Duties Act 2001 (Tas)

Duties Act 2001 An Act to create and charge a number of duties [Royal Assent 26 April 2001] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: Chapter 1 - Preliminary PART 1 - Administration 1. Short title This Act may be cited as the Duties Act 2001 . 2. Commencement This Act commences on 1 July 2001. PART 2 - General 3. Interpretation In this Act – Act imposing duty means – (a) a corresponding Act; or (b) an Act to which the Taxation Administration Act 1997 applies; advance means an advance referred to in section 140 ; annuity has the meaning given by section 174(6) ; application to register a motor vehicle means – (a) an application under the Vehicle and Traffic Act 1999 to register a motor vehicle; and (b) an application under the Vehicle and Traffic Act 1999 to transfer the registration of a motor vehicle; approved means approved by the Commissioner; associated person means a person who is associated with another person in accordance with any of the following provisions: (a) persons are associated persons if they are related persons; (b) natural persons are associated persons if they are partners in a partnership to which the Partnership Act 1891 applies; (c) private companies are associated persons if common shareholders have a significant interest, within the meaning given by section 66 , in each private company; (d) trustees are associated persons if any person is a beneficiary common to the trusts (not including a public unit trust scheme) of which they are trustees; (e) a private company and a trustee are associated persons if a related body corporate of the company (within the meaning of the Corporations Act) is a beneficiary of the trust (not including a public unit trust scheme) of which the trustee is a trustee; (ea) public companies are associated persons if common shareholders have a majority shareholding in each company; (f) a public company and another person are associated persons if the person is a subsidiary of that public company; (fa) a company and the trustee of a unit trust scheme are associated persons if the shares in the company and the units in the unit trust scheme cannot be traded except as a single security; (fb) trustees of 2 or more unit trust schemes are associated persons if the units in the unit trust schemes cannot be traded except as a single security; (g) persons are associated persons if they are acting in concert; Australian jurisdiction means a State or Territory of the Commonwealth; Australian register has the same meaning as in the Corporations Act; Australian Stock Exchange means the Australian Stock Exchange Limited; bankrupt includes applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with creditors or making an assignment of remuneration for their benefit; beneficiary of a discretionary trust means a person referred to in section 77(1) ; building includes – (a) a part of a building; and (b) a building attached to or conjoined with another building; and (c) a flat or home unit; call option means a right, conferred by an agreement or arrangement, to acquire dutiable property; call option assignment means the assignment of a right, under a put and call option, to acquire dutiable property; caring partner, in relation to a person, means the person who is in a caring relationship with that person, being a caring relationship that – (a) is the subject of a deed of relationship registered under Part 2 of the Relationships Act 2003 ; or (b) is declared to exist by virtue of a declaration of the Supreme Court in force under Part 7 of that Act; certificate of premium paid means a certificate referred to in section 221(1) ; charge includes impose; Commissioner means the Commissioner of State Revenue appointed as such under the Taxation Administration Act 1997 ; company title dwelling means a separate dwelling in a building containing more than one separate dwelling situated on land in Tasmania owned or leased by a company in which shares issued by the company are owned by persons who, by virtue of the ownership of their shares, have an exclusive right to occupy a part of the building; complying approved deposit fund means an entity that is a complying approved deposit fund in accordance with section 43 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; complying superannuation fund means – (a) an entity that is a complying superannuation fund in accordance with section 42 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; and (b) an exempt public sector superannuation scheme; corporation means a body corporate, whether incorporated in this jurisdiction or elsewhere; corresponding Act means an Act of another Australian jurisdiction that corresponds to this Act; day-procedure centre means premises at which a person is admitted for medical treatment and discharged on the same day, but does not include – (a) such premises conducted by or on behalf of the State or the Commonwealth; or (b) a hospital or other health service conducted by or on behalf of the State or the Commonwealth; or (c) a private hospital; or (d) a residential care service; declaration of trust means a declaration of trust referred to in section 6(3) ; de facto relationship has the same meaning as in the Family Law Act 1975 of the Commonwealth; de facto relationship property means – (a) property of the parties to a de facto relationship or of either of them; or (b) property held by a related person of the parties to a de facto relationship or of either of them; or (c) any estate or interest in the property referred to in paragraph (a) or (b) of this definition; discretionary trust means a trust under which the vesting of the whole or any part of the capital of the trust estate, or the whole or any part of the income from that capital, or both – (a) is required to be determined by a person either in respect of the identity of the beneficiaries, or the quantum of interest to be taken, or both; or (b) will occur if a discretion conferred under the trust is not exercised; or (c) has occurred but under which the whole or any part of that capital or the whole or any part of that income, or both, will be divested from any person or persons in whom it is vested if a discretion conferred under the trust is exercised; dutiable property has the meaning given by section 9 ; dutiable proportion means a proportion referred to in section 149(2) ; dutiable transaction has the meaning given by section 6(2) ; dutiable value, in relation to dutiable property, has the meaning given by section 18 ; dutiable value, in relation to a motor vehicle, has the meaning given by section 198 ; eligible rollover fund means an entity that is an eligible rollover fund in accordance with section 242 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth and includes an entity the trustee of which is satisfied will be an eligible rollover fund within 12 months after the date on which a liability to duty arises (or would otherwise arise); exemption certificate means a certificate of exemption in force under Part 3 of Chapter 8 ; farming company means a company – (a) the shares of which are not quoted on the Australian Stock Exchange or a recognised stock exchange; and (b) that has assets including farming property; farming property means – (a) land used solely or principally for the business of primary production; or (b) personal property which is used solely or principally in connection with the business of primary production; financial corporation has the meaning given by section 154(4) ; foreign corporation – see section 4A ; foreign natural person means a natural person who is not any of the following: (a) an Australian citizen within the meaning of the Australian Citizenship Act 2007 of the Commonwealth; (b) the holder of a permanent visa within the meaning of the Migration Act 1958 of the Commonwealth; (c) a New Zealand citizen who is the holder of a special category visa within the meaning of the Migration Act 1958 of the Commonwealth; foreign person means the following: (a) a foreign corporation (other than as a trustee acting in its capacity as trustee); (b) a foreign natural person (other than as a trustee acting in its capacity as trustee); (c) a foreign trustee acting in its capacity as trustee; foreign trust – see section 4B ; foreign trustee means a person who holds, agrees to hold, or has acquired, dutiable property on trust for a foreign trust; general insurance has the meaning given by section 163 ; general insurer means a person referred to in section 178(2) ; GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth except that it includes notional GST of the kind for which payments may be made under section 7 of the National Taxation Reform (Commonwealth-State Relations) Act 1999 by a person who is a State entity within the meaning of that Act; heavy vehicle has the same meaning as in the Heavy Vehicle National Law (Tasmania) Act 2013 , but does not include a camper van within the meaning of that Act; home – (a) subject to paragraph (b), means a private dwelling and includes a private dwelling which is a company title dwelling and a farming property on which a private dwelling is erected; and (b) for the purposes of Divisions 2A and 2B of Part 5 of Chapter 2 , and Division 2 of Part 6 of Chapter 2 , has the same meaning as in the First Home Owner Grant Act 2000 ; instrument includes a written document and a written statement; insurance includes assurance; insurance against accident means insurance referred to in section 172(2) ; insurance intermediary means – (a) a person who arranges contracts of insurance in Tasmania – (i) for reward; or (ii) as an agent for a person carrying on a business of insurance; or (b) a financial services licensee (as defined in section 761A of the Corporations Act 2001 of the Commonwealth) whose licence covers the arrangement of contracts of insurance as an agent for a person carrying on a business of insurance; or (c) a regulated principal (as defined in section 1430 of the Corporations Act 2001 of the Commonwealth) when carrying on business as an insurance broker as regulated by Subdivision D of Division 1 of Part 10.2 of that Act; insurer has the meaning given by section 178(1) ; interest includes an estate or proprietary right; land includes a stratum; land use entitlement means an entitlement to occupy land within Tasmania conferred through an ownership of shares in a company or an ownership of units in a unit trust scheme, or a combination of a shareholding or ownership of units together with a lease or licence; lease means – (a) a lease of land in Tasmania or an agreement for a lease of land in Tasmania; or (b) an agreement (such as a licence) by which a right to use land in Tasmania at any time and for any purpose is conferred on or acquired by a person; licensed motor vehicle trader means a person who holds a motor vehicle trader licence under the Motor Vehicle Traders Act 2011 ; life company has the same meaning as in the Life Insurance Act 1995 of the Commonwealth; life insurance has the meaning given by section 172(1) ; loan-backed security means – (a) an instrument or property creating, conferring or comprising a right or interest (whether described as a unit, bond or otherwise) of, or on, a beneficiary in a scheme under which any profit, distribution of capital or income in which beneficiaries participate arises from the acquisition, holding, management or disposal of a pool of loans, or any instrument which evidences such a right or interest; or (b) a debt security – (i) the payments under which by the person that issues or makes the instrument are derived substantially from the acquisition, holding, management or disposal of a pool of loans; and (ii) that is secured by a mortgage or charge over a pool of loans; or (c) an instrument of a class or description of instruments or property of a class or description of property prescribed to be a loan-backed security; majority shareholder in a company means – (a) in the case of a company the voting shares in which are not divided into classes, a person entitled to not less than 50% of those shares; and (b) in the case of a company the voting shares in which are divided into classes, a person entitled to not less than 50% of the shares in one of those classes; managed investment scheme means a managed investment scheme within the meaning of Chapter 5C of the Corporations Act, and includes a public unit trust scheme; market value, in relation to a motor vehicle, means the amount for which the motor vehicle might reasonably be sold, free of encumbrances, on the open market; marriage includes a purported marriage that is void; matrimonial property means – (a) property of the parties to a marriage or of either of them; or (b) property held by a related person of the parties to a marriage or of either of them; or (c) any estate or interest in the property referred to in paragraph (a) or (b) of this definition; medical establishment means – (a) a day-procedure centre; or (b) a private hospital; or (c) a residential care service; mineral tenement has the meaning it has in the Mineral Resources Development Act 1995 ; mortgage – (a) subject to paragraph (b) , has the meaning given by section 139 ; and (b) for the purposes of sections 227A and 227C and the definitions of "mortgage-backed security" and "pool of mortgages", means a mortgage of any estate or interest in land, including a leasehold estate or interest in land, whether the land is situated in Tasmania or elsewhere, and includes a charge over any such land; mortgage-backed security means – (a) an interest in a trust that entitles the holder of, or beneficial owner under, the interest – (i) to the whole or any part of the rights or entitlements of a mortgagee and any other rights or entitlements in respect of a mortgage or any money payable by the mortgagor under the mortgage (whether the money is payable to the holder or beneficial owner on the same terms and conditions as under the mortgage or not); or (ii) to the whole or any part of the rights or entitlements of a mortgagee and any other rights or entitlements in respect of a pool of mortgages or any money payable by mortgagors under those mortgages (whether the money is payable to the holder or beneficial owner on the same terms and conditions as under the mortgages or not); or (iii) to payments that are derived substantially or to any prescribed extent from the income or receipts of a pool of mortgages – and that, in addition, may entitle the holder or beneficial owner to a transfer or assignment of the mortgage or mortgages; or (b) a debt security (whether or not in writing), the payments under which by the person who issues or makes the debt security are derived substantially or to a prescribed extent from the income or receipts of a pool of mortgages; or (c) any of the following: (i) an interest in a trust creating, conferring or comprising a right or interest (whether described as a unit, bond or otherwise) of, or on, a beneficiary in a scheme under which any profit or income in which the beneficiaries participate arises from the acquisition, holding, management or disposal of prescribed property, or any instrument that evidences such a right or interest; (ii) a security (whether or not in writing), the payments under which by the person who issues or makes the security are derived substantially from the income or receipts of prescribed property; (iii) an interest in a trust, a debt security (whether or not in writing), an instrument or property that creates an interest in or charge over an interest in a trust, a debt security (whether or not in writing) or other instrument or property to which paragraph (a) or (b) or subparagraph (i) or (ii) of this paragraph applies – but does not include an instrument or property comprising – (d) a mortgage; or (e) the transfer of a mortgage; or (f) a declaration of trust; or (g) an instrument of a class or description of instruments or property of a class or description of property prescribed not to be a mortgage-backed security; motor dealer means a person carrying on the business of dealing in motor vehicles; motor vehicle means a motor vehicle or trailer within the meaning of the Vehicle and Traffic Act 1999 ; motor vehicle trader licence has the same meaning as in the Motor Vehicle Traders Act 2011 ; new motor vehicle means a motor vehicle that has not previously been registered under the Vehicle and Traffic Act 1999 or the law of another Australian jurisdiction; partnership interest has the meaning given by section 9(1)(i) ; party to a de facto relationship means a person who lives, or has lived, in a de facto relationship; party to a marriage includes a person who was a party to a marriage that was dissolved or annulled in Australia or elsewhere; passenger vehicle means a passenger vehicle referred to in section 197(4) ; personal relationship has the same meaning as in the Relationships Act 2003 ; policy of mortgage insurance means a policy of mortgage insurance referred to in section 171(3) ; pool of mortgages means a pool or collection of assets – (a) that is comprised solely of mortgages; or (b) that is comprised substantially or to a prescribed extent of mortgages or of money paid pursuant to mortgages (whether or not that money has been invested in prescribed property) or of money (whether or not that money has been invested in prescribed property) if the primary investment policy is to invest in mortgages, but that may also contain either or both of the following: (i) prescribed property; (ii) any other property that forms part of the pool or collection of assets for the purpose of issuing or making a mortgage-backed security in relation to the pool of mortgages; pooled superannuation trust means an entity that is a pooled superannuation trust in accordance with section 44 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; premium, in relation to general insurance, means a premium referred to in section 164 ; primary production means – (a) the cultivation of land for the purpose of selling the produce of the cultivation; or (b) the maintenance of animals for the purpose of selling them or their natural increase or bodily produce; or (c) the keeping of bees for the purpose of selling their honey; or (d) the production from a nursery; or (e) the propagation for sale of mushrooms or flowers; or (f) an undertaking relating to planting or tending trees with a view to selling the trees or timber obtained from those trees; or (g) the breeding of horses; private company means a company – (a) that is not limited by shares; or (b) whose shares are not quoted on the Australian Stock Exchange or a recognised stock exchange; private hospital means premises at which a person is provided for fee, gain or reward with medical, surgical or other treatment, or accommodation for the purposes of such treatment, and with ancillary nursing care but does not include – (a) such premises conducted by or on behalf of the State or the Commonwealth; or (b) a day-procedure centre; or (c) a residential care service; private unit trust scheme means a unit trust scheme that is not a public unit trust scheme; property means real property and personal property; property transferred includes property referred to in Column 2 of the table in section 7 ; public company means a public company within the meaning of the Corporations Act; public unit trust scheme means a unit trust scheme – (a) any of the units of which are listed for quotation on the Australian Stock Exchange or on a recognised stock exchange; or (b) that is an undertaking to which Division 11 of Part 11.2 of the Corporations Law (as continued in effect by section 1408 of the Corporations Act 2001 of the Commonwealth) applies and in respect of which – (i) some or all of the units have been offered to the public; and (ii) no fewer than 50 persons hold units in it; or (c) that was (or would have been) exempted from the requirements of Part 7.12 of the Corporations Law (as in force immediately before its repeal) and in respect of which – (i) some or all of the units have been offered to the public; and (ii) no fewer than 50 persons hold units in it; or (d) that is a managed investment scheme within the meaning of Chapter 5C of the Corporations Act 2001 of the Commonwealth and in respect of which – (i) some or all of the units have been offered to the public; and (ii) no fewer than 50 persons hold units in it; or (e) that, in the opinion of the Commissioner, will satisfy paragraph (a) , (b) , (c) or (d) within 12 months after the Commissioner gives written notice of that opinion to a person who has requested the Commissioner to express that opinion in relation to the unit trust scheme; put and call option means an agreement or arrangement that provides for both a call option and a put option in respect of the same dutiable property; put option means a right, conferred by an agreement or arrangement, to require a person to acquire dutiable property; recognised stock exchange means – (a) a stock exchange that is a member of the World Federation of Exchanges; or (b) (c) a stock exchange declared to be a recognised stock exchange under section 254 ; Recorder of Titles means the person appointed as Recorder of Titles under section 4(1) of the Land Titles Act 1980 ; registered insurer means an insurer registered under Part 3 of Chapter 7 ; related body corporate has the same meaning as in the Corporations Act; related corporation has the meaning given by section 154(4) ; related person means a person who is related to another person in accordance with any of the following provisions: (a) natural persons are related persons if – (i) one is the spouse or caring partner of the other; or (ii) the relationship between them is that of a grandparent and grandchild, a parent and child, brothers, sisters, or brother and sister; (b) private companies are related persons if they are related bodies corporate within the meaning of the Corporations Act; (c) a natural person and a private company are related persons if the natural person is a majority shareholder or director of the company or of another private company that is a related body corporate of the company within the meaning of the Corporations Act; (d) a natural person and a trustee are related persons if the natural person is a beneficiary of the trust (not being a public unit trust scheme) of which the trustee is a trustee; (e) a private company and a trustee are related persons if the company, or a majority shareholder or director of the company, is a beneficiary of the trust (not being a public unit trust scheme) of which the trustee is a trustee; relationship property, in relation to a personal relationship, means – (a) property of the parties to the personal relationship or of either of them; or (b) property held by a related person of the parties to the personal relationship or of either of them; or (c) any estate or interest in the property referred to in paragraph (a) or (b) of this definition; relative means a person referred to in section 225(3) ; replica has the meaning given by section 220(4) ; residential care service means premises where accommodation and personal care or nursing are provided to an elderly person who is not a member of the immediate family of the proprietor of the service, but does not include a service providing accommodation for persons otherwise living independently, even though the provision of accommodation may or may not include domestic services such as the preparation of meals, cleaning services and laundry services; responsible entity, in relation to a managed investment scheme, has the same meaning as in the Corporations Act; right, in relation to shares or units, means any right (whether actual, prospective or contingent) of a person to have shares or units issued by a company or trust to the person, whether or not on payment of money or for other consideration, but does not include a convertible note; shares includes rights to shares; significant relationship has the same meaning as in the Relationships Act 2003 ; special disability trust has the meaning it has in section 1209L of the Social Security Act 1991 of the Commonwealth; spouse, in relation to a person, includes the person who is in a significant relationship with that person; surrogate child, in relation to another person, means a person – (a) who is a child of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 , or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and (b) who has not ceased to be a child of the other person under that Act or law; Tasmanian company means – (a) a company incorporated or taken to be incorporated under the Corporations Act that is taken to be registered in Tasmania; or (b) any other body corporate that is incorporated under a Tasmanian Act; trailer means a trailer as defined in the Vehicle and Traffic Act 1999 ; transferee includes a person referred to in Column 3 of the table in section 7 ; unencumbered value has the meaning given by section 20 ; unit, in relation to a unit trust scheme, means – (a) a right or interest (whether described as a unit or a sub-unit or otherwise) of a beneficiary under the scheme; or (b) a right to any such right or interest; unit trust scheme means any arrangements made for the purpose, or having the effect, of providing, for persons having funds available for investment, facilities for the participation by them, as beneficiaries under a trust, in any profits, income or distribution of assets arising from the acquisition, holding, management or disposal of any property whatever pursuant to the trust; 4. Meaning of child for purpose of definition of related person For the purpose of the definition of related person in section 3 , a person is the child of another person if the person is – (a) a natural child of the other person who has not ceased to be a child of the person by virtue of the operation of section 26(1) of the Surrogacy Act 2012 or a law, of another State or a Territory or a foreign country, that corresponds to that Act; or (b) a step-child of the person; or (c) an adopted child of the person; or (d) a surrogate child of the person. 4A. Meaning of foreign corporation (1) In this section – potential voting power has the same meaning as in section 22 of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth; voting power has the same meaning as in the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth. (2) For the purposes of this Act, a corporation is a foreign corporation if it is – (a) incorporated outside Australia; or (b) a corporation in which foreign persons have a significant interest. (3) For the purposes of subsection (2)(b) , foreign persons have a significant interest in a corporation if, taking their interests in aggregate, one or more foreign persons – (a) are in a position to control 50% or more of the voting power in the corporation; or (b) are in a position to control 50% or more of the potential voting power in the corporation; or (c) have an interest in 50% or more of the issued shares in the corporation. (4) For the purposes of subsection (3) , a reference to control of the voting power in a corporation is a reference to control that is direct or indirect, including control that is exercisable as a result, or by means, of arrangements or practices, whether or not having legal or equitable force, and whether or not based on legal or equitable rights. (5) For the purposes of subsection (3) , to determine how much potential voting power a person is in a position to control at a particular time, section 22(3) of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth is to be applied. 4B. Meaning of foreign trust (1) For the purposes of this Act, a foreign trust is a trust in which foreign persons have a substantial interest in the trust estate. (2) For the purposes of subsection (1) , foreign persons have a substantial interest in a trust estate if, taking their interests in aggregate, one or more foreign persons have a beneficial interest of 50% or more in the capital of the estate of the trust. (3) If, under the terms of a trust, a trustee has a power or discretion as to the distribution of the capital of the trust estate to a person or a member of a class of persons, any such person is taken to have a beneficial interest in the maximum percentage of the capital of the trust estate that the trustee is empowered to distribute to that person. (4) If a trust is a self managed superannuation fund, within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, then, for the purposes of subsection (1) , a member of the fund is taken to have a beneficial interest in the capital of the fund, to be calculated as the amount to which the member would be entitled on transfer of the member's membership to another self managed superannuation fund. (5) For the purposes of subsection (4) , a reference to a member of