Stamp Amendment (Assessment) Act 2005 (WA)

Western Australia

Stamp Amendment (Assessment) Act 2005

Western Australia

Stamp Amendment (Assessment) Act 2005

CONTENTS

1.	Short title	2
2.	Commencement	2
3.	The Act amended	2
4.	Section 33 amended	2
5.	Section 97 inserted	2

97. Offshore risk policies exempt from duty 2

6.	Part IIIF replaced	4
Part IIIF — Insurance
Division 1 — Interpretation in Part IIIF and

connection to the State

92.	Terms used in this Part	4
92A.	Meaning of general insurance and
connection to the State	6
92B.	Additional insurance — life riders	7
92C.	Payment of premiums	8

Division 2 — Registration of insurers

93.	Insurers to be registered	9
93A.	Registration of insurers	9
93B.	Cancelling registration of insurers	9

Division 3 — Duty payable by insurers

94.	Lodging returns and paying duty	10
94A.	Calculating the amount of duty payable on
a return	11
94B.	Return period of an insurer	11

Division 4 — Duty payable by insured persons

95.	Meaning of insurer in this Division	11
95A.	Insured person to lodge statement and
pay duty	12
95B.	Insurer and intermediary to notify
Commissioner of contracts of insurance	12

Stamp Amendment (Assessment) Act 2005

Contents

Division 5 — General provisions

96.             Apportionment of premiums and

instalments 13
96A.	Refunds 14
96B.	Records 15

7.	Transitional provisions — offshore risk policies	15
8.	Transitional provisions — Part IIIF	17

Western Australia

Stamp Amendment (Assessment) Act 2005

No. 36 of 2005

An Act to amend the Stamp Act 1921 and for related purposes.

[Assented to 12 December 2005]

The Parliament of Western Australia enacts as follows:

Stamp Amendment (Assessment) Act 2005

s. 1

1.             Short title

This is the Stamp Amendment (Assessment) Act 2005.

2.             Commencement

(1)

Subject to this section, this Act comes into operation on the day

on which it receives the Royal Assent.

(2)

Section 5 is deemed to have come into operation on 1 July 1997.

(3)

Sections 6 and 8 come into operation on a day fixed by

proclamation.

3.             The Act amended

The amendments in this Act are to the Stamp Act 1921*.

[* Reprint 15 as at 3 June 2005.]

4.             Section 33 amended

Section 33(3)(b)(iv) is amended by deleting “subparagraph (i),

(ii) (iii) or (iiia)” and inserting instead —

“ subparagraph (i), (ii), (iii) or (iiia) ”.

5.             Section 97 inserted

After section 96 the following section is inserted in Part IIIF —

“

97.           Offshore risk policies exempt from duty

(1)	In this section —
“offshore risk insurance” means any kind of

insurance that is applicable to —

(a) property outside Australia; or

Stamp Amendment (Assessment) Act 2005

s. 5

(b) any liability, loss or damage that arises or is brought about as a result of the occurrence of an event outside Australia.

(2)

Duty is not chargeable in respect of the issue or

renewal of a policy of insurance to the extent that the

policy effects offshore risk insurance.

(3)

If a policy of insurance effects both offshore risk

insurance and other insurance and the proportion of the

total amount paid to the person with whom the policy

is effected (in respect of the issue or renewal) that is

attributable to the offshore risk insurance is not

ascertainable at the time of the issue or renewal, the

proportion is the proportion calculated in accordance

with the method of apportionment from time to time

established as a practice of the Commissioner and

published under section 127 of the Taxation

Administration Act 2003.

(4)

However, if the Commissioner is not satisfied that the

total amount has been appropriately apportioned, the

Commissioner may —

(a)	determine the appropriate proportions; and
(b)	reassess the amount of duty payable in respect of the issue or renewal accordingly.

(5)

Any amount paid or payable to the person with whom

the policy of insurance is effected on account of duty in

respect of the issue or renewal of the policy shall be

disregarded for the purpose of calculating the total

amount paid to the person in respect of the issue or

renewal.

”.

Stamp Amendment (Assessment) Act 2005

s. 6

6.             Part IIIF replaced

Part IIIF is repealed and the following Part is inserted instead —

“

Part IIIF — Insurance

Division 1 — Interpretation in Part IIIF and connection

to the State

92.           Terms used in this Part

In this Part, unless the contrary intention appears —

“accident insurance” means insurance for any

payment agreed to be made on the death of any

person only from accident or violence or otherwise

than from a natural cause or as compensation for

personal injury;

“contract of insurance” means a contract of insurance

that effects general insurance (whether or not it

also effects other kinds of insurance);

“Defence Service Homes Insurance Scheme” has the

meaning given to that term in section 38 of the

Defence Service Homes Act 1918 of the

Commonwealth;

“Division 4 insurer” has the meaning given to that

term in section 95;

“financial services licensee” has the meaning given to

that term in section 761A of the Corporations Act;

“general insurance” has the meaning given to that

term in section 92A;

“health insurance business” has the meaning given to

that term in section 67 of the National Health

Act 1953 of the Commonwealth;

“instalment” means a portion of a premium;

Stamp Amendment (Assessment) Act 2005

s. 6

“insurer” means the Insurance Commission of

Western Australia or a person who —

(a)	writes general insurance otherwise than as an intermediary of an insurer (including a Division 4 insurer); and
(b)	is either —

(i)

authorised under the Insurance

Act 1973 of the Commonwealth; or

(ii)      registered under the Life Insurance Act 1995 of the Commonwealth;

“intermediary”, of an insurer, means —

(a)	a representative of the insurer; or
(b)	a financial services licensee, who is not otherwise a representative of the insurer, who arranges or effects insurance for or with the insurer;

“life insurance” means insurance provided under or in accordance with a policy of insurance or assurance on any life or lives or on any event or contingency relating to or depending on any life or lives, other than a policy of accident insurance;

“offshore risk insurance” means any kind of

insurance that is applicable to —

(a)	property outside Australia; or
(b)	any liability, loss or damage that arises or is brought about as a result of the occurrence of an event outside Australia;

“premium” means the total consideration paid to an insurer (including a Division 4 insurer) by or on behalf of an insured person to effect insurance,

without deductions for any amounts paid or payable, or allowed or allowable, by way of

Stamp Amendment (Assessment) Act 2005

s. 6

commission or discount to an intermediary of the

insurer, but does not include —

(a)	an amount paid to an intermediary of the insurer by the insured person as a fee if the amount can be clearly identified as a fee; or
(b)	an amount paid on account of duty under this Part or interstate duty;

“registered insurer” means an insurer who is

registered under section 93A;

“registered organisation” has the meaning given to

that term in section 4 of the National Health

Act 1953 of the Commonwealth;

“reinsurance” means the indemnification of one party

by another against liability or payment arising

under a contract or contracts of insurance or

reinsurance;

“representative” has the meaning given to that term in section 910A of the Corporations Act;

“return period”, of a registered insurer, has the

meaning given in section 94B.

92A.

Meaning of general insurance and connection to

the State

(1)

“General insurance” means any kind of insurance that

is applicable to —

(a)	property in Western Australia; or
(b)	a risk, contingency or event concerning an act or omission that, in the normal course of events, may occur within, or partly within, Western Australia,

or both.

Stamp Amendment (Assessment) Act 2005

s. 6

(2)

General insurance does not include any of the

following —

(a) life insurance;

(b) compensation under the Workers’

insurance against an employer’s liability to pay Act 1981;

(c) reinsurance;

(d)	insurance in respect of goods in the course of being transported, whether by rail, road, air or sea, and whether within Western Australia or elsewhere;
(e)	insurance in respect of a marine hull used primarily for commercial purposes;
(f)	insurance effected by an exempt body (as defined in section 119);
(g)	insurance issued by a registered organisation in the course of its health insurance business;
(h)	insurance under the Defence Service Homes Insurance Scheme;

(i)      offshore risk insurance;

(j) insurance of a class prescribed by the regulations.

92B. Additional insurance — life riders

(1)

This section does not apply to a policy of life insurance

unless the insured person’s place of residence is in

Western Australia.

(2) If —

(a) a policy of life insurance, in addition to providing the insurance referred to in the definition of “life insurance” in section 92, also

Stamp Amendment (Assessment) Act 2005

s. 6

provides for the payment of a benefit on the

happening of a contingency or event that does

not relate to or depend on a life or lives (the

“additional insurance”); and

(b) an identifiable part of the premium payable in respect of the policy is attributable to the additional insurance,

then the additional insurance provided under or in

accordance with the policy is to be taken to be general

insurance and not life insurance.

(3) Subsection (2) applies —

(a)	whether or not the life insurance and the additional insurance are distinct matters for the purposes of section 19; and
(b)

whether or not payment of a benefit under the policy —

(i)      will or may reduce the benefit payable under the life insurance component of the policy; or

(ii)      will or may terminate the policy.

92C. Payment of premiums

(1)

For the purposes of this Part, a premium, or an

instalment, is paid when the first of the following

events occurs —

(a)	the premium or instalment is received by the insurer; or
(b)	an account of the insurer is credited with the amount of the premium or instalment.

(2)

A premium, or an instalment (apart from the case

where the premium or instalment is received directly

Stamp Amendment (Assessment) Act 2005

s. 6

by an insurer) is taken to have been received by an

insurer if it is received by another person on the

insurer’s behalf.

(3)

In this section, a reference to an insurer includes a

reference to a Division 4 insurer.

Division 2 — Registration of insurers

93.           Insurers to be registered

(1)

On becoming an insurer, the insurer must apply to be

registered under section 93A.

(2)

An application for registration must be made in an

approved form on or before the 21st day after the end of

the month in which the insurer became an insurer.

Penalty: $20 000.

93A. Registration of insurers

(1)

The Commissioner must register an insurer that applies

for registration.

(2)

The Commissioner must register an insurer that has not

applied for registration if satisfied that the insurer

ought to be registered for the purposes of this Part.

(3)

The Commissioner must give notice to an insurer of its

registration.

93B. Cancelling registration of insurers

(1)

The Commissioner may cancel the registration of an

insurer on his or her own initiative or at the request of

the insurer.

(2)

The Commissioner is not to cancel an insurer’s

registration unless satisfied that registration of the

Stamp Amendment (Assessment) Act 2005

s. 6

insurer is no longer necessary for the purposes of this

Part.

(3)	A cancellation has effect on and from the day specified in the notice of cancellation of registration, which may be a day that is earlier than the day on which the notice is issued.
Division 3 — Duty payable by insurers

94.           Lodging returns and paying duty

(1) A registered insurer must —

(a)	lodge a return in an approved form for each return period of the insurer; and
(b)	pay the duty payable on the return (if any),

on or before the 21st day after the end of the return

period.

Penalty: $5 000.

(2)

The insurer must lodge the return even if no duty is

payable on the return.

(3)

On becoming an insurer, the insurer must, for the

month in which the insurer became an insurer and for

each subsequent month until the month in which the

insurer becomes a registered insurer or ceases to be an

insurer —

(a)	lodge a return in an approved form for the month; and
(b)	pay the duty payable on the return (if any),

on or before the 21st day after the end of the month.

Penalty: $5 000.

(4)

The month referred to in subsection (3) is to be treated

as a return period for the purposes of this Part.

Stamp Amendment (Assessment) Act 2005

s. 6

94A. Calculating the amount of duty payable on a return

(1)

The amount of duty payable on the return for a return

period is 10% of the assessable amount.

(2)

The assessable amount for a return period of an insurer is the sum of each premium or instalment (to the extent to which the premium or instalment is attributable to

general insurance) paid to the insurer in the return

period in respect of contracts of insurance entered into

by or on behalf of the insurer.

(3)

Section 96 has an effect on the extent to which the

premium or instalment is attributable to general

insurance.

94B.	Return period of an insurer
The return period of a registered insurer is —

(a)	one month, if a special tax return arrangement is not in force; or
(b)	the return period provided in a special tax return arrangement in force under section 49 of the Taxation Administration Act 2003.

Division 4 — Duty payable by insured persons

95.           Meaning of insurer in this Division

In this Division —

“Division 4 insurer” means a person, other than the

Insurance Commission of Western Australia, who writes general insurance, otherwise than as an intermediary of an insurer (including a Division 4 insurer), but who is not authorised under the Insurance Act 1973 of the Commonwealth and not registered under the Life Insurance Act 1995 of the Commonwealth.

Stamp Amendment (Assessment) Act 2005

s. 6

95A. Insured person to lodge statement and pay duty

(1)

If a person obtains, effects or renews general insurance

with a Division 4 insurer, the person must —

(a)	lodge a statement in an approved form; and
(b)	pay the duty payable on the statement,

on or before the 21st day after the end of the month, or each month, in which the person paid the premium or an instalment for the insurance.

Penalty: $5 000.

(2)

The amount of duty payable on the statement is 10% of

the proportion of the premium or instalment that is

attributable to general insurance.

(3)

Section 96 has an effect on the proportion of the

premium or instalment that is attributable to general

insurance.

(4)

This section does not require a separate statement to be

prepared if the document evidencing the insurance

contains all the information required in a statement, in

which case, the document is taken to be the statement.

95B.

Insurer and intermediary to notify Commissioner of

contracts of insurance

(1)

A Division 4 insurer must, for each month in which the insurer is paid a premium or an instalment in respect of a contract of insurance entered into by or on behalf of

the insurer, notify the Commissioner in the approved

form, of —

(a)	each such contract of insurance for which the insurer has been paid a premium or instalment in that month; and
(b)

the amounts of those premiums or instalments, on or before the 21st day after the end of the month.

Stamp Amendment (Assessment) Act 2005

s. 6

Penalty: $5 000.

(2)

An intermediary of a Division 4 insurer must, for each

month in which the intermediary receives a premium or

an instalment in respect of a contract of insurance for a

Division 4 insurer, notify the Commissioner in the

approved form, of —

(a)	each contract of insurance for which the intermediary has received a premium or instalment for a Division 4 insurer; and
(b)

the amounts of those premiums or instalments, on or before the 21st day after the end of the month.

Penalty: $5 000.

(3)

If a person complies with a requirement in

subsection (1) or (2) in respect of a contract of

insurance then the requirement in the other subsection

is to be taken to have been complied with.

Division 5 — General provisions

96.           Apportionment of premiums and instalments

(1)

This section applies to a contract of insurance that effects both general insurance and other insurance.

(2)

If the proportion of the premium that is attributable to

general insurance is not ascertainable at the time the

contract is entered into, the proportion is the proportion

calculated in accordance with the applicable method of

apportionment from time to time established as a

practice of the Commissioner and published under

section 127 of the Taxation Administration Act 2003.

(3)

A method of apportionment published under

section 127 of the Taxation Administration Act 2003

may, for a particular class of contracts of insurance,

Stamp Amendment (Assessment) Act 2005

s. 6

have the effect that the proportion of the premium that

is attributable to general insurance is zero.

(4)

If the Commissioner is satisfied that a premium or

instalment has not been, or cannot be, appropriately

apportioned under this section, the Commissioner

may —

(a)	determine the appropriate proportions; and
(b)	if necessary — reassess the amount of duty payable in respect of the contract of insurance.

(5)

The extent to which an instalment is attributable to

general insurance is the same as the extent to which the

premium is attributable to general insurance under this

section.

96A. Refunds

(1) If —

(a)	an insurer has paid duty in respect of a contract of insurance in accordance with section 94A; and
(b)	the insurer has refunded some or all of the premium for the contract,

the insurer is entitled to a refund of the duty paid to the

extent to which the premium was refunded.

(2) If —

(a)

a person has paid duty in respect of a contract and

(b) the Division 4 insurer has refunded some or all of the premium for the contract,

the person is entitled to a refund of the duty paid to the

extent to which the premium was refunded.

Stamp Amendment (Assessment) Act 2005

s. 7

(3) For the purposes of this section, an insurer (including a Division 4 insurer) refunds an amount of a premium if the insurer or an intermediary of the insurer —

(a)	repays the amount to the insured person; or
(b)	otherwise provides a benefit to the insured person to the value of the amount refunded.

96B. Records

(1)

An insurer and a person who is liable to pay duty under

Division 4 must keep —

(a)	the records that are prescribed in the regulations for the purposes of this section (if any); and
(b)	any other records necessary to enable the Commissioner to determine the insurer’s or the person’s liability to pay duty under this Part.

Penalty: $20 000.

(2)

A person who is required to notify the Commissioner

under section 95B (disregarding the effect of

section 95B(3)) must keep the records necessary to

enable the Commissioner to verify the information in

the notice.

Penalty: $20 000.

”.

7.             Transitional provisions — offshore risk policies

(1)

This section applies to the issue or renewal of a policy of

insurance that effects offshore risk insurance, or both offshore

risk insurance and other insurance, where the issue or renewal

was effected on or after 1 July 1997 but before this Act received

the Royal Assent.

(2)

If the issue or renewal of the policy was effected before the

commencement of the Taxation Administration Act 2003, that

Stamp Amendment (Assessment) Act 2005

s. 7

Act applies to a reassessment as if the issue or renewal had been effected after the commencement of that Act.

(3)

Despite section 17 of the Taxation Administration Act 2003, the

Commissioner may make a reassessment even if the respective

original assessment was made more than 5 years before the

reassessment.

(4)

However, a person is not entitled to apply for a reassessment more than 12 months after the day on which this Act receives the Royal Assent.

(5)

Where the policy of insurance effects both offshore risk

insurance and other insurance then, despite section 35 of the

Taxation Administration (Consequential Provisions) Act 2002,

the Commissioner may make a reassessment even if the

reassessment increases the amount of duty that a person is liable

to pay in relation to the issue or renewal of the policy to the

extent that it effects insurance other than offshore risk

insurance.

(6)

In this section —

“duty” means duty payable under the Stamp Act 1921;

“offshore risk insurance” has the meaning given to that term

in section 97 of the Stamp Act 1921 as inserted by section 5

of this Act;

“original assessment” has the meaning given to that term in the

Taxation Administration Act 2003;

“policy of insurance” has the meaning given to that term in Part IIIF of the Stamp Act 1921 as in force immediately before this Act received the Royal Assent;

“reassessment” means a reassessment as defined in the

Taxation Administration Act 2003, being a reassessment of the amount of duty chargeable in respect of the issue or renewal of a policy of insurance to which this section applies.

Stamp Amendment (Assessment) Act 2005

s. 8

8.             Transitional provisions — Part IIIF

(1)

An expression used in this section that is given a meaning in the

Stamp Act 1921 (including old Part IIIF and new Part IIIF) has

the meaning so given unless the contrary intention appears.

(2)

New Part IIIF does not apply to or in respect of premiums or

instalments paid to an insurer after commencement in respect of

which duty, under old Part IIIF, became payable before

commencement.

(3)

A person who was an insurer (as defined in new Part IIIF) immediately before commencement is to be taken to have become an insurer on commencement for the purposes of new

Part IIIF.

(4)

In this section —

“commencement” means the time at which section 6 of this

Act comes into operation;

“new Part IIIF” means Part IIIF of the Stamp Act 1921 as in

force after commencement and, for the purposes of this section, is to be taken to include item 16 of the Second Schedule of the Stamp Act 1921 as in force after

commencement;

“old Part IIIF” means Part IIIF of the Stamp Act 1921 as in

force immediately before commencement and, for the

purposes of this section, is to be taken to include item 16 of

the Second Schedule and item 8 of the Third Schedule of

the Stamp Act 1921, as in force immediately before

commencement.