Land Tax Act 1936 (SA)

South Australia Land Tax Act 1936 An Act to make provision for taxes on land; and for other purposes. Contents Part 1—Preliminary 1 Short title 2 Interpretation 3 Taxation Administration Act Part 2—Imposition of land tax Division 1—Imposition of land tax 4 Imposition of land tax Division 2—Exemptions and waiver 5 Exemption or partial exemption of certain land from land tax 5AA Minor interest may be disregarded for purposes of residential land exemption 5A Waiver or refund of land tax for residential land in certain cases 6 Minimum tax Division 3—Taxable value of land 7 Taxable value of land 7A Reduction in taxable value for certain build‑to‑rent properties Part 3—Assessment of land tax Division 1—General 8A Calculation of land tax 8B Aggregation of land 9 Land tax where more than 1 owner of land Division 2—Land divided by community or strata plan 10 Assessment of tax against land divided by community or strata plan Division 3—Land held on trust 11 Separate assessment of trust land 12 Land tax for fixed trust if beneficial interests notified to Commissioner 13 Land tax for unit trust scheme if unitholdings notified to Commissioner 13A Land tax for discretionary trust if beneficiary notified to Commissioner 13B Land tax for beneficiary/trustees 13C Land tax for excluded trusts and public unit trust schemes Division 4—Miscellaneous trust land provisions 13D Requirements for trustees to notify Commissioner Division 5—Land held on implied, constructive or resulting trust 13E Land held on implied, constructive or resulting trust 13F Trustee's right to reimbursement under implied, constructive or resulting trust Division 6—Grouping of related corporations 13G What are related corporations? 13H What is a controlling interest in a corporation? 13I Further provisions for determining whether corporations are related corporations 13J Grouping of related corporations Part 4—Persons liable to land tax 14 Person liable to tax 15 Change of ownership 16 Liability for tax to be joint and several 17 Distribution of burden Part 5—Enforcement 18 Contracts etc to evade land tax 19 Time for payment of tax 20 Power to let or sell land liable to tax 21 Transfer of land in satisfaction of tax liability 22 Tax first charge on land 23 Certificates in respect of liability to tax 24 Alterations to valuations Part 6—Miscellaneous 25 Service 26 Regulations Schedule 1—Calculation of land tax (tables) Part 1—Interpretation 1 Interpretation Part 2—Scales of land tax 2 2020/2021 and 2021/2022 3 2022/2023 and subsequent years Part 3—Scales of land tax for trusts 4 2020/2021 and 2021/2022 (trusts) 5 2022/2023 and subsequent years (trusts) Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Land Tax Act 1936. 2—Interpretation (1) In this Act, unless the contrary intention appears— administration trust means a trust under which the assets of a deceased person are held by a personal representative, but only during the period ending on the earlier of— (a) the completion of administration of the deceased estate; or (b) the third anniversary of the death of the deceased person or the further period (if any) approved by the Commissioner under subsection (1a); assessment or reassessment means an assessment or reassessment by the Commissioner under Part 3 of the Taxation Administration Act 1996; association includes— (a) a group consisting of 2 or more persons (whether or not incorporated); and (b) any person, or group of persons, holding land on trust (whether or not incorporated); beneficiary of a discretionary trust means a person, or a member of a class of persons, in whom, by the terms of the trust, the whole or any part of the trust property may be 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; business of primary production means the business of agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, forestry or any other business consisting of the cultivation of soils, the gathering in of crops, the rearing of livestock or the propagation and harvesting of fish or other aquatic organisms and including the intensive agistment of declared livestock; child maintenance land means land held on trust that was transferred to the trustee for the benefit of a beneficiary as the result of a family breakdown within the meaning of section 102AGA of the Income Tax Assessment Act 1936 of the Commonwealth; the Commissioner means the person appointed or acting as the Commissioner of State Taxation, and includes a person appointed or acting as a Deputy Commissioner of State Taxation (see Part 9 of the Taxation Administration Act 1996); Commonwealth Superannuation Act means the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; company includes any corporate body; concessional trust means— (a) a trust of which each beneficiary is— (i) a person in respect of whom a guardianship order or an administration order is in force under the Guardianship and Administration Act 1993; or (ii) a person with a disability within the meaning of the Disability Services Act 1993; or (b) a trust created under an order of a court or tribunal, or otherwise created under an Act, for the benefit of a person under disability; or (c) a special disability trust (within the meaning of section 5); (d) a trust of a kind prescribed by the regulations; controlling interest—see section 13H; corporation has the same meaning as in section 9 of the Corporations Act 2001 of the Commonwealth; declared livestock means— (a) cattle, sheep, pigs or poultry; or (b) any other kind of animal prescribed by the regulations for the purposes of this definition; defined rural area means an area declared by the Governor by proclamation to be a defined rural area; defined shack-site area means an area declared by the Governor by proclamation to be a defined shack‑site area; determination of site value in relation to land means a determination or assessment of site value in force under the Valuation of Land Act 1971; discretionary trust means a trust under which the vesting of the whole or any part of the trust property— (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 in the event that a discretion conferred under the trust is not exercised, but does not include an excluded trust; document means book, account, paper (including a security or any instrument) or any record of information, whether in writing or accessible only through the use of a computer or other device; excluded trust means each of the following: (a) a charitable trust; (b) a concessional trust; (c) a trust the sole beneficiary or beneficiaries of which is or are an association referred to in section 4(1); (d) a trust, for any tax year in relation to which it is a superannuation trust; (e) a trust established by a superannuation trust solely for the purposes of an arrangement of a kind authorised under section 67A of the Commonwealth Superannuation Act; (f) a trust that holds child maintenance land; (g) an administration trust; fixed trust means a trust that is not an excluded trust, a discretionary trust or a trust to which a unit trust scheme relates; land used for primary production means land of not less than 0.8 hectare in area as to which the Commissioner is satisfied that the land is used wholly or mainly for the business of primary production; land tax means any tax imposed by this Act; listed trust has the same meaning as in the Stamp Duties Act 1923; notice means any notice, written or printed, or partly written or partly printed; owner— (a) in relation to land alienated from the Crown by grant in fee simple means any person (other than a mortgagee of the land)— (i) who holds; or (ii) who is entitled to; or (iii) who is entitled to purchase or acquire, a legal or equitable estate of fee simple in the land or any other estate or interest (other than an estate or interest of leasehold) in the land conferring a right to possession of the land; and (b) in relation to land of the Crown subject to any agreement for sale, or right of purchase, means the person entitled to the benefit of that agreement or right of purchase; and (c) in relation to land held under perpetual lease, means the holder of that lease; and (d) in relation to land held under a shack site lease, means the holder of that lease; and (e) in relation to land in a defined shack-site area, means the occupier of the land; and (f) in any case, includes a person who is deemed by this Act to be an owner; public unit trust scheme means a listed trust or a widely held trust; related corporations—see section 13G; residential land exemption means an exemption under section 5(10)(a), (ab), (ac), (ad), (b), (ba) or (bb); retirement village means retirement village as defined in the Retirement Villages Act 1987; shack site lease means a lease for the occupation of land for holiday, recreational or residential purposes where— (a) the land is situated on or adjacent to the banks of the River Murray, a tributary of the River Murray, or a lake or lagoon connected with the River Murray or a tributary of the River Murray; and (b) the lease was, as at midnight on 30 June, 1989, registered over the relevant land; and (c) the term of the lease is at least 40 years; site value in relation to land has the meaning assigned by the Valuation of Land Act 1971; superannuation trust means, in relation to a financial year, a trust established before the start of the financial year that, in relation to the year of income ending in that financial year, is— (a) a complying superannuation fund (within the meaning of section 42 or 42A of the Commonwealth Superannuation Act); or (b) a complying approved deposit fund (within the meaning of section 43 of the Commonwealth Superannuation Act); or (c) a pooled superannuation trust (within the meaning of section 44 of the Commonwealth Superannuation Act); tax in respect of land means land tax in respect of the land, and includes— (a) penalty tax payable under Part 5 of the Taxation Administration Act 1996 in respect of failure by the taxpayer to pay, in accordance with this Act, the whole or part of the land tax; and (b) interest payable under Part 5 of the Taxation Administration Act 1996 in respect of a failure referred to in paragraph (a), or a failure to pay penalty tax referred to in that paragraph; taxable value—see section 7; taxpayer includes every person who is liable to pay tax; trade includes profession, trade, business, and avocation. trust— (a) includes an administration or testamentary trust under which property of a deceased person is held by a personal representative or trustee (but only once the personal representative or trustee is actually holding the property); and (b) does not include an implied, constructive or resulting trust, except where expressly provided by this Act; trustee includes trustee, executor, administrator, guardian, liquidator and any person having or taking upon themselves the possession, administration, or control of land, income, or other property of any description affected by any trust, or having the possession, control, or management of land of a person under any legal or other disability; unit in 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, that entitles the beneficiary to participate proportionately with other unitholders in a distribution of the property of the trust on its vesting; unit trust scheme means an arrangement made for the purpose, or having the effect, of providing facilities for participation by a person, as a beneficiary under a trust, in any profit or income arising from the acquisition, holding, management or disposal of property under the trust, but does not include an excluded trust; widely held trust has the same meaning as that term would have in the Stamp Duties Act 1923 if a reference in section 97(1) of that Act to "300 unitholders" were a reference to "50 unitholders". (1a) For the purposes of paragraph (b) of the definition of administration trust in subsection (1), the Commissioner may approve a further period in any particular case. (1b) A proclamation made for the purposes of the definition of defined rural area or defined shack-site area in subsection (1)— (a) may be varied or revoked by subsequent proclamation by the Governor; and (b) is effective from a day (which may be antecedent or subsequent to the day on which it is made) determined by the Governor. (1c) For the purposes of this Act, the various capacities in which a person may be the owner of land are as follows: (a) as legal owner; (b) as equitable owner; (c) as prospective owner (ie a person who has entered into a contract to purchase or acquire an estate or interest in the land); (d) as lessee under a perpetual lease or a shack-site lease; (e) if the land is in a defined shack-site area—as occupier. (1d) For the purposes of this Act, a trustee's right of indemnity from the trust property is taken not to be a beneficial interest in the land subject to the trust. (2) If— (a) the whole of the land owned by a company consists of a group of dwellings and land appurtenant to those dwellings; and (b) all the issued shares of the company are owned by shareholders who acquire exclusive rights to occupy land of the company by virtue of their shareholdings in the company; and (c) each dwelling owned by the company is occupied (or able to be occupied) by a shareholder in the company or a person deriving rights of occupancy from a shareholder in the company; and (d) the scheme of company ownership and shareholder occupation of the dwellings was established before 22 February 1968, then each dwelling will be taken to be a separate parcel of land and, despite the definition of owner in subsection (1), the shareholder who is entitled to occupy the dwelling (and not the company) will be taken to be the legal owner of the land on which the dwelling is situated. (3) If— (a) land is held under a tenancy in common; and (b) the land is divided into separate portions and the owner of each undivided share in the land is entitled under a lease registered over the title to the land to occupy a particular portion of the land, then the land will not be treated as a single parcel of land in multiple ownership but rather each owner of an undivided share in the land will be regarded as the owner of the portion of the land that the owner is entitled to occupy under the lease. Note— 1 See section 8(2). 3—Taxation Administration Act This Act should be read together with the Taxation Administration Act 1996 which makes provision for the administration and enforcement of this Act and other taxation laws. Part 2—Imposition of land tax Division 1—Imposition of land tax 4—Imposition of land tax (1) Taxes are imposed on all land in the State, with the following exceptions: (a) land of the Crown that is not subject to— (i) a perpetual lease; or (ii) an agreement for sale or right of purchase; (b) park land, public roads, public cemeteries, and other public reserves; (ba) land that is subject to a heritage agreement under the Native Vegetation Act 1991 that is noted against the relevant instrument of title, or against the land, in accordance with section 23B(3) of that Act; (c) land used solely for religious purposes, or used solely for the purposes of a hospital subsidised by the Government of the State, or used by any library or other institution administered by the Libraries Board of South Australia; (d) land that is— (i) owned by an association whose objects are or include the supplying to necessitous or helpless persons of living accommodation, food, clothing, medical treatment, nursing, pre-maternity or maternity care, or other help, either without cost to such persons or in return for payments or services the amount or value of which is in the Commissioner's opinion substantially less than the value of the accommodation, food, clothing, treatment, nursing, care or help supplied; and (ii) solely or mainly used for all or any such purposes; (e) land that is— (i) owned by an association which receives an annual grant or subsidy from money voted by Parliament; and (ii) in the Commissioner's opinion, solely or mainly used for the purposes for which the grant or subsidy is made; (f) land that is let to or occupied by an association of the kind mentioned in paragraph (d) or (e), and that is used solely or mainly for purposes mentioned in those paragraphs, and for which the association pays either no rent or other sum or a rent or other sum that in the Commissioner's opinion is a nominal one; (g) land that— (i) is owned by an association whose object is, or whose objects include, the conservation of native fauna and flora; and (ii) is in the opinion of the Commissioner used, without profit to the association or any other person, solely or mainly as a reserve for the purpose of conserving native fauna or flora; (h) land that is owned or occupied without payment by any person or association carrying on an educational institution otherwise than for pecuniary profit, and that is occupied and used solely or mainly for the purposes of such an institution (but this exemption does not extend to land or buildings held as an investment and not being the site or grounds of the institution); (i) land that is owned by— (i) a municipal or district council; or (ii) a controlling authority established under Part 19 of the Local Government Act 1934; or (iii) the Renmark Irrigation Trust; (j) land that is owned by an association that is established for a charitable, educational, benevolent, religious or philanthropic purpose (whether or not the purpose is charitable within the meaning of any rule of law) and is declared by the Commissioner to be exempt from land tax on the ground— (i) that the land is or is intended to be used wholly or mainly for that purpose; or (ii) that the whole of the net income (if any) from the land is or will be used in furtherance of that purpose; (k) land that is owned by— (i) an association that is established for the purpose of, or that holds the land wholly or mainly for the purpose of, playing cricket, football, tennis, golf or bowling or other athletic sports or exercises (other than vacant land or land used for residential purposes); or (ii) an association that is established for the purpose of, or that holds the land wholly or mainly for the purpose of, horse racing, trotting, dog racing, motor racing or other similar contests (other than vacant land or land used for residential purposes); or (iii) an association of former members of the armed forces or of dependants of former members of the armed forces that holds the land for the social or recreational purposes of its members; or (iv) an association of employers or employees, registered under a law of the Commonwealth or of the State relating to industrial conciliation and arbitration that occupies the land for the purposes of the association; or (v) an association that holds the land wholly or mainly for the recreation of the local community; or (vi) an association that holds the land for the purpose of agricultural shows, and exhibitions of a similar nature; or (vii) an association that holds the land for the purpose of preserving buildings or objects of historical value on the land; or (viii) a prescribed association or an association of a prescribed kind, and is declared by the Commissioner to be exempt from land tax on the ground that the whole of the net income (if any) from the land is used in furtherance of the objects of the association and not for securing a pecuniary profit for the association or any of its members; (l) land used for primary production other than such land that is situated within a defined rural area; (m) land that is owned by a prescribed body and used for the benefit of the Aboriginal people; (n) land that is wholly exempt from land tax under section 5. (2) The taxes are imposed and payable in respect of every financial year and liability to the taxes arises at the commencement of every financial year. (3) The taxes so imposed for a particular financial year will, subject to this Act, be calculated as at midnight on 30 June immediately preceding that financial year on the basis of circumstances then existing. (4) Land of the Crown, subject to any agreement for sale or right of purchase, is liable to taxation, whether that agreement or right is absolute or conditional, and whether it is capable of completion or exercise immediately or at any future time. (5) Nothing in this Act interferes with any exemption, by special legislation, of land from taxation. Division 2—Exemptions and waiver 5—Exemption or partial exemption of certain land from land tax (1) Land is wholly exempt from land tax under this section if— (a) proper grounds for the exemption exist; and (b) such an exemption has been granted, and remains in force, under this section. (2) Land is partially exempt from land tax under this section if— (a) proper grounds for the partial exemption exist; and (b) a partial exemption has been granted, and remains in force, under this section. (3) An owner of land may apply, in a form approved by the Commissioner, for an exemption or partial exemption from land tax. (4) A person must not make any false or misleading statement or representation in an application made, or purporting to be made, under subsection (3). Maximum penalty: $10 000. (5) The Commissioner may, if satisfied that proper grounds exist for doing so, wholly or partially exempt land from land tax (whether or not an application for exemption has been made). (6) The Commissioner must, on exempting land wholly or partially from land tax under this section, give notice to an owner of the land— (a) stating the day (which may be antecedent or subsequent to the date on which the exemption is granted) as from which the exemption is to be effective; and (b) stating the extent of the exemption; and (c) setting out the grounds on which the exemption is granted. (7) If the factual basis of an exemption as stated in a notice under subsection (6) is wrong or inaccurate, the owner to whom the notice is given must, within 21 days after receipt of the notice, notify the Commissioner of the error or inaccuracy. Maximum penalty: $5 000. Expiation fee: $315. (8) If— (a) land is exempted wholly or partially from land tax under this section; and (b) circumstances change so that— (i) proper grounds for an exemption cease to exist; or (ii) proper grounds for an exemption continue to exist but a lesser exemption than the one actually given, the owner must forthwith inform the Commissioner in writing of that fact and, whether or not the Commissioner is so informed, the land will cease to be exempt from land tax, or the extent of the exemption will be reduced (as the case requires). (9) An owner of land who fails to comply with an obligation under subsection (8) is guilty of an offence. Maximum penalty: $5 000. Expiation fee: $315. (10) Proper grounds for exempting land from land tax under this section exist as follows: (a) land may be wholly exempted from land tax if— (i) the land is owned by a natural person and constitutes his or her principal place of residence (whether or not he or she is the sole owner of the land); and (ii) the buildings on the land have a predominantly residential character; and (iii) no part of the land is used for a business or commercial purpose (other than the business of primary production) or the part of the land so used is less than 25% of the total floor area of all buildings on the land; (ab) land may be wholly exempted from land tax if— (i) the land is owned by a natural person (whether or not he or she is the sole owner of the land); and (ii) any buildings on the land of a predominantly residential character are uninhabitable; and (iii) the Commissioner is satisfied— (A) that the person has ceased to occupy any building on the land of a predominantly residential character because it has been destroyed or rendered uninhabitable by an occurrence for which the person is not responsible (whether directly or indirectly) or which resulted from an accident; and (B) that any such building constituted the person's principal place of residence immediately before the date on which the building was destroyed or rendered uninhabitable; and (C) that the person intends to repair or rebuild the building within a period of 3 years from the date on which the building was destroyed or rendered uninhabitable; and (D) that the buildings on the land will, after the completion of building work, have a predominantly residential character; and (E) that the person intends to occupy the land as his or her principal place of residence after the completion of the building work; and (iv) the person is not receiving an exemption from land tax under another provision of this subsection in relation to other land that constitutes the person's principal place of residence; (ac) subject to this section, land may be wholly exempted from land tax if— (i) the land is owned by a natural person (whether or not he or she is the sole owner of the land) who has ceased to occupy the land; and (ii) the buildings on the land immediately before the person ceased to occupy the land had a predominantly residential character; and (iii) no part of the land is used for a business or commercial purpose (other than the business of primary production) or the part of the land so used is less than 25% of the total floor area of all buildings on the land; and (iv) the Commissioner is satisfied— (A) that the person has ceased to occupy the land as his or her principal place of residence because a building on the land is being renovated or rebuilt; and (B) that the buildings on the land will, after the completion of the renovation or rebuilding, have a predominantly residential character; and (C) that the person intends to resume occupation of the land as his or her principal place of residence when the renovation or rebuilding work is complete (or is completed to a suitable stage); and (v) the person is not receiving an exemption from land tax under another provision of this subsection in relation to other land that constitutes the person's principal place of residence; (ad) subject to this section, land may be wholly exempted from land tax if— (i) the land is owned by a natural person (whether or not he or she is the sole owner of the land); and (ii) no part of the land is used for a business or commercial purpose (other than the business of primary production) or the part of the land so used is less than 25% of the total floor area of all buildings on the land; and (iii) the Commissioner is satisfied— (A) that the person is, or will be, renovating or constructing a building or buildings on the land; and (B) that the buildings on the land will, after the completion of the renovation or construction work, have a predominantly residential character; and (C) that the person intends to occupy the land as his or her principal place of residence when the renovation or construction work is completed (or is completed to a suitable stage); and (iv) the person is not receiving an exemption from land tax under another provision of this subsection in relation to other land that constitutes the person's principal place of residence; (b) land may be partially exempted from land tax by reducing its taxable value in accordance with the scale prescribed in subsection (12) if— (i) the land is owned by a natural person and constitutes his or her principal place of residence (whether or not he or she is the sole owner of the land); and (ii) the buildings on the land have a predominantly residential character; and (iii) a part of the land of 25% or more but not more than 75% of the total floor area of all buildings on the land is used for a business or commercial purpose; (ba) land may be wholly exempted from land tax if— (i) the land is owned by a natural person and constitutes his or her principal place of residence (whether or not he or she is the sole owner of the land); and (ii) the buildings on the land are used for the purposes of a hotel, motel, set of serviced holiday apartments or other similar accommodation; and (iii) more than 75% of the total floor area of all buildings on the land is used for the person's principal place of residence; (bb) land may be partially exempted from land tax by reducing its taxable value in accordance with the scale prescribed in subsection (12) if— (i) the land is owned by a natural person and constitutes his or her principal place of residence (whether or not he or she is the sole owner of the land); and (ii) the buildings on the land are used for the purposes of a hotel, motel, set of serviced holiday apartments or other similar accommodation; and (iii) 25% or more of the total floor area of all buildings on the land is used for the person's principal place of residence, (and for the purposes of the scale prescribed in subsection (12), the area used for the hotel, motel, set of serviced holiday apartments or other similar accommodation will be taken to be the area used for business or commercial purposes); (c) land may be wholly exempted from land tax if the land is a supported residential facility within the meaning of the Supported Residential Facilities Act 1992 and is licensed as such under that Act; (ca) land may be wholly exempted from land tax if the whole of the land is used for the provision of residential care by an approved provider; (cb) land may be partially exempted from land tax if part of the land is used for the provision of residential care by an approved provider by reducing its taxable value by an amount equal to the value of that part of the land after applying any principle determined by the Commissioner for the purposes of this paragraph; (d) land may be wholly exempted from land tax if the land constitutes a caravan park; (e) land within a retirement village may be exempted from land tax if— (i) the land constitutes a residential unit— (A) occupied, under a residence contract, by a natural person as his or her principal place of residence; or (B) available for occupation, under a residence contract, by a natural person as his or her principal place of residence and likely to be so occupied at some time during the ensuing 12 months; or (ii) the land is appurtenant to such a residential unit; or (iii) the land is a facility provided under the retirement village scheme for the exclusive use of residents (and their guests); (f) land within a retired persons' relocatable home park may be exempted from land tax if— (i) the land constitutes the site for a relocatable home and— (A) there is a relocatable home on the site owned by a natural person and occupied by the natural person as his or her principal place of residence; or (B) it is likely that within the ensuing 12 months there will be a relocatable home on the site owned by a natural person and occupied by the natural person as his or her principal place of residence; or (ii) the land is appurtenant to such a site; or (iii) the land is a facility provided by the owner of the land for the exclusive use of residents (and their guests); (g) land used for primary production that is situated within a defined rural area may be wholly exempted from land tax if— (i) the sole owner is a natural person who is engaged on a substantially full‑time basis (either on his or her own behalf or as an employee) in a relevant business; or (ii) the land is owned jointly or in common by 2 or more natural persons at least 1 of whom is engaged on a substantially full‑time basis (either on his or her own behalf or as an employee) in a relevant business and any other owner who is not so engaged is a relative of an owner so engaged; or (iii) the land is owned solely, jointly or in common by a retired person and the following conditions are satisfied: (A) the retired person was, prior to his or her retirement, engaged on a substantially full‑time basis (either on his or her own behalf or as an employee) in a relevant business; and (B) the co-owner or co-own