
than a transfer.
_______________
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CHAPTER 3
CERTAIN TRANSACTIONS TREATED AS
TRANSFERS4
PART 1--INTRODUCTION AND OVERVIEW
5 70. Introduction and overview
This Chapter charges duty on certain transactions
that are not dutiable transactions under Chapter 2.
_______________
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PART 2--ACQUISITION OF INTERESTS IN CERTAIN
LANDHOLDERS
Division 1--Land-rich Private Corporations
71. Meaning of "private corporation"
5 A private company or private unit trust scheme is,
for the purposes of this Part, a "private
corporation".
72. When is a private corporation "land-rich"?
(1) A private corporation is "land-rich" if--
10 (a) it has land holdings in Victoria whose
unencumbered value is $1 000 000 or more;
and
(b) its land holdings in all places, whether
within or outside Australia, comprise 80% or
15 more of the unencumbered value of all its
property.
(2) In calculating the unencumbered value of the
property of a private corporation for the purposes
of this section, property of any of the following
20 kinds is not counted--
(a) cash, whether in Australian or other
currency;
(b) money on deposit with an authorised
deposit-taking institution (within the
25 meaning of the Banking Act 1959 of the
Commonwealth), negotiable instruments or
debt securities;
(c) loans that, according to their terms, are to be
repaid on demand by the lender or within
30 12 months after the date of the loan;
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(d) if the private corporation concerned is a
private company, loans to persons who, in
relation to the company or to a majority
shareholder or director of the company, are
5 associated persons;
(e) if the private corporation concerned is a
private unit trust scheme, loans to persons
who, in relation to a trustee or beneficiary of
the scheme, are associated persons;
10 (f) prescribed property--
unless the Commissioner, being satisfied that the
property concerned was not acquired solely or
mainly for the purpose of avoiding duty under this
Part, notifies the private corporation concerned
15 that the property will be counted for the purposes
of such a calculation.
(3) In addition to the property that is not to be
counted under sub-section (2), property is not to
be counted in calculating the unencumbered value
20 of all of the property of a private corporation for
the purposes of this section if the private
corporation is unable to satisfy the Commissioner
that the property was obtained otherwise than to
reduce, for the purposes of this Division, the ratio
25 of its land holdings in all places, whether within
or outside Australia, to the unencumbered value of
all its property.
(4) In determining whether or not a private
corporation is land-rich for the purposes of an
30 acquisition of an interest in that corporation by a
person from a lineal ancestor or lineal descendant
of that person, the land holdings of the
corporation are taken for the purpose of sub-
section (1)(b) not to include land held by the
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corporation that is primarily used for primary
production.
73. Land holdings of private corporations
(1) For the purposes of this Part, a "land holding" is
5 any interest in land other than the estate or interest
of a mortgagee, chargee or other secured creditor
or a profit ŕ prendre. An interest in land,
however--
(a) is not a land holding of a private company
10 unless the interest of the private company in
the land is a beneficial interest; and
(b) is not a land holding of a unit trust scheme
unless the interest is held by the trustees in
their capacity as trustees of the scheme.
15 (2) This section is in aid of, but does not limit, the
operation of any provision of this Part providing
for constructive ownership of interests.
(3) For the purposes of this Part, the vendor and the
purchaser under an uncompleted agreement for
20 the sale of land are taken to be separately entitled
to the whole of the land.
74. Constructive ownership of land holdings and other
property: subsidiaries
(1) In addition to any interest in land or other
25 property that it may hold in its own right, a private
corporation is taken, for the purposes of this Part,
to hold an interest (the value of which, for duty
purposes, is to be calculated in accordance with
sub-section (2)) in land or other property held by a
30 subsidiary of the private corporation.
(2) The value, for duty purposes, of the interest in
land or other property that a private corporation is
taken, by the operation of sub-section (1), to hold
by virtue of a holding of a subsidiary ("the actual
35 landholder") is that portion of the land or other
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property's unencumbered value to which the
private corporation would be entitled on a
winding-up of--
(a) the actual landholder; and
5 (b) every subsidiary of the private corporation
that stands between the private corporation
and the actual landholder in the ownership
chain.
(3) For the purposes of this Part, a private company
10 ("Company A") is the subsidiary of another
private company ("Company B") if Company A
is a subsidiary, within the meaning of the
Corporations Law, of Company B.
(4) For the purposes of this Part, a private company is
15 the subsidiary of a unit trust scheme if the trustees
of the scheme, in their capacities as trustees of the
scheme, have a majority interest in the private
company.
(5) For the purposes of this Part, a unit trust scheme is
20 the subsidiary of a private corporation if the
corporation has a majority interest in the scheme.
75. Constructive ownership of land holdings and other
property: discretionary trusts
(1) A person or a member of a class of persons in
25 whose favour, by the terms of a discretionary
trust, capital the subject of the trust may be
applied--
(a) in the event of the exercise of a power or
discretion in favour of the person or class; or
30 (b) in the event that a discretion conferred under
the trust is not exercised--
is, for the purposes of this section, a beneficiary of
the trust.
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(2) A beneficiary of a discretionary trust is taken to
own or to be otherwise entitled to the property the
subject of the trust, unless the Commissioner,
being satisfied that the application of this
5 sub-section in the particular case would be
inequitable, determines otherwise.
(3) For the purposes of this Part, any property that is
the subject of a discretionary trust is taken to be
the subject of any other discretionary trust--
10 (a) that is; or
(b) any trustee of which (in the capacity of
trustee) is--
a beneficiary of it, unless the Commissioner,
being satisfied that the application of this sub-
15 section in the particular case would be inequitable,
determines otherwise.
(4) Sub-section (3) extends to apply to property that is
the subject of a discretionary trust only by the
operation of that sub-section.
20 (5) In this section, "person" includes a private
corporation.
Division 2--Acquisitions of Interests in Private
Corporations
76. What are "interests" and "majority interests" in
25 private corporations?
(1) A person has an interest in a private corporation if
the person has an entitlement (otherwise than as a
creditor or other person to whom the corporation
is liable) to a distribution of property from the
30 corporation on a winding up of the corporation or
otherwise.
(2) A person who, by virtue of sub-section (1), has an
interest in a private corporation has a majority
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interest in the corporation if the person, in the
event of a distribution of all the property of the
corporation immediately after the interest was
acquired, would be entitled to more than 50% of
5 the property distributed.
(3) An interest in a private corporation is not counted
for the purposes of this section if--
(a) the interest concerned is an interest in a
private company acquired before
10 15 November 1987 or acquired on or after
that date as the result of an agreement
entered into before that date; or
(b) the interest concerned was acquired at a time
when the private corporation did not hold
15 land in Victoria.
(4) In this section, "person" includes a private
corporation.
77. How may an interest be acquired?
For the purposes of this Part, an interest in a land-
20 rich private corporation may be acquired by
means of--
(a) the purchase, gift, allotment or transfer of
any share or unit in a private corporation; or
(b) the variation, abrogation or alteration of a
25 right attaching to any such share or unit; or
(c) the redemption, surrendering or cancellation
of any such share or unit--
or by any combination of the means referred to in
paragraphs (a), (b) or (c).
30 Division 3--Charging of Duty
78. When does a liability for duty arise?
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A liability for duty charged by this Part arises
when a relevant acquisition is made.
79. What is a "relevant acquisition"?
For the purposes of this Division, a person who--
5 (a) acquires an interest in a land-rich private
corporation--
(i) that is of itself a majority interest in the
corporation; or
(ii) that, when aggregated with other
10 interests in the corporation held by the
person or an associated person, results
in an aggregation that amounts to a
majority interest in the corporation; or
(b) having a majority interest, or an interest
15 described in paragraph (a)(ii), in a land-rich
private corporation, acquires a further
interest in the corporation--
has made a relevant acquisition.
80. Acquisition statements
20 (1) A person who has made a relevant acquisition
must prepare an acquisition statement and lodge it
with the Commissioner.
(2) The acquisition statement must contain the
following information--
25 (a) the name and address of the person who has
acquired the interest;
(b) the date of the relevant acquisition;
(c) particulars of the interest acquired;
(d) particulars of the total interest of the person
30 and any associated person in the private
corporation at that date;
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(e) the unencumbered value of all land holdings
in Victoria of the private corporation as at
the date of the relevant acquisition and as at
the date of acquisition of each interest
5 acquired in the corporation during the 3
years prior to the date of the relevant
acquisition;
(f) the unencumbered value of the property of
the private corporation at the date of the
10 relevant acquisition;
(g) the amount of duty paid under this Act or
under a law of another Australian
jurisdiction in respect of each earlier
acquisition of an interest referred to in
15 paragraph (e);
(h) any other information the Commissioner
requires for the purposes of this Chapter.
81. When must duty be paid?
A tax default does not occur for the purposes of
20 the Taxation Administration Act 1997 if duty is
paid within 3 months after the liability to pay the
duty arises.
82. Who is liable to pay the duty?
(1) Duty chargeable under this Part is payable by the
25 person who makes the relevant acquisition, except
as provided by sub-section (2).
(2) If a relevant acquisition results from an
aggregation of the interests of associated persons,
the person who made the relevant acquisition and
30 the associated person or persons are jointly and
severally liable for payment of the duty.
83. How duty is charged on relevant acquisitions
(1) If an acquisition statement does not disclose any
acquisitions during the 3 years preceding the
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relevant acquisition, duty is chargeable, at the rate
specified under this Act for a transfer of dutiable
property, on the amount calculated by multiplying
the unencumbered value of all land holdings of
5 the private corporation in Victoria (calculated at
the date of acquisition of the interest acquired) by
the proportion of that value represented by the
interest acquired in the relevant acquisition.
(2) If an acquisition statement discloses one or more
10 acquisitions during the 3 years preceding the
relevant acquisition, duty is chargeable, at the rate
specified under this Act for a transfer of dutiable
property, on the aggregate of amounts severally
calculated, in the manner provided by sub-
15 section (1), in respect of each interest required to
be disclosed in the statement.
(3) Duty payable under this section is to be reduced
by the sum of the duty paid or payable under this
Act in respect of the acquisition, during the 3
20 years preceding the relevant acquisition, by the
person or any associated person of an interest in
the same private corporation, but only in
proportion to the extent to which the duty paid or
payable is attributable to the amount of the duty
25 payable under this section.
(4) Duty payable under this section is to be reduced
by an amount (if any) calculated in accordance
with the following formula--
A
×C
B
30 where--
A is the unencumbered value of the land
holdings in Victoria of the private corporation
at the time the dutiable acquisition was made;
and
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B is the unencumbered value of all property of
the private corporation at that time; and
C is the sum of--
(a) the duty under this Act paid or payable in
5 respect of--
(i) a dutiable transaction in relation to the
shares or units; or
(ii) a capital reduction or a rights alteration
under Part 3 by which an interest in the
10 private corporation was acquired; or
(iii) an allotment under Part 4 by which an
interest in the private corporation was
acquired; and
(b) any duty of a like nature so paid or payable
15 under a law of another State or of a
Territory.
(5) If a relevant acquisition is made owing to the
aggregation of the interests of associated persons,
but the Commissioner is satisfied that the
20 associated persons acquired their respective
interests independently and for no common
purpose, the Commissioner may assess and charge
duty on the relevant acquisition without
aggregating the interests of the person who made
25 it with the interests of associated persons.
(6) This section is subject to section 87, the other
provisions of Division 4 and clause 6 in
Schedule 1.
Division 4--General and Supplemental
30 84. Exempt acquisitions
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(1) An acquisition by a person of an interest in a
private corporation is an exempt acquisition--
(a) if the land the subject of the interest
concerned could have been acquired by the
5 person in a manner that does not result in a
liability to pay ad valorem duty under
Chapter 2; or
(b) if the interest was acquired in the person's
capacity as--
10 (i) a receiver or trustee in bankruptcy; or
(ii) a liquidator; or
(iii) an executor or administrator of the
estate of a deceased person; or
(c) if the interest was acquired solely as the
15 result of the making of a compromise or
arrangement under Part 5.1 of the
Corporations Law that has been approved by
the court, not being a compromise or
arrangement that the Commissioner is
20 satisfied was made with the intention of
defeating the operation of this Chapter; or
(d) if the interest concerned is acquired solely
from a pro rata increase in the interests of all
shareholders or unitholders.
25 (2) An acquisition by a person of an interest in a
private corporation is an exempt acquisition if the
Commissioner, being satisfied that the application
of this Part to the acquisition in the particular case
would not be just and reasonable, so determines.
30 85. Maximisation of entitlements on distribution of
property
(1) This section applies to any calculation, for the
purposes of this Part (other than section 74), of the
entitlement of a person ("the interested person")
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to participate in a distribution of the property of a
private corporation, whether on a winding up of
the private corporation or otherwise.
(2) A calculation is to be made based, firstly, on a
5 distribution carried out in accordance with the
constitution of the private corporation, and with
any law relevant to the distribution, as in force at
the time of distribution, and the entitlement of the
interested person is to be evaluated accordingly.
10 (3) Next, a calculation is to be made based on a
distribution carried out after the interested person,
and any other person whom the interested person
has power to direct with respect to such a
distribution or who is, in relation to the interested
15 person, an associated person, had exercised all
powers and discretions exercisable by them by
reason of having acquired an interest in the private
corporation concerned--
(a) to effect or compel an alteration to the
20 constitution of the private corporation; and
(b) to vary the rights conferred by shares or units
in the private corporation; and
(c) to effect or compel the substitution or
replacement of shares or units in the private
25 corporation with other shares or units in it--
in such a manner as would maximise the value of
the entitlement, and the entitlement of the
interested person is to be evaluated accordingly.
(4) The results obtained by an evaluation of the
30 interested person's entitlement in accordance with
sub-sections (2) and (3) are then to be compared,
and whichever evaluation results in a greater
entitlement is the correct evaluation, for the
purposes of this Part, of the entitlement, unless the
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Commissioner, being satisfied that the application
of this sub-section in the particular case would be
inequitable, determines otherwise.
86. Valuation of property
5 (1) The provisions of this Act that apply to the
ascertainment of the value of transfers chargeable
with ad valorem duty apply in the same way to an
acquisition statement under this Part and the value
of land holdings mentioned in it.
10 (2) For the purposes of this Part, in determining the
amount for which property might reasonably have
been sold free from encumbrances, there must be
disregarded, subject to sub-section (3), any
interest, agreement or arrangement (other than an
15 encumbrance) granted or made in respect of the
property that has the effect of reducing the value
of the property.
(3) An interest, agreement or arrangement referred to
in sub-section (2) is not to be disregarded if the
20 Commissioner is satisfied that it was not granted
or made as a part of an arrangement or scheme
with a collateral purpose of reducing the duty
otherwise payable on the transfer of the property.
(4) In considering whether or not he or she is satisfied
25 for the purposes of sub-section (3), the
Commissioner may have regard to--
(a) the duration of the interest, agreement or
arrangement before the transfer of the
property; and
30 (b) whether the interest, agreement or
arrangement has been granted to or made
with an associate, a related corporation or a
trustee of the transferor or transferee; and
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(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
5 (d) any other matters he or she considers
relevant.
87. Phasing-in of duty
If the unencumbered value of land holdings in
Victoria of a private corporation exceeds
10 $1 million but does not exceed $1ˇ5 million, the
duty chargeable under this Part is to be calculated
in accordance with the following formula--
A - $1 000 000 A - $1 000 000
× B + 1 - × C
$500 000 $500 000
where--
15 A is the unencumbered value of the land holdings
in Victoria of the private corporation at the
time the relevant acquisition was made; and
B is the duty that, apart from this section, would
be chargeable under this Part; and
20 C is the duty that would have been payable under
Chapter 2 on the dutiable value of the shares
or units comprised in the relevant acquisition
had those shares or units been transferred at
the time of the relevant acquisition.
25 88. Agreements for sale or transfer of land
(1) If--
(a) at the time of acquisition of an interest by
any person in a land-rich private corporation
that necessitates the lodgement of an
30 acquisition statement under Division 3, the
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corporation was the vendor under an
uncompleted agreement for the sale or
transfer of land; and
(b) the agreement is subsequently completed--
5 the Commissioner is to assess or reassess the
statement as though the land the subject of the
agreement was not, at the time of the acquisition
concerned, a land holding of the corporation.
(2) If--
10 (a) at the time of acquisition of an interest by
any person in a land-rich private corporation
that requires the lodgement by any person of
an acquisition statement under Division 3,
the private corporation was the purchaser
15 under an uncompleted agreement for the sale
or transfer of land; and
(b) the agreement is subsequently rescinded,
annulled or otherwise terminated without
completion--
20 the Commissioner is to assess or reassess the
statement as though the land the subject of the
agreement was not, at the time of the acquisition
concerned, a land holding of the corporation.
(3) In this section--
25 "land rich private corporation" includes a
subsidiary of the corporation.
89. Duty concessions--acquisitions securing financial
accommodation
(1) If the person lodging an acquisition statement
30 under this Part in relation to the acquisition of an
interest in a land-rich private corporation--
(a) informs the Commissioner at the time the
statement is lodged that the acquisition is
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effected for the purpose of securing financial
accommodation; and
(b) the Commissioner is satisfied that the
acquisition is effected for that purpose--
5 the statement, in so far as it relates to that
acquisition, is not chargeable with duty, except as
provided by sub-section (2).
(2) The statement is chargeable with duty at the
expiration of the period of 5 years after the date of
10 the acquisition (or the longer period determined
by the Commissioner in the particular case) if the
interest concerned is not--
(a) re-acquired by the person from whom it was
acquired; or
15 (b) in the case of an acquisition by way of
mortgage, conveyed by the mortgagee to a
third person in exercise of the mortgagee's
power of sale--
within that period (or that longer period).
20 (3) Section 80 does not apply to the re-acquisition by
a person of the interest concerned.
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PART 3--ENTITLEMENTS ARISING FROM CAPITAL
REDUCTIONS OR RIGHTS ALTERATIONS
90. Definitions
(1) In this Part--
5 "capital reduction" means--
(a) the redemption, surrender or
cancellation of a share (including
cancellation as part of a buy-back of
shares in accordance with Division 2 of
10 Part 2J.1 of the Corporations Law); or
(b) a reduction in the paid up value of a
share;
"company" means a Victorian company that is--
(a) a public company within the meaning
15 of the Corporations Law; and
(b) not listed on the Australian Stock
Exchange or a recognised stock
exchange;
"dutiable entitlement" means a voting share
20 entitlement in respect of whose acquisition a
statement is required, under section 94, to be
lodged;
"person" includes persons who are associated
persons;
25 "rights alteration", in relation to voting shares,
means a variation, abrogation or alteration of
rights relating to the shares;
"voting shares" has the same meaning as in
section 9 of the Corporations Law.
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(2) For the purposes of this Part, if voting shares
acquired by associated persons severally do not,
but taken in the aggregate would, confer an
entitlement to which this Part applies, the voting
5 shares acquired by the associated persons are
taken to be aggregated and are taken to confer the
entitlement on the associated person who last
acquired any of those voting shares.
(3) If, by sub-section (2), an entitlement to voting
10 shares is taken to exist as the aggregate of voting
shares of associated persons, the associated
persons are jointly and severally liable for
payment of the duty chargeable on the statement
required to be lodged under this Part.
15 (4) Voting shares are not to be aggregated in
accordance with sub-section (2) if the
Commissioner is satisfied that the associated
persons concerned acquired their several shares
independently and for no common purpose.
20 91. When does a liability for duty arise?
A liability for duty charged by this Part arises
when a dutiable entitlement is acquired.
92. When must duty be paid?
A tax default does not occur for the purposes of
25 the Taxation Administration Act 1997 if duty is
paid within 3 months after the liability to pay the
duty arises.
93. Who is liable to pay the duty?
Duty chargeable under this Part is payable by the
30 person who acquires a dutiable entitlement.
94. Entitlement to voting shares arising from capital
reduction or rights alteration
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(1) If--
(a) a person becomes entitled to at least 50% of
the voting shares of a company by means of
capital reduction or rights alteration, or both;
5 or
(b) a person who is entitled to at least 50% of
the voting shares of a company becomes
entitled to at least 10% more of the voting
shares over a period of not more than
10 12 months by means of capital reduction or
rights alteration, or both--
the person must lodge a statement with the
Commissioner in respect of the entitlement.
(2) The statement must be lodged within 3 months
15 after the entitlement arises.
95. Content of statement
The statement required to be lodged under this
Part by a person is to contain the following
information--
20 (a) the name and address of the person;
(b) the name of the company;
(c) the date on which each relevant capital
reduction or rights alteration, or both,
occurred;
25 (d) if the person's entitlement has arisen--
(i) from capital reduction--the total of the
unencumbered value, immediately prior
to each relevant capital reduction, of
the shares the subject of the capital
30 reduction; or
(ii) from rights alteration--the total of the
unencumbered value, immediately prior
to each relevant rights alteration, of the
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shares the subject of the rights
alteration; or
(iii) from capital reduction and rights
alteration--the aggregate of the totals
5 under sub-paragraphs (i) and (ii);
(e) the total consideration paid to the person in
relation to all relevant capital reductions or
rights alterations, or both;
(f) any other information required by the
10 Commissioner for the purposes of this
Chapter.
96. Assessment of duty
A statement required to be lodged under this Part
by a person is chargeable with duty at the rate of
15 60 cents for every $100, or part, of the higher of--
(a) the total or aggregate obtained under
section 95(d); and
(b) the total amount under section 95(e).
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PART 4--ALLOTMENT OF SHARES BY DIRECTION
97. Application of Part
(1) This Part applies to an allotment of shares to any
person by a Victorian company at another person's
5 direction, in discharge of an obligation to that
other person, whether that obligation arises as
consideration for the purchase of property by the
company or otherwise.
(2) This Part does not apply to--
10 (a) an allotment of shares by a Victorian
company that is listed on the Australian
Stock Exchange or a recognised stock
exchange;
(b) an allotment of shares at another person's
15 direction if the direction is given by the
underwriter in any contract for underwriting
shares upon the first issue of the shares by
the company.
98. When does a liability for duty arise?
20 A liability for duty charged by this Part arises
when the relevant shares are allotted.
99. When must duty be paid?
A tax default does not occur for the purposes of
the Taxation Administration Act 1997 if duty is
25 paid within 3 months after the liability to pay the
duty arises.
100. Who is liable to pay the duty?
Duty chargeable under this Part is payable by the
person to whom the relevant shares are allotted.
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101. Acquisition of shares by allotment
(1) A person to whom any shares are allotted in an
allotment to which this Part applies must lodge a
statement with the Commissioner in respect of the
5 allotment.
(2) The statement must be lodged within 3 months
after the shares are allotted.
102. Allotment statement
An allotment statement required to be lodged by a
10 person is to contain the following information--
(a) the name and address of the person;
(b) the name of the relevant company;
(c) the date on which the shares were allotted to
the person;
15 (d) any other information required by the
Commissioner for the purposes of this
Chapter.
103. Assessment of duty
An allotment to which this Part applies is
20 chargeable with duty at the rate of duty set out in
section 29 in respect of a transfer of marketable
securities on the dutiable value of the shares.
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CHAPTER 4
FINANCIAL SECTOR (TRANSFERS OF BUSINESS)
104. Imposition of duty
This Chapter charges duty in respect of the
5 transfer of dutiable property to a receiving body
under Part 3 of the Financial Sector (Transfers of
Business) Act 1999 of the Commonwealth.
105. When does a liability for duty arise?
A liability for duty charged by the Chapter arises
10 when the dutiable property becomes the property
of the receiving body5.
106. Who is liable to pay the duty?
Duty chargeable under this Chapter is payable by
the receiving body.
15 107. Statement on transfer of property
(1) A receiving body to whom dutiable property is
transferred under Part 3 of the Financial Sector
(Transfers of Business) Act 1999 of the
Commonwealth must lodge a statement with the
20 Commissioner.
(2) The statement must specify the dutiable property
transferred and the dutiable value of the dutiable
property at the time it becomes the property of the
receiving body.
25 (3) The statement must be lodged within 3 months
after the dutiable property becomes the property
of the receiving body.
108. Assessment of duty
A statement required to be lodged under this
30 Chapter by a receiving body is chargeable with
duty at the rate of duty set out in section 28 or 29,
as the case requires, on the dutiable value of the
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property as if the transfer of the dutiable property
to the receiving body were a dutiable transaction.
109. Exemption
Duty is not chargeable under this Chapter in
5 respect of a transfer of dutiable property if the
transfer is of a class that, under guidelines
approved for the time being by the Minister, is a
class of transfer in respect of which duty is not
chargeable.
10 _______________
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CHAPTER 5
LEASE INSTRUMENTS
PART 1--INTRODUCTION AND OVERVIEW
110. Imposition of duty
5 This Chapter charges duty on a lease instrument,
being an instrument that effects a lease (as defined
in section 111).
111. What is a "lease"?
"Lease" means--
10 (a) a lease of land in Victoria or an
agreement for a lease of land in
Victoria; or
(b) an assignment of such a lease or
agreement--
15 but does not include--
(c) a clause in a mortgage providing for
attornment by a mortgagor; or
(d) a clause in a contract of sale providing
for attornment by a purchaser under the
20 contract.
112. How duty is charged on a lease instrument
Duty is chargeable on a lease instrument at the
rates set out in this Chapter, on--
(a) the cost of the lease; and
25 (b) the additional cost of the lease resulting from
any variation of the lease--
as determined in accordance with this Chapter.
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113. What is the cost of a lease?
(1) The cost of a lease is the aggregate of the
following--
(a) the rent paid or payable during the term of
5 the lease or in advance of the lease and any
amount paid or payable for the right to use
the land under the lease;
(b) any premium paid or payable for the lease;
(c) any royalties payable under the lease,
10 including royalties for the right to enter onto
and remove something from the land.
(2) "Rent" includes any payment under the lease
expressed to be rent.
114. Who is liable to pay the duty?
15 (1) The person liable to pay the duty is the lessee.
(2) "Lessee" includes any assignee for the time being
of the rights of the lessee under the lease.
115. When must the duty be paid?
(1) A lease instrument becomes liable to duty on the
20 date of first execution.
(2) A lease instrument also becomes liable to duty on
the making of a variation to the lease that
increases the cost of the lease, being duty
chargeable on the amount of additional cost
25 resulting from the variation.
(3) Duty must be paid to the Commissioner within
3 months after the lease instrument becomes liable
to duty, except as otherwise provided by this
Chapter.
30 _______________
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PART 2--RATES OF DUTY
116. General rate
The rate of duty is 60 cents per $100 (or
remaining part of $100)--
5 (a) of the total cost of the lease, except as
otherwise provided by this Chapter; or
(b) in the case of an assignment, on the annual
rent payable under the lease as at the date of
assignment.
10 117. Subsequent lease instruments
A lease instrument made subsequently to and in
conformity with a lease instrument for which
ad valorem duty under this Chapter has been paid
is not chargeable with duty under this Chapter.
15 _______________
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PART 3--UNASCERTAINABLE LEASE COSTS
118. Operation of Part
(1) The object of this Part is to enable an
unascertainable component of the cost of a lease
5 to be determined as a definite sum for duty
assessment purposes.
(2) The amount of a cost component of a lease is
unascertainable if it cannot, at the time duty is
liable to be paid in respect of it, be ascertained as
10 a definite sum (so that, consequently, the total cost
of the lease over its whole term cannot at that time
be so ascertained).
(3) Cost components whose amounts are partly
unascertainable are to be dealt with under
15 section 119 or 120. Cost components whose
amounts are wholly unascertainable are to be dealt
with under section 121(2).
119. Estimate and subsequent adjustment
(1) This section applies in order to determine as a
20 definite sum any unascertainable cost components
of a lease, except where the Commissioner and the
lessee agree that section 120 should apply instead.
(2) The Commissioner is to make an initial estimate
of the cost of the lease.
25 (3) The initial estimate is to be the sum of--
(a) the amount of each cost component payable
in the course of the lease, so far as it is
ascertainable; and
(b) in respect of any interval in the term of the
30 lease in which the amount of a cost
component, although unascertainable, is
subject to a certain minimum rate--the
amount of the cost component that would be
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paid if it were payable at that minimum rate;
and
(c) in respect of any interval in the term of the
lease in which the amount of a cost
5 component is unascertainable and to which
paragraph (b) cannot be applied--the
amount of the cost component that would be
paid during the interval if it were payable at
the highest certain rate prevailing
10 immediately before the commencement of
the interval.
(4) Following the initial estimate, duty is to be paid to
the Commissioner on the cost of the lease
determined on the basis of an estimate under this
15 section of the relevant unascertainable cost
components.
(5) Periodic estimates are to be made, at the dates
("estimate dates") that the Commissioner,
having regard to the provisions of the lease,
20 determines, of the amount of any cost components
dealt with under this section payable during the
term of the lease, and periodic adjustments of duty
are to be made accordingly. A periodic estimate
and a periodic assessment of duty may be made
25 more than 3 years after the initial estimate.
(6) Within one month after each estimate date, the
lessee must produce to the Commissioner a duly
stamped part of the lease instrument and a
statutory declaration stating--
30 (a) the amount of each cost component dealt
with under this section that was paid
between the initial estimate date or the last
previous estimate, as the case may be, and
the date of the current estimate; and
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(b) the rate at which that cost component is
payable as at the date of the current estimate.
Penalty: 100 penalty units.
(7) If the amount of a cost component actually paid
5 during a period between estimation dates is higher
than the estimated amount so payable for that
period, the Commissioner may make a
reassessment of duty in respect of the lease for
that period and the balance of the term of the
10 lease, and the lessee must, within 3 months after
the date of issue of the notice of assessment, pay
any additional duty assessed.
(8) If the amount of a cost component actually paid
during a period between estimation dates is lower
15 than the estimated amount so payable for that
period, the Commissioner must, after the lessee
has complied with sub-section (6), make a refund
to the lessee of duty overpaid.
120. CPI method
20 (1) This section applies, if the Commissioner and the
lessee agree to apply it, in order to determine as a
definite sum any unascertainable amounts of any
particular cost component of a lease.
(2) The amount of the relevant cost component
25 payable during any interval of the term of the
lease for which it cannot be ascertained is taken to
be payable at an annual rate ascertained by
compounding the rate at which it is payable
during the first year of the lease by the annual
30 percentage increase in the Consumer Price Index
last issued before the commencement of the lease.
(3) If the rate at which the cost component is payable
is unascertainable for a part of the first year, the
rate for that year is to be calculated in accordance
35 with section 119(3)(b) and (c).
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(4) In this section, "Consumer Price Index" means
the number appearing in the Consumer Price
Index (All Groups Index) for Melbourne
published under the Census and Statistics Act
5 1905 of the Commonwealth.
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PART 4--MISCELLANEOUS
121. Interim stamping of lease instrument
(1) A lease instrument on which duty is assessed
under section 119 is to be marked "interim stamp
5 only".
(2) Section 30 applies to a lease instrument marked
"interim stamp only" in the same way as it applies
to a written instrument or written statement
referred to in that section marked "interim stamp
10 only".
122. Reassessment of duty--early termination
(1) A lessee may apply in writing to the
Commissioner for a reassessment of duty paid on
a lease instrument if the lease is terminated before
15 the end of its term. The means by which the lease
was terminated is immaterial.
(2) The application must be made within 3 years after
the termination and must be supported by the
documents and information specified by the
20 Commissioner.
(3) The Commissioner--
(a) if satisfied that the lease has been terminated
before the commencement of the term, must
refund the whole of the duty paid; or
25 (b) if satisfied that the lease has been terminated
early, must refund the difference between the
duty actually paid and the duty that would
have been payable if the lease had been
granted for a term equal to the period for
30 which the lease actually remained in force
before termination.
(4) Nothing in the Taxation Administration Act
1997 affects the operation of this section.
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123. Reassessment of duty--reduction of cost
(1) A lessee may apply in writing to the
Commissioner for a reassessment of duty paid on
a lease instrument if the lease is subsequently
5 varied so as to reduce the total cost of the lease.
(2) The application must be made within 3 years after
the initial assessment or 12 months after the
variation, whichever is the later, and must be
supported by the documents and information
10 specified by the Commissioner.
(3) The Commissioner, if satisfied that the lease has
been varied so as to reduce the total cost of the
lease, must refund the difference between the duty
actually paid and the duty that would have been
15 payable if the lease had been granted on the terms
as so varied.
(4) Nothing in the Taxation Administration Act
1997 affects the operation of this section.
124. Exemptions
20 (1) A lease instrument for any of the following leases
is not chargeable with duty under this Chapter--
(a) a mining lease; or
(b) a lease granted or assigned to--
(i) the Crown in right of Victoria; or
25 (ii) the Minister administering the Crown
Land (Reserves) Act 1978; or
(iii) the Minister administering the
Planning and Environment Act 1987;
or
30 (iv) a Corporation within the meaning of the
Transport Act 1983; or
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(v) a person on behalf of a public
department of Victoria or the
Commonwealth; or
(vi) a Council within the meaning of the
5 Local Government Act 1989; or
(vii) the Municipal Association of Victoria;
or
(viii) the Western Metropolitan Market
Trust; or
10 (ix) an authority within the meaning of the
Water Act 1989; or
(x) a person on behalf of any of the above
persons; or
(c) a lease granted or assigned--
15 (i) for a religious, charitable or educational
purpose; or
(ii) to a corporation or body of persons
established for a religious, charitable or
educational purpose; or
20 (iii) to a friendly society; or
(d) a lease granted or assigned to--
(i) the representative in Australia of the
government of another country; or
(ii) a foreign consul; or
25 (iii) a trade commissioner of any part of the
British Commonwealth; or
(e) a lease assigned under and in conformity
with the trusts contained in the will of a
deceased person or arising on an intestacy;
30 or
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(f) a lease under the Land Act 1958 or any
other enactment in respect of which a Crown
grant in fee simple is by law directed or
authorised to be made to the lessee on
5 payment of all amounts (whether referred to
as rent or otherwise) reserved by the lease
and on compliance with the other covenants
of the lease; or
(g) a lease assigned by a company to a
10 shareholder in the course of a distribution of
assets of the company because of the
winding up of the company or of the
reduction of the capital of the company; or
(h) a lease or assignment of lease of land for use
15 only as a private dwelling.
(2) No duty is chargeable under this Chapter in
respect of--
(a) a sub-lease or assignment of lease made by
any person as security; or
20 (b) a re-assignment of the lease to that person.
(3) In this section, "mining lease" includes any
agreement for the right to enter on or occupy and
use land for mining purposes.
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CHAPTER 6
HIRE OF GOODS
PART 1--INTRODUCTION AND OVERVIEW
125. Imposition of duty
5 This Chapter charges duty on the hire of goods if
the person hiring out the goods is a commercial
hire business.
126. What is a commercial hire business?
(1) A "commercial hire business" is a person who
10 hires out goods as a business.
(2) It is immaterial whether or not the hiring out of
the goods is the principal business or is ancillary
to some other form of business, and whether or
not any such principal or ancillary business is
15 carried on wholly or partly outside Victoria.
127. Hire of goods to which this Chapter applies--
jurisdictional nexus
(1) This Chapter applies to the hire of goods only if
the goods are used solely or predominantly in
20 Victoria during any return period in respect of
which a liability to duty is required to be
determined.
(2) A motor vehicle, however--
(a) if it is the subject of an equipment financing
25 arrangement, is taken to be used, at all times
in the course of that arrangement, in the
State or Territory under whose law it is
registered; and
(b) if it is not the subject of an equipment
30 financing arrangement but is hired, is taken
to be used at all times in the course of the
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hire (unless it becomes the subject of an
equipment financing arrangement), in the
State or Territory in which the motor vehicle
is initially delivered under the hire.
5 (3) If goods hired under a hire of goods are not used
or to be used solely or predominantly in any
particular State or Territory, the goods are taken
to be predominantly used or to be used in Victoria
if, under the hire of goods, the goods are initially
10 delivered in Victoria.
(4) For the purposes of this section, goods are
predominantly used or to be used in Victoria if
they are used or to be used more in Victoria than
in any other single State or Territory.
15 128. What are "goods"?
For the purposes of this Chapter, "goods"
includes all chattels personal and fixtures
severable from realty, but does not include money,
livestock or things in action.
20 129. What is a "hire of goods"?
(1) A "hire of goods" is an arrangement under which
goods are or may be used at any time by a person
other than the person hiring out the goods, unless
the arrangement is excluded under section 132.
25 (2) There are 2 kinds of hire of goods, namely--
(a) an equipment financing arrangement; and
(b) an ordinary (that is, any other) hire of goods.
130. What is an "equipment financing arrangement"?
(1) An "equipment financing arrangement" is a
30 hire of goods that consists of--
(a) a hire purchase agreement; or
(b) some other agreement for a term of not less
than 9 months.
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(2) A "hire purchase agreement" is a letting of
goods with an option to purchase and an
agreement for the purchase of goods by
instalments (whether the agreement describes the
5 instalments as rent or hire or otherwise), but does
not include any agreement by which the property
in the goods comprised in the agreement passes at
the time of the agreement or on or at any time
before the delivery of the goods.
10 131. What form may a hire of goods take?
A hire of goods may take any form. It is
immaterial whether or not a hire of goods is
effected or evidenced by an instrument in writing.
132. Exclusions from the definition of "hire of goods"
15 A hire of goods does not include any of the
following--
(a) an arrangement that gives a person a right to
use goods that is conferred incidentally with
a lease of, or a licence to occupy or use, land
20 if--
(i) there is no apportionment of
consideration between the right to use
the goods and the right to occupy or use
the land; and
25 (ii) duty is chargeable under Chapter 5
(Lease instruments) in respect of the
lease;
(b) an arrangement for the hire of an aircraft,
ship or vessel, or for the hire of an engine or
30 other component part of an aircraft, ship or
vessel;
(c) an arrangement for the provision of goods to
a trader for the purpose of displaying or
demonstrating the goods pending their sale
35 or hire to a third party;
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(d) an arrangement comprising a "wet hire" (that
is, an arrangement under which an operator
is provided by or at the direction of the
person hiring out the goods to operate the
5 goods for the hirer);
(e) an arrangement for the use of goods the
provision of which is incidental and ancillary
to the provision of a service if the provision
of the goods is solely to enable the
10 contractual provision of the service;
(f) an arrangement made between related bodies
corporate;
(g) an arrangement under which a motor vehicle
is subleased by an employee to an employer
15 in connection with the employee's
remuneration or other employment benefits;
(h) an arrangement for the use, by a person who
is partially or totally incapacitated, of an
invalid aid or prosthetic device or of any
20 similar aid, device or appliance;
(i) a credit contract within the meaning of the
Consumer Credit (Victoria) Code under
which the amount of credit does not exceed
$35 000;
25 (j) a hire purchase agreement relating to the use
of farm machinery or a commercial vehicle
where the purchaser is a natural person;
(k) an arrangement relating to the use of--
(i) a book; or
30 (ii) an electricity, gas or water meter; or
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(iii) a caravan that is to remain on site.
133. Special hiring agreements
A "special hiring agreement" is a written
agreement for the hire of goods--
5 (a) that describes the goods in such a way (for
example, by reference to the make and
model of each item) as to enable the nature
or character of the goods to be clearly and
readily identified, including the number of
10 items; and
(b) that does not include--
(i) an agreement under which the goods
may, at any time, be replaced in whole
or in part by other goods, except to the
15 extent that the agreement allows
replacement if the goods--
(A) are lost, destroyed or stolen; or
(B) fail or malfunction in the normal
course of operation or use; or
20 (C) are temporarily replaced during
the servicing, maintenance or
repair of the goods; or
(D) are otherwise not fit for the
purpose for which they are hired;
25 or
(ii) an agreement under which other goods,
whether of the same or a different type,
may be additionally provided.
134. What is the rate of duty?
30 (1) The duty chargeable on a hire of goods is 0!75%
of the total amount of the hiring charges.
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(2) The maximum amount of duty chargeable in
respect of a special hiring agreement is $10 000.
135. What are "hiring charges"?
(1) "Hiring charges" are payments made to the
5 person who hires out the goods by or on behalf of
the hirer, for (or that arise as an incident of) the
hire of the goods.
(2) The following charges are included as hiring
charges--
10 (a) payments for damage waiver or for damage
excess;
(b) late return fees.
136. Payments exempted from "hiring charges"
(1) The following charges are not included as hiring
15 charges--
(a) payments for delivery, repositioning,
erection, installation, maintenance or
cleaning of the goods;
(b) refundable cash deposits or bonds (unless
20 appropriated as hiring charges);
(c) insurance premiums payable by the hirer;
(d) duty paid or payable under this Act or a
corresponding Act;
(e) payments for the sale of goods (such as fuel,
25 replacement parts or theft replacement);
(f) any GST payable on the supply to which the
hire of goods relates;
(g) any payment of a type prescribed by the
regulations.
30 (2) No duty is chargeable under this Chapter on a
payment by the hirer under a hire of goods if title
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to the goods passes to the hirer as a consequence
of the payment.
137. Credit for duty paid in another Australian jurisdiction
(1) The duty chargeable under this Chapter on a hire
5 of goods is to be reduced by the amount of duty
paid on the hire under a corresponding Act that
charges duty at a rate that equals or exceeds the
rate referred to in section 134.
(2) Despite sub-section (1), the duty on a special
10 hiring agreement that is chargeable with the
maximum amount of duty of $10 000 cannot be
reduced below $6000.
138. Splitting or redirection of hiring charges (anti-
avoidance provision)
15 The Commissioner may include, as part of the
amount received as hiring charges, any of the
following--
(a) any payments under the arrangement that are
not hiring charges, including charges
20 referred to in section 136, that the
Commissioner is satisfied have been
increased for the purpose of minimising duty
under this Chapter;
(b) any payments that would be hiring charges
25 except for the fact that they are paid to a
person other than the person who hires out
the goods.
139. Ascertainment and disclosure of place of use of goods
(1) A person who hires out goods may, in determining
30 the person's liability to duty, rely on a statement of
the hirer as to where the goods will be solely or
predominantly used in the course of the hire or, in
the case of an unregistered motor vehicle, where
the motor vehicle will be registered during the
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course of the hire, unless the person knows that
the statement is false.
(2) A person who hires out goods is not bound to
inquire as to any change in the place of use of the
5 goods or, in the case of a motor vehicle, the place
of its registration.
(3) If goods are solely or predominantly used or, in
the case of a motor vehicle, are registered in a
place other than the place advised by the hirer in a
10 statement referred to in sub-section (1), the
Commissioner may assess or reassess the duty
payable according to the actual place of sole or
predominant use of the goods or, in the case of a
motor vehicle, the place of its registration.
15 (4) A failure to pay duty on the hire of goods by a
person who hires out the goods in due reliance on
a statement referred to in sub-section (1), is not a
tax default for the purposes of the Taxation
Administration Act 1997, if the duty is paid
20 within 3 months after the issue of a notice of
assessment of the duty.
(5) A hirer who knowingly falsely represents to the
person who hires out goods (or to any person
acting for that person) that the goods will be used
25 solely or predominantly outside Victoria is guilty
of an offence.
Penalty: 100 penalty units.
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PART 2--REGISTRATION OF COMMERCIAL HIRE
BUSINESSES AND PAYMENT OF DUTY
140. Commercial hire businesses must be registered
(1) A commercial hire business must be registered
5 under this Part if, in any month, the total amount
of the hiring charges received in the month
exceeds $6000.
(2) An application for registration must be made
within 21 days after the end of the month in which
10 the $6000 threshold is first exceeded.
Penalty: 100 penalty units.
141. Registration of commercial hire businesses
(1) The Commissioner must register a commercial
hire business that applies in the approved form for
15 registration under this Part.
(2) The Commissioner may register a commercial
hire business that has not applied for registration.
(3) The Commissioner must give written notice to the
commercial hire business of the registration.
20 142. Cancellation of registration of commercial hire
business
(1) A registered commercial hire business that ceases
to hire out goods as a business must--
(a) give written notice of that fact to the
25 Commissioner; and
(b) lodge the return required to be lodged under
this Part; and
(c) pay the duty payable in connection with the
return on or before the 21st day of the month
30 after which the notice is given.
Penalty: 100 penalty units.
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(2) The Commissioner is to cancel the registration of
a commercial hire business on receipt of a notice
under sub-section (1).
(3) The Commissioner may cancel a commercial hire
5 business's registration under this Part if the
Commissioner has reason to believe that
registration is no longer required by the
commercial hire business. The registration must
not be cancelled until at least 30 days after written
10 notice of intention to cancel the registration has
been given by the Commissioner to the
commercial hire business.
(4) A cancellation of registration has effect from the
day specified for the purpose by the
15 Commissioner in a written notice of cancellation
given to the commercial hire business.
143. Register of commercial hire businesses
(1) The Commissioner must keep a register of the
commercial hire businesses who are registered
20 under this Part.
(2) Anyone may inspect the register without charge at
the Commissioner's principal office during the
hours that the office is open to the public.
144. Duty base
25 (1) Duty under this Chapter is to be assessed on the
total amount of the hiring charges received in a
month by the commercial hire business.
(2) The Commissioner may, however, by notice in
writing approve a different basis of calculation of
30 hiring charges if it appears to the Commissioner
that duty payable on that basis will, over a period
of time, approximate the duty payable in
accordance with sub-section (1). An amount
calculated under any method so approved is taken
35 for duty purposes, while the approval remains in
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force, to be the amount of hiring charges received.
Such an approval may be revoked by the
Commissioner at any time by notice in writing to
the commercial hire business concerned.
5 (3) A registered commercial hire business can, with
the Commissioner's written consent, change the
basis (as between a receipts basis and an approved
basis) from month to month but it cannot change
the basis within a month.
10 (4) If consent is given under sub-section (3), the
Commissioner may assess or reassess the duty
payable in any period prior to the change of basis
to include any hiring charges that would not be
accounted for, or to exclude any hiring charges
15 that would be accounted for twice, because of the
change of basis.
145. Lodgement of returns and payment of duty
(1) A commercial hire business must, on or before the
21st day of each month--
20 (a) lodge a return with the Commissioner; and
(b) pay to the Commissioner the appropriate
amount of duty calculated in accordance
with section 134 in respect of the previous
month, subject to the duty-free threshold in
25 sub-section (2).
(2) A duty-free threshold of $6000 per month applies
in respect of hiring charges received from hires
that are not special hiring agreements (that is, duty
is payable only on such part of the total amount of
30 those charges as exceeds $6000).
(3) The Commissioner may by notice in writing
approve of the lodgement by a commercial hire
business of returns in respect of a period of more
than one month, and in such a case--
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(a) the return must be lodged, and the duty paid,
on or before the 21st day of the month
following the last month to which the return
relates; and
5 (b) the duty payable on the return is the sum of
the duties payable on a monthly basis in
accordance with this section for each month
to which the return relates.
(4) A commercial hire business may elect to pay the
10 duty payable on a special hiring agreement by
lodging a statement under section 147. In that
event, returns under this section in respect of the
agreement are not necessary.
(5) If, in relation to a special hiring agreement--
15 (a) a commercial hire business makes an
election under sub-section (4); and
(b) the special hiring agreement is terminated
before the expiry of the term expressed in the
agreement--
20 the commercial hire business may request a
reassessment of duty as if the duty had been paid
on a return under this section.
146. Statement of special hiring agreement
(1) A commercial hire business may make out a
25 written statement in respect of a special hiring
agreement if the total amount of hiring charges
paid or payable for the hire of the goods is not less
than $10 000.
(2) The statement must include the following--
30 (a) the name and address of each party;
(b) a description of the goods;
(c) the commencement date and the term of the
hire;
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(d) the total of the hiring charges paid or payable
over the term of the hire;
(e) the intervals at which the hiring charges are
paid or payable.
5 (3) The statement must be made out not later than--
(a) the time when the commercial hire business
receives the first (or only) payment of hiring
charges; or
(b) the time when the hiring charges become
10 payable--
whichever first occurs.
147. Lodgement of statement and payment of duty
If a statement is made out in accordance with
section 146, the commercial hire business must--
15 (a) lodge the statement with the Commissioner;
and
(b) pay to the Commissioner the appropriate rate
of duty calculated under section 134 in
respect of hiring charges for the whole
20 period of the hire--
within 3 months after the statement is made out.
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CHAPTER 7
MORTGAGES
PART 1--INTRODUCTION AND OVERVIEW
148. Imposition of duty
5 This Chapter charges duty on instruments that are
mortgages.
149. What is a "mortgage"?
For the purposes of this Chapter, an instrument is
a "mortgage" if it is--
10 (a) a security by way of mortgage or charge over
property wholly or partly in Victoria at the
date referred to in section 152(1) or (2); or
(b) a security by way of a transfer of any
property in Victoria held in trust to be sold
15 or otherwise converted into money and
redeemable before the sale or conversion,
except if the transfer is for the benefit of
creditors who accept it in full satisfaction of
debts owed to them; or
20 (c) any transfer, assignment or disposition of
any estate or interest in property that is
apparently absolute but intended only as a
security; or
(d) an instrument that, on the deposit of
25 documents of title, authority to control title
or a pledge to provide that control, to
property in Victoria becomes a mortgage or
evidences the terms of a mortgage.
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150. What is an advance?
(1) For the purposes of this Chapter, an "advance" is
the provision or obtaining of funds by way of
financial accommodation by means of--
5 (a) a loan that is--
(i) an advance of money; or
(ii) the payment of money for or on
account of, or on behalf of, or at the
request of, any person; or
10 (iii) a forbearance to require the payment of
money owing on any account; or
(iv) any transaction in any form that in
substance effects a loan of money; or
(b) a bill facility that is one or more agreements,
15 understandings or arrangements because of
which a bill of exchange or promissory
note--
(i) is drawn, accepted, endorsed or made;
and
20 (ii) is held, negotiated or discounted to
obtain funds--
whether or not the funds are obtained from
the person who draws, accepts, endorses or
makes the bill of exchange or promissory
25 note or from a person who is a party to any
such agreement, understanding or
arrangement.
(2) An advance includes a contingent liability referred
to in section 158.
30 151. Who is liable to pay the duty?
The person liable to pay mortgage duty is the
mortgagor or the person who gives the mortgage.
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152. When does a liability arise?
(1) A mortgage is liable to duty on the date of its first
execution.
(2) A mortgage is liable to duty on the making of an
5 advance or further advance by which the amount
secured by the mortgage exceeds the amount
secured by it at the date a liability to duty last
arose in respect of it.
(3) An instrument of security that is not stamped and
10 affects property in Victoria only after the date of
first execution is liable for duty as a mortgage on
the date on which it first affects the property
unless it is stamped in another Australian
jurisdiction.
15 (4) An instrument that, on the deposit of documents
of title, authority to control title or a pledge to
provide that control, to property in Victoria or
instruments creating a charge on property in
Victoria, becomes a mortgage or evidences the
20 terms of a mortgage is liable to duty as a mortgage
on the deposit of the documents or instruments or
the provision of authority to control title or a
pledge to provide such control.
153. When must duty be paid?
25 A tax default does not occur for the purposes of
the Taxation Administration Act 1997 if duty is
paid within 3 months after the liability to pay the
duty arises.
154. How is mortgage duty charged?
30 (1) The amount of duty chargeable on a mortgage is
determined by the amount secured by it as
calculated under Part 2.
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(2) The amount of duty is--
(a) $4 if no amount is secured by the mortgage
or if the amount secured is not more than
$10 000; or
5 (b) if the amount secured by the mortgage
exceeds $10 000, $4 for the first $10 000 and
$0.80 for every $200, or part, by which the
amount secured exceeds $10 000.
(3) The amount of duty chargeable on a mortgage in
10 respect of an advance or further advance is--
(a) determined on the amount secured by it as
calculated under Part 2; and
(b) the amount of duty applicable as provided in
sub-section (2).
15 155. Consequences of non-payment of duty
(1) A mortgage over property wholly within Victoria
on which duty is required to be paid under this
Chapter is enforceable only to the extent of the
amount secured by the mortgage on which duty
20 has been paid under this Act.
(2) A mortgage over property partly within and partly
outside Victoria on which duty is required to be
paid under this Chapter and under a corresponding
Act, is enforceable only with respect to the
25 amount secured by the mortgage as calculated in
accordance with the following formula--
AV + AC
EA = DP ×
TA
where--
EA is the amount secured in respect of which the
30 mortgage is enforceable;
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DP is the dutiable proportion of the amount
secured calculated in accordance with
section 159(2) and (3);
AV is that part of the total amount secured on
5 which duty has been paid under this Chapter;
AC is that part of the total amount secured on
which duty has been paid under a
corresponding Act;
TA is the total amount secured by the mortgage.
10 (3) Sub-section (2) does not apply if--
(a) the dutiable proportion calculated in
accordance with section 159(2) and (3) is not
incorrect by more than 5%; and
(b) the non-payment of duty was neither
15 intentional nor negligent.
156. Where is property located?
(1) For the purposes of this Chapter, property in the
following forms is taken to be located in the place
specified--
20 (a) shares in or securities of a body corporate, in
the place of incorporation of the body
corporate;
(b) units in a unit trust scheme--
(i) in the place where the register on which
25 the units are registered is kept; or
(ii) in the place of residence of the manager
or responsible entity of the unit trust
scheme, if the register on which the
units are registered is not kept in
30 Australia;
(c) debt securities of a Government of a State or
Territory, in the State or Territory
concerned.
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(2) The place of incorporation of a body corporate
that is a company is the State or Territory under
the Corporations Law of which the company is
registered.
5 _______________
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PART 2--CALCULATING THE AMOUNT SECURED BY A
MORTGAGE
157. Secured amount
(1) A mortgage is chargeable with duty assessed on
5 the amount of any advances secured by it.
(2) If duty of $4 is paid or taken to be paid in respect
of a mortgage, the mortgage is taken to secure an
amount of $10 000.
(3) If the amount of advances for the time being
10 secured by the mortgage exceeds the amount on
which duty was chargeable at an earlier time, the
mortgage is chargeable with duty assessed on the
amount by which the advances secured by it
exceeds the amount on which duty was chargeable
15 under sub-section (1).
(4) If several mortgages over the same property are
executed to secure the same advance--
(a) only one is chargeable with duty under this
Chapter; and
20 (b) the Commissioner may denote the payment
of the duty on the other mortgages.
(5) If the duty chargeable on a mortgage depends on
duty paid on another instrument, the
Commissioner may denote the payment of the
25 duty so paid on the mortgage.
158. Contingent liabilities
(1) A mortgage used or capable of being used,
whether directly or indirectly, to recover the
whole or any part of an amount contingently
30 payable in connection with an advance--
(a) by a guarantor or indemnifying party under a
guarantee or indemnity; or
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(b) by another party under another instrument of
a different kind--
is chargeable with duty as if the amount of the
contingent liability were a separate advance
5 secured by the mortgage.
(2) A reference in sub-section (1) to a contingent
liability is a reference to a contingent liability
limited to the amount of any advance by a party
referred to in sub-section (1) and does not include
10 a reference to any other kind of contingent
liability.
(3) This section--
(a) does not apply if the Commissioner is
satisfied that there is no connection between
15 the mortgage and any advance by any party
to the arrangements;
(b) does not require duty to be paid more than
once in respect of an advance.
159. Mortgages over property not wholly within Victoria
20 (1) Duty chargeable in respect of a mortgage over
property that is partly within Victoria and partly
outside Victoria is to be assessed as if the amount
secured by it were only the dutiable proportion.
(2) The dutiable proportion is to be calculated in
25 accordance with the following formula--
V
DP = AS ×
T
where--
DP is the dutiable proportion;
AS is the amount secured by the mortgage on
30 which duty is charged at the date of the
advance or further advance;
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V is the value of the property in Victoria
affected by the mortgage;
T is the value of all property affected by the
mortgage, excluding property within a
5 Territory or outside Australia
(3) The dutiable proportion is to be calculated by
reference to the values of the properties according
to any referrable point specified in sub-section (4).
(4) A referrable point is any of the following prepared
10 within 12 months preceding the date referred to in
section 152(1) or (2)--
(a) an independent valuation of the secured
property;
(b) a statement of the mortgagee based on
15 information obtained by the mortgagee in
determining to make the advance to the
mortgagor;
(c) property valuations used by the mortgagor in
preparing an annual return to be lodged
20 under the Corporations Law;
(d) financial reports of the mortgagor certified
by an independent auditor as presenting a
true and fair view of the company's financial
position;
25 (e) agreed valuations for property that form the
basis of policies of insurance of the
mortgagor;
(f) any other approved method.
(5) If there are 2 or more referrable points in relation
30 to a mortgage, the referrable point is the later or
latest of those referrable points.
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(6) The referrable point is the same referrable point
used or to be used to determine liability to duty at
the date referred to in section 152(1) or (2) under
a corresponding Act.
5 (7) Evidence of the location and percentage value of
any property is to be made by either party to the
mortgage by way of a statement in the approved
form.
(8) A mortgage or a statement made under sub-
10 section (7) may be endorsed with duty on the
basis of evidence contained in the statement.
(9) If a statement is endorsed under sub-section (8),
the mortgage may be endorsed at any time--
(a) as being stamped to the amount evidenced
15 by the duty paid on the statement; and
(b) by showing--
(i) the percentage of the property in
Victoria securing the loan; and
(ii) the total amount secured by the loan.
20 160. Advances secured by mortgage package
(1) If, at a date referred to in section 152(2), there are
several instruments of security (at least one of
which is a security affecting property wholly or
partly outside Victoria and at least one of which is
25 a mortgage) that secure or partly secure the same
advance at that date, those instruments are to be
treated as a "mortgage package".
(2) Duty on a mortgage package is assessable in
accordance with this Part as if the several
30 instruments comprised in the package were one
mortgage first executed on the last of their several
dates of execution.
(3) If 2 or more mortgages over property within
Victoria form part of the security for a mortgage
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package, one of those mortgages is to be stamped
with the duty payable under this Act and the
remaining mortgages are to be stamped as
collateral mortgages.
5 (4) Evidence of the location and percentage value of
any property is to be made by either party to the
mortgage by way of the statement referred to in
section 159(7) and section 159(8) and (9) apply to
the statement.
10 (5) If a person has made a statement under
section 159(7) or under a corresponding section of
a corresponding Act providing details that a
mortgage over property in Victoria executed or to
be executed after a date referred to in
15 section 152(2) was intended to be part of a
mortgage package, the mortgage is taken to be
part of a mortgage package.
(6) If a person makes an application for the stamping
of a mortgage referred to in sub-section (1) and
20 one or more of the other intended mortgages in the
mortgage package has not yet been executed, the
executed mortgage, until all the intended
mortgages are executed, when stamped is security
only for that amount of the advance to which the
25 proportion of the property secured by all the
executed mortgages bears to the total of the
property expressed to secure the advance.
(7) The Commissioner may endorse the executed
mortgage to indicate the proportion of the advance
30 secured by the mortgage pending the execution of
the other intended mortgages.
(8) If a mortgage secures the same advance as a
mortgage package in respect of which duty has
been paid under this Chapter and the mortgage is
35 not part of a mortgage package, the mortgage is
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taken to be a collateral mortgage in respect of that
advance.
161. Stamping before advance
(1) A mortgage may be stamped before an advance
5 whether or not an earlier advance has occurred.
(2) A mortgage referred to in section 159 or 160 may
be stamped to secure any amount exceeding that
to which it is already stamped based on the
dutiable proportion at the time of stamping.
10 (3) A mortgage stamped under sub-section (2) is--
(a) duly stamped; and
(b) not required to be stamped in accordance
with section 159 again until an advance
brings the total amount secured above the
15 amount to which it is already stamped.
(4) Section 160(5) and (6) apply to a mortgage
package stamped before an advance.
162. Security
(1) A stamped mortgage or a collateral mortgage that
20 was, but is no longer, part of the same mortgage
package and no longer secures the same money
secured by that package is not security for any
other money unless duty in respect of the other
money has been paid.
25 (2) The withdrawal of a mortgage from a mortgage
package will not affect the amount to which the
remaining mortgage or mortgages are security for.
163. Exchange of information
The Commissioner may provide information
30 relating to any statement in respect of any
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mortgage package or mortgage referred to in
section 159(1) to any person the Commissioner
considers is connected with the administration of
this Chapter or the corresponding provisions of a
5 corresponding Act.
164. Collection of duty and endorsement of instruments
The Commissioner, or a person authorised by the
Commissioner, may--
(a) collect any duty payable under this Chapter;
10 and
(b) endorse mortgages with a stamp showing--
(i) the percentage of property in Victoria
securing the loan; and
(ii) the total amount secured by the
15 mortgage.
165. Collateral securities
(1) If a mortgage or other security secures all or part
of the same money--
(a) as a mortgage that has been duly stamped
20 under this Act or under a corresponding Act;
or
(b) as another security instrument duly stamped
with ad valorem duty in Victoria--
the collateral security is not chargeable with duty
25 in respect of that part of the amount secured by it
that is secured by that stamped mortgage or
security instrument.
(2) The Commissioner, or a person authorised by the
Commissioner, may endorse a collateral security
30 with a stamp showing the duty paid in respect of
the amount secured by the principal security.
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(3) A reference to a mortgage or security instrument
duly stamped includes a reference to a mortgage
package stamped in accordance with section 160.
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5
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PART 3--DUTY CONCESSIONS
166. Refinancing of loans
(1) In this section--
"refinancing mortgage" means a mortgage that
5 secures the amount of the balance
outstanding immediately before the
execution of that mortgage under an earlier
duly stamped mortgage to the same borrower
(whether over the same property or a
10 property previously owned by the borrower)
that is discharged or to be discharged as part
of the arrangements for the new mortgage.
(2) For the purposes of sub-section (1), mortgages are
created to secure an advance to the same borrower
15 if, either directly by the mortgages themselves or
indirectly through one or more collateral
arrangements, the same person obtains the
advances secured by them.
(3) A refinancing mortgage is taken to have been
20 stamped with ad valorem duty as a mortgage in
respect of the amount required to discharge the
earlier mortgage (being an amount in relation to
which mortgage duty has been paid or in relation
to which an exemption from duty has been
25 obtained), except as provided by sub-section (5).
(4) If an advance is refinanced by more than one
lender, so that mortgages given to the lenders
together secure the balance outstanding under an
earlier mortgage, the definition of "refinancing
30 mortgage" in sub-section (1) is to be construed as
though--
(a) the reference to a mortgage securing the
outstanding balance were a reference to the
aggregate of such mortgages; and
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(b) each lender were the holder of a refinancing
mortgage.
(5) If, as provided by sub-section (4), each of a
number of lenders is the holder of a refinancing
5 mortgage, a refinancing mortgage held by each
lender is taken to have been duly stamped with
ad valorem duty as a mortgage in respect of an
amount equal to the same proportion of the
amount required to discharge the earlier mortgage
10 as the amount secured by that mortgage bears to
the total amount secured by the refinancing
mortgages held by all the lenders.
(6) If each of 2 or more refinancing mortgages
severally secures the same advance--
15 (a) the provisions of sub-section (3) or (5), as
the case may be, apply to such one of the
mortgages as the Commissioner determines;
and
(b) no duty is chargeable in respect of any of the
20 others (insofar as it is a refinancing
mortgage) but the Commissioner may denote
any of them in the approved manner.
(7) For the purposes of section 165--
(a) a refinancing mortgage that is taken, by the
25 operation of sub-section (3) or (5), to be duly
stamped is in either case a stamped
mortgage; and
(b) duty is taken to have been paid on it to the
extent provided by whichever of those sub-
30 sections applies.
(8) Duty at the rate of $0.80 per $200 or part of $200
is payable on the amount by which the advance
made under a refinancing mortgage (not being a
mortgage on which, by virtue of sub-section
35 (6)(b), no duty is chargeable) exceeds--
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(a) the amount required to discharge the earlier
mortgage; or
(b) the proportion of that amount referred to in
sub-section (5), in the case of a refinancing
5 to which sub-section (4) applies.
(9) If the number of original borrowers is reduced, the
remaining borrower or borrowers is or are taken to
be the same borrower or the same person for the
purposes of sub-section (1) or (2).
10 167. Eligible mortgages under concession schemes
(1) Subject to this section, no duty is chargeable
under this Chapter on an eligible mortgage.
(2) An "eligible mortgage" is--
(a) a mortgage given by an eligible pensioner or
15 an eligible first home owner securing an
advance used or proposed to be used--
(i) for the purchase of an estate in fee
simple in land, if he or she is entitled
under Division 5 of Part 5 of Chapter 2
20 to an exemption or concession from
duty on the transfer of the land; or
(ii) for the construction of a dwelling on
that land; or
(b) a re-financing mortgage (within the meaning
25 of section 166) in respect of a mortgage
referred to in paragraph (a).
(3) This section applies only to that part of the
amount secured by an eligible mortgage that is
used or proposed to be used for the purpose of
30 purchasing the land or the construction of a
dwelling on the land.
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(4) For the purposes of assessing duty in respect of
any further advances secured by an eligible
mortgage, duty is taken to have been paid on the
part of the amount secured that is referred to in
5 sub-section (3).
(5) If a person--
(a) represents to a tax officer that a mortgage is
not chargeable with duty, or is chargeable
with less duty, because of this section; and
10 (b) is convicted of an offence against section 57
of the Taxation Administration Act 1997
as a consequence--
the person is liable, by way of further penalty, to
pay an amount equal to double the amount of duty
15 that, but for the offence, would have been payable,
less any amount of duty that the person did pay.
(6) The penalty in sub-section (5) is in addition to any
penalty tax or interest that may be payable under
the Taxation Administration Act 1997.
20 _______________
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PART 4--EXEMPT INSTRUMENTS
168. Exempt mortgages and supporting instruments
(1) This Chapter does not apply to--
(a) a mortgage executed before 4 January 1965;
5 or
(b) a mortgage that is not chargeable with duty
under this Act.
(2) Other instruments that are exempt from payment
of mortgage duty are--
10 (a) a mortgage made or given by--
(i) a registered co-operative society or
registered co-operative housing society;
or
(ii) a body that is permitted to use the
15 expression "credit union" under
section 66 of the Banking Act 1959 of
the Commonwealth;
(b) a mortgage given by a corporation or body of
persons incorporated or associated for a
20 religious, charitable or educational purpose;
(c) a mortgage or foreign security made or given
by--
(i) a Government of the Commonwealth or
of another State or of a Territory; or
25 (ii) a public statutory authority constituted
under the law of Victoria, other than a
declared public statutory authority
under sub-section (3); or
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(iii) a public statutory authority constituted
under the law of the Commonwealth or
of another State or of a Territory; or
(iv) the Municipal Association of Victoria;
5 (d) a lien on a crop registered under Part VII of
the Instruments Act 1958;
(e) a lien on wool or mortgage of stock
registered under Part VIII of the
Instruments Act 1958;
10 (f) a mortgage given to the Victorian
WorkCover Authority;
(g) a mortgage given to a recognised institution
within the meaning of the Trustee Act 1958,
being a mortgage of a mortgage or a
15 mortgage by way of deposit of a mortgage.
(3) For the purposes of sub-section (2)(c)(ii), the
Governor in Council, by Order published in the
Government Gazette, may declare a public
statutory authority constituted under the law of
20 Victoria to be a declared public statutory
authority.
169. Mortgages associated with certain credit contracts
(1) If--
(a) a mortgage secures an amount advanced
25 under a consumer credit contract and no
other advances; and
(b) the total amount advanced under the
consumer credit contract does not exceed
$35 000--
30 the mortgage is exempt from mortgage duty.
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(2) If--
(a) a mortgage secures an amount advanced
under a consumer credit contract and another
advance; and
5 (b) the total amount advanced under the
consumer credit contract does not exceed
$35 000--
mortgage duty is not chargeable on the mortgage
in relation to the amount advanced under the
10 consumer credit contract.
(3) If--
(a) a mortgage secures an amount advanced
under a consumer credit contract (whether or
not it also secures any other advance); and
15 (b) the total amount advanced under the
consumer credit contract exceeds $35 000--
the whole of the amount advanced under the
consumer credit contract comprises or forms part
of the advances secured by the mortgage.
20 (4) An exemption provided by sub-section (1) or (2)
is not available to the extent to which the
consumer credit is provided for the purposes of--
(a) the acquisition of a private dwelling house or
land on which to erect a private dwelling
25 house; or
(b) the erection of a private dwelling house or
the addition of accommodation to a private
dwelling house.
(5) In this section--
30 "consumer credit" means credit regulated under
the Consumer Credit Code;
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"Consumer Credit Code" means--
(a) the provisions of the Code by that name
set out in the Appendix to the
Consumer Credit (Queensland) Act
5 1994 of Queensland, as applied and in
force in any State or Territory; or
(b) the provisions of an Act of a State or
Territory that are in the same, or
substantially the same, terms as that
10 Code;
"private dwelling house" means--
(a) a building that is designed, or is
designed principally, as a separate
residence for one family or person; or
15 (b) an apartment, flat or other part of a
building that is so designated.
170. Farm machinery and commercial vehicles
Mortgage duty is not chargeable on so much of an
advance to a natural person for the acquisition of
20 farm machinery or a commercial vehicle as is
secured by the mortgage.
171. Certain debentures and related instruments
(1) Mortgage duty is not chargeable on a mortgage
solely securing the repayment of advances arising
25 from the issue by a financial corporation or a
related corporation of a debenture.
(2) Mortgage duty is not chargeable on a mortgage in
respect of advances arising from the issue by a
financial corporation or a related corporation of a
30 debenture if the mortgage secures in part the
repayment of those advances.
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(3) This section applies to a debenture issued, or a
mortgage executed, by a related corporation only
in so far as the debenture is issued, or the
mortgage is executed, for the purposes of raising
5 funds to be used for a financial corporation.
(4) In this section--
"financial corporation" means a corporation
whose sole or principal business is providing
finance to the public, including making loans
10 to the public;
"related corporation", in relation to a particular
financial corporation means a corporation
that is, with respect to the financial
corporation, a related body corporate within
15 the meaning of the Corporations Law.
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PART 5--MISCELLANEOUS
172. Payment of duty on mortgages associated with
debenture issues
(1) This section applies if--
5 (a) a corporation is or will be under a liability to
repay money received or to be received by it
in respect of its debentures; and
(b) the repayment is secured by a mortgage; and
(c) the corporation is a party to an instrument of
10 trust relating to the debentures.
(2) If the corporation and the trustee for the debenture
holders give a written undertaking in the approved
form to the Commissioner--
(a) a mortgage solely securing the repayment of
15 money received or to be received by the
corporation in respect of its debentures is not
liable to mortgage duty; and
(b) a mortgage securing in part the repayment of
such money is not liable to mortgage duty in
20 respect of advances arising from the issue of
debentures.
(3) The undertaking binds the corporation and the
trustee to lodge with the Commissioner, in July
each year, a statutory declaration setting out, in
25 the following categories, the total amount
subscribed for in Victoria in respect of the
corporation's debentures during the year ending on
the previous 30 June (but not including amounts
repayable at call or in less than 30 days) and to
30 pay duty in the following amounts--
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Money repayable at or after $0.40 for every
the expiration of not less than $2000, or part
30 days and not more than
3 months
Money repayable at or after $0.80 for every
the expiration of not less than $2000, or part
3 months and not more than
6 months
Money repayable at call after a specified period is
taken to be money repayable at the expiration of
that period.
(4) If a person resident or domiciled in Victoria
5 becomes the holder of a debenture referred to in
this section that was subscribed for outside
Victoria, the debenture is chargeable, on the date
on which that person becomes the holder of the
debenture, with an amount of duty under this Part
10 equal to the amount of duty that would be
chargeable under this Part (other than under this
sub-section) if the debenture had been issued on
that date unless ad valorem duty has been paid or
is payable in another State or in a Territory in
15 respect of the issue of, or subscription for, the
debenture.
(5) In this section, a reference to an amount
subscribed for in respect of debentures includes a
reference to an amount represented by debentures
20 issued on the conversion or renewal of an existing
holding of debentures or other marketable
securities.
173. Unregistered mortgages protected by caveats (anti-
avoidance provision)
25 (1) A caveat under the Transfer of Land Act 1958 in
which an estate or interest is claimed under an
unregistered mortgage is chargeable with duty if
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the mortgage is chargeable, but not stamped, with
mortgage duty.
(2) The amount of duty is the same amount as is
chargeable on the mortgage.
5 (3) The person liable to pay the duty is the mortgagor.
(4) Duty is not chargeable in respect of the caveat if
the Commissioner is satisfied that a sum equal to
the amount payable under sub-section (2) has
been paid on the mortgage to which the caveat
10 relates, or on some other instrument pursuant to
the arrangement to which the mortgage relates.
(5) If the caveat has been stamped with ad valorem
duty, a mortgage under which an estate or interest
is claimed in the caveat may be stamped as a
15 collateral security.
(6) This section does not apply to a caveat lodged in
respect of a mortgage that is exempt from
mortgage duty under Part 4.
174. Stamping counterpart or collateral instrument if
20 mortgage is lost, destroyed or cannot be produced
(1) A counterpart of a mortgage or a collateral
security for an amount secured by a mortgage is
taken to be the mortgage and may accordingly be
stamped or upstamped for mortgage duty purposes
25 if, on application by or on behalf of a person who
is a party to the mortgage, the Commissioner is
satisfied that--
(a) the mortgage has been lost or destroyed; or
(b) because of being deposited in the Office of
30 Titles or from other reasonable cause, the
mortgage cannot conveniently be produced.
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(2) For the purposes of sub-section (1), a reproduction
of a mortgage or a collateral security for an
amount secured by a mortgage is taken to be a
counterpart of that mortgage if it is purported to
5 be signed by the Registrar of Titles.
(3) In this section, "reproduction" has the same
meaning as in section 53 of the Evidence Act
1958.
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CHAPTER 8
INSURANCE
PART 1--INTRODUCTION AND OVERVIEW
175. Imposition of duty
5 (1) This Chapter charges duty in respect of insurance
in accordance with this section.
(2) Part 2 charges duty on the amount of the premium
paid in relation to a contract of insurance that
effects general insurance (whether or not it also
10 effects other kinds of insurance).
(3) The amount of duty is required to be paid each
time a premium is paid in relation to a contract of
insurance that effects general insurance.
(4) Part 3 charges duty on policies of life insurance.
15 (5) Part 4 charges duty as set out in section 209.
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PART 2--GENERAL INSURANCE
Division 1--Duty in respect of General Insurance
176. What is general insurance?
(1) "General insurance" is any kind of insurance
5 that is applicable to--
(a) property in Victoria; or
(b) a risk, contingency or event concerning an
act or omission that, in the normal course of
events, may occur within, or partly within,
10 Victoria--
or both.
(2) "General insurance" includes insurance effected
in respect of trauma or a disabling or
incapacitating injury, sickness, condition or
15 disease.
(3) "General insurance" does not include life
insurance or insurance that is exempt from duty
by Division 5.
177. What is a premium in relation to general insurance?
20 (1) "Premium", in relation to general insurance,
means the total consideration given to an insurer
or an insurance intermediary by or on behalf of
the insured person to effect insurance without
deductions for any amounts paid or payable, or
25 allowed or allowable, by way of commission to
the insurance intermediary.
(2) "Premium" includes a fire service levy paid or
payable in connection with insurance by an
insurer or any other person.
30 (3) "Premium" does not include--
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(a) an amount paid to an insurance intermediary
by the insured person as a fee, provided that
the amount can be clearly identified as a fee;
or
5 (b) an amount of duty under this or a
corresponding Act.
(4) It is immaterial where the amount is paid or where
the insurance is effected.
178. When is a premium paid?
10 (1) A premium, or an instalment of a premium, is paid
for the purposes of this Chapter when the first of
the following events occurs--
(a) the premium or instalment is received by the
insurer; or
15 (b) an account of the insurer is credited with the
amount of the premium or instalment.
(2) A premium or instalment of a premium (apart
from the case where the premium or instalment is
received directly by an insurer) is taken to have
20 been received by an insurer if it is received by
another person on the insurer's behalf.
179. What duty is payable?
The amount of duty chargeable on the premium
paid in relation to a contract of insurance is 10%
25 of the amount of the premium.
180. Who is liable to pay the duty?
The general insurer is liable to pay the duty,
except as provided by section 181.
181. Circumstances in which duty is payable by the insured
30 person
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(1) This section applies to a person who obtains,
effects, or renews any general insurance as an
insured person with a person who is not a
registered insurer.
5 (2) A person to whom this section applies must,
within 21 days after the end of the month in which
the premium relating to the insurance is paid to an
insurer (not being a registered insurer) or
insurance intermediary--
10 (a) lodge a return with the Commissioner
containing the particulars and information as
to the premium and the insurance that the
Commissioner requires; and
(b) pay to the Commissioner as duty the amount
15 calculated in accordance with section 179.
(3) A person to whom this section applies is taken to
have complied with this section if the person's
duty under this section is discharged by another
person acting on the person's behalf.
20 182. Records to be kept
A person to whom section 181 applies must keep
records that contain information as to--
(a) the nature and location of the property
insured; and
25 (b) the nature and location of each risk,
contingency or event insured; and
(c) the amount of the premiums paid in relation
to each contract of insurance.
183. Refunds where premiums are returned
30 (1) A general insurer or a person to whom section 181
applies is entitled to a refund of duty if the general
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insurer refunds, or there is refunded to the person,
the whole or a part of a dutiable premium in
respect of the contract of insurance for which duty
has been paid.
5 (2) The refund is the duty paid on the amount of the
premium refunded.
(3) A general insurer to whom duty is refunded may
apply the amount of the refund to offset any other
payment required to be made under this Act by the
10 general insurer.
Division 2--How Duty is Paid by a General Insurer
184. Who is a general insurer?
A "general insurer" is a person--
(a) who writes general insurance; and
15 (b) who does so otherwise than as an insurance
intermediary; and
(c) who is registered under the Insurance Act
1973 of the Commonwealth.
185. General insurers must be registered
20 A general insurer must be registered under this
Part.
Penalty: 100 penalty units.
186. Application for registration
The Commissioner must register a general insurer
25 who applies in the approved form for registration
under this Part.
187. Cancellation of registration by the Commissioner
(1) The Commissioner may, by written notice, cancel
a general insurer's registration under this Part--
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(a) if the insurer's registration under the
Insurance Act 1973 of the Commonwealth is
terminated; or
(b) if the insurer is made bankrupt or, being a
5 company, is wound up; or
(c) if the insurer is convicted of an offence
under an Act imposing duty; or
(d) if the insurer's registration was made in error
or because of a false or misleading statement
10 made in relation to the application for
registration; or
(e) if the Commissioner is of the opinion that the
insurer has ceased to write general
insurance; or
15 (f) for any other reason the Commissioner
thinks sufficient.
(2) A cancellation of registration has effect from the
date specified for the purpose by the
Commissioner in the notice of cancellation.
20 188. Cessation of business and cancellation of registration
by the general insurer
(1) A registered insurer who ceases to write general
insurance in Victoria--
(a) must, within 14 days after so ceasing--
25 (i) give written notice of that fact to the
Commissioner; and
(ii) lodge the return required to be lodged
under this Part; and
(b) must pay the duty payable in connection
30 with the return on or before the 21st day of
the month after which the notice is given.
Penalty: 100 penalty units.
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(2) The notice cancels the insurer's registration under
this Part on the day on which it is received by the
Commissioner.
189. Register of general insurers
5 (1) The Commissioner must keep a register of the
general insurers who are registered under this
Part.
(2) Anyone may inspect the register without charge at
the Commissioner's principal office during the
10 hours that the office is open to the public.
190. Monthly returns and payment of duty
A registered insurer must, on or before the 21st
day of each month--
(a) lodge a return with the Commissioner
15 showing the total amount of all premiums for
insurance paid to the registered insurer in the
preceding month; and
(b) pay to the Commissioner as duty the
amounts determined in accordance with
20 section 179.
191. Recovery of duty by registered insurer
(1) A registered insurer may require a person by
whom a premium is payable to the insurer to pay
the insurer an amount equal to the duty
25 chargeable.
(2) The requirement is duly made if it is contained in
a written request that is given to the person and
that specifies the amount of the duty.
(3) If the amount is not paid, the insurer may recover
30 it as a debt.
Division 3--Apportionment of Premiums and Other
Amounts between States and Territories
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192. Application of Division
(1) This Division applies to a contract of insurance
that insures--
(a) property in Victoria as well as property in
5 another place; or
(b) a risk, contingency or event concerning an
act or omission that, in the normal course of
events, may occur within, or partly within,
Victoria as well as within, or partly within,
10 another place--
or both.
(2) It is the intention of this Division--
(a) to provide the means for apportioning
premiums paid and other amounts in relation
15 to a contract of insurance having regard to
the principle in section 176(1); and
(b) to avoid multiple duty as between the States
and Territories; and
(c) to give each State and Territory its
20 appropriate share of duty by means of the
apportionment.
193. Schedule of Apportionment
(1) The Commissioner may, from time to time, adopt
a Schedule of Apportionment for the purpose of
25 apportioning premiums and other amounts in
relation to insurance in accordance with this Part.
(2) The Schedule of Apportionment may be
developed in consultation with any person the
Commissioner considers suitable.
30 194. Apportionment in practice
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(1) A premium or an amount is to be apportioned in
accordance with the Schedule of Apportionment
adopted for the time being, except as provided by
this section.
5 (2) A general insurer or an insured person may apply
in writing to the Commissioner to apportion a
premium or an amount on a basis other than that
provided by the Schedule of Apportionment. The
Commissioner may apportion the premium or
10 amount on the other basis.
(3) In particular, if the Commissioner is not satisfied
that a premium paid or another amount in relation
to a contract of insurance has been properly
apportioned for each risk insured, the
15 Commissioner may determine the apportionment,
reassess the liability to duty and charge duty
accordingly.
Division 4--Apportionment of Premiums and Other
Amounts as between Different Types of Insurance
20 195. Apportionment between different types of insurance
(1) This Division applies to apportionment between
different types of insurance that are relevant to
determining liability for duty, such as general
insurance, life insurance and insurance that is
25 exempt from duty. It does not apply to the
apportionment of a premium or another amount
between Victoria and another place. Division 3
deals with that kind of apportionment.
(2) If the Commissioner is not satisfied that a
30 premium paid or another amount in relation to a
contract of insurance that effects different types of
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insurance has been properly apportioned, the
Commissioner may determine the apportionment,
reassess the liability to duty and charge duty
accordingly.
5 Division 5--Exempt Insurance
196. What insurance is exempt from duty?
The following insurances are exempt from duty
under this Chapter--
(a) medical benefits insurance, being insurance
10 effected by a contract of insurance that is
issued by an organisation registered under
Part VI of the National Health Act 1953 of
the Commonwealth and that provides
hospital benefits or medical benefits (or
15 both), whether or not other benefits are also
provided;
(b) accident compensation or workers
compensation insurance, being insurance--
(i) effected by a contract of insurance that
20 is issued by an authorised insurer for
the purposes of the Accident
Compensation (WorkCover
Insurance) Act 1993; or
(ii) undertaken by the Victorian
25 WorkCover Authority for the purpose
of providing accident insurance within
the meaning of section 20A of the
Accident Compensation Act 1985; or
(iii) that indemnifies an employer against
30 liability in relation to workers
compensation under the Workers
Compensation Act 1958 or under any
other Act or at common law or
otherwise; or
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(iv) that indemnifies the Victorian
WorkCover Authority against liability
under Part IV of the Accident
Compensation Act 1985; or
5 (v) that indemnifies a self-insurer within
the meaning of the Accident
Compensation Act 1985 against
liability in relation to workers
compensation under that or any other
10 Act or at common law or otherwise;
(c) insurance of--
(i) the physical hull of a floating vessel
used primarily for commercial
purposes;
15 (ii) goods or merchandise, or the freight of
goods or merchandise, carried by land,
sea or air;
(d) reinsurance (being a contract or contracts
between 2 parties by which one party
20 indemnifies the other against liability or
payment under a contract or contracts of
insurance or reinsurance) in respect of which
duty has been paid under this Act or a
corresponding Act;
25 (e) insurance against damage by hail to cereal or
fruit crops;
(f) a private fidelity guarantee insurance scheme
promoted amongst and sustained solely for
the benefit of the members, officers and
30 employees, or a class of members, officers
and employees, of a government department,
public authority, body corporate, individual
or firm and not extending beyond such
members, officers and employees;
35 (g) insurance undertaken by--
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(i) a friendly society; or
(ii) any other person that, in the opinion of
the Commissioner, undertakes only a
class of insurance business that a
5 friendly society undertakes and
undertakes that business substantially
in the same way and for the same
purpose as does a friendly society.
Division 6--Miscellaneous
10 197. Effect on contract of insurance of failure to comply
with this Chapter
A failure to comply with this Chapter does not
render a contract of insurance illegal or invalid.
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PART 3--LIFE INSURANCE
Division 1--Duty in respect of Life Insurance
198. What is life insurance?
(1) "Life insurance" is any insurance or assurance in
5 respect of--
(a) a life or lives; or
(b) an event or contingency relating to or
depending on a life or lives--
of a person who is, or persons who are, domiciled
10 in Victoria at the time the insurance policy is
issued, but does not include insurance against
accident.
(2) "Insurance against accident" is any insurance
under which payment is agreed to be made on the
15 death of a person only from accident or violence
or otherwise from a natural cause or as
compensation for personal injury.
199. Obligation to make out and execute policies of life
insurance
20 Within 3 months after a person receives or takes
credit for a premium or consideration for a
contract of life insurance, the person must--
(a) make out and execute a policy of life
insurance in respect of that contract; and
25 (b) ensure that the policy is duly stamped.
Penalty: 2 penalty units and double the amount
of duty that would have been payable
on the policy.
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200. What duty is payable?
(1) The amount of duty chargeable on a policy of life
insurance, other than a temporary or term
insurance policy, is--
5 (a) if the sum insured does not exceed $200--
nil;
(b) if the sum insured exceeds $200 but does not
exceed $2000--12 cents per $200, or part, of
the sum insured;
10 (c) if the sum insured exceeds $2000--$1.20
plus 24 cents per $200, or part, of the sum
insured that exceeds $2000.
(2) The amount of duty chargeable on a temporary or
term insurance policy is 5% of the first year's
15 premium on the policy.
(3) In determining the sum insured by a policy of life
insurance, any additional amount payable under
the policy in the event of the insured dying as the
result of an accident is to be disregarded.
20 201. Who is liable to pay the duty?
The person issuing the policy of life insurance is
liable to pay the duty.
Division 2--Approved Life Insurers
202. Who is a life insurer?
25 A "life insurer" is a person--
(a) who writes life insurance; and
(b) who does so otherwise than as an insurance
intermediary; and
(c) who is registered under the Insurance Act
30 1973 of the Commonwealth.
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203. Approval of life insurers
(1) A life insurer may apply in the approved form for
registration as an approved life insurer.
(2) On an application under sub-section (1), the
5 Commissioner may register a person as an
approved life insurer.
204. Cancellation of registration by the Commissioner
(1) The Commissioner may, by written notice, cancel
an approved life insurer's registration under this
10 Part--
(a) if the insurer's registration under the
Insurance Act 1973 of the Commonwealth is
terminated; or
(b) if the insurer is made bankrupt or, being a
15 company, is wound up; or
(c) if the insurer is convicted of an offence
under an Act imposing duty; or
(d) if the insurer's registration was made in error
or because of a false or misleading statement
20 made in relation to the application for
registration; or
(e) if the Commissioner is of the opinion that the
insurer has ceased to write life insurance; or
(f) for any other reason the Commissioner
25 thinks sufficient.
(2) A cancellation of registration has effect from the
date specified for the purpose by the
Commissioner in the notice of cancellation.
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205. Cessation of business and cancellation of registration
by the insurer
(1) An approved life insurer who ceases to write life
insurance in Victoria--
5 (a) must, within 14 days after so ceasing--
(i) give written notice of that fact to the
Commissioner; and
(ii) lodge the return required to be lodged
under this Part; and
10 (b) must pay the duty payable in connection
with the return on or before the 21st day of
the month after which the notice is given.
Penalty: 100 penalty units.
(2) The notice cancels the insurer's registration under
15 this Part on the day on which it is received by the
Commissioner.
(3) Section 59 of the Taxation Administration Act
1997 does not apply to an approved life insurer
who fails or refuses to give notice or lodge a
20 return under sub-section (1)(a).
206. Register of approved life insurers
(1) The Commissioner must keep a register of
approved life insurers.
(2) Anyone may inspect the register without charge at
25 the Commissioner's principal office during the
hours that the office is open to the public.
207. How duty is paid by approved life insurers
(1) An approved life insurer must, on or before the
14th day of each month--
30 (a) lodge a return with the Commissioner in
respect of the policies of life insurance
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issued by the insurer in the preceding month;
and
(b) pay to the Commissioner the duty payable by
the life insurer on those policies.
5 (2) A policy in respect of which duty is paid in
accordance with sub-section (1) is taken to be
duly stamped.
Division 3--Exemptions
208. Exemptions from life insurance duty
10 No duty is chargeable under this Part on--
(a) a cover note in respect of which a duly
stamped policy is issued within 3 months
after the issue of the cover note;
(b) a policy of reinsurance.
15 _______________
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PART 4--TRANSPORT ACCIDENT CHARGES
209. Imposition of duty
This Part charges duty on transport accident
charges applicable to motor vehicles under Part 7
5 of the Transport Accident Act 1986.
210. Who is liable to pay the duty?
Duty under this Part is payable by the Transport
Accident Commission.
211. Rate of duty
10 The rate of duty is 10%.
212. How is duty paid?
The Transport Accident Commission must, on or
before Wednesday in each week--
(a) lodge a return with the Commissioner
15 showing the total amount of transport
accident charges paid into the Transport
Accident Fund during the week ending on
the preceding Saturday; and
(b) pay to the Commissioner the duty payable on
20 those charges under this Part.
213. Refund of duty if transport accident charge is
refunded
The Transport Accident Commission is entitled to
a refund of duty if it refunds the whole or part of a
25 transport accident charge in respect of which duty
has been paid under this Part.
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CHAPTER 9
MOTOR VEHICLE DUTY
PART 1--INTRODUCTION AND OVERVIEW
214. Imposition of duty
5 (1) This Chapter charges duty on--
(a) an application for registration of a motor
vehicle under the Road Safety Act 1986
if--
(i) the vehicle has not previously been
10 registered under that Act; or
(ii) the person in whose name the vehicle is
to be registered differs from the person
in whose name the vehicle was last
registered under that Act; and
15 (b) an application for transfer of registration of a
motor vehicle under the Road Safety Act
1986.
(2) This Chapter also charges duty in the
circumstances set out in Part 4.
20 215. Lodgement of statement of dutiable value
(1) A person who is required by law to make or lodge
an application for registration or transfer of
registration of a motor vehicle under the Road
Safety Act 1986 must lodge with the application a
25 statement of the dutiable value of the motor
vehicle, unless the application is not chargeable
with duty under this Chapter.
(2) A person (other than a registered used car dealer)
who--
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(a) acquires a motor car within the meaning of
the Motor Car Traders Act 1986 from a
registered used car dealer; and
(b) lodges an application for transfer of
5 registration of the motor car under the Road
Safety Act 1986--
must also lodge with the application a copy of the
agreement for sale of the motor car supplied to the
person under section 41 of the Motor Car
10 Traders Act 1986, unless the application is not
chargeable with duty under this Chapter.
216. Who is liable to pay the duty?
(1) Duty on an application for registration of a motor
vehicle is payable by the applicant for registration.
15 (2) Duty on an application for transfer of registration
of a motor vehicle is payable by the acquirer of
the vehicle.
(3) A person who--
(a) acquires a motor vehicle from a registered
20 used car dealer; and
(b) pays to the dealer the amount of duty
chargeable under this Chapter on the
application for transfer of registration of the
vehicle to the person--
25 is relieved from any further liability for duty in
respect of the application for transfer of
registration.
217. When does duty become payable?
Duty becomes payable on the making or lodging
30 of the application for registration or transfer of
registration of the motor vehicle.
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218. What is the rate of duty?
The rate of duty is--
(a) on an application for registration of a motor
vehicle that has not previously been
5 registered in Victoria or elsewhere--
(i) for a passenger car the dutiable value of
which exceeds $35 000 but does not
exceed $45 000--$8 per $200, or part,
of the dutiable value of the motor
10 vehicle;
(ii) for a passenger car the dutiable value of
which exceeds $45 000--$10 per $200,
or part, of the dutiable value of the
motor vehicle;
15 (iii) in any other case--$5 per $200, or part,
of the dutiable value of the motor
vehicle;
(b) in any other case--$8 per $200, or part, of
the dutiable value of the motor vehicle.
20 219. What is the dutiable value of a motor vehicle?
(1) Subject to sub-section (2), the "dutiable value"
of a motor vehicle is--
(a) the consideration in money or money's worth
given for the acquisition of the vehicle; or
25 (b) the price at which the vehicle might
reasonably be sold, free from encumbrances,
in the open market--
whichever is the greater.
(2) The dutiable value of a motor vehicle that--
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(a) is a taxi-cab within the meaning of the
Transport Act 1983; and
(b) is specially converted to provide wheelchair
access to and egress from the vehicle; and
5 (c) is capable of carrying at least one occupied
wheelchair; and
(d) has not previously been registered in
Victoria or elsewhere--
is the value determined in accordance with sub-
10 section (1) less $24 000 or such other amount as is
prescribed.
220. Prohibition on registration of motor vehicles
(1) The registration authority must not register a
motor vehicle unless--
15 (a) a statement of the dutiable value of the
vehicle is lodged in accordance with
section 215 and duty is duly paid on the
application; or
(b) the application for registration of the vehicle
20 is not chargeable with duty under this
Chapter.
(2) In this section "registration authority" means
the person who has the responsibility for the
registration of motor vehicles in Victoria.
25 _______________
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PART 2--REGISTERED USED CAR DEALERS
221. Registration
(1) The Commissioner, on written application by a
licensed motor car trader or a special dealer, must
5 register the trader or dealer as a registered used
car dealer and give the trader or dealer a code
number.
(2) The Commissioner must give written notice of
registration to the trader or dealer.
10 (3) Registration has effect on and from the date
specified in the notice under sub-section (2).
222. Cessation of business and cancellation of registration
(1) A registered used car dealer who--
(a) ceases to be a licensed motor car trader or
15 special dealer (as the case may be); or
(b) wishes to cease being registered under this
Part--
must give written notice to the Commissioner
before or forthwith on so ceasing and must lodge
20 the return required to be lodged under this Part
and pay the amount required to be paid on that
return under section 225(1)(b) (if any), on or
before the 21st day of the month following the
month in which the notice is given.
25 (2) The Commissioner may cancel the registration of
a registered used car dealer under this Part--
(a) on receipt of a notice under sub-section (1);
or
(b) if the Commissioner is satisfied that the
30 dealer has ceased to be a licensed motor car
trader or special dealer (as the case may be).
223. Register of used car dealers
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(1) The Commissioner must keep a register of
registered used car dealers.
(2) Anyone may inspect the register without charge at
the Commissioner's principal office during the
5 hours that office is open to the public.
224. Endorsement of code number on application
(1) This section applies if--
(a) a person acquires a motor vehicle from a
registered used car dealer; and
10 (b) the motor vehicle is registered under the
Road Safety Act 1986; and
(c) the acquirer pays to the registered used car
dealer the duty payable on the application for
transfer of registration of the motor vehicle.
15 (2) If this section applies, the registered used car
dealer must endorse on the application for transfer
of registration--
(a) the dealer's code number; and
(b) a statement that the acquirer has paid to the
20 registered used car dealer the duty payable
on the application and the amount of duty
paid.
Penalty: 100 penalty units.
225. Monthly returns and payment of duty
25 (1) A registered used car dealer must, on or before the
21st day of each month--
(a) lodge a return with the Commissioner; and
(b) pay to the Commissioner any amounts
received from acquirers of motor vehicles
30 during the preceding month in respect of
duty payable under this Chapter on
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applications for transfer of registration of
those vehicles.
(2) A "nil" return must be lodged if nothing has
happened in the preceding month to require the
5 registered used car dealer to pay an amount under
this section.
(3) The Commissioner may require a return under this
section to be verified in the approved manner.
226. Penalty tax and interest payable by dealer in some
10 circumstances
If--
(a) a person acquires a motor vehicle from a
registered used car dealer; and
(b) the acquirer pays to the registered used car
15 dealer the duty payable on the application for
transfer of registration of the vehicle; and
(c) a tax default occurs because the registered
used car dealer fails to pay an amount in
respect of the duty to the Commissioner in
20 accordance with section 225(1)(b)--
any penalty tax and interest payable under the
Taxation Administration Act 1997 in respect of
the tax default is payable by the registered used
car dealer.
25 227. Further penalty for failure to lodge or late lodgement
(1) If a registered used car dealer does not comply
with section 225, the registered used car dealer is
liable to a penalty of--
(a) an amount equal to the amount referred to in
30 section 225(1)(b) and interest on that amount
at the rate of 20% per annum from the day
on which the payment under that section was
required; or
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(b) $25--
whichever is the greater.
(2) The penalty imposed by sub-section (1) is in
addition to the dealer's liability for any amount
5 under section 225(1)(b) and any penalty tax and
interest payable under the Taxation
Administration Act 1997.
(3) The Commissioner, in such circumstances as the
Commissioner considers appropriate, may remit
10 the penalty imposed by sub-section (1) by any
amount.
228. Unauthorised endorsement of code number
(1) A person must not endorse the code number of a
registered used car dealer on an application for
15 transfer of registration of a motor vehicle unless
the person is required to do so by or under this
Part.
Penalty: 100 penalty units.
(2) A person must not endorse on an application for
20 transfer of registration a statement that the
acquirer has paid to a registered used car dealer
any duty payable on that application unless the
acquirer has paid the duty to the registered used
car dealer.
25 Penalty: 100 penalty units.
(3) A person must not endorse on an application for
transfer of registration an amount of duty other
than the amount of duty actually paid by the
acquirer to the registered used car dealer.
30 Penalty: 100 penalty units.
(4) Section 52 of the Taxation Administration Act
1997 does not apply to the endorsement on an
application for transfer of registration of a motor
vehicle--
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(a) of the code number of a registered used car
dealer; or
(b) of a statement that the acquirer of the vehicle
has paid duty to the dealer; or
5 (c) of the amount of duty paid by the acquirer to
the dealer.
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PART 3--EXEMPTIONS
229. Ownership by devolution of title and deceased estates
(1) No duty is chargeable under this Chapter on an
application for transfer of registration of a motor
5 vehicle made by a person who is beneficially
entitled to the vehicle following the death of the
person in whose name the vehicle was registered
in Victoria.
(2) No duty is chargeable under this Chapter on an
10 application for registration or transfer of
registration of a motor vehicle made by a
surviving spouse or de facto spouse who has
acquired the vehicle through an entitlement to the
whole or part of the estate of the deceased spouse
15 or de facto spouse.
(3) No duty is chargeable under this Chapter on an
application for registration or transfer of
registration of a motor vehicle made by the
executor or administrator of a deceased estate for
20 the purpose of--
(a) subsequently transferring the vehicle to a
person who is beneficially entitled to it; or
(b) enabling the subsequent sale of the vehicle in
the course of winding up the estate.
25 230. Registered used car dealers--trading stock,
demonstrator vehicles and driver education
(1) No duty is chargeable under this Chapter on an
application by a registered used car dealer who
carries on a business of dealing in motor vehicles
30 for transfer of registration of a motor vehicle--
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(a) in the course of, and for the purpose of
carrying on that business; and
(b) solely for the purpose of the sale of the
motor vehicle.
5 (2) No duty is chargeable under this Chapter on an
application by a registered used car dealer who
carries on a business of dealing, for the purpose of
sale by retail, in motor vehicles for transfer of
registration of a motor vehicle--
10 (a) in the course of, and for the purpose of
carrying on that business and solely or
primarily for the purpose of either or both of
the following--
(i) the sale of the motor vehicle;
15 (ii) the use of the motor vehicle for the
purpose of the sale of another motor
vehicle of the same class; or
(b) solely or primarily for the purpose of the
provision of the motor vehicle to a secondary
20 educational institution for use for driver
education purposes.
231. Licensed motor car traders--trading stock,
demonstrator vehicles and driver education
(1) No duty is chargeable under this Chapter on an
25 application by a licensed motor car trader who
carries on a business of dealing in motor vehicles
for registration of a motor vehicle--
(a) in the course of, and for the purpose of
carrying on that business; and
30 (b) solely for the purpose of the sale of the
motor vehicle.
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(2) No duty is chargeable under this Chapter on an
application by a licensed motor car trader who
carries on a business of dealing, for the purpose of
sale by retail, in motor vehicles for registration of
5 a motor vehicle--
(a) in the course of, and for the purpose of
carrying on that business and solely or
primarily for the purpose of either or both of
the following--
10 (i) the sale of the motor vehicle;
(ii) the use of the motor vehicle for the
purpose of the sale of another motor
vehicle of the same class; or
(b) solely or primarily for the purpose of the
15 provision of the motor vehicle to a secondary
educational institution for use for driver
education purposes.
232. Applications by interstate licensed motor car traders
(1) No duty is chargeable under this Chapter on an
20 application for registration or transfer of
registration of a motor vehicle made by a person
who holds a licence under a law of another State
or a Territory that corresponds to the Motor Car
Traders Act 1986 but does not hold a licence
25 under that Act.
(2) Sub-section (1) does not apply unless the
application is made in the course of carrying out
the business to which the licence relates.
233. Exemption if no registration fee payable
30 No duty is chargeable under this Chapter on an
application for registration or transfer of
registration of a motor vehicle made by a person if
a fee would not be payable under the Road Safety
Act 1986 or regulations under that Act on a
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transfer of the registration of the vehicle to that
person.
234. Corporate windings up and reductions in capital
No duty is chargeable under this Chapter on an
5 application for transfer of registration of a motor
vehicle made by a shareholder of a company in
the course of a distribution of assets of the
company because of the winding up or the
reduction of the capital of the company.
10 235. Marriage and de facto relationships and their
breakdown
(1) No duty is chargeable under this Chapter on an
application for registration or transfer of
registration of a motor vehicle made to effect a
15 transfer of the vehicle from one person to another
person if--
(a) any of the following applies--
(i) both people are married to each other;
(ii) both people have been married to each
20 other and the Commissioner is satisfied
that the transfer was made because of
the breakdown of the marriage;
(iii) both people are de facto spouses of
each other;
25 (iv) both people have been de facto spouses
of each other and the Commissioner is
satisfied that the transfer was made
because of the breakdown of the
de facto relationship; and
30 (b) no other person takes or is entitled to take an
interest in the vehicle under the transfer.
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(2) No duty is chargeable under this Chapter on an
application for registration or transfer of
registration of a motor vehicle made by a person if
the Commissioner is satisfied that--
5 (a) the application is made solely to transfer the
vehicle to a trustee; and
(b) the transfer has been made because of the
breakdown of a marriage; and
(c) the transferor is or was a party to the
10 marriage; and
(d) no person other than a party to the marriage
or a child of a party to the marriage is a
beneficiary of the trust.
236. Minors and trustees
15 (1) No duty is chargeable under this Chapter on an
application for transfer of registration of a motor
vehicle made--
(a) by a person for whom, when a minor, the
vehicle was acquired by another person as
20 nominee or trustee; and
(b) to give effect to the transfer of the vehicle
from the nominee or trustee to the person
after ceasing to be a minor.
(2) No duty is chargeable under this Chapter on an
25 application for transfer of registration of a motor
vehicle made--
(a) solely because of the appointment or
retirement of a trustee or other change in
trustees; and
30 (b) in order to vest the vehicle in the trustees for
the time being entitled to hold the vehicle.
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237. Vehicles previously registered in the same name
interstate
No duty is chargeable under this Chapter on an
application for registration of a motor vehicle by a
5 person if--
(a) the vehicle was last registered by the person
outside Victoria but within Australia; and
(b) the Commissioner is satisfied that the vehicle
was not registered outside Victoria for the
10 purpose of avoiding duty under this Chapter.
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PART 4--DUTY ON CHANGE OF USE OR CHANGE OF
OWNERSHIP
238. Duty on statement of change of use
(1) This section imposes duty if--
5 (a) there is a change in the predominant use of a
motor vehicle the last application for
registration or transfer of registration of
which was not chargeable with duty under
this Act because of the use of the vehicle;
10 and
(b) an application for registration or transfer of
registration of the vehicle in Victoria is not
made in connection with the change of use;
and
15 (c) duty would have been chargeable on an
application referred to in paragraph (b) had
that application been made.
(2) Within 14 days after there is a change in the
predominant use of a motor vehicle of the kind
20 referred to in sub-section (1), the registered
operator of the vehicle must--
(a) lodge with the Commissioner a statement of
the change in the use; and
(b) pay duty at the rate of $8 per $200, or part,
25 of the dutiable value of the vehicle at the
time the change occurred.
(3) If a registered operator does not comply with sub-
section (2), the registered operator is liable to a
penalty of--
30 (a) an amount equal to the amount of duty
referred to in sub-section (2)(b) and interest
on that amount at the rate of 20% per annum
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from the day on which the payment of the
duty was required; or
(b) $25--
whichever is the greater.
5 (4) The penalty imposed by sub-section (4) is in
addition to the registered operator's liability for
the duty under sub-section (2)(b) and any penalty
tax and interest payable under the Taxation
Administration Act 1997.
10 (5) The Commissioner, in such circumstances as the
Commissioner considers appropriate, may remit
the penalty imposed by sub-section (3) by any
amount.
239. Duty on statement of acquisition
15 (1) This section imposes duty on the acquisition of a
motor vehicle if an application for transfer of
registration of the vehicle is not made within the
time required for the lodgement of that application
under the Road Safety Act 1986 or regulations
20 under that Act.
(2) If a person acquires a motor vehicle and does not
make an application for transfer of registration of
the vehicle within the time required for the
lodgement of that application under the Road
25 Safety Act 1986 or regulations under that Act, the
person must, within 7 days after the expiry of that
time--
(a) lodge with the Commissioner a statement of
the acquisition; and
30 (b) pay duty at the rate of $8 per $200, or part,
of the dutiable value of the vehicle at the
time of the acquisition.
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(3) If an application referred to in sub-section (2) is
subsequently made and duty is paid on the
application or the application is not chargeable
with duty, the person is entitled to a refund of
5 duty paid on the statement under sub-section (2).
(4) The amount of duty refundable under sub-section
(3) is--
(a) if the application is not chargeable with
duty--the whole amount of duty paid under
10 sub-section (2); or
(b) if the application is chargeable with duty--
the lesser of the amount of duty paid under
sub-section (2) and the amount of duty
payable on the application.
15 (5) A person who does not comply with sub-section
(2) is liable to a penalty of--
(a) an amount equal to the amount of duty
referred to in sub-section (2)(b) and interest
on that amount at the rate of 20% per annum
20 from the day on which the payment of the
duty was required; or
(b) $25--
whichever is the greater.
(6) The penalty imposed by sub-section (5) is in
25 addition to the person's liability for the duty under
sub-section (2)(b) and any penalty tax and interest
payable under the Taxation Administration Act
1997.
(7) The Commissioner, in such circumstances as the
30 Commissioner considers appropriate, may remit
the penalty imposed by sub-section (5) by any
amount.
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PART 5--REFUND OF DUTY
240. Entitlement to refund
(1) A person is entitled to a refund of duty paid by the
person on an application for registration or
5 transfer of registration of a motor vehicle if--
(a) no duty is chargeable on the application; or
(b) after the duty is paid the application is
refused; or
(c) after the duty is paid--
10 (i) the proposed acquisition of the motor
vehicle does not proceed; and
(ii) the motor vehicle has been returned to
the person from whom it was proposed
to be acquired; and
15 (iii) all money refundable as a result of the
acquisition not proceeding have been
refunded to the person who proposed to
acquire the vehicle.
(2) A person is entitled to a refund of that part of the
20 duty paid by the person on an application for
registration or transfer of registration of a motor
vehicle that is overpaid.
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CHAPTER 10
MISCELLANEOUS DUTIES
PART 1--SALE OF CATTLE
241. Imposition of duty
5 This Part charges duty--
(a) on a statement written out or caused to be
written out under section 92(1)(a) of the
Livestock Disease Control Act 1994 by the
owner or the owner's agent on the sale of
10 cattle, calves or cattle carcases; and
(b) on a return furnished by an approved agent
to the Commissioner under section 95(1)(a)
of that Act.
242. What is the rate of duty?
15 (1) The rate of duty is--
(a) in respect of the sale of cattle--5 cents per
$20, or part--
(i) of the amount of the purchase money
for one head of cattle sold singly; or
20 (ii) of the total amount of the purchase
money for any number of cattle sold in
one lot;
(b) in respect of the sale of calves--15 cents for
each calf sold;
25 (c) in respect of the sale of cattle carcases, if the
carcase is purchased on a weight sale basis
after the animal has been slaughtered--
(i) 90 cents for each carcase that does not
weigh more than 250 kilograms; and
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(ii) $1.30 for each carcase that weighs
more than 250 kilograms.
(2) The maximum amount of duty chargeable in
respect of any one head of cattle (whether sold
5 singly or as part of a lot) is $5.
243. What is the purchase money?
(1) The purchase money for a sale is taken not to
include an amount in respect of any GST payable
on the supply to which the sale relates.
10 (2) In calculating the purchase money for a sale, it is
immaterial whether payment of the purchase
money is made in full at the time of the sale or is
to be made by instalments or is otherwise
deferred.
15 _______________
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PART 2--SALE OF SHEEP AND GOATS
244. Imposition of duty
This Part charges duty--
(a) on a statement written out or caused to be
5 written out under section 92(1A)(a) of the
Livestock Disease Control Act 1994 by the
owner or the owner's agent on the sale of
sheep or goats or sheep or goat carcases; and
(b) on a return furnished by an approved agent
10 to the Commissioner under section
95(1A)(a) of that Act.
245. What is the rate of duty?
The rate of duty is 12 cents for each sheep, goat or
carcase sold.
15 _______________
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PART 3--SALE OF PIGS
246. Imposition of duty
This Part charges duty--
(a) on a statement written out or caused to be
5 written out under section 92(2)(a) of the
Livestock Disease Control Act 1994 by the
owner or the owner's agent on the sale of
pigs or pig carcases; and
(b) on a return furnished by an approved agent
10 to the Commissioner under section 95(2)(a)
of that Act.
247. What is the rate of duty?
(1) Subject to sub-section (2), the rate of duty is
2 cents per $5, or part--
15 (a) of the amount of the purchase money for one
pig sold singly; or
(b) of the total amount of the purchase money
for any number of pigs sold in one lot.
(2) The maximum amount of duty in respect of the
20 sale of any one pig (whether sold singly or as part
of a lot) is 16 cents.
248. What is the purchase money?
(1) The purchase money for a sale is taken not to
include an amount in respect of any GST payable
25 on the supply to which the sale relates.
(2) In calculating the purchase money for a sale, it is
immaterial whether payment of the purchase
money is made in full at the time of the sale or is
to be made by instalments or is otherwise
30 deferred.
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CHAPTER 11
GENERAL EXEMPTIONS FROM DUTY
249. Security for payment of tax
(1) No duty is chargeable under this Act in respect of
5 a mortgage given to or executed by the
Commissioner to secure the payment of tax as a
result of the Commissioner postponing or
extending the time for the payment of tax.
(2) In this section--
10 "tax" means--
(a) tax within the meaning of the Taxation
Administration Act 1997; or
(b) land tax.
250. Corporate reconstructions
15 (1) An instrument or a transfer of dutiable property is
exempt from duty under this Act to the extent
determined by the Minister if it is an instrument or
transfer of a class that, under guidelines approved
for the time being by the Minister, is a class of
20 instrument or transfer arising out of a bona fide
corporate reconstruction.
(2) If duty under this Act has been paid on an
instrument or transfer referred to in sub-
section (1), the Commissioner must refund any
25 duty paid that, by reason of the exemption, is not
payable.
(3) The Minister must, before 31 October in each
year, cause to be laid before each House of the
Parliament a report of exemptions and partial
30 exemptions approved and refunds made under this
section in the preceding financial year,
including--
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(a) the name of each corporation that has had the
benefit of an exemption, partial exemption or
refund; and
(b) the amount of duty that would have been
5 chargeable but for the exemption or partial
exemption and the amount of any refund.
251. Managed investment schemes
The following are exempt from duty under this
Act--
10 (a) a transfer of property from--
(i) a responsible entity of a managed
investment scheme; or
(ii) a person who held the property as a
trustee of a prescribed interest scheme
15 within the meaning of the Corporations
Law as in force immediately before
1 July 1998 when the scheme became a
registered scheme within the meaning
of Division 11 of Part 11.2 of the
20 Corporations Law--
to a custodian or agent of the responsible
entity as custodian or agent of the scheme in
which the transferor held the property;
(b) a transfer of property from the custodian of
25 the responsible entity of a managed
investment scheme to the responsible entity;
(c) an instrument that--
(i) amends, varies or replaces an
instrument that establishes or governs a
30 managed investment scheme; and
(ii) does not transfer, or have the effect of
transferring, any property to a person
who does not hold units in the scheme;
and
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(iii) does not have the effect of reducing the
number of persons who hold units in
the scheme;
(d) a declaration--
5 (i) made by a trustee in respect of property
that, immediately before the trust is
declared, is held by the trustee as
trustee of the prescribed interest
scheme within the meaning of the
10 Corporations Law as in force
immediately before 1 July 1998; and
(ii) to hold the property on trust for the
responsible entity of the managed
investment scheme.
15 _______________
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CHAPTER 12
ADMINISTRATION AND ENFORCEMENT
PART 1--STAMPING INSTRUMENTS
252. Provision of stamps
5 The Commissioner may provide stamps or any
other equipment that may be required for--
(a) stamping instruments; or
(b) otherwise denoting the payment of duty--
in accordance with the provisions of this Act.
10 253. Limitation on use of designated stamps
(1) A person must not use a stamp that by its terms is
limited to an instrument of a specified kind for an
instrument of a different kind.
Penalty: 100 penalty units.
15 (2) An instrument of a specified kind for which a
particular stamp is specified is taken not to be
duly stamped unless it is stamped with the stamp
so specified.
254. Form of stamps to be used
20 (1) An instrument that is required to be stamped by
this Act is to be stamped by means of an
impressed stamp.
(2) However, another form of stamping may be used
if its use is authorised by this Act or the
25 Commissioner.
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255. Stamping of instruments
The Commissioner must stamp an instrument in
respect of which duty is chargeable under this Act
or that effects or evidences a dutiable transaction
5 and that has been lodged 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.
256. When is an instrument duly stamped?
10 An instrument is duly stamped if it is stamped in
accordance with this Act.
257. Adhesive stamps
(1) An adhesive stamp may be used to stamp the
following instruments--
15 (a) a transfer of shares of a corporation or
company that is not the legal or beneficial
owner of land in Victoria, if the monetary
consideration for the transfer is not less than
the unencumbered value of the shares;
20 (b) a transfer of units in a unit trust scheme if the
monetary consideration for the transfer is not
less than the unencumbered value of the
units;
(c) a lease or an assignment of a lease;
25 (d) a mortgage securing an amount not
exceeding $10 000.
(2) An instrument that may be stamped by use of an
adhesive stamp is not duly stamped unless--
(a) an adhesive stamp for the appropriate
30 amount of duty is attached to the instrument;
and
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(b) the adhesive stamp is cancelled by marking
the date of its cancellation on its face in such
a way as to render it incapable of being used
for any other instrument.
5 (3) Subject to sub-section (4), a person must not
remove an adhesive stamp that has been attached
to an instrument and cancelled.
Penalty: 100 penalty units.
(4) The Commissioner may remove an adhesive
10 stamp that has been attached to an instrument and
cancelled after an application for a refund of the
duty denoted by the stamp has been approved.
258. Licences to deal in stamps
(1) The Commissioner may, on any terms and
15 conditions he or she determines, grant a licence to
a person to sell stamps.
(2) The licence must include the name and address of
the licensee.
(3) The Commissioner may sell stamps to a licensee
20 at the commission discount determined by the
Commissioner.
(4) The Commissioner may re-purchase any stamps
sold to a licensee if the licensee no longer requires
them.
25 (5) The Commissioner may cancel a licence granted
under this section at any time by giving notice of
the cancellation to the licensee.
(6) A person who is not licensed under this section
must not sell or deal in stamps.
30 Penalty: 20 penalty units.
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259. Refunds--spoiled and unused stamps
(1) A person may apply to the Commissioner for a
refund of the value of adhesive stamps that have
become spoiled or useless.
5 (2) The spoiled or useless stamps must be produced to
the Commissioner.
(3) If an adhesive stamp is erroneously placed on a
document, an application for a refund may be
made as if the stamp were spoiled.
10 260. Reassessments--failed instruments
(1) An instrument that fails its intended operation and
becomes useless is not chargeable with duty under
this Act.
(2) The Commissioner must make a reassessment of
15 duty in respect of such an instrument if an
application for a reassessment is made within--
(a) 3 years after the initial assessment; or
(b) 12 months after the instrument has failed--
whichever is the later.
20 (3) The instrument in respect of which the application
is made must be produced to the Commissioner
unless the Commissioner dispenses with its
production.
261. Instruments to be separately charged with duty in
25 certain cases
An instrument that contains, gives effect to, or
relates to, several distinct matters or transactions
is to be separately and distinctly charged with
duty in respect of each such matter or transaction,
30 as if each matter was expressed in a separate
instrument.
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262. Execution of instruments
For the purposes of this Act, an instrument
described in column 1 of the Table is taken to be
executed when it is executed by the parties
5 specified in column 2 opposite that instrument.
TABLE
Column 1 Column 2
Instrument type Executing parties
Transfer of land under the Transferor and
transferee
Transfer of Land Act 1958
Conveyance of land (general Grantor
law)
Transfer of marketable Transferor and
securities transferee
Mortgage Mortgagor or person
who gives the
mortgage
Lease Lessor and lessee
(whether both execute
the original lease or
one executes the
original and the other
executes a counterpart)
Assignment of lease Assignor
Declaration of trust Settlor
263. Counterparts and replicas
(1) The Commissioner may stamp a counterpart or
replica of an instrument chargeable with duty
10 under this Act if the Commissioner is satisfied
that--
(a) the instrument chargeable with duty has been
duly stamped; or
(b) that the correct duty has been paid on the
15 instrument chargeable with duty.
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(2) The stamp on a counterpart or replica must
indicate that the correct duty has been paid on the
instrument of which it is a counterpart or replica.
(3) In this section--
5 "replica" means an instrument that--
(a) is executed to replace; and
(b) contains the same terms as, but no other
terms than, those contained in--
a previously executed instrument that has
10 been lost, spoiled or destroyed.
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PART 2--AUTHORISATION OF RETURNS SYSTEMS
264. Authorised persons
(1) The Commissioner may, by instrument, authorise
specified persons, or persons of a specified class,
5 to be authorised persons in relation to a specified
class of instruments or transactions that are, or but
for an exemption would be, chargeable with duty
under this Act.
(2) The Commissioner must cause notice of an
10 authorisation under this section to be published in
the Government Gazette.
265. Endorsement of instruments by authorised persons
(1) An authorised person may endorse in the
approved manner--
15 (a) an instrument in the class of instruments; or
(b) an instrument effecting or evidencing a
transaction in the class of transactions--
in relation to which the person is authorised.
(2) If duty is chargeable on the instrument or
20 transaction, the endorsement must specify the
amount of duty chargeable.
(3) An instrument is taken--
(a) to be duly stamped to the amount of duty
shown on the endorsement; or
25 (a) to be duly stamped as exempt from duty if
the endorsement states that the instrument or
transaction is exempt.
(4) An authorised person must keep a record in the
approved form of endorsements made under this
30 section.
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(5) An authorised person must not knowingly--
(a) endorse an instrument with an amount of
duty less than the amount with which it is
chargeable under this Act; or
5 (b) otherwise endorse an instrument except in
the approved manner.
Penalty: 5 penalty units.
266. Payment of duty by authorised persons
(1) An authorised person must, in accordance with
10 this section--
(a) lodge a return with the Commissioner
specifying the total of all amounts of duty
endorsed on instruments by the authorised
person under section 265; and
15 (b) pay to the Commissioner a sum equal to that
total.
Penalty: 20 penalty units plus an amount equal
to double the amount that would have
been payable if the provision had been
20 complied with.
(2) The return is to be lodged, and the sum paid, at
the intervals, and in respect of the periods,
determined by the Commissioner.
267. Offset of overpaid amounts
25 (1) This section applies if an authorised person pays a
sum to the Commissioner in respect of a period
that is greater than the total amount of duty
chargeable on each instrument, or on the
transactions effected or evidenced by each
30 instrument, endorsed by the authorised person
during that period because the authorised
person--
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(a) miscalculated the amount of duty with which
an instrument or transaction is chargeable; or
(b) made a mistake adding up the total of all
amounts endorsed on the instruments.
5 (2) The authorised person may reduce the sum
payable in respect of the next or a subsequent
period (being a period within 3 years after the date
on which the overpayment was made) by the
amount overpaid.
10 (3) An authorised person who reduces an amount
under this section must lodge a statement with the
Commissioner at the time of making the reduction
giving details of the overpayment.
(4) If the overpayment was caused by miscalculating
15 the amount of duty chargeable on an instrument or
transaction, the authorised person--
(a) must re-endorse the instrument in the
approved manner with the correct amount of
duty; and
20 (b) if the authorised person has charged to, or
recovered from, another person an amount in
respect of the overpayment--must reimburse
that person for the amount charged or
recovered.
25 268. Unauthorised endorsement
(1) An authorised person must not endorse an
instrument in a class of instruments in relation to
which the person is not authorised.
Penalty: 100 penalty units.
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(2) A person who is not an authorised person must not
endorse an instrument in any manner that
indicates that the person is an authorised person.
Penalty: 100 penalty units.
5 _______________
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PART 3--ENFORCEMENT
269. Registration of instruments
A person must not register in a register of legal or
beneficial interests in dutiable property an
5 instrument that effects a dutiable transaction or an
instrument chargeable with duty unless--
(a) it is duly stamped; or
(b) it is stamped by the Commissioner or in a
manner approved by the Commissioner.
10 Penalty: 100 penalty units.
270. Registration of transfer of shares in private
companies
(1) A private company must not enter in its records a
transfer of shares on which duty is charged under
15 this Act unless--
(a) a transfer has been delivered to the private
company; and
(b) the transfer is duly stamped.
Penalty: 100 penalty units.
20 (2) For the purposes of this section, a private
company is entitled to assume that an instrument
is duly stamped if--
(a) it bears any of the following--
(i) an impressed stamp;
25 (ii) an adhesive stamp, unless the company
is the legal or beneficial owner of land
in Victoria;
(iii) an endorsement under section 265;
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(iv) an endorsement in accordance with an
approval under section 39 of the
Taxation Administration Act 1997;
(v) an exempt stamp; or
5 (b) it is accompanied by a current exemption
certificate.
271. Registration of transfer of units
(1) The trustee or manager of a unit trust scheme must
not enter in its records a transfer of units on which
10 duty is charged under this Act unless--
(a) a proper instrument of transfer has been
delivered to the trustee or manager; and
(b) the instrument is duly stamped.
Penalty: 100 penalty units.
15 (2) For the purposes of this section, the trustee or
manager of a unit trust scheme is entitled to
assume that an instrument is duly stamped if--
(a) it bears any of the following--
(i) an impressed stamp;
20 (ii) an adhesive stamp;
(iii) an endorsement under section 265;
(iv) an endorsement in accordance with an
approval under section 39 of the
Taxation Administration Act 1997;
25 (v) an exempt stamp; or
(b) it is accompanied by a current exemption
certificate.
(3) A reference in this section to the trustee or
manager of a unit trust scheme includes a
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reference to the responsible entity, or to a
custodian or agent of the responsible entity, of a
managed investment scheme that is not registered
under Chapter 5C of the Corporations Law.
5 272. Receipt of instruments in evidence
(1) An instrument that effects a dutiable transaction
or is chargeable with duty under this Act is not
available for use in law or equity for any purpose
and may not be presented in evidence in a court or
10 tribunal exercising civil jurisdiction unless--
(a) it is duly stamped; or
(b) it is stamped by the Commissioner or in a
manner approved by the Commissioner.
(2) A court or tribunal may admit in evidence an
15 instrument that effects a dutiable transaction, or is
chargeable with duty in accordance with the
provisions of this Act, and that does not comply
with sub-section (1)--
(a) if the instrument is after its admission
20 transmitted to the Commissioner in
accordance with arrangements approved by
the court or tribunal; or
(b) if (where the person who produces the
instrument is not the person liable to pay the
25 duty) the name and address of the person so
liable is forwarded, together with the
instrument, to the Commissioner in
accordance with arrangements approved by
the court or tribunal.
30 (3) A court or tribunal may admit in evidence an
unexecuted counterpart of an instrument that
effects a dutiable transaction, or is chargeable
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with duty in accordance with the provisions of this
Act, if the court or tribunal is satisfied that--
(a) the instrument of which it is a counterpart is
duly stamped, or is stamped in a manner
5 approved by the Commissioner; or
(b) the counterpart is duly stamped under
section 263.
273. Commissioner may obtain Valuer-General valuation
(1) If--
10 (a) a taxpayer provides any information to
the Commissioner as to the value of
any land that is relevant to an
assessment of duty under this Act; and
(b) the Commissioner considers that the
15 value of the land is understated--
the Commissioner may refer the matter to the
Valuer-General for valuation of the land.
(2) The taxpayer must pay the cost of a
valuation by the Valuer-General under sub-
20 section (1) if--
(a) the Valuer-General's valuation of the
land exceeds the valuation provided by
the taxpayer by 15% or more; and
(b) the taxpayer does not object to the
25 assessment of duty based on the
valuation or, if the taxpayer does
object, the valuation of the land as
determined on objection, appeal or
review exceeds the valuation provided
30 by the taxpayer by 15% or more.
274. Ascertainment of value of certain items
If it is necessary for the purpose of assessing duty
under this Act to ascertain the value of--
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(a) any estate or annuity or interest for the life of
any person; or
(b) any estate or annuity or interest determinable
on or subject to any contingency or the
5 happening of any event; or
(c) any estate or annuity or interest in remainder
expectant on the death of any person or
expectant on or subject to any contingency
or the happening of any event--
10 regard may be had in ascertaining the value of any
such property to the death of the person having
the life estate or annuity or interest or the
happening of the contingency or event at any time
before the assessment of duty is actually made.
15 275. Impounding of instruments
(1) The Commissioner may impound any instrument
that ought to be but is not stamped or is
insufficiently stamped.
(2) The Commissioner may retain any impounded
20 instrument until the duty or any interest or penalty
tax, or all such amounts, have been paid.
276. Injunction to prevent unregistered businesses trading
The Supreme Court, on application by the
Commissioner, may grant an injunction
25 restraining a person who is required to be
registered under this Act in respect of a business
carried on by the person from carrying on such a
business unless the person is so registered.
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30
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PART 4--PAYMENT OF FEES AND CHARGES UNDER
OTHER ACTS BY STAMPS OR OTHER METHODS
277. Introduction and overview
This Part provides for certain fees and charges
5 payable to the State to be paid in stamps, money
or another prescribed manner.
278. Governor in Council may determine method of
payment of fees and charges
(1) From time to time, the Governor in Council, by
10 notice published in the Government Gazette, may
direct that a fee or charge payable under an
enactment to the State, a representative of the
State or a court is to be paid in stamps, money or
another prescribed manner.
15 (2) Sub-section (1) does not apply to a fee or charge
that is--
(a) commission or remuneration in the nature of
commission or poundage chargeable on, or
to be retained out of, money levied by
20 execution or otherwise; or
(b) an allowance or payment to a person for
travelling expenses.
279. Stamps to be impressed or adhesive
If the Governor in Council directs under
25 section 278 that a fee or charge is to be paid in
stamps, the Governor in Council must direct
whether the payment is to be denoted by an
impressed stamp or an adhesive stamp.
280. Penalty for failing to pay as directed
30 A person who fails to pay a fee or charge to which
a direction under section 278 applies in
accordance with the direction is liable to a penalty
of an amount equal to double the amount of the
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fee or charge unpaid, in addition to the amount of
the fee or charge and any other penalty imposed
by law.
281. Unstamped instrument not admissible
5 If the Governor in Council directs under
section 278 that a fee or charge is to be paid in
stamps, an instrument that evidences the payment
of the fee is not available for use in law or equity
for any purpose and may not be presented in
10 evidence in a court or tribunal exercising civil
jurisdiction unless--
(a) it is duly stamped; or
(b) it is stamped by the person receiving the fee
or charge in a manner approved by that
15 person.
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CHAPTER 13
GENERAL
282. Payments from Consolidated Fund
If the Commissioner is authorised or required to
5 pay an amount under this Act, the amount is to be
paid from the Consolidated Fund which is
appropriated by this section to the necessary
extent.
283. Regulations
10 (1) The Governor in Council may make regulations
for or with respect to any matter or thing required
or permitted by this Act to be prescribed or that is
necessary to be prescribed to give effect to this
Act.
15 (2) A regulation may create an offence punishable by
a penalty not exceeding 20 penalty units.
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CHAPTER 14
REPEALS, CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS
284. Repeal of Stamps Act 1958
5 The Stamps Act 1958 is repealed.
285. Consequential amendments
An Act specified in the heading to an item in
Schedule 1 is amended as set out in that item.
286. Transitional provisions
10 Schedule 2 has effect.
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SCHEDULES
SCHEDULE 1
Section 285
CONSEQUENTIAL AMENDMENTS
5 1. Co-operatives Act 1996
1.1 Section 33 is repealed.
1.2 In sections 335(4), 386(4) and 386(5) omit "to stamp duty
or".
2. Hire-Purchase Act 1959
10 2.1 In section 2(1), in the definition of "rental business duty",
for "section 131AC of the Stamps Act 1958" substitute
"Chapter 6 of the Duties Act 2000".
2.2 In the First Schedule, for "Stamps Act 1958" substitute
"Duties Act 2000".
15 3. Livestock Disease Control Act 1994
3.1 In section 92(1)(b), (1A)(b) and (2)(b), for "payable under
the Stamps Act 1958" substitute "chargeable under the
Duties Act 2000".
3.2 In section 93(1), (1A) and (2), for "stamp duties payable
20 under the Stamps Act 1958" substitute "duty chargeable
under the Duties Act 2000".
3.3 In section 93(4), for "swine stamp duty" substitute "swine
duty".
3.4 In section 94, for "Stamps Act 1958" substitute "Duties
25 Act 2000".
3.5 In section 95(1)(b), (1A)(b) and (2)(b), for "stamp duty
payable under the Stamps Act 1958" substitute "duty
chargeable under the Duties Act 2000".
3.6 In section 96, for "Stamps Act 1958" substitute "Duties
30 Act 2000".
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4. Marketable Securities Act 1970
4.1 In section 3(1) the definition of "broker" is repealed.
4.2 In section 8(4) the definition of "broker's agent" is repealed.
5. Municipal Association Act 1907
5 For section 12 substitute--
"12. Association does not require registration as a general
insurer under Duties Act 2000
Despite section 185 of the Duties Act 2000, the
Association is not required to be registered under Part
10 2 of Chapter 8 of that Act.".
6. Taxation Administration Act 1997
6.1 After section 4(b) insert--
"(ba) Duties Act 2000 and regulations made under that
Act;".
15 6.2 At the end of section 9(3)(b) insert--
"; or
(c) the reassessment is authorised to be made more than 3
years after the initial assessment by another taxation
law.".
20 6.3 After section 10(3) insert--
"(3A) The Commissioner may, if he or she thinks fit, permit
any error in an instrument or statement to be
corrected.".
6.4 After section 43 insert--
25 "43A. Stamping of instruments
If--
(a) an approval under this Part provides for an
exemption from a requirement for the stamping
of an instrument; and
30 (b) the instrument is endorsed in accordance with
the conditions of the approval--
the instrument is taken to be duly stamped but without
affecting liability for the payment of tax in relation to
the instrument under the relevant taxation law.".
35 6.5 In section 49, after sub-section (2) insert--
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"(3) If--
(a) the Commissioner extends the time for the
payment of tax, being duty payable on an
instrument; and
5 (b) the instrument is not stamped before the end of
the extension period--
the instrument may be stamped on payment of the
unpaid duty and any applicable interest and penalty
tax.
10 (4) If the Commissioner accepts the payment of duty on
an instrument by instalments, the instrument is not
taken to be duly stamped until the total duty payable
on the instrument has been paid.
(5) In this section, a reference to an instrument includes a
15 reference to a statement or return that records matters
in respect of which duty is chargeable.".
7. Taxation (Interest on Overpayments) Act 1986
In section 3(1)--
(a) in the definition of "objection"--
20 (i) at the end of paragraph (d) omit "or";
(ii) paragraph (f) is repealed;
(b) in the definition of "relevant tax" paragraph (f) is
repealed.
8. Taxation (Reciprocal Powers) Act 1987
25 In section 3(1), in the definition of "State Taxation Act", for
paragraph (b) substitute--
"(b) Duties Act 2000;".
9. Valuation of Land Act 1960
In section 3(5)(c), for paragraph (i) substitute--
30 "(i) where the valuation is required for determining, for
the purposes of the Duties Act 2000 or any
corresponding previous enactment, the value of any
land that is the subject of settlement or gift or for
taxation purposes; or".
35 10. Victorian Funds Management Corporation Act 1994
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In section 36, for "duty under the Stamps Act 1958 would
be payable on an instrument entered into for the purposes of
a transaction" substitute "duty would be chargeable under
the Duties Act 2000 in respect of a transaction, or an
5 instrument executed for the purposes of a transaction,".
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