Debits Duties Act 2001

Debits Duties Act 2001

An Act to impose duty in respect of certain transactions with financial institutions and credit card providers

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

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Debits Duties Act 2001 .

2.   Commencement

This Act commences on 1 July 2001.

3.   Interpretation

In this Act –

approved form means a form approved by the Commissioner;

Commissioner means the Commissioner of State Revenue as defined in the Taxation Administration Act 1997 ;

duty means duty payable under this Act.

4.   Duty debt to Crown

A duty under this Act is 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 .

PART 2 - Debits Duty

Division 1 - Interpretation of Part

6.   Interpretation of Part 2

For the purposes of this Part –

account means an account, other than a credit card account as defined in Part 3 , kept in this State with a financial institution to which payments by the financial institution in respect of any withdrawal from the account by an account holder may be debited irrespective of the means by which the withdrawals are made;

account holder means any person in whose name an account is kept;

account transaction means any of the following that results in the making of a debit to an account:

(a) the payment of a cheque;

(b) the doing of any other act or thing;

certificate of exemption means a certificate in force under Division 6 ;

certificate of registration means a certificate of registration as a financial institution in force under Division 2 ;

charitable organisation means –

(a) a public benevolent institution or a religious institution; or

(b) a public hospital; or

(c) a hospital carried on by an association or other body otherwise than for profit or gain to the individual members of the association or body; or

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

current account means an account kept in this State with an authorised deposit-taking institution to which payments may be debited by the institution in respect of cheques drawn on the institution by the current account holder;

direct credit means a credit to an account of a payment of any benefit or allowance made under any of the following Acts of the Commonwealth:

(a) the Social Security Act 1991 ;

(b) the Veterans' Entitlements Act 1986 ;

(c) the A New Tax System (Family Assistance) Act 1999 ;

exempt account means an account referred to in section 16(1) ;

exempt debit means a debit that is –

(a) made to an account and is subsequently reversed; or

(b) made solely to reverse a credit previously made to an account; or

(c) made under section 15(3) ; or

(d) of a prescribed class;

financial institution means –

(a) an authorised deposit-taking institution; or

(b) a prescribed body or class of body;

taxable account means an account that is not an exempt account;

taxable current account means a current account that is not an exempt account;

taxable debit means a debit that is not an exempt debit.

Division 2 - Registration

7.   Registration as financial institution

(1)  A financial institution must apply for registration as a financial institution within 15 days after commencing to carry on business as a financial institution in this State.

Penalty:  Fine not exceeding 50 penalty units.

(2)  An application is to be –

(a) in an approved form; and

(b) verified by a declaration made by the general manager, manager or agent of the applicant; and

(c) lodged with the Commissioner.

(3)  On receipt of an application from a financial institution, the Commissioner is to –

(a) register the financial institution; and

(b) issue to the financial institution a certificate of registration.

8.   Surrender of certificate of registration by financial institution

(1)  A financial institution that ceases to carry on business as a financial institution in this State is to surrender its certificate of registration by –

(a) delivering or forwarding it to the Commissioner; and

(b) notifying the Commissioner in writing that the certificate is being surrendered.

(2)  On receipt of a certificate of registration and notification, the Commissioner is to cancel the certificate.

Division 3 - Returns

9.   Monthly returns by financial institutions

(1)  A financial institution must lodge a return within 10 days after the end of each month in relation to any taxable debits made to any taxable account and taxable current account kept by the financial institution during that month.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A return is to be –

(a) in an approved form; and

(b) lodged with the Commissioner; and

(c) verified by a declaration made by the general manager, manager or agent of the financial institution; and

(d) accompanied by the amount of duty calculated under section 10 .

Division 4 - Duty payable

10.   Duty payable by financial institutions

(1)  A financial institution is to pay the Commissioner duty –

(a) at the rate of $0.15 for each taxable debit made to a taxable account kept with the financial institution; and

(b) as calculated under subsection (2) for each taxable debit not less than $1 made to a taxable current account kept with the financial institution.

(2)  The duty payable under subsection (1)(b) is as follows:

(a) 15 cents for an amount not less than $1 but less than $100;

(b) 35 cents for an amount not less than $100 but less than $500;

(c) 75 cents for an amount not less than $500 but less than $5 000;

(d) $1.50 for an amount not less than $5 000 but less than $10 000;

(e) $2 for an amount of $10 000 or more.

(3)  Subsection (1)(b) applies to a financial institution that keeps a current account on behalf of another financial institution that is not kept for clearing purposes.

11.   Duty payable by account holder

(1)  If a financial institution is not registered under this Act, the holder of an account with that financial institution is liable to pay duty in respect of a debit, other than an exempt debit, made to that account.

(2)  A person who is resident in this State is to pay duty at the applicable rate under section 10 for each debit made to an account kept with a financial institution in another State or a Territory of the Commonwealth.

(3)  Subsection (2) does not apply if the account to which the debit is made –

(a) is maintained in another State or a Territory of the Commonwealth and duty or tax of a similar kind imposed under this Part is imposed; or

(b) would be an exempt account if that account were kept with a financial institution in this State; or

(c) is, in the opinion of the Commissioner, not an account maintained to avoid the payment of duty that would have been imposed under this Part had the account been kept in this State.

(4)  A person, other than a company, is resident in this State if the person resides or is domiciled in this State.

(5)  A company that is a body corporate is resident in this State if it is –

(a) [Section 11 Subsection (5) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] taken under the Corporations Act to be registered in this State; or

(b) [Section 11 Subsection (5) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] taken under the Corporations Act to be registered outside this State and that carries on business in this State and –

(i) has its central management and control in this State; or

(ii) has its voting power controlled by shareholders who are residents of this State.

12.   Joint and several liability

A liability of any partnership or other unincorporated association or body of persons to pay duty under this Part is a liability imposed jointly and severally on the persons who are the members of the partnership or association or body when the liability arises.

13.   Separate debits

A debit made to an account in respect of 2 or more account transactions is to be treated as separate debits in relation to each of those account transactions.

14.   Assessment by Commissioner

The Commissioner may calculate the number of taxable debits made to taxable accounts and taxable current accounts kept with a financial institution and assess the duty payable by the financial institution if –

(a) the financial institution does not apply for registration under section 7 ; or

(b) the financial institution does not lodge a return as and when required; or

(c) the Commissioner is not satisfied with a return lodged by the financial institution; or

(d) the Commissioner reasonably believes that the financial institution is liable to pay duty.

15.   Recovery of duty by financial institutions

(1)  A financial institution may recover any duty paid or payable by it in respect of a taxable debit to a taxable account or taxable current account kept by it from any holder of that account.

(2)  An account holder is not liable under subsection (1) to pay an amount in respect of any duty refunded to the financial institution under Part 4 of the Taxation Administration Act 1997 .

(3)  A financial institution may debit a taxable account or taxable current account with an amount that any holder of that account is liable under subsection (1) to pay.

Division 5 - Exempt accounts

16.   Meaning of exempt account

(1)  An exempt account is any of the following:

(a) an account with a financial institution kept by a person under the age of 19 years to which deposits are made under an arrangement approved by –

(i) the Secretary of the department responsible for the administration of the Education Act 1994 ; or

(ii) the person or body having the ownership, management or control of a school of which the account holder is a pupil;

(b) an account to which is credited a direct credit made under the A New Tax System (Family Assistance) Act 1999 of the Commonwealth, the Social Security Act 1991 of the Commonwealth or the Veterans' Entitlements Act 1986 of the Commonwealth in respect of a person who holds one of the following:

(i) a Pensioner Concession Card issued under a relevant Act of the Commonwealth;

(ii) a Health Care Card issued under a relevant Act of the Commonwealth;

(iii) a card that is prescribed to be the equivalent to a card referred to in subparagraph (i) or (ii) ;

(c) an account kept by a charitable organisation;

(d) an account kept by an organisation or body that is exclusively for the purpose of raising money for, or promoting the interests of, a charitable organisation;

(e) an account kept for a public purpose by or on behalf of the Crown, other than by or on behalf of a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995 ;

(f) an account kept by an authorised deposit-taking institution in favour of another authorised deposit-taking institution for clearing purposes only between those institutions;

(g) an account kept under the Ambulance Service Act 1982 ;

(h) an account kept by the licensee, proprietor, governors, trustees, committee of management or resident manager of a private hospital for, or in connection with, the purposes of the hospital;

(i) an account kept by the University of Tasmania;

(j) an account kept by the Commission for the Conservation of Antarctic Marine Living Resources established under the Antarctic Marine Living Resources Conservation Act 1981 of the Commonwealth;

(k) an account kept on behalf of a department of the Government of the Commonwealth;

(l) an account kept by a financial institution on behalf of another financial institution;

(m) an account kept by a person constituted, established or appointed as mentioned in section 227(1)(d) of the Duties Act 2001 ;

(n) an account kept by the Auctioneers and Real Estate Agents Trust within the meaning of the Auctioneers and Real Estate Agents Act 1991 ;

(o) an account kept by, or on behalf of, a prescribed class of person or body.

(2)  An account that is kept by 2 or more persons is not an exempt account unless each of those persons is entitled to keep an exempt account.

17.   Treating exempt accounts

(1)  A person who claims that an account kept by the person with a financial institution is an exempt account, if required to do so by the financial institution, is to satisfy it, by declaration or otherwise, that the account is an exempt account.

(2)  If a financial institution treats as an exempt account an account that, in the opinion of the Commissioner, is not an exempt account, the Commissioner may recover from the financial institution any duty payable by it under Division 4 .

18.   Ceasing to be exempt account

(1)  The holder of any exempt account that ceases to be an exempt account must inform the financial institution within 14 days after the account so ceases.

Penalty:  Fine not exceeding 50 penalty units.

(2)  An account referred to in section 16(1)(b) that is not credited with a direct credit within 30 days from the date of the last direct credit ceases to be an exempt account at the end of that period.

19.   Returns in relation to exempt accounts

(1)  A financial institution is to lodge a return relating to all exempt accounts kept with it during a year ending on 31 December.

(2)  A return is to be lodged with the Commissioner on or before the last day of February in each year.

Division 6 - Certificate of exemption

20.   Application for certificate of exemption

(1)  A body or organisation may apply for a certificate of exemption to authorise an account as an exempt account.

(2)  An application is to be –

(a) made in an approved form; and

(b) lodged with the Commissioner.

(3)  The Commissioner may require an applicant to provide any further information the Commissioner considers necessary.

21.   Grant of certificate of exemption

(1)  The Commissioner may –

(a) grant the application for a certificate of exemption in relation to an account if satisfied that all debits made or to be made to the account are, or are likely to be, debits made in relation to transactions that exclusively further the objects of the body or organisation; or

(b) refuse to grant the application if not so satisfied.

(2)  If the Commissioner refuses to grant the application for a certificate of exemption, the Commissioner is to notify the applicant by notice in writing of –

(a) the refusal; and

(b) the reason for the refusal.

(3)  If the Commissioner grants the application, the Commissioner is to issue a certificate of exemption.

22.   Period of certificate of exemption

(1)  A certificate of exemption comes into force on the day specified in that certificate.

(2)  A certificate of exemption remains in force until –

(a) the day specified in that certificate; or

(b) the date of service of a notice of revocation under section 25 .

23.   Authority of certificate

A certificate of exemption authorises the holder of the certificate to hold an exempt account.

24.   Notification of changes

A body or organisation issued with a certificate of exemption must notify the Commissioner –

(a) of any change in its objects; or

(b) if it ceases to operate.

Penalty:  Fine not exceeding 50 penalty units.

25.   Revocation of certificate of exemption

(1)  The Commissioner may revoke a certificate of exemption –

(a) on receiving a notification under section 24 ; or

(b) if no longer satisfied as required under section 21(1)(a) .

(2)  The Commissioner is to serve notice of a revocation of a certificate of exemption on the body or organisation that was issued with that certificate of exemption.

(3)  The body or organisation notified of a revocation under subsection (2) must inform any relevant financial institution of the revocation within 14 days of receipt of the notice.

Penalty:  Fine not exceeding 50 penalty units.

26.   Offences relating to certificate of exemption

A person must not –

(a) forge a certificate of exemption; or

(b) alter or sign a certificate of exemption without lawful authority; or

(c) deliver a document that purports to be a certificate of exemption.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

PART 3 - Credit card transactions

Division 1 - Interpretation of Part

27.   Interpretation of Part 3

For the purposes of this Part –

active credit card account means a credit card account in respect of which a credit card provider has, during a billing period that ended during the month to which a return under Division 3 of this Part relates, made a payment under a credit card agreement;

billing period means the period to which a statement of a credit card account or transactions relates;

certificate of registration means a certificate of registration as a credit card provider in force under Division 2 ;

credit card means a card or other writing issued under a credit card agreement;

credit card account means an account kept by a credit card provider for a credit card holder under a credit card agreement;

credit card agreement means an agreement under which a credit card provider agrees, in respect of a transaction with a merchant in connection with which a credit card is produced, to make payment to the merchant or a person nominated by the merchant;

credit card business means the business of issuing credit cards to, or at the direction of, a person;

credit card holder means a person to whom, or at whose direction, a credit card is issued and who is –

(a) a person ordinarily resident in this State; or

(b) [Section 27 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] a company within the meaning of the Corporations Act that is taken to be registered in this State and that carries on business in this State; or

(c) a State or Commonwealth department, instrumentality or authority operating in this State; or

(d) a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995 ; or

(e) any other prescribed person;

credit card provider means a person who carries on a credit card business;

exempt credit card debit means a debit that is –

(a) made to a credit card account and is subsequently totally reversed or totally cancelled because a credit card holder who purchased goods or services with the credit card returns them to the merchant from whom they were purchased or cancels them; or

(b) made solely to reverse a credit previously made to an account; or

(c) made under section 33(3) ;

merchant means a person who supplies to a credit card holder goods or services in respect of which the person receives payment from a credit card provider;

registered credit card provider means a person registered as a credit card provider under Division 2 ;

taxable credit card debit means –

(a) a debit that is not an exempt credit card debit made to an active credit card account; or

(b) a debit made to record a cash advance made by a credit card provider to, or at the direction of, a credit card holder.

Division 2 - Registration as credit card provider

28.   Registration as credit card provider

(1)  A person must apply for registration as a credit card provider within 15 days after commencing to carry on a credit card business in this State.

Penalty:  Fine not exceeding 50 penalty units.

(2)  In addition to any penalty imposed on a person under subsection (1) , a court may order the person to pay the Commissioner a sum equivalent to twice the amount of the duty that would have been payable if the person had been registered under this Part.

(3)  An application is to be –

(a) in an approved form; and

(b) verified by a declaration made by the applicant or an agent of the applicant; and

(c) lodged with the Commissioner.

(4)  On receipt of an application from a person, the Commissioner is to –

(a) register the person; and

(b) issue to the person a certificate of registration.

29.   Surrender of certificate of registration by credit card provider

(1)  A registered credit card provider who ceases to carry on a credit card business in this State is to surrender the certificate of registration by –

(a) delivering or forwarding it to the Commissioner; and

(b) notifying the Commissioner in writing that the certificate is being surrendered.

(2)  On receipt of the certificate of registration and notification, the Commissioner is to cancel the certificate.

Division 3 - Returns

30.   Monthly returns by registered credit card providers

(1)  A registered credit card provider must lodge a return within 10 days after the end of each month in relation to any active credit card account kept by that credit card provider during that month.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A return is to be –

(a) in an approved form; and

(b) verified by a declaration made by the registered credit card provider or his or her agent; and

(c) lodged with the Commissioner; and

(d) accompanied by the amount of duty calculated under section 31 .

31.   Duty payable

The amount of duty payable is $0.15 for each taxable credit card debit made to an active credit card account during the billing period that ended during the month to which the return relates.

32.   Transaction with unregistered credit card provider

(1)  A person who ordinarily resides in this State and who is issued with a credit card by another person who is not a registered credit card provider must notify the Commissioner of the number of taxable credit card debits included on a statement of credit card account or transactions provided by that other person.

Penalty:  Fine not exceeding 50 penalty units.

(2)  The person must –

(a) notify the Commissioner by notice in writing within 14 days after receiving the statement referred to in subsection (1) ; and

(b) forward the applicable amount of duty calculated under subsection (3) with the notice.

Penalty:  Fine not exceeding 50 penalty units.

(3)  The amount of duty payable is $0.15 for each taxable credit card debit included on the statement.

Division 4 - Recovery of duty

33.   Recovery of duty by registered credit card providers

(1)  A registered credit card provider may recover any duty paid or payable by it in respect of an active credit card account kept for a credit card holder from the credit card holder.

(2)  A credit card holder is not liable under subsection (1) to pay an amount in respect of any duty refunded to the registered credit card provider under Part 4 of the Taxation Administration Act 1997 .

(3)  A registered credit card provider may debit an active credit card account with any amount that the credit card holder for whom that account is kept is liable to pay to the registered credit card provider under subsection (1) .

PART 4 - Miscellaneous

34.   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.

35.   Savings and transitional provisions

Schedule 1 has effect with respect to savings and transitional matters.

36.   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.

SCHEDULE 1 - Savings and transitional

Section 35

1.   Interpretation

In this Schedule –

commencement day means the day on which this Act commences;

former Act means the Stamp Duties Act 1931 .

2.   Active accounts

An account that, immediately before the commencement day, was an active account under Division 3A of Part IV of the former Act is, on that day, an active credit card account under this Act.

3.   Accounts

An account within the meaning of Division 6A of Part IV of the former Act kept immediately before the commencement day is, on that day, an account under this Act.

4.   Licences

A person who held a licence under section 60B of the former Act immediately before the commencement day is, on that day, a person registered under this Act.

5.   Certificate of registration

A certificate of registration in force under Division 6A of Part IV of the former Act immediately before the commencement day continues, on that day, to be in force as a certificate of registration under Division 2 of Part 2 of this Act until it is surrendered under this Act.

6.   Certificate of exemption

A certificate of exemption in force under section 71K of the former Act immediately before the commencement day continues, on that day, to be in force as a certificate of exemption under this Act until it ceases to be in force under this Act.

7.   Obligation to pay duty

Any obligation to lodge a return and pay duty under Division 3A or 6A of Part IV of the former Act in force immediately before the commencement day continues, after that day, to be in force until it is discharged.

8.   Authorised officers

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 .

9.   Powers of Commissioner and authorised officers

(1) An authorised officer referred to in clause 8 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 7 as if that Act had not been repealed.

(2) The Commissioner may exercise any power referred to in Division 1A of Part III of the former Act in relation to any obligation referred to in clause 7 as if that Act had not been repealed.