Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
State Taxation Acts Further
Amendment Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill amends the Duties Act 2000--
· to clarify duty on sub-sales of land;
· to clarify the duty exemption for transfers to and from trustees
and nominees;
· to lower the age for eligibility for the equity release program
exemption;
· to provide for the registration of approved agents for the
purposes of Part 4 of Chapter 10 of that Act and Part 6 of the
Livestock Disease Control Act 1994.
The First Home Owner Grant Act 2000 is amended--
· to provide for the administration of the First Home Owners
Boost;
· to enable the Commissioner to vary or reverse a decision in
relation to an application in certain circumstances despite
5 years having passed since the decision was made;
· to clarify that applicants may object to the imposition of
penalties imposed under that Act;
· to strengthen the protection of confidential information under
that Act.
The Livestock Disease Control Act 1994 is amended--
· to substitute references to the Stamps Act 1958 with
references to the Duties Act 2000;
· to repeal the requirement to affix duty stamps;
561236 1 BILL LA INTRODUCTION 29/10/2008
· to clarify requirements in relation to statements and invoices;
· to enable infringement notices to be issued in relation to certain
offences.
The Taxation Administration Act 1997 is amended to permit the disclosure
of information to the Business Licensing Authority, the Roads Corporations
and the Secretary to the Department of Primary Industries.
Clause Notes
PART 1--PRELIMINARY
Part 1 of the Bill outlines the purposes of the Bill and contains the
commencement provisions.
Clause 1 outlines the purposes of the Bill.
Clause 2 Subclause (1) provides that the proposed Act comes into
operation on the day after the day on which it receives the Royal
Assent, except--
· subclause (2) provides that Division 1 of Part 3 is
deemed to have come into operation on 14 October
2008. This Division provides for the administration of
the First Home Owners Boost;
· subclause (3) provides that Division 3 of Part 2 (other
than section 11(3)) and Division 1 of Part 4 come into
operation on 1 January 2009. This is because these are
measures that relate to improvements for the
administration of livestock duties which will be
implemented on the designated start date;
· subclause (4) provides that Division 2 of Part 4 comes
into operation on 1 July 2009. This is because it relates
to the abolition of livestock duty stamps for the end of a
financial year;
· subclause (5) provides that section 11(3) of Division 3
of Part 2, and Division 3 of Part 4 come into operation
on a day or days to be proclaimed. This is because they
relate to swine duty sections in the Livestock Disease
Control Act 1994 which have not yet been proclaimed
and have no default commencement date. When the
Stamps Act 1958 was repealed by the Duties Act 2000,
provisions for the imposition of swine duty were
retained on the assumption that, when the relevant
2
provisions in the Livestock Disease Control Act 1994
were proclaimed, collection of swine duty could
immediately continue again.
PART 2--DUTIES ACT 2000
Part 2 of the Bill makes a range of amendments to the Duties Act 2000.
Division 1--Sub-sales
Clause 3 inserts new definitions, and amends existing definitions, in
Division 1 (section 32A) of Part 4A of Chapter 2 of the Duties
Act 2000.
Clause 3(1) inserts a definition of excluded costs into Division 1
which applies to all of Part 4A. Clause 3(1), combined with
clause 4(3) results in the removal of the definition of excluded
costs from section 32B(4). Clause 3(1) also allows a number of
lengthy subsections in Divisions 2, 3 and 4 to be repealed.
New definitions of the terms first purchaser, subsequent
purchaser, subsequent transaction and transfer right have also
been inserted into Division 1.
Clause 3(2) makes a minor consequential amendment to the
definition of option due to the amendments made by clause 3(1).
Clause 3(3) inserts a new section 32A(2) which specifies how to
determine the interest acquired by a subsequent purchaser under a
subsequent transaction in the case of a fractional sub-sale.
Example
· X and Y enter into a sale contract to acquire land in
Victoria as tenants in common in equal shares, but prior
to settlement X pays Y (or Y's associate) additional
consideration so that X is entitled to a 90% interest in
the land on settlement. The transfer of land instrument
specifies X and Y are to hold the land as tenants in
common in the proportions 90% as to 10% respectively.
X (who had a transfer right under the sale contract)
increases its transfer right. Section 32A(2)(a) specifies
that in these circumstances X is a subsequent purchaser
to the extent of its increased transfer right (i.e. 40%).
· X enters into a sale contract to acquire land in Victoria.
Prior to settlement Y pays X (or X's associate)
additional consideration so that Y is entitled to a 50%
interest in the land on settlement. In this case, X has
3
retained its transfer right, and Y has obtained a transfer
right. Section 32A(2)(b) specifies that Y is a
subsequent purchaser to the extent of the transfer right it
obtained (i.e. 50%).
Section 32A(2) is relevant to the new definition of subsequent
purchaser inserted into section 32B, section 32I and section 32P.
Clause 4 makes various amendments to Division 2 of Part 4A of Chapter 2
of the Duties Act 2000.
Clause 4(1) inserts a new definition of subsequent purchaser in
section 32B(1)(b). The definition clarifies that a subsequent
purchaser is not only a person other than the first purchaser, but
can also be the first purchaser and a person other than the first
purchaser. If there is more than one first purchaser, a subsequent
purchaser can also be one or more of the first purchasers in
different proportions from those in the sale contract. This is
relevant to fractional sub-sales.
To determine the interest acquired by a subsequent purchaser
under a subsequent transaction in the case of a fractional sub-
sale, refer to section 32A(2).
Clause 4(2) makes a consequential amendment to section
32B(1)(c) due to the amendment made by clause 4(1) to
section 32B(1)(b).
Clause 4(3) provides that, when determining whether additional
consideration was paid for a transfer right, the consideration
given or agreed to be given by the subsequent purchaser or an
associate of the subsequent purchaser in order to obtain the
transfer right does not include the reimbursement of excluded
costs or any increase in consideration that arises because of the
operation of section 32V. This clause also repeals the definition
of excluded costs which now appears in section 32A.
Clause 4(4) substitutes new section 32C(1)(b) and (c) in place of
the existing section 32C(1)(b). Paragraphs (b) and (c) clarify that
if Division 2 applies to a transfer, duty is separately and distinctly
chargeable on the dutiable value of the subsequent transaction by
which the final subsequent purchaser obtained its transfer right,
and, if there are any other subsequent transactions, on the
dutiable value of each of those subsequent transactions.
Clause 4(5) inserts new sections 32C(3) and (4).
New subsection (3) provides an exclusion from duty on the sale
contract or a subsequent transaction (as the case may be) if a
subsequent purchaser or an associate of the subsequent purchaser
has not given, or agreed to give, additional consideration in order
4
to obtain its transfer right. In the case of serial subsequent
transactions, if the first purchaser or a subsequent purchaser has
not received additional consideration from a later subsequent
purchaser, they may still be liable for duty on the sale contract or
subsequent transaction by which they obtained their transfer
right. The underlying policy of Part 4A is that additional
consideration is the principal indicator of a sub-sale. Therefore
the purpose of this amendment is to clarify that duty is only
imposed if additional consideration has been received by the first
purchaser or relevant subsequent purchaser. The exclusion from
duty in the case of a subsequent transaction only applies to the
extent of the transfer right obtained by the subsequent purchaser
under the subsequent transaction. This is relevant for fractional
sub-sales.
New subsection (4) clarifies that the exemption only applies in
relation to a subsequent transaction where a subsequent purchaser
obtained a transfer right from another subsequent purchaser.
Clause 4(6) amends section 32D(2) by inserting new subsections
(2) and (3).
New subsection (2) sets out how to determine the dutiable value
of a subsequent transaction referred to in section 32C(1)(b) or (c).
When determining the consideration given in respect of a
subsequent transaction, subsection (2)(a) specifies that the
consideration does not include excluded costs (now defined in
section 32A) and any increase in consideration that arises
because of the operation of section 32V.
New subsection (3) specifies that if a subsequent purchaser
obtains a transfer right in the circumstances specified in section
32A(2) (which relates to fractional sub-sales), the value of the
subsequent transaction for the purposes of subsection (2)(b) is to
be calculated only to the extent of the transfer right obtained by
the subsequent purchaser under that subsequent transaction.
Clause 4(7) inserts new sections 32F(1)(b) and (c) in place of the
existing section 32F(1)(b). Paragraph (b) provides that the duty
referred to in section 32C(1)(b) in respect of the final subsequent
transaction is payable by the final subsequent purchaser.
Paragraph (c) provides that the duty referred to in section
32C(1)(c) in respect of any other subsequent transactions is
payable by the subsequent purchaser who obtains a transfer right
under the relevant subsequent transaction.
Clause 4(8) amends section 32G(3) and (4), the effect of which is
that the exemptions and concessions contained in Chapter 2 of
the Duties Act are available in respect of the duty chargeable
under section 32C(1)(b) or (c).
5
Clause 4(9) repeals section 32H of the Duties Act 2000.
Section 32H was intended to ensure that double duty was not
charged on a transfer in certain circumstances. This function is
now performed by other provisions (see sections 32J and 32Q as
amended).
Clause 5 makes various amendments to Division 3 of Part 4A of Chapter 2
of the Duties Act 2000.
Clause 5(1) inserts a new definition of subsequent purchaser
in section 32I(1)(b). The definition clarifies that a subsequent
purchaser is not only a person other than the first purchaser, but
can also be the first purchaser and a person other than the first
purchaser. If there is more than one first purchaser, a subsequent
purchaser can also be one or more of the first purchasers in
different proportions from those in the sale contract. This is
relevant to fractional sub-sales.
To determine the interest acquired by a subsequent purchaser
under a subsequent transaction in the case of a fractional sub-
sale, refer to section 32A(2).
Clause 5(2) substitutes new section 32J(1)(b) and (c) in place of
the existing section 32J(1)(b). Paragraphs (b) and (c) clarify that
if Division 3 applies to a transfer, duty is separately and distinctly
chargeable on the dutiable value of the subsequent transaction by
which the final subsequent purchaser obtained its transfer right,
and, if there are any other subsequent transactions, on the
dutiable value of each of those subsequent transactions.
Clause 5(3) inserts a new section 32J(3)(c) which provides that,
despite subsection (1), duty is not charged under Division 3 on
the dutiable value of a sale contract if duty is charged on the sale
contract under Division 2. This amendment ensures that if duty
is charged on the sale contract under Division 2, duty cannot also
be charged on the sale contract under Division 3. It reflects the
underlying policy of Part 4A (i.e. that additional consideration is
the principal indicator of a sub-sale) by ensuring that if both
additional consideration and land development is present in
relation to a transfer, duty will be imposed on the sale contract
under Division 2.
Clause 5(4) amends section 32J(5) of the Duties Act 2000.
The amendment made by paragraph (a) of clause 5(4) clarifies
that the exclusions provided by section 32J(5) only apply to serial
subsequent transactions, and do not apply to the final subsequent
transaction (or if there are no serial subsequent transactions, it is
not available for the only (i.e. the final) subsequent transaction).
6
The amendment made by paragraph (b) clarifies that an exclusion
from duty on a subsequent transaction is available where land
development did not occur before the subsequent purchaser
obtained a transfer right. It also inserts a new section 32J(5)(c)
which provides that, despite subsection (1), duty is not charged
under Division 3 on the dutiable value of a subsequent
transaction referred to in subsection (1)(c) if duty is charged on
the subsequent transaction under Division 2. This amendment
ensures that if duty is charged on the subsequent transaction
under Division 2, duty cannot also be charged on the subsequent
transaction under Division 3. It reflects the underlying policy of
Part 4A (i.e. that additional consideration is the principal
indicator of a sub-sale) by ensuring that if both additional
consideration and land development is present in relation to a
subsequent transaction, duty will be imposed under Division 2.
Clause 5(5) inserts a new section 32J(6) which qualifies section
32J(5)(a). This qualification is similar to that provided by section
32J(4) in respect of the exclusion available on the sale contract.
Section 32J(6) provides that section 32J(5)(a) does not apply if
the subsequent purchaser who is the transferor of the transfer
right or an associate of that subsequent purchaser undertook or
participated in the land development at any time before the next
subsequent purchaser held a transfer right.
Clause 5(6) amends section 32K(2) by inserting new subsections
(2) and (3).
New subsection (2) sets out how to determine the dutiable value
of a subsequent transaction referred to in section 32J(1)(b) or (c).
When determining the consideration given in respect of a
subsequent transaction, subsection (2)(a) specifies that the
consideration does not include excluded costs (now defined in
section 32A) and any increase in consideration that arises
because of the operation of section 32V.
New subsection (3) specifies that if a subsequent purchaser
obtains a transfer right in the circumstances specified in section
32A(2) (which relates to fractional sub-sales), the value of the
subsequent transaction for the purposes of subsection (2)(b) is to
be calculated only to the extent of the transfer right obtained by
the subsequent purchaser under that subsequent transaction.
Clause 5(7) inserts new sections 32M(1)(b) and (c) in place of the
existing section 32M(1)(b). Paragraph (b) provides that the duty
referred to in section 32J(1)(b) in respect of the final subsequent
transaction is payable by the final subsequent purchaser.
Paragraph (c) provides that the duty referred to in section
32J(1)(c) in respect of any other subsequent transactions is
7
payable by the subsequent purchaser who obtains a transfer right
under the relevant subsequent transaction.
Clause 5(8) amends section 32N(3) and (4), the effect of which is
that the exemptions and concessions contained in Chapter 2 of
the Duties Act are available in respect of the duty chargeable
under section 32J(1)(b) or (c).
Clause 5(9) repeals section 32O of the Duties Act 2000.
Section 32O was intended to ensure that double duty was not
charged on a transfer in certain circumstances. This function is
now performed by other provisions (see sections 32J and 32Q as
amended).
Clause 6 makes various amendments to Division 4 of Part 4A of Chapter 2
of the Duties Act 2000.
Clause 6(1) inserts a new definition of subsequent purchaser in
section 32P(1)(b). The definition clarifies that a subsequent
purchaser is not only a person other than the first purchaser, but
can also be the first purchaser and a person other than the first
purchaser. If there is more than one first purchaser a subsequent
purchaser can also be one or more of the first purchasers in
different proportions from those in the sale contract. This is
relevant to fractional sub-sales.
To determine the interest acquired by a subsequent purchaser
under a subsequent transaction in the case of a fractional sub-
sale, refer to section 32A(2).
Clause 6(2) substitutes new section 32Q(1)(b) and (c) in place of
the existing section 32Q(1)(b). Paragraphs (b) and (c) clarify that
if Division 4 applies to a transfer, duty is separately and distinctly
chargeable on the dutiable value of the subsequent transaction by
which the final subsequent purchaser obtained its transfer right,
and, if there are any other subsequent transactions, on the
dutiable value of each of those subsequent transactions.
Clause 6(3) amends section 32Q(5) of the Duties Act 2000.
The amendment made by paragraph (a) of clause 6(3) clarifies
that the exclusions provided by section 32Q(5) only apply to
serial subsequent transactions, and do not apply to the final
subsequent transaction (or if there are no serial subsequent
transactions, it is not available for the only (i.e. the final)
subsequent transaction).
8
The amendment made by paragraph (b) clarifies that an
exclusion from duty on a subsequent transaction is available
where land development did not occur before the subsequent
purchaser obtained a transfer right. It also inserts a new section
32Q(5)(c) which provides that, despite subsection (1), duty is not
charged under Division 4 on the dutiable value of a subsequent
transaction referred to in subsection (1)(c) if duty is charged
on the subsequent transaction under Division 2 or 3.
This amendment ensures that if duty is charged on the subsequent
transaction under Division 2 or 3, duty cannot also be charged on
the subsequent transaction under Division 4.
Clause 6(4) inserts a new section 32Q(6) which qualifies section
32Q(5)(a). This qualification is similar to that provided by
section 32Q(4) in respect of the exclusion available on the sale
contract. Section 32Q(6) provides that section 32Q(5)(a) does
not apply if the subsequent purchaser (who is the transferor of the
transfer right) or an associate of that subsequent purchaser
undertook or participated in the land development at any time
before the next subsequent purchaser held a transfer right.
Clause 6(5) amends section 32R(2) by inserting new subsections
(2) and (3).
New subsection (2) sets out how to determine the dutiable value
of a subsequent transaction referred to in section 32Q(1)(b)
or (c). When determining the consideration given in respect of a
subsequent transaction, subsection (2)(a) specifies that the
consideration does not include excluded costs (now defined in
section 32A) and any increase in consideration that arises
because of the operation of section 32V.
New subsection (3) specifies that if a subsequent purchaser
obtains a transfer right in the circumstances specified in section
32A(2) (which relates to fractional sub-sales) the value of the
subsequent transaction for the purposes of subsection (2)(b) is to
be calculated only to the extent of the transfer right obtained by
the subsequent purchaser under that subsequent transaction.
Clause 6(6) inserts new sections 32T(1)(b) and (c) in place of the
existing section 32T(1)(b). Paragraph (b) provides that the duty
referred to in section 32Q(1)(b) in respect of the final subsequent
transaction is payable by the final subsequent purchaser.
Paragraph (c) provides that the duty referred to in section
32Q(1)(c) in respect of any other subsequent transaction is
payable by the subsequent purchaser who obtains a transfer right
under the relevant subsequent transaction.
9
Clause 6(7) amends section 32U(3) and (4), the effect of which is
that the exemptions and concessions contained in Chapter 2 of
the Duties Act are available in respect of the duty chargeable
under section 32Q(1)(b) or (c).
Clause 7 substitutes a new section 32W of the Duties Act 2000.
Section 32W provides an exemption in certain circumstances for
transfers between relatives. If a first purchaser nominates a
relative, the first purchaser is not intended to be liable for duty on
the sale contract, but the relative is intended to be liable for duty
on the subsequent transaction. Effectively this results in no duty
consequence for the first purchaser due to his or her nomination
of a relative.
The new section 32W clarifies the relationships between the
parties that must exist to enable the first purchaser or a
subsequent purchaser to obtain an exclusion from duty on the
sale contract or a subsequent transaction. Section 32W(2) also
specifies that the exclusion from duty is only available in respect
of a subsequent transaction referred to in section 32C(1)(c),
32J(1)(c) or 32Q(1)(c). Therefore the exclusion is only available
in respect of serial subsequent transactions, and is not available
for the final subsequent transaction (or, if there are not serial
subsequent transactions, it is not available for the only (i.e. the
final) subsequent transaction).
Division 2--Exemptions for trusts and equity release programs
Clause 8 Subclause 1 substitutes a new section 35(1) of the Duties Act
2000, which has been introduced to clarify the scope of this
exemption.
Section 35 is concerned only with transactions which arise in the
course of a property being placed into and removed out of, a bare
trust by the owner of the property ("the transferor"). Under this
bare trust arrangement, there must be no change in the beneficial
ownership and the transferor, as the beneficiary, must retain the
entire beneficial interest in the property.
Accordingly, subsection 1 clarifies that the exemption is
available only where--
· a transferor transfers their dutiable property to a trustee
or nominee, to hold on bare trust for the transferor; or
· the declaration of trust establishes the bare trust
relationship between the trustee or nominee and the
transferor; or
10
· the re-transfer of the dutiable property by the trustee or
nominee, back to the transferor is--
· to the transferor absolutely; and
· the bare trust relationship has been sustained
whilst the property was held on trust.
Example
Alistair owns Black Acre, but is going to work overseas for a
few years. While Alistair is away, he wants his solicitor, Eve,
to look after Black Acre in accordance with his instructions.
This arrangement would be exempt under section 35(1) as
follows--
· the transfer of the bare legal title to Black Acre by
Alistair to Eve, to hold on bare trust for Alistair (under
section 35(1)(a));
· the declaration of trust by Eve that she will hold Black
Acre on bare trust for Alistair (under section 35(1)(b));
· the re-transfer of the bare legal title to Black Acre from
Eve back to Alistair, when he returns to Australia (under
section 35(1)(c)) provided that--
· the transfer of Black Acre is to Alistair
absolutely (and not to Alistair to hold on trust for
someone else); and
· there has been no change in the beneficial
ownership of Black Acre whilst Eve has been
holding Black Acre on trust.
Subsection 2 is a technical amendment to section 35(3) by
removing a redundant reference to "marketable securities".
Clause 9 Section 55 of the Duties Act 2000 provides an exemption from
duty in respect of a transaction under an equity release program
that results in a change in beneficial ownership. An equity
release program is defined under the Duties Act 2000 and certain
criteria must be met for the exemption to apply, including a
requirement that the homeowner is 65 years or over. Clause 9
amends the definition of homeowner in section 55(4) Duties Act
2000 to reduce the age limit to 60 years or over.
11
Division 3--Miscellaneous duties
Clause 10 defines approved agent for the purposes of Chapter 10 of the
Duties Act 2000 to be a person registered as an approved agent
under section 248A.
Clause 11 makes consequential amendments to sections 241(b), 244(b) and
246(b) of the Duties Act 2000, to substitute the references to
sections 95(1)(a), 95(1A)(a) and 95(2)(a) of the Livestock
Disease Control Act 1994 with corresponding references to new
sections 95(1), 95A(1) and 95B(1) inserted by this Bill.
Clause 12 inserts a new Part 4 in Chapter 10 of the Duties Act 2000 after
Part 3 providing for the registration of approved agents and for a
register of approved agents.
The Duties Act 2000 and the Livestock Disease Control Act
1994 contain interdependent provisions for the administration of
livestock duties.
Section 248A(1) provides that the Commissioner, on the
recommendation of the Secretary, may register a livestock agent,
as defined in the Livestock Disease Control Act 1994, as an
approved agent for the purposes of Part 4 of the Duties Act 2000
and Part 6 of the Livestock Disease Control Act 1994.
Section 248A(2) provides that the Commissioner may, after
consulting the Secretary, revoke a registration made under
subsection (1).
Section 248A(3) provides that the Commissioner must assign a
number to every livestock agent registered as an approved agent.
Section 248A(4) defines Secretary for the purposes of section
248A to mean the Secretary to the Department of Primary
Industries.
Section 248B(1) provides that the Commissioner must keep a
register of approved agents, including every approved agent's
name and assigned number.
Section 248B(2)(a) provides that the Commissioner must make
the register of approved agents available on an Internet website
maintained by the Commissioner. The obligation on the
Commissioner to publish this information on the Internet will
ensure that potential and existing owners can access, at any time,
the names of approved agents who have been registered and who
contribute to the livestock Compensation Funds set up under the
Livestock Disease Control Act 1994. The livestock duties
collected by the State Revenue Office are paid into the
Compensation Funds managed by the Department of Primary
12
Industries. A claim may be made by the owners of livestock for
compensation out of these Funds for losses caused by livestock
disease, if evidence is shown to the satisfaction of the Secretary
of the Department of Primary Industries that duty has been paid
in respect of such livestock.
Publication on the Internet represents a more contemporary and
accessible equivalent to publication by Government Gazette and
means that the information on the register will be readily
available in one centralised depository, which will be updated
regularly.
Section 248B(2)(b) allows the Commissioner to make the same
information available to those who do not have access to the
Internet. This could be done, for example, by telephoning a toll
free number.
Division 4--Transitional provisions
Clause 13 inserts a new clause 28 in Schedule 2 to the Duties Act 2000
dealing with transitional provisions.
Clause 28(1) provides that Part 4A of Chapter 2, as amended by
Division 1 of Part 2 of the State Taxation Acts Further
Amendment Act 2008, applies to a transfer resulting from a sale
contract that was entered into, or an option that was granted, on
or after the commencement of that Division 1.
Clause 28(2) provides that Part 4A of Chapter 2, as in force
immediately before the commencement of Division 1 of Part 2
of the State Taxation Acts Further Amendment Act 2008,
continues to apply to a transfer resulting from a sale contract that
was entered into, or an option that was granted, before that
commencement.
Clause 28(3) confirms that the amendments to section 55 of the
Duties Act 2000 by section 9 of the State Taxation Acts
Further Amendment Act 2008 are retrospective, and apply to a
transaction taking place on or after 15 June 2005.
Clause 28(4) provides that a taxpayer is entitled to a refund of
any duty paid that is not payable because of subclause (3).
The effect of this is that if duty has already been paid on a
transaction which would now be exempt under section 55
because of the amendments made by section 9, the taxpayer is
entitled to a refund of duty.
13
Clause 28(5) deems a person who, immediately before 1 January
2009 was an approved agent under section 94 of the Livestock
Disease Control Act 1994 to be registered as an approved agent
under section 248A of the Duties Act 2000 on and after that day.
Clause 28(6) deems a number assigned by the Commissioner
under section 94 of the Livestock Disease Control Act 1994 to a
person who, immediately before 1 January 2009 was an approved
agent, to be the number assigned to the person for the purposes of
section 248A of the Duties Act 2000 on and after that day.
PART 3--FIRST HOME OWNER GRANT ACT 2000
Part 3 of the Bill makes a range of amendments to the First Home Owner
Grant Act 2000.
Division 1--First Home Owners Boost
Clause 14 inserts the new term special eligible transaction into section 3(1)
of the First Home Owner Grant Act 2000. The term is defined
by reference to section 13A.
Clause 15 inserts new section 13A into the First Home Owner Grant Act
2000. This section defines the type of transactions that will be
treated as a special eligible transaction.
A transaction which is an eligible transaction within the meaning
of section 13 of the First Home Owner Grant Act 2000 will
also be a special eligible transaction in the following
circumstances:
· if the eligible transaction is a contract for the purchase
of a home in the State (other than an off-the-plan
purchase) that is entered into on or after 14 October
2008 and on or before 30 June 2009;
· if the eligible transaction is a contract for the purchase
of a new residential premises in the State entered into on
or after 14 October 2008 and on or before 30 June 2009;
· if the eligible transaction is a comprehensive building
contract for a home entered into on or after 14 October
2008 and on or before 30 June 2009 in respect of
which--
· the construction work commences within
26 weeks from the date that the contract is
entered into or a longer period approved by the
Commissioner; and
14
· the building work is completed within 18 months
of the date of commencement of construction
work or a longer period approved by the
Commissioner;
· if the eligible transaction is for the building of a home in
the State by an owner builder and the construction work
commences on or after 14 October 2008 and is
completed within 18 months of the commencement of
the eligible transaction or a longer period approved by
the Commissioner;
· if the eligible transaction is a contract for an off-the-
plan purchase of a home in the State entered into on or
after 14 October 2008 and on or before 30 June 2009,
provided that the construction work is completed by
31 December 2010, or a later date approved by the
Commissioner.
The Commissioner's discretion to extend the construction work
time frames will be exercised in exceptional circumstances only.
A contract is not a special eligible transaction if the
Commissioner determines that the contract replaces a previous
contract entered into before 14 October 2008 which was a
contract for the purchase of the same home or a contract to build
the same or a substantially similar home.
A new residential premises is defined in section 13A as having
the same meaning as in section 40-75 of the A New Tax System
(Goods and Service Tax) Act 1999 of the Commonwealth.
The requirements of an eligible transaction prescribed in
section 13 of the First Home Owner Grant Act 2000, including
the date on which an eligible transaction commences and the date
it is completed, apply equally to an eligible transaction that
satisfies the definition of a special eligible transaction.
Clause 16 inserts new subsections (7) and (7A) into the First Home Owner
Grant Act 2000.
New subection (7) provides that if an eligible transaction is also a
special eligible transaction within the meaning of section 13A, an
additional amount is payable.
If the special eligible transaction is a contract for the purchase of
an existing home, the additional amount payable is $7000.
15
If the special eligible transaction is a one to which section
13A(1)(b), 13A(1)(c), 13A(1)(d) or 13A(1)(e) applies, and
provided the property has not been occupied as a residence since
it was constructed, renovated or refurbished, the additional
amount payable is $14 000.
New subsection (7A) provides that if an additional amount is
payable, the total amount payable in respect of the special
eligible transaction, including any amounts payable under
subsection (2) and subsection (7), must not exceed the
consideration for the transaction.
Division 2--General amendments
Clause 17 substitutes "taxing law" with "taxing Act" to achieve consistency
with the terminology used in the Victorian Civil Administrative
Tribunal Act 1998.
Clause 18 amends section 23(2) of the First Home Owner Grant Act 2000
to qualify the five year retrospectivity period imposed by
section 23.
The amended provision allows the Commissioner to vary or
reverse a decision to pay the first home owner grant more than
five years after the date of the original decision where an
applicant has not made a full and true disclosure of all the facts
relevant to his or her application. This lessens the possibility of
an applicant profiting from dishonesty and protects the public
revenue.
Clause 19 substitutes section 26(1) of the First Home Owner Grant Act
2000, which provides applicants and former applicants for the
first home owner grant with objection rights. The new provision
refers specifically to the right to lodge a written objection to the
imposition of a penalty under section 48 of the First Home
Owner Grant Act 2000. This extends the existing right to
object to the Commissioner's decision on an application for the
first home owner grant, including a decision to vary or reverse an
earlier decision.
Subsection 26(5) is amended to refer to former applicants in
addition to applicants. This confirms that the section 26
objection rights are afforded to both past and present applicants
for the first home owner grant.
16
Clause 20 amends section 50(4)(c) of the First Home Owner Grant Act
2000 to limit the disclosure of applicants' protected information
to legal proceedings that arise under a taxation law or the First
Home Owner Grant Act 2000 and to reports of those
proceedings.
Clause 21 inserts new sections 50A and 50B into the First Home Owner
Grant Act 2000. These sections further limit the disclosure of
protected information.
Section 50A Prohibition on secondary disclosures of
information
Information which is disclosed in the circumstances prescribed
by section 50 of the Act remains subject to a duty of
confidentiality. Section 50A prescribes the permitted
circumstances for secondary disclosures of protected information.
Subsection 50A(1) provides that the secondary disclosure of
protected information is permitted only where necessary to
enable a person to exercise a function conferred on the person by
law for the purposes of the enforcement of a law or protection of
the public revenue. Disclosure in these circumstances is subject
to the Commissioner's consent.
Consistent with the penalties imposed under section 50 for the
disclosure of protected information, section 50A imposes a
penalty of 60 units for secondary disclosures of protected
information.
Subsection 50A(2) confirms that the protected information which
is subject to the privacy provisions of the First Home Owner
Grant Act 2000 is exempted from disclosure under section 38 of
the Freedom of Information Act 1982.
Section 50B Further restrictions on disclosure
Section 50B prescribes that a person who is or has been involved
in the administration of the First Home Owner Grant Act 2000
cannot be required to disclose or produce in court any protected
information under the First Home Owner Grant Act 2000,
except where necessary for the administration or execution of the
First Home Owner Grant Act 2000 or to exercise a function
conferred on that person by law.
17
PART 4--LIVESTOCK DISEASE CONTROL ACT 1994
Part 4 of the Bill makes a range of amendments to the Livestock Disease
Control Act 1994.
Division 1--Amendments to commence on 1 January 2009
Clause 22 makes consequential amendments to section 2(3) of the
Livestock Disease Control Act 1994, which provides for the
commencement of certain sections of that Act. Clause 19 omits
references to sections 95(2) and 95(6) of the Livestock Disease
Control Act 1994 which require the furnishing of returns and
payment of duty on the sale or purchase of pigs but have not yet
been proclaimed. They will be replaced by the new section 95B
inserted by clause 32 of this Bill, which will commence on a day
to be proclaimed.
Additionally, clause 19 replaces the references to subsections
92(2), 93(2) and (4) with references to sections 92(2), 93(2)
and 93(4).
Clause 23 defines approved agent to mean a livestock agent registered as an
approved agent under section 248A of the Duties Act 2000 and
livestock agent to mean a person carrying on a business as a
stock and station agent, an abattoir operator, a feedlot operator, a
cattle scale operator, a calf dealer or a business dealing with the
buying or selling of livestock or the carcases of livestock.
Clause 24 makes consequential amendments to sections 71(2)(a), 76(c),
79A(2)(a), 79F(c), 80(2)(a) and 84(c) of the Livestock Disease
Control Act 1994 to omit the word "stamp" and to substitute the
reference to the "Stamps Act 1958" with the "Duties Act 2000".
Clause 25 repeals section 94 of the Livestock Disease Control Act 1994.
The provisions replacing section 94, (other than section 94(4)
which deals with publication in the Government Gazette and is
replaced by provisions requiring publication on the Internet), are
inserted into the Duties Act 2000 by clause 12 of this Bill.
Clause 26 inserts new sections 95 and 95A into the Livestock Disease
Control Act 1994. Sections 95 and 95A are identical except
section 95 relates to cattle and section 95A relates to sheep and
goats.
Cattle:
Subsection 95(1) requires an approved agent to furnish a nil
return to the Commissioner of State Revenue no later than the
21st day of each month if, during the last preceding month there
has been no sale or purchase of cattle, calves and carcases of
18
cattle. In any other case, an approved agent must, no later than
the 21st day of each month, furnish a return or returns of sales or
purchases during the last preceding month, in the prescribed
form, verified in the prescribed manner and denoted by cash
register imprint with the duty paid by the approved agent.
A penalty up to a maximum of 5 penalty units (currently
$567.10) may apply if an approved agent contravenes this
requirement.
Subsection 95(2) requires an approved agent to pay to the
Commissioner as cattle duty on any return the duty chargeable
under the Duties Act 2000 no later than the 21st day of each
month.
A penalty up to a maximum of 5 penalty units plus a penalty
equal to double the amount of duty that would have been payable
may be imposed if an approved agent contravenes this
requirement.
Subsection 95(3) requires an approved agent to keep or cause to
be kept in Victoria sufficient books to enable the agent to
calculate accurately the amounts which are to be set out in
returns.
A penalty up to a maximum of 5 penalty units may be imposed if
an approved agent contravenes this requirement.
Subsection 95(4) requires an approved agent to keep the books,
records and all working papers used in making the calculations
available for inspection for at least 3 years from the month to
which each return relates, or for such other period as the
Commissioner determines in any particular case.
A penalty up to a maximum of 5 penalty units may be imposed if
an approved agent contravenes this requirement.
Subsection 95(5) requires an approved agent to issue an invoice
to a purchaser of cattle, calves and carcases of cattle that sets out
the registration number assigned to the approved agent, the
amount of duty paid, the expression "Vic. Cattle Duty Paid" and
any prescribed particulars.
A penalty up to a maximum of 5 penalty units may be imposed if
an approved agent contravenes these requirements.
Subsection 95(6) requires a purchaser referred to in subsection
(5) to keep the invoice issued to them for at least 3 years.
19
Subsection 95(7) provides that an approved agent who purchases
cattle, calves or cattle carcases on the approved agent's own
behalf, must issue a statement that sets out the registration
number assigned to the approved agent, the amount of duty paid,
the expression "Vic. Cattle Duty Paid" and any prescribed
particulars to the seller.
A penalty of up to a maximum of 5 penalty units may be imposed
if an approved agent contravenes these requirements.
Subsection 95(8) requires a seller referred to in subsection (7) to
keep the statement for at least 3 years.
Sheep and Goats:
Subsection 95A(1) requires an approved agent to furnish a nil
return to the Commissioner of State Revenue no later than the
21st day of each month if, during the last preceding month there
has been no sale or purchase of sheep and goats and carcases of
sheep and goats. In any other case, an approved agent must, no
later than the 21st day of each month, furnish a return or returns
of sales or purchases during the last preceding month, in the
prescribed form, verified in the prescribed manner and denoted
by cash register imprint with the duty paid by the approved agent.
A penalty up to a maximum of 5 penalty units may apply if an
approved agent contravenes these requirements.
Subsection 95A(2) requires an approved agent to pay to the
Commissioner as sheep and goat duty on any return the duty
chargeable under the Duties Act 2000 no later than the 21st day
of each month.
A penalty up to a maximum of 5 penalty units plus a penalty
equal to double the amount of duty that would have been payable
may be imposed if an approved agent contravenes this
requirement.
Subsection 95A(3) provides that an approved agent must keep or
cause to be kept in Victoria sufficient books to enable the agent
to calculate accurately the amounts which are to be set out in
returns.
A penalty up to a maximum of 5 penalty units may be imposed if
an approved agent contravenes this requirement.
Subsection 95A(4) requires an approved agent to keep the books,
records and all working papers used in making the calculations
available for inspection for at least 3 years from the month to
which each return relates, or for such other period as the
Commissioner determines in any particular case.
20
A penalty up to a maximum of 5 penalty units may be imposed if
an approved agent contravenes this requirement.
Subsection 95A(5) requires an approved agent to issue an invoice
to a purchaser of sheep and goats and carcases of sheep and goats
that sets out the registration number assigned to the approved
agent, the amount of duty paid, the expression "Vic. Sheep and
Goat Duty Paid" and any prescribed particulars.
A penalty up to a maximum of 5 penalty units may be imposed if
an approved agent contravenes this requirement.
Subsection 95A(6) requires a purchaser referred to in subsection
(5) to keep the invoice issued to them for at least 3 years.
Subsection 95A(7) provides that an approved agent who
purchases sheep and goats or the carcases of sheep and goats on
the approved agent's own behalf must issue a statement that sets
out the registration number assigned to the approved agent, the
amount of duty paid, the expression "Vic. Sheep and Goat Duty
Paid" and any prescribed particulars to the seller.
A penalty of up to a maximum of 5 penalty units may be imposed
if an approved agent contravenes this requirement.
Subsection 95A(8) requires a seller referred to in subsection (7)
to keep the statement for at least 3 years.
Clause 27 repeals section 96(1) of the Livestock Disease Control Act
1994. The offences created by section 96(1) have been inserted
by clauses 23 and 32 of this Bill into the new sections 95, 95A
and 95B.
Clause 28 makes consequential amendments to sections 96A(1) and 96A(2)
of the Livestock Disease Control Act 1994, which provide that
the Governor in Council may from time to time suspend the
requirement to pay duty in respect of sheep and goats. Clause 25
replaces the references to section 95(1A) with references to new
sections 95A(1) and 95A(2).
Clause 29 amends section 126 of the Livestock Disease Control Act 1994
which provides for the service of an infringement notice on
persons who have committed an offence against certain sections
of that Act by also inserting references to new sections 95(1) and
95A(1) which require approved agents to furnish monthly returns
of the sales or purchases of cattle or sheep and goats,
respectively.
Clause 30 repeals sections 140 and 141 of the Livestock Disease Control
Act 1994 as these are spent provisions.
21
Division 2--Amendments to commence on 1 January 2009
Clause 31 makes consequential amendments to section 2(3) of the
Livestock Disease Control Act 1994, which provides for the
commencement of certain sections of that Act. Clause 28 omits
references to sections 93(2) and 93(4) of the Livestock Disease
Control Act 1994 which provide that the duty chargeable in
respect of swine must be denoted by swine duty stamps issued by
the Commissioner of State Revenue. Swine duty stamps will be
abolished by clause 29 and 30 of this Bill, which will commence
on 1 July 2009.
Clause 32 Subclause (1) makes consequential amendments to sections
92(1)(a), 92(1A)(a) and 92(2)(a) of the Livestock Disease
Control Act 1994, to provide that an owner of livestock, or his
or her agent, upon the sale of livestock, must write out or cause to
be written out a statement which sets out amongst other things,
the amount of duty paid to the Commissioner of State Revenue
under the Duties Act 2000.
Subclause (2) repeals sections 92(1)(b), 92(1A)(b) and 92(2)(b)
of the Livestock Disease Control Act 1994.
Clause 33 repeals section 93 of the Livestock Disease Control Act 1994.
Clause 34 omits the requirement to denote by cash register imprint the duty
paid by an approved agent in the new sections 95(1)(b) and
95A(1)(b) inserted by clause 23 of this Bill.
Division 3--Amendments to commence on proclamation
Clause 35 inserts new section 95B into the Livestock Disease Control Act
1994. Section 95B is identical to the new sections 95 and 95A
except that section 95B relates to pigs.
Subsection 95B(1) requires an approved agent to furnish a nil
return to the Commissioner of State Revenue no later than the
21st day of each month if, during the last preceding month there
has been no sale or purchase of pigs and the carcases of pigs.
In any other case, an approved agent must, no later than the
21st day of each month, furnish a return or returns of sales or
purchases during the last preceding month, in the prescribed form
and verified in the prescribed manner.
A penalty up to a maximum of 5 penalty units may apply if an
approved agent contravenes these requirements.
22
Subsection 95B(2) requires an approved agent to pay to the
Commissioner as swine duty on any return the duty chargeable
under the Duties Act 2000 no later than the 21st day of each
month.
A penalty up to a maximum of 5 penalty units plus a penalty
equal to double the amount of duty that would have been payable
may be imposed if an approved agent contravenes this
requirement.
Subsection 95B(3) provides that an approved agent must keep or
cause to be kept in Victoria sufficient books to enable the agent
to calculate accurately the amounts which are to be set out in
returns.
A penalty up to a maximum of 5 penalty units may be imposed if
an approved agent contravenes this requirement.
Subsection 95B(4) provides that an approved agent must keep the
books, records and all working papers used in making the
calculations available for inspection for at least 3 years from the
month to which each return relates, or for such other period as the
Commissioner determines in any particular case.
A penalty up to a maximum of 5 penalty units may be imposed if
an approved agent contravenes this requirement.
Subsection 95B(5) requires an approved agent to issue an invoice
to a purchaser that sets out the registration number assigned to
the approved agent, the amount of duty paid, the expression
"Vic. Swine Duty Paid" and any prescribed particulars.
A penalty up to a maximum of 5 penalty units may be imposed if
an approved agent contravenes this requirement.
Subsection 95B(6) requires a purchaser referred to in subsection
(5) to keep the invoice issued to them for at least 3 years.
Subsection 95B(7) requires an approved agent who purchases
pigs or the carcases of pigs on the approved agent's own behalf,
must issue a statement that sets out the registration number
assigned to the approved agent, the amount of duty paid, the
expression "Vic. Swine Duty Paid" and any prescribed particulars
to the seller.
A penalty of up to a maximum of 5 penalty units may be imposed
if an approved agent contravenes this requirement.
Subsection 95B(8) requires a seller referred to in subsection (7)
to keep the statement for at least 3 years.
23
Clause 36 amends section 126 of the Livestock Disease Control Act 1994
which provides for the service of an infringement notice on
persons who have committed an offence against certain sections
of that Act by also inserting a reference to new section 95B(1)
which requires approved agents to furnish monthly returns of the
sales or purchases of pigs.
PART 5--TAXATION ADMINISTRATION ACT 1997
Clause 37 inserts sub-paragraphs (vaa), (ve) and (vf) into section 92(1)(e)
of the Taxation Administration Act 1997. The new
subparagraphs will permit a tax officer to disclose information
obtained under or in relation to a taxation law to the Business
Licensing Authority, the Roads Corporation and the Secretary to
the Department of Primary Industries.
Subparagraph (vaa) permits disclosure to the Business Licensing
Authority for the purpose of administering the Motor Car
Traders Act 1986 and regulations made under that Act.
The purpose of that Act is to protect consumers by regulating
how motor car traders conduct their business. This amendment
will allow a tax officer to disclose information obtained in the
administration of motor vehicle duty, which may assist the
Authority to protect consumers against losses in their dealings
with motor car traders. Motor vehicle duty is imposed by the
Duties Act which is a "taxation law" for the purposes of the
Taxation Administration Act 1997.
Subparagraph (ve) permits disclosure to the Roads Corporation
for the purpose of administering the Road Safety Act 1986 and
regulations made under that Act. For example from time to time
the Commissioner of State Revenue may establish that a person
has avoided the payment of motor vehicle duty by failing to
register, or register the transfer of, a motor vehicle.
This amendment will allow a tax officer to disclose that
information to the Roads Corporation.
Subparagraph (vf) permits disclosure to the Secretary to the
Department of Primary Industries for the purpose of
administering the Livestock Disease Act 1994 and the Duties
Act 2000 and regulations made under those Acts.
The Commissioner of State Revenue and Secretary to the
Department of Primary Industries share the administration of
livestock duty, and the Acts contain interdependent provisions
for this purpose. This amendment will allow a tax officer to
disclose information to the Secretary to the Department of
Primary Industries to assist in the administration of those
interdependent provisions.
24
PART 6--REPEAL OF AMENDING ACT
Clause 38 provides for the automatic repeal of this Act on the first
anniversary of the first day on which all its provisions are in
operation. The repeal of this Act does not affect in any way the
operation of the amendments made by this act (see section 15(1)
of the Interpretation of Legislation Act 1984).
25