Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Amendment Notice 2012

Part 1 – Preliminary

Clause 1:

Citation

This clause provides that this Notice is to be cited as the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Amendment Notice 2012.

Clause 2:

Commencement

This clause provides the commencement provisions for the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Amendment Notice 2012.

As the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Amendment Notice 2012 is a registrable instrument for the purposes of the Legislative Instruments Act 2003 (Cwth), the Notice comes into operation on the day after the day it is registered on the Federal Register of Legislative Instruments.

Clause 3:

Notice amended

This clause provides that this Notice amends the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007.

Clause 4:

Clause 3 amended

Clause 3 provides the date of effect for the modifications prescribed by the Commonwealth Places (Mirror Taxes) Laws (WA)) Notice 2007.

Subclause (1) amends clause 3(1) to remove reference to Part 2 as having effect on and from 1 July 2003.  Part 2 which currently refers to debits tax is deleted by clause 7 and a new Part 2 is inserted for duties with a date of effect on and from 1 July 2008.

Subclause (2) inserts into clause 3 new subclauses (3), (4) and (5).

New subclause (3) provides that the modifications prescribed in the newly inserted Part 2, which applies to duties, is to have effect on and from 1 July 2008, the date the applied Duties Act 2008 and applied Duties Regulations 2008 commenced.

New subclause (4) provides that the modification in clause 30 which relates to the term ‘jurisdictions’ in Division 1 of Part 2 of the applied Pay-roll Tax Assessment Act 2002 has effect on and from 25 June 2010, the day the Pay-roll Tax Assessment Act was amended to insert new nexus arrangements to determine where wages are taxable.

New subclause (5) provides that the modifications in clause 51 which insert a reference to the Duties Act 2008 in the applied Taxation Administration Act 2003 have effect on and from 1 July 2008, the date the applied Duties Act 2008 commenced operation.

Clause 5:

Clause 5 amended

This clause replaces clause 5(3) to add a note to the clause to explain the use of the superscript 1MC after replacing or inserting a new provision or definition.

Clause 6:

Clause 7A inserted

Clause 7A explains that a note at the foot of a provision does not form part of the Notice but assists in understanding the relevant provision.

Clause 7:

Part 2 inserted

This clause deletes current Part 2 which relates to the applied Debits Tax Act 2002, the applied Debits Tax Assessment Act 2002 and the applied Debits Tax Assessment Regulations 2003 which were repealed from 26 June 2010.  New Part 2 is inserted which relates to the applied Duties Act 2008 and the applied Duties Regulations 2008 which commenced operation on and from 1 July 2008.

Part 2 – Duties

Division 1 - The applied Duties Act 2008

The provisions of this Division deal with the modifications required to enable the applied Duties Act to operate in tandem with the equivalent Western Australian taxing law in respect of a Commonwealth place within Western Australia to ensure that a taxpayer’s combined liability under the Duties Act 2008 (WA) and the applied Duties Act is, as nearly as possible, the same as the liability would be under the Duties Act 2008 (WA) if there were no Commonwealth places in Western Australia.

Clause 7:  Modification of the applied Duties Act 2008

This clause specifies that the modifications to the Duties Act 2008 (WA) in this Division apply as a law of the Commonwealth in, or in relation to, Commonwealth places within Western Australia.

Clause 8:  Section 3 modified

Subclause (1) inserts self-explanatory definitions of the terms:

• ‘Commonwealth Mirror Taxes Act’; and
• ‘corresponding Duties Act’.

Subclause (2) modifies the definition of ‘exempt body’ in section 3 by inserting paragraph (d) to include the Commonwealth or any agent or instrumentality of the Commonwealth as an exempt body.

Clause 9:  Sections 8A and 8B inserted

Section 8A - Application of Act in Commonwealth places

The provisions of this clause serve to preserve the integrity of the applied Duties Act as a law of the Commonwealth with application to Commonwealth places within the State while prescribing that this Act is to be read as a single body of law with the corresponding Duties Act.  The purpose of this is to ensure that a taxpayer’s duty liability under the combined legislation is, as nearly as possible, the same as if there were no Commonwealth places in Western Australia.

New section 8A(1)(a) applies to ensure that a reference to the Duties Act 2008 is to be read as being a reference to that Act in its application as a law of the Commonwealth in, or in relation to, Commonwealth places within Western Australia in accordance with the Commonwealth Mirror Taxes Act.

New section 8A(1)(b) applies to ensure that a reference to the Duties Regulations 2008 is to be read as being a reference to those regulations in their application as a law of the Commonwealth in, or in relation to, Commonwealth places within Western Australia in accordance with the Commonwealth Mirror Taxes Act.

New section 8A(1)(c) applies to ensure that a reference to the Minister is to be read as a reference to the Minister of the Crown in right of Western Australia to whom administration of the Duties Act 2008 (WA) is committed by the Governor of Western Australia.

New section 8A(1)(d) operates to ensure that a reference to the following Acts is to be read as being a reference to the Act of that name of the Parliament of Western Australia in its application as a law of the Commonwealth in, or in relation to, Commonwealth places in Western Australia in accordance with the Commonwealth Mirror Taxes Act:

(i)            the Stamp Act 1921;

(ii)          the Taxation Administration Act 2003;

(iii)        the Land Tax Assessment Act 2002;

(iv)        the Planning and Development Act 2005;

(v)         the Duties Legislation Amendment Act 2008.

New section 8A(2) provides that the applied Duties Act and the corresponding Duties Act are to be read as one body of law.

New section 8A(3) provides that in addition to the modifications prescribed by the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007, which have been inserted by this Notice, the applied Duties Act is deemed to be further modified to any extent necessary or convenient to:

(a)         enable the applied Duties Act to operate effectively as a law of the Commonwealth; and

(b)         ensure the combined liability under the Duties Act 2008 (WA) and the applied Duties Act is the same as it would be under the Duties Act 2008 (WA) if there were no Commonwealth places in Western Australia.

New section 8A(4) provides that where duty paid or payable in another State or Territory would be taken into account for the calculation of duty under the applied Duties Act, then any duty paid under the Duties Act 2008 (WA) must also be taken into account.

Section 8B – Things subject to dual liability

The provisions of this clause operate to ensure that a taxpayer is not subject to double duty within the State of Western Australia.

New section 8B(1) provides that if duty is payable on a transaction, instrument or other thing under both the applied Duties Act and the corresponding Duties Act, the duty payable is calculated based on the sum of the amount on which duty is payable under:

(a)         the applied Duties Act; and

(b)         the corresponding Duties Act.

New section 8B(2) clarifies that despite section 8B(1) the total amount of duty payable is the same as if the Commonwealth places in Western Australia were not Commonwealth places.

New section 8B(3) provides that the amount of duty payable on a transaction, instrument or other thing under the applied Duties Act is to be calculated as the amount determined under subsection (1), less any amount paid under the corresponding Duties Act.

Clause 10:  Section 268 modified

The definition of ‘foreign tax’ is modified to replace ‘Commonwealth’ with ‘Commonwealth (other than an applied law)’.  An applied law is a law of the Commonwealth and the modification is necessary to ensure that in relation to Commonwealth places, tax under an applied law is not foreign tax.

Division 2 – The applied Duties Regulations 2008

The provisions of this Division deal with the modifications required to enable the applied Duties Regulations to operate in tandem with the equivalent Western Australian taxing law in respect of a Commonwealth place within Western Australia to ensure that a taxpayer’s combined liability under the Duties Regulations 2008 (WA) and the applied Duties Regulations is, as nearly as possible, the same as the liability would be under the Duties Regulations 2008 (WA) if there were no Commonwealth places in Western Australia.

Clause 11:  Modification of the Duties Regulations 2008

This clause specifies that the modifications within this Division apply to the Duties Regulations 2008 (WA) as a law of the Commonwealth in relation to Commonwealth places within Western Australia.

Clause 12:  Regulation 3A inserted

Regulation 3A – Application of regulations in Commonwealth places

The provisions of these regulations serve to preserve the integrity of the applied Duties Regulations as a law of the Commonwealth with application to Commonwealth places within Western Australia, while prescribing that these regulations are to be read as a single body of law with the corresponding Duties Regulations.  The purpose of this is to ensure that a taxpayer’s liability under the combined legislation is, as nearly as possible, the same as if there were no Commonwealth places in Western Australia.

New regulation 3A(1) inserts a self-explanatory definition of ‘corresponding Duties Regulations’.

New regulation 3A(2)(a) applies to ensure that a reference to these regulations is to be read as being a reference to these regulations in their application as a law of the Commonwealth in, or in relation to, Commonwealth places within Western Australia in accordance with the Commonwealth Mirror Taxes Act.

New regulation 3A(2)(b) applies to ensure that a reference to the Duties Act 2008 (WA) is to be read as being a reference to the Duties Act in its application as a law of the Commonwealth in, or in relation to, Commonwealth places within Western Australia in accordance with the Commonwealth Mirror Taxes Act.

New regulation 3A(3) provides that the applied Duties Regulations and the corresponding Duties Regulations are to be read as one body of law.

New regulation 3A(4) provides that in addition to the modifications prescribed by the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007, which have been inserted by this Notice, the applied Duties Regulations are deemed to be further modified to any extent necessary or convenient to enable the regulations to operate effectively as a law of the Commonwealth.

Clause 8:

Clause 30 replaced

This clause replaces clause 30 in Part 5 Division 2 of the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007, which relates to the applied
Pay-roll Tax Assessment Act 2002.

Section 5B – References to jurisdictions

This new section is inserted by clause 30 to accommodate amendments made to the nexus provisions of the applied Pay-roll Tax Assessment Act 2002 in 2010, which were a component of a package of measures aimed at achieving a greater level of harmonisation between Western Australia and the other States and Territories in a number of areas of the pay-roll tax regime.

The nexus provisions use the terminology ‘jurisdictions’ and new section 5B clarifies that Western Australia, other than the Commonwealth places in Western Australia and the Commonwealth places in Western Australia are to be treated as two separate Australian jurisdictions.

Clause 9:

Clause 35 amended

This clause deletes clause 35(3), (4) and (5) in Part 5
Division 2 of the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007, which relates to the applied Pay-roll Tax Assessment Act 2002.

These subclauses modified clauses in the Glossary which were deleted when a change in the structure of the applied
Pay-roll Tax Assessment Act 2002 occurred with amendments made by the Pay-roll Tax Assessment Amendment Act 2010.

Clause 10:

Clause 51 amended

This clause amends clause 51 in Part 7 Division 1 of the Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007, which relates to the applied Taxation Administration Act 2003.

The amendment at subclause (1) deletes paragraph d(i) and (ii) of inserted section 5A(1) to remove references to the repealed Debits Tax Act 2002 and Debits Tax Assessment Act 2002.  Inserted paragraph d(i) includes a reference to the Duties Act 2008.

Subclause (2) amends inserted section 5B to include paragraphs (c), (d) and (e) which clarify that references to the terms ‘Public Service’, ‘Treasurer’ and ‘Consolidated Account’ in a taxation Act in its application in Commonwealth places is to be read as a reference to those terms as they apply to Western Australia.