Untitled document
State Taxation Acts Amendment Act 2011
No. 28 of 2011
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Duties Act 2000
Division 1—Reduction of duty for eligible first home buyers
3Amendment to Division 4A heading
4Definitions
5What is a PPR transfer?
6Concessional rate of duty for certain PPR transfers
7New section 57JA inserted
57JAReduction of duty for eligible first home buyers on PPR transfers
8Residence requirement
9Variation of residence requirement
10Liability for duty if residence requirement not complied with
11Transferee to notify Commissioner of change in circumstances
Division 2—Amendments to the pensioner and first home owner exemption and concession provisions
12Who is an eligible pensioner?
13Eligible pensioner exemption or concession where dwelling exists at the time of transfer
14Eligible pensioner exemption or concession where dwelling is constructed after transfer
15Election to receive eligible pensioner exemption/concession
60AElection to receive eligible pensioner exemption/concession
16Transitional provisions
30State Taxation Acts Amendment Act 2011—Division 5 of Part 5 of Chapter 2
Division 3—2010 State Budget Measures
17Election to receive eligible first home owner exemption/concession or additional first home owner grant
18Transitional provision
29State Taxation Acts Amendment Act 2011—section 63B
Division 4—Young farmers
19New Division 7 of Part 5 of Chapter 2 inserted
Division 7—Young farmers
69AADefinitions
69ABDisqualifying interest
69ACPrimary production requirement
69ADExemption or concession for young farmers
69AECalculation of exemption or concession on transfer of single parcel of land or partial interest in single parcel
of land69AFCalculation of exemption on transfer of multiple
parcels and partial interests of land69AGElection to receive young farmer exemption/
concession or principal place of residence concession69AHLiability for duty if primary production requirement
not complied with69AIFarmer to notify Commissioner of change in circumstances
Division 5—Statute law revision
20Definitions in Chapter 1 of the Duties Act 2000
21What is dutiable property?
22Constructive ownership of land holdings and other property: linked entities
23Interpretation and application of Division
24Definitions in Part 3 of Chapter 3
25Application of Part
26What is a corporate group?
27Revocation of exemption
28Definitions in Chapter 11 of the Duties Act 2000
29Duties and Land Tax Acts (Amendment) Act 2005
Part 3—First Home Owner Grant Act 2000
Division 1—Offences under the First Home Owner Grant Act 2000
30Payment in anticipation of compliance with residence requirement
31New section 47 substituted
47False and misleading information
Division 2—Extension of availability of additional amounts under
the First Home Owner Grant Act 2000
32Amount of grant
Part 4—Payroll Tax Act 2007
33Definitions
34Inclusion of grant of shares and options as wages
35Choice of relevant day
36Value of shares and options
37Inclusion of shares and options granted to directors as wages
38Transitional provisions
17State Taxation Acts Amendment Act 2011
39
Statute law revision—groups arising from tracing of interests
in corporations
Part 5—Taxation Administration Act 1997
40Definitions in Taxation Administration Act 1997
41New section 12A inserted
12ADeemed assessment
42Notice of assessment or withdrawal of assessment
43Service of documents by Commissioner
44When is service effective?
Part 6—Repeal
45Repeal of amending Act
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Endnotes
State Taxation Acts Amendment Act 2011
No. 28 of 2011
[Assented to 21 June 2011]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Duties Act 2000—
(i)to provide for a reduction in the amount of duty payable on a principal place of residence transfer in certain circumstances by persons to whom a first home owner grant is paid or payable; and
(ii)to extend the concession available to eligible pensioners to the holders of Commonwealth Seniors Health Cards, to increase the threshold of this concession from $440 000 to $750 000 and to require eligible pensioners to elect to receive either the concession or the above reduction of duty (if any); and
(iii)to provide exemptions and concessions from duty to young farmers purchasing their first farmland properties in certain circumstances; and
(iv)to make other amendments consequential on amendments to the First Home Owner Grant Act 2000; and
(v)to make other miscellaneous amendments; and
(b)to amend the First Home Owner Grant Act 2000—
(i)to increase the penalties for particular offences under that Act; and
(ii)to broaden the scope of the offence of providing false and misleading information in or in connection with an application for a first home owner grant; and
(iii)to extend the availability of additional amounts under that Act; and
(c)to amend the Payroll Tax Act 2007—
(i)to replace outdated references to the Income Tax Assessment Act 1936 of the Commonwealth in relation to employee share schemes; and
(ii)to make other miscellaneous amendments; and
(d)to amend the Taxation Administration Act 1997 to provide for the circumstances in which a deemed assessment is made and when a notice of such assessment is taken to be served if the on-line duty payment system is used in respect of a dutiable transaction under the Duties Act 2000.
2Commencement
(1)This Act (other than Divisions 1, 2 and 4 of Part 2, Division 2 of Part 3, Part 4 and Part 5) comes into operation on the day after the day on which it receives the Royal Assent.
(2)Part 5 comes into operation on 27 June 2011.
(3)Divisions 1, 2 and 4 of Part 2, Division 2 of Part 3 and Part 4 come into operation on 1 July 2011.
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Part 2—Duties Act 2000
Division 1—Reduction of duty for eligible first home buyers
3Amendment to Division 4A heading
In the heading to Division 4A of Part 5 of Chapter 2 of the Duties Act 2000, after "concession" insert "and reduction of duty for certain transfers".
4Definitions
In section 57G(1) of the Duties Act 2000 insert the following definition—
"eligible first home buyer means a transferee to whom a first home owner grant is paid or payable under section 7 of the First Home Owner Grant Act 2000 in respect of a PPR transfer;".
5What is a PPR transfer?
In section 57I(1)(d) of the Duties Act 2000, for "$550 000" substitute "$600 000".
6Concessional rate of duty for certain PPR transfers
(1)In the heading to section 57J of the Duties Act 2000, after "for" insert "certain".
(2)In section 57J of the Duties Act 2000, after "PPR transfer" insert "where the dutiable value of the dutiable property is more than $130 000 but not more than $550 000".
(3)At the foot of section 57J of the Duties Act 2000 insert—
"Note
A PPR transfer where the dutiable value of the dutiable property is more than $550 000 but not more than $600 000 is chargeable with duty at the rate set out in section 28(1), subject to any exemption or concession other than in this Division.".
7New section 57JA inserted
After section 57J of the Duties Act 2000 insert—
57JAReduction of duty for eligible first home buyers on PPR transfers"
The duty chargeable on a PPR transfer for an eligible first home buyer calculated under section 28(1) or 57J is to be reduced by the following percentages—
(a)where the dutiable transaction takes place on or after 1 July 2011 and on or before 31 December 2012—20%;
(b)where the dutiable transaction takes place on or after 1 January 2013 and on or before 31 December 2013—30%;
(c)where the dutiable transaction takes place on or after 1 January 2014 and on or before 31 August 2014—40%;
(d)where the dutiable transaction takes place on or after 1 September 2014—50%.".
8Residence requirement
In section 57K(1) of the Duties Act 2000, after "section 57J" insert "(if any), and the reduction in duty under section 57JA (if any),".
9Variation of residence requirement
In section 57L(2) of the Duties Act 2000, after "concessional rate of duty" insert "or a reduction of duty".
10Liability for duty if residence requirement not complied with
In section 57M(1)(a) of the Duties Act 2000, after "section 28(1)" insert "without any reduction of duty under section 57JA".
11Transferee to notify Commissioner of change in circumstances
In section 57N(1) of the Duties Act 2000, after "of duty" insert "or a reduction of duty".
Division 2—Amendments to the pensioner and first home owner exemption and concession provisions
12Who is an eligible pensioner?
For section 58(1)(a) of the Duties Act 2000 substitute—
"(a)is—
(i)an eligible beneficiary within the meaning of the State Concessions Act 2004; or
(ii)the holder of a Seniors Health Card issued under section 1061ZS of the Social Security Act 1991 of the Commonwealth; and".
13Eligible pensioner exemption or concession where dwelling exists at the time of transfer
(1)In section 59(2)(b) of the Duties Act 2000, for "$440 000" substitute "$750 000".
(2)In section 59(3) of the Duties Act 2000, for the formula substitute—
"".
(3)At the foot of section 59 of the Duties Act 2000 insert—
"Note
The application of this section depends on the date the contract of sale of the land was entered into. See clause 30 of Schedule 2.".
14Eligible pensioner exemption or concession where dwelling is constructed after transfer
(1)In section 60(2)(c) of the Duties Act 2000, for "$440 000" substitute "$750 000".
(2)For section 60(3) of the Duties Act 2000 substitute—
'(3)The concession or refund is an amount calculated in accordance with the following formulae—
(a)where the aggregate of the dutiable value of the dutiable property and the cost of construction of the dwelling exceeds $330 000 but does not exceed $440 000—
where—
"D"is the amount of duty paid or payable (but for this Division) on the transfer;
"P"is the aggregate amount referred to in subsection (2)(c); or
(b)where the aggregate value of the dutiable value of the dutiable property and the cost of construction of the dwelling exceeds $440 000 but does not exceed $550 000—
where—
"D"is the amount of duty paid or payable (but for this Division) on the transfer;
"P"is the aggregate amount referred to in subsection (2)(c); or
(c)where the aggregate value of the dutiable value of the dutiable property and the cost of construction of the dwelling exceeds $550 000 but does not exceed $750 000—
where—
"D"is the amount of duty paid or payable (but for this Division) on the transfer;
"P"is the aggregate amount referred to in subsection (2)(c).'.
(3)At the foot of section 60 of the Duties Act 2000 insert—
"Note
The application of this section depends on the date the contract of sale of the land was entered into. See clause 30 of Schedule 2.".
15Election to receive eligible pensioner exemption/concession
For section 60A of the Duties Act 2000 substitute—
60AElection to receive eligible pensioner exemption/concession"
(1)This section applies to an eligible pensioner who, but for this section or section 18(5) of the First Home Owner Grant Act 2000, would be entitled to receive—
(a)an exemption or concession from duty under section 59 or 60 in respect of a transfer of an estate in fee simple in land; and
(b)any one or more of the following—
(i)a reduction of his or her liability for duty under section 57JA;
(ii)an amount in respect of an eligible transaction (within the meaning of the First Home Owner Grant Act 2000) relating to that land under—
(A)section 18(2) or 18(2A) of that Act (or both);
(B)section 18(2AA) or 18(2B) of that Act (or both);
(C)section 18(2AB) or 18(2C) of that Act (or both).
(2)The eligible pensioner, by notice in writing to the Commissioner, must elect to receive—
(a)the exemption or concession under section 59 or 60 (as the case requires) in respect of the transfer; or
(b)any one or more of the following—
(i)a reduction of his or her liability for duty under section 57JA;
(ii)an amount in respect of an eligible transaction (within the meaning of the First Home Owner Grant Act 2000) relating to that land under—
(A)section 18(2) or 18(2A) of that Act (or both);
(B)section 18(2AA) or 18(2B) of that Act (or both);
(C)section 18(2AB) or 18(2C) of that Act (or both).
(3)If the eligible pensioner elects to receive any one or more of the following—
(a)a reduction of his or her liability for duty under section 57JA;
(b)an amount in respect of an eligible transaction (within the meaning of the First Home Owner Grant Act 2000) relating to that land under—
(i)section 18(2) or 18(2A) of that Act (or both);
(ii)section 18(2AA) or 18(2B) of that Act (or both);
(iii)section 18(2AB) or 18(2C) of that Act (or both)—
or does not make an election under this section, he or she is not entitled to the exemption or concession under section 59 or 60 (as the case requires) in respect of the transfer.
(4)Despite subsection (3), if an eligible pensioner would, but for that subsection, be entitled to an exemption or concession under section 59 or 60, section 167 applies to the home owner as if he or she were so entitled.
Note
The application of this section depends on the date the contract of sale of the land was entered into. See clause 30 of Schedule 2.".
16Transitional provisions
At the end of Schedule 2 to the Duties Act 2000 insert—
30State Taxation Acts Amendment Act 2011"—Division 5 of Part 5 of Chapter 2
(1)Division 5 of Part 5 of Chapter 2, as amended by Division 2 of Part 2 of the State Taxation Acts Amendment Act 2011, applies to a transfer to an eligible pensioner, within the meaning of that Division as in force immediately after 1 July 2011, of dutiable property being an estate in fee simple in land if the contract of sale of the land was entered into on or after 1 July 2011.
(2)Division 5 of Part 5 of Chapter 2, as in force immediately before 1 July 2011, continues to apply to a transfer to an eligible pensioner, within the meaning of that Division as in force immediately before 1 July 2011, of dutiable property being an estate in fee simple in land if the contract of sale of the land was entered into on or before 30 June 2011.
(3)A taxpayer is entitled to a refund of any duty paid on or after 1 July 2011 that is not payable because of subclause (1) or (2).".
Division 3—2010 State Budget Measures
17Election to receive eligible first home owner exemption/concession or additional first home owner grant
In section 63B of the Duties Act 2000—
(a)in subsection (1)(b)—
(i)in subparagraph (ii) for "both)." substitute "both); or";
(ii)after subparagraph (ii) insert—
"(iii)section 18(2AB) or 18(2C) of that Act (or both).";
(b)in subsection (2)(b)—
(i)in subparagraph (i) for "(or both, as the case requires)" substitute "(or both)";
(ii)in subparagraph (ii) for "(or both, as the case requires)." substitute "(or both); or";
(iii)after subparagraph (ii) insert—
"(iii)section 18(2AB) or 18(2C) of that Act (or both).";
(c)in subsection (3)—
(i)in paragraph (a), for "(or both, as the case requires)" substitute "(or both)";
(ii)in paragraph (b), for "(or both, as the case requires)—" substitute "(or both); or";
(d)after subsection (3)(b) insert—
"(c)section 18(2AB) or 18(2C)(or both)—".
18Transitional provision
After clause 28 of Schedule 2 to the Duties Act 2000 insert—
29State Taxation Acts Amendment Act 2011"—section 63B
Anything done or omitted to be done under this Act or the First Home Owner Grant Act 2000 in respect of a dutiable transaction occurring on or after 1 July 2010 and before the commencement of section 18 of the State Taxation Acts Amendment Act 2011, that would have been validly done or omitted to be done had section 63B as amended by section 17 of the State Taxation Acts Amendment Act 2011 been in force at that time, is taken to have been validly done or omitted.".
Division 4—Young farmers
19New Division 7 of Part 5 of Chapter 2 inserted
After Division 6 of Part 5 of Chapter 2 of the Duties Act 2000 insert—
Division 7—Young farmers"
69AADefinitions
In this Division—
capital beneficiary of a discretionary trust means a person, or a member of a class of person, in whom, by the terms of the trust, the whole or any part of the capital of the trust estate may be vested or remain vested—
(a)in the event of the exercise of a power or discretion in favour of the person (whether or not that power is presently exercisable); or
(b)in the event that a discretion conferred under the trust is not exercised;
disqualifying interest has the meaning given by section 69AB;
farmland means land used, or intended to be used, primarily for the business of primary production;
fixed trust means a trust under which the identity of the beneficiaries and the quantum of their interests are ascertained;
primary production requirement means the requirement referred to in section 69AC;
young farmer means a natural person who is carrying on, or intends to carry on, a business of primary production in relation to the dutiable property to which section 69AD applies;
young farmer business entity means—
(a)a trustee for a young farmer; or
(b)a company (not acting in the capacity of a trustee under a trust) all the shares in which are owned by a young farmer, or the young farmer and the young farmer's partner; or
(c)a trustee under a discretionary trust, the capital beneficiaries of which are limited to a young farmer, or the young farmer and the young farmer's partner; or
(d)a trustee under a fixed trust, the beneficiaries of which are limited to a young farmer, or the young farmer and the young farmer's partner.
69ABDisqualifying interest
For the purposes of this Division, disqualifying interest means—
(a)in respect of a young farmer or the young farmer's partner—
(i)an estate in fee simple in farmland held or previously held by the young farmer or the young farmer's partner; or
(ii)shares in a company—
(A)currently held by the young farmer or the young farmer's partner, if the company holds or has previously held an estate in fee simple in farmland; or
(B)previously held by the young farmer or the young farmer's partner, if those shares were held at the same time that the company held an estate in fee simple in farmland; or
(iii)if the young farmer or the young farmer's partner—
(A)is a beneficiary of a fixed trust and the trust property includes or has previously included an estate in fee simple in farmland; or
(B)was previously a beneficiary of a fixed trust and, while the young farmer or the young farmer's partner was a beneficiary, the trust property included an estate in fee simple in farmland; or
(iv)if the young farmer or the young farmer's partner—
(A)is a capital beneficiary of a discretionary trust and the trust property includes or has previously included an estate in fee simple in farmland; or
(B)was previously a capital beneficiary of a discretionary trust and, while the young farmer or young farmer's partner was a capital beneficiary, the trust property included an estate in fee simple in farmland;
(b)in respect of a young farmer business entity that is—
(i)a trustee for a young farmer—if the trustee holds or has previously held an estate in fee simple in farmland on trust for that young farmer; or
(ii)a company (not acting in the capacity of a trustee under a trust)—if the company holds or has previously held an estate in fee simple in farmland; or
(iii)a trustee under a discretionary trust—if the trustee holds or has previously held an estate in fee simple in farmland on trust for that discretionary trust; or
(iv)a trustee under a fixed trust—if the trustee holds or has previously held an estate in fee simple in farmland on trust for that fixed trust.
69ACPrimary production requirement
The concession and exemption under this Division are subject to the following requirements—
(a)if the transferee of the dutiable property is a young farmer—within 5 years from the date the young farmer entered the contract for the transfer of the farmland, the young farmer must be normally engaged in a substantially full-time capacity in the business of primary production of the type carried on on the farmland; or
(b)if the transferee of the dutiable property is a trustee for a young farmer—within 5 years from the date the trustee entered the contract for the transfer of the farmland, the young farmer in respect of that trust must normally be engaged in a substantially full-time capacity in the business of primary production of the type carried on on the farmland; or
(c)if the transferee is a company (not acting in the capacity of a trustee under a trust)—within 5 years from the date the company entered the contract for the transfer of the farmland, the principal business of the company must be primary production of the type carried on on the farmland; or
(d)if the transferee is a trustee of a discretionary trust, within 5 years from the date the trustee entered the contract for the transfer of the farmland—
(i)the sole business of the trust must be primary production of the type carried on on the farmland; and
(ii)the young farmer in respect of that trust must be normally engaged in a substantially full-time capacity in the business of primary production of the type carried on on the farmland; or
(e)if the transferee is a trustee under a fixed trust, within 5 years from the date the trustee entered the contract for the transfer of the farmland—
(i)the sole business of the trust must be primary production of the type carried on on the farmland; and
(ii)the young farmer in respect of that trust must be normally engaged in a substantially full-time capacity in the business of primary production of the type carried on on the farmland.
69ADExemption or concession for young farmers
(1)A transferee who is a young farmer or a young farmer business entity is entitled to an exemption or concession from duty under this Chapter in respect of one or more transfers of dutiable property, if—
(a)the dutiable property the subject of each transfer is an estate in fee simple in farmland; and
(b)at the time that the contract or contracts for the transfer or transfers of the dutiable property is or are entered into—
(i)if the transferee is a young farmer—the young farmer is under the age of 35; or
(ii)if the transferee is a young farmer business entity—the young farmer in respect of that entity is under the age of 35; and
(c)the transferee is—
(i)a young farmer—
(A)who does not have a disqualifying interest; and
(B)whose partner does not have a disqualifying interest; or
(ii)a young farmer business entity—
(A)that does not have a disqualifying interest; and
(B)where the young farmer or the young farmer's partner in respect of that young farmer business entity does not have a disqualifying interest; and
(d)the dutiable value of the dutiable property—
(i)in the case of one transfer of dutiable property—does not exceed $400 000; or
(ii)in the case of two or more transfers of dutiable property—for one of those transfers, does not exceed $300 000; and
(e)the transferee is a young farmer or young farmer business entity who meets the primary production requirement in relation to the dutiable property.
(2)An exemption or concession from duty under subsection (1) will apply in respect of two or more transfers of dutiable property only if those transfers arise from—
(a)a single contract of sale; or
(b)two or more contracts of sale entered into at the same time.
69AECalculation of exemption or concession on transfer of single parcel of land or partial interest in single parcel of land
(1)For the purposes of section 69AD, in the case of one transfer of dutiable property—
(a)if the dutiable value of the dutiable property does not exceed $300 000, the young farmer or young farmer business entity (as the case requires) is entitled to an exemption from duty on the dutiable transaction;
(b)if the dutiable value of the dutiable property exceeds $300 000 but does not exceed $400 000, the young farmer or young farmer business entity (as the case requires) is entitled to a concession from duty on the dutiable transaction.
(2)The concession under subsection (1)(b) is an amount calculated in accordance with the following formula—
where "P" is the dutiable value of the dutiable property.
69AFCalculation of exemption on transfer of multiple parcels and partial interests of land
(1)For the purposes of section 69AD, in the case of two or more transfers of dutiable property—
(a)the exemption from duty on the dutiable transactions is calculated as if section 24 applies to aggregate the dutiable transactions (whether or not section 24 applies to aggregate the dutiable transactions); and
(b)the young farmer or young farmer business entity (as the case requires) is entitled to an exemption from duty in respect of $300 000 of the aggregated dutiable value of the dutiable transactions; and
(c)once paragraph (b) has applied, the duty payable on the dutiable transactions is calculated—
(i)in accordance with section 24; and
(ii)as if the dutiable values of the dutiable transactions do not include any amount in respect of which an exemption has been applied under paragraph (b).
(2)The exemption from duty under subsection (1)(c) is applied against the dutiable values of the dutiable transactions in the order of ascending dutiable values of the dutiable transactions.
Example
A young farmer enters into 3 dutiable transactions with dutiable values of $200 000 (Transaction A), $300 000 (Transaction B) and $500 000 (Transaction C). An exemption in respect of $300 000 of the aggregated dutiable value of the dutiable transactions is first applied to the dutiable transaction with the lowest dutiable value, and then to the dutiable transaction with the next lowest dutiable value. This means that a full exemption from duty applies to Transaction A and a partial exemption applies to Transaction B, being an exemption in respect of $100 000 of the dutiable value of Transaction B. For the purposes of assessing the young farmer's duty liability under subsection (1)(c), Transaction B is taken to have a dutiable value of $200 000.
69AGElection to receive young farmer exemption/concession or principal place of residence concession
(1)This section applies to a young farmer who, but for this section, in respect of a transfer of an estate in fee simple in farmland, would be entitled—
(a)to an exemption or concession from duty under section 69AD; and
(b)to a concession from duty under section 57J.
(2)The young farmer, by notice in writing to the Commissioner, must elect to receive—
(a)the exemption or concession under section 69AD; or
(b)the concession from duty under section 57J.
(3)If the young farmer elects to receive a concession under section 57J, or does not make an election under this section, he or she is not entitled to the exemption under section 69AD in respect of the transfer.
69AHLiability for duty if primary production requirement not complied with
(1)If a young farmer or young farmer business entity has received an exemption or concession from duty under this Division and the primary production requirement is not complied with—
(a)the transfer is chargeable with duty at the rate set out in section 28(1) as if section 69AD does not apply, subject to any exemption or concession other than in this Division; and
(b)the Commissioner may reassess duty on the transfer accordingly (giving an allowance for any duty already paid on the transfer).
(2)A liability for duty imposed because of subsection (1) on a transfer arises when the primary production requirement for that transfer is not complied with.
Note
Section 16 provides that a tax default does not occur if the duty is paid within 3 months after the liability for the duty arises.
(3)A reassessment referred to in subsection (1)(b) is authorised if more than 5 years have passed since the initial assessment was made.
Note
Section 9(3)(c) of the Taxation Administration Act 1997 allows a reassessment to be made more than 5 years after the initial assessment if this is authorised by a taxation law.
69AIFarmer to notify Commissioner of change in circumstances
(1)A young farmer or a young farmer business entity who has received an exemption or concession under this Division must lodge a written notice with the Commissioner within 30 days of becoming aware of any circumstances that may result in the primary production requirement not being complied with.
(2)A failure of a young farmer or young farmer business entity to comply with subsection (1) does not affect the Commissioner's power to reassess duty under section 69AH.".
Division 5—Statute law revision
20Definitions in Chapter 1 of the Duties Act 2000
(1)In section 3(1) of the Duties Act 2000—
(a)insert the following definition—
"ASX means ASX Limited (A.C.N. 008 624 691);";
(b)the definition of Australian Stock Exchange is repealed;
(c)in the definition of listed trust for "Australian Stock Exchange" (where twice occurring) substitute "ASX";
(d)in paragraph (b) of the definition of private company for "Australian Stock Exchange" substitute "ASX".
(2)In section 3(4)(a) of the Duties Act 2000 for "Australian Stock Exchange" substitute "ASX".
21What is dutiable property?
In section 10(2) of the Duties Act 2000 for "Australian Stock Exchange" (where twice occurring) substitute "ASX".
22Constructive ownership of land holdings and other property: linked entities
In section 74(7) of the Duties Act 2000, in paragraph (b) of the definition of linked entity, for "Australian Stock Exchange" substitute "ASX".
23Interpretation and application of Division
In section 89D(3) of the Duties Act 2000 for "Australian Stock Exchange" substitute "ASX".
24Definitions in Part 3 of Chapter 3
In section 90(1) of the Duties Act 2000, in paragraph (b) of the definition of company, for "Australian Stock Exchange" substitute "ASX".
25Application of Part
In section 97(2)(a) of the Duties Act 2000 for "Australian Stock Exchange" substitute "ASX".
26What is a corporate group?
In section 250(2)(b) of the Duties Act 2000 for "Australian Stock Exchange" substitute "ASX".
27Revocation of exemption
In section 250D(3) of the Duties Act 2000, in paragraph (a) of the definition of public float, for "Australian Stock Exchange" substitute "ASX".
28Definitions in Chapter 11 of the Duties Act 2000
In section 250DH of the Duties Act 2000—
(a)in the definition of listed, for "Australian Stock Exchange" substitute "ASX".
(b)in paragraph (a) of the definition of public float, for "Australian Stock Exchange" substitute "ASX".
29Duties and Land Tax Acts (Amendment) Act 2005
In clause 22(2) of Schedule 2 to the Duties Act 2000 for "Australian Stock Exchange" substitute "ASX".
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Part 3—First Home Owner Grant Act 2000
Division 1—Offences under the First Home Owner Grant Act 2000
30Payment in anticipation of compliance with residence requirement
For the penalty at the foot of section 20(3) of the First Home Owner Grant Act 2000 substitute—
"Penalty:120 penalty units.".
31New section 47 substituted
For section 47 of the First Home Owner Grant Act 2000 substitute—
47False and misleading information"
(1)A person must not, in or in connection with an application for a first home owner grant—
(a)give information that is false or misleading; or
(b)make a statement that is false or misleading; or
(c)produce a document that is false or misleading.
Penalty:Level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum) or both.
(2)A person is not guilty of an offence against subsection (1) if the court hearing the charge is satisfied that the person did not know that the information, statement or document was false or misleading.
(3)A person must not, in or in connection with an application for a first home owner grant—
(a)omit information about any matter or thing, without which the application is, to the person's knowledge, false or misleading in a material particular; or
(b)omit from a statement any matter or thing, without which the statement is, to the person's knowledge, false or misleading in a material particular; or
(c)fail to produce a document, without which the application is, to the person's knowledge, false or misleading in a material particular.
Penalty:Level 8 imprisonment (1 year maximum) or a level 8 fine (120 penalty units maximum) or both.".
Division 2—Extension of availability of additional amounts under the First Home Owner Grant Act 2000
32Amount of grant
(1)In section 18(2AB)(a) of the First Home Owner Grant Act 2000 for "1 July 2011" substitute "1 July 2012".
(2)In section 18(2C)(b) of the First Home Owner Grant Act 2000 for "1 July 2011" substitute "1 July 2012".
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Part 4—Payroll Tax Act 2007
33Definitions
In section 3 of the Payroll Tax Act 2007, in the definition of share, omit "within the meaning of section 139GCD of the Income Tax Assessment Act 1936 of the Commonwealth".
34Inclusion of grant of shares and options as wages
For section 18(1) of the Payroll Tax Act 2007 substitute—
"(1)For the purposes of this Act, wages include the grant of a share or an option to an employee by an employer in respect of services performed by the employee if the share or option is an ESS interest (within the meaning of section 83A-10 of the ITAA) and is granted to the employee under an employee share scheme (within the meaning of that section).
Note
A grant of a share or an option to an employee by an employer that is not an ESS interest will be taxable as a fringe benefit under Division 2 of this Part.".
35Choice of relevant day
(1)For section 19(2) of the Payroll Tax Act 2007 substitute—
"(2)A share or option is granted to a person if—
(a)another person transfers the share or option to that person (other than, in the case of a share, by issuing the share to that person); or
(b)in the case of a share—another person allots the share to that person; or
(c)in the case of an option—another person confers the option on, or otherwise creates the option in, that person; or
(d)the person otherwise acquires a legal interest in the share or option from another person; or
(e)the person acquires a beneficial interest in the share or option from another person.
(2A)To avoid doubt, if an employee acquires a right to be granted a share or an option, or some other material benefit, at the election of the employer, the share or option is not granted until the employer elects to grant the share or option.".
(2)For section 19(3) and (4) of the Payroll Tax Act 2007 substitute—
"(3)The vesting date in respect of a share is one of the following dates (whichever happens first)—
(a)the date on which the share vests in the employee (that is, when any conditions applying to the grant of the share have been met and the employee's legal or beneficial interest in the share cannot be rescinded);
(b)the date at the end of the period of 7 years from the date on which the share is granted to the employee.
(4)The vesting date in respect of an option is one of the following dates (whichever happens first)—
(a)the date on which the share to which the option relates is granted to the employee;
(b)the date on which the employee exercises a right under the option to have the share the subject of the option transferred to, allotted to or vested in him or her;
(c)the date at the end of the period of 7 years from the date on which the option is granted to the employee.".
36Value of shares and options
(1)In section 23(1) of the Payroll Tax Act 2007 omit "market".
(2)For section 23(2) to (5) of the Payroll Tax Act 2007 substitute—
"(2)The value of a share or an option is—
(a)the market value; or
(b)the amount determined as provided for by the Commonwealth income tax provisions.
(3)The employer may elect the method by which the value of a share or an option is determined in any return lodged under this Act.
(4)However, the Commissioner may determine the method by which the value of a share or option is determined if the grant of the share or option is not included as wages in a return lodged by an employer as required by this Act.
(5)In determining the market value of a share or an option, anything that would prevent or restrict conversion of the share or option to money is to be disregarded.
(6)The Commonwealth income tax provisions apply with the following modifications, and any other necessary modifications—
(a)the value of an option is to be determined as if it were a right to acquire a beneficial interest in a share;
(b)a reference to the acquisition of a beneficial interest in a share or right is to be read as a reference to the grant of a share or an option.
(7)In this section—
Commonwealth income tax provisions means section 83A-315 of the ITAA and the regulations made for the purposes of that section.
Note
See Division 83A of the Income Tax Assessment Regulations 1997 of the Commonwealth for the relevant regulations.".
37Inclusion of shares and options granted to directors as wages
(1)For section 24(1) of the Payroll Tax Act 2007 substitute—
"(1)For the purposes of this Act, wages include the grant of a share or an option by a company to a director of the company who is not an employee of the company by way of remuneration for the appointment or services of the director.".
(2)After section 24(3) of the Payroll Tax Act 2007 insert—
"(4)However, if wages referred to in this section are fringe benefits, the value of the wages is to be determined in accordance with Division 2 of this Part (and not this Division).".
38Transitional provisions
After clause 16 of Schedule 3 to the Payroll Tax Act 2007 insert—
17State Taxation Acts Amendment
Act 2011"(1)Anything done or omitted to be done by an employer in connection with the assessment and payment of payroll tax, in respect of a month occurring after June 2009 and before July 2011, that would have been validly done or omitted to be done had the amendments made to this Act by the State Taxation Acts Amendment Act 2011 been in force, is taken to have been validly done or omitted.
Note
This provision validates a decision by an employer to treat the grant of a share or an option to an employee that is not an ESS interest as a fringe benefit under Division 2 of Part 3 of this Act and to determine the value of those fringe benefits in accordance with those provisions, rather than by reference to Division 4 of Part 3 of this Act.
(2)Division 4 of Part 3 of this Act continues to apply in respect of a share or an option granted before 1 July 2011 that constituted wages under old section 18, whether or not the grant of the share or option would constitute wages under new section 18, if the relevant day in relation to the grant of the share or option is not a day occurring before 1 July 2011.
Example
A share granted before 1 July 2011 that is not an ESS interest continues to be treated as wages under Division 4 of Part 3 of this Act if the vesting date for the share did not occur before 1 July 2011 and the employer did not elect to treat the date of the grant as the relevant day.
(3)The assessment amendments apply in respect of any such share or option.
(4)Accordingly, the vesting date and the value of the share or option are to be determined in accordance with the assessment amendments.
(5)This clause does not apply in respect of a share or an option granted before 1 July 2011 if the liability for payroll tax in respect of the grant is determined in accordance with Division 2 of Part 3 (as permitted by subclause (1)).
(6)In this clause—
assessment amendments means the amendments made by the State Taxation Acts Amendment Act 2011;
new section 18 means section 18 as amended by the State Taxation Acts Amendment Act 2011;
old section 18 means section 18 as in force immediately before 1 July 2011;
relevant day has the same meaning as it has in section 18(3).".
39Statute law revision—groups arising from tracing of interests in corporations
In section 73(4) of the Payroll Tax Act 2007, in the definition of private company, for "Australian Securities Exchange" substitute "ASX".
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Part 5—Taxation Administration Act 1997
40Definitions in Taxation Administration Act 1997
In section 3(1) of the Taxation Administration Act 1997—
(a)in the definition of assessment, for "reassessment and a compromise assessment" substitute "reassessment, a compromise assessment and a deemed assessment";
(b)insert the following definitions—
"deemed assessment means a deemed assessment under section 12A;
on-line duty payment system has the same meaning as in section 3(1) of the Duties Act 2000;".
41New section 12A inserted
After section 12 of the Taxation Administration Act 1997 insert—
12ADeemed assessment"
(1)If the on-line duty payment system is used in respect of a dutiable transaction under the Duties Act 2000, the Commissioner is taken to have made an assessment of the duty liability of a taxpayer if the Commissioner validates the information submitted in relation to the dutiable transaction by the user of the on-line duty payment system for the purpose of payment (including a nil payment) of the duty calculated by the on-line duty payment system.
(2)A deemed assessment of a tax liability under subsection (1) may consist of or include a determination that there is not a particular tax liability.".
42Notice of assessment or withdrawal of assessment
After section 14(1) of the Taxation Administration Act 1997 insert—
"(1A)In the case of a deemed assessment, the Commissioner is deemed to have served a notice of assessment for the purposes of subsection (1).".
43Service of documents by Commissioner
After section 125(1A) of the Taxation Administration Act 1997 insert—
"(1B)If the on-line duty payment system is used in respect of a dutiable transaction under the Duties Act 2000, deemed service of a deemed assessment under section 14(1A) is service of a notice of assessment for the purposes of subsection (1).".
44When is service effective?
After section 125A(2) of the Taxation Administration Act 1997 insert—
"(3)If the on-line duty payment system is used in respect of a dutiable transaction under the Duties Act 2000, the Commissioner is taken to have served a deemed assessment on a taxpayer at the time the Commissioner validates the information submitted in relation to the dutiable transaction by the user of the on-line duty payment system for the purpose of payment (including a nil payment) of the duty calculated by the on-line duty payment system.".
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Part 6—Repeal
45Repeal of amending Act
This Act is repealed on 1 January 2012.
Note
The repeal of this Act does not affect the continuing operation of the amendments or repeals made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
Minister's second reading speech—
Legislative Assembly: 5 May 2011
Legislative Council: 2 June 2011
The long title for the Bill for this Act was "A Bill for an Act to amend the Duties Act 2000, the First Home Owner Grant Act 2000, the Payroll Tax Act 2007 and the Taxation Administration Act 1997 and for other purposes."
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