State Taxation Acts (Further Miscellaneous Amendments) Act 2001 (Vic)

State Taxation Acts (Further Miscellaneous

Amendments) Act 2001

Act No. 10/2001

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purpose	1
2.	Commencement	2

PART 2—FIRST HOME OWNER GRANT ACT 2000 3

3.	New Zealand citizens eligible	3
4.	Eligibility criterion 4—prior relevant interests in property	3

PART 3—LAND TAX ACT 1958 5

5. Pro rata exemption for charitable purposes 5

PART 4—PAY-ROLL TAX ACT 1971 6

6. Exemption for apprentices 6

PART 5—STAMPS ACT 1958 7

7.	Private unit trust schemes	7
8.	Motor vehicle duty	7

PART 6—TAXATION ADMINISTRATION ACT 1997 9

9.	Payment of tax assessed	9
10.	Refunds of tax	9
11.	New section 115 substituted	10

115. Refund of amount 10

12.	Consequential amendment of section 116	11
13.	Electronic service	11
14.	New section 125A inserted	11

125A. When is service effective? 11

i

Section Page

15.	Supreme Court—limitation of jurisdiction	12
16.	Transitional provisions	12

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ENDNOTES 15

ii

Victoria

No. 10 of 2001

State Taxation Acts (Further

Miscellaneous Amendments) Act 2001†

[Assented to 8 May 2001]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The purpose of this Act is to make further miscellaneous amendments to the First Home Owner Grant Act 2000, the Land Tax Act 1958, the Pay-roll Tax Act 1971, the Stamps Act 1958 and the Taxation Administration Act 1997.

State Taxation Acts (Further Miscellaneous Amendments) Act
2001

Act No. 10/2001 s. 2

2. Commencement

(1) This Act (except section 3) comes into operation
on the day on which it receives the Royal Assent.

(2) Section 3 is deemed to have come into operation

on 1 July 2000.

_______________
State Taxation Acts (Further Miscellaneous Amendments) Act
2001

s. 3 Act No. 10/2001

PART 2—FIRST HOME OWNER GRANT ACT 2000

See:

Act No.	3. New Zealand citizens eligible
5/2000
and	In section 3 of the First Home Owner Grant Act
amending	2000, for the definition of "permanent resident"
Act No.
42/2000.	substitute—
LawToday:
' "permanent resident" means—
dpc.vic.
gov.au	(a) the holder of a permanent visa within

the meaning of section 30(1) of the
Migration Act 1958 of the

Commonwealth; or

(b) a New Zealand citizen who is the holder of a special category visa within the meaning of section 32 of that Act;'.

4.  Eligibility criterion 4—prior relevant interests in property

(1) In section 10 of the First Home Owner Grant

Act 2000, sub-section (3) is repealed.

(2) After section 11(2) of the First Home Owner

Grant Act 2000 insert—

"(3) An applicant is ineligible if the applicant or

the applicant's spouse has, on or after 1 July
2000 and before the date on which the
application is made, held an interest in
property (other than property to which the
application relates) used at any time on or
after 1 July 2000 as the residence of the

applicant or the applicant's spouse, being—

(a) a relevant interest in residential property in Victoria; or

State Taxation Acts (Further Miscellaneous Amendments) Act
2001

Act No. 10/2001 s. 4

(b)	an interest in residential property in another State or a Territory that is a relevant interest under the
corresponding law of that State or Territory.".

_______________
State Taxation Acts (Further Miscellaneous Amendments) Act
2001

s. 5 Act No. 10/2001

PART 3—LAND TAX ACT 1958

See:

Act No.	5. Pro rata exemption for charitable purposes
6289
Reprint No. 10	(1) In the Land Tax Act 1958—
as at
14 October	(a) in section 8(2), for "Tax on land referred to

1999.   in section 9(1)(c) or (d) which is subject to

LawToday:
tax because of the operation of sub-section
dpc.vic.	(2) of section 9" substitute "Tax on land
gov.au
referred to in section 9(1)(c) that is subject to tax because of section 9(2) and tax on land owned by a charitable institution that is not exempt from tax under section 9(1)(d) (whether because of section 9(2AAA) or otherwise)";

(b) in section 9(2)—

(i)  for "paragraphs (b), (c), (d), (e)" substitute "paragraphs (b), (c), (e)";

(ii) omit "or (d)" where twice occurring.

(2) After section 9(2A) of the Land Tax Act 1958

insert—

"(2AAA) If the Commissioner is satisfied that part

only of land is used by a charitable
institution exclusively for charitable

purposes—

(a)	land tax is assessable on the remaining part of the land, unless an exemption (other than sub-section (1)(d)) applies to the remaining part; and
(b)	section 3A applies, if necessary, for that purpose.".

_______________
State Taxation Acts (Further Miscellaneous Amendments) Act
2001

Act No. 10/2001 s. 6

PART 4—PAY-ROLL TAX ACT 1971

See:

6. Exemption for apprentices Act No.
8154

In section 10(1)(k) of the Pay-roll Tax Act 1971	Reprint No. 7
for "exempted by the Minister from the	as at 1 September
application of this Act" substitute "declared by	1999
the Minister to be an apprentice or scheme, or	and amending
class of apprentices or schemes, to which an	Act Nos
exemption under this section applies.".	6/2000 and 42/2000.
LawToday:
dpc.vic.
gov.au

_______________
State Taxation Acts (Further Miscellaneous Amendments) Act
2001

s. 7 Act No. 10/2001

PART 5—STAMPS ACT 1958

See:

Act No.

7. Private unit trust schemes

6375

Reprint No. 16

In section 75N of the Stamps Act 1958—

as at

3 July 2000.

(a) in sub-section (1), for the definition of

LawToday: 

"private unit trust scheme" substitute—

dpc.vic. 

gov.au 

' "private unit trust scheme" means a unit

trust scheme that is not a public unit
trust scheme1;';

(b) sub-section (2) is repealed.

8. Motor vehicle duty

In section 137AK of the Stamps Act 1958, for
sub-sections (4) and (5) substitute—

"(4) If a registered used car dealer does not

comply with this section, the registered used

car dealer is liable to a penalty of—

(a) an amount equal to the amount referred to in sub-section (1)(b) and interest on that amount at the rate of 20% per annum from the day on which the payment under that sub-section was required; or

(b) $25—

whichever is the greater.

(5) The penalty imposed by sub-section (4) is in

addition to the dealer's liability for any
amount under sub-section (1)(b) and for any
penalty payable under section 17(3).

(6) The Comptroller, in such circumstances as
the Comptroller considers appropriate, may

State Taxation Acts (Further Miscellaneous Amendments) Act
2001

Act No. 10/2001 s. 8

remit the penalty imposed by sub-section (4)

by any amount.".

_______________
State Taxation Acts (Further Miscellaneous Amendments) Act
2001

s. 9 Act No. 10/2001

PART 6—TAXATION ADMINISTRATION ACT 1997

See:

Act No.	9. Payment of tax assessed
40/1997
Reprint No. 1	After section 14(2) of the Taxation
as at	Administration Act 1997 insert—
25 March
1999	"(3) An amount of tax assessed in a notice of
and
amending	assessment is payable on or before the day
Act Nos	specified by the Commissioner in the notice
34/1999,
47/1999 and	of assessment.".
53/1999. LawToday: dpc.vic. gov.au

10. Refunds of tax

(1) After section 18(4) of the Taxation Administration Act 1997 insert— "(5) For the avoidance of doubt, it is declared that

an amount by which tax is overpaid is taken

to be tax for the purposes of this Part.".

(2) After section 96(1) of the Taxation

Administration Act 1997 insert—

"(1A) A reference in sub-section (1)(d) to a

decision does not include a refusal by the purportedly paid by the taxpayer.

(1B) For the avoidance of doubt, it is declared that

an amount by which tax is overpaid is taken
to be tax for the purposes of sub-section
(1A).".

(3) In section 114(1) of the Taxation Administration

Act 1997, for "Within" substitute "Subject to section 115, within".

State Taxation Acts (Further Miscellaneous Amendments) Act
2001

Act No. 10/2001 s. 11

11. New section 115 substituted

For section 115 of the Taxation Administration
Act 1997 substitute—

'115. Refund of amount

(1) If—

(a)	a taxpayer's objection to an assessment is allowed in whole or in part; or
(b)	a taxpayer's review or appeal in respect of an assessment is upheld—

the Commissioner must refund any amount
paid under the assessment that is in excess of
a requirement for payment under the relevant

taxation law.

(2) If—

(a)	a taxpayer's objection to a decision other than an assessment is allowed in whole or in part; or
(b)	a taxpayer's review or appeal in respect of a decision other than an assessment is upheld—

the Commissioner must refund any amount
paid in the relevant period in excess of a
requirement for payment under the relevant
taxation law.

(3) In sub-section (2), the "relevant period" is the period of 3 years immediately preceding the earlier of—

(a) the date of the decision;

(b) if the decision was made in response to a written request from the taxpayer that included a description of the facts and

circumstances on which the request was

State Taxation Acts (Further Miscellaneous Amendments) Act
2001

s. 12	Act No. 10/2001
based—the date of the request for the decision.'.

12. Consequential amendment of section 116

In section 116(a) of the Taxation Administration refunded".

13. Electronic service

In section 125(1)(d) of the Taxation
Administration Act 1997, after "facsimile"

insert "or other electronic".

14. New section 125A inserted

After section 125 of the Taxation

Administration Act 1997 insert—

"125A. When is service effective?

(1) For the purposes of a taxation law, a

document must be taken, unless the contrary is proved, to have been served on or given to a person by the Commissioner—

(a)	in the case of delivery in person—at the time the document is delivered;
(b)	in the case of posting—2 business days after the day on which the document was posted;
(c)	in the case of a facsimile or other electronic transmission—at the time the facsimile or transmission is received.

(2) If a facsimile or other electronic transmission

is received after 4.00 p.m. on any day, it
must be taken to have been received on the
next business day.".

State Taxation Acts (Further Miscellaneous Amendments) Act
2001

Act No. 10/2001 s. 15

15. Supreme Court—limitation of jurisdiction

At the end of section 135 of the Taxation
Administration Act 1997 insert—

"(2) It is the intention of clause 13(8), (9) and

(10) in Schedule 1 to alter or vary section 85

of the Constitution Act 1975.".

16. Transitional provisions

In Schedule 1 to the Taxation Administration

Act 1997, after clause 13(4) insert—

'(5) Section 96(1A), as inserted by section 10(2) of the

State Taxation Acts (Further Miscellaneous Amendments) Act 2001, extends to any refusal by the Commissioner to refund tax paid or purportedly paid by a taxpayer that was made by the Commissioner before the commencement of that section 10(2).

(6) For the purposes of sub-clause (5) and section

96(1A), a failure by the Commissioner to refund tax
within the period of 3 months after the application for
refund is lodged with the Commissioner is taken to be

a refusal to refund the tax.

(7) Section 115, as substituted by section 11 of the State
Taxation Acts (Further Miscellaneous
Amendments) Act 2001, extends to—

(a) any assessment or decision made; and

(b) any objection allowed, or review or appeal upheld—

before the commencement of that section 11.

(8) If—

(a)	a taxpayer applied before 15 October 1993 for a refund of an amount paid or purportedly paid under a taxation law; and
(b)	the Commissioner refused or failed to refund the amount; and

State Taxation Acts (Further Miscellaneous Amendments) Act
2001

s. 16 Act No. 10/2001

(c) the taxpayer did not commence proceedings in any court for the refund or recovery of the amount before 14 November 2000—

the taxpayer or any other person is not entitled, on or after 14 November 2000, to commence proceedings in any court for the refund or recovery of the amount or any part of it.

(9) If—

(a)	a taxpayer applied before 15 October 1993 for a refund of an amount paid or purportedly paid under a taxation law; and
(b)	the Commissioner refused to refund the amount; and
(c)	the taxpayer lodged an objection to the refusal of the Commissioner to refund the amount; and
(d)	the objection had not been determined by the Commissioner before 14 November 2000—

the Commissioner is not entitled to determine the objection on or after 14 November 2000 and the taxpayer or any other person is not entitled, on or after 14 November 2000, to take any further action in

respect of the objection or commence proceedings in any court for the refund or recovery of the amount or any part of it.

(10) If a person commenced proceedings on or after

14 November 2000 but before the day on which the Amendments) Act 2001 received the Royal Assent ("the commencement day"), being proceedings that the person would not have been entitled to commence because of sub-clause (8) or (9) had those sub-clauses been in operation at the time, the court must, as soon as practicable after the commencement day, dismiss those proceedings.

(11) Nothing in sub-clause (5), (6), (7), (8), (9) or (10)

affects the rights of the parties in the proceedings in

the Supreme Court between—

(a) Drake Personnel Limited (ARBN 007 504 609) and Others and the Commissioner of State Revenue of the State of Victoria (No. 5418 of 1994);

State Taxation Acts (Further Miscellaneous Amendments) Act
2001

Act No. 10/2001	s. 16
(b)

Select Appointments Pty Ltd of State Revenue of the State of Victoria (No. 5930 of 1998);

(c) MediHealth 2000 Pty Ltd (ACN 061 789 786) and the Commissioner of Pay-roll Tax for the State of Victoria (No. 5911 of 1997).'.

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State Taxation Acts (Further Miscellaneous Amendments) Act
2001

Endnotes Act No. 10/2001

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 14 November 2000

Legislative Council: 20 March 2001

The long title for the Bill for this Act was "to make further miscellaneous amendments to the First Home Owner Grant Act 2000, the Land Tax Act 1958, the Pay-roll Tax Act 1971, the Stamps Act 1958 and the

Taxation Administration Act 1997 and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 14 November 2000

Legislative Council: 20 March 2001

Absolute majorities:

Legislative Assembly: 1 March 2001

Legislative Council: 2 May 2001

1 S. 7: "Public unit trust scheme" is defined in section 3.