Duties Act 2001

Duties Act 2001

An Act to create and charge a number of duties

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

Chapter 1 - Preliminary

PART 1 - Administration

1.   Short title

This Act may be cited as the Duties Act 2001 .

2.   Commencement

This Act commences on 1 July 2001.

PART 2 - General

3.   Interpretation

In this Act –

Act imposing duty means –

(a) a corresponding Act; or

(b) an Act to which the Taxation Administration Act 1997 applies;

ADR means a negotiable certificated receipt issued by a depositary resident outside Australia acknowledging the interest of the registered holder of the receipt in shares in a Tasmanian company held by the depositary, or deposited with a depositary to hold, as trustee for the holder;

advance means an advance referred to in section 140 ;

annuity has the meaning given by section 174(6) ;

application to register a motor vehicle means –

(a) an application under the Vehicle and Traffic Act 1999 to register a motor vehicle; and

(b) an application under the Vehicle and Traffic Act 1999 to transfer the registration of a motor vehicle;

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:

(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 1891 applies;

(c) private companies are associated persons if common shareholders have a majority interest in each private company;

(d) trustees are associated persons if any person is a beneficiary common to the trusts (not including a public unit trust scheme) of which they are trustees;

(e) a private company and a trustee are 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 public unit trust scheme) of which the trustee is a trustee;

(f) a public company and another person are associated persons if the person is a subsidiary of that public company;

(g) persons are associated persons if they are acting in concert;

Australian jurisdiction means a State or Territory of the Commonwealth;

Australian register has the same meaning as in the Corporations Law;

Australian Stock Exchange means the Australian Stock Exchange Limited;

bankrupt includes applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with creditors or making an assignment of remuneration for their benefit;

beneficiary of a discretionary trust means a person referred to in section 63(1) ;

building includes –

(a) a part of a building; and

(b) a building attached to or conjoined with another building; and

(c) a flat or home unit;

business asset has the meaning given by section 9(1)(g) ;

certificate of premium paid means a certificate referred to in section 221(1) ;

charge includes impose;

child of de facto partners means a child –

(a) of which the partners are the natural parents; or

(b) of the female partner whose male partner is treated as the father of the child under section 10C of the Status of Children Act 1974 ; or

(c) adopted by the partners;

commercial hire business has the meaning given by section 128 ;

Commissioner means the Commissioner of State Revenue appointed as such under the Taxation Administration Act 1997 ;

company title dwelling means a separate dwelling in a building containing more than one separate dwelling situated on land in Tasmania owned or leased by a company in which shares issued by the company are owned by persons who, by virtue of the ownership of their shares, have an exclusive right to occupy a part of the building;

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 1993 of the Commonwealth;

complying superannuation fund means –

(a) an entity that is a complying superannuation fund in accordance with section 42 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; and

(b) an exempt public sector superannuation scheme;

consumer credit contract means a contract relating to credit regulated under –

(a) the Consumer Credit (Tasmania) Code; or

(b) an Act of another Australian jurisdiction that is the same, or substantially the same, as that Code;

Consumer Price Index means the Consumer Price Index referred to in section 109(6) ;

corporation means a body corporate, whether incorporated in this jurisdiction or elsewhere;

corresponding Act means an Act of another Australian jurisdiction that corresponds to this Act;

cost, in relation to a lease, has the meaning given by section 101 ;

declaration of trust means a declaration of trust referred to in section 6(3) ;

de facto partner means a de facto partner as determined in the De Facto Relationship Act 1999 ;

de facto relationship means the relationship between a man and a woman who, although not legally married to each other, live together on a genuine domestic basis as husband and wife;

discretionary trust means a trust under which 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 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

(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 any person or persons in whom it is vested if a discretion conferred under the trust is exercised;

dutiable property has the meaning given by section 9 ;

dutiable proportion means a proportion referred to in section 149(2) ;

dutiable transaction has the meaning given by section 6(2) ;

dutiable value, in relation to dutiable property, has the meaning given by section 18 ;

dutiable value, in relation to a motor vehicle, has the meaning given by section 198 ;

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 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);

equipment financing arrangement means an arrangement referred to in section 119 ;

exempt acquisition means an acquisition referred to in section 72(1) ;

exemption certificate means a certificate of exemption in force under Part 3 of Chapter 8 ;

farming company means a company –

(a) the shares of which are not listed on a stock exchange; and

(b) that has assets including farming property;

farming property means –

(a) land used solely or principally for the business of primary production; or

(b) personal property which is used solely or principally in connection with the business of primary production;

financial corporation has the meaning given by section 154(4) ;

fit-out costs, in relation to a lease, means improvements made by or on behalf of, or at the expense of, the lessee and that remain the property of the lessee;

foreign resident means a person who at the relevant time –

(a) in the case of a person, other than a person referred to in paragraph (b) or (c) , is not resident or domiciled in Australia; or

(b) in the case of a body corporate, is not incorporated under a law of an Australian jurisdiction and –

(i) does not have its central management and control in Australia; and

(ii) does not have its voting power controlled by shareholders who are residents of Australia; or

(c) in the case of a partnership or other unincorporated association or body of persons, does not have a member who is resident in Australia; or

(d) in the case of a trust estate –

(i) does not have a trustee who is resident in Australia; and

(ii) does not have its central management and control in Australia;

franchise means the package of rights held by a franchisee under a franchise arrangement;

franchise arrangement means an agreement or other arrangement between 2 or more persons by which one of them (the franchisor) authorises or permits another (the franchisee) –

(a) to engage in the business of offering, selling or distributing goods and services within or partly within Tasmania, and the franchisee is required to do so –

(i) in accordance with a specified marketing, business or technical plan or system; and

(ii) under a common format or procedure (or format and procedure); and

(b) to use a mark or common trade name, in such a manner that the business carried on by the franchisee is or is capable of being identified by the public as being substantially associated with the mark or name identifying, commonly connected with or controlled by the franchisor or a related person;

franchisee means a person who is authorised or permitted by a franchisor to do certain things under a franchise arrangement;

franchisor means a person who authorises or permits a franchisee to do certain things under a franchise arrangement;

general insurance has the meaning given by section 163 ;

general insurer means a person referred to in section 178(2) ;

GST has the same meaning as 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 section 7 of the National Taxation Reform (Commonwealth-State Relations) Act 1999 by a person who is a State entity within the meaning of that Act;

hire of goods has the meaning given by section 118 ;

hire purchase agreement has the meaning given by section 119(2) ;

hiring charges has the meaning given by section 124 ;

home means a private dwelling and includes a private dwelling which is a company title dwelling and a farming property on which a private dwelling is erected;

instrument includes a written document and a written statement;

insurance includes assurance;

insurance against accident means insurance referred to in section 172(2) ;

insurance intermediary has the same meaning as in the Insurance (Agents and Brokers) Act 1984 of the Commonwealth;

insurer has the meaning given by section 178(1) ;

intellectual property means –

(a) a business name, trading name, trade mark, industrial design, patent, registered design or copyright; or

(b) a right, whether or not under a franchise arrangement, to use or exploit –

(i) a business name, trading name, trade mark or industrial design; or

(ii) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process);

interest includes an estate or proprietary right;

interest, in a land-rich corporation, has the meaning given by section 64(1) ;

land includes a stratum;

land holding means an interest in land as referred to in section 61 ;

land use entitlement means an entitlement to occupy land within Tasmania conferred through an ownership of shares in a company or an ownership of units in a unit trust scheme, or a combination of a shareholding or ownership of units together with a lease or licence;

lease has the meaning given by section 99 ;

lease instrument means an instrument that evidences or effects a lease;

liability date means the date on which a mortgage is liable under section 142 for mortgage duty;

life company has the same meaning as in the Life Insurance Act 1995 of the Commonwealth;

life insurance has the meaning given by section 172(1) ;

majority interest, in a private corporation, means an interest referred to in section 64(2) ;

majority shareholder in a private company means –

(a) in the case of a company the voting shares in which are not divided into classes, a person entitled to not less than 50% of those shares; and

(b) in the case of a company the voting shares in which are divided into classes, a person entitled to not less than 50% of the shares in one of those classes;

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;

market value, in relation to a motor vehicle, means the amount for which the motor vehicle might reasonably be sold, free of encumbrances, on the open market;

marketable securities means the following:

(a) shares referred to in section 9(1)(e) ;

(b) units referred to in section 9(1)(f) ;

(c) an interest in shares or units referred to in paragraph (a) or (b) ;

marriage includes a purported marriage that is void;

matrimonial property means –

(a) property of the parties to a marriage or of either of them; and

(b) any estate or interest in that property;

mortgage means an instrument referred to in section 139 ;

mortgage duty means duty chargeable in respect of a mortgage;

motor dealer means a person carrying on the business of dealing in motor vehicles;

motor vehicle means a motor vehicle or trailer within the meaning of the Vehicle and Traffic Act 1999 ;

new motor vehicle means a motor vehicle that has not previously been registered under the Vehicle and Traffic Act 1999 or the law of another Australian jurisdiction;

partnership interest has the meaning given by section 9(1)(i) ;

party to a marriage includes a person who was a party to a marriage that was dissolved or annulled in Australia or elsewhere;

passenger vehicle means a passenger vehicle referred to in section 197(4) ;

policy of mortgage insurance means a policy of mortgage insurance referred to in section 171(3) ;

pooled superannuation trust means an entity that is a pooled superannuation trust in accordance with section 44 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;

premium, in relation to general insurance, means a premium referred to in section 164 ;

primary production means –

(a) the cultivation of land for the purpose of selling the produce of the cultivation; or

(b) the maintenance of animals for the purpose of selling them or their natural increase or bodily produce; or

(c) the keeping of bees for the purpose of selling their honey; or

(d) the production from a nursery; or

(e) the propagation for sale of mushrooms or flowers; or

(f) an undertaking relating to planting or tending trees with a view to selling the trees or timber obtained from those trees; or

(g) the breeding of horses;

private company means a company –

(a) that is not limited by shares; or

(b) whose shares are not quoted on the Australian Stock Exchange or a recognised stock exchange;

private corporation has the meaning given by section 59 ;

private unit trust scheme means a unit trust scheme that is not a public unit trust scheme;

property means real property and personal property;

property transferred includes property referred to in Column 2 of the table in section 7 ;

public company means a public company within the meaning of the Corporations Law;

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 exchange; or

(b) that is the subject of a deed that is an approved deed for the purposes of Division 5 of Part 7.12 of the Corporations Law or a corresponding law, but only if –

(i) some or all of its units have been offered to the public; and

(ii) no fewer than 50 persons hold units in it; or

(c) that is a managed investment scheme within the meaning of Chapter 5C of the Corporations Law and in respect of which –

(i) some or all of the units have been offered to the public; and

(ii) not less than 50 persons hold units in it; or

(d) that is exempted from the requirements of Part 7.12 of the Corporations Law and in respect of which –

(i) some or all of the units have been offered to the public; and

(ii) not less than 50 persons hold units in it; or

(e) that, in the opinion of the Commissioner, will be a public unit trust scheme within 12 months after the Commissioner gives written notification of that opinion to a person who has requested the Commissioner to express that opinion in relation to the unit trust scheme;

recognised stock exchange means –

(a) a stock exchange that is a member of the Federation Internationale des Bourses de Valeurs; or

(b) the Stock Exchange of Newcastle; or

(c) a stock exchange declared to be a recognised stock exchange under section 254 ;

registered insurer means an insurer registered under Part 3 of Chapter 7 ;

related body corporate has the same meaning as in the Corporations Law;

related corporation has the meaning given by section 154(4) ;

related person means a person who is related to another person in accordance with any of the following provisions:

(a) natural persons are related persons if –

(i) one is the spouse or de facto partner of the other; or

(ii) the relationship between them is that of a parent and child, brothers, sisters, or brother and sister;

(b) private companies are related persons if they are related bodies corporate within 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 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 beneficiary of the trust (not being a public unit trust scheme) of which the trustee is a trustee;

(e) a private company and a trustee are related persons if the company, or a majority shareholder or director of the company, is a beneficiary of the trust (not being a public unit trust scheme) of which the trustee is a trustee;

relationship property, in relation to a de facto relationship, means property of the parties to the de facto relationship or of either of them;

relative means a person referred to in section 225(3) ;

relevant acquisition means an acquisition referred to in section 67 ;

replica has the meaning given by section 220(4) ;

responsible entity, in relation to a managed investment scheme, has the same meaning as in the Corporations Law;

right, in relation to shares or units, means any right (whether actual, prospective or contingent) of a person to have shares or units issued by a company or trust to the person, whether or not on payment of money or for other consideration, but does not include a convertible note;

shares includes rights to shares;

special hiring agreement has the meaning given by section 122 ;

Tasmanian company means a company incorporated or taken to be incorporated under the Corporations Law of Tasmania, and includes a body corporate that is incorporated under any other Tasmanian Act and that is not a company incorporated or taken to be incorporated under the Corporations Law of another State or a Territory of the Commonwealth;

trading undertaking means an undertaking that –

(a) provides goods or services for monetary or other consideration; and

(b) has a predominantly commercial or profit-making focus; and

(c) meets a substantial part of its costs from charges;

trailer means a trailer as defined in the Vehicle and Traffic Act 1999 ;

transferee includes a person referred to in Column 3 of the table in section 7 ;

unencumbered value has the meaning given by section 20 ;

unit, in relation to a unit trust scheme, means –

(a) a right or interest (whether described as a unit or a sub-unit or otherwise) of a 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 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 whatever pursuant to the trust;

variation, in relation to a lease, means a variation made for any reason or on any basis and includes a further variation.

4.   Duty debt to Crown

A duty charged by this Act is, when the liability to pay the duty arises, a debt due to the Crown.

5.   Act read together with Taxation Administration Act 1997

This Act is to be read together with the Taxation Administration Act 1997 .

Chapter 2 - Transactions concerning dutiable property

PART 1 - Introduction and overview

6.   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:

(i) an agreement for the sale or transfer of dutiable property, whether conditional or not;

(ii) a declaration of trust over dutiable property;

(iii) a grant or surrender of an interest in land in Tasmania;

(iv) a foreclosure of a mortgage over dutiable property;

(v) a vesting of dutiable property by or as a consequence of a statute or court order;

(vi) the giving, granting or issuing of a licence to another person in the circumstances referred to in section 9(2) .

(2)  Such a transfer or transaction is a dutiable transaction for the purposes of this Act.

(3)  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 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 property, may not have joined in or assented to the declaration;

transfer includes an assignment, an exchange and a buy-back of shares in accordance with Division 2 of Part 2J.1 of the Corporations Law.

7.   Imposition of duty on dutiable transactions that are not transfers

(1)  The duty charged by this Chapter on a dutiable transaction referred to in section 6(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 transaction specified in Column 1 of the following Table –

(a) the property specified opposite the dutiable transaction in Column 2 is taken to be the property transferred (and a reference in this Act to property transferred includes a reference to such property); and

(b) the person specified opposite the dutiable transaction in Column 3 is taken to be the 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 opposite the dutiable transaction in Column 4 (and a reference in this Act to the time at which a transfer occurs includes a reference to such a time).

Column 1 Dutiable transaction	Column 2 Property transferred	Column 3 Transferee	Column 4 When transfer occurs
agreement for sale or transfer	the property agreed to be sold or transferred	the purchaser or transferee	when the agreement is entered into
declaration of trust	the property vested or to be vested in the declarant	the person declaring the trust	when the declaration is made
grant or surrender	the granted or surrendered property	the person to whom the property is granted or surrendered	when the grant or surrender takes place
foreclosure	the mortgaged property	the mortgagee	when the foreclosure order is made
vesting by or as a consequence of court order	the vested property	the person in whom the property is vested	when the vesting occurs
vesting by or as a consequence of statute	the vested property	the person in whom the property is vested	when the vesting occurs
giving, granting or issue of licence	the licence	the person to whom the licence is issued	when the licence is issued

8.   What form must a dutiable transaction take?

It is immaterial whether or not a dutiable transaction is effected by a written instrument or by any other means, including electronic means.

9.   What is dutiable property?

(1)  Dutiable property is any of the following:

(a) land in Tasmania;

(b) a mineral tenement within the meaning of the Mineral Resources Development Act 1995 ;

(c) fixtures to land or a mineral tenement;

(d) a land use entitlement;

(e) shares –

(i) in a Tasmanian company; or

(ii) in a corporation incorporated outside Australia that are kept on the Australian register kept in Tasmania;

(f) units in a unit trust scheme, being units –

(i) registered on a register kept in Tasmania; or

(ii) that are not registered on a register kept in Australia, but in respect of which the manager (or, if there is no manager, the trustee) of the unit trust scheme is a Tasmanian company or is a natural person resident in Tasmania;

(g) a business asset, being, at any relevant time –

(i) the goodwill of a business if, during the previous 12 months, a sale of goods or services, or goods and services, has been made to a Tasmanian customer of the business; or

(ii) intellectual property that has been used or exploited in Tasmania during the previous 12 months, but only if the intellectual property is the subject of a dutiable transaction that is, or forms part of, a sale of a business; or

(iii) a statutory licence or permission under a law of the Commonwealth, if the rights under the licence or permission have been exercised, during the previous 12 months, in respect of Tasmania or in an area that includes Tasmania or a part of Tasmania;

(h) a statutory licence or permission under a Tasmanian law;

(i) a partnership interest, being an interest in a partnership that has partnership property that is dutiable property elsewhere referred to in this section;

(j) goods in Tasmania, if the subject of an arrangement that includes a dutiable transaction over any dutiable property (other than intellectual property) elsewhere referred to in this section, not including the following:

(i) goods that are stock-in-trade;

(ii) materials held for use in manufacture;

(iii) goods under manufacture;

(iv) livestock;

(v) a registered motor vehicle;

(k) an option to purchase dutiable property, other than shares, units or an interest in shares or units referred to in paragraphs (e) and (f) ;

(l) an interest in any dutiable property referred to in the preceding paragraphs of this section, except to the extent that –

(i) it arises as a consequence of the ownership of a unit in a unit trust scheme and is not a land use entitlement; or

(ii) it is, or is attributable to, an option over dutiable property; or

(iii) it is an interest in a marketable security, being an interest that is traded on the Sydney Futures Exchange.

(2)  A reference in subsection (1) to a licence or permission includes a reference to a licence or permission surrendered or relinquished or for which an application for renewal is not made and the licence or permission or similar licence or permission is given, granted or issued to another person if the Commissioner considers that the giving, grant or issue has the same effect or amounts to a transfer of the licence or permission.

(3)  Despite subsection (1) , the following marketable securities are not dutiable property:

(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 quoted on the Australian Stock Exchange or a recognised stock exchange.

10.   When does a liability for duty arise?

(1)  A liability for duty charged by this Chapter arises when a transfer of dutiable property occurs.

(2)  However, if a transfer of dutiable property is effected by a written instrument, liability for duty charged by this Chapter arises when the instrument is first executed.

11.   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.

12.   The liability of joint tenants

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.

13.   Necessity for written instrument or written statement

(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 a form approved by the Commissioner.

(2)  The written statement must be made within 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 respect of the statement may be satisfied by the lodgment of and payment of duty on the written instrument within 3 months after the date on which the dutiable transaction occurs.

14.   Lodging written instrument or written statement with Commissioner

A transferee who is liable to pay duty in respect of a dutiable transaction must, within 3 months after the liability arises, lodge with the Commissioner –

(a) the written instrument that effects the dutiable transaction or, if there is more than one such written instrument, each one of them as provided by section 16(1) ; or

(b) the written statement made in compliance with section 13 .

15.   When must duty be paid?

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.

16.   No double duty

(1)  If a dutiable transaction is effected by more than one instrument –

(a) one instrument is to be stamped with the duty payable on the dutiable transaction; and

(b) each other instrument is chargeable with duty of $20.

(2)  The duty chargeable in respect of a transfer of dutiable property made in conformity with an agreement for the sale or transfer of the dutiable property is $20 if the duty chargeable in respect of the agreement has been paid.

(3)  Notwithstanding subsections (1) and (2) , if ad valorem duty was paid on a transfer made in conformity with an agreement for the sale of real property, duty is not payable on that agreement provided that duty was paid on the transfer within 3 months of the date of execution of the agreement.

(4)  The duty chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property is $20 if –

(a) the duty chargeable in respect of the agreement has been paid; and

(b) the transfer would be in conformity with the agreement if the transferee was the purchaser under the agreement; and

(c) the transfer occurs at the same time as, or proximately with, the completion or settlement of the agreement; and

(d) at the time the agreement was entered into –

(i) the purchaser under the agreement and the transferee under the transfer were related persons, except as provided by subparagraph (ii) ; or

(ii) if the purchaser purchased as a trustee, the transferee and the beneficiary were related persons.

(5)  The duty chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property is $20 if –

(a) the duty chargeable in respect of the agreement has been paid; and

(b) the Commissioner is of the opinion that the purchaser, when that agreement was executed, was acting as the agent of the transferee.

(6)  The duty chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property is $20 if –

(a) the duty chargeable in respect of the agreement has been paid; and

(b) the Commissioner is satisfied that the purchaser named in that agreement entered into that agreement intending to transfer any dutiable property so purchased to any of the following:

(i) a corporation that is yet to be incorporated or is in the process of being incorporated;

(ii) a company intended to be acquired by the purchaser.

(7)  The duty chargeable on a transfer to a trustee of dutiable property subject to a declaration of trust is $20 if ad valorem duty has been paid on the declaration of trust in respect of the same dutiable property.

(8)  The duty chargeable on a transfer of dutiable property as a consequence of a foreclosure order is $20 if ad valorem duty has been paid on the foreclosure.

(9)  The duty chargeable on a declaration of trust that declares the same trusts as those upon and subject to which the same dutiable property was transferred to the person declaring the trust is $20 if ad valorem duty has been paid on the transfer.

(10)  A dutiable transaction in respect of marketable securities that confer a land use entitlement is taken to be a dutiable transaction in respect of the land use entitlement only.

(11)  If duty has been paid on the dutiable transaction referred to in subsection (10) in accordance with a law of another Australian jurisdiction, the duty charged by this Chapter on the dutiable transaction is to be reduced by the amount of the duty so paid.

17.   What is the rate of duty?

Duty is charged on the dutiable value of the dutiable property subject to the dutiable transaction at the relevant rate set out in Part 3 .

PART 2 - Dutiable value

18.   What is the dutiable value of dutiable property?

(1)  The dutiable value of dutiable property that is subject to a dutiable transaction is the greater 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, or both); and

(b) the unencumbered value of the dutiable property.

(2)  The dutiable value of dutiable property transferred by way of foreclosure is the unencumbered value of the dutiable property and not the value of the debt secured by the mortgaged property.

(3)  The dutiable value of a business asset referred to in section 9(1)(g) that also has a relevant connection with the Commonwealth or another Australian jurisdiction is to be apportioned in accordance with section 24 .

(4)  The dutiable value of a partnership interest referred to in section 25 is to be determined in accordance with that section.

19.   What is the consideration for the transfer of dutiable property?

(1)  The consideration for the transfer of dutiable 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 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 complete it in accordance with its terms.

(3)  The consideration for the transfer of the goodwill of a business is taken to include the amount or value of the consideration for any restraint of trade arrangement entered into in connection with the transfer of the goodwill.

20.   What is the unencumbered value of dutiable property?

(1)  The unencumbered value of dutiable property is the value of the property determined without regard to any encumbrance to which the property is subject.

(2)  The unencumbered value of the goodwill of a business is taken to include the value of any restraint of trade arrangement entered into by the vendor in order to protect the value of the goodwill.

(3)  If, before land is transferred to a transferee, the transferee has made improvements to the land, the unencumbered value of the land is to be determined as if those improvements had not been made.

21.   Arrangements that reduce the dutiable value

If any arrangement affecting the dutiable value of dutiable property that was entered into within 12 months before a dutiable transaction was brought about by any person with the intention of reducing the dutiable value of the dutiable property, the Commissioner may –

(a) cause a valuation of the dutiable property to be made; and

(b) direct the valuer to disregard the arrangement for the purposes of the valuation; and

(c) assess duty on the basis of the valuation carried out in accordance with the direction.

22.   Aggregation of dutiable transactions

(1)  Dutiable transactions relating to separate items of dutiable property, or separate parts of, or interests in, dutiable property are to be aggregated and treated as a single dutiable transaction if –

(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, evidence, give effect to or arise from what is, substantially, one arrangement relating to all of the items or parts of, or interests in, the dutiable property.

(2)  Dutiable transactions are not to be aggregated under this section if the Commissioner is satisfied 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, or the interests in, the dutiable property as at the time at 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 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 16(1) , 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 lodged for stamping, details known to the transferee of –

(a) all of the items or parts of, or interests in, the dutiable property included or to be included in the arrangement referred to in subsection (1) ; and

(b) the consideration for each item or part of, or interest in, that dutiable property.

Penalty:  Fine not exceeding 100 penalty units.

(7)  The reference in this section to dutiable property does not include a reference to marketable securities.

23.   Apportionment – dutiable property and other property

(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 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 dutiable property.

24.   Apportionment – business assets in this and other jurisdictions

(1)  This section applies to a business asset referred to in section 9(1)(g) , being –

(a) the goodwill of a business if sales of goods or services, or goods and services, have also been made to a non-Tasmanian customer of the business during the previous 12 months; or

(b) intellectual property that has also been used or exploited in one or more other Australian jurisdictions during the previous 12 months; or

(c) a statutory licence or permission under a Commonwealth law if the rights under the licence or permission have been exercised during the previous 12 months in respect of one or more other Australian jurisdictions.

(2)  The dutiable value of a business asset to which this section applies is to be determined in accordance with the following formula:

where –

DV is the dutiable value;

A is the unencumbered value of the business asset, or so much of the consideration for the dutiable transaction as relates to the business asset, whichever is the greater;

X is the gross amount of the sales of goods and services (expressed in Australian dollars) made to Tasmanian customers of the business during the last 3 completed financial years preceding the dutiable transaction;

Y is the gross amount of the sales of goods and services (expressed in Australian dollars) made to both Tasmanian customers and non-Tasmanian customers of the business during the last 3 completed financial years preceding the dutiable transaction.

(3)  If an apportionment cannot be made under subsection (2) , the Commissioner may make an apportionment on such basis as the Commissioner considers appropriate in the circumstances.

(4)  For the purposes of this Chapter, a sale of goods or services is taken to be made to –

(a) a Tasmanian customer of a business if the goods are delivered, or the services are provided, in Tasmania to the customer; and

(b) a non-Tasmanian customer of a business if the goods are delivered, or the services are provided, outside Tasmania to the customer.

25.   Partnership interests

(1)  The dutiable value of a partnership interest is to be determined in accordance with the following formula:

where –

DV is the dutiable value;

A is the value of the partnership interest, or so much of the consideration for the dutiable transaction as relates to the partnership interest, whichever is the greater;

X is the unencumbered value of all dutiable property of the partnership;

Y is the unencumbered value of all assets of the partnership.

(2)  For the purposes of this section and despite subsection (1) , the unencumbered value of dutiable property that is a business asset to which section 24 applies is the dutiable value of the business asset determined in accordance with section 24 .

26.   Partitions

(1)  For the purposes of this section, a partition occurs when property (some or all of which is dutiable property) that is held by persons jointly (as joint tenants or tenants in common) and beneficially is transferred or agreed to be transferred to one or more of those persons.

(2)  For the purposes of this section and sections 14 and 16 , a partition is taken to be a single dutiable transaction.

(3)  The dutiable value of a partition is to be determined in accordance with the following formula:

where –

DV is the dutiable value;

A is the sum of the amounts by which the unencumbered value of the property transferred or agreed to be transferred to a person exceeds the unencumbered value of the interest held by the person in that property immediately before the partition, or the sum of any consideration for the partition paid by any of the parties, whichever is the greater;

X is the unencumbered value of all dutiable property the subject of the partition;

Y is the unencumbered value of all property the subject of the partition.

(4)  For the purposes of this section and despite subsection (3) , the unencumbered value of dutiable property that is a business asset to which section 24 applies is the dutiable value of the business asset determined in accordance with section 24 .

(5)  The minimum duty chargeable on a transaction that effects a partition is $20.

(6)  Duty charged by this section is payable by the persons making the partition or any one or more of them.

27.   Effect of alteration in purchase price

(1)  If after an agreement for the sale or transfer of dutiable property is entered into and before the property is transferred –

(a) the consideration under the agreement is reduced and the reduced consideration is not less than the unencumbered value of the dutiable property when the consideration was reduced; or

(b) the consideration under the agreement is reduced because the parties have agreed not to transfer some of the dutiable property previously agreed to be transferred and the reduced consideration is not less than the unencumbered value of the dutiable property that remained to be transferred when the consideration was reduced; or

(c) the consideration under the agreement is increased and the dutiable value when the consideration was increased is greater than the dutiable value when the agreement was entered into –

the Commissioner must assess or reassess the liability to duty of the agreement in accordance with the change in the consideration.

(2)  The liability to pay additional duty arising from an increase in the consideration occurs on the date the consideration is agreed to be increased.

28.   Entitlements of joint purchasers

(1)  If any property is agreed to be purchased by 2 or more persons otherwise than as joint tenants, the agreement for the purchase is to specify the part to be taken by each purchaser.

(2)  In the absence of such a specification referred to in subsection (1) , the purchasers are taken to have purchased the property in equal shares.

PART 3 - Rates of duty

29.   General rate

(1)  The rate of duty chargeable on a dutiable transaction is as follows:

The dutiable value of the dutiable property subject to the dutiable transaction	Rate of duty
Not more than $1 300	$20
More than $1 300 but not more than $10 000	$1.50 for every $100, or part, of the dutiable value
More than $10 000 but not more than $30 000	$150 plus $2 for every $100, or part, by which the dutiable value exceeds $10 000
More than $30 000 but not more than $75 000	$550 plus $2.50 for every $100, or part, by which the dutiable value exceeds $30 000
More than $75 000 but not more than $150 000	$1 675 plus $3 for every $100, or part, by which the dutiable value exceeds $75 000
More than $150 000 but not more than $225 000	$3 925 plus $3.50 for every $100, or part, by which the dutiable value exceeds $150 000
More than $225 000	$6 550 plus $4 for every $100, or part, by which the dutiable value exceeds $225 000

(2)  This rate applies unless other provision is made by this Chapter.

30.   Marketable securities

(1)  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 the marketable securities.

(2)  A rate of duty chargeable under this section does not apply to a dutiable transaction that confers a land use entitlement.

PART 4 - Special provisions

31.   Interim payment of duty

(1)  If the full dutiable value of dutiable property subject to a dutiable transaction cannot, in the Commissioner's opinion, be immediately ascertained, the Commissioner may make an assessment by way of estimate under section 21(2) of the Taxation Administration Act 1997 .

(2)  The written instrument or the written statement required by section 13 may be stamped "interim stamp only".

(3)  When the full dutiable value has been ascertained –

(a) the person liable to pay duty is to resubmit the written instrument or written statement to the Commissioner for further assessment; and

(b) the Commissioner must reassess the duty payable on the dutiable transaction.

(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, despite section 10 .

(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 13 is to be stamped with the amount of the balance and marked to indicate that duty has been duly paid.

32.   Purchases "off the plan"

(1)  Liability for duty on an off the plan purchase agreement arises –

(a) on completion of the agreement; or

(b) on the assignment of the whole or any part of the purchaser's interest under the agreement; or

(c) on the expiration of 12 months after the date of the agreement –

whichever first occurs.

(2)  This section applies despite section 10 .

(3)  Nothing in this section prevents the Commissioner from accepting payment of duty and stamping an off the plan purchase agreement at any time after the agreement has been executed.

(4)  In this section,

off the plan purchase agreement means an agreement for the sale or transfer of dutiable property, being land on which a residence is to be erected or developed before completion of the sale or transfer.

33.   Cancelled agreements

(1)  An agreement for the sale or transfer of dutiable property that is rescinded or annulled is not liable to duty under this Chapter if the Commissioner is satisfied –

(a) that the agreement was not rescinded or annulled to give effect to a subsale; or

(b) that the purchaser or transferee under the agreement is a promoter of a named company proposed to be incorporated and that the company is the purchaser or transferee of the dutiable property under a subsequent agreement; or

(c) that the purchaser or transferee under the agreement and the purchaser or transferee under a subsequent agreement relating to the same dutiable property were related persons when the agreement that is rescinded or annulled was entered into.

(2)  If duty has been paid on an agreement that is not liable to duty under this Chapter because of this section, the Commissioner must reassess and refund the duty if an application for a refund is made within –

(a) 3 years after the initial assessment; or

(b) 12 months after the agreement is rescinded or annulled –

whichever is the later.

34.   Transfer arising from mortgage of land

If an instrument chargeable with duty as a mortgage under Chapter 6 operates also as a conveyance of the equity, right of redemption or reversion of the property comprised in the instrument to or in trust for and according to the direction of the purchaser, it is chargeable with duty as a transfer under this Chapter in addition to duty as a mortgage, but if the equity or right of redemption or reversion is thereby conveyed or limited in any other manner, it is chargeable with duty as a mortgage only.

35.   Vesting order

(1)  A vesting order under the Land Titles Act 1980 is chargeable with the same duty as a transfer of the land the subject of the application as if the dutiable value of the land were the land value of the land within the meaning of the Land Valuation Act 1971 .

(2)  Subsection (1) does not apply if the person applying for the vesting order has paid ad valorem duty in respect of the acquisition of land to which the vesting order relates or the acquisition by the person applying was exempt from duty.

(3)  The person liable to pay the duty is the applicant.

36.   Applications to bring land under Land Titles Act 1980

(1)  An application to bring land under the Land Titles Act 1980 is chargeable with the same duty as on a vesting order under that Act if the applicant has not paid ad valorem duty on a transfer of the land.

(2)  The person liable to pay the duty is the applicant.

PART 5 - Concessional rates of duty

Division 1 - Trusts

37.   Change in trustees

(1)  In this section –

new trustee means a trustee appointed in substitution for a trustee or a trustee appointed in addition to a trustee or trustees;

responsible entity means a responsible entity within the meaning of the Corporations Law;

special trustee means –

(a) The Public Trustee; and

(b) a trustee company within the meaning of the Trustee Companies Act 1953 ; and

(c) a corporation constituted under the law of another Australian jurisdiction that, in the Commissioner's opinion, corresponds in that jurisdiction to The Public Trustee or a trustee company referred to in paragraph (b) ; and

(d) the trustees of a fund that is a complying superannuation fund within 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 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 appointed in place of the retiree.

(2)  Subject to section 54(5) , duty of $20 is chargeable in respect of a transfer of dutiable property to a special trustee as a consequence of the retirement of a trustee or the appointment of a new trustee.

(3)  Duty of $20 is chargeable in respect of a transfer of dutiable property to a person other than a special trustee as a consequence 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 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

(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 interest or potential beneficial interest of any person.

(4)  If the Commissioner is not satisfied as required under subsection (3) , the transfer is chargeable with the same duty as a transfer to a beneficiary under and in conformity with the trusts subject to which the property is held, unless subsection (5) applies.

(5)  Duty of $20 is chargeable in respect of a transfer of property as a consequence of the retirement of a responsible entity of a managed investment scheme or 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 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.

(6)  Duty of $20 is chargeable in respect of a transfer of dutiable property to a responsible entity if the Commissioner is satisfied that the transfer is necessary to enable an undertaking that existed before the commencement of Chapter 5C of the Corporations Law to become a registered scheme within the meaning of Division 11 of Part 11.2 of the Corporations Law.

38.   Transfers in relation to managed investment schemes

(1)  Duty of $20 is chargeable in respect of a transfer of dutiable property from –

(a) a responsible entity of a managed investment scheme; or

(b) a person who held the dutiable property as a trustee of a prescribed interest scheme 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 Corporations Law –

to a custodian or agent of the responsible entity as custodian or agent of the scheme in which the transferor held the dutiable property.

(2)  Duty of $20 is chargeable in respect of a transfer of dutiable property from the custodian of the responsible entity of a managed investment scheme to the responsible entity.

39.   Property vested in an apparent purchaser

(1)  Duty of $20 is chargeable in respect of –

(a) a declaration of trust made by an apparent purchaser in respect of identified dutiable property –

(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 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

(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 purchase of the dutiable property.

(2)  In this section,

purchase includes an allotment.

40.   Transfers back from a nominee

(1)  If –

(a) dutiable property (other than marketable securities) that was transferred to a person to be held by that person as trustee for the transferor is transferred back to the transferor by the trustee; and

(b) no person other than the transferor has had a beneficial interest in the dutiable property (other than the trustee's right of indemnity) between its transfer to the trustee and its transfer back to the transferor –

the duty chargeable on the transfer of the dutiable property back to the transferor is $20.

(2)  If duty of $20 has been paid on a transfer under subsection (1) , the initial transfer to the trustee is also chargeable with duty of $20.

(3)  The Commissioner must reassess the initial transfer and refund any duty paid in excess of $20 if an application for a refund is made within –

(a) 3 years after the initial assessment; or

(b) 12 months after the transfer back to the original transferor –

whichever is the later.

(4)  In this section,

trustee includes a trustee appointed in substitution for a trustee or a trustee appointed in addition to a trustee or trustees.

41.   Property passing to beneficiaries

(1)  Duty of $20 is chargeable 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 declaration of trust, subject to subsections (2) and (3) .

(2)  Subsection (1) applies only to the extent that the property being transferred is property that the Commissioner is satisfied is –

(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 over that property; or

(ii) the declaration of trust is exempt from duty; or

(b) dutiable property representing the proceeds of reinvestment of property referred to in paragraph (a) ; or

(c) property to which both paragraphs (a) and (b) apply.

(3)  Subsection (1) applies only if the transferee was a beneficiary at the time at which duty became chargeable in respect of the declaration of trust.

42.   Establishment of a trust relating to unidentified property and non-dutiable property

(1)  Duty of $20 is chargeable in respect of an instrument executed in Tasmania that declares a trust over Tasmanian property none of which is dutiable property.

(2)  Duty of $20 is chargeable in respect of an instrument executed in Tasmania 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 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.

(4)  A liability for duty charged by this section arises when the instrument is first executed.

(5)  Duty charged by this section is payable by the person declaring the trust.

(6)  This section does not apply in respect of any property that is a marketable security, if the marketable security is not dutiable property because of section 9(3) .

43.   Instrument relating to managed investment scheme

(1)  Duty of $20 is chargeable in respect of an instrument that –

(a) amends, varies or replaces an instrument that establishes or governs a managed investment scheme; and

(b) does not transfer, or have the effect of transferring, any dutiable property to a person who does not hold units in the scheme; and

(c) does not have the effect of reducing the number of persons who hold units in the scheme.

(2)  Duty of $20 is chargeable in respect of a declaration of trust –

(a) made by a trustee in respect of dutiable 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 Corporations Law as in force immediately before 1 July 1998; and

(b) to hold the dutiable property on trust for the responsible entity of the managed investment scheme.

Division 2 - Superannuation

44.   Instruments relating to superannuation

(1)  The following instruments are liable to duty of $20:

(a) an instrument that establishes, or that amends provisions governing, a superannuation fund, an approved deposit fund, a pooled superannuation trust or an eligible rollover fund, being 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 instrument or amending instrument takes effect;

(b) an instrument under which an employer agrees to participate in or contribute to a complying superannuation fund or a superannuation fund that, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the employer agrees to participate in or contribute to the fund;

(c) an instrument that is executed in order to set out or vary the terms of custodial arrangements concerning a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund (whether or not the instrument contains any other terms) or concerning 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 instrument takes effect.

(2)  A liability for duty charged by this section arises when the instrument is first executed.

(3)  The persons liable to pay the duty are the parties to the instrument.

(4)  Despite subsection (1) , an instrument to which this section applies is not liable to duty if –

(a) it is exempt from duty under a corresponding Act; or

(b) the duty for which it is liable under a corresponding Act has been paid.

45.   Transfer of property from one superannuation fund to another

(1)  This section applies to the transfer of dutiable property from one superannuation fund to another where –

(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 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 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 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.

(2)  The duty chargeable on a transfer to which this section applies is $20, or $1 in the case of marketable securities.

(3)  An application for an assessment of duty in accordance with this section is to be accompanied by the following:

(a) a brief explanation of the background to the transfer and the entitlements to be 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 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 fund will be a complying superannuation fund within 12 months after the transfer occurs.

(4)  The Commissioner may require further information.

(5)  In this section,

complying superannuation fund includes a complying approved deposit fund and an eligible rollover fund.

46.   Transfers to trustees or custodians of superannuation funds or trusts

(1)  This section applies to the transfer of, or an agreement to transfer, dutiable property to a trustee or custodian of a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an 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 transfer takes effect, where there is no change in the beneficial ownership of the property.

(2)  A transfer of, or an agreement to transfer, property to or from a trustee or custodian of a pooled superannuation trust in exchange for the issue or redemption of units in the trust does not, for the purposes of this section, effect a change in the beneficial ownership of the property.

(3)  The duty chargeable on a dutiable transaction to which this section applies is –

(a) except as provided by paragraph (b) , $20; or

(b) if the dutiable property transferred, or agreed to be transferred, is marketable securities, $1.

Division 3 - Miscellaneous

47.   Deceased estates

(1)  Subject to section 53(j) , duty of $20 is chargeable in respect of a transfer of dutiable property, or $1 in the case of marketable securities, not made for valuable consideration by the legal personal 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; 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 payable in respect of –

(a) a consent by a legal personal representative of a deceased person to a transmission application by a beneficiary; or

(b) a transmission application to a devisee who is also the sole legal personal representative.

48.   Conversion of lots to strata title

The duty chargeable on the transfer of a lot within the meaning of the Strata Titles Act 1998 is $20 if the Commissioner is satisfied that –

(a) the transferee, immediately before registration of the strata plan, held a land use entitlement in respect of the land or part of the land the subject of the strata plan; and

(b) the transfer is part of an arrangement under which the transferee will take an interest in the lot similar in effect to and in substitution for the interest the transferee had under the land use entitlement immediately before registration of the strata plan.

49.   Duty where no change of beneficial ownership

The duty chargeable on a transfer of dutiable property is –

(a) in the case of marketable securities, $1; or

(b) $20 in any other case –

if the Commissioner is satisfied there is no change in the beneficial ownership of the property.

50.   Adjustment of dutiable value of transfer on a company wind-up

(1)  If a transfer of dutiable property is made to a shareholder in the course of a distribution of assets of a company because of the winding-up of the company, the dutiable value 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

(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 amount owed by the company to the shareholder as a creditor.

(2)  Notwithstanding subsection (1) , the minimum amount payable on the transfer of dutiable property to a shareholder is $20, or $1 in the case of marketable securities.

(3)  Subsection (1) does not apply to the extent of any debt owed by the company to the shareholder that was converted to equity in the company within a 12 month period before the winding-up of the company.

(4)  The provisions of this section do not apply to a distribution to a shareholder who was not a shareholder for at least 12 months immediately prior to the notice of appointment of liquidator being given under section 537 of the Corporations Law.

51.   Reduction of duty on transfer of marketable securities — payment in non-Australian jurisdiction

(1)  The amount of duty chargeable under this Chapter on a transfer of marketable securities is 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 dealing or arrangement affecting marketable securities by means of a dutiable transaction other than a transfer.

PART 6 - Exemptions

52.   Exemptions from duty

A dutiable transaction is exempt from duty under this Chapter if it is, or occurs as a consequence of any of the following:

(a) the appointment of a receiver or trustee in bankruptcy;

(b) the appointment of a liquidator;

(c) the transfer of dutiable property for no consideration to a former bankrupt from the estate of the former bankrupt;

(d) a dutiable transaction over dutiable property arising from the discharge or transfer of a mortgage or declaration of trust over a mortgage (and a reference in this paragraph to a mortgage includes a reference to a charge and an interest in a mortgage);

(e) a dutiable transaction comprising –

(i) a transfer by way of discharge of mortgage; or

(ii) a transfer by way of mortgage (not being a transfer by way of mortgage of land, or an estate or interest in land, under the Land Titles Act 1980 ), if duty as on a mortgage has been paid in respect of an instrument evidencing the mortgage or the instrument is exempt from, or is not liable to, duty;

(f) subject to section 34 , the grant of a mortgage.

53.   Exemptions relating to various transactions

Duty is not chargeable under this Chapter on the following:

(a) a transfer of dutiable property to give effect to the incorporation of an association or the amalgamation of 2 associations pursuant to the Associations Incorporation Act 1964 ;

(b) a contract of sale or transfer made under section 17 of the Homes Act 1935 ;

(c) a transfer of dutiable property as specified in section 9(1)(g) , (h) , (i) or (j) but does not include land, made between persons who are relatives if the relative is –

(i) a child or grandchild; or

(ii) a parent or grandparent; or

(iii) a brother or sister; or

(iv) a spouse or de facto partner; or

(v) a spouse or de facto partner of a child, grandchild, brother or sister;

(d) a lease;

(e) a transfer of real property to a council, other than –

(i) for its use solely or mainly for the purpose of a trading undertaking by the council; or

(ii) to a single authority or joint authority within the meaning of the Local Government Act 1993 to which Part 3A of that Act applies; or

(iii) for its use solely or mainly for the purpose of the provision by the council of off-street car parking; or

(iv) for any purpose prescribed as a purpose in relation to which the exemption is not to apply;

(f) a transfer of personal property to a gallery conducted by a council or to the trustees of the Tasmanian Museum and Art Gallery, for the purpose of exhibiting, free of charge to the public, that property as a work of art in that gallery;

(g) a transfer of copyright in personal property to a gallery conducted by a council or to the trustees of the Tasmanian Museum and Art Gallery if the property was transferred for the purpose of exhibiting, free of charge to the public, that property in the art gallery, whether the transfer of the copyright was made at the same time as that transfer or at a later time;

(h) any instrument relating to the vesting of land in the Aboriginal Land Council of Tasmania;

(i) any instrument required as a result of any variation or change made to any folio of the Register pursuant to section 12 of the Abt Railway Development Act 1999 ;

(j) an assent given under section 36(1) of the Administration and Probate Act 1935 in relation to the vesting of real estate;

(k) the transfer of any property pursuant to section 18 of the Crime (Confiscation of Profits) Act 1993 ;

(l) any gift, bequest or devise acquired by the Allport Library and Museum of Fine Arts Management Committee under section 20 of the Libraries Act 1984 or by the State Library and Archives Trust under section 17 of the Libraries Act 1984 ;

(m) any gift, bequest or devise accepted or acquired by the Minister responsible for the administration of the Archives Act 1983 or the State Archivist under section 9 of that Act;

(n) a transfer by way of gift of dutiable property so far as it passes or creates any interest, legal or equitable –

(i) in furtherance of any charitable purpose or any religious or educational purpose that is not charitable also; or

(ii) to or in favour of any corporation or association incorporated or associated for any such purpose;

(o) an endorsement of a grant consequent on the surrender of land under section 59 of the Crown Lands Act 1976 .

54.   Exemptions – marketable securities

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of shares comprising a buy-back of the shares in accordance with Division 2 of Part 2J.1 of the Corporations Law, unless the buy-back is effected by the purchaser pursuant to one or more agreements, understandings or arrangements that the purchaser will issue marketable securities.

(2)  No duty is chargeable under this Chapter on the transfer to a person of rights to shares if an earlier transfer of the shares to the person included a right to shares and duty in respect of the rights was paid in connection with that earlier transfer or the earlier transfer was exempt from duty.

(3)  No duty is chargeable under this Chapter on the transfer of shares to a person (the "transferee") if –

(a) as a consequence of the transfer of shares in a company –

(i) in respect of which ad valorem duty under this Act or a corresponding Act has been paid or that is exempt from duty; and

(ii) that is not registered in the share register of the company –

the transferee is, on a bonus issue or the issue of a right to shares subsequent to the transfer, entitled to other shares registered in the name of the transferor; and

(b) the transferee pays the amount, if any, necessary to take up the other shares.

(4)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of an ADR if –

(a) the ADR relates to rights to shares that upon issue, on exercise of those rights, will be quoted on the Australian Stock Exchange or a recognised stock exchange; and

(b) the transfer, or the sale or transfer to which the agreement relates, is to –

(i) a foreign resident on the foreign resident's own behalf; or

(ii) a foreign resident acting on behalf of a trustee for another foreign resident; and

(c) the ADR is to be registered on an overseas register of legal or beneficial title.

(5)  Duty is not chargeable under this Chapter on a transfer of a marketable security or right in respect of shares made in consequence of the appointment or retirement of any trustee or any other change in trustees in order to vest the marketable security or right in the trustees for the time being entitled to hold the marketable security or right.

(6)  Duty is not chargeable under this Chapter on a transfer by way of gift of marketable securities so far as it passes or creates any interest, legal or equitable –

(a) in furtherance of any charitable purpose or any religious or educational purpose that is not charitable also; or

(b) to or in favour of any corporation or association incorporated or associated for any such purpose.

55.   Exemptions – transfers to married couples

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of dutiable property if it is proved to the satisfaction of the Commissioner that –

(a) as a result of the transfer or agreement, the whole of the property is or will be held by a married couple as joint tenants or as tenants in common in equal shares; and

(b) the dutiable property –

(i) is land that has erected on it a private dwelling house and was solely or principally used, as at the date of transfer, as the principal place of residence of the married couple; or

(ii) is vacant land and the married couple intend to use it as the site of a private dwelling house to be solely or principally used as their principal place of residence; or

(iii) is shares that confer an entitlement to exclusive possession of a company title dwelling that was solely or principally used, as at the date of transfer, as the principal place of residence of the married couple; and

(c) both the transferor and the transferee are the married couple or one of them and no other person is a party to the transfer.

(2)  In this section,

private dwelling house includes a lot within the meaning of the Strata Titles Act 1998 used as a place of residence.

56.   Exemptions – break-down of marriages

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of matrimonial property if –

(a) the property is transferred, or agreed to be sold or transferred, to the parties to a marriage that is dissolved or annulled (or in the opinion of the Commissioner has irretrievably broken down) or to either of them, or to a child of the marriage under the age of 18; and

(b) the transfer or agreement is effected by or in accordance with –

(i) a document registered or approved under the Family Law Act 1975 of the Commonwealth; or

(ii) an order of a court under that Act; or

(iii) a purchase at public auction of property that, immediately before the auction, was matrimonial property where the public auction is held to comply with any such document or order.

(2)  No duty is chargeable under this Chapter on a dutiable transaction to the extent that –

(a) for the purposes of or ancillary to a transfer referred to in subsection (1) , it transfers a share that is matrimonial property to a person not a party to the relevant marriage in order to comply with a requirement of or prescribed under the Corporations Law; or

(b) it is a declaration of trust, by the transferee of a share transferred as referred to in paragraph (a) , for the benefit of a party to the marriage.

(3)  If –

(a) ad valorem duty was paid on a transfer, or agreement for the sale or transfer, of matrimonial property to the parties to a marriage or to either of them, or to a child of the marriage under the age of 18; and

(b) the transfer or agreement for the sale or transfer of matrimonial property is pursuant to –

(i) a document registered or approved under the Family Law Act 1975 of the Commonwealth; or

(ii) an order of the court under that Act; or

(iii) a purchase, at public auction, of property that, immediately before the auction, was matrimonial property, where the public auction is held to comply with any such document or order; and

(c) the marriage was dissolved or annulled or the Commissioner is satisfied that the marriage has irretrievably broken down –

the Commissioner must reassess the transfer or agreement and refund the duty paid.

57.   Exemptions – de facto relationships

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of relationship property if –

(a) the property is transferred or agreed to be sold or transferred to the de facto partners to a de facto relationship that is terminated, or to either of them, or to a child of de facto partners under the age of 18; and

(b) the transfer or agreement –

(i) is effected by or in accordance with an order made under the De Facto Relationship Act 1999 ; or

(ii) is executed for the purpose of, or in accordance with, such an order; or

(iii) effects the purchase, at public auction, of property, that immediately before the auction, was relationship property, where the auction is held to comply with any such order.

(2)  No duty is chargeable under this Chapter on a dutiable transaction to the extent that –

(a) for purposes of or ancillary to a transfer referred to in subsection (1) , it transfers a share that is relationship property to a person not a party to the relevant de facto relationship in order to comply with a requirement of or prescribed under the Corporations Law; or

(b) it is a declaration of trust, by the transferee of a share transferred as referred to in paragraph (a) , for the benefit of a party to the de facto relationship.

Chapter 3 - Certain transactions treated as transfers

PART 1 - Preliminary

58.   Introduction and overview

This Chapter charges duty on certain transactions that are not dutiable transactions under Chapter 2 .

PART 2 - Acquisition of interests in certain landholders

Division 1 - Land-rich private corporations

59.    Meaning of private corporation

A private company or private unit trust scheme is, for the purposes of this Part, a private corporation.

60.   When is a private corporation land-rich?

(1)  A private corporation is land-rich if –

(a) it has land holdings in Tasmania whose unencumbered value is $500 000 or more; and

(b) its land holdings in all places, whether within or outside Australia, comprise 80% or 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 kinds is not counted:

(a) cash, whether in Australian or other currency;

(b) money on deposit with any person, negotiable instruments or debt securities;

(c) loans that, according to their terms, are to be repaid on demand by the lender or within 12 months after the date of the loan;

(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 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;

(f) land use entitlements;

(g) if the private corporation is a holding company within the meaning of section 9 of the Corporations Law, shareholding of that private corporation in a subsidiary of that private corporation;

(h) property consisting of a share or interest in a unit trust scheme that is a subsidiary under section 62 or an interest as a beneficiary in a discretionary trust as referred to in section 63 .

(3)  In addition to subsection (2) , property is not to be counted in calculating the unencumbered value of all 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 of its land holdings in all places, whether within or outside Australia, to the unencumbered value of all its property.

61.   Land holdings of private corporations

(1)  For the purposes of this Part, a land holding is any interest in land other than the estate or interest of a mortgagee, chargee or other secured creditor or a profit a prendre.

(2)  An interest in land, however –

(a) is not a land holding of a private company 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.

(3)  This section is in aid of, but does not limit, the operation of any provision of this Part providing for constructive ownership of interests.

(4)  For the purposes of this Part, the vendor and the purchaser under an uncompleted agreement for the sale of land are taken to be separately entitled to the whole of the land.

62.   Constructive ownership of land holdings and other property: subsidiaries

(1)  In addition to any interest in land or other 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 subsection (2) ) in land or other property held by a 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 subsection (1) , to hold by virtue of a holding of a subsidiary ("the actual landholder") is that portion of the interest's unencumbered value to which the private corporation would be entitled on a winding-up of –

(a) the actual landholder; and

(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 ("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 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 the subsidiary of a private corporation if the corporation has a majority interest in the scheme.

63.   Constructive ownership of land holdings and other property: discretionary trusts

(1)  A person or a member of a class of persons in 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

(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.

(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 subsection 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 –

(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 subsection in the particular case would be inequitable, determines otherwise.

(4)  Subsection (3) extends to apply to property that is the subject of a discretionary trust only by the operation of that subsection.

(5)  In this section,

person includes a private corporation or a subsidiary of a private corporation.

Division 2 - Acquisitions of interests in private corporations

64.   What are interests and majority interests in 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 corporation on a winding-up of the corporation or otherwise.

(2)  A person who, by virtue of subsection (1) , has an interest in a private corporation has a majority 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 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 1 January 1990; or

(b) the interest concerned is an interest in a private unit trust acquired before 1 January 1990; or

(c) the interest concerned was acquired at a time when the private corporation did not hold land in Tasmania.

(4)  In this section,

person includes a private corporation.

65.   How may an interest be acquired?

For the purposes of this Part, an interest in a land-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 right attaching to any such share or unit; or

(c) the redemption, surrender or cancellation of any such share or unit; or

(d) the variation or alteration of a right of a holder of any such share or unit, including on payment of a call on partially paid-up shares; or

(e) in the case of a company limited by guarantee, becoming a member of the company, removing a person from membership of the company or altering members' rights –

or by any combination of the means referred to in paragraphs (a) , (b) , (c) , (d) and (e) .

Division 3 - Charging of duty

66.   When does a liability for duty arise?

A liability for duty charged by this Part arises when a relevant acquisition is made.

67.   What is a relevant acquisition?

For the purposes of this Division, a person who –

(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 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 described in paragraph (a)(ii) , in a land-rich private corporation, acquires a further interest in the corporation –

has made a relevant acquisition.

68.   Acquisition statements

(1)  A person who has made a relevant acquisition must prepare a statement (an "acquisition statement") and lodge it with the Commissioner.

(2)  The acquisition statement is to be prepared in a form approved by the Commissioner and must contain the following information:

(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 and any associated person in the private corporation at that date;

(e) the unencumbered value of all land holdings in Tasmania of the private corporation as at the date of the relevant acquisition and as at the date of acquisition of each interest 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 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 paragraph (e) ;

(h) such other information as the Commissioner may require.

69.   When must duty be paid?

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.

70.   Who is liable to pay the duty?

(1)  Duty chargeable under this Part is payable by the person who makes the relevant acquisition, except as provided by subsection (2) .

(2)  If a relevant acquisition results from an aggregation of the interests of associated persons, the person who made the relevant acquisition and the associated person or persons are jointly and severally liable for payment of the duty.

71.   How duty is charged on relevant acquisitions

(1)  If an acquisition statement does not disclose any 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 amount calculated by multiplying the unencumbered value of all land holdings of the private corporation in Tasmania (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 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 subsection (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 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 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:

where –

A is the unencumbered value of the land holdings in Tasmania of the private corporation at the time the dutiable acquisition was made;

B is the unencumbered value of all property of the private corporation at that time;

C is the sum of –

(a) the duty under this Act paid or payable in 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 private corporation was acquired; or

(iii) an allotment under Part 5 by which an interest in the private corporation was acquired; and

(b) any duty of a like nature so paid or payable under a law of another Australian jurisdiction.

(5)  If a relevant acquisition is made owing to the aggregation of the interests of associated persons, but the Commissioner is satisfied that the 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 it with the interests of associated persons.

(6)  This section is subject to section 75 and to the other provisions of Division 4 .

Division 4 - General and supplemental

72.   Exemptions

(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 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 –

(i) a receiver or trustee in bankruptcy; or

(ii) a liquidator; or

(iii) an executor or administrator of the estate of a deceased person but does not extend to subsequent acquisitions by the executor or administrator on behalf of the estate; or

(c) if the interest was acquired solely as the 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 satisfied was made with the intention of defeating the operation of this Part; or

(d) if the interest concerned is acquired solely from a pro rata increase in the interests of all shareholders or unit holders; or

(e) if the interest was acquired solely as the result of the distribution of the estate of a deceased person, whether effected in the ordinary course of execution of a will or codicil or administration of an intestate estate or as the result of the order of a court, made under the Testator's Family Maintenance Act 1912 or otherwise, varying the application of the provisions of a will or codicil or varying the application of the rules governing the distribution of the property of an intestate estate; or

(f) if the interest was acquired by the parties to a marriage that is dissolved or annulled, or in the opinion of the Commissioner has irretrievably broken down, or by either of them, or by any child of the marriage under the age of 18 years, in accordance with –

(i) a document registered or approved under the Family Law Act 1975 of the Commonwealth; or

(ii) an order of a court under that Act; or

(g) if the interest was acquired by the partners in a de facto relationship that is terminated, or by either of them, or by a child of de facto partners who has not attained the age of 18 years, in accordance with an order of a court made under the De Facto Relationship Act 1999 ; or

(h) to the extent that –

(i) for purposes of or ancillary to the acquisition of an interest referred to in paragraph (f) or (g) , the acquisition consists of the transfer of a share that is matrimonial property or relationship property to a person not a party to the relevant marriage or de facto relationship, in order to comply with a requirement of or prescribed under the Corporations Law; or

(ii) the acquisition consists of a declaration of trust, by the transferee of a share transferred as referred to in subparagraph (i) , for the benefit of a party to the marriage or de facto relationship.

(2)  Parties to a marriage or either of them or a child of the marriage under the age of 18 years are entitled to a refund of duty paid on a relevant acquisition where –

(a) ad valorem duty was paid on the relevant acquisition; and

(b) the acquisition was pursuant to –

(i) a document registered or approved under the Family Law Act 1975 of the Commonwealth; or

(ii) an order of the court under that Act; and

(c) the marriage was dissolved or annulled or the Commissioner is satisfied that it has irretrievably broken down.

73.   Maximisation of entitlements on distribution of property

(1)  This section applies to any calculation, for the purposes of this Part, of the entitlement of a person (the "interested person") 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 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.

(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 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 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 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 interested person's entitlement in accordance with subsections (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 Commissioner, being satisfied that the application of this subsection in the particular case would be inequitable, determines otherwise.

74.   Valuation of property

(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.

(2)  If any arrangement affecting the dutiable value of dutiable land holdings that was entered into within 12 months before a relevant acquisition was brought about by any person with the intention of reducing the dutiable value of the land holdings, the Commissioner may –

(a) cause a valuation of the land holding to be made; and

(b) direct the valuer to disregard the arrangement for the purposes of the valuation; and

(c) assess duty on the basis of the valuation carried out in accordance with the direction.

75.   Phasing-in of duty

If the unencumbered value of land holdings in Tasmania of a private corporation exceeds $500 000 but does not exceed $750 000, the duty chargeable under this Part is to be calculated in accordance with the following formula:

where –

A is the unencumbered value of the land holdings in Tasmania of the private corporation at the time the dutiable acquisition was made;

B is the duty that, apart from this section, would be chargeable under this Part;

C is the duty calculated under this Act on the dutiable value of the shares or units comprised in the dutiable acquisition.

76.   Agreements for sale or conveyance 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 lodgment of an acquisition statement under Division 3 , the corporation was the vendor under an uncompleted agreement for the sale or conveyance of land; and

(b) the agreement is subsequently completed –

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 –

(a) at the time of acquisition of an interest by any person in a land-rich private corporation that requires the lodgment by any person of an acquisition statement under Division 3 , the private corporation was the purchaser under an uncompleted agreement for the sale or conveyance of land; and

(b) the agreement is subsequently rescinded, annulled or otherwise terminated without completion –

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, a reference to a "land-rich private corporation" includes a reference to a subsidiary of the corporation.

77.   Duty concession: acquisitions securing financial accommodation

(1)  If the person lodging an acquisition statement 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 effected for the purpose of securing financial accommodation; and

(b) the Commissioner is satisfied that the acquisition is effected for that purpose –

the statement, in so far as it relates to that acquisition, is not chargeable with duty, except as provided by subsection (2) .

(2)  The statement is chargeable with duty at the expiration of the period of 5 years after the date of the acquisition (or such longer period as may be 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

(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).

(3)  Section 68 does not apply to the re-acquisition by a person of the interest concerned.

PART 3 - Entitlements arising from capital reductions or rights alterations

78.   Definitions

(1)  In this Part –

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 Part 2J.1 of the Corporations Law); or

(b) a reduction in the paid up value of a share;

company means a Tasmanian company that is –

(a) a public company within the meaning of the Corporations Law; and

(b) not quoted on the Australian Stock Exchange or a recognised stock exchange;

dutiable entitlement means a voting share entitlement in respect of whose acquisition a statement is required, under section 82 , to be lodged;

person includes persons who are associated persons;

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.

(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 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 subsection (2) , an entitlement to voting 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.

(4)  Voting shares are not to be aggregated in accordance with subsection (2) if the Commissioner is satisfied that the associated persons concerned acquired their several shares independently and for no common purpose.

79.   When does a liability for duty arise?

A liability for duty charged by this Part arises when a dutiable entitlement is acquired.

80.   When must duty be paid?

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.

81.   Who is liable to pay the duty?

(1)  Duty chargeable under this Part is payable by the person who acquires a dutiable entitlement.

(2)  If the dutiable entitlement results from an aggregation of the voting share entitlements of associated persons, the associated persons are jointly and severally liable for payment of the duty.

82.   Entitlement to voting shares arising from capital reduction or rights alteration

(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; 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 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 after the entitlement arises.

83.   Form of statement

The statement required to be lodged under this Part by a person is to be in a form approved by the Commissioner and is to contain the following information:

(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;

(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 reduction; or

(ii) from rights alteration, the total of the unencumbered value, immediately prior to each relevant rights alteration, of the shares the subject of the rights alteration; or

(iii) from capital reduction and rights alteration, the aggregate of the totals under subparagraphs (i) and (ii) ;

(e) the total consideration paid to the person in relation to all relevant capital reductions or rights alterations, or both;

(f) such other information as may be required by the Commissioner.

84.   Assessment of duty

A statement required to be lodged under this Part by a person is chargeable with duty of 60 cents for every $100, or part, of the higher of –

(a) the total or aggregate obtained under section 83(d) ; and

(b) the total obtained under section 83(e) .

PART 4 - Acquisition of land use entitlements by allotment of shares or issue of units

85.   When does a liability for duty arise?

A liability for duty charged by this Part arises when a land use entitlement is acquired by an allotment of shares or an issue of units to any person otherwise than in circumstances to which Part 5 applies.

86.   When must duty be paid?

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.

87.   Who is liable to pay the duty?

Duty chargeable under this Part is payable by the person who acquires the land use entitlement.

88.   Acquisition of land use entitlement

(1)  A person who acquires a land use entitlement by an allotment of shares or an issue of units must lodge a statement (an "acquisition statement") with the Commissioner in respect of the entitlement.

(2)  The statement must be lodged within 3 months after the entitlement is so acquired.

89.   Form of statement

An acquisition statement required to be lodged by a person is to be in a form approved by the Commissioner and is to contain the following information:

(a) the name and address of the person;

(b) the name of the relevant company or unit trust;

(c) the date on which the land use entitlement was acquired;

(d) the consideration paid by the person for the relevant shares or units;

(e) such other information as may be required by the Commissioner.

90.   Assessment of duty

The share allotment or unit issue by which a person acquires a land use entitlement is chargeable with duty at the general rate of duty set out in section 29 on the dutiable value of the land use entitlement.

PART 5 - Allotment of shares by direction

91.   Application of Part 5

This Part applies to an allotment of shares to any person by a Tasmanian company that is not quoted on the Australian Stock Exchange or a recognised stock exchange at another person's 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.

92.   When does a liability for duty arise?

A liability for duty charged by this Part arises when the relevant shares are allotted.

93.   When must duty be paid?

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.

94.   Who is liable to pay the duty?

Duty chargeable under this Part is payable by the person to whom the relevant shares are allotted.

95.   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 (an "allotment statement") with the Commissioner in respect of the allotment.

(2)  The statement must be lodged within 3 months after the shares are allotted.

96.   Allotment statement

An allotment statement required to be lodged by a person is to be in a form approved by the Commissioner and 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;

(d) such other information as may be required by the Commissioner.

97.   Assessment of duty

An allotment to which this Part applies is chargeable with duty at the rate of duty set out in section 30 in respect of a transfer of marketable securities on the dutiable value of the shares.

Chapter 4 - Lease instruments

PART 1 - Introduction and overview

98.   Imposition of duty

This Chapter charges duty on a lease instrument, being an instrument that evidences or effects a lease (as defined in section 99 ).

99.   What is a lease?

Lease means –

(a) a lease of land in Tasmania or an agreement for a lease of land in Tasmania; or

(b) an agreement (such as a licence) by which a right to use land in Tasmania at any time and for any purpose is conferred on or acquired by a person (who is taken, for the purposes of this Chapter, to be a lessee of the land); or

(c) an agreement concerning goods used in connection with land in Tasmania to which paragraph (a) or (b) applies where no apportionment of consideration has been made between the right to use the goods and the right to occupy or use the land; or

(d) a franchise arrangement that is held in respect of a place or area located in Tasmania.

100.   How duty is charged on a lease instrument

Duty is chargeable on a lease instrument at the rate set out in this Chapter, on –

(a) the cost of the lease; and

(b) the additional cost of the lease resulting from any variation of the lease –

as determined in accordance with this Chapter.

101.   What is the cost of a lease?

(1)  The cost of a lease (other than a franchise arrangement) is the aggregate of the following:

(a) the rent payable during the term of the lease or in advance of the lease and any amount paid or payable for the right to use land under the lease;

(b) any premium payable for the lease;

(c) any rates and taxes paid or payable on behalf of the lessor in connection with the lease;

(d) the value of improvements and additions to the leased premises made or undertaken to be made by or on behalf of, or at the expense of, the lessee under an agreement or covenant by the lessee (other than fit-out costs), to the extent provided by section 110 ;

(e) any royalties payable under the lease, including royalties for the right to enter onto and remove something from the land –

but does not include any identifiable amounts paid or payable by the lessee for or in connection with –

(f) GST paid or payable by the lessor in relation to the cost of the lease; or

(g) duty paid or payable by the lessor under this Chapter in relation to the lease –

whether or not described as rent.

(2)  Rent includes any payment under the lease expressed to be rent.

(3)  The cost of a franchise arrangement is the aggregate of all amounts payable for the grant of the franchise (including any renewal fees where the franchise arrangement is entered into by way of renewal of a previous franchise arrangement) and the exercise of the franchisee's rights during the term of the arrangement, to the extent that any of those amounts are referrable to Tasmania and includes any amounts so payable under the arrangement for any of the following:

(a) the right to use the goodwill of the business (including payments by way of royalty or as a percentage of turnover);

(b) the right to use systems and processes, instruction manuals and operation manuals, business names, logos, trademarks, patents and copyright material in connection with the business;

(c) the use of goods –

but not including any amounts payable under the arrangement for goods that are stock-in-trade or materials provided for use in manufacture or any identifiable amounts paid or payable by the franchisee for or in connection with –

(d) GST paid or payable by the franchisor in relation to the cost of the franchise; or

(e) duty paid or payable by the franchisor under this Chapter in relation to the franchise arrangement –

whether or not described as franchise fees.

(4)  If a franchise arrangement applies to an area that comprises the whole or part of Tasmania and a place outside Tasmania, duty is not payable on that proportion of the cost of the franchise arrangement that represents the extent to which the franchise has been granted in respect of the place that is outside Tasmania.

102.   Splitting or redirection of cost of franchise arrangement (anti-avoidance provision)

The Commissioner may include, as part of the amount payable as the cost of a franchise arrangement, any of the following:

(a) any payments under the arrangement that the Commissioner is satisfied have been increased for the purpose of minimising duty under this Chapter;

(b) any payments that would be included in the cost of a franchise arrangement except for the fact that they are paid to a person other than the person who grants the franchise arrangement.

103.   Who is liable to pay the duty?

(1)  The person liable to pay the duty is the lessor.

(2)  "Lessor" means in the case of a franchise arrangement, the franchisor.

104.   When must the duty be paid?

(1)  A lease instrument becomes liable to duty on the 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.

(3)  Duty is chargeable on the amount of additional cost resulting from the variation.

(4)  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.

PART 2 - Rates of duty

105.   General rate

(1)  The rate of duty is 35 cents per $100 (or remaining part of $100) of the total cost of the lease, except as otherwise provided by this Chapter.

(2)  The minimum amount of duty is $20.

106.   Nominal duty

(1)  Duty of $20 is payable on a lease instrument made subsequently to and in conformity with an agreement for a lease for which ad valorem duty under this Chapter has been duly paid.

(2)  If requested by the lessor, the Commissioner must regard the subsequent lease instrument as the instrument dutiable with ad valorem duty and the agreement as the nominally dutiable instrument, and assess or reassess them accordingly.

(3)  The subsequent lease instrument is taken to have been first executed on the date of first execution of the agreement.

(4)  Failure to stamp the subsequent lease instrument within 3 months of execution does not constitute a tax default under the Taxation Administration Act 1997 .

(5)  Duty of $20 is payable on an instrument that evidences a variation of a lease.

PART 3 - Unascertainable lease costs

107.   Operation of Part 3

(1)  The object of this Part is to enable an unascertainable component of the cost of a lease 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 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 section 108 or 109 .

(4)  Cost components whose amounts are wholly unascertainable are to be dealt with under section 111(2) .

(5)  Section 110 applies to the quantification of the value of lessees' improvements.

108.   Estimate and subsequent adjustment

(1)  This section applies in order to determine as a definite sum any unascertainable cost components of a lease, except where the Commissioner and the lessor agree that section 109 should apply instead.

(2)  The Commissioner is to make an initial estimate of the cost of the lease.

(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 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 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 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 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 section of the relevant unascertainable cost components.

(5)  Periodic estimates are to be made, at such dates ("estimate dates") as the Commissioner, having regard to the provisions of the lease, 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.

(6)  A periodic estimate and a periodic assessment of duty may be made more than 3 years after the initial estimate.

(7)  Within one month after each estimate date, the lessor must produce to the Commissioner a duly stamped part of the lease instrument and a statutory declaration stating –

(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

(b) the rate at which that cost component is payable as at the date of the current estimate.

Penalty:  Fine not exceeding 100 penalty units.

(8)  If the amount of a cost component actually paid 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 lease, and the lessor must, within 3 months after the date of issue of the notice of assessment, pay any additional duty assessed.

(9)  If the amount of a cost component actually paid during a period between estimation dates is lower than the estimated amount so payable for that period, the Commissioner must, after the lessor has complied with subsection (7) , make a refund to the lessor of duty overpaid.

(10)  The lessor, within one month after the end of the lease period or earlier termination of the lease, is to produce the lease instrument to the Commissioner together with details of the total cost of the lease.

109.   CPI method

(1)  This section applies, if the Commissioner and the lessor 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 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 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 with section 108(3)(b) and (c) .

(4)  The Commissioner may assess and levy duty on the cost of a lease based on a determination under this section of the value of the relevant cost component.

(5)  Duty assessed in accordance with this section may not be varied merely because the actual amount of the cost component paid under the lease is different from the value of the cost component determined under this section.

(6)  In this section,

Consumer Price Index means the number appearing in the Consumer Price Index (All Groups Index) for Hobart published under the Census and Statistics Act 1905 of the Commonwealth.

110.   Quantification of lessee's improvements

The value of so much of the cost of a lease as comprises –

(a) an undertaking by the lessee to make or pay for additions or improvements to the land the subject of the lease; or

(b) the making of or payment for such additions or improvements by the lessee –

is taken to be the percentage, determined by the following Table, of the value of the additions or improvements:

Term of lease	Percentage of value of additions or improvements
10 years or less	100
More than 10 but not more than 20 years	75
More than 20 but not more than 30 years	50
More than 30 but not more than 40 years	25
More than 40 years	Nil
Periodic lease or lease for a term that cannot be ascertained when the lease is made	100

PART 4 - Miscellaneous

111.   Interim stamping of lease instrument

(1)  A lease instrument on which duty is assessed under section 108 is to be marked "interim stamp only".

(2)  A lease instrument on which no part of the duty under this Chapter is immediately ascertainable is, on payment of a duty of $20, to be stamped accordingly and marked "interim stamp only".

(3)  Section 31 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 only".

112.   Reassessment of duty – early termination

(1)  A lessor may apply in writing to the Commissioner for a reassessment of duty paid on a lease instrument if the lease is terminated before the end of its term.

(2)  The means by which the lease was terminated is immaterial.

(3)  The application must be made within 3 years after the initial assessment or 12 months after the termination, whichever is the later, and must be supported by such documents and information as the Commissioner specifies.

(4)  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

(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 which the lease actually remained in force before termination.

(5)  In this section, a reference to the termination of a lease includes a reference to a lease coming to an end.

113.   Reassessment of duty – reduction of cost

(1)  A lessor may apply in writing to the Commissioner for a reassessment of duty paid on a lease instrument if the lease is subsequently 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 such documents and information as the Commissioner specifies.

(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 payable if the lease had been granted on the terms as so varied.

114.   Exemptions

A lease instrument for any of the following leases is not chargeable with duty under this Chapter:

(a) a lease for a term of less than one year whose total cost is not more than $3 000;

(b) a lease for a term of one year or more whose total cost is not more than $3 000 per year;

(c) a lease of Crown land or agreement for such a lease;

(d) a lease under section 16 of the Homes Act 1935 ;

(e) a lease under the Mineral Resources Development Act 1995 granted in respect of private land;

(f) a hire agreement under section 37D of the Homes Act 1935 ;

(g) a lease for residential purposes.

Chapter 5 - Hire of goods

PART 1 - Introduction and overview

115.   Imposition of duty

This Chapter charges duty on the hire of goods.

116.   Hire of goods to which this Chapter applies – jurisdictional nexus

(1)  This Chapter applies to the hire of goods and to a person who hires out goods only if the goods are used solely or predominantly in Tasmania during any period for which a liability to duty is required to be determined.

(2)  A motor vehicle, however, registered under the law of an Australian jurisdiction –

(a) if it is the subject of an equipment financing arrangement, is taken to be used, at all times in the course of that arrangement, in the jurisdiction under whose law it is registered; and

(b) if it is not the subject of an equipment financing arrangement but is hired, is taken to be used at all times in the course of the hire (unless it becomes the subject of an equipment financing arrangement), in the jurisdiction in which the motor vehicle is initially delivered under the hire.

(3)  If goods hired under a hire of goods are not used solely or predominantly in any particular Australian jurisdiction, the goods are taken to be predominantly used in Tasmania if, under the hire of goods, the goods are initially delivered in Tasmania.

(4)  For the purposes of this section, goods are predominantly used in Tasmania if they are used more in Tasmania than in any other single Australian jurisdiction.

117.   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.

118.   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 121 .

(2)  There are two kinds of hire of goods, namely –

(a) an equipment financing arrangement; and

(b) an ordinary (that is, any other) hire of goods.

119.   What is an equipment financing arrangement?

(1)  An equipment financing arrangement is a 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 and under which the final payment is payable not earlier than 8 months after the agreement is entered into.

(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 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.

120.   What form may a hire of goods take?

(1)  A hire of goods may take any form.

(2)  It is immaterial whether or not a hire of goods is effected or evidenced by an instrument in writing.

121.   Exclusions from the definition of hire of goods

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 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

(ii) duty is chargeable under Chapter 4 in respect of the lease or licence;

(b) a franchise arrangement that is chargeable with duty under Chapter 4 ;

(c) an arrangement for the hire of an aircraft, ship or vessel, or for the hire of an engine or other component part of an aircraft, ship or vessel;

(d) an arrangement for the provision of goods to a trader for the purpose of displaying or demonstrating the goods pending their sale or hire to a third party;

(e) 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 goods for the hirer);

(f) 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 contractual provision of the service;

(g) an arrangement made between related bodies corporate;

(h) an arrangement under which a motor vehicle is subleased by an employee to an employer in connection with the employee's remuneration or other employment benefits;

(i) an arrangement relating to the use of medical and surgical equipment and aids used for the treatment of illness, injury, infirmity, deformity or any other disability;

(j) an arrangement relating to the use of protective equipment specifically designed for the carriage or restraint of children;

(k) an arrangement relating to the use of pre-recorded video cassettes;

(l) an arrangement relating to the authorised use of a gaming machine as defined in the Gaming Control Act 1993 ;

(m) a consumer credit contract.

122.   Special hiring agreements

A special hiring agreement is a written agreement for the hire of goods –

(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 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 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

(C) are temporarily replaced during the servicing, maintenance or repair of the goods; or

(ii) an agreement under which other goods, whether of the same or a different type, may be additionally provided.

123.   What is the rate of duty?

(1)  The duty chargeable on a hire of goods is 2% of the total amount of the hiring charges.

(2)  The maximum amount of duty chargeable in respect of a special hiring agreement is $10 000.

124.   What are hiring charges?

(1)  Hiring charges are payments made to the 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:

(a) payments for damage waiver or for damage excess;

(b) late return fees.

(3)  For a hire of goods to which Part 3 applies, any residual payment payable by the hirer as an indemnity for the agreed value of the goods at the end of the hire is taken to be included in the hiring charges.

125.   Payments exempted from hiring charges

(1)  The following charges are not included as hiring charges:

(a) payments for delivery, repositioning, erection, installation, maintenance or cleaning of the goods;

(b) refundable cash deposits or bonds (unless appropriated as hiring charges);

(c) insurance premiums payable by the hirer;

(d) payments for the sale of goods (such as fuel, replacement parts or theft replacement);

(e) any identifiable amounts paid or payable by the hirer for or in connection with –

(i) GST paid or payable by the person who hires out the goods in relation to the hiring charges; or

(ii) duty paid or payable by the person who hires out the goods under this Act or a corresponding Act in relation to the hire of the goods –

whether or not described as hiring charges;

(f) any payment of a type prescribed by the regulations.

(2)  Duty is not chargeable under this Chapter on a payment by the hirer under a hire of goods if title to the goods passes to the hirer as a consequence of the payment.

126.   Splitting or redirection of hiring charges (anti-avoidance provision)

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 referred to in section 125 , 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 except for the fact that they are paid to a person other than the person who hires out the goods.

127.   Ascertainment and disclosure of place of use of goods

(1)  A person who hires out goods may, in determining 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 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 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, registered in a place other than the place advised by the hirer in a statement referred to in subsection (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.

(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 subsection (1) , is not a tax default for the purposes of the Taxation Administration Act 1997 if the duty is paid 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 solely or predominantly outside Tasmania is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units.

PART 2 - What arrangements apply to persons who are in the business of hiring out goods (commercial hire businesses)?

128.   Application of Part 2

(1)  This Part applies to persons who hire out goods as a business.

(2)  In this Chapter, such a person is called a "commercial hire business".

(3)  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 carried on wholly or partly outside Tasmania.

129.   Commercial hire businesses must be registered

(1)  A commercial hire business must be registered under this Part if, in any month, the total amount of the hiring charges received in the month exceeds $4 000.

(2)  An application for registration must be made within 21 days after the end of the month in which the $4 000 threshold is first exceeded.

Penalty:  Fine not exceeding 100 penalty units.

130.   Registration of commercial hire businesses

(1)  The Commissioner must register a commercial hire business that applies in the approved form for 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.

(4)  The Commissioner is to –

(a) keep records of all registrations under this Part; and

(b) make the records available for public inspection during normal business hours.

131.   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 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 twenty-first day of the month after which the notice is given.

Penalty:  Fine not exceeding 100 penalty units.

(2)  The Commissioner is to cancel the registration of a commercial hire business on receipt of a notice under subsection (1) .

(3)  The Commissioner may cancel a commercial hire business's registration under this Part if the Commissioner has reason to believe that registration is no longer required by the commercial hire business.

(4)  The registration must not be cancelled under subsection (3) until at least 30 days after written notice of intention to cancel the registration has been given by the Commissioner to the commercial hire business.

(5)  A cancellation of registration has effect from the day specified for the purpose by the Commissioner in a written notice of cancellation given to the commercial hire business.

132.   Duty base

(1)  Duty under this Part 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 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 subsection (1) .

(3)  An amount calculated under any method so approved is taken for duty purposes, while the approval remains in force, to be the amount of hiring charges received.

(4)  Such an approval may be revoked by the Commissioner at any time by notice in writing to the commercial hire business concerned.

(5)  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.

(6)  If consent is given under subsection (5) , 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 that would be accounted for twice, because of the change of basis.

133.   Lodgment of returns and payment of duty

(1)  A commercial hire business must, on or before the twenty-first day of each month –

(a) lodge with the Commissioner a return in the approved form; and

(b) pay to the Commissioner the appropriate amount of duty calculated in accordance with section 123 in respect of the previous month, subject to the duty-free threshold in subsection (2) .

(2)  A duty-free threshold of $4 000 per month applies in respect of hiring charges received from ordinary hires that are not special hiring agreements (that is, duty is payable only on such part of the total amount of those charges as exceeds $4 000).

(3)  A commercial hire business is not required to lodge a return in respect of any month in which all hiring charges received by the commercial hire business were from ordinary hires and the hiring charges so received did not exceed $4 000.

(4)  The Commissioner may by notice in writing approve of the lodgment by a commercial hire business of returns in respect of a period of more than one month, and in such a case –

(a) the return must be lodged, and the duty paid, on or before the twenty-first day of the month following the last month to which the return relates; and

(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.

(5)  A commercial hire business may elect to pay the duty payable on a special hiring agreement by lodging a statement under section 136 and, in that event, returns under this section in respect of the agreement are not necessary.

(6)  If, in relation to a special hiring agreement –

(a) a commercial hire business makes an election under subsection (5) ; and

(b) the special hiring agreement is terminated before the expiry of the term expressed in the agreement –

the commercial hire business may request a reassessment of duty as if the duty had been paid on a return under this section.

134.   Returns of related bodies corporate

(1)  A single return may be lodged on behalf of 2 or more commercial hire businesses that are related bodies corporate.

(2)  The duty-free threshold under section 133(2) applies to the aggregated hiring charges required to be included in such a single return.

(3)  The duty-free threshold does not apply individually to the hiring charges of each commercial hire business included in the return.

(4)  If 2 or more commercial hire businesses that are related bodies corporate lodge individual returns for the same month, the duty-free threshold under section 133(2) applies to the hiring charges of only one of them.

(5)  Those commercial hire businesses that elect to lodge separate returns in accordance with subsection (4) may nominate to the Commissioner the one to which the duty-free threshold is to apply.

PART 3 - What arrangements apply to other persons?

135.   Statement of transaction

(1)  If a hire of goods is effected otherwise than by a commercial hire business and the total amount of hiring charges paid or payable for the hire of the goods is not less than $1 000, the person hiring out the goods must make out a written statement that includes the following:

(a) the name and address of each party;

(b) a description of the goods;

(c) the commencement date and the term of the hire;

(d) the total of the hiring charges (including any residual payment referred to in section 124(3) ) paid or payable over the term of the hire;

(e) the intervals at which the hiring charges are paid or payable.

(2)  The written statement must be made out not later than –

(a) the time when the person hiring out the goods receives the first (or only) payment of hiring charges; or

(b) the time when the hiring charges become payable –

whichever first occurs.

(3)  This section does not require a separate written statement to be made out if the hire is already evidenced in a document that otherwise complies with this section.

(4)  In subsection (3) the document is taken to be the written statement.

136.   Lodgment of statement and payment of duty

(1)  Within 3 months after the written statement is required to be made out, the person hiring out the goods must –

(a) lodge the statement with the Commissioner; and

(b) pay to the Commissioner the appropriate rate of duty calculated under section 123 in respect of hiring charges for the whole period of the hire.

(2)  If the person hiring out the goods has not complied with subsection (1) within the 3-month period, the Commissioner may, at any time thereafter, issue a notice of assessment under the Taxation Administration Act 1997 of the duty that would be payable if a statement had been lodged.

(3)  For the purposes of the assessment, both the person hiring out the goods and the hirer are jointly and severally liable to pay duty in accordance with this section.

(4)  The hirer may, at any time, make out and lodge a statement and pay duty in accordance with this section.

137.   Method of calculating total hiring charges if they are not readily ascertainable

(1)  The Commissioner, if satisfied at the time a written statement is lodged that it is not reasonably practicable to calculate the total of the hiring charges payable over the term of the hire, may require the person hiring out the goods to make out one or more further written statements at such time or times as the Commissioner specifies in a written notice given to the person.

(2)  A further written statement must include the same information as is specified in section 135 .

(3)  Within 3 months after a further written statement is required to be made out, the person hiring out the goods must –

(a) lodge the statement with the Commissioner; and

(b) pay duty calculated in accordance with section 123 to the extent that the total hiring charges are ascertainable.

(4)  The amount of duty paid on a prior statement relating to the same hire of goods is to be deducted from the duty payable on the further written statement.

Chapter 6 - Mortgages

PART 1 - Introduction and overview

138.   Imposition of duty

This Chapter charges duty on instruments that are mortgages.

139.   What is a mortgage?

For the purposes of this Chapter, an instrument is a mortgage if it is –

(a) a security by way of mortgage or charge over property wholly or partly in Tasmania at the liability date; or

(b) a security by way of a transfer of any property wholly or partly in Tasmania held in trust to be sold 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

(c) any transfer, assignment or disposition of any estate or interest in property wholly or partly in Tasmania that is apparently absolute but intended only as a security; or

(d) an instrument that, on the deposit of documents of title, authority to control title or a pledge to provide that control, to property wholly or partly in Tasmania becomes a mortgage or evidences the terms of a mortgage.

140.   What is an advance?

(1)  For the purpose of this Chapter, an advance is the provision or obtaining of funds by way of financial accommodation by means of –

(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

(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, understandings or arrangements because of which a bill of exchange or promissory note –

(i) is drawn, accepted, endorsed or made; and

(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 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 148 .

141.   Who is liable to pay the duty?

The person liable to pay mortgage duty is the mortgagor or person who gives the mortgage.

142.   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 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 affects property in Tasmania 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 or exempted or not liable to duty in Tasmania.

(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 Tasmania, becomes a mortgage or evidences the 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.

143.   When must duty be paid?

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.

144.   How is mortgage duty charged?

(1)  The amount of duty chargeable on a mortgage is determined by the amount secured by it as calculated under Part 2 .

(2)  The amount of duty is –

(a) $20, if no amount is secured by the mortgage or if the amount secured does not exceed $8 000; or

(b) if the amount secured by the mortgage exceeds $8 000 but does not exceed $10 000, $20 for the first $8 000 plus 0.25 per cent of the amount secured exceeding $8 000; or

(c) if the amount secured by the mortgage exceeds $10 000, $25 for the first $10 000 plus 0.35 per cent of the amount secured exceeding $10 000.

(3)  The amount of duty chargeable on a mortgage in 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 subsection (2) .

145.   Consequences of non-payment of duty

(1)  A mortgage over property wholly within Tasmania on which duty is required to be paid under this Chapter is enforceable only to the extent of the amount secured by the mortgage in respect of which duty has been paid under this Act.

(2)  A mortgage or mortgage package on which duty is imposed under this Act or a corresponding Act is, while an amount of mortgage duty remains unpaid on it, enforceable only to the extent of the amount secured by the mortgage or mortgage package on which duty has been paid under this Act or a corresponding Act.

(3)  Subsection (2) does not apply if the dutiable proportion calculated in accordance with section 149(2) and (3) is not incorrect by more than 5%.

146.   Where is property located?

(1)  For the purpose of this Chapter, property in the following forms is taken to be located in the place specified:

(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 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 Australia;

(c) debt securities of a Government of a State or Territory of the Commonwealth, in the State or Territory concerned.

(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.

PART 2 - Calculating the amount secured by a mortgage

147.   Secured amount

(1)  A mortgage is chargeable with duty assessed on the amount of any advances actually secured by it and recoverable under it.

(2)  If duty of $20 is paid or taken to be paid in respect of a mortgage, the mortgage is taken to be stamped in respect of an advance of $8 000.

(3)  If the amount of advances for the time being 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 under subsection (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

(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 duty so paid on the mortgage.

148.   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 payable in connection with an advance –

(a) by a guarantor or indemnifying party under a guarantee or indemnity; or

(b) by another party under another instrument of a different kind –

is chargeable with duty as if the whole or part of the amount of the contingent liability secured by the mortgage were a separate advance secured by the mortgage.

(2)  A reference in subsection (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 subsection (1) and does not include a reference to any other kind of contingent liability.

(3)  This section does not apply if the Commissioner is satisfied that there is no connection between the mortgage and any advance by any party to the arrangements.

(4)  This section does not require duty to be paid more than once in respect of an advance.

149.   Mortgages over property not wholly within Tasmania

(1)  Duty chargeable in respect of a mortgage over property that is partly within Tasmania and partly outside Tasmania 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 accordance with the following formula:

where –

DP is the dutiable proportion;

AS is the amount secured by the mortgage on which duty is charged as at the liability date;

V is the value of the property in Tasmania affected by the mortgage;

T is the value of all property affected by the mortgage, excluding property within a 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 subsection (4) .

(4)  A referrable point is any of the following prepared within the 12 months preceding the date referred to in section 142(1) or (2) :

(a) an independent valuation of the secured property;

(b) a statement of the mortgagee based on 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 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;

(e) agreed valuations for property that form the basis of policies of insurance of the mortgagor;

(f) any other method approved by the Commissioner.

(5)  If there are 2 or more referrable points in relation to a mortgage, the referrable point is the later or latest of those referrable points.

(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 142(1) or (2) under a corresponding Act.

(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 a form approved by the Commissioner.

(8)  A mortgage or a statement made under subsection (7) may be endorsed with duty on the basis of evidence contained in the statement.

(9)  If a statement is endorsed under subsection (8) , the mortgage may be endorsed at any time –

(a) as being stamped to the amount evidenced by the duty paid on the statement; and

(b) by showing –

(i) the percentage of the property in Tasmania securing the advance; and

(ii) the total amount secured by the mortgage.

150.   Advances secured by mortgage package

(1)  If, at the liability date, there are several instruments of security, at least one of which is a security affecting property wholly or partly outside Tasmania and at least one of which is a mortgage, that secure or partly secure the same money at that date, those instruments are to be treated as a mortgage package.

(2)  Instruments referred to in subsection (1) may include a mortgage previously collateral to an earlier advance under some or all of the other mortgages in the package.

(3)  Duty on a mortgage package is assessable in accordance with this Part as if the several instruments comprised in the package were one mortgage first executed on the last of their several dates of execution.

(4)  If 2 or more mortgages over property within Tasmania form part of the security for a mortgage 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)  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 149(7) and section 149(8) and (9) apply to the statement.

(6)  If a person has made a statement under section 149(7) or under a corresponding section of a corresponding Act providing details that a mortgage over property in Tasmania executed or to be executed after the liability date, if the Commissioner is satisfied that the mortgage was intended to be part of a mortgage package, the mortgage is taken to be part of a mortgage package.

(7)  If a person makes an application for the stamping of a mortgage referred to in subsection (1) and 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 proportion of the property secured by all the executed mortgages bears to the total of the property expressed to secure the advance.

(8)  The Commissioner may endorse the executed mortgage to indicate the proportion of the advance secured by the mortgage pending the execution of the other intended mortgages.

(9)  If a mortgage secures the same money as a mortgage package in respect of which duty has been paid under this Chapter and the mortgage is not part of a mortgage package, the mortgage is taken to be a collateral mortgage in respect of that advance.

151.   Stamping before advance

(1)  A mortgage may be stamped before an advance whether or not an earlier advance has been made.

(2)  A mortgage referred to in section 149 or 150 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.

(3)  A mortgage stamped under subsection (2) is –

(a) duly stamped; and

(b) not required to be stamped in accordance with section 149 again until an advance brings the total amount secured above the amount to which it is already stamped.

(4)  Section 150(6) and (7) apply to a mortgage package stamped before an advance.

152.   Security

(1)  A stamped mortgage or a collateral mortgage that 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.

(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.

153.   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 under this Act or under a corresponding Act; or

(b) as another security instrument duly stamped with ad valorem duty in Tasmania or under a corresponding Act –

the collateral security is not chargeable with duty 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 with a stamp showing the duty paid in respect of the amount secured by the principal security.

(3)  A collateral security is chargeable with a minimum duty of $20.

(4)  A reference to a mortgage or security instrument duly stamped includes a reference to a mortgage package stamped in accordance with section 150 .

PART 3 - Exempt instruments

154.   Certain debentures and related instruments

(1)  Mortgage duty is not chargeable on a mortgage solely securing the repayment of advances arising 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 debenture if the mortgage secures in part the repayment of those advances.

(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 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 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 the meaning of the Corporations Law.

155.   Loan instruments in respect of certain industries

Mortgage duty is not chargeable on any instrument securing a loan made under the Tasmanian Development Act 1983 for the purpose of a prescribed industry as defined by that Act.

156.   Miscellaneous exemptions

Mortgage duty is not chargeable on, or in respect of, any money advanced on the security of any mortgage for –

(a) insurance against fire of any property; or

(b) keeping in place or effecting a new policy of life insurance; or

(c) payment in respect of such security of any duty payable under this Act.

157.   Refinancing of loans

(1)  Any mortgage that secures an advance made under a previous mortgage is exempt from duty to the extent of the outstanding balance of the previous mortgage immediately prior to the discharge of that previous mortgage if –

(a) the original security is fully discharged; and

(b) the security remains the same, or substantially the same, as under the previous mortgage; and

(c) the borrower remains the same; and

(d) the loan –

(i) is used for primary production purposes; or

(ii) is used for any commercial undertaking; or

(iii) is secured by a charge over residential property.

(2)  If an original borrower –

(a) dies; or

(b) is a party to a marriage that is dissolved or annulled or, in the opinion of the Commissioner is irretrievably broken down; or

(c) is a de facto partner in a de facto relationship that has been terminated in accordance with an order of the court made under the De Facto Relationship Act 1999  –

any remaining borrower is taken to be the same borrower for the purposes of this section.

PART 4 - Miscellaneous

158.   Unregistered mortgages protected by caveats (anti-avoidance provision)

(1)  A caveat under the Land Titles Act 1980 in which an estate or interest is claimed under an unregistered mortgage is chargeable with duty if 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.

(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 subsection (2) has been paid on the mortgage to which the caveat 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 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 3 .

159.   Stamping counterpart or collateral instrument if 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 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 with the Recorder of Titles or from other reasonable cause, the mortgage cannot conveniently be produced.

(2)  For the purposes of subsection (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 be signed by the Recorder of Titles.

(3)  In this section,

reproduction has the same meaning as in section 68A of the Evidence Act 1910 .

160.   Exchange of information

The Commissioner may provide information relating to any statement in respect of any mortgage package or mortgage referred to in section 149(1) to any person the Commissioner considers is connected with the administration of this Chapter or the corresponding provisions of a corresponding Act.

161.   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; and

(b) endorse mortgages with a stamp showing –

(i) the percentage of property in Tasmania securing the advance; and

(ii) the total amount secured by the mortgage.

Chapter 7 - Insurance

PART 1 - General Insurance

162.   Imposition of duty

(1)  This Part 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 effects other kinds of insurance).

(2)  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.

163.   What is general insurance?

(1)  General insurance is any kind of insurance that is applicable to –

(a) property in Tasmania; 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, Tasmania –

or both.

(2)  General insurance includes insurance effected in respect of trauma or a disabling or incapacitating injury, sickness, condition or disease.

(3)  General insurance does not include life insurance or insurance that is exempt from duty by Part 5 .

164.   What is a premium in relation to general insurance?

(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 allowed or allowable, by way of commission or discount to an insurance intermediary.

(2)  Premium includes a fire service levy paid or payable in connection with insurance by an insurer or any other person.

(3)  Premium does not include –

(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

(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.

165.   When is a premium paid?

(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;

(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 been received by an insurer if it is received by another person on the insurer's behalf.

166.   What duty is payable?

The amount of duty chargeable on the premium paid in relation to a contract of insurance is 8% of the amount of the premium.

167.   Who is liable to pay the duty?

The general insurer is liable to pay the duty, except as provided by section 168 .

168.   Circumstances in which duty is payable by the insured person

(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.

(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 –

(a) lodge with the Commissioner a return in the approved form containing such particulars and information as to the premium and the insurance as the Commissioner may require; and

(b) pay to the Commissioner as duty the amount calculated in accordance with section 166 .

(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.

(4)  The payment of a periodic premium in respect of disability income insurance that is continued, but not renewed, on the payment of the premium is taken to effect the insurance for the purposes of this section.

169.   Records to be kept

A person to whom section 168 applies must maintain records that contain information as to –

(a) the nature and location of the property insured; and

(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.

170.   Refunds where premiums are returned

(1)  A general insurer or a person to whom section 168 applies is entitled to a refund of duty if the general 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.

(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 Chapter by the general insurer.

PART 2 - Life Insurance

171.   Imposition of duty

This Part charges duty on a policy of life insurance.

172.   What is life insurance?

(1)  Life insurance is any insurance or assurance in 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 whose principal place of residence is, or persons whose principal places of residence are, in Tasmania at the time that the policy that effects the insurance 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 death of a person only from accident or violence or otherwise than from a natural cause or as compensation for personal injury.

(3)  A policy of mortgage insurance is a temporary policy of life insurance effected by, or on behalf of, a borrower to provide insurance in the event of the death of the borrower for the repayment of a loan taken out by the borrower.

173.   Obligation to make out and execute a policy of life insurance

A life company must, on or before the twenty-first day of each month –

(a) make out and execute a policy of life insurance for each contract or agreement for life insurance effected by or on behalf of the life company in the preceding month; and

(b) endorse the policy in the manner approved by the Commissioner.

174.   What duty is payable?

(1)  The amount of duty chargeable on a policy of life insurance, other than a temporary or term insurance policy, or a mortgage insurance policy is  –

(a) if the sum insured does not exceed $2 000, 10 cents per $200, or part, of the sum insured; or

(b) if the sum insured exceeds $2 000, $1 plus 20 cents per $200, or part, of the sum insured that exceeds $2 000.

(2)  The amount of duty chargeable on a temporary or term insurance policy is 5% of the first year's premium on the policy.

(3)  The amount of duty chargeable on a mortgage insurance policy is 2% of the premium on the policy.

(4)  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.

(5)  The amount of duty chargeable on an annuity –

(a) issued, created or sold by a life company; or

(b) purchased by a person from a life company –

is $20.

(6)  For the purposes of subsection (5) a contract is an annuity if it satisfies the following requirements:

(a) the contract provides for the periodic payment of money to the annuitant in fee for life or for a specified term of years as an annual or more frequent entitlement;

(b) the periodic payment is a sum certain expressed as a dollar amount, but may be varied according to a predetermined formula;

(c) the periodic payments are not derived from the money paid for the contract but are derived solely from the contract and comprise income and not the repayment of capital.

175.   Who is liable to pay the duty?

The person issuing the policy of life insurance is liable to pay the duty, except as provided by section 176 .

176.   Circumstances in which duty is payable by the insured person

(1)  This section applies to a person (not being a registered insurer) who effects a policy of life insurance as an insured person with a person who is not a registered insurer.

(2)  A person to whom this section applies must, within 21 days after the end of the month in which the policy of life insurance was effected –

(a) lodge with the Commissioner a return in the approved form containing such particulars and information as the Commissioner may require; and

(b) pay to the Commissioner as duty the amount calculated in accordance with section 174 .

(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.

177.   Refund on cancellation of policy of life insurance

(1)  If a premium is refunded to a person because the person cancels a policy of life insurance within 30 days after receiving the policy, a person who has paid duty in respect of the policy is entitled to a refund of the duty paid on the amount of the premium refunded.

(2)  A life company that is refunded duty may apply the amount of the refund to offset any other payment required to be made by the life company under this Chapter.

PART 3 - How is duty paid by an insurer?

178.   Who is an insurer?

(1)  An insurer is –

(a) a life company that writes life insurance; or

(b) a general insurer.

(2)  A general insurer is a person –

(a) who writes general insurance; and

(b) who does so otherwise than as an insurance intermediary; and

(c) who is registered under the Insurance Act 1973 of the Commonwealth.

179.   Insurers must be registered

An insurer must be registered under this Part.

Penalty:  Fine not exceeding 100 penalty units.

180.   Application for registration

The Commissioner must register an insurer who applies in the approved form for registration under this Part.

181.   Cancellation of registration by the Commissioner

(1)  The Commissioner may, by written notice, cancel an insurer's registration under this 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 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 as a consequence of a false or misleading statement 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 in Tasmania; or

(f) if the insurer ceases to be a life company; or

(g) 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.

182.   Cessation of business and cancellation of registration by the insurer

(1)  A registered insurer who ceases to write insurance business in Tasmania must –

(a) give written notice of that fact to the 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 twenty-first day of the month after which the notice is given.

Penalty:  Fine not exceeding 100 penalty units.

(2)  The notice cancels the insurer's registration under this Part on the day on which it is received by the Commissioner.

183.   Register of insurers

(1)  The Commissioner must keep a register of the insurers who are registered 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.

184.   Monthly returns and payment of duty

A registered insurer must, on or before the twenty-first day of each month –

(a) lodge with the Commissioner a return in the approved form showing –

(i) the total amount of all premiums for general insurance paid to the registered insurer in the preceding month other than exempt insurance under Part 5 ; and

(ii) the total duty payable on policies of life insurance (excluding temporary or term insurance, mortgage insurance and annuities dutiable under section 174(4) ) effected in the preceding month other than exempt insurance under Part 5 ; and

(iii) the total amount of all first year's premiums for temporary or term life insurance received by or on behalf of the registered insurer in the preceding month other than exempt insurance under Part 5 ; and

(iv) the total amount of all premiums in respect of policies of mortgage insurance received by or on behalf of the registered insurer in the preceding month other than exempt insurance under Part 5 ; and

(v) the total amount of all annuities effected in the preceding month at the nominal $20 rate; and

(b) pay to the Commissioner as duty the amounts determined in accordance with sections 166 and 174 .

185.   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 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 it as a debt.

PART 4 - Apportionment

Division 1 - Apportionment of premiums and other amounts between Australian jurisdictions

186.   Application of Division 1

(1)  This Division applies to a contract of insurance –

(a) that insures –

(i) property in Tasmania as well as property in another place; or

(ii) a risk, contingency or event concerning an act or omission that, in the normal course of events, may occur within, or partly within, Tasmania as well as within, or partly within, another place –

or both; or

(b) that insures –

(i) lives; or

(ii) any event or contingency relating to or depending on lives –

or both, of persons whose principal places of residence are variously in Tasmania or another place at the time the policy is issued.

(2)  It is the intention of this Division –

(a) to provide the means for apportioning premiums paid and other amounts in relation to a contract of insurance having regard to the principle in sections 163 and 172 ; and

(b) to avoid multiple duty as between Australian jurisdictions; and

(c) to give Australian jurisdictions their appropriate share of duty by means of the apportionment.

187.   Schedule of Apportionment

(1)  The Commissioner, from time to time, may adopt a Schedule of Apportionment for the purpose of apportioning premiums and other amounts in relation to insurance in accordance with this Division.

(2)  The Schedule of Apportionment may be developed in consultation with any person the Commissioner considers suitable.

188.   Apportionment in practice

(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.

(2)  An 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.

(3)  The Commissioner may apportion the premium or amount on the basis referred to in subsection (2) .

(4)  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 Commissioner may determine the apportionment, reassess the liability to duty and charge duty accordingly.

Division 2 - Apportionment of premiums and other amounts as between different types of insurance

189.   Apportionment between different types of insurance

(1)  This section 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 exempt from duty.

(2)  This section does not apply to the apportionment of a premium or another amount between Tasmania and another place, as provided for under Division 1 .

(3)  If the Commissioner is not satisfied that a premium paid or another amount in relation to a contract of insurance that effects different types of insurance has been properly apportioned, the Commissioner may determine the apportionment, reassess the liability to duty and charge duty accordingly.

PART 5 - Exempt insurance

190.   What insurance is exempt from duty?

The following insurances are exempt from duty under this Chapter:

(a) insurance covering only property of the Crown;

(b) insurance effected by a separate policy in a distinct sum against loss by fire on the tools, implements of work or labour owned by any working mechanic, artificer, handcrafter or labourer;

(c) medical benefits insurance, being insurance 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 both), whether or not other benefits are also provided;

(d) insurance required under section 97 of the Workers Rehabilitation and Compensation Act 1988 ;

(e) insurance effected under the Motor Accidents (Liabilities and Compensation) Act 1973 ;

(f) insurance in respect of the hull of a floating vessel used primarily for commercial purposes;

(g) insurance in respect of the freight of goods;

(h) reinsurance (being a contract or contracts between 2 parties by which one party indemnifies the other against liability or payment under a contract or contracts of insurance or reinsurance);

(i) insurance taken out by the University of Tasmania;

(j) insurance taken out by the Commission for the Conservation of Antarctic Marine Living Resources;

(k) insurance taken out by the licensee, proprietor, governors, trustee, committee of management or resident manager of a private hospital for or in connection with the purposes of the hospital;

(l) a cover note in respect of life insurance in pursuance of which a duly stamped policy is issued within 3 months of the date of the cover note;

(m) a policy of life insurance under which the sum insured does not exceed $200.

PART 6 - Miscellaneous

191.   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.

Chapter 8 - Motor vehicle registration

PART 1 - Introduction and overview

192.   Imposition of duty

This Chapter charges duty on –

(a) an application to register a motor vehicle under the Vehicle and Traffic Act 1999 if –

(i) the vehicle has not previously been registered under that Act; or

(ii) the person in whose name the vehicle is to be registered differs (or the persons in whose names the motor vehicle is to be registered differ) from the person or persons in whose name or names the vehicle was last registered; or

(b) a notice of a change of beneficial ownership of a motor vehicle given under the Vehicle and Traffic Act 1999 if the acquirer of that beneficial ownership is not, or is not to be, the registered operator of that motor vehicle under that Act.

193.   Lodgment of statement of dutiable value

(1)  A person who is required by law to make an application to register a motor vehicle under the Vehicle and Traffic Act 1999 or give a notice of a change of beneficial ownership must lodge with the application for registration or the notice a statement of the dutiable value of the vehicle, unless the application or notice is not chargeable with duty under this Chapter.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A failure to lodge the statement is a tax default for the purpose of the Taxation Administration Act 1997 .

194.   Failure to register

If the Commissioner is satisfied that a person has failed to make an application to register a motor vehicle or give a notice of a change of beneficial ownership as required by the Vehicle and Traffic Act 1999 , the Commissioner may –

(a) determine the dutiable value of the motor vehicle as at the date the person became the owner or operator of the vehicle; and

(b) assess the duty payable by that person as if an application had been lodged or a notice had been given by that person under that Act; and

(c) issue a notice of assessment to that person.

195.   Who is liable to pay the duty?

Duty is payable by –

(a) the applicant for registration of the motor vehicle; or

(b) in the case of a change in beneficial ownership of a motor vehicle, the person acquiring the beneficial ownership; or

(c) in the case where a reassessment of tax liability is made under section 19 of the Taxation Administration Act 1997 in respect of an application to register a motor vehicle lodged by a motor dealer, the motor dealer.

196.   When does duty become payable?

Duty becomes payable on –

(a) the date on which –

(i) the motor vehicle is registered in pursuance of the relevant application; or

(ii) a notice of a change in beneficial ownership is lodged with the Registrar of Motor Vehicles; or

(b) the date specified in a notice of assessment issued under section 194 .

197.   What is the rate of duty?

(1)  The rate of duty is $3 per $100, or part, of the dutiable value of the motor vehicle, except as provided by subsections (2) and (3) .

(2)  The rate of duty for a motor vehicle that is a passenger vehicle is as follows:

(a) if the dutiable value of the passenger vehicle does not exceed $35 000, $3 per $100, or part;

(b) if the dutiable value of the vehicle exceeds $35 000 but does not exceed $40 000, $1 050 plus $11 for every $100 or part of $100 of the value of the vehicle that exceeds $35 000;

(c) if the dutiable value of the vehicle exceeds $40 000, for every $100 or part of $100 of that value, $4.

(3)  The rate of duty applicable to a motor vehicle the dutiable value of which does not exceed $600 is $20.

(4)  A passenger vehicle is a motor vehicle, other than a motor cycle, that is –

(a) constructed principally for the carriage of passengers; or

(b) designed principally for the conveyance of not more than 9 adult persons, including the driver, and is constructed either on a truck chassis or with special features for off-road operation.

(5)  A passenger vehicle does not include a motor vehicle that –

(a) has a utility or 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 manufacturer of the motor vehicle; or

(b) is constructed for the carriage of passengers and equipped to seat more than 9 adult persons, including the driver.

198.   What is the dutiable value of a motor vehicle?

(1)  The dutiable value of a registered motor vehicle is –

(a) the consideration in money or money's worth given for the acquisition of the vehicle; or

(b) the market value of the vehicle at the time of acquisition of the vehicle or lodgment of a notice of change of beneficial ownership of the vehicle –

whichever is the greater.

(2)  The dutiable value of a motor vehicle in any other case is –

(a) the consideration in money or money's worth given for the acquisition of the vehicle; or

(b) the market value of the vehicle at the time of application to register the vehicle –

whichever is the greater.

(3)  The dutiable value of a motor vehicle does not include –

(a) a premium paid for extended warranty insurance; or

(b) the value of any equipment transferred from another vehicle registered or previously registered in the name of the applicant which it replaces; or

(c) the value of any independently operated equipment that is unrelated to the use of the vehicle for transportation.

PART 2 - Circumstances in which duty not chargeable

199.   Exemptions

Duty under this Chapter is not chargeable in respect of the following:

(a) an application to register a motor vehicle or a notice of a change of beneficial ownership of a motor vehicle made by the personal representative of a deceased person to register a motor vehicle in the name of a person to whom it is bequeathed in the last will of the deceased person or who is beneficially entitled to it under Part V of the Administration and Probate Act 1935 ;

(b) an application to register a motor vehicle or a notice of a change of beneficial ownership of a motor vehicle if –

(i) the person is in the business of financing the purchase or use of motor vehicles; and

(ii) the vehicle was repossessed by, or voluntarily surrendered to, the person; and

(iii) the person, in the course of that business, does not dispose of any such vehicles except by public tender or public auction or through a motor dealer;

(c) an application to register a motor vehicle or a notice of a change of beneficial ownership of a motor vehicle registered in the names of the parties to a marriage or in the name of either of them to the extent that the vehicle was, at the time the application was made or notice lodged, matrimonial property, if it is proved to the satisfaction of the Commissioner that –

(i) the marriage is dissolved or annulled (whether before or after the certificate of registration is issued) or the marriage has irretrievably broken down; and

(ii) the application or notice was made for the purposes of or in accordance with an instrument registered or approved under the Family Law Act 1975 of the Commonwealth or an order of a court under that Act;

(d) an application to register a motor vehicle or a notice of a change of beneficial ownership of a motor vehicle registered in the names of de facto partners or in the name of either of them, to the extent that the vehicle was, at the time the application was made or notice lodged, relationship property, and it is made for the purpose of or in connection with an order under the De Facto Relationship Act 1999 ;

(e) an application to register a motor vehicle that relates to a motor vehicle that is exempt from motor tax under the Vehicle and Traffic Act 1999 or the Transport Act 1981 .

200.   Avoidance of double duty – duty paid in a corresponding Australian jurisdiction

Duty is not chargeable in respect of an application to register a motor vehicle in Tasmania if –

(a) at the time the application was made, the motor vehicle is or was registered by the person making the application under the law of an Australian jurisdiction that corresponds to the Vehicle and Traffic Act 1999 ; and

(b) duty was paid in that jurisdiction in respect of the registration.

201.   No change in beneficial ownership

No duty is chargeable in respect of an application to register a motor vehicle where –

(a) the Commissioner is satisfied there is no change in beneficial ownership and that duty has been previously paid on an application to register the motor vehicle by or on behalf of the beneficial owner of the vehicle in this or a corresponding Australian jurisdiction; or

(b) in prescribed circumstances.

202.   Reassessment of duty – repossession of stolen motor vehicle

(1)  Duty is not chargeable on an application for registration of a motor vehicle that has been repossessed from a person because, before the person acquired it, it had been stolen.

(2)  If requested by a person who has paid duty on an application for registration to which subsection (1) applies, the Commissioner must assess or reassess the duty accordingly.

203.   Refund if contract, arrangement or agreement cancelled

The Commissioner, on application by a person who paid duty in respect of the registration of a motor vehicle or a notice of a change of beneficial ownership may refund to the person the duty paid if the person cancelled any contract, arrangement or agreement under which that motor vehicle was acquired within 3 months of the acquisition.

PART 3 - Trading stock and demonstrator vehicles of motor dealers

204.   Exemptions for motor dealers

Duty under this Chapter is not payable by a motor dealer who holds an exemption certificate in respect of the registration or transfer of a type of motor vehicle specified in that certificate acquired for a purpose specified in section 214 .

205.   Application for exemption certificate

(1)  A motor dealer may apply to the Commissioner for a certificate certifying that the dealer is exempt from paying duty under this Act in respect of specified types of motor vehicles.

(2)  An application is to be –

(a) in an approved form; and

(b) accompanied by the prescribed fee.

(3)  The Commissioner may require an applicant to provide any further information the Commissioner considers necessary to decide the application.

206.   Grant or refusal of application

(1)  The Commissioner may –

(a) grant the application for an exemption certificate in full or in part and subject to any conditions the Commissioner considers appropriate; or

(b) refuse to grant the application.

(2)  The Commissioner may grant an application for an exemption certificate only if satisfied that the applicant –

(a) is a motor dealer; and

(b) has complied with any applicable provision of the Second-hand Dealers and Pawnbrokers Act 1994 ; and

(c) is not prohibited from carrying on business as a second-hand dealer under that Act; and

(d) has obtained any relevant approvals from the relevant council; and

(e) operates or intends to operate as a motor dealer on a continuing basis; and

(f) is not acting on behalf of another person who is not eligible to hold the certificate.

(3)  If the Commissioner refuses to grant the application, the Commissioner, by notice in writing, is to advise the applicant of –

(a) the refusal to grant the application; and

(b) the reasons for that refusal; and

(c) the right of the applicant to object to the Commissioner's decision under the Taxation Administration Act 1997 .

207.   Form of exemption certificate

An exemption certificate is to –

(a) be in an approved form; and

(b) be issued in the name of the person carrying on the business; and

(c) specify the type of motor vehicle to which it relates; and

(d) specify the conditions to which it is subject; and

(e) specify the purpose for which it was acquired; and

(f) specify the expiry date of the certificate.

208.   Period of exemption certificate

An exemption certificate is in force for a period, not exceeding 12 months, as specified in the certificate.

209.   Notification of changes

(1)  The holder of an exemption certificate must notify the Commissioner –

(a) of any change of address; and

(b) if the holder ceases to carry on the business of dealing in motor vehicles; and

(c) if the holder is prohibited from carrying on that business under any other Act.

Penalty:  Fine not exceeding 100 penalty units.

(2)  The holder of the exemption certificate must forward the certificate to the Commissioner for endorsement as soon as practicable after an event referred to in subsection (1) occurs.

Penalty:  Fine not exceeding 100 penalty units.

210.   Renewal of exemption certificate

(1)  The holder of an exemption certificate may apply to the Commissioner for renewal of the certificate.

(2)  An application for renewal is to be –

(a) in an approved form; and

(b) accompanied by the prescribed fee; and

(c) lodged no later than 2 months before the expiry of the certificate.

(3)  If a holder fails to make an application within the period specified in subsection (2)(c) or within any other period the Commissioner may allow –

(a) the exemption certificate is taken to be cancelled as at its expiry date; and

(b) the Commissioner, by written notice, is to advise the Registrar of Motor Vehicles of the cancellation; and

(c) the holder must forward the exemption certificate to the Commissioner within 14 days after that expiry date.

211.   Grant or refusal of renewal of application

(1)  The Commissioner may –

(a) grant an application for the renewal of an exemption certificate subject to any conditions the Commissioner considers appropriate; or

(b) refuse to grant the application for renewal if not so satisfied.

(2)  The Commissioner may grant the application for renewal only if satisfied as to the matters specified in section 206(2) .

(3)  If the Commissioner refuses to grant the application for renewal, the Commissioner, by notice in writing, is to –

(a) advise the holder of the exemption certificate of –

(i) the refusal to grant the application for renewal; and

(ii) the reasons for that refusal; and

(iii) the right of the holder to object to the Commissioner's decision under the Taxation Administration Act 1997 ; and

(b) advise the Registrar of Motor Vehicles of the refusal to grant that application.

212.   Suspension and cancellation of exemption certificate

(1)  The Commissioner may cancel an exemption certificate if satisfied that the holder –

(a) has ceased to be a motor dealer; or

(b) is prohibited from carrying on the business of a motor dealer under any other Act; or

(c) has not complied with any condition of the exemption certificate or any provision of this Chapter, the consequences of which, in the opinion of the Commissioner, justify the cancellation; or

(d) has used or attempted to use the certificate to obtain an exemption that is not available.

(2)  The Commissioner may suspend an exemption certificate for a specified period if satisfied that the holder has not complied with any condition of the exemption certificate or any provision of this Act.

(3)  The Commissioner, by written notice, is to advise the holder of an exemption certificate and the Registrar of Motor Vehicles of any suspension or cancellation.

(4)  On receipt of the notice, the holder must forward the exemption certificate to the Commissioner within 14 days after the receipt.

Penalty:  Fine not exceeding 100 penalty units.

(5)  Duty is payable in relation to any vehicle acquired through the use of an exemption certificate which has been cancelled under this section or taken to be cancelled under section 210(3)(a) if the former holder of that certificate of exemption has not disposed of the vehicle within 3 months of the date of cancellation or any longer period the Commissioner may allow.

213.   Continuing use of exemption certificate

The holder of an exemption certificate who makes an application for renewal under section 210 before the certificate expires continues to be exempted from paying duty in respect of the types of vehicles specified in the certificate until whichever of the following occurs first:

(a) the end of a period of 3 months, or any further period the Commissioner determines, after that expiry;

(b) if the application is refused before that expiry, the date of the refusal.

214.   Applicable exemptions

(1)  An exemption certificate may only be used to obtain exemption from payment of duty in respect of the registration or transfer of a specified motor vehicle if –

(a) in the case of a new motor vehicle, it is acquired for the sole purpose of demonstration to prospective purchasers; or

(b) in the case of a used motor vehicle, it is acquired for resale in the ordinary course of business and for no other intermediate purpose; or

(c) in the case of a holder who is a wholesaler, the motor vehicle is acquired for sale to other holders of exemption certificates or motor dealers in other States.

(2)  An exemption from payment of duty only applies if the holder of an exemption certificate makes a written statement to the Registrar of Motor Vehicles stating that –

(a) the certificate is in force; and

(b) one of the paragraphs of subsection (1) applies.

(3)  The holder of an exemption certificate is to keep a record of any exemption applied on the basis of a statement made under subsection (2) .

Penalty:  Fine not exceeding 100 penalty units.

215.   Improperly obtaining exemption

(1)  A person must not use an exemption certificate to obtain an exemption for a purpose that is not specified in section 214 .

Penalty:  Fine not exceeding 100 penalty units.

(2)  The holder of an exemption certificate that is used to obtain an exemption for a purpose that is not specified in section 214 commits a tax default under the Taxation Administration Act 1997 .

216.   Change of purpose

(1)  The holder of an exemption certificate must notify the Commissioner of any change in the purpose specified in a statement under section 214(2) for which a motor vehicle was acquired within 14 days after the change occurred.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A notification is to be –

(a) in a form approved by the Commissioner; and

(b) lodged with the Commissioner.

(3)  Where duty is payable in respect of the motor vehicle, it is payable at the applicable rate referred to in section 197 .

(4)  A tax default under the Taxation Administration Act 1997 occurs if the applicable duty is not paid within 14 days after the change in purpose occurred.

217.   Duty payable in certain circumstances

(1)  If a motor vehicle to which an exemption certificate relates has not been sold within 12 months after its date of acquisition, the holder of the exemption certificate is liable to pay duty in respect of the motor vehicle.

(2)  Subsection (1) does not apply if the holder of the exemption certificate satisfies the Commissioner that –

(a) the motor vehicle was not used for private purposes during the period referred to in that subsection; and

(b) a real attempt was made during that period to sell the motor vehicle.

(3)  Any duty payable under this section is at the applicable rate referred to in section 197 as from a date determined by the Commissioner.

218.   Record of exemption certificates

The Commissioner is to –

(a) keep records of all certificates of exemption granted or renewed under this Part; and

(b) make a summary of those records available for public inspection during normal business hours.

Chapter 9 - Miscellaneous duties

PART 1 - Duplicates and replicas

219.   Duplicates or counterparts

(1)  Duty of $20 is chargeable on the duplicate or counterpart of an instrument that effects a dutiable transaction or an instrument chargeable with duty.

(2)  The person liable to pay the duty is the person liable to pay the duty on the original instrument.

(3)  The duplicate or counterpart referred to in subsection (1) is not to be stamped as a duplicate or counterpart unless it is proved to the Commissioner's satisfaction that the proper duty has been paid on the original instrument of which it is the duplicate or counterpart.

220.   Replicas

(1)  Duty is chargeable on a replica –

(a) at $20; or

(b) at the same amount as the duty with which the instrument the replica is intended to replace was stampable –

whichever is the lesser.

(2)  The persons liable to pay the duty are the parties to the replica or any one or more of them.

(3)  A replica that is duly stamped is to be marked in such manner as the Commissioner thinks fit to denote that it is a replica.

(4)  In this section,

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 been lost, spoiled or destroyed and that, in the Commissioner's opinion, has been duly stamped.

PART 2 - Miscellaneous duties

221.   Motor accident premium certificates

(1)  A certificate or other document issued for the purpose of the Motor Accidents (Liabilities and Compensation) Act 1973 that acknowledges the receipt of a premium paid under that Act is a certificate of premium paid notwithstanding that it is also issued for other purposes.

(2)  Duty is chargeable on a certificate of premium paid.

(3)  The amount of duty payable is $6 and the person liable to pay the duty is the applicant.

(4)  The amount of duty payable must be denoted on the certificate of premium paid.

(5)  A certificate of premium paid is not duly stamped until the duty has been paid.

(6)  The Motor Accidents Insurance Board or its agent is to –

(a) furnish to the Commissioner any returns required with regard to the certificates of premium paid issued; and

(b) pay duty received in respect of certificates of premium paid to the Commissioner in any manner and at any time notified by the Commissioner.

222.   Miscellaneous instruments

(1)  Duty is chargeable under this section only in respect of the following instruments:

(a) any deed not otherwise subject to ad valorem duty;

(b) any agreement that effects a loan of money of not more than $1 000 not otherwise subject to duty;

(c) any agreement that effects a loan of money in excess of $1 000 not otherwise subject to duty;

(d) any agreement relating to the construction or modification of a building;

(e) any agreement that creates, varies or dissolves a partnership not otherwise subject to ad valorem duty;

(f) any instrument that guarantees performance of an undertaking;

(g) any reconveyance, release or discharge of any mortgage or charge that is not intended to be registered under the Land Titles Act 1980 or the Registration of Deeds Act 1935 ;

(h) any agreement relating to the management of real property.

(2)  The amount of duty payable on –

(a) an instrument referred to in subsection (1)(b) is $10; and

(b) any other instrument referred to in subsection (1) is $20.

(3)  The person liable to pay duty is any of the parties to the instrument.

(4)  The liability for duty arises when the instrument is first executed.

(5)  A tax default under the Taxation Administration Act 1997 does not occur if duty is paid within 3 months after the liability arises.

(6)  Duty is not chargeable in respect of –

(a) any instrument effecting the appointment or retirement of a trustee under a will or a charitable trust; or

(b) any indenture of apprenticeship; or

(c) any instrument releasing or discharging a loan for the purpose of a prescribed industry under the Tasmanian Development Act 1983 ; or

(d) any bond entered into before any court or magistrate; or

(e) any power of attorney registered under the Registration of Deeds Act 1935 .

223.   Consumer credit contracts

(1)  Duty is chargeable under this section only in respect of a credit contract within the meaning of the Consumer Credit (Tasmania) Code.

(2)  The amount of duty payable on a credit contract is –

(a) $10, if the amount of the credit provided is less than $1 000; or

(b) $20, if the amount of the credit provided is $1 000 or more.

(3)  The person liable to pay the duty is the credit provider.

(4)  The liability for duty arises when the credit contract is first executed.

(5)  A tax default under the Taxation Administration Act 1997 does not occur if duty is paid within 3 months after the liability arises.

224.   Consumer credit contract exemptions

(1)  Duty imposed under section 223 is not chargeable in respect of a consumer credit contract if –

(a) the total amount of credit provided or to be provided under the contract does not exceed $100; or

(b) irrespective of the amount of credit provided or to be provided under the contract, any sum payable under the contract by the borrower by way of interest or by way of a book-keeping charge or any other charge does not exceed $10 per annum; or

(c) duty is otherwise payable on the contract under Chapter 5 or 6 .

(2)  Duty imposed under section 223 is not payable in respect of a consumer credit contract relating to a credit card account that is subject to credit card duty under the Debits Duties Act 2001 .

Chapter 10 - General exemptions from duty

PART 1 - Intergenerational rural transfers

225.   Intergenerational rural transfers

(1)  Duty under this Act is not chargeable on a transfer of real property, whether for consideration or not, and which includes personal property used solely or principally in connection with the business of primary production, if the Commissioner is satisfied that the transfer –

(a) relates to land currently used, and which will continue to be used, in the business of primary production; and

(b) does not arise from any arrangement or scheme devised to evade the payment of duty by taking the benefit of this exemption; and

(c) is from –

(i) a natural person to a relative of the person or to a trustee of a trust in which all the beneficiaries are individually named and are relatives of the person at the time of the transfer and may not be varied other than by the addition of a relative individually named in any deed of variation; or

(ii) a company to a trustee of a trust in which all the beneficiaries are individually named and are relatives of all the shareholders of the company at the time of the transfer and may not be varied other than by the addition of a relative individually named in a deed of variation; or

(iii) a company to a natural person and all the shareholders of the company are relatives of the person; or

(iv) a trustee of a trust to a person who is a relative of all those named beneficiaries of the trust who are natural persons; or

(v) a trustee of a trust to a trustee of another trust of which all the beneficiaries are individually named and relatives at the time of the transfer of all those beneficiaries of the first-mentioned trust who are natural persons and of which the named beneficiaries may not be varied other than by the addition of a relative individually named in a deed of variation.

(2)  Duty under this Act is not chargeable on any transfer of shares in a farming company to the extent of the proportion of the value of the shares which is the same proportion that the value of the farming property bears to the value of the total assets of the company, if the transfer is from a natural person to –

(a) a relative of the person; or

(b) a trustee of a trust in which all the beneficiaries are individually named and are relatives of the person at the time of the transfer and may not be varied other than by the addition of a relative individually named in a deed of variation.

(3)  A relative of a person is –

(a) a lineal descendant of the person; or

(b) an adopted child, a natural child or a step-child of the person; or

(c) a lineal ancestor of the person; or

(d) a brother, sister, nephew, niece, aunt or uncle of the person; or

(e) the spouse or de facto partner of the person or of a person referred to in paragraph (a) , (b) , (c) or (d) .

226.   Subsequent liability for duty in certain circumstances

(1)  If the Commissioner, after being satisfied as required under section 225 , becomes aware that a transfer in respect of which duty was not chargeable under that section was not a transfer referred to in that section, the Commissioner may assess that transfer for the duty that would otherwise be payable.

(2)  Duty is chargeable on a transfer referred to in section 225 if any of the following occurs:

(a) a person who is not a relative of the transferor –

(i) becomes entitled to a share or interest in the trust, whether that share or interest is vested or contingent; or

(ii) otherwise benefits from the trust;

(b) the transferor gains control of the trust.

(3)  The transferee must lodge with the Commissioner a statement in an approved form within one month after any event referred to in subsection (2) occurs and pay the duty that would be assessed in respect of that transaction.

Penalty:  Fine not exceeding 100 penalty units.

(4)  Section 19(3) of the Taxation Administration Act 1997 does not apply to this section.

PART 2 - Miscellaneous exemptions

227.   Miscellaneous exemptions

(1)  Duty is not chargeable in respect of the following:

(a) any instrument made by the Department responsible for the administration of the Hospitals Act 1918 in respect of the grant, purchase, transfer, mortgage or lease of any land if duty on that instrument would otherwise be payable by that Department;

(b) any instrument made in respect of the mortgage or lease of any land by, to, or with the licensee, proprietor, governors, trustees, committee of management, or resident manager of a private hospital not for or in connection with the acquisition of a private hospital if duty on that instrument would otherwise be payable by that private hospital;

(c) any instrument made by, to, or with the University of Tasmania in respect of the grant, purchase, conveyance, transfer, mortgage, or lease of any land if duty on that instrument would otherwise be payable by the University of Tasmania;

(d) any instrument on which duty would otherwise be payable by a person constituted, established or appointed under an Act or under the Royal prerogative to administer or control any department, business, undertaking or public institution on behalf of the State who is exempted by proclamation from the payment of all duties under this Act;

(e) any instrument in respect of loans made for the purpose of the Farm Water Development Act 1985 ;

(f) any instrument in respect of loans made for the purpose of the King and Flinders Islands (Power) Financial Assistance Act 1984 ;

(g) any instrument in respect of financial assistance made for the purpose of the Rural Adjustment Act 1995 ;

(h) any instrument or transaction to which the Tasmanian Public Finance Corporation is a party;

(i) any agreement made under section 17(2) of the Forest Practices Act 1985 ;

(j) any instrument effecting a purchase of a replacement property or any mortgage in respect of that property to replace affected property purchased by the Crown under section 10(1) of the Rosetta Landslip Act 1992 provided that the agreement to purchase the replacement property is entered into within a period of 12 months immediately after the purchase of that affected property by the Crown;

(k) any permit, licence, pipeline licence or access authority within the meaning of the Petroleum (Submerged Lands) Act 1982 , any instrument effecting the transfer of such a licence or authority or any instrument relating to any legal or equitable interest in such a licence or authority;

(l) any instrument for effecting a surrender of any land to the Crown.

(2)  A person who is liable to pay duty in respect of any instrument or transaction is exempted from the payment of the duty if –

(a) the instrument or transaction relates to any action, matter or proceeding in respect of which legal aid is provided under section 51 of the Legal Aid Commission Act 1990 ; and

(b) the person was eligible to receive legal assistance under such a scheme.

Chapter 11 - Miscellaneous

PART 1 - Stamping instruments

228.   Provision of stamps

The Commissioner may provide stamps or such other equipment as may be required for –

(a) stamping instruments; or

(b) otherwise denoting the payment of duty –

in accordance with the provisions of this Act.

229.   Limitation on use of designated stamps

(1)  A stamp that by its terms is limited to an instrument of a specified kind must not be used for an instrument of a different kind.

Penalty:  Fine not exceeding 100 penalty units.

(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.

230.   Form of stamps to be used

(1)  An instrument that is required to be stamped by this Act is to be stamped by means of an impressed stamp.

(2)  Another form of stamping may be used if its use is authorised by this Act or the Commissioner.

231.   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, and that has been lodged for stamping with the Commissioner if the duty, and any interest or penalty tax under Part 5 of the Taxation Administration Act 1997 , is paid in full.

232.   When is an instrument duly stamped?

An instrument is duly stamped if it is stamped in accordance with this Act or section 53(1) of the Taxation Administration Act 1997 .

233.   Adhesive stamps

(1)  An adhesive stamp may be used to stamp the following instruments:

(a) a superannuation instrument to which section 44 applies;

(b) duplicates or counterparts of instruments that may themselves be stamped with adhesive stamps;

(c) consumer credit contracts under section 223(1) ;

(d) any other instrument for which, under a taxation law within the meaning of the Taxation Administration Act 1997 , tax may be denoted by use of an adhesive stamp.

(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 amount of duty is attached to the instrument; and

(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.

(3)  An adhesive stamp that has been attached to an instrument and cancelled must not be removed from the instrument except by the Commissioner after an application for a refund of the duty denoted by the stamp has been approved.

Penalty:  Fine not exceeding 100 penalty units.

234.   Licences to deal in stamps

(1)  The Commissioner may, on such terms and conditions as are determined by the Commissioner, 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 at such commission discount as may be determined by the Commissioner.

(4)  The Commissioner may cancel a licence granted under this section at any time by giving notice of the cancellation to the licensee.

(5)  A person who is not licensed under this section must not sell or deal in stamps.

Penalty:  Fine not exceeding 100 penalty units.

235.   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.

(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.

236.   Reassessments – failed instruments

(1)  An instrument that fails in its intended operation and becomes useless is not chargeable with duty under this Act.

(2)  The Commissioner must make a reassessment of 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.

(3)  The instrument in respect of which the application is made must be produced to the Commissioner unless the Commissioner dispenses with its production.

237.   Instruments to be separately charged with duty in certain cases

An instrument that contains or relates to several distinct matters for which different duties are chargeable under this Act is to be separately and distinctly charged with duty in respect of each such matter, as if each matter were expressed in a separate instrument.

238.   Execution of instruments

(1)  For the purposes of this Act, an instrument is taken to be first executed the first time that it is signed and sealed, or signed (as the case may be) by any party to it.

(2)  However, a contract made by acceptance of an offer contained in an instrument is taken to be first executed when the offer is accepted.

(3)  If an instrument is ineffective by reason of a failure of the necessary parties to execute it, a refund may be made of any money paid for stamping.

239.   Stamping of instruments after execution

(1)  Except where otherwise expressly provided by this or another Act, a person liable with respect to any instrument chargeable with duty or any dutiable transaction must cause the instrument, or an instrument that effects or evidences the transaction, to be duly stamped or, in accordance with the provisions of this Act, marked "interim stamp only" within 6 months after it was first executed.

Penalty:  Fine not exceeding 100 penalty units.

(2)  For the purposes of this section, a written statement that is required to be stamped is taken to be first executed when the transaction to which the statement relates occurs.

240.   Stamping taken to constitute an assessment

For the purposes of this Act, the stamping of an instrument (excluding a return) by the Commissioner is taken to be evidence of an assessment of the duty payable under this Act in respect of the instrument.

241.   Copies of instruments

(1)  A copy of an original instrument is chargeable with duty as if it had been executed in the same way as the original instrument and had been first executed at the same time as the original instrument unless the Commissioner is satisfied –

(a) that the original instrument has been duly stamped; or

(b) that a copy of the original instrument has been duly stamped in accordance with this section.

(2)  If a copy of an original instrument is duly stamped in accordance with the section, the original instrument is taken to be duly stamped.

(3)  In this section –

copy of an original instrument means an unexecuted instrument in which, in the Commissioner's opinion, the matter contained in the original instrument is wholly or substantially reproduced, whether or not the matter reproduced has the same appearance as the matter contained in the original instrument, but does not include a replica within the meaning of section 220 ;

original instrument means an instrument that is chargeable with duty otherwise than under this section.

242.   Calculation of time

(1)  This section applies to the calculation of a period of time for the purpose of determining when the payment of duty is due under this Act.

(2)  A month is taken to be a period commencing at the beginning of a day of one of the 12 named months (within the meaning of the Acts Interpretation Act 1931 ) and ending –

(a) at the end of the corresponding day of the next named month; or

(b) if there is no such corresponding day, at the end of the next named month.

(3)  A period of 2 or more months is taken to be a period commencing at the beginning of a day of one of the 12 named months (within the meaning of the Acts Interpretation Act 1931 ) and ending –

(a) at the end of the corresponding day of the last named month within the period; or

(b) if there is no such corresponding day, at the end of that named month.

(4)  Section 29 (except subsection (1) ) of the Acts Interpretation Act 1931 applies to the calculation of a period of time to which this section applies.

PART 2 - Enforcement

243.   Registration of instruments

A person must not register, record, enrol or accept for any purpose an instrument that effects in whole or in part a dutiable transaction or an instrument chargeable with duty unless –

(a) it is duly stamped; or

(b) it is endorsed by the Commissioner or in a manner approved by the Commissioner.

Penalty:  Fine not exceeding 100 penalty units.

244.   Registration of transfers of shares

(1)  A corporation, company or society not quoted on the Australian Stock Exchange or a recognised stock exchange must not enter in its records a transfer of shares on which duty is charged under this Act or a transfer made as a consequence of a sale or purchase of shares in respect of which duty is charged under this Act unless –

(a) a transfer has been delivered to the corporation, company or society; and

(b) the transfer is duly stamped.

Penalty:  Fine not exceeding 100 penalty units.

(2)  For the purposes of this section, a corporation, company or society is entitled to assume that an instrument is duly stamped if it bears any of the following:

(a) an impressed stamp;

(b) an endorsement in accordance with an approval under section 49 of the Taxation Administration Act 1997 ;

(c) an exempt stamp;

(d) a current foreign resident declaration.

245.   Registration of transfers of units

(1)  The trustee or manager of a unit trust scheme not quoted on the Australian Stock Exchange or a recognised stock exchange must not enter in its records a transfer of units on which duty is charged under this Act or a transfer made as a consequence of a sale or purchase of units in respect of which 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:  Fine not exceeding 100 penalty units.

(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 it bears any of the following:

(a) an impressed stamp;

(b) an endorsement in accordance with an approval under section 49 of the Taxation Administration Act 1997 ;

(c) an exempt stamp;

(d) a current foreign resident declaration.

246.   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 tribunal exercising civil jurisdiction unless –

(a) it is duly stamped; or

(b) it is endorsed by the Commissioner or in a manner approved by the Commissioner.

(2)  A court or tribunal may admit in evidence an 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 subsection (1)  –

(a) if the instrument is after its admission 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 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.

(3)  A court or tribunal may admit in evidence an unexecuted copy of an instrument that effects a dutiable transaction, or is chargeable 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 copy is duly stamped, or is endorsed in a manner approved by the Commissioner; or

(b) the copy is duly stamped under section 241 .

247.   Valuation of property

(1)  The Commissioner may require a person who is liable to duty determined with reference to the value of property to provide a declaration by a competent valuer as to the unencumbered value of the property or to provide such other evidence of that value as the Commissioner thinks fit.

(2)  The Commissioner may assess duty in accordance with the value so declared.

(3)  The Commissioner may have property valued if not satisfied with the value so declared and may assess duty on the basis of the valuation.

(4)  The Commissioner may recover the cost of obtaining a value under this section from the dutiable person.

248.   Assessment where consideration inadequate

(1)  If the Commissioner is of the opinion that the consideration shown in an agreement for the sale, transfer or exchange of any real property (or an interest in real property) is inadequate with respect to the value of that real property or interest, the Commissioner may assess the duty payable on the agreement or other instrument by treating the unencumbered value of the relevant real property determined in accordance with subsection (2) as the dutiable value for the sale, transfer or exchange of that property.

(2)  The unencumbered value of the relevant real property is the value calculated by multiplying the capital value of the real property as determined under the Land Valuation Act 1971 by the last adjustment factor determined by the Valuer-General before the date of the agreement, transfer, assignment or other instrument or dealing relating to that real property.

(3)  The Commissioner may assess the duty payable on the unencumbered value of the relevant real property determined by the Valuer-General as at the date on which the agreement, transfer, assignment or other instrument was made if –

(a) the Commissioner is unable to determine the value of real property as provided by subsection (2) ; or

(b) a party to the agreement, transfer, assignment or similar instrument so requests.

(4)  If the Valuer-General determines the unencumbered value of relevant real property for the purpose of subsection (3) and charges the Commissioner a fee for that determination, the Commissioner may recover that fee from the person who is liable to pay duty in respect of any instrument referred to in this section.

249.   Ascertainment of value of certain interests

If it is necessary for the purpose of assessing duty under this Act to ascertain the value of –

(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 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 –

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.

250.   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 instrument until the duty or any interest or penalty tax, or all such amounts, have been paid.

PART 3 - Miscellaneous

251.   Application of Act

(1)  This Act does not require a servant or agent of the Crown, acting as such, to pay any stamp duty.

(2)  For the purpose of subsection (1) , a Government Business Enterprise, within the meaning of the Government Business Enterprises Act 1995  –

(a) is not the Crown; and

(b) is not taken to be acting on behalf of the Crown only because it is a Government Business Enterprise.

252.   Loans to pay duty on certain instruments

(1)  A person may apply in writing to the Commissioner for a loan to pay duty on any instrument dutiable under Chapters 2 or 6 that is made to, by or with that person in respect of land purchased or money borrowed to finance the purchase of that land if –

(a) a building intended for use as a single dwelling is constructed on that land that is, or will be, the first to be established as a residence by that person or by that person jointly with another person (whether in this State or elsewhere) on land purchased or held in an estate in fee simple or under a lease that provides a reasonable expectation of occupation for the remainder of the person's life; and

(b) the building is, or will be, used as that person's usual place of residence and is not being, or will not be, used as a means of providing a source of income; and

(c) the value of that land, including the building, does not exceed $120 000.

(2)  For the purpose of subsection (1)(c) , the value of land is whichever is the greater of the following:

(a) the purchase price paid and the value of chattels included in that sale of that land;

(b) the capital value of the land determined by the Valuer-General as at the date on which the land was purchased together with the value of any chattels included in the purchase of the land as determined by a person considered by the Commissioner to be competent to value those chattels.

(3)  The Commissioner may require an applicant to furnish any evidence the Commissioner considers necessary to satisfy the Commissioner that the applicant is entitled to obtain the loan.

(4)  The Commissioner, if satisfied that an applicant is entitled under subsection (1) to obtain a loan, may make a loan to the applicant of an amount equal to the amount of duty payable on any relevant instrument if the applicant enters into an agreement with the Commissioner under section 253 .

(5)  Except as provided in section 253(2) , a loan is not subject to the payment of interest.

253.   Agreements relating to loans

(1)  An agreement relating to a loan referred to in section 252 is –

(a) to provide that –

(i) the amount of the loan is to be repaid to the Commissioner by instalments of any amount specified in the agreement over a period of 2 years commencing on the date of the agreement; and

(ii) the instalments are payable at the intervals specified in the agreement; and

(b) subject to any other terms and conditions the Commissioner thinks fit and are specified in the agreement.

(2)  Without limiting the generality of subsection (1)(b) , an agreement may be subject to a condition that if a person fails to pay an instalment by the due date the person is liable to pay to the Commissioner, within the period specified in the agreement, interest on the instalment at the interest rate specified in section 35 of the Taxation Administration Act 1997 .

(3)  Duty is not payable in respect of the agreement.

(4)  If a person fails to comply with a term or condition of the agreement –

(a) the agreement ceases to have effect; and

(b) the whole of the loan, or the balance of the loan outstanding, on the agreement and any interest owing under the agreement become payable immediately by that person to the Commissioner and are recoverable as a debt due to the Crown.

(5)  Any loan made by the Commissioner is to be paid out of the Consolidated Fund, which, to the necessary extent, is appropriated accordingly.

254.   Recognised stock exchanges

The Minister, by order published in the Gazette, may declare a stock exchange to be a recognised stock exchange for the purpose of this Act.

255.   Duty paid under former Act

If an assessment or reassessment of duty under this Act is required to take into consideration another amount of duty paid, a reference in this Act to duty includes a reference to duty within the meaning of the former Act that has been paid in accordance with that Act.

256.   Stamping under former Act

An instrument is duly stamped for the purposes of this Act if, immediately before the commencement day, it was duly stamped for the purposes of the former Act.

257.   Regulations

(1)  The Governor may make regulations for the purpose of this Act.

(2)  Regulations may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the regulations.

(3)  The Governor may make regulations of a savings or transitional nature consequent on the enactment of this Act;

(4)  Regulations under subsection (3) may take effect from the commencement of this Act or a later day.

258.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Treasurer; and

(b) the department responsible to the Treasurer in relation to the administration of this Act is the Department of Treasury and Finance.

259.   Savings and transitional provisions

The provisions in Schedule 1 have effect.

260.   Consequential amendments

The Acts specified in Schedule 2 are amended as specified in that Schedule.

261.    Stamp Duties Act 1931 repealed

The Stamp Duties Act 1931 is repealed.

262.    Stamp Duties Regulations 1998 rescinded

The Stamp Duties Regulations 1998 are rescinded.

SCHEDULE 1 - Savings and transitional provisions

Section 259

1.   Interpretation

In this Schedule –

commencement day means the day on which this Act commences;

former Act means the Stamp Duties Act 1931 .

2.   Provisions relating to dutiable property

(1) Section 22 extends to dutiable transactions at least one of which occurred before the commencement day and at least one of which occurred on or after the commencement day if –

(a) they occurred within 12 months; and

(b) the other provisions of that section are satisfied.

(2) Section 40 extends to –

(a) a transfer of property that is dutiable property to a trustee; and

(b) the payment of duty on that transfer –

before the commencement day if the transfer back to the transferor occurs on or after that day.

(3) Without limiting section 255  –

(a) the reference in section 41(2)(a)(i) to duty charged under this Act includes a reference to duty charged under the former Act; and

(b) section 41(3) does not apply if the Commissioner is satisfied that any change in beneficiaries occurred before the commencement day.

(4) Section 33 extends to an agreement that was entered into before the commencement day and that was rescinded or annulled on or after that day.

(5) Section 56(3) extends to a payment of ad valorem duty made before the commencement day under the former Act.

3.   Provisions relating to certain transactions treated as transfers

(1) In section 71  –

(a) a reference to a period of 3 years is a reference to any such period starting before the commencement day and ending on or after the commencement day; and

(b) a reference to duty paid under this Act includes a reference to duty paid under the former Act; and

(c) a reference to duty paid under that section includes a reference to duty paid under Division 1 of Part IV of the former Act.

(2) An interest acquired before the commencement day in a land holding corporation in which the unencumbered value of the real property under section 35(1)(b) of the former Act was less than $1 million at the date of the relevant acquisition is to be disregarded for the purpose of calculating duty under this Act.

4.   Provisions relating to lease instruments

(1) Section 74A(2) of the former Act applies to a lease executed before the commencement day.

(2) The payment of any additional duty in respect of a lease referred to in subclause (1) is to be paid within 3 months after the date on which the rent relating to that lease was increased or ascertained.

5.   Provisions relating to hire of goods

(1) The duty charged by Chapter 5 is charged on a hire of goods that is entered into on or after the commencement day.

(2) A person who, immediately before the commencement day, is an approved person under section 12A of the former Act in relation to payment of duty on hire purchase agreements or is an approved person under section 58 of the former Act is, on that day, taken to be a registered commercial hire business.

6.   Provisions relating to mortgages

(1) The duty charged by Chapter 6 is charged on an advance or a further advance made on or after the commencement day on a mortgage first executed before the commencement day to the extent that the amount advanced exceeds the amount to which the mortgage has been stamped to secure under the former Act.

(2) A mortgage duly stamped, endorsed exempt or not chargeable with duty under the former Act immediately before the commencement day is, on that day, taken to be duly stamped under this Act.

(3) A mortgage that is not duly stamped under the former Act immediately before the commencement day is, on that day, taken to be chargeable with duty under Chapter 6 .

7.   Provisions relating to insurance

(1) A person who, immediately before the commencement day, is a person approved under section 12A of the former Act is, on that day, taken to be registered as an insurer.

(2) A policy of life insurance stamped under item 33 of Schedule 2 to the former Act is not chargeable with duty under Chapter 7 .

8.   Provision relating to motor vehicle registration

A certificate of exemption issued under the former Act remains in force until 4 months after the commencement day.

9.   Provision relating to miscellaneous matters

Section 236 extends to an application for a refund of duty paid under the former Act before the commencement day.

10.   Stamping under former Act

(1) Section 15 of the former Act applies to an instrument first executed but not stamped or insufficiently stamped before the commencement day.

(2) Section 70(3) of the former Act applies to an agreement for the sale of a business or a contract of sale first executed but not stamped or insufficiently stamped before the commencement day.

11.   Contracts of sale

Section 70(10) of the former Act applies to a contract for the sale, conveyance or transfer of land that is executed before the commencement day.

12.   Objections

An objection made under section 21 of the former Act and not determined before the commencement day is, on and after that day, to be determined under the former Act.

13.   Appeals

An appeal made under section 22 of the former Act and not determined before the commencement day is, on and after that day, to be determined under the former Act.

14.   Approved persons

A person who, immediately before the commencement day, was a person approved under section 12A of the former Act is, on that day, taken to be an approved person under Division 2 of Part 6 of the Taxation Administration Act 1997 .

15.   Payment of duty

Any arrangement for the payment of duty made under the former Act before the commencement day and not discharged before that day continues on and after that day until the obligation to pay is discharged.

16.   Obligation to pay duty

(1) Any obligation to pay duty under the former Act in force immediately before the commencement day continues on and after that day until it is discharged.

(2) The amount of duty payable in respect of an obligation referred to in subclause (1) is to be calculated, where applicable, in accordance with Schedule 4 to the former Act as if that Act had not been repealed.

17.   Authorised officer

A person who, immediately before the commencement day was an authorised officer under Division 3A of Part III of the former Act is, on that day, taken to be an authorised officer under Part 2 of the Taxation Administration Act 1997 .

18.   Powers of Commissioner and authorised officers

(1) The Commissioner may exercise any power referred to in Division IA or Division 4 of Part III of the former Act in relation to any obligation referred to in clause 16 as if that Act had not been repealed.

(2) An authorised officer referred to in clause 17 may exercise any power referred to in Division 3A of Part III of the former Act in relation to any obligation referred to in clause 16 as if that Act had not been repealed.

SCHEDULE 2 - Consequential Amendments

Section 260

Aboriginal Lands Act 1995

1.    Section 34 is amended by omitting subsection (1) .

Abt Railway Development Act 1999

1.    Section 12 is amended by omitting subsection (3) .

Administration and Probate Act 1935

1.    Section 36 is amended by omitting subsection (10) .

Archives Act 1983

1.    Section 9 is amended by omitting subsection (3) .

Auctioneers and Real Estate Agents Act 1991

1.    Section 90 is repealed.

Crime (Confiscation of Profits) Act 1993

1.    Section 18 is amended by omitting subsection (8) .

Crown Lands Act 1976

1.    Section 59 is amended by omitting subsection (9) .

Farm Water Development Act 1985

1.    Section 10 is amended by omitting "is exempt from stamp duty and".

Forest Practices Act 1985

1.    Section 17 is amended by omitting subsection (3) .

King and Flinders Islands (Power) Financial Assistance Act 1984

1.    Section 10 is amended by omitting "is exempt from stamp duty and".

Land Titles Act 1980

1.    Section 33 is amended by omitting subsection (19) .

Legal Profession Act 1993

1.    Section 163 is repealed.

Libraries Act 1984

1.    Section 17 is amended by omitting subsection (3) .

2.    Section 20 is amended by omitting subsection (3) .

Petroleum (Submerged Lands) Act 1982

1.    Section 92 is repealed.

Rosetta Landslip Act 1992

1.    Section 14 is repealed.

Rural Adjustment Act 1995

1.    Section 17 is amended by omitting "is exempt from stamp duty and".

Tasmanian Development Act 1983

1.    Section 47(2) is amended by omitting "stamp duty".

Tasmanian Public Finance Corporation Act 1985

1.    Section 13 is repealed.

[Second reading presentation speech made in:

House of Assembly on 15 MARCH 2001

Legislative Council on 27 MARCH 2001]