| C2004C03817 | ESTATE DUTY ASSESSMENT ACT 1914
- Updated as at 17 January 1996 (#DATE 17:01:1996)
*1* The Estate Duty Assessment Act 1914 as shown in this reprint comprises Act No. 22, 1914 amended as indicated in the Tables below. Table of Acts Act Number Date of Date of Application, saving or and year notification commencement transitional provisions in Gazette Estate Duty Assessment Act 1914 22, 1914 21 Dec 1914 21 Dec 1914 Estate Duty Assessment Act 1916 29, 1916 30 Sept 1916 30 Sept 1916 - Estate Duty Assessment Act 1922 34, 1922 18 Oct 1922 S. 4: 1 July 1921 - Remainder: Royal Assent Estate Duty Assessment Act 1928 47, 1928 28 Sept 1928 28 Sept 1928 S. 17 Estate Duty Assessment Act 1940 12, 1940 20 May 1940 20 May 1940 S. 7 Estate Duty Assessment Act 1942 18, 1942 3 June 1942 3 June 1942 S. 11 Estate Duty Assessment Act 1947 16, 1947 3 June 1947 3 June 1947 S. 6 Statute Law Revision Act 1950 80, 1950 16 Dec 1950 31 Dec 1950 Ss. 16 and 17 Taxation Administration Act 1953 1, 1953 4 Mar 1953 1 Apr 1953 - Estate Duty Assessment Act 1953 52, 1953 28 Oct 1953 S. 3 (1) (a)-(c) S. 4 (2) and (e): 27 June 1950 Remainder: Royal Assent Estate Duty Assessment Act 1956 94, 1956 15 Nov 1956 1 Sept 1957 (see - s. 2 and Gazette 1957, p. 2631) Estate Duty Assessment Act 1957 60, 1957 20 Nov 1957 20 Nov 1957 S. 8 Estate Duty Assessment Act 1962 97, 1962 14 Dec 1962 28 May 1963 (see - s. 2 and Gazette 1963, p. 1869) Estate Duty Assessment Act 1963 72, 1963 31 Oct 1963 S. 6: Royal Assent Ss. 6 (2) Remainder: 9 May 1963 and 8 Estate Duty Assessment Act 1965 32, 1965 2 June 1965 2 June 1965 S. 4 Estate Duty Assessment Act (No. 2) 1965 138, 1965 18 Dec 1965 14 Feb 1966 - Estate Duty Assessment Act 1966 53, 1966 26 Oct 1966 26 Oct 1966 S. 4 Statute Law Revision (Decimal Currency) Act 1966 93, 1966 29 Oct 1966 1 Dec 1966 - Estate Duty Assessment Act 1967 40, 1967 25 May 1967 Ss. 1 and 2: - Royal Assent Remainder: 9 Dec 1966 Estate Duty Assessment Act 1970 9, 1970 20 May 1970 20 May 1970 S. 14 Estate Duty Assessment Act 1972 95, 1972 24 Oct 1972 24 Oct 1972 S. 4 Statute Law Revision Act 1973 216, 1973 19 Dec 1973 31 Dec 1973 Ss. 9 (1) and 10 Estate Duty Assessment Act 1974 130, 1974 6 Dec 1974 6 Dec 1974 S. 8 Estate Duty Assessment Amendment Act 1976 169, 1976 13 Dec 1976 13 Dec 1976 S. 8 Estate Duty Assessment Amendment Act 1978 22, 1978 7 June 1978 7 June 1978 S. 11 Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 19, 1979 28 Mar 1979 Parts II-XVII Ss. 27 and (ss. 3-123): 15 May 125-127 1979 (see Gazette 1979, No. S86) Remainder: Royal Assent Estate Duty Assessment Amendment Act 1979 60, 1979 15 June 1979 15 June 1979 S. 10 Companies (Miscellaneous Amendments) Act 1981 92, 1981 18 June 1981 Ss. 1 and 2: Royal Assent - S. 36: 1 July 1981 (see s. 2 (2) and Gazette 1981, No. S118) Remainder: 1 July 1982 (see s. 2 (3) and Gazette 1982, No. S124) Statute Law (Miscellaneous Provisions) Act (No. 1) 1983 39, 1983 20 June 1983 S. 3: 18 July 1983 (a) S. 7 (1) Taxation Laws Amendment Act 1984 123, 1984 19 Oct 1984 Ss. 1 and 2: Royal Assent S. 73 S. 319 (1): 14 Feb 1983 (see s. 2 (2)) Remainder: 14 Dec 1984 Statute Law (Miscellaneous Provisions) Act (No. 1) 1985 65, 1985 5 June 1985 S. 3: 3 July 1985 (b) - Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 48, 1986 24 June 1986 S. 31 and Parts VII Ss. 213, and VIII (ss. 45-56): 216, 24 June 1986 (see 218-221, s. 2 (2)) 226 Remainder: 1 July 1986 and 228 Taxation Laws Amendment Act (No. 3) 1986 112, 1986 4 Nov 1986 4 Nov 1986 - Taxation Laws Amendment Act (No. 4) 1986 154, 1986 18 Dec 1986 Part II (ss. 3-6), - 8 (a) and 9-11: 1 Jan 1987 S. 8 (c): 10 June 1986 Ss. 26 (b) and (c), 28, 40, 49 (3) and (7): 1 Jan 1987 (see s. 2 (4) and Gazette 1986, No. S650) S. 55: 1 Mar 1987 (see Gazette 1987, No. S32) Remainder: Royal Assent Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 23, 1987 26 May 1987 S. 3: (c) S. 4 Taxation Laws Amendment Act (No. 2) 1987 62, 1987 5 June 1987 Parts II and III - (ss. 3-7) : 1 Jan 1987 Part V (ss. 49-53): 1 July 1986 Part VII (in part): 1 July 1987 (see s. 2 (6) and Gazette 1987, No. S131) Part VII (in part): 6 May 1987 Part VIII (ss. 58-61): 1 Aug 1987 (see Gazette 1987, No. S191) Remainder: Royal Assent Taxation Laws Amendment Act (No. 3) 1991 216, 1991 24 Dec 1991 S. 113: 1 Mar 1992 S. 114 (see Gazette 1992, No. GN7) (d) Law and Justice Legislation Amendment Act (No. 1) 1995 175, 1995 16 Dec 1995 16 Dec 1995 - (a) The Estate Duty Assessment Act 1914 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1983, subsection 2 (1) of which provides as follows: "(1) Subject to this section, this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent." (b) The Estate Duty Assessment Act 1914 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, subsection 2 (1) of which provides as follows: "(1) Subject to this section, this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent." (c) The Estate Duty Assessment Act 1914 was amended by section 3 only of the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987, subsection 2 (2) of which provides as follows: "(2) The amendments made by this Act to an Act specified in the Schedule shall come into operation on such day as is fixed by Proclamation in relation to those amendments." The date fixed was 1 September 1987 (see Gazette 1987, No. S217). (d) The Estate Duty Assessment Act 1914 was amended by section 113 only of the Taxation Laws Amendment Act (No. 3) 1991, subsection 2 (10) of which provides as follows: "(10) Subject to subsection (11), sections 112 to 117 (inclusive) commence on a day to be fixed by Proclamation." Table of Amendments ad=added or inserted am=amended rep=repealed rs=repealed and substituted Provision affected How affected S. 2 rs. No. 60, 1957 am. No. 9, 1970 rep. No. 216, 1973 S. 3 am. No. 29, 1916; No. 47, 1928; No. 18, 1942; No. 1, 1953; No. 60,1957; No. 216, 1973; No. 22, 1978; No. 65, 1985; No. 48, 1986; No. 23, 1987; No. 216, 1991 S. 4 am. No. 29, 1916 rs. No. 1, 1953 am. No. 65, 1985 S. 4A ad. No. 29, 1916 rs. No. 47, 1928 rep. No. 1, 1953 S. 4B ad. No. 47, 1928 am. No. 1, 1953; No. 216, 1973; No. 169, 1976 rep. No. 123, 1984 S. 5 rep. No. 1, 1953 S. 6 am. No. 29, 1916; No. 47, 1928 rep. No. 1, 1953 S. 7 rs. No. 39, 1983 am. No. 123, 1984 S. 8 am. No. 47, 1928; No. 12, 1940; No. 18, 1942; No. 16, 1947; No. 60, 1957; No. 32, 1965; No. 53, 1966; No. 93, 1966; No. 9, 1970; No. 216, 1973; No. 169, 1976; No. 22, 1978; No. 65, 1985 S. 8AAA ad. No. 130, 1974 rs. No. 169, 1976 rep. No. 22, 1978 S. 8AA ad. No. 72, 1963 am. No. 40, 1967; No. 216, 1973; No. 169, 1976; No. 65, 1985 S. 8A ad. No. 60, 1957 am. No. 72, 1963; No. 138, 1965; No. 9, 1970; No. 130, 1974; No. 169, 1976; No. 123, 1984; No. 65, 1985 S. 9 rs. No. 12, 1940; No. 18, 1942 am. No. 16, 1947; No. 52, 1953; No. 94, 1956; No. 97, 1962; No. 93, 1966; No. 169, 1976; No. 65, 1985; No. 216, 1991 Part IIIA (ss. 9A-9E) ad. No. 29, 1970 S. 9A ad. No. 29, 1970 am. No. 216, 1973; No. 169, 1976; No. 92, 1981; No. 65, 1985 S. 9B ad. No. 29, 1970 am. No. 169, 1976; No. 65, 1985 S. 9C ad. No. 29, 1970 am. No. 169, 1976; No. 65, 1985 S. 9D ad. No. 29, 1970 am. No. 169, 1976; No. 60, 1979; No. 65, 1985; No. 48, 1986; No. 216, 1991 S. 9E ad. No. 29, 1970 am. No. 130, 1974; No. 169, 1976; No. 123, 1984; No. 65, 1985 Heading preceding section 10 am. No. 216, 1973 S. 10 rs. No. 169, 1976 am. No. 22, 1978 S. 11 am. No. 123, 1984 S. 12 rep. No. 169, 1976 Heading preceding section 13 am. No. 216, 1973 S. 16 am. No. 47, 1928 S. 16A ad. No. 18, 1942 am. No. 9, 1970; No. 60, 1979; No. 65, 1985; No. 48, 1986 S. 16B ad. No. 9, 1970 am. No. 169, 1976; No. 65, 1985 S. 17 am. No. 34, 1922 rs. No. 16, 1947 am. No. 72, 1963; No. 169, 1976; No. 65, 1985 S. 18 am. No. 34, 1922 rep. No. 16, 1947 S. 18A ad. No. 12, 1940 am. No. 18, 1942; No. 52, 1953; No. 72, 1963; No. 93, 1966; No. 9, 1970; No. 95, 1972; No. 130, 1974; No. 169, 1976 rs. No. 22, 1978 S. 20 am. No. 47, 1928 rs. No. 18, 1942 am. No. 9, 1970; No. 169, 1976; No. 22, 1978; No. 123, 1984; No. 65, 1985 S. 22 am. No. 47, 1928; No. 1, 1953; No. 216, 1973; No. 216, 1991 S. 23 am. No. 123, 1984 S. 23A ad. No. 216, 1991 Part V (ss. 24-28) rep. No. 18, 1942 Part V (ss. 24-28, 28A-28C) ad. No. 18, 1942 Part V (ss. 24-27, 27A-27E, rep. No. 216, 1991 28AC and 28B) S. 24 am. No. 47, 1928 rs. No. 18, 1942 am. No. 9, 1970; No. 216, 1973; No. 169, 1976; Nos. 19 and 60, 1979; No. 65, 1985; No. 48, 1986 rep. No. 216, 1991 S. 25 rs. No. 18, 1942 am. No. 80, 1950; No. 93, 1966; No. 216, 1973; No. 169, 1976; No. 19, 1979 rep. No. 60, 1979 ad. No. 48, 1986 am. No. 23, 1987 rep. No. 216, 1991 S. 26 rs. No. 18, 1942 am. No. 80, 1950; No. 93, 1966; No. 169, 1976; Nos. 19 and 60, 1979; No. 65, 1985 rs. No. 48, 1986 rep. No. 216, 1991 S. 27 rs. No. 18, 1942 am. No. 19, 1979 rs. No. 48, 1986 rep. No. 216, 1991 Ss. 27A, 27B ad. No. 48, 1986 am. No. 23, 1987 rep. No. 216, 1991 S. 27C ad. No. 48, 1986 rep. No. 216, 1991 S. 27D ad. No. 48, 1986 am. No. 112, 1986 rep. No. 216, 1991 S. 27E ad. No. 48, 1986 rs. No. 23, 1987 rep. No. 216, 1991 S. 28 rs. No. 18, 1942; No. 19, 1979 am. No. 48, 1986 rep. No. 23, 1987 S. 28A ad. No. 18, 1942 am. No. 169, 1976 rs. No. 19, 1979 am. No. 48, 1986 rep. No. 23, 1987 S. 28AA ad. No. 19, 1979 rep. No. 23, 1987 S. 28AB ad. No. 19, 1979 rep. No. 23, 1987 S. 28AC ad. No. 48, 1986 am. No. 23, 1987 rep. No. 216, 1991 S. 28B ad. No. 18, 1942 am. No. 123, 1984; No. 48, 1986 rep. No. 216, 1991 S. 28C ad. No. 18, 1942 rs. No. 123, 1984 rep. No. 48, 1986 S. 28D ad. No. 19, 1979 am. No. 60, 1979; No. 65, 1985; No. 48, 1986 rep. No. 23, 1987 S. 28E ad. No. 123, 1984 S. 29 am. No. 47, 1928; No. 169, 1976; No. 123, 1984; No. 65, 1985 S. 30 rs. No. 9, 1970 am. No. 65, 1985 S. 31 am. No. 34, 1922; No. 47, 1928; No. 169, 1976 rs. No. 9, 1970; No. 123, 1984 S. 32 am. No. 123, 1984; No. 65, 1985 S. 33 am. No. 47, 1928; No. 1, 1953; No. 216, 1973; No. 123, 1984 S. 34 am. No. 47, 1928; No. 1, 1953; No. 169, 1976; No. 123, 1984; No. 65,1985; No. 154, 1986; No. 216, 1991 S. 35 am. No. 12, 1940; No. 18, 1942; No. 60, 1957; No. 93, 1966; No. 9, 1970; No. 169, 1976; No. 22, 1978; No. 123, 1984; No. 65, 1985 S. 35A ad. No. 47, 1928 am. No. 123, 1984; No. 65, 1985 S. 37 am. No. 123, 1984; No. 65, 1985 S. 38 am. No. 216, 1973; No. 19, 1979; No. 123, 1984; No. 65, 1985 S. 39 am. No. 216, 1973; No. 19, 1979; No. 123, 1984 S. 41 am. No. 123, 1984 S. 42 am. No. 169, 1976 S. 43 am. No. 169, 1976 S. 44 am. No. 62, 1987 S. 45 rs. No. 47, 1928 am. No. 1, 1953; No. 216, 1973; No. 65, 1985 S. 46 am. No. 93, 1966; No. 169, 1976 rs. No. 123, 1984 S. 47 rs. No. 47, 1928 am. No. 1, 1953; No. 93, 1966; No. 169, 1976 rep. No. 123, 1984 S. 47A ad. No. 47, 1928 am. No. 1, 1953; No. 93, 1966; No. 169, 1976 rep. No. 123, 1984 S. 48 am. No. 93, 1966; No. 169, 1976 rep. No. 123, 1984 S. 48A ad. No. 130, 1974 am. No. 22, 1978; No. 60, 1979; No. 123, 1984; No. 48, 1986; No. 175, 1995 S. 49 rep. No. 123, 1984 S. 50 am. No. 19, 1979; No. 123, 1984; No. 23, 1987 The operation of the Estate Duty Assessment Act 1914 is affected by the Estate Duty Convention (United States of America) Act 1953, which gives the force of law to a convention between the Government of the Commonwealth and the Government of the United States of America for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on the estates of deceased persons. #ADD 2:2:1996 ESTATE DUTY ASSESSMENT ACT 1914 - TABLE OF PROVISIONS
TABLE
TABLE OF PROVISIONS
Section
PART I - INTRODUCTORY
1. Short title
3. Interpretation
PART II - ADMINISTRATION
4. General administration
7. Annual report
PART III - ESTATE DUTY
8. Duty on estates
8AA. Estates of certain persons connected with undertakings of
the United States Government
8A. Quick success rebates
9. Estates of persons dying on active service
PART IIIA - REBATES OF DUTY IN RESPECT OF ESTATES OF
PRIMARY PRODUCERS
9A. Interpretation
9B. The relevant period
9C. Determination of value of property
9D. Application of Part
9E. Rebate of duty
PART IV - RETURNS AND ASSESSMENTS
Division 1 - Returns
10. Returns to be lodged
11. Commissioner may require further or other returns
Division 2 - Assessments
13. Arrangement with States to supply information
14. State valuations may be adopted
15. Commissioner to make assessments
16. Default assessments
16A. Value of shares and stock
16B. Shares or stock to be valued on a winding up basis in
certain cases
17. Deductions from gross value of estate
18A. Statutory exemption
19. Compounding duties
20. Amendment of assessments
21. Validity of assessments
22. Evidence
23. Notice of assessment
23A. Objections
PART VI - COLLECTION AND RECOVERY OF DUTY
28E. Interpretation
29. Date of payment of duty
30. Deferment of payment of duty
31. Penalty for unpaid duty
32. Duty debt due to Commonwealth
33. Duty may be sued for
34. Duty first charge on estate
35. Apportionment of duty among beneficiaries
35A. Apportionment of duty
36. Distribution of charge on estate
37. Registration of duty as charge
38. Duty - how payable
39. Commissioner may apply for order to sell
40. Power of Court
41. Application of proceeds
Court may order re surplus
PART VII - MISCELLANEOUS
42. Protection to purchaser
43. Title of purchaser etc. not affected
44. Access to lands, buildings etc.
45. Power to obtain evidence
46. Penalty for failure to furnish returns etc.
48A. Release from liability for duty in cases of hardship
50. Regulations
ESTATE DUTY ASSESSMENT ACT 1914 - LONG TITLE
SECT
An Act relating to the Imposition, Assessment, and
Collection of Duties upon the Estates of Deceased Persons
ESTATE DUTY ASSESSMENT ACT 1914 - PART I
PART I - INTRODUCTORY
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 1
Short title
SECT
1. This Act may be cited as the Estate Duty Assessment Act 1914.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 3
Interpretation
SECT
3. (1) In this Act, unless the contrary intention appears:
"administrator" means any executor to whom probate of a will is granted, or
any person to whom letters of administration, with or without a will annexed,
is granted, and also any person who, by virtue of any administration, becomes
entitled to administer, take charge of, or become receiver of, any property of
a deceased person;
"adopted child", in relation to a person, means a person adopted by the
first-mentioned person:
(a) under the law of a State or Territory relating to the adoption of
children; or
(b) under the law of any other place relating to the adoption of children,
if the validity of the adoption would be recognized under the law of any State
or Territory;
"child", in relation to a person, includes an adopted child, a step-child or
an ex-nuptial child of that person;
"Commissioner" means the Commissioner of Taxation;
"debts" includes probate and succession duties payable under any State Act,
but does not include voluntary debts;
"Deputy Commissioner" means a Deputy Commissioner of Taxation;
"duty" means estate duty under this Act;
"estate" includes both real and personal estate;
"Federal Court" means the Federal Court of Australia;
"gift inter vivos" includes every gift absolute and every non-testamentary
disposition of property, whether by way of conveyance, transfer, appointment
under power, declaration of trust or otherwise, made by any person either
before or after the commencement of this Act, and containing trusts or
dispositions to take effect during his lifetime, not being made before and in
consideration of marriage, or in pursuance of a binding contract entered into
before and in consideration of marriage, or in favour of a bona fide purchaser
or encumbrancer (other than a purchaser who is a relative by blood, marriage
or adoption of the deceased person) for valuable consideration, and whether or
not the property comprised in the gift is subject to any limitation;
"member of the family", in relation to a deceased person, means the widow or
widower, a child, a grandchild, a parent or a grandparent of that person;
"Second Commissioner" means a Second Commissioner of Taxation;
"settlement" means a conveyance, transfer, appointment under power,
declaration of trust or other non-testamentary disposition of property made by
any person either before or after the commencement of this Act containing
trusts or dispositions to take effect after the death of the settlor or any
other person dying after the commencement of this Act;
"Supreme Court" means the Supreme Court of a State or Territory;
"this Act" includes Part IVC of the Taxation Administration Act 1953,
insofar as that Part relates to this Act;
"Tribunal" means the Administrative Appeals Tribunal.
(2) For the purposes of the definition of "member of the family" in
subsection (1):
(a) "grandparent", in relation to a person, means a person of whom that
person is the grandchild; and
(b) "parent", in relation to a person, means a person of whom that person is
the child;
and, for the purposes of that definition and the definition of "grandparent"
in this subsection:
(c) "grandchild", in relation to a person, means a person who is the child
of a child of that person.
ESTATE DUTY ASSESSMENT ACT 1914 - PART II
PART II - ADMINISTRATION
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 4
General administration
SECT
4. The Commissioner shall have the general administration of this Act.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 7
Annual report
SECT
7. (1) The Commissioner shall, as soon as practicable after 30 June in each
year, prepare and furnish to the Minister a report on the working of this Act,
including any breaches or evasions of this Act of which the Commissioner has
notice.
(2) The Minister shall cause a copy of a report furnished to him under
subsection (1) to be laid before each House of the Parliament within 15
sitting days of that House after the day on which he receives the report.
(3) For the purposes of section 34C of the Acts Interpretation Act 1901, a
report that is required by subsection (1) to be furnished as soon as
practicable after 30 June in a year shall be taken to be a periodic report
relating to the working of this Act during the year ending on that 30 June.
ESTATE DUTY ASSESSMENT ACT 1914 - PART III
PART III - ESTATE DUTY
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 8
Duty on estates
SECT
8. (1) Subject to this Act, estate duty shall be levied and paid upon the
value, as assessed under this Act, of the estates of deceased persons dying
before 1 July 1979.
(2) Estate duty shall be at such rates as are declared by the Parliament.
(3) For the purposes of this Act the estate of a deceased person comprises:
(a) his real property in Australia (including real property over which he
had a general power of appointment, exercised by his will);
(b) his personal property, wherever situate (including personal property
over which he had a general power of appointment, exercised by his will), if
the deceased was, at the time of his death, domiciled in Australia; and
(c) his personal property in Australia (including personal property over
which he had a general power of appointment, exercised by his will), including
all debts, money, and choses in action receivable or recoverable by the
administrator in Australia, if the deceased had, at the time of his death, a
foreign domicile.
(4) Property:
(a) which has passed from the deceased person by any gift inter vivos (not
including any gift of property the value of which, together with the value of
the property comprised in any other gifts made to the same person within 3
years before his decease, does not exceed $100) or by a settlement made before
or after the commencement of this Act within 3 years before his decease:
Provided that where the gift consists of a disposition of property in
pursuance of a binding contract entered into for valuable consideration by a
relative by blood, marriage or adoption of the deceased the property so
disposed of shall not be taken into account for the purposes of this paragraph
where the purchase price exceeds three-quarters of the value of the property
at the date of disposition and where the price does not exceed three-quarters
of that value, shall be so taken into account only to the extent of the excess
of that value over that price; or
(b) being an interest of any kind of the deceased person for his life in
property comprised in a settlement (not being a settlement made by the
deceased person) which interest he surrendered to any other person within 3
years before his decease:
Provided that the value which shall be assessed in respect of this interest
shall be the total value or amount which would have been received by the
person who surrendered the interest (calculated for the expectation of his
life from the date of the surrender of the interest) if it had not been
surrendered by him; or
(c) comprised in a settlement made by the deceased person under which he had
any interest of any kind for his life whether or not that interest was
surrendered by him before his decease, unless it was so surrendered more than
3 years before his decease; or
(d) being the beneficial interest held by the deceased person, immediately
prior to his death, in a joint tenancy or joint ownership with other persons;
or
(e) being a beneficial interest in property which the deceased person had at
the time of his decease, which beneficial interest, by virtue of a settlement
or agreement made by him, passed or accrued on or after his decease to, or
devolved on or after his decease upon, any other person; or
(f) being money payable to, or to any person in trust for, the widow,
widower, children, grand-children, parents, brothers, sisters, nephews or
nieces of the deceased under a policy of assurance on the life of the deceased
where the whole of the premiums has been paid by or on behalf of the deceased,
or, where part only of the premiums has been paid by or on behalf of the
deceased, such portion of any money so payable as bears to the whole of that
money the same proportion as the part of the premiums paid by or on behalf of
the deceased bears to the total premiums paid;
shall for the purposes of this Act be deemed to be part of the estate of the
person so deceased.
(4A) Where a policy of assurance on the life of the deceased was in
existence at the commencement of paragraph (4) (f), in ascertaining the money
payable under that policy for the purposes of that paragraph there shall be
deducted from the money actually payable an amount equal to the amount which,
if invested at the date of that commencement and accumulated at 3% per annum
compound interest with yearly rests, would have produced, as at the date of
death, an amount equal to the money actually payable.
(5) Duty shall not be assessed or payable upon so much of the estate as is
devised or bequeathed or passes by gift inter vivos or settlement:
(a) for religious, scientific or public educational purposes in Australia;
(b) to or for the benefit of any of the following institutions in
Australia:
(i) a public hospital;
(ii) a hospital which is carried on by a society or association
otherwise than for the purposes of profit or gain to the individual members of
that society or association;
(iii) a public benevolent institution;
(iv) a public library;
(v) the Australian Council for Educational Research
(vi) The National Trust of Australia (New South Wales), National
Trust of Australia (Victoria), The National Trust of Queensland, The National
Trust of South Australia, The National Trust of Australia (W.A.), National
Trust of Australia (Tasmania), The National Trust of Australia (Northern
Territory), National Trust of Australia (A.C.T.) or Australian Council of
National Trusts; or
(vii) the Winston Churchill Memorial Trust; or
(c) for the establishment and maintenance of a Fund, or to a fund
established and maintained:
(i) for the purpose of providing money for the benefit of an
institution referred to in the paragraph (b); or
(ii) for the purpose of providing money for the relief of
persons in necessitous circumstances in Australia.
(5A) Duty shall not be assessed or payable upon so much of the estate as
passes by will, intestacy, gift inter vivos, settlement or right of
survivorship to, or for the benefit of, a member or members of the family of
the deceased person.
(6) Where:
(a) a gift of property has been liable to gift duty under the provisions of
the Gift Duty Assessment Act 1941;
(b) the property is also included in the estate of the donor under this Act;
and
(c) the estate duty payable apart from this subsection in respect of the
estate is increased by reason of the inclusion of the property in the estate;
there shall be deducted from the total duty to which the estate is liable
under this Act an amount equal to:
(d) the amount of gift duty paid or payable in respect of the gift; or
(e) the amount by which the estate duty payable apart from this subsection
in respect of the estate is increased by reason of the inclusion of the
property in the estate;
whichever is the less.
(7) When any duty is lawfully paid in any place outside Australia in respect
of any part of the estate situate outside Australia there shall be deducted
from the total duty to which the estate is liable under this Act the lesser of
the following sums:
(a) the amount of duty so paid in the place outside Australia; or
(b) the duty which is payable under this Act in respect of that part of the
estate.
(8) In this Act, "public educational purposes" includes the establishment or
endowment of an educational institution for the benefit of the public or a
section of the public.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 8AA
Estates of certain persons connected with undertakings of the United
States Government
SECT
8AA. (1) In this section, unless the contrary intention appears:
"approved project" means the establishment, maintenance or operation of the
North West Cape naval communication station or of the Joint Defence Space
Research Facility;
"Australia" includes the Territories;
"civilian accompanying the United States Forces" means a person (not being a
member of the United States Forces, an Australian citizen or a person
ordinarily resident in Australia) who:
(a) is an employee:
(i) of the United States Forces; or
(ii) of, or of a body conducting, a club or other facility
established for the benefit or welfare of members of the United States Forces
or of persons accompanying those Forces and which is recognized by the
Government of the United States of America as a non-appropriated fund
activity; or
(b) is serving with an organization that, with the approval of the
Australian Government, accompanies the United States Forces in Australia;
"dependant", in relation to a person, means:
(a) the spouse of that person; or
(b) a relative, other than the spouse, of that person who is wholly or
partly dependent for support on that person;
but, in the case of a person who, immediately before becoming such a spouse or
relative, was ordinarily resident in Australia, does not include that person
so long as that person continues to be ordinarily resident in Australia;
"foreign contractor" means a person who is a party to a prescribed contract
and is not:
(a) a company incorporated in Australia;
(b) an Australian citizen; or
(c) a person, other than a company, who is ordinarily resident in
Australia;
"foreign employee" means a person who:
(a) is an employee of a foreign contractor; or
(b) is a director of a company that is a foreign contractor;
and is not an Australian citizen or ordinarily resident in Australia;
"Joint Defence Space Research Facility" means the undertaking the
establishment of which is provided for by an agreement dated 9 December 1966
between the Government of Australia and the Government of the United States of
America;
"North West Cape naval communication station" means the naval communication
station the establishment of which is provided for by the agreement approved
by the United States Naval Communication Station Agreement Act 1963;
"personal property" does not include:
(a) property held as, or for the purpose of, an investment;
(b) copyright;
(c) property arising out of the grant of letters patent for an invention, or
the registration of a trade mark or an industrial design; or
(d) property held in connexion with the carrying on of a business other than
a business carried on for prescribed purposes;
"prescribed contract" means:
(a) a contract to which the Government of the United States of America is a
party in connexion with an approved project; or
(b) a contract made for purposes connected with the performance of a
contract referred to in paragraph (a);
"prescribed purposes" means:
(a) in relation to a foreign contractor or foreign employee - purposes
relating to the performance of a prescribed contract;
(aa) in relation to a United States employee - purposes relating to an
approved project; and
(b) in relation to a member of the United States Forces or a civilian
accompanying the United States Forces - purposes relating to the carrying on
of activities agreed upon between the Australian Government and the Government
of the United States of America;
"United States employee" means a person who is employed by the Government of
the United States of America and is not:
(a) a member of the United States Forces;
(b) a civilian accompanying the United States Forces;
(c) an Australian citizen; or
(d) a person ordinarily resident in Australia.
"United States Forces" means the armed forces of the Government of the
United States of America.
(2) For the purposes of this section, a foreign contractor, foreign employee
or United States employee who is in Australia, or is carrying on business in
Australia, solely for prescribed purposes does not cease to be in Australia
solely for those purposes, or to be carrying on business in Australia solely
for those purposes, by reason of anything undertaken or done by him in
connexion with an undertaking in Australia of the Government of the United
States of America, other than an approved project, agreed upon between the
Australian Government and the Government of the United States of America.
(3) For the purposes of this Act, a person shall not be taken to have become
domiciled in Australia at the commencement of, or during, any period in which
that person was:
(a) a foreign contractor, a foreign employee, a member of the United States
Forces, a civilian accompanying the United States Forces or a United States
employee who was in Australia solely for prescribed purposes; or
(b) a dependant of such a contractor, employee, member or civilian;
except, in the case of a woman, by reason of marriage to a man domiciled in
Australia.
(4) Subsection (3) does not apply in respect of, or of a part of, a period
in which a person was, or was a dependant of, a foreign contractor, a foreign
employee, a civilian accompanying the United States Forces or a United States
employee if the person was not a citizen of, and was not domiciled in, the
United States of America during that period or that part of that period, as
the case may be.
(5) Duty shall not be assessed or payable upon so much of the estate of a
deceased person as consists of personal property that, at the time of his
death, was held by him in Australia solely by reason of his having been, at
that time:
(a) a foreign contractor, a foreign employee, a member of the United States
Forces, a civilian accompanying the United States Forces or a United States
employee who was in Australia solely for prescribed purposes; or
(b) a dependant of such a contractor, employee, member or civilian;
if that property is, or has been, by reason of his death, subject to estate
tax under the law of the United States of America.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 8A
Quick succession rebates
SECT
8A. (1) Subject to this section, where:
(a) duty is payable, or has been paid, upon the value of the estate of a
deceased person (in this section referred to as "the predecessor"); and
(b) a person (in this section referred to as "the successor") who succeeded
to the whole, or a part, of the estate of the predecessor dies within 5 years
after the death of the predecessor;
a rebate of duty in accordance with this section shall be allowed in respect
of the estate of the successor.
(2) Subject to subsection (2A), the amount of the rebate allowable is the
prescribed percentage of the amount ascertained by multiplying the lesser of:
(a) the average rate of duty applicable to the estate of the predecessor;
and
(b) the average rate of duty applicable to the estate of the successor;
by the number of whole dollars in the lesser of:
(c) the value for duty of the first succession; and
(d) the value for duty of the estate of the successor.
(2A) Where, in pursuance of section 48A, a person has been released from the
liability to pay an amount of duty in respect of the estate of the predecessor
by reason that the exaction of that amount of duty would entail serious
hardship to the successor, the average rate of duty applicable to the estate
of the predecessor shall, for the purposes of subsection (2), be reduced by an
amount per dollar ascertained by dividing the amount to which the release
relates by:
(a) where the whole of the estate of the predecessor passed to the successor
- the number of whole dollars in the value for duty of the estate of the
predecessor; or
(b) where part only of the estate of the predecessor passed to the successor
- the number of whole dollars in the part of the value for duty of the estate
of the predecessor that, in the opinion of the Commissioner, was attributable
to that part of the estate of the predecessor.
(3) The prescribed percentage for the purposes of this section is:
(a) where the successor dies not later than 1 year after the death of the
predecessor - 50%;
(b) where the successor dies later than 1 year, but not later than 2 years,
after the death of the predecessor - 40%;
(c) where the successor dies later than 2 years, but not later than 3 years,
after the death of the predecessor - 30%;
(d) where the successor dies later than 3 years, but not later than 4 years,
after the death of the predecessor - 20%; or
(e) where the successor dies later than 4 years, but not later than 5 years,
after the death of the predecessor - 10%.
(4) For the purposes of this section, a person shall be deemed to have
succeeded to the whole, or a part, of the estate of a deceased person if:
(a) the estate, or that part of the estate, passed from the deceased person
to or in trust for that person:
(i) under the will or on the intestacy of the deceased person;
or
(ii) by a gift inter vivos, settlement, agreement, surrender or
right of survivorship referred to in subsection 8 (4);
(b) the estate, or that part of the estate, consisted of moneys payable to
or in trust for that person under a policy of assurance referred to in
paragraph 8 (4) (f); or
(c) the estate, or that part of the estate, consisted of real or personal
property in respect of which the deceased person exercised by his will a
general power of appointment in favour of that person;
and not otherwise.
(5) In this section:
(a) "the first succession" means the estate, or the part of the estate, of
the predecessor to which the successor succeeded, excluding any life interest,
annuity or other interest or benefit that terminated during the life, or upon
the death, of the successor;
(b) the average rate of duty applicable to an estate shall be ascertained by
dividing the net amount of duty payable in respect of that estate by the
number of whole dollars in the value for duty of that estate;
(c) the net amount of duty payable in respect of the estate of the
predecessor shall be deemed to be the duty payable in respect of that estate
(excluding any additional duty payable under section 31 or section 46) after
the making or allowance of any deductions under subsection 8 (6) or (7), any
rebates under this section or Part IIIA and any credit for foreign duty under
the Estate Duty Convention (United States of America) Act 1953 applicable in
respect of the estate and before taking into account any release granted under
section 48A;
(d) the net amount of duty payable in respect of the estate of the successor
shall be deemed to be the duty payable in respect of that estate (excluding
any additional duty payable under section 31 or section 46) after the making
or allowance of any deductions under subsection 8 (6) or (7), any rebate under
Part IIIA and any credit for foreign duty under the Estate Duty Convention
(United States of America) Act 1953 applicable in respect of the estate and
before taking into account any release granted under section 48A; and
(e) the value for duty of the first succession, where the first succession
consisted of part only of the estate of the predecessor, shall be deemed to be
so much of the value for duty of that estate as, in the opinion of the
Commissioner, was attributable to that part of that estate.
(6) The allowance of a rebate under this section shall be deemed to form
part of an assessment under this Act.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 9
Estates of persons dying on active service
SECT
9. (1) From the value of the estate of a person who is or has been a member
of the naval, military or air forces of the Commonwealth, or of any other part
of the King's dominions, or of any Ally of His Majesty, during the state of
war which commenced on 3 September 1939, and who, during that state of war, or
within 3 years after its termination, has died or dies on active service or as
a result of injuries received or disease contracted on active service during
that state of war there shall be deducted in respect of such part of the
estate as passes to the widow, children, grand-children, parents, brothers,
sisters, nephews or nieces of the deceased, a sum of $10,000, or where the
value of that part is less than $10,000, an amount equal to the value of that
part.
(1A) From the value of the estate of a person who has been on Korean or
Malayan war service as a member of the naval, military or air forces of the
Commonwealth, or of any other part of the Queen's dominions, or of the United
Nations, and who, during that service or within 3 years after its termination,
has died as a result of injuries received or disease contracted during that
service, there shall be deducted, in respect of such part of the estate as
passes to the widow, children, grandchildren, parents, brothers, sisters,
nephews or nieces of the deceased, a sum of $10,000 or, where the value of
that part is less than $10,000, an amount equal to the value of that part.
(1B) From the value of the estate of a person who was a member of the Forces
within the meaning of the Repatriation (Far East Strategic Reserve) Act 1956
or of the Repatriation (Special Overseas Service) Act 1962 and who, during, or
within 3 years after the termination of, his Malayan service or his special
service, as the case may be, has died as a result of injuries received or
disease contracted during that Malayan service or special service, as the case
may be, there shall be deducted, in respect of such part of the estate as
passes to his widow, children, grandchildren, parents, brothers, sisters,
nephews or nieces, a sum of $10,000 or the value of that part of his estate,
whichever is the less.
(2) Where any property in respect of which a deduction has been allowed
under subsection (1), (1A) or (1B) later forms the whole or part of the estate
of some other such person so dying, there shall be excluded from the estate of
that other person so much of that property as passes to the widow, children,
grandchildren, parents, brothers, sisters, nephews or nieces of the other
person.
(3) Where the question whether a person has or has not died as a result of
injuries received or disease contracted on active service, during Korean or
Malayan war service, during Malayan service or during special service has been
finally determined for the purposes of the Repatriation Act 1920, the
Repatriation (Far East Strategic Reserve) Act 1956 or the Repatriation
(Special Overseas Service) Act 1962, as the case may be, by an authority
constituted under the Repatriation Act 1920, a certificate by that authority
that that person has or has not so died is, for the purposes of this Act,
conclusive evidence that the person has or has not so died, as the case may
be.
(4) For the purposes of this section:
(a) the expression "Korean or Malayan war service" has, in relation to a
member of the naval, military or air forces of the Commonwealth, the same
meaning as the expression "war service" has in Division 8 of Part III of the
Repatriation Act 1920 and has, in relation to a member of any other forces
specified in subsection (1A), a corresponding meaning;
(b) the expression "Malayan service" has the same meaning as in the
Repatriation (Far East Strategic Reserve) Act 1956; and
(c) the expression "special service" has the same meaning as in the
Repatriation (Special Overseas Service) Act 1962.
ESTATE DUTY ASSESSMENT ACT 1914 - PART IIIA
PART IIIA - REBATES OF DUTY IN RESPECT OF
ESTATES OF PRIMARY PRODUCERS
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 9A
Interpretation
SECT
9A. (1) In this Part, unless the contrary intention appears:
"animals" includes poultry;
"family company", in relation to a person in relation to any time, means a
company:
(a) that was incorporated as a proprietary company at that time under the
law of the Commonwealth or of a State or Territory; and
(b) in which persons other than the first-mentioned person or a relative of
that person:
(i) did not beneficially own any shares at that time; or
(ii) did not beneficially own at that time shares that carried
between them the right to receive more than 5% of any distribution of capital
of the company in the event of the winding up, or of a reduction in the
capital, of the company;
"farm produce" means produce resulting directly from the cultivation of land
or the maintenance of animals, and includes timber;
"gross farm income", in relation to a person in relation to a period, is:
(a) so much of the gross income of the person in relation to that period as
was derived directly from the carrying on by the person (otherwise than as a
partner in a partnership) of a business of primary production in Australia;
and
(b) if the person is a partner in a partnership, (in addition to any amount
included in his gross farm income by virtue of paragraph (a)) the amount that
bears to the amount that would, in accordance with paragraph (a), be the gross
farm income of the partnership in relation to that period if the partnership
were a single person the same proportion as the individual interest of the
partner in the net income of the partnership, or in the partnership loss, in
respect of that period bears to that net income or partnership loss, as the
case may be;
"gross income", in relation to a person in relation to a period, is:
(a) the gross income (without deduction of any expenses incurred in deriving
that income) derived by the person during that period (otherwise than by
reason of the carrying on of a business by a partnership in which the person
is a partner) directly or indirectly from all sources whether in or out of
Australia other than income derived by the person as a trustee of a trust
estate; and
(b) if the person is a partner in a partnership, (in addition to any amount
included in his gross income by virtue of paragraph (a)) the amount that bears
to the amount that would, in accordance with paragraph (a), be the gross
income of the partnership in relation to that period if the partnership were a
single person the same proportion as the individual interest of the partner in
the net income of the partnership, or in the partnership loss, in respect of
that period bears to that net income or partnership loss, as the case may be;
"gross value", in relation to any property, means:
(a) if the property is not subject to a mortgage, charge or other
encumbrance - the value of the property; or
(b) if the property is subject to a mortgage, charge or other encumbrance -
the amount that would be the value of the property if the property were not
subject to that mortgage, charge or other encumbrance;
"income", in relation to a person, includes (without limiting the generality
of the expression):
(a) any amount received by way of bounty or subsidy in or in relation to the
carrying on of a business; and
(b) any amount received by way of insurance or indemnity for or in respect
of any loss:
(i) of trading stock within the meaning of the Income Tax
Assessment Act 1936, growing crops or standing timber; or
(ii) of profit or income;
"partnership" means an association of persons carrying on business as
partners or in receipt of income jointly but does not include a body
corporate;
"primary production" means production resulting directly from:
(a) the cultivation of land;
(b) the planting or tending in a plantation or forest of trees intended for
felling; or
(c) the maintenance of animals for the purpose of selling them or their
bodily produce, including natural increase;
"relative", in relation to a person, means:
(a) the spouse of the person;
(b) a parent, step-parent or other lineal ancestor of the person or of the
spouse of the person;
(c) a child or other lineal descendant of the person or of the spouse of the
person;
(d) a brother or sister, or half-brother or half-sister, of the person or of
the spouse of the person;
(e) a child of a person to whom paragraph (d) applies; or
(f) the spouse of a person to whom paragraph (c), (d) or (e) applies;
"rural property", in relation to a deceased person, means property, or an
interest in property, in Australia being property consisting of:
(a) land that, at the time of the death of the person, was used wholly and
exclusively for the purpose of carrying on a business of primary production;
(b) animals or farm produce:
(i) used, or held for use, at the time of the death of the
person in a business of primary production; or
(ii) raised or produced in the course of the carrying on of a
business of primary production by the deceased person or by a partnership in
which he was a partner;
(c) a right to income other than income that is included in the gross income
of the person in relation to the relevant period, being a right arising from
the delivery to a marketing authority established by a law of the
Commonwealth, a State or a Territory of farm produce produced in the course of
the carrying on of a business of primary production by the deceased person or
by a partnership in which he was a partner; or
(d) plant, machinery, goods or articles that, at the time of the death of
the person, were used, or held for use, in a business of primary production;
but not including property consisting of:
(e) motor vehicles designed primarily and principally for the transport of
persons;
(f) household furniture, furnishings or appliances; or
(g) wireless receivers or transmitters or television receivers or antennae;
"share", in relation to a company, means a share in the capital of the
company, and includes stock;
"year of income", in relation to a person, means:
(a) in a case to which paragraph (b) does not apply - a period of 12 months
ending on 30 June; or
(b) if the person has adopted an accounting period under the Income Tax
Assessment Act 1936 being the 12 months ending on another date - a period of
12 months ending on that other date.
(2) For the purposes of the definition of "relative" in subsection (1),
relationships referred to in that definition shall be taken to include
illegitimate relationships and relationships by adoption and relationships
that are traced through illegitimate relationships or relationships by
adoption.
(3) Where:
(a) a person derives income (in this subsection referred to as "the relevant
income") as a trustee of a trust estate; and
(b) if the person were beneficially entitled to the relevant income and did
not derive any other income during the period in which the relevant income was
derived by him, the amount that would be the gross income of the person in
relation to that period (in this subsection referred to as "the notional gross
income") would have included an amount that would be gross farm income of the
person in relation to that period (in this subsection referred to as "the
notional gross farm income");
so much of any income derived by a beneficiary in the trust estate as is
reasonably attributable to the relevant income as bears to the income so
derived the same proportion as the notional gross farm income bears to the
notional gross income shall be deemed, for the purposes of this Part, to be
gross farm income of the beneficiary.
(4) Where:
(a) income consisting of dividends, salary, wages, bonuses or director's
fees is derived from a company by a person (other than a company);
(b) the person was, at the time when he derived the income, the beneficial
owner of one or more shares in the company;
(c) the company was a family company of the person at all times during:
(i) the year of income of the company during which the income
was derived by the person; or
(ii) if the person died during that year of income - the part of
that year of income that ended on the date of his death; and
(d) the gross farm income of the company in relation to that year of income
constituted more than one-half of the gross income of the company in relation
to that year of income;
the income so derived by the person shall be deemed, for the purposes of this
Part, to be income derived by the person directly from the carrying on by the
person of a business of primary production in Australia.
(5) For the purposes of the definition of "family company" in subsection
(1), shares in a company shall be treated as having been beneficially owned by
a person at the time of his death if the shares are included in his estate by
reason of subsection 8 (4).
(6) For the purposes of the definition of "rural property" in subsection
(1), any land that:
(a) is within or adjacent to an area of land (in this subsection referred to
as "the adjacent land") that is included in the estate of a deceased person
and was, at the time of the death of that person, used wholly and exclusively
for the purpose of carrying on a business of primary production; and
(b) was, at that time, used for the purposes of a residence occupied by:
(i) that person or a relative of that person;
(ii) an employee or tenant of that person, being an employee or
tenant who was employed or engaged in a business of primary production carried
on on the adjacent land; or
(iii) a share-farmer;
shall be deemed to have been used at that time wholly and exclusively for the
purpose of carrying on a business of primary production.
(7) A reference in this Part to property, in relation to a deceased person,
does not include a reference to:
(a) property that was the subject of a devise, or of a specific bequest, in
the will of the person; or
(b) property that has passed by a gift inter vivos or a settlement by the
person;
being property that is exempt from duty under subsection 8 (5).
(8) In this Part, unless the contrary intention appears, a reference to the
whole of the property of a deceased person is a reference to all the real and
personal property (including property over which he had a general power of
appointment, exercised by his will) in or outside Australia beneficially owned
by him and includes a reference to property that is included in his estate by
reason of subsection 8 (4).
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 9B
The relevant period
SECT
9B. (1) For the purposes of this Part, the relevant period, in relation to a
deceased person, is, subject to this section, the period comprising:
(a) the year of income of the person that ended during the period of 12
months that ended on the date of his death; and
(b) the 4 immediately preceding years of income.
(2) Except where the person died on the last day of a year of income of the
person, the administrator of the estate of that person may elect that the
relevant period in relation to the person is to be the period comprising:
(a) the year of income of the person that ended during the period of 12
months that ended on the date of his death;
(b) the 3 immediately preceding years of income; and
(c) the period that commenced at the expiration of the year of income
referred to in paragraph (a) and ended on the date of his death.
(3) An election under this section does not have effect unless it is in
writing and is lodged with the Commissioner on or before the date of lodgment
of the return of the estate or within such further period as the Commissioner,
whether before, on or after that date, allows.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 9C
Determination of value of property
SECT
9C. (1) For the purposes of this Part, the value, as at the time of the
death of a person, of a unit of property of the person shall be taken to have
been:
(a) in the case of property included in his estate by reason of paragraph 8
(4) (a), (b), (c), (e) or (f) - the amount that is included in the gross value
of the estate as being the value of that property;
(b) in the case of any other property included in his estate where the
amount included in the gross value of the estate as being the value of that
property was the gross value of that property - the amount so included; and
(c) in any other case - the gross value of the property as at the time of
his death.
(2) Subsection (1) does not apply in relation to property being shares in a
company if the administrator has made an election in relation to the shares
under paragraph 9D (2) (d).
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 9D
Application of Part
SECT
9D. (1) This Part applies in relation to the estate of a deceased person
if:
(a) the person was domiciled in Australia at the time of his death;
(b) the gross farm income of the person in relation to the relevant period
constituted more than one-half of the gross income of the person in relation
to that period; and
(c) the value, as at the time of his death, of the rural property included
in the estate exceeded one-half of the value, as at that time, of the whole of
the property of the person.
(2) Where:
(a) the estate of a deceased person included shares in a company that was a
family company of the person at the time of his death (in this subsection
referred to as "the relevant time");
(b) the property of the company at the relevant time included property (in
this subsection referred to as "the rural assets") that, apart from this
subsection, would have constituted rural property of the person for the
purposes of this Part if the rural assets had been beneficially owned by the
person at that time and any business of primary production carried on by the
company had been carried on by the person;
(c) the gross value, as at the relevant time, of the rural assets exceeded
one-half of the gross value, as at that time, of the whole of the property of
the company; and
(d) the administrator of the estate of the deceased person elects to have
the shares taken into account in determining the value of the rural property
included in the estate;
then, in determining for the purposes of this section and section 9E the
value, as at the relevant time, of the rural property included in the estate,
there shall be added to the amount that would otherwise be that value an
amount that bears to the value of those shares, as at that time, the same
proportion as the gross value, as at that time, of the rural assets bears to
the gross value, as at that time, of the whole of the property of the company.
(3) A reference in subsection (2) to the whole of the property of a company
is a reference to the whole of the real and personal property in or outside
Australia beneficially owned by the company.
(4) For the purposes of this section, the value of the shares, as at the
time of the death of the person, is:
(a) in a case to which paragraph (b) does not apply - the amount that the
holder of the shares would have received, or been entitled to receive, in
respect of the shares if the company had been voluntarily wound up on the date
of the death of the person; or
(b) in the case of shares that are included in the estate of the person by
reason of paragraph 8 (4) (a) and in relation to which the proviso to that
paragraph applies - the amount that would have been included in the gross
value of the estate as being the value of those shares if the reference in
that proviso to the value of the property at the date of disposition were a
reference to the amount that the holder of the shares would have received, or
been entitled to receive, in respect of the shares if the company had been
voluntarily wound up on the date of disposition.
(5) In ascertaining the amount referred to in paragraph (4) (a) or (b),
account shall not be taken of any costs that would have been incurred in the
winding up of the company or of any liability to income tax that would have
been incurred by the company by reason of the winding up.
(6) An election under paragraph (2) (d) does not have effect unless it is in
writing and is lodged with the Commissioner on or before the date of lodgment
of the return of the estate or within such further time as the Commissioner,
whether before, on or after that date, allows.
(7) Subject to subsection (8), an election under paragraph (2) (d) may be
withdrawn by the administrator by notice in writing lodged with the
Commissioner and, in that case, this Act has effect as if the election had not
been made.
(8) Where an assessment has been made in relation to the estate, the
election may not be withdrawn:
(a) if the administrator has not objected to the assessment - after the
expiration of 60 days after service of notice of the assessment; or
(b) if the administrator has objected to the assessment:
(i) where the administrator has not applied to the Tribunal for
a review of, or appealed to the Federal Court against, the decision of the
Commissioner on the objection - after the expiration of 60 days after service
of notice of the decision of the Commissioner on the objection; or
(ii) where the administrator has so applied or appealed - after
the expiration of 60 days after the final determination by the Tribunal or
court of the correctness of the decision of the Commissioner.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 9E
Rebate of duty
SECT
9E. (1) A rebate of duty in accordance with this Part is allowable in
respect of the estate of a deceased person, being an estate in relation to
which this Part applies and the value of which is less than $250,000.
(2) The amount of the rebate allowable is the prescribed percentage of the
amount of the duty attributable to the rural property included in the estate.
(3) For the purposes of this section:
(a) the prescribed percentage is:
(i) where the value of the estate does not exceed $140,000 -
50%; and
(ii) where the value of the estate exceeds $140,000 - 50%
reduced by 0.1% for each complete $220 by which that value exceeds $140,000;
(b) the value of the estate is the value that would be ascertained for the
purposes of section 18A if the value, as at the time of the death of the
person, of any property of the person, being shares in relation to which an
election has been made under paragraph 9D (2) (d), were ascertained in
accordance with subsection 9D (4);
(c) the amount of the duty attributable to the rural property included in
the estate is the amount that bears to the net amount of duty payable in
respect of the estate the same proportion as the value, as at the time of the
death of the person, of the rural property included in the estate bears to the
value, as at the time, of the whole of the property of the deceased person
(other than real property outside Australia); and
(d) the net amount of duty payable in respect of the estate of a deceased
person is the duty (excluding any additional duty payable under section 31 or
section 46) that would be payable in respect of the estate before the
allowance of any deductions under subsection 8 (6) or (7), any rebates under
section 8A or any credit for foreign duty under the Estate Duty Convention
(United States of America) Act 1953 if the value, as at the time of the death
of the person, of any property of the person, being shares in relation to
which an election has been made under paragraph 9D (2) (d), were ascertained
in accordance with subsection 9D (4).
(4) The allowance of a rebate under this section shall be deemed to form
part of an assessment under this Act.
ESTATE DUTY ASSESSMENT ACT 1914 - PART IV
PART IV - RETURNS AND ASSESSMENTS
ESTATE DUTY ASSESSMENT ACT 1914 - DIVISION 1
Division 1 - Returns
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 10
Returns to be lodged
SECT
10. (1) For the purpose of assessment and levy of estate duty, every
administrator shall, subject to this section, within the prescribed period,
furnish at the prescribed place a full and complete return of all the estate
of the deceased person in respect of whose estate he is the administrator.
(1A) Subsection (1) does not apply in relation to the estate of a person who
dies on or after 1 July 1979.
(2) A return under this section:
(a) shall be in accordance with a form approved by the Commissioner;
(b) shall contain such particulars as are required by the form; and
(c) shall be verified by the administrator by declaration as required by the
form.
(3) Unless he is required by the Commissioner by notice in writing so to do,
it shall not be necessary for the administrator to furnish a return in
accordance with subsection (1) in respect of an estate where:
(a) the whole of the estate passes to, or for the benefit of, a member or
members of the family of the deceased person; or
(b) the value of the estate does not exceed $20,000.
(4) Where, from information in his possession, the Commissioner is satisfied
that no duty would be payable on the estate of a deceased person, he may
inform the administrator, by notice in writing, that a return in pursuance of
this section is not required.
(5) In this section "value of the estate" means the value ascertained by
deducting from the gross value of the estate liable to be assessed all
thedeductions allowable under this Act except the deduction (if any) allowable
under section 18A.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 11
Commissioner may require further or other returns
SECT
11. The Commissioner may require an administrator to furnish such further or
other returns as he deems necessary for the full and complete assessment and
collection of the duty assessable under this Act, and may permit the
administrator or other person interested to make alterations in any return
furnished, upon the Commissioner being satisfied as to the necessity for the
alteration.
ESTATE DUTY ASSESSMENT ACT 1914 - DIVISION 2
Division 2 - Assessments
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 13
Arrangement with States to supply information
SECT
13. The Governor-General may make arrangements with the Governor of a State
for the supply to the Commissioner of particulars of assessments made by the
State for the purpose of collecting probate and succession duty under the laws
of the State.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 14
State valuations may be adopted
SECT
14. In assessing duty in accordance with this Act, the Commissioner may if
he thinks fit adopt, as far as it extends, the value of dutiable estate as
assessed for duty under a State law in respect of the same estate.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 15
Commissioner to make assessments
SECT
15. From the returns, particulars and values so furnished, supplied or
ascertained, and from any other information in his possession, or from any one
or more of these sources, and whether any return has been furnished or not,
the Commissioner shall cause an assessment to be made for the purpose of
ascertaining the amount upon which duty shall be levied in accordance with
this Act.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 16
Default assessments
SECT
16. If:
(a) any administrator makes default in furnishing any return; or
(b) the Commissioner is not satisfied with the return made by any
administrator; or
(c) the Commissioner has reason to believe that any estate (though no return
has been furnished) is dutiable;
the Commissioner may cause to be made an assessment of the amount on which, in
his judgment, duty ought to be levied, and the estate shall be liable to duty
thereon, except so far as the amount is, on appeal, shown to be excessive.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 16A
Value of shares and stock
SECT
16A. (1) Subject to section 16B, where the Commissioner is of the opinion
that it is necessary that the following provisions should apply for the
purpose of assessing the value for duty of an estate for the purposes of this
Act, the following provisions shall apply:
(a) the value of shares or stock in any company, whether incorporated in
Australia or elsewhere, shall be determined upon the assumption that the
memorandum and articles of association or rules of the company, at the date of
death, satisfied the requirements prescribed by the Committee or governing
authority of the Stock Exchange at the place where the share or stock register
is situate for the purpose of enabling that company to be placed on the
current official list of that Stock Exchange;
(b) no regard shall, in determining the value of any such shares or stock,
be had to any provision in the memorandum or articles of association or rules
of the company whereby or whereunder the value of the shares or stock of a
deceased or other member is to be determined; and
(c) where the estate includes any shares or stock in any company the shares
or stock of which are not or is not quoted in the official list of any Stock
Exchange, the Commissioner may, in his discretion, notwithstanding anything
contained in paragraphs (a) and (b), adopt as the value of any such shares or
stock such sum as the holder thereof would receive in the event of the company
being voluntarily wound up on the date of death.
(2) The Tribunal or a court having jurisdiction to determine, for the
purposes of this Act, the value of any shares or stock to which subsection (1)
applies, may substitute its own opinion for, or use its own discretion in lieu
of, any opinion or discretion of the Commissioner under that subsection.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 16B
Shares or stock to be valued on a winding up basis in certain cases
SECT
16B. Where:
(a) the administrator of an estate has made an election under paragraph 9D
(2) (d) in relation to shares or stock in the capital of a company, being
shares or stock included in the estate; and
(b) a rebate of duty in accordance with Part IIIA is allowable in respect of
the estate;
the value of the shares or stock is, for all purposes relating to the
assessment of duty, the value as ascertained in accordance with subsection 9D
(4).
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 17
Deductions from gross value of estate
SECT
17. (1) For the purpose of assessing the value for duty of the estate of a
deceased person, there shall, subject to this section, be deducted from the
gross value of the assessable estate:
(a) if the deceased person was domiciled in Australia at the time of his
death, all debts due and owing by him at the time of his death;
(b) if the deceased person was not domiciled in Australia at the time of his
death, all debts due and owing by him at the time of his death to persons
resident in Australia, or contracted to be paid in Australia, or charged on
property situate in Australia;
(c) Commonwealth and State income taxes assessed in respect of income
derived by him before the date of his death and Commonwealth income taxes
assessed in respect of any amount which is included in the assessable income
of the trust estate of the deceased person in accordance with the provisions
of section 101A the Income Tax Assessment Act 1936 and which is included in
the estate for the purposes of this Act; and
(d) Commonwealth and State land taxes assessed in respect of the ownership,
on or before the date of his death, of land owned or deemed to be owned by
him.
(1A) A reference in subsection (1) to a debt due and owing by a deceased
person at the time of his death does not include a reference to such a debt
that was incurred by him in respect of property upon which, by virtue of
subsection 8AA (5), duty is not to be assessed or payable.
(2) No deduction under this section shall be allowed in respect of:
(a) provisional tax or provisional contribution payable in pursuance of the
Income Tax Assessment Act 1936, or of the Social Services Contribution
Assessment Act 1945; or
(b) taxes paid before the date of the death of the deceased person.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 18A
Statutory exemption
SECT
18A. (1) From the value of the estate there shall be deducted:
(a) in the case of an estate in relation to which Part IIIA applies:
(i) where the value of the estate does not exceed $24,000 - a
sum equal to the value of the estate; or
(ii) where the value of the estate exceeds $24,000 - the sum of
$24,000 decreased by $2 for every $8 by which that value exceeds $24,000; or
(b) in any other case:
(i) where the value of the estate does not exceed $20,000 - a
sum equal to the value of the estate; or
(ii) where the value of the estate exceeds $20,000 - the sum of
20,000 decreased by $2 for every $8 by which that value exceeds $20,000;
and the balance remaining shall be the value for duty of the estate.
(2) For the purposes of this section, "value of the estate" means the value
ascertained by deducting from the gross value of the estate liable to be
assessed all the deductions allowable under this Act except the deduction
allowable under this section.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 19
Compounding duties
SECT
19. Where in the opinion of the Commissioner any estate is of such a nature
or is so disposed of or circumstanced that the value thereof is not fairly
ascertainable under this Act, he may compound the duty on such property on
such terms as he thinks fit, and may give a discharge to the administrator or
to any other person interested in the property upon payment of the duty
according to such composition.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 20
Amendment of assessments
SECT
20. (1) The Commissioner may, subject to this section, at any time amend any
assessment by making such alterations therein or additions thereto as he
thinks necessary, notwithstanding that duty may have been paid in respect of
the assessment.
(2) Where an administrator has not made to the Commissioner a full and true
disclosure of all the material facts necessary for the making of an
assessment, and there has been an avoidance of duty, the Commissioner may:
(a) where he is of opinion that the avoidance of duty is due to fraud or
evasion - within 12 years from the date upon which the duty became due and
payable under the assessment; and
(b) in any other case - within 3 years from the date upon which the duty
became due and payable under the assessment;
amend the assessment by making such alterations therein or additions thereto
as he thinks necessary to correct an error in calculation or a mistake of fact
or to prevent avoidance of duty, as the case may be.
(3) Where an administrator has made to the Commissioner a full and true
disclosure of all the material facts necessary for the making of an
assessment, and an assessment is made after that disclosure, no amendment of
the assessment increasing the liability of the estate in any particular shall
be made except to correct an error in calculation or a mistake of fact, and no
such amendment shall be made after the expiration of 3 years from the date
upon which the duty became due and payable under that assessment.
(4) No amendment effecting a reduction in the liability of an estate under
an assessment shall be made except to correct an error in calculation or a
mistake of fact, and no such amendment shall be made after the expiration of 3
years from the date upon which the duty became due and payable under that
assessment.
(5) Where an assessment has, under this section, been amended in any
particular, the Commissioner may, within 3 years from the date upon which the
duty became due under the amended assessment make, in respect of that
particular, such further amendment in the assessment as, in his opinion, is
necessary to effect such reduction in the liability of the estate under the
assessment as is just.
(6) Where an application for an amendment of the assessment of an estate is
made within 3 years from the date upon which the duty became due and payable
under that assessment, and the administrator has supplied to the Commissioner
within that period all information needed by the Commissioner for the purpose
of deciding the application, the Commissioner may amend the assessment when he
decides that application notwithstanding that that period has elapsed.
(6A) Nothing contained in this section shall prevent the amendment of an
assessment, either to reduce or (except in the case of an assessment made
before the commencement of this subsection) to increase the duty payable in
respect of an estate, in order to take account, for the purposes of this Act,
of any assessment, or any amendment of an assessment, of probate or succession
duties payable in relation to the estate under any State Act or of any refund
or rebate of, or any alteration in the amount of, any such probate or
succession duties payable in relation to the estate, but no amendment shall be
made under this subsection after the expiration of 3 years from the date upon
which duty became due and payable under the first-mentioned assessment.
(7) Nothing contained in this section shall prevent the amendment of any
assessment in order to give effect to the decision upon any appeal, or its
amendment by way of reduction in any particular in pursuance of any objection
made by the administrator or pending any appeal.
(7A) Where the value of any property included in an estate, being shares or
stock in the capital of a company, has been ascertained in an assessment in
respect of the estate on the basis referred to in subsection 9D (4) and:
(a) a rebate of duty in accordance with Part IIIA is not allowable in
respect of the estate; or
(b) the election made under paragraph 9D (2) (d) in relation to the estate
has been withdrawn;
nothing in this section prevents the amendment of the assessment for the
purpose of ascertaining the value of the shares or stock on a different basis.
(8) Where:
(a) any provision of this Act is expressly made to depend in any particular
upon a determination, opinion or judgment of the Commissioner; and
(b) any assessment is affected in any particular by that determination,
opinion or judgment;
then if, after the making of the assessment it appears to the Commissioner
that the determination, opinion or judgment was erroneous, he may correct it
and amend the assessment accordingly in the same circumstances as he could
under this section amend an assessment by reason of a mistake of fact.
(9) Every alteration or addition which has the effect of imposing any fresh
liability, or increasing any existing liability, shall be notified to the
administrator affected or other person liable to pay the duty, and unless made
with his consent shall be subject to objection.
(10) An administrator shall be liable only for such additional or increased
duty to the extent of any property then under his control or which can be
applied by him for payment of such duty, unless it is owing to fraud or
evasion on his part that the proper amount of duty was not paid in the first
instance, in which case he shall be personally liable for the additional or
increased duty.
(11) Where, by reason of an amendment of an assessment, a person's liability
to duty is reduced:
(a) the amount by which the duty is so reduced shall be taken, for the
purposes of section 31, never to have been payable; and
(b) the Commissioner shall:
(i) refund the amount of any duty overpaid; or
(ii) apply the amount of any duty overpaid against any liability
of the person to the Commonwealth, being a liability arising under, or by
virtue of, an Act of which the Commissioner has the general administration,
and refund any part of the amount not so applied.
(12) In this section, unless the contrary intention appears, "duty" includes
additional duty under section 31 or 46.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 21
Validity of assessments
SECT
21. The validity of any assessment shall not be affected by reason that any
provisions of this Act have not been complied with.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 22
Evidence
SECT
22. (1) Production of any assessment or of any document under the hand of
the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to
be a copy of an assessment shall:
(a) be conclusive evidence of the due making of the assessment; and
(b) be conclusive evidence that the amount and all particulars of the
assessment are correct, except in proceedings under Part IVC of the Taxation
Administration Act 1953 on an appeal or review relating to the assessment when
it shall be prima facie evidence only.
(2) The production of any document under the hand of the Commissioner
purporting to be a copy of or extract from any return or assessment shall for
all purposes be sufficient evidence of the matter therein set forth, without
the production of the original.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 23
Notice of assessment
SECT
23. (1) As soon as conveniently may be after an assessment is made the
Commissioner shall cause notice in writing of the assessment to be given to
the person liable to pay the duty.
(2) The omission to give any such notice shall not invalidate the
assessment.
(3) In subsection (1), "duty" includes additional duty under section 46.
ESTATE DUTY ASSESSMENT ACT 1914 - SECT 23A
Objections
SECT
23A. An administrator who is dissatisfied with an assessment in relation to
the administrator may object against it in the manner set out in Part IVC of
the Taxation Administration Act 1953.
ESTATE DUTY ASSESSMENT ACT 1914 - PART VI
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