State Taxation Acts Amendment Bill 2018FILE/581477bi1.docx · Web viewOCPC Victoria, Word 2007,...

State Taxation Acts Amendment Bill 2018

TABLE OF PROVISIONSClause Page

Part 1—Preliminary 1

1 Purposes 12 Commencement 2

Part 2—Amendment of Duties Act 2000 3

Division 1—Foreign purchasers 3

3 What is a controlling interest for the purposes of the definition of foreign corporation? 3

4 What is a substantial interest in a trust estate for the purposes of the definition of foreign trust? 3

5 New Division 8 inserted in Part 5 of Chapter 2 46 Imposition of duty 77 Conversion of a private unit trust scheme to a public unit trust

scheme 78 Conversion of a private company to a listed company 8

Division 2—Partnerships 9

9 New section 3H inserted 9

Division 3—Property vested in apparent purchasers 10

10 Property vested in an apparent purchaser 10

Division 4—Exemptions for transfers between spouses or domestic partners 12

11 New section 43AA inserted 12

Division 5—Equity release programs 13

12 Equity release programs 13

Division 6—Principal place of residence exemption or concession for first home buyers 15

13 Residence requirement 15

Division 7—Young farmers 16

14 Exemption or concession for young farmers 16

PARLIAMENT OF VICTORIA

581477B.I-7/5/2018 BILL LA INTRODUCTION 7/5/20181

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15 Calculation of exemption or concession on transfer of single parcel of land or partial interest in single parcel of land 16

16 Calculation of exemption on transfer of multiple parcels and partial interests of land 17

Division 8—Other amendments 17

17 What is the consideration for the transfer of dutiable property? 1718 Provisions for determining consideration 17

Division 9—Transitional arrangements 18

19 New clauses 43 and 44 of Schedule 2 inserted 18

Part 3—Amendment of Payroll Tax Act 2007 20

20 Registration 2021 Definitions for the purposes of Schedule 1 2022 Rate of payroll tax 21

Part 4—Amendment of Unclaimed Money Act 2008 22

23 Definitions 2224 Definitions for the purposes of Part 8 22

Part 5—Statute law revision 24

25 Statute law revision—Land Tax Act 2005 2426 Statute law revision—Unclaimed Money Act 2008 24

Part 6—Repeal of amending Act 25

27 Repeal of amending Act 25═════════════

Endnotes 26

1 General information 26

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A Bill for an Act to amend the Duties Act 2000, the Payroll Tax Act 2007 and the Unclaimed Money Act 2008 and for

other purposes.

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purposes

The main purposes of this Act are—

(a) to amend the Duties Act 2000 in relation to—

(i) foreign purchasers; and

(ii) partnerships; and

(iii) property vested in apparent purchasers; and

Introduced in the Assembly



PARLIAMENT OF VICTORIA

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(iv) exemptions for transfers of property between spouses or domestic partners; and

(v) exemptions for equity release programs; and

(vi) principal place of residence exemptions and concessions for first home buyers who are members of the Defence Force; and

(vii) the exemption from duty payable in respect of first-time purchases of farmland by farmers under 35 years of age; and

(b) to amend the Payroll Tax Act 2007 to reduce the rate of payroll tax payable by regional employers; and

(c) to amend the Unclaimed Money Act 2008 in relation to executors and administrators.

2 Commencement

(1) This Act (other than Divisions 6 and 7 of Part 2 and Part 3 and section 25) comes into operation on the day after the day on which it receives the Royal Assent.

(2) Section 25 is taken to have come into operation on 1 January 2018.

(3) Divisions 6 and 7 of Part 2 and Part 3 come into operation on 1 July 2018.

Clause Page


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Part 2—Amendment of Duties Act 2000

Division 1—Foreign purchasers3 What is a controlling interest for the purposes of the

definition of foreign corporation?

(1) In the heading to section 3A of the Duties Act 2000, for "in a foreign corporation" substitute "for the purposes of the definition of foreign corporation".

(2) In section 3A(1) of the Duties Act 2000, for "the foreign corporation" substitute "a corporation".

(3) For section 3A(2) of the Duties Act 2000 substitute—

"(2) Subsection (1) applies whether or not the person has the controlling interest—

(a) alone; or

(b) together with—

(i) an associated person; or

(ii) a foreign natural person, foreign corporation or trustee of a foreign trust.".

(4) In section 3A(3) of the Duties Act 2000 omit "foreign".

4 What is a substantial interest in a trust estate for the purposes of the definition of foreign trust?

(1) In the heading to section 3B of the Duties Act 2000, after "trust estate" insert "for the purposes of the definition of foreign trust".

(2) In section 3B(1) of the Duties Act 2000—

(a) after "the trust estate" insert "of a trust";

Part 6—Repeal of amending Act



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(b) in paragraph (a) omit "foreign".

(3) In section 3B(2) of the Duties Act 2000 omit "foreign" (where twice occurring).

(4) For section 3B(3) of the Duties Act 2000 substitute—

"(3) Subsection (1) applies whether or not the person has the substantial interest—

(a) alone; or

(b) together with—

(i) an associated person; or

(ii) a foreign natural person, foreign corporation or trustee of a foreign trust.".

5 New Division 8 inserted in Part 5 of Chapter 2

After Division 7 of Part 5 of Chapter 2 of the Duties Act 2000 insert—

"Division 8—Exemption from additional duty for foreign purchasers

69AJ Certain foreign purchasers exempt from additional duty under section 28A

A foreign purchaser is entitled to an exemption from additional duty chargeable under section 28A in respect of a dutiable transaction in which a land-related interest in residential property is transferred to the foreign purchaser if—

(a) the foreign purchaser is a foreign natural person who is the spouse or domestic partner of a natural person who is not a foreign natural person; and

(b) the land-related interest in residential property is transferred jointly to the




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foreign purchaser and the foreign purchaser's spouse or domestic partner; and

(c) subject to section 69AK, the foreign purchaser occupies the residential property as the foreign purchaser's principal place of residence for a continuous period of at least 12 months commencing within the 12 month period immediately after the foreign purchaser becomes entitled to possession of the residential property.

69AK Variation of residence requirement for exemption

(1) If satisfied there is a good reason for doing so, the Commissioner may—

(a) reduce the period of residence required by section 69AJ(c); or

(b) determine that a temporary absence from residence does not break the continuity of residence for the purposes of section 69AJ(c); or

(c) extend the period in which the residence required by section 69AJ(c) must commence.

(2) If the Commissioner determines that a temporary absence from residence does not break the continuity of residence, the foreign purchaser is not entitled to an exemption under section 69AJ in respect of any other dutiable transaction of a kind referred to in that section during the period of temporary absence unless the foreign purchaser pays additional duty on the original dutiable transaction calculated at the rate set out in section 28A(2).




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(3) If a foreign purchaser who is occupying residential property that is the subject of a dutiable transaction to which an exemption under section 69AJ applies as the foreign purchaser's principal place of residence, or who is temporarily absent from the land in accordance with a determination under subsection (1), dies, the requirement under section 69AJ(c) is taken to have been complied with.

69AL Liability for additional duty if residence requirement not complied with

(1) If the period of residence required by section 69AJ(c) for an exemption under section 69AJ is not complied with—

(a) the dutiable transaction is chargeable with additional duty at the rate set out in section 28A(2); and

(b) the Commissioner may reassess duty on the transfer accordingly.

(2) A liability for additional duty imposed because of subsection (1) on the dutiable transaction arises when the required period of residence is not complied with.Note

Section 16 provides that a tax default does not occur if the duty is paid within 30 days after the liability for the duty arises.

(3) A reassessment referred to in subsection (1)(b) is authorised if more than 5 years have passed since the initial assessment was made.Note

Section 9(3)(c) of the Taxation Administration Act 1997 allows a reassessment to be made more than 5 years after the initial assessment if this is authorised by a taxation law.




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(4) If the period of residence required by section 69AJ(c) for an exemption under section 69AJ is not complied with, the foreign purchaser is not entitled to an exemption under that section in respect of any other dutiable transaction of a kind referred to in that section until the foreign purchaser has paid additional duty for which the person is liable because of this section.

69AM Foreign purchasers must notify Commissioner of change in circumstance

(1) A foreign purchaser who has received an exemption under section 69AJ must lodge a written notice with the Commissioner within 30 days after becoming aware of any circumstances that may result in the requirement under section 69AJ(c) not being complied with.

(2) A failure of the foreign purchaser to comply with subsection (1) does not affect the Commissioner's power to exercise a discretion under section 69AK or to reassess duty under section 69AL.".

6 Imposition of duty

In section 70(2) of the Duties Act 2000, for "a relevant acquisition" substitute "an acquisition".

7 Conversion of a private unit trust scheme to a public unit trust scheme

(1) For section 89B(4)(b) of the Duties Act 2000 substitute—

"(b) pay the duty chargeable (if any) on the relevant acquisition.".




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(2) After section 89B(4) of the Duties Act 2000 insert—

"(4A) Duty on a relevant acquisition under this section is chargeable at 10% of the duty that would be chargeable, at the rate specified under this Act for a transfer of dutiable property, on a transfer of all the land holdings of the landholder in Victoria (calculated on the unencumbered value of the land holdings at the date of the relevant acquisition).

(4B) Subsection (4A) does not apply when determining the duty chargeable at the rate set out in section 28A.".

8 Conversion of a private company to a listed company

(1) For section 89C(4)(b) of the Duties Act 2000 substitute—

"(b) pay the duty chargeable (if any) on the relevant acquisition.".

(2) After section 89C(4) of the Duties Act 2000 insert—

"(4A) Duty on a relevant acquisition under this section is chargeable at 10% of the duty that would be chargeable, at the rate specified under this Act for a transfer of dutiable property, on a transfer of all the land holdings of the landholder in Victoria (calculated on the unencumbered value of the land holdings at the date of the relevant acquisition).

(4B) Subsection (4A) does not apply when determining the duty chargeable at the rate set out in section 28A.".




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Division 2—Partnerships9 New section 3H inserted

After section 3G of the Duties Act 2000 insert—

"3H Partners taken to have beneficial ownership of individual partnership property

(1) For the purposes of this Act, a partner in a partnership is taken to have beneficial ownership of each item of partnership property in the same proportion as the partner's partnership interest.

(2) The value of the partner's beneficial ownership of an item of partnership property must be determined without regard to any liabilities of the partnership.Example

A partnership consists of 4 partners each of whom has contributed equally to the capital of the partnership and would be entitled to a 25% share of any surplus on dissolution of the partnership in respect of capital. The sole partnership property is land with an unencumbered value of $4 million. The registered proprietor of the land is a person who holds the land as custodian for the benefit of the partnership. The liabilities of the partnership are $3 million. Under this section, each partner is taken to have 25% beneficial ownership of the land without regard to any liabilities of the partnership. For example, if a partner left the partnership and another partner joined the partnership on the same terms, there would be a change of beneficial ownership in the land to the value of $1 million.

(3) To avoid doubt, for the purposes of section 75, partnership property is taken to be held by the partnership for the benefit of each partner in the same proportion as the partner's beneficial ownership referred to in subsection (1).




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(4) To avoid doubt, for the purposes of Part 2 of Chapter 11, if partnership property consists of or includes shares or units, a partner is taken to have the ability to cast, or to control the casting of, the votes attaching to the shares or units of which the partner is taken to have beneficial ownership under subsection (1).

(5) In this section—

partnership interest, of a partner, means the proportion of any surplus to which the partner would be entitled in respect of capital if the partnership were to be dissolved;

partnership property has the same meaning as in section 24(1) of the Partnership Act 1958.".

Division 3—Property vested in apparent purchasers10 Property vested in an apparent purchaser

(1) After section 34(1) of the Duties Act 2000 insert—

"(1A) In addition, no duty is chargeable under this Chapter as follows—

(a) if a declaration of trust is made by an apparent purchaser in respect of identified dutiable property or marketable securities referred to in section 10(2) and—

(i) a real purchaser has provided less than 100% of the money for the purchase of the dutiable property or marketable securities (a real purchaser's contribution)—to the extent that the declaration of trust




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vested in the apparent purchaser on trust for the real purchaser the dutiable property or marketable securities in proportion to the real purchaser's contribution; or

(ii) the Commissioner is satisfied that a real purchaser has provided or will provide less than 100% of the money for the purchase of the dutiable property or marketable securities (a real purchaser's contribution)—to the extent that the declaration of trust will vest in the apparent purchaser on trust for the real purchaser the dutiable property or marketable securities in proportion to the real purchaser's contribution;

(b) if there is a transfer of dutiable property or marketable securities referred to in section 10(2) from an apparent purchaser to a real purchaser and the real purchaser has provided less than 100% of the money for the purchase of the dutiable property or marketable securities (a real purchaser's contribution)—to the extent that the dutiable property or marketable securities are vested in the apparent purchaser on trust in proportion to the real purchaser's contribution.

Example

Person A and Person B purchase an estate in fee simple together, making equal contributions to the purchase price. They intend to be registered as tenants in common in equal shares. However, only Person A is registered. As a result, Person A holds 50% of the estate in fee simple as an apparent purchaser on trust for Person B, the real purchaser of that 50%.




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Person A transfers the whole of the estate in fee simple to Person B. Under this transfer, 50% represents Person B's beneficial interest in the property held by Person A and the other 50% is purchased by Person B. Although the transfer is for the whole of the estate in fee simple, no duty is chargeable in respect of the 50% that was held on trust by Person A as apparent purchaser for Person B, the real purchaser.

(1B) For the purposes of subsection (1) and (1A), money provided by a person other than the real purchaser is taken to be provided by the real purchaser, if the Commissioner is satisfied that the money—

(a) was provided as a loan; and

(b) has or will be repaid by the real purchaser.".

(2) Section 34(2A) of the Duties Act 2000 is repealed.

Division 4—Exemptions for transfers between spouses or domestic partners

11 New section 43AA inserted

After section 43 of the Duties Act 2000 insert—

"43AA Circumstances in which consideration does not include a mortgage

(1) Despite section 21, for the purposes of section 43, the consideration for a transfer does not include the amount or value of a mortgage to which the dutiable property is subject if—

(a) the dutiable property that is the subject of the transfer is subject to a mortgage immediately before the transfer and the transferee, at the time of or immediately after the transfer—




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(i) gives a mortgage to secure the same or a greater amount as that outstanding under the mortgage immediately before the transfer; or

(ii) assumes the liabilities under the mortgage; and

(b) the Commissioner is satisfied that the giving of the mortgage or the assumption of the liability is not part of a sale or other arrangement designed to take advantage of the exemption under section 43.

(2) Without limiting the ways in which the Commissioner may be satisfied for the purposes of subsection (1)(b), the Commissioner is taken to be satisfied if—

(a) the mortgage was created at or before the time of the transfer; or

(b) the mortgage was part of a genuine re-financing of a mortgage created at or before the time of the transfer; or

(c) the mortgage was created to secure borrowings that have been applied to the improvement of the property.".

Division 5—Equity release programs12 Equity release programs

(1) In section 55(1)(a) of the Duties Act 2000, for "financial institution" (wherever occurring) substitute "permitted provider".




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(2) In section 55(4) of the Duties Act 2000—

(a) insert the following definition—

"permitted provider means—

(a) a body regulated by APRA within the meaning of section 3(2) of the Australian Prudential Regulation Authority Act 1998 of the Commonwealth; or

(b) a co-operative within the meaning of the Co-operatives National Law (Victoria); or

(c) a co-operative housing society within the meaning of the Co-operative Housing Societies Act 1958; or

(d) a friendly society; or

(e) a body referred to in paragraph (d) of the definition of financial institution in section 3(1).";

(b) in the definition of equity release program, for "financial institution" (wherever occurring) substitute "permitted provider";

(c) in the definition of homeowner, in paragraph (b), for "mortgage." substitute "mortgage;";

(d) the definition of financial institution is repealed.




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Division 6—Principal place of residence exemption or concession for first home buyers

13 Residence requirement

After section 57K(3) of the Duties Act 2000 insert—

"(4) A transferee is exempted from compliance with the residence requirement in relation to an exemption or concession from duty under section 57JA if, at the time of the PPR transfer—

(a) if there is only one transferee, the transferee is a member of the Defence Force and is enrolled on the register of electors; or

(b) if there are 2 or more transferees—

(i) at least one of the transferees is a member of the Defence Force; and

(ii) each of the transferees is enrolled on the register of electors.

(5) In this section—

member of the Defence Force means a member of the Permanent Forces within the meaning of the Defence Act 1903 of the Commonwealth;

register of electors has the same meaning as in the Electoral Act 2002.".




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Division 7—Young farmers14 Exemption or concession for young farmers

In section 69AD(1)(d)(ii) of the Duties Act 2000, for "$300 000" substitute "$600 000".

15 Calculation of exemption or concession on transfer of single parcel of land or partial interest in single parcel of land

(1) In section 69AE(2) of the Duties Act 2000 omit "$300 000 of".

(2) For the Examples at the foot of section 69AE(2) of the Duties Act 2000 substitute—"Example

A young farmer enters into a dutiable transaction with a dutiable value of $275 000. No duty is payable as the young farmer is entitled to an exemption in respect of the whole dutiable value (as it is less than $600 000).".

(3) For section 69AE(3) of the Duties Act 2000 substitute—

"(3) If the dutiable value of the dutiable property exceeds $600 000 but does not exceed $750 000, the young farmer or young farmer business entity (as the case requires) is entitled to pay a concessional amount of duty that is calculated in accordance with the following formula—

where—

A is the dutiable value of the property;

B is the amount of duty paid or payable (but for this section) on the transfer of the dutiable property.".




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16 Calculation of exemption on transfer of multiple parcels and partial interests of land

(1) In section 69AF(1)(b) of the Duties Act 2000, for "$300 000" substitute "$600 000".

(2) In section 69AF(2) of the Duties Act 2000,for the Example at the foot of that subsection substitute—"Example

A young farmer enters into 3 dutiable transactions with dutiable values of $200 000 (Transaction A), $300 000 (Transaction B) and $500 000 (Transaction C). An exemption in respect of $600 000 of the aggregated dutiable value of the dutiable transactions is first applied to the dutiable transaction with the lowest dutiable value, and then to the dutiable transaction with the next lowest dutiable value. This means that a full exemption from duty applies to Transaction A and Transaction B, with a partial exemption applied to Transaction C in respect of $100 000 of its dutiable value.".

Division 8—Other amendments17 What is the consideration for the transfer of

dutiable property?

In section 21(2) of the Duties Act 2000, for "PPR transfer" substitute "transfer of dutiable property".

18 Provisions for determining consideration

(1) In section 32V(2A) of the Duties Act 2000, for "relevant transaction of a type specified in subsection (2B)" substitute "transaction under this Part".

(2) Section 32V(2B) of the Duties Act 2000 is repealed.




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Division 9—Transitional arrangements19 New clauses 43 and 44 of Schedule 2 inserted

After clause 42 of Schedule 2 to the Duties Act 2000 insert—

"43 State Taxation Acts Amendment Act 2018—conversion of private unit trust schemes and private companies

(1) Section 89B, as in force immediately before the commencement of section 7 of the State Taxation Acts Amendment Act 2018, applies if, under an agreement or arrangement entered into before that commencement, a landholder that is a private unit trust scheme becomes, through whatever means, a public unit trust scheme after that commencement.

(2) Section 89C, as in force immediately before the commencement of section 8 of the State Taxation Acts Amendment Act 2018, applies if, under an agreement or arrangement entered into before that commencement, a landholder that is a private company becomes, through whatever means, a listed company after that commencement.

44 State Taxation Acts Amendment Act 2018—controlling interests and substantial interests

(1) Section 3A, as in force immediately before the commencement of section 3 of the State Taxation Acts Amendment Act 2018, applies in respect of the following—

(a) a dutiable transaction that occurs on or after that commencement that transfers a land-related interest in residential property under an agreement or




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arrangement entered into before that commencement;

(b) an acquisition of an interest in a landholder that holds a land-related interest in residential property under an agreement or arrangement entered into before that commencement.

(2) Section 3B, as in force immediately before the commencement of section 4 of the State Taxation Acts Amendment Act 2018, applies in respect of the following—

(a) a dutiable transaction that occurs on or after that commencement that transfers a land-related interest in residential property under an agreement or arrangement entered into before that commencement;

(b) an acquisition of an interest in a landholder that holds a land-related interest in residential property under an agreement or arrangement entered into before that commencement.".




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Part 3—Amendment of Payroll Tax Act 200720 Registration

In section 86(6) of the Payroll Tax Act 2007, for paragraphs (c) and (d) substitute—

"(c) for the financial year commencing on 1 July 2018 and each subsequent financial year—$12 500 per week.".

21 Definitions for the purposes of Schedule 1

(1) In clause 1 of Schedule 1 to the Payroll Tax Act 2007, in the definition of R—

(a) in paragraph (e)—

(i) omit "or any subsequent financial year";

(ii) in subparagraph (ii), for "case." substitute "case;";

(b) after paragraph (e) insert—

"(f) for the financial year commencing on 1 July 2018 or any subsequent financial year—

(i) 2·425% in the case of a regional employer; and

(ii) 4·85% in any other case.".

(2) In clause 7 of Schedule 1 to the Payroll Tax Act 2007—

(a) for the definition of Re substitute—

"Re is the percentage specified in paragraph (e)(ii) or (f)(ii) of the definition of R (as the case requires);";




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(b) for the definition of Rre substitute—

"Rre is the percentage specified in paragraph (e)(i) or (f)(i) of the definition of R (as the case requires);".

22 Rate of payroll tax

(1) In clause 2(e) of Schedule 2 to the Payroll Tax Act 2007—

(a) after "1 July 2017" insert "and before 1 July 2018";

(b) in subparagraph (ii), for "case." substitute "case;".

(2) After clause 2(e) of Schedule 2 to the Payroll Tax Act 2007 insert—

"(f) for wages paid or payable on or after 1 July 2018—

(i) 2·425% in the case of a regional employer; and

(ii) 4·85% in any other case.".




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Part 4—Amendment of Unclaimed Money Act 2008

23 Definitions

(1) In section 3(1) of the Unclaimed Money Act 2008, in the definition of owner, for paragraph (a) substitute—

"(a) the person's executor, administrator or assignee; or".

(2) After section 3(6) of the Unclaimed Money Act 2008 insert—

"(6A) For the purposes of paragraph (a) of the definition of owner in subsection (1), a reference to—

(a) the person's executor is a reference to the executor of the will of the person, if probate of the will has been granted, sealed or resealed in any jurisdiction in Australia; and

(b) the person's administrator is a reference to the administrator of the estate of the person, if letters of administration have been granted, sealed or resealed in any jurisdiction in Australia.".

24 Definitions for the purposes of Part 8

(1) In section 90 of the Unclaimed Money Act 2008, in the definition of owner, for paragraph (a) substitute—

"(a) the person's executor, administrator or assignee; or".




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(2) At the end of section 90 of the Unclaimed Money Act 2008 insert—

"(2) For the purposes of paragraph (a) of the definition of owner in subsection (1), a reference to—

(a) the person's executor is a reference to the executor of the will of the person, if probate of the will has been granted, sealed or resealed in any jurisdiction in Australia; and

(b) the person's administrator is a reference to the administrator of the estate of the person, if letters of administration have been granted, sealed or resealed in any jurisdiction in Australia.".




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Part 5—Statute law revision25 Statute law revision—Land Tax Act 2005

In section 46ID(5)(a) of the Land Tax Act 2005, in the formula, for "A = B +" substitute "(A × B) +".

26 Statute law revision—Unclaimed Money Act 2008

In section 3(1) of the Unclaimed Money Act 2008, in the definition of unclaimed money, in paragraph (a), for "become" substitute "became".




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Part 6—Repeal of amending Act27 Repeal of amending Act

This Act is repealed on 1 July 2019.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1)of the Interpretation of Legislation Act 1984).

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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

By Authority. Government Printer for the State of Victoria.

Endnotes



http://www.legislation.vic.gov.au/

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