Untitled document

State Taxation Acts (Further Amendment) Act 1997

Act No. 49/1997

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purpose	1
2.	Commencement	2

PART 2—BUSINESS FRANCHISE (PETROLEUM PRODUCTS)

ACT 1979 3

3.	Amendment of franchise fees	3
4.	Better Roads Victoria Trust Account	4

PART 3—PAY-ROLL TAX ACT 1971 5

5.	Definitions	5
6.	Wages to include superannuation benefits	6
7.	New sections 3A and 3B inserted	7
3A. Superannuation benefits relating to services performed

before 1 July 1997 7

3B. Superannuation benefits not readily related to particular

employees or their periods of service 8

8.	Pay-roll tax liability for certain superannuation benefits	9
9.	Reduction in rate of pay-roll tax	10

PART 4—STAMPS ACT 1958 11

10.      Exemption from mortgage duty for pensioners and first home

buyers 11

11.

New section 137MC substituted	11
137MC. Exemption for re-financed loans	11

12.

Abolition of miscellaneous deed duty 13

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NOTES 14

i

Victoria

No. 49 of 1997

State Taxation Acts (Further

Amendment) Act 1997†

[Assented to 11 June 1997]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The purpose of this Act is to amend the Business Franchise (Petroleum Products) Act 1979, the Pay-roll Tax Act 1971 and the Stamps Act 1958.

State Taxation Acts (Further Amendment) Act 1997

Act No. 49/1997 s. 2

2. Commencement

(1) This Act, except section 4, Part 3 and section 12,

comes into operation on the day on which it
receives the Royal Assent.

(2) Section 12 is deemed to have come into operation on 1 May 1997.

(3) Section 4 and Part 3 come into operation on 1 July

1997.

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State Taxation Acts (Further Amendment) Act 1997

s. 3 Act No. 49/1997

PART 2—BUSINESS FRANCHISE (PETROLEUM

PRODUCTS) ACT 1979

No. 9722.	3. Amendment of franchise fees
Reprinted to No. 80/1994 and	(1) In section 7(1) of the Business Franchise
subsequently	(Petroleum Products) Act 1979—
amended by
No. 42/1996.	(a) in paragraph (a)—

(i)  in sub-paragraph (i) for "12·1 per centum" substitute "10%";

(ii)  in sub-paragraph (ii) for "15·5 per centum" substitute "10%";

(b) in paragraph (b)—

(i)  in sub-paragraph (i) for "12·1 per centum" substitute "10%";

(ii)  in sub-paragraph (ii) for "15·5 per centum" substitute "10%";

(c) in paragraph (c)—

(i)  in sub-paragraph (iii) for "12·1 per centum" substitute "10%";

(ii)  in sub-paragraph (iv) for "15·5 per centum" substitute "10%".

(2) After section 7(1) of the Business Franchise

(Petroleum Products) Act 1979 insert—

"(1A) Sub-section (1) as amended by section 3 of

the State Taxation Acts (Further
Amendment) Act 1997 applies to licences
issued under this Act for a licence period
commencing on or after 1 July 1997 and sub-
section (1) as in force immediately before
the commencement of that section applies to
licences issued for a period ending on or
before 30 June 1997.".

State Taxation Acts (Further Amendment) Act 1997

Act No. 49/1997 s. 4

4. Better Roads Victoria Trust Account

(1) For section 13(2) of the Business Franchise

(Petroleum Products) Act 1979 substitute—

"(2) There shall be paid out of the Consolidated

Fund (which is to the necessary extent
appropriated accordingly) into the Better

Roads Victoria Trust Account—

(a)	in respect of the financial year commencing on 1 July 1997 an amount of $185 000 000; and
(b)	in respect of each succeeding financial year an amount equal to 45% of the amount of ad valorem licence fees collected under the Business Franchise Acts in respect of petroleum products during the preceding financial year—

in such instalments and at such times as are
determined from time to time by the

Treasurer.".

(2) After section 13(3) of the Business Franchise

(Petroleum Products) Act 1979 insert—

"(4) Despite anything to the contrary in section 4

of the State Taxation Acts (Further in force immediately before the commencement of that section continues to apply to the payment to be made by reference to licence fees collected during June 1997.".

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State Taxation Acts (Further Amendment) Act 1997

s. 5 Act No. 49/1997

PART 3—PAY-ROLL TAX ACT 1971

No. 8154.	5. Definitions
Reprinted to No. 119/1994 and	(1) In section 3(1) of the Pay-roll Tax Act 1971 after
subsequently	the definition of "return period" insert—
amended by
Nos 101/1995,	' "superannuation benefit" means money paid or
10/1996 and
42/1996.	payable by an employer in respect of an employee—

(a)	to or as a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or
(b)	within the meaning of the Superannuation Guarantee

as a superannuation guarantee charge Commonwealth; or

(c)

to or as any other form of fund or scheme including—

(i)	a Superannuation Holding Accounts Reserve within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth; and
(ii)	a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; and

(iii)  a wholly or partly unfunded fund or scheme1;'.

State Taxation Acts (Further Amendment) Act 1997

Act No. 49/1997 s. 6

(2) After section 3(1) of the Pay-roll Tax Act 1971

insert—
'(1A) A reference in the definition of

"superannuation benefit" in sub-section (1) to an employee includes a reference to any person to whom, by virtue of a paragraph of

the definition of "wages" in sub-section (1),
an amount paid or payable in the
circumstances referred to in that paragraph

constitutes wages.'.

6. Wages to include superannuation benefits

(1) In section 3(2) of the Pay-roll Tax Act 1971 after

"being" insert "(other than deposits to a
Superannuation Holding Accounts Reserve within
the meaning of the Small Superannuation
Accounts Act 1995 of the Commonwealth)".

(2) For section 3(2AB) of the Pay-roll Tax Act 1971 substitute—

"(2AB) For the purposes of this Act, a reference to

wages includes a reference to superannuation
benefits, other than those paid or payable in
respect of services performed or rendered by
an employee before 1 July 1997.

(2AC) If an employer has paid money on or after 30 April 1997 but before 1 July 1997 as a superannuation benefit in respect of services to be performed or rendered by an employee on or after 1 July 1997, that money is to be regarded, for the purposes of this Act, as a superannuation benefit paid on 1 July 1997 in respect of services performed or rendered by the employee on that day.".

State Taxation Acts (Further Amendment) Act 1997

s. 7 Act No. 49/1997

(3) After section 3(4) of the Pay-roll Tax Act 1971

insert—

"(5) For the purposes of this Act, a

superannuation, provident or retirement fund
or scheme is unfunded to the extent that
money paid or payable by an employer in
respect of an employee covered by the fund
or scheme is not paid or payable during the
employee's period of service with the

employer.".

(4) In section 3C(2) of the Pay-roll Tax Act 1971, at

the end of paragraphs (a), (b) and (d) insert "and".

(5) After section 3C(2)(d) of the Pay-roll Tax Act

1971 insert—

"(e) an amount paid or payable for or in relation

to the performance of work under a relevant
contract is deemed to include any payment
made by a person who is deemed to be an
employer under a relevant contract in
relation to a person who is deemed to be an
employee under the relevant contract that
would be a superannuation benefit if made in
relation to a person in the capacity of an

employee.".

7. New sections 3A and 3B inserted

After section 3 of the Pay-roll Tax Act 1971
insert—

"3A. Superannuation benefits relating to services

performed before 1 July 1997

(1) Money paid by an employer on or after 1

July 1997 as a superannuation benefit that is alleged by the employer to be paid in respect of services performed or rendered by an
employee before that day, must be evidenced
to the satisfaction of the Commissioner in

State Taxation Acts (Further Amendment) Act 1997

Act No. 49/1997 s. 7

the employer's records for pay-roll tax

purposes.

(2) In particular, the employer's records must

show the manner of calculation of the benefit

and any actuarial basis for it.

(3) For the purposes of sub-section (2) and of

any assessment of pay-roll tax to which that
sub-section is material, the certificate of a
fellow or accredited member of the Institute
of Actuaries of Australia to the effect that the
actuarial basis on which an amount is
calculated is justified is evidence and, in the
absence of evidence to the contrary, proof of

that fact.

(4) If records are not kept as required by this

section, the Commissioner is entitled to
assume for the purposes of an assessment of
pay-roll tax, that a payment of money by an
employer as a superannuation benefit on or
after 1 July 1997 is an amount payable in
respect of services performed or rendered by
an employee on or after that day.

3B. Superannuation benefits not readily related

to particular employees or their periods of
service

For the purposes of an assessment of pay-roll tax, the Commissioner may determine—

(a) whether, and the extent to which, any money paid or payable by an employer to a superannuation, provident or retirement fund or scheme that is not identified by the employer as paid or payable in respect of a particular employee (and whether or not purporting to be so paid or payable on any actuarial basis) is to be regarded as

State Taxation Acts (Further Amendment) Act 1997

s. 8	Act No. 49/1997
a superannuation benefit paid or payable in respect of a particular employee; and

(b)

subject to section 3A, the portion of by an employer as a superannuation benefit to a wholly or partly unfunded fund or scheme, being money paid in respect of an employee (or that is to be regarded under paragraph (a) to have been so paid) who performed or rendered services to the employer on or after, as well as before, 1 July 1997, that is to be regarded as having been paid in respect of services performed or rendered before that date.".

8.  Pay-roll tax liability for certain superannuation benefits

(1) In section 6(1) of the Pay-roll Tax Act 1971 after "section 10" insert "and sub-section (1AA)".

(2) After section 6(1) of the Pay-roll Tax Act 1971

insert—

"(1AA) Wages that are superannuation benefits that are not paid in respect of services performed or rendered by an employee in a particular

month are liable to pay-roll tax under this of services performed or rendered during the month in which they were paid or became payable.

(1AB) Nothing in sub-section (1AA) applies to

render wages that are superannuation benefits paid or payable in respect of services performed or rendered by an employee before 1 July 1997 liable to pay-
roll tax.".

State Taxation Acts (Further Amendment) Act 1997

Act No. 49/1997 s. 9

9. Reduction in rate of pay-roll tax

In section 7(1) of the Pay-roll Tax Act 1971—

(a) at the end of paragraph (c) insert "and";

(b)	in paragraph (e), after "1990" insert "and before the month of July 1997";
(c)	after paragraph (e) insert— "; and

(f)	at the rate of 6·25% in respect of such of those wages as are paid or payable after the month of June 1997 and are not liable to pay-roll tax at the rate
prescribed in paragraph (a), (b), (c), (d) or (e).".

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State Taxation Acts (Further Amendment) Act 1997

s. 10 Act No. 49/1997

PART 4—STAMPS ACT 1958

10.  Exemption from mortgage duty for pensioners and first home buyers

No. 6375.	(1) In section 137MA(1A)(a) of the Stamps Act 1958
Reprinted to
No. 10/1996	after "section" insert "71A or".
and
subsequently	(2) After section 137MA(1A) of the Stamps Act
amended by
Nos 35/1996,	1958 insert—
42/1996,
73/1996 and	"(1B) A reference in sub-section (1A)(b) to an
84/1996.	eligible person who mortgages real property includes a reference to an eligible person who enters into a refinancing mortgage (within the meaning of section 137MC(1)) in respect of real property.".

(3) After section 137MA(5) of the Stamps Act 1958

insert—

"(6) This section, as amended by section 10 of

the State Taxation Acts (Further
Amendment) Act 1997 applies to
refinancing mortgages entered into on or

after 1 May 1997.".

11. New section 137MC substituted

For section 137MC of the Stamps Act 1958 substitute—

'137MC. Exemption for re-financed loans

(1) In this section—

"refinancing mortgage" means a mortgage

to secure a loan the arrangements for
which include the discharge of an
earlier mortgage securing an earlier
loan if—

(a) the borrower is the same as under the earlier loan; and

State Taxation Acts (Further Amendment) Act 1997

Act No. 49/1997 s. 11

(b) either—

(i)  duty under Heading XXII in the Third Schedule was paid in respect of the earlier

mortgage and it was duly stamped; or
(ii)	the earlier mortgage was exempt from duty under this Act.

(2) A person who enters into a refinancing

mortgage may apply in writing to the from, or refund of, an amount of stamp duty paid or payable in respect of the mortgage calculated in accordance with this section.

(3) An application under this section must be

accompanied by a statutory declaration
verifying the statements made in the

application.

(4) The amount of stamp duty in respect of

which a person is entitled to an exemption or refund under this section is to be determined in accordance with the following formula—

A B C = −

where—

A is the amount of the exemption or refund; B is the stamp duty paid or payable (but for

this section) in respect of the refinancing

mortgage;

C is the amount of stamp duty that would

have been paid or payable if the loan secured
by the refinancing mortgage had been
reduced by the amount of the principal

State Taxation Acts (Further Amendment) Act 1997

s. 12 Act No. 49/1997

outstanding under the earlier loan
immediately before the execution of the
refinancing mortgage.

(5) If an application is made under this section

and the Comptroller is satisfied that the
applicant is entitled to an exemption from or
a refund of stamp duty, the Comptroller must
grant the exemption or make the refund
accordingly.

(6) A person must not, in connection with an

application under this section, make a
statement that, to the person's knowledge, is
false or misleading in a material particular.

Penalty: 10 penalty units or imprisonment

for 6 months or both.

(7) If a person is convicted of an offence against

sub-section (6), the person is liable, by way
of further penalty, to pay an amount equal to
double the amount of duty that, but for the
offence, would have been payable.

(8) This section, as substituted by section 11 of

the State Taxation Acts (Further a refinancing mortgage entered into on or after 1 May 1997 and this section, as in force immediately before the commencement of section 11 of the State Taxation Acts (Further Amendment) Act 1997, applies in respect of a mortgage entered into before 1 May 1997.'.

12. Abolition of miscellaneous deed duty

In the Stamps Act 1958 Subdivision (19) of
Division 3 of Part II and Heading XXIV in the

Third Schedule are repealed.

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State Taxation Acts (Further Amendment) Act 1997

Act No. 49/1997 Notes

NOTES

†

Minister's second reading speech—

Legislative Assembly: 10 April 1997

Legislative Council: 13 May 1997

The long title for the Bill for this Act was "to amend the Business
Franchise (Petroleum Products) Act 1979, the Pay-roll Tax Act 1971

and the Stamps Act 1958 and for other purposes."

1 Sub-section (5) defines an unfunded fund or scheme.