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TASMANIA
__________
DUTIES AMENDMENT BILL 2022
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - DUTIES ACT 2001 AMENDED
3. Principal Act
4. Section 4B amended (Meaning of foreign trust)
5. Section 30A amended (Meaning of residential property)
6. Section 30DA inserted
30DA. Reassessment of duty if premises cease to be
residential premises
PART 3 - DUTIES ACT 2001 FURTHER AMENDED
7. Principal Act
8. Section 30AA inserted
30AA. Determinations in relation to use of land
9. Section 30HC inserted
30HC. Reassessment of duty for certain developers of
property
10. Section 30M amended (Circumstances in which transferee not a
foreign person)
11. Section 57B inserted
57B. Exemptions - certain financing arrangements
[Bill 18]-XI
PART 4 - CONCLUDING PROVISION
12. Repeal of Act
2
DUTIES AMENDMENT BILL 2022
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
24 May 2022
(Brought in by the Treasurer, the Honourable Michael Darrel
Joseph Ferguson)
A BILL FOR
An Act to amend the Duties Act 2001
Be it enacted by Her 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 Duties Amendment
Act 2022.
2. Commencement
(1) Except as provided by this section, this Act
commences on the day on which this Act
receives the Royal Assent.
(2) Part 2 is taken to have commenced on
1 July 2018.
(3) Part 3 commences on 1 July 2022.
[Bill 18] 3
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Act No. of 2022
s. 3 Part 2 - Duties Act 2001 Amended
PART 2 - DUTIES ACT 2001 AMENDED
3. Principal Act
In this Part, the Duties Act 2001* is referred to
as the Principal Act.
4. Section 4B amended (Meaning of foreign trust)
Section 4B of the Principal Act is amended by
inserting after subsection (3) the following
subsections:
(4) If a trust is a self managed
superannuation fund, within the meaning
of the Superannuation Industry
(Supervision) Act 1993 of the
Commonwealth, then, for the purposes of
subsection (1), a member of the fund is
taken to have a beneficial interest in the
capital of the fund, to be calculated as the
amount to which the member would be
entitled on transfer of the member's
membership to another self managed
superannuation fund.
(5) For the purposes of subsection (4), a
reference to a member of a
superannuation fund includes a reference
to a beneficiary of the fund.
(6) If a trust is established by a testamentary
instrument, then, for the purposes of
_______________________________________________________________
*No. 15 of 2001
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Act No. of 2022
Part 2 - Duties Act 2001 Amended s. 5
subsection (1), a beneficiary of the trust
is taken to have a beneficial interest in
the capital of the trust, to be calculated as
the amount to which the beneficiary
would be entitled were the estate fully
administered.
5. Section 30A amended (Meaning of residential
property)
Section 30A of the Principal Act is amended as
follows:
(a) by renumbering the section as subsection
(1);
(b) by inserting the following subsections
after subsection (1):
(2) Despite subsection (1), residential
property does not include land on
which a building is being
lawfully used solely, or primarily,
as one of the following premises:
(a) a commercial
establishment whose
primary purpose is to
offer short-term
accommodation, or
lodging, to persons for
consideration;
(b) a hostel or boarding
house;
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Act No. of 2022
s. 5 Part 2 - Duties Act 2001 Amended
(c) premises that are
primarily used, to provide
residential
accommodation, by or on
behalf of -
(i) a school, within
the meaning of the
Education Act
2016; or
(ii) TasTAFE, within
the meaning of the
Education Act
2016; or
(iii) an institution
within the
meaning of the
Higher Education
Funding Act 1988
of the
Commonwealth;
(d) a residential care service,
within the meaning of the
Land Tax Act 2000;
(e) a retirement village,
within the meaning of the
Land Tax Act 2000.
(3) For the purposes of
subsection (2), premises that are
short stay premises, within the
meaning of the Short Stay
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Act No. of 2022
Part 2 - Duties Act 2001 Amended s. 6
Accommodation Act 2019, are not
commercial establishments.
6. Section 30DA inserted
After section 30D of the Principal Act, the
following section is inserted in Part 3A:
30DA. Reassessment of duty if premises cease to be
residential premises
(1) This section applies to the transferee for
a dutiable transaction in relation to
dutiable property if -
(a) at the time of the dutiable
transaction, the dutiable property
was dutiable property to which
subsection (2) applies; and
(b) within 12 months after the
dutiable transaction, the dutiable
property ceases to be residential
property because premises
situated on the dutiable property
become premises to which
section 30A(2) relates.
(2) This subsection applies to dutiable
property at the time of a dutiable
transaction if, at that time, the dutiable
property was residential property only by
reason that a building on the dutiable
property that had, within the 12-month
period before that time, been used solely,
or primarily, as premises to which
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s. 6 Part 2 - Duties Act 2001 Amended
section 30A(2) relates, was not being
used solely, or primarily, as such
premises.
(3) A transferee to whom this section applies
may apply to the Commissioner, in
writing, to reassess the duty payable
under this Part on a dutiable transaction
in relation to dutiable property as if, at
the time at which the dutiable transaction
occurred, the dutiable property was not
residential property because premises
situated on the dutiable property were
premises to which section 30A(2)
applies.
(4) A transferee may only apply for a
reassessment under subsection (3) if the
transferee has not transferred all, or any
part, of the property that was the subject
of the dutiable transaction.
(5) If the Commissioner receives an
application under subsection (3) in
respect of a dutiable transaction in
relation to dutiable property and the
Commissioner is satisfied that the
transferee is a transferee to whom this
section applies, the Commissioner must -
(a) reassess the duty payable under
this Part on the dutiable
transaction as if, at the time at
which the dutiable transaction
occurred, the dutiable property
was not residential property
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Act No. of 2022
Part 2 - Duties Act 2001 Amended s. 6
because premises situated on the
dutiable property were premises
to which section 30A(2) applies;
and
(b) refund any amount of duty paid in
respect of the dutiable transaction
that is in excess of the amount so
reassessed.
(6) If dutiable property to which this section
applies becomes residential property
again within the 3-year period after the
relevant dutiable transaction,
section 30D(2), (3), (4) and (6) apply to
the dutiable transaction as if a reference
to subsection (1)(c) were a reference to
this subsection.
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Act No. of 2022
s. 7 Part 3 - Duties Act 2001 Further Amended
PART 3 - DUTIES ACT 2001 FURTHER AMENDED
7. Principal Act
In this Part, the Duties Act 2001* is referred to
as the Principal Act.
8. Section 30AA inserted
After section 30A of the Principal Act, the
following section is inserted in Part 3A:
30AA. Determinations in relation to use of land
(1) The Commissioner may make a
determination that, for the purposes of
section 30, land is, or will be, capable of
being lawfully used primarily for primary
production purposes if the Commissioner
is satisfied, on reasonable grounds, that
at least 50% of the land is, or will be,
capable of being used for such a purpose,
whether or not the land is, or will be,
capable of use for another purpose.
(2) The Commissioner may make a
determination that, for the purposes of
section 30A, land is, or will be, capable
of being lawfully used primarily for
residential purposes if the Commissioner
is satisfied, on reasonable grounds, that
at least 50% of the land is, or will be,
capable of being used for such a purpose,
_______________________________________________________________
*No. 15 of 2001
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Act No. of 2022
Part 3 - Duties Act 2001 Further Amended s. 9
whether or not the land is, or will be,
capable of use for another purpose.
9. Section 30HC inserted
After section 30HB of the Principal Act, the
following section is inserted in Part 3A:
30HC. Reassessment of duty for certain developers
of property
(1) In this section -
occupancy permit has the same
meaning as in the Building Act
2016;
relevant dwelling means a dwelling
where -
(a) the dwelling is situated on
land, within Tasmania,
that is acquired by a
person (the relevant
person) on or after
1 July 2022; and
(b) on or after that date -
(i) the laying of the
foundations of the
dwelling occurred;
or
(ii) if no foundations
are to be laid in
respect of the
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Act No. of 2022
s. 9 Part 3 - Duties Act 2001 Further Amended
dwelling, an
equivalent act
determined by the
Commissioner
occurred in
respect of the
dwelling; and
(c) the completed dwelling is
capable of being lawfully
used solely, or primarily,
for residential purposes;
and
(d) an occupancy permit is
first issued, to the relevant
person, in respect of the
dwelling within 3 years
after the relevant person
acquired the land on
which the dwelling is
situated;
Tasmania-based foreign developer, in
respect of a financial year, means
a foreign person who operates a
business -
(a) that acquires land within
Tasmania with the aim of
developing the land; and
(b) of which at least 80% of
the wages of management
and administration staff of
the business are taxable
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Act No. of 2022
Part 3 - Duties Act 2001 Further Amended s. 9
wages within the meaning
of the Payroll Tax Act
2008, in that year; and
(c) that operates in Tasmania
for the majority of its
business hours in that
year.
(2) A person may apply to the
Commissioner, in writing, to reassess the
duty payable by the person under this
Part, for a specified financial year, in
relation to a dutiable transaction
consisting of an acquisition of land, if -
(a) the person is a Tasmania-based
foreign developer in respect of
the financial year; and
(b) the person, or the business by
virtue of which the person is a
Tasmania-based foreign
developer for the purposes of this
section, has -
(i) been issued with
occupancy permits, in that
year, in respect of at least
50 relevant dwellings on
the land; and
(ii) paid duty under this Part
in respect of the dutiable
transaction consisting of
the acquisition of the land
on which one or more of
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Act No. of 2022
s. 9 Part 3 - Duties Act 2001 Further Amended
those relevant dwellings
are situated.
(3) If the Commissioner receives an
application under subsection (2) from a
person in respect of a financial year, in
relation to a dutiable transaction
consisting of an acquisition of land, the
Commissioner must -
(a) reassess the duty payable under
this Part by the person, in respect
of the dutiable transaction, as at
the time at which the transaction
was made, as if the person were
not a foreign person; and
(b) refund any amount of duty paid
by the person under this Part, in
respect of the dutiable
transaction, that is in excess of
the amount so reassessed in
relation to that dutiable
transaction.
(4) If a Tasmania-based foreign developer
has paid duty under this Part in relation
to a dutiable transaction consisting of an
acquisition of a parcel of land and a
relevant dwelling is situated on a portion,
of that land, that -
(a) is recorded in a single certificate
of title within the meaning of the
Land Tax Act 2000; or
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Act No. of 2022
Part 3 - Duties Act 2001 Further Amended s. 9
(b) is a lot or area of common
property, of a strata scheme
within the meaning of the Strata
Titles Act 1998; or
(c) was created by the division of the
land in a manner that is
identified, or recognised, in
another way -
the Commissioner is to reassess, under
subsection (3), in accordance with
subsection (5), the amount of duty
payable.
(5) The reassessment under subsection (3) of
duty payable in respect of a dutiable
transaction consisting of an acquisition of
land is, if subsection (4) applies in
relation to one or more portions of the
land, to be determined by -
(a) reassessing the duty payable
under this Part in respect of all of
the land of which the portion of
land is, or the portions of land
are, part; and
(b) calculating the percentage, of all
of the land, that consists of the
portion of land or portions of
land; and
(c) reducing the amount of duty
payable in respect of the land
under this Part by the percentage
calculated under paragraph (b) for
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Act No. of 2022
s. 10 Part 3 - Duties Act 2001 Further Amended
the portion of land or the portions
of land.
(6) The Commissioner may only refund,
under subsection (3), an amount of duty
paid by a Tasmania-based foreign
developer if the Commissioner is
satisfied that the developer complied
with all of the relevant requirements of
the Foreign Investment Review Board,
established by the Commonwealth
Government, that apply in respect of the
acquisition of the land for which duty is
being reassessed under subsection (3).
10. Section 30M amended (Circumstances in which
transferee not a foreign person)
Section 30M of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "where"
and substituting "in which";
(b) by omitting subsection (2) and
substituting the following subsection:
(2) While the circumstances
published by the Commissioner
under subsection (1), and in force
in accordance with
subsection (3), apply in relation
to a transferee, the transferee is
not a foreign person for the
purposes of this Part.
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Act No. of 2022
Part 3 - Duties Act 2001 Further Amended s. 11
(c) by omitting from subsection (4)(a) "a
transferee meets the circumstances,
published and in force under this
section," and substituting "the
circumstances published by the
Commissioner under subsection (1), and
in force in accordance with
subsection (3), apply in relation to a
transferee";
(d) by omitting from subsection (5) "the
transferee meets the circumstances
published and in force under this section"
and substituting "the circumstances
published by the Commissioner under
subsection (1), and in force in accordance
with subsection (3), apply in relation to a
transferee".
11. Section 57B inserted
After section 57AA of the Principal Act, the
following section is inserted in Part 6:
57B. Exemptions - certain financing
arrangements
(1) No duty is chargeable under this Chapter
in respect of a transaction, relating to
dutiable property, that is a second
transaction within the meaning of
subsection (2) or (3).
(2) This subsection applies if a natural
person and an authorised deposit-taking
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Act No. of 2022
s. 11 Part 3 - Duties Act 2001 Further Amended
institution enter into an agreement
where -
(a) the natural person, acting as agent
for the authorised deposit-taking
institution, and a third party enter
into an agreement for sale in
relation to real property (the
relevant property); and
(b) in accordance with the agreement
for sale referred to in
paragraph (a), the relevant
property is transferred from the
third party to the authorised
deposit-taking institution (the
first transaction); and
(c) at the same time as the first
transaction, the authorised
deposit-taking institution and the
natural person enter into an
agreement for sale in relation to
the relevant property; and
(d) in accordance with the agreement
for sale referred to in
paragraph (c), the authorised
deposit-taking institution
transfers the relevant property to
the natural person for
consideration (the second
transaction).
(3) This subsection applies if a natural
person and an authorised deposit-taking
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Act No. of 2022
Part 3 - Duties Act 2001 Further Amended s. 11
institution enter into an agreement
where -
(a) the natural person, acting as agent
for the authorised deposit-taking
institution, and a third party enter
into an agreement for sale in
relation to real property (the
relevant property); and
(b) in accordance with the agreement
for sale referred to in
paragraph (a), the relevant
property is transferred from the
third party to both the authorised
deposit-taking institution and the
natural person (the first
transaction) in the percentages
specified in the agreement; and
(c) at the same time as the first
transaction, the authorised
deposit-taking institution and the
natural person enter into an
agreement where the natural
person is to purchase such
percentage of the relevant
property as is owned by the
authorised deposit-taking
institution; and
(d) in accordance with the agreement
referred to in paragraph (c), the
authorised deposit-taking
institution transfers, in one or
more transactions, the relevant
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Act No. of 2022
s. 11 Part 3 - Duties Act 2001 Further Amended
property to the natural person for
consideration (the second
transaction).
(4) No duty is chargeable under this Chapter
in respect of a transaction, relating to
dutiable property, that is a first
transaction, or a second transaction,
within the meaning of subsection (5).
(5) This subsection applies if -
(a) a natural person and an
authorised deposit-taking
institution enter into any of the
agreements referred to in
subsection (2) or (3) (the relevant
agreement); and
(b) the authorised deposit-taking
institution transfers the dutiable
property to another authorised
deposit-taking institution (the
first transaction) on the condition
that the other authorised deposit-
taking institution complies with
the terms of the relevant
agreement; and
(c) in accordance with the relevant
agreement, the other authorised
deposit-taking institution
transfers the dutiable property to
the natural person (the second
transaction).
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Act No. of 2022
Part 3 - Duties Act 2001 Further Amended s. 11
(6) No duty is chargeable under this Chapter
in respect of a transfer (the relevant
transfer), of an interest, held by an
authorised deposit-taking institution in
accordance with an agreement referred to
in subsection (2), (3) or (5), if -
(a) before the agreement has been
completed, a natural person,
referred to in subsection (2), (3)
or (5), respectively, who held an
interest under the agreement, has
died; and
(b) the relevant transfer is made to
another natural person, to whom
the interest, under the agreement,
of the natural person has been
transferred by virtue of -
(i) a testamentary gift; or
(ii) the right of survivorship;
or
(iii) the Administration and
Probate Act 1935.
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Act No. of 2022
s. 12 Part 4 - Concluding Provision
PART 4 - CONCLUDING PROVISION
12. Repeal of Act
This Act is repealed on the first anniversary of
the day on which the last uncommenced
provision of this Act commenced.