Financial Institutions Duty Act 1986

Financial Institutions Duty Act 1986

An Act to impose a duty upon financial receipts, to provide for the assessment of the duty, and for other purposes

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

PART I - Preliminary

1.   Short Title

This Act may be cited as the Financial Institutions Duty Act 1986 .

2.   Commencement

This Act shall commence on 1st October 1986.

3.   Interpretation

(1)  [Section 3 Subsection (1) amended by No. 40 of 1990, s. 39 ]In this Act, unless the contrary intention appears –[Section 3 Subsection (1) amended by No. 75 of 1997, s. 5, Applied:01 Jul 1998]

bank means a bank within the meaning of the Banking Act 1959 of the Commonwealth or a bank constituted under a law of the State, the Commonwealth, another State, or a Territory of the Commonwealth;

bill of exchange means an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person or to bearer;

cash means money in the form of cash, bills of exchange, or a combination of cash and bills of exchange;

charitable organization means –

(a) a public benevolent or a religious institution;

(b) a public hospital or a hospital that is carried on by an association or other body of persons otherwise than for purposes of profit or gain to the individual members of that association or other body; or

(c) a school, college, or university that is carried on by an association or other body of persons otherwise than for the purposes of profit or gain to the individual members of that association or other body;

[Section 3 Subsection (1) amended by No. 75 of 1997, s. 5, Applied:01 Jul 1998] Commissioner means the Commissioner of State Revenue as defined in the Taxation Administration Act 1997 ;

company means a body corporate or an unincorporated association (including a partnership);

corporation means a corporation as defined in the Companies (Tasmania) Code ;

dealer in securities means a dealer as defined in the Securities Industry (Tasmania) Code ;

dealing has the same meaning as in the Securities Industry (Tasmania) Code ;

duty means financial institutions duty, additional duty, or penal duty imposed by or under this Act;

exempt account means –

(a) a short-term dealing account;

(b) a special account;

(c) a sweeping account; or

(d) an account that is exempt from the payment of duty under Division 6A of Part IV of the Stamp Duties Act 1931 ;

financial institution means –

(a) a bank;

(b) a person whose sole or principal business is the provision of finance;

(c) a dealer in securities;

(d) a trustee company;

(e) a management company within the meaning of Division 6 of Part IV of the Companies (Tasmania) Code or of a corresponding law in force in another State or in a Territory of the Commonwealth that carries on business in Tasmania;

(f) a pastoral finance company; or

(g) the Public Trustee –

but does not include a person declared by or under this Act not to be a financial institution;

financial institutions duty means duty payable under section 29 , 30 , or 77 ;

foreign exchange dealer means a person who is the holder of a general authority that is in force;

general authority means a general authority to engage in foreign currency transactions granted and issued under regulation 38A of the Banking (Foreign Exchange) Regulations of the Commonwealth to a person named in that authority;

liquidator includes a person who, although not appointed as liquidator, is required by law to carry out the winding-up of a company;

money includes a bill of exchange and a promissory note;

pastoral finance company means a person carrying on a business of financing pastoral pursuits or a business of stock or station agents to whom an order in force under section 11 of the Banking Act 1959 of the Commonwealth applies;

person includes a company;

promissory note means an unconditional promise in writing made by one person to another, signed by the maker, arranging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person or to bearer;

receipt includes a payment, repayment, deposit, or subscription and the crediting of an account;

registered financial institution means –

(a) a financial institution that is registered under this Act; or

(b) a financial institution that, under section 62 , is deemed to be a registered financial institution;

registered short-term money market operator means a person registered as a short-term money market operator under this Act;

return period, in relation to a financial institution or a registeredshort-term money market operator, means a period in respect of which the financial institution or registered short-term money market operator is required to furnish a return under this Act;

securities has the same meaning as in the Securities Industry (Tasmania) Code ;

share includes stock;

short-term dealer means –

(a) a corporation that, under section 97 (7) (b) of the Companies (Tasmania) Code , is declared or is deemed to be declared, to be an authorized dealer in the short-term money market; or

(b) a body corporate in respect of which a declaration under section 9 is, or is deemed to be, in force;

short-term dealing account means an account kept by a bank in respect of which a certificate issued by the Commissioner under section 32 is in force;

special account means an account kept by a bank in respect of which a certificate issued by the Commissioner under section 31 or 34 is in force;

sweeping account means an account kept by a bank in respect of which a certificate issued under section 33 is in force;

term deposit means a deposit of money with a financial institution for a specified period, or a specified period and then at call, in relation to which deposit the financial institution, instead of crediting a current account kept by the financial institution, issues a certificate of deposit or similar record of deposit;

[Section 3 Subsection (1) amended by No. 75 of 1997, s. 5, Applied:01 Jul 1998] trustee includes –

(a) a person who is a trustee under an implied or constructive trust; and

(b) in relation to a deceased person, an executor of the will, or an administrator of the estate, of the deceased person; and

(c) a receiver or manager of the property of a company, or a liquidator of a company for the purpose of its winding up; and

(d) a receiver, guardian, committee or manager of the property of a person who is under a legal or other disability; and

(e) a person having possession, control or management of a business or the property of a person who is under a legal or other disability; and

(f) any person acting in a fiduciary capacity;

trustee company means –

(a) a company upon which power to act as trustee has been conferred by an Act of Parliament of a State; or

(b) a prescribed company or a company of a prescribed class;

voting share has the same meaning as in section 5 (1) of the Companies (Tasmania) Code .

(2)  A reference in this Act to the provision of finance includes a reference to –

(a) the borrowing of money or the obtaining of other financial accommodation, including the issue of share capital by a building society or credit union;

(b) the dealing in –

(i) securities;

(ii) bills of exchange;

(iii) promissory notes;

(iv) certificates of deposit; or

(v) any matter or thing prescribed for the purposes of this paragraph;

(c) the lending of money, with or without security;

(d) the purchase, acquisition, discounting, or factoring of debts due to another person.

(3)  In this Act, a reference to carrying on a business of a particular kind includes reference to carrying on that business in the course of, as part of, incidentally to, or in connection with, the carrying on of another business.

(4)  For the purposes of this Act, the value of a bill of exchange or a promissory note shall be taken to be its nominal or face value.

(5)  Where money is received or a liability incurred in a currency other than the currency of Australia, the amount of that receipt or liability is, for the purposes of this Act, the equivalent amount in the currency of Australia calculated at a rate of exchange that was a relevant ruling telegraphic transfer buying rate of exchange in Australia on the day on which the money was received or the liability incurred.

(6)  [Section 3 Subsection (6) omitted by No. 75 of 1997, s. 5, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

3A.    Taxation Administration Act 1997

[Section 3A Inserted by No. 75 of 1997, s. 6, Applied:01 Jul 1998] This Act is to be read together with the Taxation Administration Act 1997 which provides for the administration and enforcement of this Act.

4.   Act to bind Crown

This Act binds the Crown not only in the right of the State but also, so far as the legislative power of the Parliament permits, binds the Crown in all of its other capacities.

5.   Certain bodies not to be regarded as financial institutions

(1)  None of the following is a financial institution:

(a) a corporation the sole or principal business in Tasmania of which is the operation of an approved superannuation scheme;

(b) a trustee of an approved superannuation scheme in his capacity as such;

(c) a corporation that is registered under the Life Insurance Act 1945 of the Commonwealth;

(d) a corporation the sole or principal business in Tasmania of which is insurance business as defined by section 3 (1) of the Insurance Act 1973 of the Commonwealth;

(e) a corporation that is a medical benefits organization or a hospital benefits organization registered under the National Health Act 1953 of the Commonwealth;

(f) a dealer in securities who carries on the business of dealing in securities solely –

(i) in his capacity as an official receiver or trustee within the meaning of the Bankruptcy Act 1966 of the Commonwealth; or

(ii) in his capacity as a receiver, as a receiver and manager, or as another person appointed by a court to carry on the business concerned;

(g) a dealer in securities, being a corporation, that acts as a dealer only in relation to its own debentures;

(h) the Treasurer;

(i) Funds Transfer Services (Tas) Limited;

(j) any prescribed person or person of a prescribed class.

(2)  For the purposes of subsection (1) (a) and (b) , an approved superannuation scheme means –

(a) a scheme of superannuation retirement benefit or pension created for the benefit of employees or self-employed persons, not being a scheme declared under subsection (3) not to be an approved superannuation scheme for the purposes of this Act; or

(b) a scheme of superannuation retirement benefit or pension created and operated by or under any law of the Commonwealth or of a State or Territory of the Commonwealth.

(3)  Where there are fewer than 20 contributors to a superannuation scheme, the Treasurer may, by notice given to the person by whom the scheme is operated, declare the scheme not to be an approved superannuation scheme for the purposes of this Act.

6.   Receipts to which this Act applies

(1)  Except as otherwise provided, this Act applies to –

(a) a receipt of money in the State; and

(b) a receipt of money outside the State in pursuance of a transaction of which –

(i) Tasmanian law is the proper law; or

(ii) Tasmanian law would have been the proper law had not the parties expressly or by implication determined upon the law of some other place as the law to govern the transaction.

(2)  Where a person receives a consideration, other than money (whether or not in consideration of his having given credit to any person), in or towards settlement, satisfaction, or discharge of any debt or obligation owing to that person, the person shall, when he receives the consideration, be deemed, for the purposes of this Act, to have received an amount of money equal to the value of that consideration.

(3)  For the purposes of this Act, the crediting of an account of a person, including the crediting of an account effected by means of an entry or record made by use of a machine or device, shall be deemed to constitute a receipt of money by the person by whom the account is kept.

(4)  A reference to the crediting of an account includes –

(a) the depositing of money to the credit of the account by the person in whose name the account is kept or by another person;

(b) without limiting the generality of paragraph (a) , the transfer of money to the credit of the account from another account of the person in whose name the account is kept or from an account of another person; and

(c) the transfer between ledgers or divisions in an account where different terms and conditions apply in respect of those ledgers or divisions.

(5)  Where a receipt arises by virtue of the crediting of an account, the receipt shall be regarded as a receipt of money in the State if –

(a) the account was established at an office or branch of a financial institution situated in the State and has not been transferred to an office or branch situated outside the State; or

(b) the account was established at an office or branch of a financial institution situated outside the State but has been transferred (and was last transferred) to an office or branch situated in the State.

(6)  Where –

(a) an account kept by a financial institution is debited by the financial institution with an amount that is to be invested, on the instructions of the person on whose behalf the account is kept, with the financial institution; and

(b) there is no corresponding credit to an account that constitutes a dutiable receipt for the purposes of this Act –

the amount so debited shall be regarded as a receipt of money by the financial institution.

(7)  An entry made in an account of a financial institution by that financial institution solely in accordance with its internal accounting practices does not constitute a dutiable receipt.

(8)  Where a financial institution provides cash to a person in exchange for a cheque, the financial institution shall not be regarded as having received money, except to the extent that the value of the cheque exceeds the amount of the cash given in exchange.

(9)  Where a financial institution provides a cheque to a person in exchange for cash, the financial institution shall not be regarded as having received money, except to the extent that the amount of cash exceeds the value of the cheque given in exchange.

7.   Definition of dutiable and non-dutiable receipts

(1)  Subject to this section, a receipt to which this Act applies is a dutiable receipt.

(2)  The following are, for the purposes of this Act, non-dutiable receipts:

(a) a receipt of money for the credit of an exempt account;

(b) a receipt of money in the course of short-term dealings during a month by a registered financial institution that is a registered short-term money market operator, being a receipt that is taken into consideration for the purposes of ascertaining the average daily liability of the financial institution during that month;

(c) a receipt of money by a registered financial institution, being the repayment of money that has been invested in the course of short-term dealings by, or on behalf of, the financial institution;

(d) a receipt of money by a bank that is a registered financial institution from another such bank, being a receipt for the purpose of settling a balance due to the bank from the other bank in accordance with customary general clearance arrangements provided for banks by the Reserve Bank;

(e) a receipt of money by a building society that is a registered financial institution from another such building society, being a receipt for the purpose of settling a balance due to the building society from the other building society in accordance with general clearing arrangements carried out between building societies;

(f) a receipt of money by a credit union that is a registered financial institution from another such credit union, being a receipt for the purpose of settling a balance due to the credit union from another credit union in accordance with general clearing arrangements carried out between credit unions;

(g) a receipt of money by a bank that is a registered financial institution for the credit of a foreign exchange clearing account or foreign exchange settlement account;

(h) a receipt of money by a dealer in securities as agent in respect of the issue of securities, bills of exchange (other than cheques), promissory notes, or certificates of deposit (not including an amount that is a fee or commission);

(i) a receipt of money by a dealer in securities in respect of a sale or purchase of securities that is liable to duty under Division 4 of Part IV of the Stamp Duties Act 1931 (not including an amount that is a fee or commission);

(j) a receipt of money –

(i) by a management company from a person who is the trustee or representative for the purposes of a deed relating to the management company in accordance with Division 6 of Part IV of the Companies (Tasmania) Code or a corresponding law in force in another State or in a Territory of the Commonwealth; or

(ii) by such a trustee orrepresentative from such a management company;

(k) a receipt of money by a trustee company or the Public Trustee from the estate of a deceased person committed to the management of the trustee company or the Public Trustee;

(l) a receipt of money by a pastoral finance company that is a registered financial institution other than a receipt that is an amount received by the pastoral finance company in the course of banking business carried on by it or in the course of short-term dealings;

(m) a receipt of money by a financial institution solely by reason of the making of an entry in an account kept by the financial institution in error, to correct an error, or by reason of the dishonour of a cheque;

(n) a receipt of money by a financial institution in consideration of the supply of goods by the financial institution (otherwise than under a rental agreement within the meaning of the Stamp Duties Act 1931 );

(o) a receipt of money by a registered financial institution from, or on behalf of, a person for whose benefit the financial institution has drawn, accepted, or endorsed a bill of exchange, the term of which bill of exchange is not more than 185 days and the face or nominal value of which is not less than $50 000, being a receipt to satisfy the amount of the financial institution's engagement on the bill of exchange;

(p) a receipt of money by a registered financial institution from a charitable organization for the purpose of investing that money;

(q) a receipt of money by a foreign exchange dealer being a receipt that forms part of a transaction entered into by the dealer pursuant to a general authority granted and issued to the dealer, but not including, where the dealer is a bank, a receipt by the bank for the credit of an account of a customer of the bank with the whole or any part of the proceeds of any such transaction;

(r) a receipt of money by a bank, that is a registered financial institution from another such bank, being a receipt for the purpose of settling a balance due to the bank from the other bank in accordance with general clearing arrangements carried out between banks; or

(s) a receipt of a class declared by regulation to be non-dutiable.

(3)  Notwithstanding subsection (2) (a) , a receipt to the credit of an exempt account shall, unless the receipt has been credited to an account in the books of the person in whose name the exempt account is kept, be regarded as a dutiable receipt by that person.

(4)  Where money is received in the State by a financial institution (otherwise than by the crediting of an account) for the credit of an account kept by the financial institution and the crediting of that account will constitute a dutiable receipt for the purposes of this Act, the initial receipt is non-dutiable.

(5)  Where money is received in the State by a financial institution (otherwise than by the crediting of an account) for the credit of an account kept by some other financial institution and the crediting of that account will constitute a dutiable receipt for the purposes of this Act, the receipt by the first-mentioned financial institution is non-dutiable.

(6)  Where –

(a) a financial institution acts as agent for the purpose of collecting money on behalf of a person who is declared, or is a member of a class declared, by the Treasurer, by order, to be a person, or a class of persons, in relation to whom the provisions of this subsection apply; and

(b) the money so collected is not paid to an account kept by the financial institution in the name, or on behalf, of that person –

the receipt of money by the financial institution in the course of its agency is non-dutiable.

8.   Short-term dealings

(1)  For the purposes of this Act, an amount is received by a person in the course of short-term dealings where –

(a) the amount is an amount of cash of not less than $50 000 received by that person by way of loan, advance, or deposit repayable by him –

(i) at call;

(ii) within 185 days; or

(iii) at call after a term of not more than 185 days –

not being an amount received by a bank by way of deposit repayable on demand or for the credit of a current account kept by it for another person;

(b) the amount is a repayment of a loan, advance, or deposit of not less than $50 000 made by that person within 185 days before the amount is repaid;

(c) the amount is an amount (not including a fee or commission) in respect of the issue of securities, bills of exchange (other than cheques), promissory notes, or certificates of deposit, the term of which is not more than 185 days;

(d) the amount is an amount (not including a fee or commission) in respect of a sale or purchase of securities, the term of which is not more than 185 days, being a sale or purchase that is not liable to duty under Division 4 of Part IV of the Stamp Duties Act 1931 ;

(e) the amount is the proceeds of the sale by that person of a bill of exchange or a promissory note before maturity and not later than 185 days after its acquisition by that person, not being a bill of exchange or a promissory note issued by that person;

(f) the amount is the proceeds of the sale by that person of securities or certificates of deposit before maturity and not later than 185 days after their acquisition by that person;

(g) the amount is the amount received by that person on maturity of securities, bills of exchange, promissory notes, or certificates of deposit acquired by him within 185 days before the amount was received; or

(h) the amount is a receipt of a transaction or class of transaction declared by regulation to be a short-term dealing.

(2)  A reference in subsection (1) to a bill of exchange, promissory note, or certificate of deposit is a reference to a bill of exchange, promissory note, or certificate of deposit, the face or nominal value of which is not less than $50 000.

(3)  For the purposes of this Act, the average daily liability of a person during a month in respect of short-term dealings is –

(a) where the person is a registered financial institution (not being a person entitled to make application under section 32 for approval of an account as a short-term dealing account) – the amount calculated in accordance with a formula prescribed in the regulations made under this Act; and

(b) where the person is a person in whose name a short-term dealing account is kept by a bank – the amount calculated in accordance with the formula:

where –

A is the sum of the daily closing balances of the liability of the bank to that person under that account; and

B is the number of days in the month.

(4)  Regulations made under this Act may, for the purposes of subsection (3) (a) , prescribe different formulae for different registered financial institutions or classes of registered financial institutions.

9.   Declaration of short-term dealer in unofficial market

The Commissioner may, by notice published in theGazette, declare a corporation that is a dealer in the unofficial short-term money market to be a short-term dealer for the purposes of this Act.

PART II - .  .  .  .  .  .  .  .  

[Part II Repealed by No. 75 of 1997, s. 7, Applied:01 Jul 1998]

10.   

[Section 10 Repealed by No. 75 of 1997, s. 7, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

11.   

[Section 11 Repealed by No. 75 of 1997, s. 7, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

12.   

[Section 12 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 12 Repealed by No. 75 of 1997, s. 7, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

PART III - Grouping of Financial Institutions

13.   Interpretation

In this Part, business includes –

(a) a trade or profession;

(b) any other activity carried on for fee, gain, or reward; and

(c) the activity, carried on by an employer, of employing one or more persons where that person performs or those persons perform duties for or in connection with another business.

14.   Grouping of corporations

For the purposes of this Act, financial institutions that are corporations constitute a group if they are, by reason of the provisions of the Companies (Tasmania) Code , deemed, for the purposes of that Code, to be related to each other.

15.   Grouping where employees used in another business

For the purposes of this Act, where –

(a) an employee of a financial institution, or 2 or more employees of a financial institution, performs or perform duties solely or mainly for or in connection with a business carried on by that financial institution and another financial institution or other financial institutions, or by another financial institution or other financial institutions; or

(b) a financial institution has, in respect of the employment of, or the performance of duties by, one or more of its employees, an agreement, arrangement, or undertaking (whether formal or informal, whether expressed or implied, and whether or not the agreement, arrangement, or undertaking includes provisions in respect of the supply of goods and services) with another financial institution or other financial institutions relating to a business carried on by that other financial institution or those other financial institutions, whether alone or together with another financial institution or other financial institutions –

that financial institution and –

(c) each such other financial institution; or

(d) both or all of those other financial institutions –

constitute a group.

16.   Grouping of commonly controlled businesses

(1)  A reference in this section to 2 businesses does not include a reference to 2 businesses both of which are owned by the same person or persons, not being a trustee or trustees, or by the trustee or trustees of a trust.

(2)  For the purposes of this Act, where the same person (whether or not being a financial institution) has, or the same persons have together, a controlling interest, as referred to in subsection (3) , in each of 2 businesses, being carried on by 2 or more financial institutions, the financial institutions that carry on those businesses constitute a group.

(3)  For the purposes of subsection (2) , the same person has, or the same persons have together, a controlling interest in each of 2 businesses if that person has, or those persons have together, a controlling interest under any of the following paragraphs of this subsection in one of the businesses and a controlling interest under the same or another of those paragraphs in the other business:

(a) a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation, if the directors or a majority of the directors or one or more of the directors, being a director or directors who is or are entitled to exercise a majority in voting power at meetings of the directors, of the corporation are or is accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions, or wishes of that person or of those persons acting together;

(b) a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation that has a share capital, if that person or those persons acting together may (whether directly or indirectly) exercise, control the exercise of, or substantially influence the exercise of, 50 per cent or more of the voting power attached to voting shares issued by the corporation;

(c) a person has, or persons have together, a controlling interest in a business, being a business carried on by a partnership, if that person or those persons –

(i) owns, or own together (whether beneficially or not beneficially), 50 per cent or more of the capital of the partnership; or

(ii) is, or are together, entitled (whether beneficially or not beneficially) to 50 per cent or more of any profits of the partnership;

(d) a person has, or persons have together, a controlling interest in a business, being a business carried on under a trust, if that person (whether or not as the trustee of another trust) is a beneficiary or those persons (whether or not as the trustees of another trust) are together beneficiaries, in respect of 50 per cent or more of the value of the interests in the trust first-mentioned in this paragraph;

(e) a person has, or persons have together, a controlling interest in a business, if that person (whether or not he is a trustee of a trust) is the sole owner of the business or those persons (whether or not they are trustees of a trust) are the owners of the business.

(4)  Where a corporation has a controlling interest under subsection (3) in a business, it shall be deemed to have a controlling interest in any other business in which another corporation that is, by reason of the provisions of the Companies (Tasmania) Code , to be deemed, for the purposes of that Code, to be related to it has a controlling interest.

(5)  Where –

(a) a person is a beneficiary under a trust; or

(b) 2 or more persons together are beneficiaries under a trust –

in respect of 50 per cent or more of the value of the interests in that trust and the trustee or trustees of that trust has or have under subsection (3) a controlling interest in a business, that beneficiary or those beneficiaries shall, for the purposes of that subsection, be deemed to have a controlling interest in that business.

(6)  Where –

(a) a person has, or persons have together, a controlling interest under subsection (3) in a business, being carried on by a financial institution or by 2 or more financial institutions; and

(b) the financial institution or financial institutions that carries or carry on that business has or have a controlling interest under subsection (3) in another business –

the person or persons referred to in paragraph (a) shall be deemed to have a controlling interest for the purposes of that subsection in the business referred to in paragraph (b) .

17.   Smaller groups subsumed into larger groups

(1)  Notwithstanding any other provision in this Part (except subsection (2) ), where a financial institution is, whether or not by virtue of this subsection, a member of 2 or more groups (each of which is in subsection (2) referred to as a smaller group), all of the members of those groups constitute, for the purposes of this Act, one group.

(2)  Except for the purpose of determining whether a group is constituted under subsection (1) , a group which, but for this subsection, would be a smaller group ceases to be a group if its members are members of a group constituted under subsection (1) .

18.   Grouping provisions to operate independently

The fact that a financial institution is not a member of a group constituted under a provision of this Part does not prevent that financial institution from being a member of a group constituted under another provision of this Part.

19.   Beneficiaries under discretionary trusts

A person who, as the result of the exercise of a power or discretion by the trustee of a discretionary trust or by any other person or by that trustee and other person, may benefit under that trust shall be deemed, for the purposes of this Part, to be a beneficiary in respect of 50 per cent or more of the value of the interests in that trust.

20.   Exclusion of persons from groups

(1)  Where the Commissioner is satisfied, having regard to the nature and degree of ownership or control of the businesses, the nature of the businesses, and any other matters that he considers relevant, that a business carried on by a member of a group is carried on substantially independently of, and is not substantially connected with the carrying on of, a business carried on by any other member of that group, the Commissioner may, by notice in writing served on that first-mentioned member, exclude that member from that group.

(2)  The Commissioner shall not exercise the power conferred on him by subsection (1) so as to exclude a financial institution from a group on and from a date if that financial institution is or was on that date a corporation which, by reason of the provisions of the Companies (Tasmania) Code , is to be deemed, for the purposes of that Code, to be related to another corporation which is a member of that group.

(3)  Notwithstanding any other provision of this Part, a notice under subsection (1) shall have effect according to its tenor on and from the date specified in the notice (being a date that is the date of the notice or before the date of the notice) as the date on and from which the financial institution referred to in the notice is or shall be deemed to have been excluded from the group so referred to.

PART IV - Registration

Division 1 - Financial institutions

21.   Registration of financial institutions

(1)  Subject to this Act, a financial institution (not being a member of a group) and each financial institution that is a member of a group, being a financial institution or group which –

(a) during the preceding 12 months had dutiable receipts totalling more than $5 000 000; or

(b) during the preceding month had dutiable receipts totalling more than $416 666 –

shall, within 21 days after the end of that period or month, apply to the Commissioner in a manner and form approved by the Commissioner for registration as a financial institution under this Act.

(2)  Subsection (1) does not apply to a registered financial institution.

(3)  A financial institution that is not required to apply for registration may at any time apply to the Commissioner for registration as a financial institution under this Act.

(4)  Where the Commissioner receives an application under subsection (1) , he shall register the financial institution.

(5)  Where the Commissioner receives an application under subsection (3) , he may register or refuse to register the financial institution.

(6)  The Commissioner may cancel the registration of a financial institution (not being a member of a group) if –

(a) during the preceding 12 months the total of the dutiable receipts of the financial institution did not exceed $5 000 000; and

(b) during the preceding month the total of the dutiable receipts of the financial institution did not exceed $416 666 –

or if, in his opinion, the total of the dutiable receipts of the financial institution during the succeeding 12 months is not likely to exceed $5 000 000.

(7)  The Commissioner may cancel the registration of a financial institution that is a member of a group if –

(a) during the preceding 12 months the total of the dutiable receipts of the group did not exceed $5 000 000; and

(b) during the preceding month the total of the dutiable receipts of the group did not exceed $416 666 –

or if, in his opinion, the total of the dutiable receipts of the group during the succeeding 12 months is not likely to exceed $5 000 000.

(8)  Where a financial institution is registered only by reason of being a member of a group, the Commissioner may, upon the financial institution ceasing to be a member of a group, cancel its registration.

22.   Returns by financial institutions

(1)  [Section 22 Subsection (1) amended by No. 40 of 1990, s. 40 ]Subject to this Act, each financial institution that is registered or required to apply for registration in accordance with the provisions of section 21 shall, within 21 days after the end of each month, furnish to the Commissioner, in a manner and form approved by the Commissioner, a return relating to that month in which he specifies –

(a) the total of the dutiable receipts other than the dutiable receipts referred to in paragraph (b) that were received by him during that month;

(b) the number of dutiable receipts of, or exceeding, $2 000 000 that were received by him during that month; and

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

(2)  Where the Commissioner is satisfied that it is not reasonably practicable to calculate precisely any amount which is to be set out in a return or statement to be forwarded by a person to him for the purposes of this Act, he may agree to accept returns or statements from that person in which that amount is calculated in such manner or on such basis as he thinks fit.

(3)  An agreement under this section may be cancelled by notice in writing under the hand of the Commissioner given to that person.

23.   Returns by a nominated member of a group of financial institutions

(1)  [Section 23 Subsection (1) amended by No. 40 of 1990, s. 41 ]Where, in relation to a group of financial institutions that has made application under this section, the Commissioner is of the opinion that, having regard to –

(a) the size of the group;

(b) the financial institutions that constitute the group; and

(c) any other relevant matters –

it is expedient so to do, he may nominate a member of that group to furnish, within 21 days after the end of each month, to the Commissioner, in a manner and form approved by him, a return relating to that month in which he specifies –

(d) the total dutiable receipts of each member of the group during that month other than dutiable receipts referred to in paragraph (e) ;

(e) the number of dutiable receipts of each member of the group during that month of, or exceeding, $2 000 000; and

(f) the total dutiable receipts of each member of the group during the period of 12 months immediately preceding that month.

(2)  Where a member of a group nominated under subsection (1) furnishes a return to the Commissioner in accordance with that subsection, each member of the group specified in a return so furnished shall be deemed to have furnished, when that return is furnished, a return under section 22 .

(3)  A nomination under subsection (1) may be either unconditional or subject to such conditions as the Commissioner thinks fit.

(4)  The Commissioner may at any time, by notice in writing, revoke any nomination under subsection (1) .

24.   

[Section 24 Repealed by No. 75 of 1997, s. 8, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

25.   Further returns

The Commissioner may, by notice in writing, call upon any financial institution or person to furnish to him, within the time specified in the notice, such return or such further or fuller return as the Commissioner requires, whether on his own behalf or as an agent or a trustee.

Division 2 - Short-term money market operators

26.   Registration of short-term money market operators

(1)  A person may make application to the Commissioner in a manner and form approved by the Commissioner for registration as a short-term money market operator for the purposes of this Act.

(2)  A person may not make application under this section unless –

(a) the person is a short-term dealer; or

(b) the person carries on a business in Tasmania of dealing in securities, bills of exchange, promissory notes, or certificates of deposit in the short-term money market, or of making or receiving loans, advances, or deposits in the short-term money market.

(3)  Where the Commissioner is satisfied that an application under this section is duly made, the Commissioner may register the applicant as a short-term money market operator under this Act.

(4)  The Commissioner may, by notice in writing given to a person who is a registered short-term money market operator, cancel his registration where he is satisfied that the person –

(a) has ceased to be a person who may make application for registration under this section; or

(b) has paid money to an exempt account in contravention of the provisions of Part VI –

and may determine a period, not exceeding one year, during which the person is ineligible to make an application under this section.

27.   Returns by registered short-term money market operators

Each registered short-term money market operator shall, within 21 days after the end of each month, furnish to the Commissioner, in a manner and form approved by the Commissioner, a return relating to that month and shall specify in that return his average daily liability in respect of short-term dealings during that month and the daily amounts used in calculation of that average daily liability.

28.   Further returns

The Commissioner may, by notice in writing, call upon any registered short-term money market operator to furnish to him, within the time specified in the notice, such return or such further or fuller return as the Commissioner requires, whether on his own behalf or as an agent or a trustee.

PART V - Liability to Duty

29.   Financial institutions duty

(1)  Subject to this Act, a financial institution that receives money during a month is liable to pay financial institutions duty in respect of each such receipt to which this Act applies.

(2)  [Section 29 Subsection (2) amended by No. 40 of 1990, s. 42 ]The amount of financial institutions duty payable by a financial institution in respect of each receipt of money is –

(a) 0·06 per cent of the money received; or

(b) $1 200 –

whichever is the lesser amount.

(3)  Subsection (1) does not apply to a non-dutiable receipt.

(4)  A financial institution is not liable to pay duty under this section in respect of the receipt of money during a month if it is not registered under this Act and is not required to be so registered.

30.   Financial institutions duty in respect of certain short-term dealings

Subject to this Act, a registered short-term money market operator is liable to pay financial institutions duty in respect of his average daily liability during a month in respect of short-term dealings at the rate of 0·005 per cent of that average daily liability.

30A.   Joint liability

[Section 30A Inserted by No. 75 of 1997, s. 9, Applied:01 Jul 1998] A person who is or was a member of a group within the meaning of Part III during any period is jointly and severally liable with any other person who is or was a member of the group during that period to pay duty payable by the members of that group for that period.

PART VI - Exempt Accounts

31.   Special bank accounts of eligible persons

[Section 31 Subsection (11) amended by No. 68 of 1994, s. 3 and Sched. 1 ]

(1)  An eligible person may make application to the Commissioner in a manner and form approved by him for approval of an account kept in the State in the name of the eligible person by a bank that is a registered financial institution as a special account for the purposes of this Act.

(2)  A bank that is a registered financial institution may make application to the Commissioner in a manner and form approved by him for approval of an account kept in the name of the bank by another bank that is a registered financial institution as a special account for the purposes of this Act.

(3)  Where an application is made under subsection (1) or (2) , the Commissioner shall, subject to this section, issue to the applicant a certificate of approval of the account to which the application relates as a special account for the purposes of this Act.

(4)  Where a certificate under this section is produced to a bank that is a registered financial institution, the bank shall designate the account to which the certificate relates as a special account for the purposes of this Act.

(5)  Where a person in whose name a special account is kept by a bank is a pastoral finance company, an amount shall not be paid to the credit of the special account unless the amount –

(a) is an amount received by the pastoral finance company in the course of banking business carried on by it;

(b) is an amount received by the pastoral finance company in the course of short-term dealings; or

(c) is an amount paid to that account from another account kept in the name of the pastoral finance company by a bank that is a registered financial institution.

(6)  Notwithstanding subsection (5) , where a pastoral finance company –

(a) pays to the credit of a special account kept in its name by a bank, an amount that includes an amount other than an amount that, under subsection (5) , it is authorized to pay to the credit of that account; and

(b) pays to the credit of another account kept in Tasmania in its name by a bank that is a registered financial institution (not being a special account) within 14 days after the first-mentioned amount is paid to the credit of the special account, that part of that amount that it is not authorized to pay to the credit of the special account –

the payment to the credit of the special account shall not be considered a contravention of subsection (5) .

(7)  [Section 31 Subsection (7) amended by No. 68 of 1994, s. 3 and Sched. 1 ]An amount shall not be paid to the credit of a special account kept by a bank in the name of the Solicitors' Trust continued under section 95 of the Legal Profession Act 1993 unless the amount is an amount paid into a trust deposit account kept by the Solicitors' Trust under Part 9 of the Legal Profession Act 1993 .

(8)  [Section 31 Subsection (8) omitted by No. 40 of 1990, s. 43 ].  .  .  .  .  .  .  .  

(9)  Where a person in whose name a special account is kept by a bank is a person prescribed for the purposes of subsection (11) , an amount shall not be paid to the credit of the special account unless it is a prescribed amount or an amount included in a class of prescribed amounts.

(10)  Where the Commissioner is satisfied that an amount has been paid to the credit of a special account in contravention of this section, the Commissioner –

(a) may, by notice in writing given to the financial institution at which the special account is kept and the person in whose name the account is kept, cancel the certificate issued under subsection (3) ; and

(b) may determine a period, not exceeding one year, during which the person in whose name the account is kept is ineligible to make application under this section.

(11)  [Section 31 Subsection (11) amended by No. 40 of 1990, s. 43 ]In this section eligible person means –

(a) a registered financial institution, not being a bank;

(b) a registered financial institution, being a pastoral finance company;

(c) the Solicitors' Trust continued under section 95 of the Legal Profession Act 1993 ;

(d) .  .  .  .  .  .  .  .  

(e) the Australian Stock Exchange (Hobart) Limited;

(f) Funds Transfer Services (Australia) Limited; or

(g) any prescribed person.

32.   Short-term dealing account of registered short-term money market operator

(1)  A person who is a registered short-term money market operator and is not a registered financial institution may make application to the Commissioner in a manner and form approved by him for approval of an account kept in the State in the name of the operator by a bank that is a registered financial institution as a short-term dealing account for the purposes of this Act.

(2)  Where an application is made under subsection (1) , the Commissioner shall, subject to this section, issue to the applicant a certificate of approval of the account as a short-term dealing account for the purposes of this Act.

(3)  Where a certificate under this section is produced to a bank that is a registered financial institution, the bank shall designate the account to which the certificate relates as a short-term dealing account for the purposes of this Act.

(4)  An amount shall not be paid to the credit of a short-term dealing account kept by a bank in the name of a registered short-term money market operator unless the amount –

(a) is an amount received by that operator in the course of short-term dealings; or

(b) is an amount paid to that account from another account kept in Tasmania or a prescribed State by that bank or by another bank that is a registered financial institution in the name of that operator.

(5)  An amount shall not be credited to, or debited against, a short-term dealing account in contravention of a prohibition imposed by regulation.

(6)  Where –

(a) the Commissioner is satisfied that an amount has been credited to, or debited against, a short-term dealing account in contravention of subsection (4) or (5) ; or

(b) the Commissioner cancels the registration of the person in whose name the account is kept as a short-term money market operator –

the Commissioner –

(c) may, by notice in writing given to the bank at which the short-term dealing account is kept and the person in whose name the account is kept, cancel the certificate issued under subsection (2) ; and

(d) may determine a period, not exceeding one year, during which the person in whose name the account is kept is ineligible to make application under this section.

33.   Sweeping accounts

(1)  A person who carries on a business in the State may make application to the Commissioner in a manner and form approved by him for approval of an account kept in the State in the name of the applicant by a bank that is a registered financial institution as a sweeping account for the purposes of this Act.

(2)  Where an application is made under subsection (1) , the Commissioner may, in his absolute discretion and subject to subsection (3) , issue to the applicant a certificate of approval of the account as a sweeping account for the purposes of this Act.

(3)  The Commissioner shall not issue a certificate under subsection (2) unless he is satisfied that the nature of the applicant's business is such that proceeds of the business must be paid to the credit of several accounts and then, at regular intervals, transferred to the credit of a consolidated account (being the account to which the application for a sweeping account relates).

(4)  Where a certificate under this section is produced to the bank by which the account to which it relates is to be held as a sweeping account, the bank shall designate the account to which the certificate relates as a sweeping account for the purposes of this Act.

(5)  An amount shall not be paid to the credit of a sweeping account kept by a bank unless –

(a) the amount is paid to the credit of the account by debiting the amounts standing to the credit of other accounts and forthwith crediting, by mechanical or other device, the sweeping account with the total sum of the amounts so debited; and

(b) the accounts that are debited in order that the sweeping account may be credited in accordance with paragraph (a) –

(i) are kept in Tasmania in the name of the person in whose name the sweeping account is kept;

(ii) are kept by the same bank that keeps the sweeping account; and

(iii) are non-exempt accounts.

(6)  An amount shall not be credited to, or debited against, a sweeping account in contravention of a prohibition imposed by regulations made under this Act.

(7)  Where the Commissioner is satisfied that an amount has been credited to, or debited against, a sweeping account in contravention of subsection (5) or (6) , the Commissioner –

(a) may, by notice in writing given to the bank at which the sweeping account is kept and the person in whose name the account is kept, cancel the certificate issued under subsection (2) ; and

(b) determine a period, not exceeding one year, during which the person in whose name the account is kept is ineligible to make application under this section.

34.   Other special accounts

(1)  A person, who is eligible under subsection (2) to have an account kept in the State by a registered financial institution (being a bank, building society, or credit union) approved as a special account, may apply to the Commissioner, in a manner and form approved by him, for approval of the account as a special account.

(2)  For the purposes of subsection (1) –

(a) a dealer in securities is eligible to have an account kept in his name that is a dealer's trust account for the purposes of the Securities Industry (Tasmania) Code approved as a special account; and

(b) a person who is under a prescribed statutory obligation to pay money to the credit of a trust account kept in his name is eligible to have that trust account approved as a special account.

(3)  Where an application is made under subsection (1) , the Commissioner shall, subject to this section, issue to the applicant a certificate of approval of the account as a special account.

(4)  Where a certificate under this section is produced to the registered financial institution at which the account is kept, the financial institution shall designate the account to which the certificate relates as a special account for the purposes of this Act.

(5)  The following restrictions apply in respect of accounts approved as special accounts under this section:

(a) an amount shall not be paid to the credit of such an account kept in the name of a dealer in securities unless it is an amount that is required or permitted to be paid to the credit of a dealer's trust account under the Securities Industry (Tasmania) Code ;

(b) an amount shall not be paid to the credit of such an account to which subsection (2) (b) applies unless that amount represents trust money received by the person in whose name the account is kept and required by statute to be paid to the credit of that account.

(6)  Where the Commissioner is satisfied that –

(a) an amount has been paid to the credit of a special account in contravention of subsection (5) ; or

(b) the person in whose name an account approved as a special account under this section is kept has ceased to be eligible to have the account approved –

the Commissioner –

(c) may, by notice in writing given to the financial institution at which the special account is kept and the person in whose name the account is kept, cancel the certificate issued under subsection (3) ; and

(d) may determine a period, not exceeding one year, during which the person in whose name the account is kept is ineligible to make application under this section.

35.   Cancellation of designation of account

(1)  Where the Commissioner, by notice under this Part, cancels a certificate of approval in respect of a special account, a short-term dealing account, or a sweeping account, the account shall cease to be an exempt account as from the date of cancellation stated in the notice.

(2)  Where a financial institution receives a notice of a kind referred to in subsection (1) in respect of an account kept by the financial institution, it shall, as from the date of cancellation referred to in the notice, cancel the designation of the account as a special account, a short-term dealing account, or a sweeping account (as the case may require).

36.   Returns of bank accounts

(1)  A person in whose name an exempt account to which this section applies is kept shall, not later than 2 months after the end of each financial year, furnish to the Commissioner a certificate in a form approved by the Commissioner stating whether or not all amounts paid into the exempt account were so paid in accordance with this Act and such other information as the Commissioner may require and, where any amounts were paid into the account in contravention of this Act, pay to the Commissioner 0·04 per cent of that sum.

(2)  [Section 36 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A person who fails to comply with subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units.

(3)  The exempt bank accounts to which this section applies are –

(a) a short-term dealing account;

(b) a special account; and

(c) a sweeping account.

(4)  In this section –

financial year means the year ending on 30th June or on such other date as the Commissioner approves in a particular case.

36A.   Misuse of exempt account

[Section 36A Inserted by No. 75 of 1997, s. 10, Applied:01 Jul 1998] A person must not pay, or cause or permit to be paid, to the credit of an exempt account in that person's name any amount in contravention of this Act.

Penalty:  Fine not exceeding 100 penalty units.

PART VII - Recovery of Duty

37.   Time for payment of duty

Subject to this Act, each financial institution and each registered short-term money market operator liable to pay financial institutions duty shall pay the duty within the period within which he is required by this Act to lodge the return of the receipts or average daily liability in respect of which the duty is payable.

38.   

[Section 38 Repealed by No. 75 of 1997, s. 12, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

39.   Abridgement of time for lodging returns and paying duty

(1)  Where the Commissioner has reason to suspect that a financial institution or registered short-term money market operator may leave Tasmania before duty becomes due and payable, he may, by notice served on the financial institution or registered short-term money market operator, abridge the time for lodging a return of receipts or average daily liability and for the payment of financial institutions duty in respect of the receipts or average daily liability.

(2)  Where a notice is served under subsection (1) , the person to whom the notice is addressed shall lodge the return referred to in the notice and pay the financial institutions duty in respect of the receipts or average daily liability to which the return relates on or before the date stated in the notice.

40.   

[Section 40 Repealed by No. 75 of 1997, s. 13, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

41.   

[Section 41 Repealed by No. 75 of 1997, s. 13, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

42.   

[Section 42 Subsection (5) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 42 Repealed by No. 75 of 1997, s. 13, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

43.   

[Section 43 Repealed by No. 75 of 1997, s. 13, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

44.   

[Section 44 Repealed by No. 75 of 1997, s. 13, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

45.   Liquidator to give notice

(1)  A person who is the liquidator of a company which has been a financial institution registered or required to be registered under this Act or which is a registered short-term money market operator shall, within 14 days after he has become liquidator of that company, serve on the Commissioner notice in writing of his appointment as liquidator.

(2)  The Commissioner shall, as soon as practicable after receipt of a notice referred to in subsection (1) , notify to the liquidator the amount which appears to the Commissioner to be sufficient to provide for any duty which is, or will become, payable by the company.

(3)  The liquidator –

(a) shall not, without leave of the Commissioner, part with any of the assets of the company until he has been so notified;

(b) shall set aside, out of the assets available for the payment of the duty, assets to the value of the amount so notified or the whole of the assets so available if they are of less than that value; and

(c) shall, to the extent of the value of the assets which he is so required to set aside, be liable as trustee to pay the duty.

(4)  [Section 45 Subsection (4) amended by No. 43 of 1991, s. 5 and Sched. 1 ]If the liquidator fails to comply with any provision of this section (or fails as trustee duly to pay the duty for which he is liable under subsection (3) ), he is, to the extent of the value of the assets of which he has taken possession and which are, or were at the time, available to him for the payment of the duty, personally liable to pay the duty, and is guilty of an offence and liable on summary conviction to a fine not exceeding 50 penalty units.

(5)  Where more persons than one are appointed liquidators or required by law to carry out the winding-up of a company, the obligations and liabilities attaching to a liquidator under this section shall attach to each of those persons and, where any one of those persons has paid the duty due in respect of the company being wound-up, the other person or persons shall each be liable to pay that person his equal share of the amount of the duty so paid.

(6)  Notwithstanding anything contained in this section, all costs, charges, and expenses which, in the opinion of the Commissioner, have been properly incurred by the liquidator in the winding-up of a company, including the remuneration of the liquidator, may be paid out of the assets of the company in priority to any duty payable in respect of the company.

(7)  Nothing in this section –

(a) limits the liability of a liquidator under section 65 ; or

(b) affects any of the provisions of the Companies (Tasmania) Code .

46.   Agents for absentee principal winding-up business

(1)  Where an agent for a principal resident outside Tasmania who has been a financial institution registered or required to be registered under this Act, or who is or has been a registered short-term money market operator, has been required by his principal to wind-up the business of his principal he shall, before taking any steps to wind-up the business, notify the Commissioner of his intention so to do, and shall set aside such sum out of the assets of the principal as appears to the Commissioner to be sufficient to provide for any duty which is, or will become, payable in respect of the business of the principal.

(2)  [Section 46 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]An agent who, without reasonable excuse, fails to give notice to the Commissioner or fails to provide for payment of the duty as required by this section is personally liable for any duty which is, or will become, payable in respect of the business of the principal, and is guilty of an offence and liable on summary conviction to a fine not exceeding 50 penalty units.

(3)  The Commissioner may, in a particular case, for reasons that, in his discretion, he thinks sufficient, remit the whole or any part of any duty for which an agent is personally liable pursuant to subsection (2) .

47.   

[Section 47 Repealed by No. 75 of 1997, s. 14, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

48.   

[Section 48 Repealed by No. 75 of 1997, s. 14, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

49.   

[Section 49 Repealed by No. 75 of 1997, s. 14, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

50.   

[Section 50 Repealed by No. 75 of 1997, s. 14, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

51.   

[Section 51 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 51 Repealed by No. 75 of 1997, s. 14, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

PART VIII - .  .  .  .  .  .  .  .  

[Part VIII Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998]

52.   

[Section 52 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

53.   

[Section 53 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

54.   

[Section 54 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

PART IX - .  .  .  .  .  .  .  .  

[Part IX Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998]

55.   

[Section 55 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 55 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

56.   

[Section 56 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

57.   

[Section 57 Amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 57 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

58.   

[Section 58 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

59.   

[Section 59 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

60.   

[Section 60 Amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 60 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

61.   

[Section 61 Repealed by No. 75 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

PART X - Miscellaneous

62.   Undertaking by financial institution

(1)  A financial institution that is not registered under this Act and is not required to be so registered may give an undertaking to the Commissioner, in a manner and form approved by him, to make such payments to the Commissioner in respect of such receipts of money and at such times as it would be required to make if it were required to be registered under this Act.

(2)  The Commissioner shall decide whether or not to accept an undertaking given under subsection (1) .

(3)  Where the Commissioner accepts an undertaking given under subsection (1) , the financial institution shall be deemed to be registered under this Act during the period during which the undertaking has effect in accordance with subsection (4) .

(4)  An undertaking accepted by the Commissioner under this section has effect from the date on which the Commissioner accepts the undertaking until –

(a) the financial institution, by notice in writing to the Commissioner, withdraws the undertaking; or

(b) the Commissioner, by notice in writing to the financial institution, withdraws his acceptance of the undertaking.

63.   Applications by financial institutions to pay receipts to the credit of non-exempt bank accounts

(1)  A registered financial institution may apply to the Commissioner, in a manner and form approved by him, for approval under this section to pay amounts received by it during a month to the credit of an account, being an account that is not an exempt account under this Act, kept in its name by a bank that is a registered financial institution.

(2)  A registered financial institution shall, in making an application under subsection (1) , give a written undertaking to the Commissioner that, if the application is successful, it will not make, or cause to be made, any payment to the credit of any exempt account kept in its name by a bank (other than a short-term dealing account).

(3)  Upon application under this section, the Commissioner may, by instrument in writing –

(a) grant the approval to which the application relates unconditionally;

(b) grant the approval to which the application relates subject to such conditions as it thinks fit; or

(c) refuse the application.

(4)  Where an application under this section is approved by the Commissioner and the financial institution does not breach the undertaking given under subsection (2) , the financial institution shall be deemed to have paid duty in respect of receipts during a month that, under this Act, would have been payable to the credit of an exempt account but which were instead paid into a non-exempt bank account in accordance with the approval of the Commissioner.

(5)  The Commissioner may at any time, by notice in writing, revoke an approval granted under this section.

64.   

[Section 64 Repealed by No. 75 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

65.   Agents and trustees

The following provisions shall apply with respect to every agent and every trustee:

(a) he shall be answerable as a financial institution or registered short-term money market operator for the doing of all such things as are required to be done by virtue of this Act in respect of the receipt of money or average daily liability which is subject to duty under this Act;

(b) he shall, in respect of any such receipts or average daily liability, make the returns and be chargeable with duty on such receipts or average daily liability, but in his representative capacity only, and each return shall, except as otherwise provided by this Act, be separate and distinct from any other;

(c) if he is an executor or administrator, the returns shall be the same as far as practicable as the deceased person, if living, would have been liable to make;

(d) where as agent or trustee he pays duty, he is by virtue of this paragraph authorized to recover the amount so paid from the person on whose behalf he paid it, or to deduct it from any money in his hands belonging to that person;

(e) he is by virtue of this paragraph authorized and required to retain from time to time out of any money which comes to him in his representative capacity so much as is sufficient to pay the duty;

(f) he is by virtue of this paragraph made personally liable for the duty payable if, after the Commissioner has required him to make a return or while the duty remains unpaid, he, except with the written permission of the Commissioner, disposes of or parts with any fund or money which comes to him from or out of which the duty could legally be paid, but, subject to section 46 (2) , he shall not be otherwise personally liable for the duty;

(g) he is by virtue of this paragraph indemnified for all payments which he makes in pursuance of this Act or in accordance with the requirements of the Commissioner;

(h) for the purpose of ensuring the payment of duty, the Commissioner shall have the same remedies against attachable property of any kind vested in or under the control or management or in the possession of any agent or trustee, as he would have against the property of any other person in respect of duty, and in as full and ample a manner.

66.   

[Section 66 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

67.   

[Section 67 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 67 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

68.   

[Section 68 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

69.   

[Section 69 Subsection (7) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 69 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

70.   

[Section 70 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 70 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

71.   

[Section 71 Subsection (5) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 71 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

72.   

[Section 72 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

73.   

[Section 73 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

74.   

[Section 74 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

75.   

[Section 75 Repealed by No. 75 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

76.   Passing on duty

(1)  Nothing in this Act, in any other law, or in any contract, agreement, or other instrument (including an instrument constituting a trust) made before the commencement of this Act prevents a registered financial institution from recovering from a person from whom it receives money, or with whom it has dealings, financial institutions duty paid by the financial institution in respect of that receipt of money, or those dealings.

(2)  Nothing in this Act, in any other law, or in any contract, agreement, or other instrument (including an instrument constituting a trust) made before the commencement of this Act, prevents a registered short-term money market operator from recovering from a person on whose behalf the operator has had short-term dealings financial institutions duty paid by the operator in respect of the average daily liability of the operator in respect of those short-term dealings.

(3)  Nothing in this Act, in any other law, or in any contract, agreement, or other instrument (including an instrument constituting a trust) made before the commencement of this Act, prevents a person from recovering from any other person with whom he has dealings an amount equal to the amount of financial institutions duty that he may be liable to pay to a registered financial institution on account of the receipt by that financial institution of money relating to those dealings.

(4)  For the purposes of calculating the financial institutions duty that may be recovered under subsection (1) , (2) , or (3) , where the amount of that duty, when expressed in cents or in dollars and cents, leaves a fraction of a cent remaining, the amount of that duty may be rounded off as follows:

(a) if the fraction is 0·5 or less, that fraction shall be disregarded and the amount of duty shall be taken to be the amount so expressed in cents or in dollars and cents;

(b) if the fraction exceeds 0·5, the amount of duty shall be taken to be the amount so expressed in cents, or in dollars and cents, plus one cent.

(5)  Any debit made to an account kept by a registered financial institution to recover any financial institutions duty from a person in whose name the account is kept shall be deemed to be an exempt debit for the purposes of the Stamp Duties Act 1931 .

77.   Depositors with unregistered financial institutions

(1)  [Section 77 Subsection (1) amended by No. 40 of 1990, s. 44 ]Where –

(a) a person deposits money with a financial institution that is not a registered financial institution under this Act or that is not bound by the provisions of this Act;

(b) that financial institution has –

(i) during the preceding 12 months had dutiable receipts totalling more than $5 000 000; or

(ii) during the preceding month had dutiable receipts totalling more than $416 666; and

(c) the deposit constitutes a receipt by the financial institution for the purposes of this Act –

the person shall, within 21 days after the end of the month during which the deposit was made with the financial institution, furnish to the Commissioner, in a manner and form approved by him, a return stating –

(d) the total of the deposits that he has made with the financial institution during that month other than deposits referred to in paragraph (e) ; and

(e) the number of deposits of, or exceeding, $2 000 000.

(2)  A person who is required to furnish the Commissioner with a return under subsection (1) is liable to pay financial institutions duty in respect of each such deposit of money made with the financial institution.

(3)  [Section 77 Subsection (3) amended by No. 40 of 1990, s. 44 ]The amount of financial institutions duty payable in respect of each deposit by virtue of subsection (2) is –

(a) 0·06 per cent in respect of the amount of the deposit; or

(b) $1 200 –

whichever is the lesser amount.

(4)  Subsection (2) does not apply to a deposit of money which, if it were a receipt of money by a registered financial institution, would constitute a non-dutiable receipt.

(5)  Regulations may be made providing for the payment and recovery of duty payable under this section.

78.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Without limiting the generality of subsection (1) , the regulations may –

(a) provide for the signing of returns, applications, notices, statements, or forms by or on behalf of financial institutions or registered short-term money market operators;

(b) authorize the authentication of any certificate, notice, or other document issued for the purposes of this Act;

(c) [Section 78 Subsection (2) amended by No. 75 of 1997, s. 18, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

(d) control or prohibit the making of charges or the implementation of practices or procedures by a financial institution or registered short-term money market operator which require or have the effect of requiring a person from whom they receive money, or with whom they have dealings, to pay to the financial institution or registered short-term money market operator any amount on the account of imposition of duty under this Act other than the amount of financial institutions duty payable by the financial institution or registered short-term money market operator in respect of, or as a consequence of, that receipt of money or those dealings.

(3)  Regulations made under this section may be made subject to such conditions, or be made so as to apply differently according to such factors as may be specified in the regulations or according to such limitations or restrictions, whether as to time or circumstance or otherwise, as may be so specified.

(4)  [Section 78 Subsection (4) amended by No. 43 of 1991, s. 5 and Sched. 1 ]Regulations made under this section may provide that it is an offence, punishable on summary conviction, for a person to contravene or fail to comply with any of the regulations and may provide in respect of any such offence for the imposition of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding 1 penalty unit for each day during which the offence continues.

79.   Transitional provisions

Schedule 1 has effect with respect to matters of a transitional nature.

SCHEDULE 1 - Transitional Provisions

Section 79

1.   Extension of period for compliance

(1) Where a person is unable reasonably to comply with the provisions of this Act requiring him to furnish to the Commissioner a return relating to the month of October 1986, the person may, not later than 21st November 1986, make application to the Commissioner for an extension under this clause.

(2) An application by a person under subclause (1) shall state the basis upon which the person proposes to estimate the amount of duty he proposes to pay under this Act in relation to the month of October 1986.

(3) The Commissioner may, in his discretion, grant the extension to which the application relates.

(4) Where –

(a) a person to whom an extension has been granted pays before 21st November 1986, the estimated amount of duty specified in his application in relation to the month of October 1986;

(b) furnishes not later than 21st December 1986 a return in accordance with this Act in respect of the month of October 1986; and

(c) pays to the Commissioner the amount (if any) by which the duty payable in accordance with the return so furnished exceeds the amount of estimated duty paid by the person under this clause –

the person shall be deemed to have complied with the provisions of this Act relating to returns for the month of October 1986.

(5) Where the amount by which the duty payable in accordance with a return furnished by a person in accordance with subclause (4) is less than the amount of estimated duty paid by the person under this clause, the Commissioner shall refund the amount by which the estimated duty exceeds the duty payable.

(6) The Commissioner may, in his discretion, grant a further extension to a person who, having made an application under this clause relating to the month of October 1986, makes further application relating to the month of November 1986.

(7) An extension granted under subclause (6) shall be upon such terms and conditions as the Commissioner may determine.

2.   Transitional provision for determination of amount of short-term dealings

(1) A non-bank financial institution or bank that is entitled to, and intends to, make application under section 31 to the Commissioner for approval of an account kept in its name by a bank that is, or makes application to be, a registered financial institution may, before 21st November 1986, give notice to the bank of that intention and request the bank to designate that account as an interim special account for the purposes of this Act.

(2) A non-bank financial institution or a bank that gives a notice to a bank under subclause (1) shall give a copy of the notice to the Commissioner.

(3) Where a notice is given to a bank under subclause (1) , the bank shall designate the account to which the notice relates as an interim special account for the purposes of this Act.

(4) Where a certificate of approval of an account to which a notice given to a bank under this clause relates is issued under section 31 , the account shall be a special account within the meaning of this Act and shall be deemed to have become a special account on 1st October 1986, or on the date on which the account was opened, whichever is the later.

(5) An interim special account under this clause shall be deemed to be a special account until –

(a) by reason of subclause (4) it is a special account; or

(b) the Commissioner by notice given to the bank at which the account is kept directs that the designation of the account as an interim special account be cancelled –

whichever first occurs.

3.   Transitional provision for designated bank accounts – special accounts

(1) A person who is not a registered short-term money market operator but is entitled to, and intends to, make application under section 26 to the Commissioner for registration as a short-term money market operator may, before 21st November 1986, give notice to a bank that is, or makes application to be, a registered financial institution, of that intention and request the bank to designate an account kept in his name by the bank as an interim short-term dealing account for the purposes of this Act.

(2) A person who gives a notice to a bank under subclause (1) shall give a copy of the notice to the Commissioner.

(3) Where a notice is given to a bank under subclause (1) , the bank shall designate the account to which the notice relates as an interim short-term dealing account for the purposes of this Act.

(4) Where a certificate of approval of an account to which a notice given to a bank under this clause relates is issued under section 32 , the account shall be a short-term dealing account within the meaning of this Act and shall be deemed to have become a short-term dealing account on 1st October 1986, or on the date on which the account was opened, whichever is the later.

(5) An interim short-term dealing account under this clause shall be deemed to be a short-term dealing account until –

(a) by reason of subclause (4) it is a short-term dealing account; or

(b) the Commissioner by notice given to the bank at which the account is kept directs that the designation of the account as an interim short-term dealing account be cancelled –

whichever first occurs.

4.   Transitional provision for sweeping account

(1) A person who is entitled to, and intends to, make application under section 33 to the Commissioner for an approval of an account kept in the name of that person by a bank that is, or makes application to be, a registered financial institution may, before 21st November 1986, give notice to the bank of that intention and request the bank to designate that account as an interim sweeping account for the purposes of this Act.

(2) A person who gives a notice to a bank under subclause (1) shall give a copy of the notice to the Commissioner.

(3) Where a notice is given to a bank under subclause (1) , the bank shall designate the account to which the notice relates as an interim sweeping account for the purposes of this Act.

(4) Where a certificate of approval of an account to which a notice given to a bank under this clause relates is issued under section 33 , the account shall be a sweeping account within the meaning of this Act and shall be deemed to have become a sweeping account on 1st October 1986, or on the date on which the account was opened, whichever is the later.

(5) An interim sweeping account under this section shall be deemed to be a sweeping account until –

(a) by reason of subclause (4) it is a sweeping account; or

(b) the Commissioner by notice given to the bank at which the account is kept directs that the designation of the account as an interim sweeping account be cancelled –

whichever first occurs.

5.   Transitional provision for special account

(1) A person who is entitled to, and intends to, make application under section 34 to the Commissioner for approval of an account kept in the name of that person by a financial institution that is, or makes application to be, a registered financial institution may, before 21st November 1986, give notice to the financial institution of that intention and request the financial institution to designate that account as an interim special account for the purposes of this Act.

(2) A person who gives a notice to a financial institution under subclause (1) shall give a copy of the notice to the Commissioner.

(3) Where a notice is given to a bank under subclause (1) , the financial institution shall designate the account to which the notice relates as an interim special account for the purposes of this Act.

(4) Where a certificate of approval of an account to which a notice given to a financial institution under this clause relates is issued under section 34 , the account shall be a special account within the meaning of this Act and shall be deemed to have become a special account on 1st October 1986, or on the date on which the account was opened, whichever is the later.

(5) An interim special account under this section shall be deemed to be a special account until –

(a) by reason of subclause (4) it is a special account; or

(b) the Commissioner by notice given to the financial institution at which the account is kept directs that the designation of the account as an interim special account be cancelled –

whichever first occurs.

6.   Final cancellation of interim exempt accounts

(1) Notwithstanding any other provisions of this Schedule, the Commissioner may, by notice published in the Gazette, determine a date from which accounts may no longer be designated as interim exempt accounts for the purposes of this Act.

(2) A financial institution that is, on the date published by the Commissioner under subclause (1) , keeping an interim exempt account shall, on that date, cancel the designation of that account as an interim exempt account.

7.   Recovery of duty improperly avoided by application for interim exempt account

(1) A person who, although ineligible to obtain approval for an account kept in his name by a financial institution as an exempt account for the purposes of this Act, obtains the designation of an account as an interim exempt account shall be liable to pay to the Commissioner an amount equal to the amount of financial institutions duty that would have been payable by the financial institution keeping the account in respect of money received by it for the credit of the account had the account not been an interim exempt account.

(2) An amount payable by a person by virtue of subclause (1) may be recovered by the Commissioner as if it were financial institutions duty.