Financial Institutions Duty Act 1983 (SA)
South Australia
Financial Institutions Duty Act 1983
An Act to make provision for a duty on financial receipts; and for other purposes.
Contents
Part 1—Preliminary
1Short title
3Interpretation
4Application of Act to Crown
5Certain bodies not to be regarded as financial institutions
6Receipts to which this Act applies
6ANon-application of Act to receipts after 30 June 2001
7Definition of dutiable and non-dutiable receipts
8Short-term dealings
9Declaration of short-term dealer in unofficial market
9ATaxation Administration Act
Part 3—Grouping of financial institutions
13Interpretation
14Grouping of corporations
15Grouping where employees used in another business
16Grouping of commonly controlled businesses
17Smaller groups subsumed into larger groups
18Grouping provisions to operate independently
19Beneficiaries under discretionary trusts
20Exclusion of persons from groups
20AContributions from persons jointly liable to pay duty
Part 4—Registration
Division 1—Financial institutions
21Registration of financial institutions
22Returns by financial institutions
23Returns by a nominated member of a group of financial institutions
25Further returns
Division 2—Short-term money market operators
26Registration of short-term money market operators
27Returns by registered short-term money market operators
28Further returns
Part 5—Liability to duty
29Financial institutions duty
30Financial institutions duty in respect of certain short-term dealings
30ATime for payment of financial institutions duty
Part 6—Exempt accounts
31Special ADI accounts of non-ADI financial institutions
32Short-term dealing account of registered short-term money market operator
33Sweeping accounts
34Other special accounts
35Government Department account
36Cancellation of designation of account
36AOffence where certain payments are made to exempt accounts
37Payments and returns by account holders
Part 10—Miscellaneous
62Undertaking by financial institution
63Applications by financial institutions to pay receipts to the credit of non-exempt ADI accounts
75Passing on duty
76Depositors with unregistered financial institutions
77Regulations
78Repeal
Schedule—Transitional provisions
1Commencement of consequential regulations
Legislative history
The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Financial Institutions Duty Act 1983.
3—Interpretation
(1)In this Act, unless the contrary intention appears—
ADI means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth;
approved government instrumentality means—
(a)an instrumentality or agency of the Crown in right of the State; or
(b)a department of the Government of the State,
declared by the Treasurer, by notice in the Gazette, to be an approved government instrumentality for the purposes of this Act;
bill of exchange means an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person or to bearer;
books includes financial records of any kind (whether in documentary or other form);
cash means money in the form of cash, bills of exchange or a combination of cash and bills of exchange;
cash delivery company means a company the principal business of which is—
(a)the collection, transportation and delivery of cash; or
(b)the preparation and delivery of pay-rolls;
charitable organisation means a body established on a non-profit basis for charitable, religious, educational or benevolent purposes and includes a trustee who holds property on behalf of such a body;
Commissioner means the person appointed or acting as the Commissioner of State Taxation, and includes a person appointed or acting as a Deputy Commissioner of State Taxation (see Part 9 of the Taxation Administration Act 1996);
company means a body corporate or an unincorporated association (including a partnership);
corporation has the same meaning as is assigned to the term by section 9 of the Corporations Law;
deal has the same meaning as is assigned to the term by section 9 of the Corporations Law in relation to securities, and dealing has a corresponding meaning;
dealer in securities has the same meaning as is assigned to the term dealer by section 9 of the Corporations Law;
exempt account means—
(a)a Government Department account;
(b)a short-term dealing account;
(c)a special account;
(d)a sweeping account;
financial institution means—
(a)an ADI; or
(b)a person whose sole or principal business is the provision of finance; or
(c)a dealer in securities; or
(d)a trustee company; or
(e)a management company within the meaning of section 9 of the Corporations Law that carries on business in South Australia; or
(f)a pastoral finance company; or
(g)the Public Trustee,
but does not include the Reserve Bank of Australia or a person declared by or under this Act not to be a financial institution;
financial institutions duty means duty payable under section 29, 30 or 76;
Government Department account means an account kept by a financial institution in respect of which a notice given under section 35 is in force;
money includes a bill of exchange and a promissory note;
pastoral finance company means a person carrying on a business of financing pastoral pursuits or a business of stock or station agents to whom an order in force under section 11 of the Banking Act 1959 of the Commonwealth applies;
person includes a company;
the prescribed percentage, in relation to money received by a financial institution, means—
(a)where the money is received by the financial institution before 1 October, 1990—0.04 per cent;
(b)where the money is received by the financial institution on or after 1 October 1990 and before 1 June 1993—0.1 per cent;
(c)where the money is received by the financial institution on or after 1 June 1993—0.065 per cent;
promissory note means an unconditional promise in writing made by one person to another, signed by the maker, arranging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person or to bearer;
receipt includes a payment, repayment, deposit or subscription and the crediting of an account;
registered financial institution means—
(a)a financial institution that is registered under this Act; or
(b)a financial institution that, under section 62, is taken to be a registered financial institution;
registered short-term money market operator means a person registered as a short-term money market operator under this Act;
the relevant amount means—
(a)in relation to any month before October 1990—$1 000 000;
(b)in relation to any month from October 1990 to May 1993—$1 200 000;
(c)in relation to any month from June 1993—$1 846 154;
return period, in relation to a financial institution or a registered short-term money market operator, means a period in respect of which the financial institution or registered short-term money market operator is required to furnish a return under this Act;
rollover in relation to a term deposit means the renewal with or the retention by a financial institution of the whole or part of the term deposit (either at call or for a further specified period) at the end of the specified period for which the term deposit was previously made;
securities has the same meaning as is assigned to the term by section 9 of the Corporations Law;
share includes stock;
short-term dealer means—
(a)a corporation that, under section 65(1)(a) of the Corporations Law is declared to be an authorised dealer in the short-term money market; or
(b)a body corporate in respect of which a declaration under section 9 is, or is taken to be, in force;
short-term dealing account means an account kept by an ADI in respect of which a certificate issued by the Commissioner under section 32 is in force;
special account means an account kept by an ADI in respect of which a certificate issued by the Commissioner under section 31 or 34 is in force;
sweeping account means an account kept by an ADI in respect of which a certificate issued under section 33 is in force;
term deposit means a deposit of money with a financial institution for a specified period, or a specified period and then at call, in relation to which deposit the financial institution, instead of crediting a current account kept by the financial institution, issues a certificate of deposit or similar record of deposit;
trustee company means—
(a)a company upon which power to act as trustee has been conferred by an Act of Parliament of a State; or
(b)a prescribed company or a company of a prescribed class;
voting share has the same meaning as is assigned to the term by section 9 of the Corporations Law.
(2)A reference in this Act to the provision of finance includes a reference to—
(a)the borrowing of money or the obtaining of other financial accommodation, including the issue of share capital by a building society or credit union;
(b)the dealing in—
(i)securities; or
(ii)bills of exchange; or
(iii)promissory notes; or
(iv)certificates of deposit; or
(v)any matter or thing prescribed for the purposes of this paragraph;
(c)the lending of money, with or without security;
(d)the purchase, acquisition, discounting or factoring of debts due to another person.
(3)In this Act, a reference to carrying on a business of a particular kind includes reference to carrying on that business in the course of, as part of, incidentally to, or in connection with, the carrying on of another business.
(4)For the purposes of this Act, the value of a bill of exchange or a promissory note will be taken to be its nominal or face value.
(5)Where money is received or a liability incurred in a currency other than the currency of Australia, the amount of that receipt or liability is, for the purposes of this Act, the equivalent amount in the currency of Australia calculated at a rate of exchange that was a relevant ruling telegraphic transfer buying rate of exchange in Australia on the day on which the money was received or the liability incurred.
4—Application of Act to Crown
This Act binds the Crown not only in the right of the State but also, so far as the legislative power of the State permits, in all its other capacities.
5—Certain bodies not to be regarded as financial institutions
(1)None of the following is a financial institution:
(a)a corporation the sole or principal business in South Australia of which is the operation of an approved superannuation scheme; or
(b)a trustee of an approved superannuation scheme in that capacity; or
(c)a corporation that is registered under the Life Insurance Act 1945 of the Commonwealth; or
(d)a corporation the sole or principal business in South Australia of which is insurance business as defined by section 3(1) of the Insurance Act 1973 of the Commonwealth; or
(e)a corporation that is a medical benefits organisation or a hospital benefits organisation registered under the National Health Act 1953 of the Commonwealth; or
(f)a dealer in securities who carries on the business of dealing in securities solely—
(i)in the capacity of official receiver or trustee within the meaning of the Bankruptcy Act 1966 of the Commonwealth; or
(ii)in the capacity of receiver, receiver and manager or other person appointed by a court to carry on the business concerned; or
(g)a dealer in securities, being a corporation, that acts as a dealer only in relation to its own debentures; or
(h)the Treasurer; or
(i)Credit Union Services Corporation (Australia) Limited; or
(l)any prescribed person or person of a prescribed class.
(2)For the purposes of subsection (1)(a) and (b), an approved superannuation scheme means—
(a)a scheme of superannuation retirement benefit or pension created for the benefit of employees or self-employed persons, not being a scheme declared under subsection (3) not to be an approved superannuation scheme for the purposes of this Act; or
(b)a scheme of superannuation retirement benefit or pension created and operated by or under any law of the Commonwealth or of a State or Territory.
(3)Where there are fewer than 20 contributors to a superannuation scheme, the Treasurer may, by notice given to the person by whom the scheme is operated, declare the scheme not to be an approved superannuation scheme for the purposes of this Act.
6—Receipts to which this Act applies
(1)Except as otherwise provided, this Act applies to—
(a)a receipt of money in the State; and
(b)a receipt of money outside the State in pursuance of a transaction of which—
(i)South Australian law is the proper law; or
(ii)South Australian law would have been the proper law had not the parties expressly or by implication determined upon the law of some other place as the law to govern the transaction.
(2)Where a person receives a consideration, other than money (whether or not in consideration of having given credit to any person), in or towards settlement, satisfaction or discharge of any debt or obligation owing to that person, the person will, on receiving the consideration, be taken, for the purposes of this Act, to have received an amount of money equal to the value of that consideration.
(3)For the purposes of this Act, the crediting of an account of a person, including the crediting of an account effected by means of an entry or record made by use of a machine or device, will be taken to constitute a receipt of money by the person by whom the account is kept.
(4)A reference to the crediting of an account includes—
(a)the depositing of money to the credit of the account by the person in whose name the account is kept or by another person; and
(b)without limiting the generality of paragraph (a), the transfer of money to the credit of the account from another account of the person in whose name the account is kept or from an account of another person; and
(c)the transfer between ledgers or divisions in an account where different terms and conditions apply in respect of those ledgers or divisions.
(5)Where a receipt arises by virtue of the crediting of an account, the receipt will be regarded as a receipt of money in the State if—
(a)the account was established at an office or branch of a financial institution situated in the State and has not been transferred to an office or branch situated outside the State; or
(b)the account was established at an office or branch of a financial institution situated outside the State but has been transferred (and was last transferred) to an office or branch situated in the State.
(6)Where—
(a)an account kept by a financial institution is debited by the financial institution with an amount that is to be invested, on the instructions of the person on whose behalf the account is kept, with the financial institution; and
(b)there is no corresponding credit to an account that constitutes a dutiable receipt for the purposes of this Act,
the amount so debited will be regarded as a receipt of money by the financial institution.
(7)An entry made in an account of a financial institution by that financial institution solely in accordance with its internal accounting practices does not constitute a dutiable receipt.
(8)Where a financial institution provides cash to a person in exchange for a cheque, the financial institution will not be regarded as having received money, except to the extent that the value of the cheque exceeds the amount of the cash given in exchange.
(9)Where a financial institution provides a cheque to a person in exchange for cash, the financial institution will not be regarded as having received money, except to the extent that the amount of cash exceeds the value of the cheque given in exchange.
(10)If a term deposit constitutes a short term dealing and the amount involved in the dealing is rolled over into a deposit or investment that does not constitute a short term dealing, the rollover will be regarded as a receipt of money of the amount so rolled over.
6A—Non-application of Act to receipts after 30 June 2001
This Act does not apply to a receipt that occurs after 30 June 2001.
7—Definition of dutiable and non-dutiable receipts
(1)Subject to this section, a receipt to which this Act applies is a dutiable receipt.
(2)The following are, for the purposes of this Act, non-dutiable receipts:
(a)a receipt of money for the credit of an exempt account; or
(b)a receipt of money in the course of short-term dealings during a month by a registered financial institution that is a registered short-term money market operator, being a receipt that is taken into consideration for the purposes of ascertaining the average daily liability of the financial institution during that month; or
(c)a receipt of money by a registered financial institution, being the repayment of money that has been invested in the course of short-term dealings by, or on behalf of, the financial institution; or
(d)a receipt of money by a registered financial institution from another registered financial institution in the normal course of clearing procedures between financial institutions; or
(g)a receipt of money by an ADI that is a registered financial institution for the credit of a foreign exchange clearing account or foreign exchange settlement account; or
(h)a receipt of money by a dealer in securities as agent in respect of the issue of securities, bills of exchange (other than cheques), promissory notes or certificates of deposit (not including an amount that is a fee or commission); or
(i)a receipt of money by a dealer in securities in respect of a sale or purchase of securities that is liable to duty under Part 3A of the Stamp Duties Act 1923 (not including an amount that is a fee or commission); or
(j)a receipt of money—
(i)by a management company from a person who is the trustee or representative for the purposes of a deed relating to the management company in accordance with Division 5 of Chapter 7.12 of the Corporations Law; or
(ii)by such a trustee or representative from such a management company; or
(k)a receipt of money by a trustee company or the Public Trustee from the estate of a deceased person committed to the management of the trustee company or the Public Trustee; or
(l)a receipt of money by a pastoral finance company that is a registered financial institution other than a receipt that is an amount received by the pastoral finance company in the course of banking business carried on by it or in the course of short-term dealings; or
(m)a receipt of money by a financial institution solely by reason of the making of an entry in an account kept by the financial institution in error, to correct an error or by reason of the dishonour of a cheque; or
(ma)a receipt of money by a financial institution solely by reason of the making of an entry in an account kept by the financial institution in respect of money paid into the account by means of a cheque that is subsequently dishonoured or stopped; or
(n)a receipt of money by a financial institution in consideration of the supply of goods by the financial institution (otherwise than in the course of carrying on rental business within the meaning of the Stamp Duties Act 1923); or
(o)a receipt of money by a registered financial institution from, or on behalf of, a person for whose benefit the financial institution has drawn, accepted or endorsed a bill of exchange, the term of which bill of exchange is not more than 185 days and the face or nominal value of which is not less than $50 000, being a receipt to satisfy the amount of the financial institution's engagement on the bill of exchange; or
(p)a receipt of money by a registered financial institution from a charitable organisation for the purpose of investing that money; or
(q)a receipt of money by an ADI that is a registered financial institution, being a payment to the credit of an account kept by that financial institution of an amount payable to the person in whose name the account is kept under or by virtue of the Veterans' Entitlements Act 1986 of the Commonwealth or any other Act of the Commonwealth Parliament relating to the repatriation of members of the military forces of the Commonwealth; or
(r)a receipt of a class declared by regulation to be non-dutiable.
(3)Despite subsection (2)(a), a receipt to the credit of an exempt account will, unless the receipt has been credited to an account in the books of the person in whose name the exempt account is kept, be regarded as a dutiable receipt by that person.
(4)Where money is received in the State by a financial institution (otherwise than by the crediting of an account) for the credit of an account kept by the financial institution and the crediting of that account will constitute a dutiable receipt for the purposes of this Act, the initial receipt is non-dutiable.
(5)Where money is received in the State by a financial institution (otherwise than by the crediting of an account) for the credit of an account kept by some other financial institution and the crediting of that account will constitute a dutiable receipt for the purposes of this Act, the receipt by the firstmentioned financial institution is non-dutiable.
(6)Where—
(a)a financial institution acts as agent for the purpose of collecting money on behalf of a person who is declared, or is a member of a class declared, by the Treasurer, by notice in the Gazette, to be a person, or a class of persons, in relation to whom the provisions of this subsection apply; and
(b)the money so collected is not paid to an account kept by the financial institution in the name, or on behalf, of that person,
the receipt of money by the financial institution in the course of its agency is non-dutiable.
(7)Credit Union Services Corporation (Australia) Limited will be taken for the purposes of subsection (2)(d) to be a registered financial institution.
8—Short-term dealings
(1)For the purposes of this Act, an amount is received by a person in the course of short-term dealings where—
(a)the amount is an amount of cash of not less than $50 000 received by that person by way of loan, advance or deposit repayable by him or her—
(i)at call; or
(ii)within 185 days; or
(iii)at call after a term of not more than 185 days,
not being an amount received by an ADI by way of deposit repayable on demand or for the credit of a current account kept by it for another person; or
(b)the amount is a repayment of a loan, advance or deposit of not less than $50 000 made by that person within 185 days before the amount is repaid; or
(c)the amount is an amount (not including a fee or commission) in respect of the issue of securities, bills of exchange (other than cheques), promissory notes or certificates of deposit, the term of which is not more than 185 days; or
(d)the amount is an amount (not including a fee or commission) in respect of a sale or purchase of securities, the term of which is not more than 185 days, being a sale or purchase that is not liable to duty under Part 3A of the Stamp Duties Act 1923; or
(e)the amount is the proceeds of the sale by that person of a bill of exchange or a promissory note before maturity and not later than 185 days after its acquisition by that person, not being a bill of exchange or a promissory note issued by that person; or
(f)the amount is the proceeds of the sale by that person of securities or certificates of deposit before maturity and not later than 185 days after their acquisition by that person; or
(g)the amount is the amount received by that person on maturity of securities, bills of exchange, promissory notes or certificates of deposit acquired by him or her within 185 days before the amount was received.
(2)A reference in subsection (1) to a bill of exchange, promissory note or certificate of deposit is a reference to a bill of exchange, promissory note or certificate of deposit, the face or nominal value of which is not less than $50 000.
(3)For the purposes of this Act, the average daily liability of a person during a month in respect of short-term dealings is—
(a)where the person is a registered financial institution (not being a person entitled to make application under section 32 for approval of an account as a short-term dealing account)—the amount calculated in accordance with the formula
where—(i)A is the sum of the daily closing balances of the liability of the financial institution to each person (not being a charitable organisation) in respect of amounts received whether within or outside South Australia (other than amounts included in a return by the financial institution under section 22) from that person in the course of short-term dealings, other than balances that are less than $50 000; and
(ii)B is the number of days in the month; and
(b)where the person is a person in whose name a short-term dealing account is kept by an ADI—the amount calculated in accordance with the formula
where—(i)A is the sum of the daily closing balances of the liability of the ADI to that person under that account; and
(ii)B is the number of days in the month.
9—Declaration of short-term dealer in unofficial market
(1)The Commissioner may, by notice in the Gazette, declare a corporation that is a dealer in the unofficial short-term money market to be a short-term dealer for the purposes of this Act.
(2)The Commissioner may, by notice published in the Gazette, revoke a declaration under subsection (1).
9A—Taxation Administration Act
This Act should be read together with the Taxation Administration Act 1996 which makes provision for the administration and enforcement of this Act and other taxation laws.
Part 3—Grouping of financial institutions
13—Interpretation
In this Part—
business includes—
(a)a trade or profession; and
(b)any other activity carried on for fee, gain or reward; and
(c)the activity, carried on by an employer, of employing one or more persons where that person performs or those persons perform duties for or in connection with another business.
14—Grouping of corporations
For the purposes of this Act, financial institutions that are corporations constitute a group if they are, for the purposes of the Corporations Law, related to each other.
15—Grouping where employees used in another business
For the purposes of this Act, where—
(a)an employee of a financial institution, or two or more employees of a financial institution, performs or perform duties solely or mainly for or in connection with a business carried on by that financial institution and another financial institution or other financial institutions, or by another financial institution or other financial institutions; or
(b)a financial institution has, in respect of the employment of, or the performance of duties by, one or more of its employees, an agreement, arrangement or undertaking (whether formal or informal, whether expressed or implied and whether or not the agreement, arrangement or undertaking includes provisions in respect of the supply of goods and services) with another financial institution or other financial institutions relating to a business carried on by that other financial institution or those other financial institutions, whether alone or together with another financial institution or other financial institutions,
that financial institution and—
(c)each such other financial institution; or
(d)both or all of those other financial institutions,
constitute a group.
16—Grouping of commonly controlled businesses
(1)A reference in this section to two businesses does not include a reference to two businesses both of which are owned by the same person or persons, not being a trustee or trustees, or by the trustee or trustees of a trust.
(2)For the purposes of this Act, where the same person (whether or not being a financial institution) has, or the same persons have together, a controlling interest, as referred to in subsection (3), in each of two businesses, being carried on by two or more financial institutions, the financial institutions that carry on those businesses constitute a group.
(3)For the purposes of subsection (2), the same person has, or the same persons have together, a controlling interest in each of two businesses if that person has, or those persons have together, a controlling interest under any of the following paragraphs in one of the businesses and a controlling interest under the same or another of those paragraphs in the other business:
(a)a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation, if the directors or a majority of the directors or one or more of the directors, being a director or directors who is or are entitled to exercise a majority in voting power at meetings of the directors, of the corporation are or is accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of that person or of those persons acting together;
(b)a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation that has a share capital, if that person or those persons acting together may (whether directly or indirectly) exercise, control the exercise of, or substantially influence the exercise of, 50 per cent or more of the voting power attached to voting shares issued by the corporation;
(c)a person has, or persons have together, a controlling interest in a business, being a business carried on by a partnership, if that person or those persons—
(i)owns, or own together (whether beneficially or not beneficially), 50 per cent or more of the capital of the partnership; or
(ii)is, or are together, entitled (whether beneficially or not beneficially) to 50 per cent or more of the profits of the partnership;
(d)a person has, or persons have together, a controlling interest in a business, being a business carried on under a trust, if that person (whether or not as the trustee of another trust) is a beneficiary or those persons (whether or not as the trustees of another trust) are together beneficiaries, in respect of 50 per cent or more of the value of the interests in the firstmentioned trust;
(e)a person has, or persons have together, a controlling interest in a business, if that person (whether or not a trustee of a trust) is the sole owner of the business or those persons (whether or not trustees of a trust) are the owners of the business.
(4)Where a corporation has a controlling interest under subsection (3) in a business, it will be taken to have a controlling interest in any other business in which another corporation that is, for the purposes of the Corporations Law, related to it has a controlling interest.
(5)Where—
(a)a person is a beneficiary under a trust; or
(b)two or more persons together are beneficiaries under a trust,
in respect of 50 per cent or more of the value of the interests in that trust and the trustee or trustees of that trust has or have under subsection (3) a controlling interest in a business, that beneficiary or those beneficiaries will, for the purposes of that subsection, be taken to have a controlling interest in that business.
(6)Where—
(a)a person has, or persons have together, a controlling interest under subsection (3) in a business being carried on by a financial institution or by two or more financial institutions; and
(b)the financial institution or financial institutions that carries or carry on that business has or have a controlling interest under subsection (3) in another business,
the person or persons referred to in paragraph (a) will be taken to have a controlling interest for the purposes of that subsection in the business referred to in paragraph (b).
17—Smaller groups subsumed into larger groups
(1)Despite any other provision of this Part (except subsection (2) of this section), where a financial institution is, whether or not by virtue of this subsection, a member of two or more groups (each of which is in subsection (2) referred to as a smaller group), all of the members of those groups constitute, for the purposes of this Act, one group.
(2)Except for the purpose of determining whether a group is constituted under subsection (1), a group which, but for this subsection, would be a smaller group ceases to be a group if its members are members of a group constituted under subsection (1).
18—Grouping provisions to operate independently
The fact that a financial institution is not a member of a group constituted under a provision of this Part does not prevent that financial institution from being a member of a group constituted under another provision of this Part.
19—Beneficiaries under discretionary trusts
A person who, as the result of the exercise of a power or discretion by the trustee of a discretionary trust or by any other person or by that trustee and other person, may benefit under that trust will be taken, for the purposes of this Part, to be a beneficiary in respect of 50 per cent or more of the value of the interests in that trust.
20—Exclusion of persons from groups
(1)Where the Commissioner is satisfied, having regard to the nature and degree of ownership or control of the businesses, the nature of the businesses and any other matters that the Commissioner considers relevant, that a business carried on by a member of a group is carried on substantially independently of, and is not substantially connected with the carrying on of, a business carried on by any other member of that group, the Commissioner may, by notice in writing served on that firstmentioned member, exclude that member from that group.
(2)The Commissioner cannot exercise the power conferred by subsection (1) so as to exclude a financial institution from a group on and from a date if that financial institution is or was on that date a corporation related, for the purposes of the Corporations Law, to another corporation which is a member of that group.
(3)Despite any other provision of this Part, a notice under subsection (1) has effect according to its tenor on and from the date specified in the notice (being a date that is the date of the notice or before the date of the notice) as the date on and from which the financial institution referred to in the notice is or will be taken to have been excluded from the group referred to in the notice.
20A—Contributions from persons jointly liable to pay duty
(1)A person who, during a period, is or was a member of a group within the meaning of this Part is jointly and severally liable with the other persons who are or were members of the group during that period to pay duty payable by members of that group in respect of that period.
(2)Where two or more persons are jointly liable to pay duty, they are each liable for the whole duty, but any of them who has paid the duty may recover contributions as follows:
(a)a person who has paid duty may recover by way of contribution from any other person jointly liable to pay that duty a sum which bears to the duty the same proportion as the share of dutiable receipts or average daily liability which that other person received or paid bears to the total dutiable receipts or average daily liability which the persons jointly liable to the duty received or paid;
(b)a person entitled to contribution under this section may recover it in a court of competent jurisdiction as money paid to the use of the person liable to contribute, or may retain or deduct the amount of the contribution out of any money in his or her hands belonging or payable to the person liable to contribute.
(3)In this section—
duty means financial institutions duty, and includes penalty tax and interest payable under Part 5 of the Taxation Administration Act 1996 in relation to financial institutions duty.
Part 4—Registration
Division 1—Financial institutions
21—Registration of financial institutions
(1)Subject to this Act, a financial institution (not being a member of a group) and each financial institution that is a member of a group, being a financial institution or group which—
(a)during the preceding 12 months had dutiable receipts totalling more than $5 000 000; or
(b)during the preceding month had dutiable receipts totalling more than $416 666,
must, within 21 days after the end of that period or month, apply to the Commissioner in a manner and form approved by the Commissioner for registration as a financial institution under this Act.
(2)Subsection (1) does not apply to a registered financial institution.
(2a)A financial institution that fails to make an application to the Commissioner as required under subsection (1) is guilty of an offence.
Maximum penalty: $10 000.
(3)A financial institution that is not required to apply for registration may at any time apply to the Commissioner for registration as a financial institution under this Act.
(4)The Commissioner—
(a)will, upon receipt of an application under subsection (1), register the financial institution; and
(b)may, upon receipt of an application under subsection (3), register the financial institution.
(5)The Commissioner may cancel the registration of a financial institution (not being a member of a group) if—
(a)during the preceding 12 months the total of the dutiable receipts of the financial institution did not exceed $5 000 000; and
(b)during the preceding month the total of the dutiable receipts of the financial institution did not exceed $416 666,
or if, in the Commissioner's opinion, the total of the dutiable receipts of the financial institution during the succeeding 12 months is not likely to exceed $5 000 000.
(6)The Commissioner may cancel the registration of a financial institution that is a member of a group if—
(a)during the preceding 12 months the total of the dutiable receipts of the group did not exceed $5 000 000; and
(b)during the preceding month the total of the dutiable receipts of the group did not exceed $416 666,
or if, in the Commissioner's opinion, the total of the dutiable receipts of the group during the succeeding 12 months is not likely to exceed $5 000 000.
(7)Where a financial institution is registered only by reason of being a member of a group, the Commissioner may, upon the financial institution ceasing to be a member of a group, cancel its registration.
(8)No financial institution is to be registered under this section after 30 June 2001 (and no application for registration is required or permitted after that date) but this subsection does not prevent the recovery of financial institutions duty from a financial institution that should have been, but was not, registered before that date.
22—Returns by financial institutions
(1)Subject to this Act, each financial institution that is registered or required to apply for registration under this Act must, within 21 days after the end of each month, lodge with the Commissioner, in a manner and form approved by the Commissioner, a return relating to that month in which is specified—
(a)the total of the dutiable receipts other than the dutiable receipts referred to in paragraph (b); and
(b)the number of dutiable receipts of, or exceeding, the relevant amount,
that were received by the institution during that month.
(2)A return is not required under this section in relation to July 2001 or a later month.
23—Returns by a nominated member of a group of financial institutions
(1)Where, in relation to a group of financial institutions that has made application under this section, the Commissioner is of the opinion that, having regard to—
(a)the size of the group; and
(b)the financial institutions that constitute the group; and
(c)any other relevant matters,
it is expedient so to do, the Commissioner may nominate a member of that group to lodge, within 21 days after the end of each month, with the Commissioner, in a manner and form approved by the Commissioner, a return relating to that month in which is specified—
(d)the total dutiable receipts of each member of the group during that month other than dutiable receipts referred to in paragraph (e); and
(e)the number of dutiable receipts of each member of the group during that month of, or exceeding, the relevant amount; and
(f)the total dutiable receipts of each member of the group during the period of 12 months immediately preceding that month.
(2)Where a member of a group nominated under subsection (1) lodges a return with the Commissioner in accordance with that subsection, each member of the group specified in the return will be taken to have lodged, when that return is lodged, a return under section 22.
(3)A nomination under subsection (1) may be either unconditional or subject to such conditions as the Commissioner thinks fit.
(4)The Commissioner may at any time, by notice in writing, revoke any nomination under subsection (1).
25—Further returns
The Commissioner may, by notice in writing, require a financial institution to lodge with the Commissioner a return or further or fuller return as required by the Commissioner.
Division 2—Short-term money market operators
26—Registration of short-term money market operators
(1)A person may make application to the Commissioner in a manner and form approved by the Commissioner for registration as a short-term money market operator for the purposes of this Act.
(2)A person may not make application under this section unless—
(a)the person is a short-term dealer; or
(b)the person carries on a business in South Australia of dealing in securities, bills of exchange, promissory notes or certificates of deposit in the short-term money market, or of making or receiving loans, advances or deposits in the short-term money market.
(3)Where the Commissioner is satisfied that an application under this section is duly made, the Commissioner may register the applicant as a short-term money market operator under this Act.
(4)The Commissioner may, by notice in writing given to a person who is a registered short-term money market operator, cancel the person's registration where satisfied that the person—
(a)has ceased to be a person who may make application for registration under this section; or
(b)has paid money to an exempt account in contravention of Part 6,
and may determine a period, not exceeding one year, during which the person is ineligible to make application under this section.
27—Returns by registered short-term money market operators
(1)A registered short-term money market operator must, within 21 days after the end of each month, lodge with the Commissioner, in a manner and form approved by the Commissioner, a return relating to that month and must specify in that return the operator's average daily liability in respect of short-term dealings during that month and the daily amounts used in calculation of that average daily liability.
(2)A return is not required under this section in relation to July 2001 or a later month.
28—Further returns
The Commissioner may, by notice in writing, require a registered short-term money market operator to lodge with the Commissioner a return or further or fuller return as required by the Commissioner.
Part 5—Liability to duty
29—Financial institutions duty
(1)Subject to this Act, a financial institution that receives money during a month is liable to pay financial institutions duty in respect of each such receipt to which this Act applies.
(2)The amount of financial institutions duty payable by a financial institution in respect of each receipt of money is—
(a)the prescribed percentage of the money received; or
(b)$1 200,
whichever is the less.
(3)Subsection (1) does not apply to a non-dutiable receipt.
(4)A financial institution is not liable to pay duty under this section in respect of the receipt of money during a month if it is not registered under this Act and is not required to be so registered.
30—Financial institutions duty in respect of certain short-term dealings
(1)Subject to this Act, a registered short-term money market operator is liable to pay financial institutions duty in respect of the operator's average daily liability during a month in respect of short-term dealings at the rate of 0.005 per cent of that average daily liability.
(2)This section does not apply in relation to a month commencing on 1 July 2001 or later.
30A—Time for payment of financial institutions duty
Financial institutions duty payable by a financial institution or registered short-term money market operator must be paid to the Commissioner within the period within which the institution or operator is required under Part 4 to lodge with the Commissioner the return of the receipts or average daily liability in respect of which the duty is payable.
Part 6—Exempt accounts
31—Special ADI accounts of non-ADI financial institutions
(1)A non-ADI financial institution may make application to the Commissioner in a manner and form approved by the Commissioner for approval of an account kept in the State in the name of the non-ADI financial institution by an ADI that is a registered financial institution as a special account for the purposes of this Act.
(2)An ADI that is a registered financial institution may make application to the Commissioner in a manner and form approved by the Commissioner for approval of an account kept in the name of the ADI by another ADI that is a registered financial institution as a special account for the purposes of this Act.
(3)Where an application is made under subsection (1) or (2), the Commissioner must, subject to this section, issue to the applicant a certificate of approval of the account to which the application relates as a special account for the purposes of this Act.
(4)Where a certificate under this section is produced to an ADI that is a registered financial institution, the ADI must designate the account to which the certificate relates as a special account for the purposes of this Act.
(5)Where a person in whose name a special account is kept by an ADI is a pastoral finance company, an amount must not be paid to the credit of the special account unless the amount—
(a)is an amount received by the pastoral finance company in the course of banking business carried on by it; or
(b)is an amount received by the pastoral finance company in the course of short-term dealings; or
(c)is an amount paid to that account from another account kept in the name of the pastoral finance company by an ADI that is a registered financial institution.
(6)However, where a pastoral finance company—
(a)pays to the credit of a special account kept in its name by an ADI an amount that includes an amount other than an amount that, under subsection (5), it is authorised to pay to the credit of that account; and
(b)pays to the credit of another account kept in South Australia in its name by an ADI that is a registered financial institution (not being a special account) within 14 days after the firstmentioned amount is paid to the credit of the special account, that part of that amount that it is not authorised to pay to the credit of the special account,
the payment to the credit of the special account will not be considered a contravention of subsection (5).
(7)An amount will not be paid to the credit of a special account kept by an ADI in the name of The Law Society of South Australia unless the amount is an amount deposited with The Law Society of South Australia under Part 4 of the Legal Practitioners Act 1981.
(8)An amount must not be paid to the credit of a special account kept by an ADI in the name of a cash delivery company unless that amount was received by the company in the course, or for the purposes, of its business and does not include any fee, commission or other consideration to which the company is or may become entitled in its own right.
(9)Where a person in whose name a special account is kept by an ADI is a person prescribed for the purposes of subsection (11), an amount must not be paid to the credit of the special account unless it is a prescribed amount or an amount included in a class of prescribed amounts.
(10)Where the Commissioner is satisfied that an amount has been paid to the credit of a special account in contravention of this section, the Commissioner—
(a)may, by notice in writing given to the financial institution at which the special account is kept and the person in whose name the account is kept, cancel the account as a special account for the purposes of this Act; and
(b)may determine a period, not exceeding one year, during which the person in whose name the account is kept is ineligible to make application under this section.
(11)In this section—
non-ADI financial institution means—
(a)a registered financial institution, not being an ADI; or
(b)a registered financial institution, being a pastoral finance company; or
(c)Credit Union Services Corporation (Australia) Limited; or
(f)The Law Society of South Australia; or
(g)a cash delivery company; or
(h)Australian Stock Exchange Limited; or
(i)any prescribed person.
32—Short-term dealing account of registered short-term money market operator
(1)A person who is a registered short-term money market operator and is not a registered financial institution may make application to the Commissioner in a manner and form approved by the Commissioner for approval of an account kept in the State in the name of the operator by an ADI that is a registered financial institution as a short-term dealing account for the purposes of this Act.
(2)Where an application is made under subsection (1), the Commissioner must, subject to this section, issue to the applicant a certificate of approval of the account as a short-term dealing account for the purposes of this Act.
(3)Where a certificate under this section is produced to an ADI that is a registered financial institution, the ADI must designate the account to which the certificate relates as a short-term dealing account for the purposes of this Act.
(4)An amount must not be paid to the credit of a short-term dealing account kept by an ADI in the name of a registered short-term money market operator unless the amount—
(a)is an amount received by that operator in the course of short-term dealings; or
(b)is an amount paid to that account from another account kept in South Australia or a prescribed State or Territory by that ADI or by another ADI that is a registered financial institution in the name of that operator.
(5)An amount must not be credited to, or debited against, a short-term dealing account in contravention of a prohibition imposed by regulation.
(6)Where—
(a)the Commissioner is satisfied that an amount has been credited to, or debited against, a short-term dealing account in contravention of subsection (4) or (5); or
(b)the Commissioner cancels the registration of the person in whose name the account is kept as a short-term money market operator,
the Commissioner—
(c)may, by notice in writing given to the ADI at which the short-term dealing account is kept and the person in whose name the account is kept, cancel the certificate; and
(d)may determine a period, not exceeding one year, during which the person in whose name the account is kept is ineligible to make application under this section.
33—Sweeping accounts
(1)A person who carries on a business in the State may make application to the Commissioner in a manner and form approved by the Commissioner for approval of an account kept in the State in the name of the applicant by an ADI that is a registered financial institution as a sweeping account for the purposes of this Act.
(2)Where an application is made under subsection (1), the Commissioner has, subject to subsection (3), an absolute discretion to issue to the applicant a certificate of approval of the account as a sweeping account for the purposes of this Act.
(3)The Commissioner cannot issue a certificate under subsection (2) unless satisfied that the nature of the applicant's business is such that proceeds of the business must be paid to the credit of several accounts and then, at regular intervals, transferred to the credit of a consolidated account (being the account to which the application for a sweeping account relates).
(4)Where a certificate under this section is produced to the ADI by which the account to which it relates is to be held as a sweeping account, the ADI will designate the account to which the certificate relates as a sweeping account for the purposes of this Act.
(5)An amount must not be paid to the credit of a sweeping account kept by an ADI unless—
(a)the amount is paid to the credit of the account by debiting the amounts standing to the credit of other accounts and forthwith crediting, by mechanical or other device, the sweeping account with the total sum of the amounts so debited; and
(b)the accounts that are debited in order that the sweeping account may be credited in accordance with paragraph (a)—
(i)are kept in South Australia in the name of the person in whose name the sweeping account is kept; and
(ii)are kept by the same ADI that keeps the sweeping account; and
(iii)are non-exempt accounts.
(6)An amount must not be credited to, or debited against, a sweeping account in contravention of a prohibition imposed by regulation.
(7)Where the Commissioner is satisfied that an amount has been credited to, or debited against, a sweeping account in contravention of subsection (5) or (6), the Commissioner may—
(a)by notice in writing given to the ADI at which the sweeping account is kept and the person in whose name the account is kept, cancel the certificate; and
(b)determine a period, not exceeding one year, during which the person in whose name the account is kept is ineligible to make application under this section.
34—Other special accounts
(1)A person, who is eligible under subsection (2) to have an account kept in the State by an ADI that is a registered financial institution approved as a special account, may apply to the Commissioner, in a manner and form approved by the Commissioner, for approval of the account as a special account.
(2)For the purposes of subsection (1)—
(a)a dealer in securities is eligible to have an account kept in the dealer's name that is a dealer's trust account for the purposes of the Corporations Law approved as a special account;
(b)a person who is under a prescribed statutory obligation to pay money to the credit of a trust account kept in the person's name is eligible to have that trust account approved as a special account;
(c)a charitable organisation is eligible to have any account kept in its name approved as a special account.
(3)Where an application is made under subsection (1), the Commissioner must, subject to this section, issue to the applicant a certificate of approval of the account as a special account.
(4)Where a certificate under this section is produced to the registered financial institution at which the account is kept, the financial institution will designate the account to which the certificate relates as a special account for the purposes of this Act.
(5)The following restrictions apply in respect of accounts approved as special accounts under this section:
(a)an amount must not be paid to the credit of such an account kept in the name of a dealer in securities unless it is an amount that is required or permitted to be paid to the credit of a dealer's trust account under the Corporations Law;
(b)an amount must not be paid to the credit of such an account to which subsection (2)(b) applies unless that amount represents trust money received by the person in whose name the account is kept and required by statute to be paid to the credit of that account;
(c)an amount must not be paid to the credit of such an account kept in the name of a charitable organisation unless that amount represents money to which the organisation is exclusively entitled.
(6)Where the Commissioner is satisfied that—
(a)an amount has been paid to the credit of a special account in contravention of subsection (5); or
(b)the person in whose name an account approved as a special account under this section is kept has ceased to be eligible to have the account approved,
the Commissioner—
(c)may, by notice in writing given to the financial institution at which the special account is kept and the person in whose name the account is kept, cancel the account as a special account for the purposes of this Act; and
(d)may determine a period, not exceeding one year, during which the person in whose name the account is kept is ineligible to make application under this section.
35—Government Department account
(1)An application for approval of an account kept in the State by an ADI that is a registered financial institution as a Government Department account for the purposes of this Act may be made—
(a)by an approved Government instrumentality; or
(b)by a department of the Government of the Commonwealth, another State or a Territory of the Commonwealth.
(2)Where an application is made under subsection (1), the Commissioner must issue to the applicant a certificate of approval of the account as a Government Department account for the purposes of this Act.
(3)Where a certificate under this section is produced to the registered financial institution at which the account is kept, the financial institution will designate the account to which the certificate relates as a Government Department account for the purposes of this Act.
36—Cancellation of designation of account
Historical versions
| Reprint No 1—1.7.1991 |
| Reprint No 2—1.3.1993 |
| Reprint No 3—1.6.1993 |
| Reprint No 4—1.12.1994 |
| Reprint No 5—1.1.1997 |
| Reprint No 6—2.4.1998 |
| Reprint No 7—5.8.1999 |
0
0
0