2003

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Treasurer)

2003

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Treasurer)

An Act to amend the Duties Act 1999 and the Gaming Machine Act 1987

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Revenue Legislation Amendment Act 2003.

This Act commences on 1 July 2003.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This Act amends the Duties Act 1999.

(1) This section applies to a dutiable transaction if—

(a) by the transaction, property is—

(i) transferred (or agreed to be transferred) by a member of a group of corporations to another member of the same group; or

(ii) vested in a member of the group, if the property was owned immediately before the vesting by another member of the same group; and

(b) the transaction is approved by the commissioner in accordance with any guidelines determined under subsection (4).

(2) Duty for the transaction is payable at 5% of the amount that would, apart from this section, be payable for the transaction.

(3) An approval for subsection (1) (b) may be given subject to conditions.

(4) The Minister may, in writing, determine guidelines for approvals.

(5) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(6) In this section:

corporation includes a unit trust scheme.

(1) This section applies to the making of a relevant acquisition (the transaction) if—

(a) by the transaction, property is—

(i) transferred (or agreed to be transferred) by a member of a group of corporations to another member of the same group; or

(ii) vested in a member of the group, if the property was owned immediately before the vesting by another member of the same group; and

(b) the transaction is approved by the commissioner in accordance with any guidelines determined under subsection (4).

(2) Duty for the transaction is payable at 5% of the amount that would, apart from this section, be payable for the transaction.

(3) An approval for subsection (1) (b) may be given subject to conditions.

(4) The Minister may, in writing, determine guidelines for approvals.

(5) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(6) In this section:

corporation includes a unit trust scheme.

relevant acquisition—see section 86.

(1) This chapter applies to an instrument (a mortgage advance instrument) that evidences an advance secured by mortgage over property, or to 2 or more instruments (mortgage advance instruments) that, taken together, evidence an advance secured by mortgage over property, if—

(a) the commissioner is satisfied that the advance is for purposes that include a commercial purpose; and

(b) either—

(i) the amount of the advance is at least $1 000 000; or

(ii) the sum of the amount of the advance and the total amount of all outstanding advances that the commissioner is satisfied are for purposes that include a commercial purpose, and that are secured by mortgage over the property (or part of the property), is at least

$1 000 000.

(2) This chapter also applies to 2 or more instruments (mortgage advance instruments) that, taken together, evidence advances of separate amounts of money to 1 or more people, secured by mortgage, if—

(a) the commissioner is satisfied that the advances are for purposes that include a common commercial purpose; and

(b) either—

(i) the total amount of the advances is at least $1 000 000; or

(ii) the sum of the total amount of the advances and the total amount of all outstanding advances that the commissioner is satisfied are for purposes that include the common commercial purpose, and that are secured by mortgage, is at least $1 000 000.

A, B, C and D incorporate a company to build 2 town houses on a suburban block. They all do so with the intention of earning income from the company out of the project (a commercial purpose as defined in s 174E). A, B, C and D each individually own property in the ACT. To finance the company, they each take out a loan of $900 000 on the security of their individual ACT properties from different credit providers.

The commissioner may be satisfied that the loans (advances) have a common commercial purpose as defined in s 174F (that is, a particular commercial purpose in common), namely financing the building of the townhouses to produce income.

Because the total amount of the advances ($3 600 000) is at least $1 000 000, section 174 (2) applies to the advances.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) For subsection (2) (b) (ii)—

(a) the parties to the outstanding advances mentioned may or may not be parties to the advances evidenced by the mortgage advance instruments; and

(b) the outstanding advances mentioned may be secured by mortgage over properties that are different from the properties that are security for the advances evidenced by the mortgage advance instruments.

The outstanding advances may be between Lender 1 and Borrower 1, and

Lender 2 and Borrower 2, while the advances evidenced by the mortgage advance instrument may be between Lender 3 and Borrower 3 and Lender 4 and

Borrower 4.

The mortgage advance instruments may secure advances by mortgages over properties P1, P2 and P3. The outstanding advances may secure advances by mortgages over properties P4 and P5.

(4) If an advance to which this section applies is secured by a mortgage that is not registered under the Land Titles Act 1925, this chapter applies to a caveat under that Act in which an interest is claimed in the mortgaged property as if the caveat were an instrument evidencing the advance.

(5) In this section:

outstanding advance, in relation to a mortgage advance instrument or instruments, means the amount of an advance made on or after 1 July 2003 and before the execution of the instrument, or the earliest of the instruments, that had not been repaid at the liability day for the instrument or instruments.

mortgage includes 2 or more mortgages.

property includes 2 or more properties.

Note • mortgage is defined for this chapter in s 174C

• advance is defined for this chapter in s 174D

• commercial purpose is defined for this chapter in s 174E

• common commercial purpose is defined for this chapter in s 174F

• liability day is defined for this chapter in s 174I.

(1) If an advance to which section 174 applies is not made by a written instrument, a person who would be liable to pay duty under this chapter in relation to the advance if the advance were made by written instrument must make a written statement.

Note If a form is approved under the Taxation Administration Act, s 139C (Approved forms) for a statement, the form must be used.

(2) This chapter applies to the written statement as if it were a written instrument.

(3) The written statement must be made within 90 days after the day that would be the liability day if the advance had been made by a written instrument.

(4) If an advance is evidenced by a written instrument executed within 90 days after the day when the advance was made, the requirement to lodge a statement and pay duty in relation to the statement may be satisfied by the lodgment of and payment of duty on the written instrument within 90 days after the day when the advance was made.

This chapter does not prevent duty being payable on an instrument under another chapter of this Act.

(1) For this chapter, a mortgage, in relation to a mortgage advance instrument, is—

(a) a security by way of a charge over property that is located completely or partly in the ACT when the mortgage advance instrument is executed; or

(b) a security by way of transfer or conveyance of property that is located completely or partly in the ACT when the mortgage advance instrument is executed, if the property is held in trust to be sold or otherwise converted into money, if the security is redeemable (expressly or otherwise) before the sale or conversion; or

(c) a charge that is created and becomes a mortgage, or evidences a mortgage, on the deposit of documents of title to property that is located completely or partly in the ACT, or an instrument or instruments creating a charge on property that is located in the ACT, when the mortgage advance instrument is executed.

(2) However, a security mentioned in subsection (1) (b) is not a mortgage if the transfer or conveyance is made for the benefit of creditors who accept the transfer or conveyance in full satisfaction of debts owed to them.

(1) In this chapter:

advance means—

(a) a loan; or

(b) a bill facility; or

(c) a contingent liability to which section 174L applies.

(2) In this section:

bill facility means 1 or more agreements, understandings or arrangements as a consequence of which a bill of exchange or promissory note—

(a) is drawn, accepted, endorsed or made; and

(b) is held, negotiated or discounted to obtain funds (no matter whom the funds are obtained from).

loan means—

(a) an advance of money; or

(b) the payment of money for or on account of, or on behalf of, or at the request of, a person; or

(c) the refraining from requiring the payment of money owing on an account; or

(d) a transaction in any form that in substance effects a loan of money.

(1) For this chapter, an advance is for a purpose that includes a commercial purpose if the advance has as a purpose—

(a) gaining or producing income; or

(b) carrying on a business to gain or produce income.

(2) Without limiting subsection (1), an advance is taken to be for a purpose that includes a commercial purpose if interest on all or any part of the advance is deductible as a business expense under the Income Tax Assessment Act 1997 (Cwlth), section 8-1 (General deductions).

Section 1.01 an advance to acquire income-producing assets

Section 1.02 an advance to finance business operations

Section 1.03 an advance to meet business expenses

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) For this chapter, 2 or more advances are for purposes that include a common commercial purpose if the commissioner is satisfied that they have a particular commercial purpose in common.

(2) In deciding whether 2 or more advances have a particular commercial purpose in common, the commissioner may take into account considerations including the following:

(a) the nature of any business enterprise for which the advances are made;

(b) the nature of any other business enterprise in which any of the parties to the advances, or anyone for whose benefit the advances are made, have been, are or propose to be involved;

(c) whether any of the parties to any of the advances, or anyone for whose benefit the advances are made, are associated persons in relation to each other.

See example for section 174 (2).

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

For this chapter, property is taken to be located as follows:

(a) for property that is shares in, or securities of, a corporation—

(i) if the corporation is a company within the meaning of the Corporations Act—in the place where the company is taken to be registered for that Act; or

(ii) in any other case—in the place of incorporation of the corporation;

(b) for units in a unit trust scheme—

(i) in the place where the register on which the units are registered is kept; or

(ii) in the place of residence of the manager of the unit trust scheme, if the register on which the units is registered is not kept in Australia;

(c) for debt securities of the Territory or a government of a State or another Territory—in the Territory or State.

Duty payable on a mortgage advance instrument under this chapter is payable—

(a) if the instrument creates a mortgage—by the mortgagor; or

(b) if the instrument does not create a mortgage, and the advance is paid to the person executing the instrument (whether or not the advance is made for the benefit of the person)—by the person executing the instrument; or

(c) in any other case—by the person for whose benefit the advance is paid.

1 If the unregistered mortgage secures an advance for the benefit of the owner of the mortgaged property, any duty payable on the caveat as a mortgage advance instrument (see s 174 (3)) is payable by the owner of the property.

2 If A gives a guarantee to B to secure an advance by B for the benefit of C, any duty payable on the guarantee as a mortgage advance instrument (see s 174L (2)) is payable by C.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) In this chapter:

liability day means the day when liability for duty under this chapter arises because of this section.

(2) Liability for duty under this chapter arises on the day of execution of a mortgage advance instrument to which this chapter applies.

(3) If an instrument of security does not affect ACT property on the day of its execution, but affects land in the ACT at any time within 12 months after that day, any liability for duty under this chapter arises on the day the instrument first affects the land, unless it is stamped under a corresponding Act.

(4) If, on the deposit of documents of title to property that is located in the ACT or instruments creating a charge on property that is located in the ACT, an instrument or instruments become (or evidence) a mortgage, any liability for duty under this chapter arises on the day of deposit of the documents or instruments.

(5) If, because of section 174 (1) or (2), duty is payable in relation to 2 or more mortgage advance instruments, any liability for duty under this chapter arises on the day the latest instrument was executed.

There is no tax default for the Taxation Administration Act if duty is paid within 90 days after the liability day.

(1) Duty is payable on a mortgage advance instrument (other than a collateral instrument) to which this chapter applies at the determined rate, as worked out in accordance with whichever of subsection (2) or (3) applies.

(2) If there are no outstanding advances to which section 174 applies in relation to the instrument, or if the total amount of those outstanding advances is less than $1 000 000, the duty payable on the instrument must be worked out in accordance with the following formula:

duty payable = fixed duty + (D% of excess over $1 000 000)

A mortgage advance instrument to which this chapter applies evidences an advance of $900 000. There are outstanding advances totalling $200 000. The fixed duty is determined to be $2 000. D% is determined to be 0.2%. Duty payable on the instrument is $2 200, worked out as follows:

duty payable = $2 000 (fixed duty) + $200 (0.2% of $100 000)

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) If the total amount of outstanding advances to which section 174 applies in relation to the instrument is $1 000 000 or more, the duty payable on the instrument must be worked out in accordance with the following formula:

duty payable = D% of advance evidenced by the instrument

A mortgage advance instrument to which this chapter applies evidences an advance of $100 000. There are outstanding advances totalling $1 500 000. D% is determined to be 0.2%. Duty payable on the instrument is $200 (0.2% of $100 000).

(4) However, this chapter does not require the payment of duty more than once in relation to the amount of any particular advance.

(5) If, because of section 174 (1) or (2), this chapter applies to 2 or more mortgage advance instruments—

(a) duty is payable on the first executed instrument at the determined rate; and

(b) minimum duty of $20 is payable on each other instrument (a collateral instrument).

(6) In this section:

D% means the percentage determined by the Minister under the Taxation Administration Act for this section.

excess over $1 000 000, in relation to an instrument to which subsection (2) applies, means the amount by which the sum of the amount of the advance or advances evidenced by the instrument and the total amount of any outstanding advances exceeds $1 000 000.

fixed duty means the amount determined by the commissioner under the Taxation Administration Act for this section.

(1) This section applies to a mortgage that is used or can be used (whether directly or through a chain of relationships) to recover all or any part of an amount contingently payable under a guarantee, indemnity or other instrument in connection with an advance.

(2) Duty is payable under this chapter as if the guarantee, indemnity or other instrument were a mortgage advance instrument evidencing the amount of the advance.

(3) If there are 2 or more instruments under which the contingent liability arises, subsection (2) applies to the instrument under which the greatest amount of contingent liability arises.

(4) If the mortgage is part of a chain of relationships, the amount of the contingent liability to which this section applies is limited to the amount of any advance by any party in the chain, and does not include the amount of any other kind of contingent liability.

(5) This section does not apply if the commissioner is satisfied that there is no connection between the mortgage and any advance by any party to the arrangements.

Note Section 174K (4) provides that payment of duty more than once in relation to the amount of any particular advance is not authorised.

A mortgage securing an advance in relation to which duty is required to be paid under this chapter is, while any duty, or interest or a penalty payable under the Taxation Administration Act in association with the duty, remains unpaid, enforceable only to the extent of the amount in relation to which duty has been paid.

In this part:

security instrument means an instrument evidencing a security, and includes the following instruments:

(a) a caveat claiming an interest in an unregistered mortgage to which section 174 (4) applies, or for which mortgage duty is payable under a corresponding law;

(b) a guarantee, indemnity or other instrument that is a mortgage advance instrument under section 174L (3) (Contingent liabilities), or for which mortgage duty is payable under a corresponding law.

(1) This section applies if property secured under a mortgage advance instrument to which this chapter applies is located partly in and partly outside the ACT.

(2) For section 174K (Working out the amount of duty), the duty payable under this chapter for the mortgage advance instrument must be worked out as if—

(a) the amount evidenced by the advance were the dutiable proportion of the advance;

(b) the amount of any outstanding advances to which section 174 (1) or (2) applies in relation to the instrument that are secured under a mortgage of the same property were the dutiable proportion of the outstanding advances.

(3) For this section, the dutiable proportion must be worked out in accordance with the following formula:

(4) In subsection (3):

A means the amount of the advance or advances mentioned in subsection (2) (a) or (b) in relation to which duty would be payable, apart from this section.

T means the value of all property affected by the mortgage, excluding property located in another Territory or outside Australia.

V means the value of property located in the ACT affected by the mortgage.

(1) For section 174O, the value of property to which a mortgage advance instrument applies must be worked out by reference to a referable point prepared within 12 months before the liability day for the instrument.

(2) For subsection (1), referable point, in relation to property to which a mortgage advance instrument applies, means any of the following:

(a) an independent valuation of the property;

(b) a statement by the mortgagee of the value of the property based on information obtained by the mortgagee in deciding to make the advance to the mortgagor;

(c) a property valuation used by the mortgagor in preparing an annual return to be lodged under the Corporations Act;

(d) a statement of the value of the property included in a financial report of the mortgagor, if the report is certified by an independent auditor as presenting a true and fair view of a corporation’s financial position;

(e) an agreed property valuation that forms the basis of the mortgagor’s insurance policies;

(f) any other document the commissioner consider to be appropriate for working out the value of the property.

(3) However, if there is more than 1 referable point for a property, the referable point is the later, or the latest, of the referable points.

(4) If a referable point is used, or is to be used, in working out liability to duty corresponding to the liability to duty under this chapter that arises under a corresponding Act, the referable point for this section is the same as the referable point used under the corresponding Act.

(1) For this chapter, a mortgage package is 2 or more security instruments if—

(a) at a liability day, the commissioner is satisfied that section 174 (1) or (2) would apply to the instruments if all of them were instruments that, taken together, would evidence an advance or advances secured by mortgage; and

(b) at least 1 of the relevant securities affects property located completely or partly outside the ACT; and

(c) at least 1 of the instruments is a mortgage advance instrument.

(2) Subject to section 174R (Duty not payable if instrument or package stamped under corresponding law), duty is payable on a mortgage package as if any of the interests which are not mortgage advance instruments were mortgage advance interests.

(3) One of the security instruments in the mortgage package must be stamped with the duty paid under this chapter for the mortgage package, and each other security instrument must be stamped as a collateral instrument.

(4) In this section—

liability day, for a security instrument on which, apart from this section, duty would not be payable under this chapter, means the liability day that would apply to the instrument under section 174I if duty were payable on the instrument under this chapter apart from this section.

Duty is not payable on a mortgage advance instrument or a mortgage package if the advance or advances in relation to which the instrument or package is made is the same money, or part of the same money, secured by or in relation to—

(a) a security instrument stamped with mortgage duty under a corresponding law; or

(b) a mortgage package stamped as a mortgage package under a corresponding law.

(1) This section applies if the same money is secured, or partly secured, by or in relation to 2 or more security instruments—

(a) at least 1 of which is exempt from duty under a corresponding law because it effects a refinancing (an exempt mortgage); and

(b) at least 1 of which is a mortgage advance instrument (other than a collateral instrument) for which duty is payable under this chapter.

(2) The duty payable for the mortgage advance instrument is reduced by the amount of duty from which the exempt mortgage is exempt under the corresponding Act.

(1) If, because of this part, duty is payable under this chapter in relation to an advance, the parties to the advance must, within 3 months after the liability day—

(a) make a written statement about the location and value of the secured property; and

(b) give the statement to the commissioner.

Note If a form is approved under the Taxation Administration Act, s 139C (Approved forms) for a statement, the form must be used.

(2) If 1 of the parties mentioned in subsection (1) makes and gives a statement as required under that subsection, no-one else is required to comply with the subsection.

(3) For this chapter, the commissioner may treat the statement as a mortgage advance instrument, or instruments, in relation to the advance or advances evidenced instead of the instrument itself, or the instruments themselves.

subsection (2)

and section 208AA

(1) This section applies to an application to register a motor vehicle if—

(a) the application is made by a member of a group of corporations; and

(b) immediately before the application was made, the vehicle was registered in the name of another member of the same group; and

(c) the application is approved by the commissioner in accordance with any guidelines determined under subsection (4).

(2) Duty for the application is payable at 5% of the amount that would, apart from this section, be payable for the application.

(3) An approval for subsection (1) (c) may be given subject to conditions.

(4) The Minister may, in writing, determine guidelines for approvals.

(5) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(6) In this section:

corporation includes a unit trust scheme.

(ea) under section 70A (3) imposing a condition on an approval under section 70A (1) (b); or

(eb) under section 91A (3) imposing a condition on an approval under section 91A (1) (b); or

(sa) under section 208AA (3) imposing a condition on an approval under section 208AA (1) (c); or

duty; or

duty.

advance, chapter 7 (Mortgages)—see section 174D.

collateral instrument, chapter 7 (Mortgages)—see section 174K (6) (b) (Working out the amount of duty).

commercial purpose, chapter 7 (Mortgages)—see section 174E.

common commercial purpose, chapter 7 (Mortgages)—see section 174F.

liability day, chapter 7 (Mortgages)—see section 174I.

located, for chapter 7 (Mortgages)—see section 174G.

mortgage means—

(a) except for chapter 7 (Mortgages)—any charge on land created only for securing a debt; and

(b) for chapter 7—see section 174C.

mortgage advance instrument, for chapter 7 (Mortgages)—see section 174 (1) and (2).

mortgage package, for chapter 7 (Mortgages)—see section 174Q.

security instrument, for part 7.4 (Multi-jurisdictional property)—see section 174N.

This part amends the Gaming Machine Act 1987.

(iv) in relation to that part of the gross revenue that exceeds $50 000—27.0%; or

For the latest republication of amended laws, see www.legislation.act.gov.au.