Queensland: Land Tax Act 2010 (Qld)

Land Tax Act 2010 An Act about land tax and for related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Land Tax Act 2010. 2 Commencement This Act commences on 30 June 2010. 3 Dictionary The dictionary in schedule 4 defines particular words used in this Act. 4 Relationship of Act with Administration Act (1) This Act does not contain all the provisions about land tax. (2) The Administration Act contains provisions dealing with, among other things, each of the following— (a) assessments of tax; (b) payments and refunds of tax; (c) imposition of interest and penalty tax; (d) objections and appeals against, and reviews of, assessments of tax; (e) record keeping obligations of taxpayers; (f) investigative powers, offences, legal proceedings and evidentiary matters; (g) service of documents; (h) registration of charitable institutions. Note— Under the Administration Act, section 3, that Act and this Act must be read together as if they together formed a single Act. 5 Act binds all persons (1) This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the State liable to be prosecuted for an offence. Part 2 Imposition of land tax 6 Imposition of land tax on taxable land (1) This Act imposes land tax, for each financial year, on all taxable land. (2) Land tax is imposed on the taxable value of taxable land. 7 When a liability for land tax arises A liability for land tax for a financial year arises at midnight on 30 June immediately preceding the financial year. 8 Who is liable to pay land tax The owner of taxable land when a liability for land tax arises is liable to pay the tax. Part 3 Some basic concepts Division 1 What is taxable land? 9 Meaning of taxable land Taxable land is land in Queensland that— (a) has been alienated from the State for an estate in fee simple; and (b) is not exempt land. Editor's note— Acts Interpretation Act 1954, schedule 1— land includes messuages, tenements and hereditaments, corporeal or incorporeal, of any tenure or description, and whatever may be the interest in the land. Division 2 Who is the owner of land? 10 Meaning of owner (1) The owner of land includes the following— (a) a person jointly or severally entitled to a freehold estate in the land who is in possession; (b) a person jointly or severally entitled to receive rents and profits from the land; (c) a person taken to be the owner of the land under this Act. (2) The fact that a person is the owner of land under a provision of this Act does not prevent another person also being the owner of the land. (3) This section is subject to sections 12 to 14, 22 and 23. 11 Sellers and buyers of land (1) For this Act, if an agreement has been made for the sale of land— (a) the seller is taken to be the owner of the land until the buyer is in possession of it; and (b) the buyer is taken to be the owner of the land as soon as the buyer is in possession of it. (2) This section applies whether or not the agreement has been completed. 12 Community titles schemes, building units and group titles To remove doubt, it is declared that, for this Act— (a) a body corporate for a community titles scheme is not the owner of the scheme land for the scheme; and (b) a body corporate under the Building Units and Group Titles Act 1980 is not the owner of land comprised in a BUGTA plan. Note— Although the scheme land, or land comprised in a BUGTA plan, is valued under the Land Valuation Act, the owner of each lot is liable to pay land tax on the lot based on an apportionment of the valuation. See section 29. 13 Mortgagees (1) For this Act, a mortgagee of land is taken not to be the owner of the land. (2) This section applies even if the mortgagee is in possession of the land. 14 Life estates—persons entitled to reversion or remainder (1) This section applies if a person is entitled to a life estate in possession in land. Note— This person is the owner of the land under section 10(1)(a). (2) A person entitled to the fee simple interest in reversion or remainder is taken not to be the owner of the land. 15 Time-sharing schemes For this Act, the person who manages a time-sharing scheme is taken to be the owner of the land that is the subject of the scheme. Division 3 Concepts about the value of land 16 Taxable value (1) The taxable value, of land for a financial year, is the lesser of— (a) the Land Valuation Act value of the land for the financial year; or (b) the averaged value of the land for the financial year. (2) However, if section 18A applies to land for a financial year, the taxable value of the land for the financial year is the capped value of the land. Note— See also section 90 in relation to the capping of the taxable value of land for the financial year starting 1 July 2010. 17 Land Valuation Act value The Land Valuation Act value, of land for a financial year, is its value under the Land Valuation Act when a liability for land tax arises for the financial year. 18 Averaged value (1) The averaged value, of land for a financial year, is— (a) if there are Land Valuation Act values of the land for the financial year and the previous 2 financial years—the amount that is the average of those 3 values; or (b) otherwise—the amount equal to the Land Valuation Act value of the land for the financial year multiplied by the averaging factor for the year. (2) For subsection (1), the averaging factor for a financial year is the number calculated to 2 decimal places using the following formula— where— T means the total of the Land Valuation Act values, for the financial year and the previous 2 financial years, of all land for which there is or was a Land Valuation Act value for that year. V means the total of the Land Valuation Act values of all land for which there is a Land Valuation Act value for the financial year. 18A Capped value of taxable land for 2011–12 financial year (1) This section applies to taxable land for the 2011–12 financial year if— (a) section 30 does not apply to the land for the 2011–12 financial year; and (b) the land had a Land Valuation Act value for the previous financial year; and (c) the uncapped value of the land for the 2011–12 financial year is more than 150% of the taxable value of the land for the previous financial year. (2) The capped value of the taxable land for the 2011–12 financial year is 150% of the taxable value of the land for the previous financial year. (3) In this section— 2011–12 financial year means the financial year starting 1 July 2011. uncapped value, of taxable land for the 2011–12 financial year, means the lesser of the following— (a) the Land Valuation Act value of the land for the financial year; (b) the averaged value of the land for the financial year. Division 4 Concepts about foreign companies and trustees of foreign trusts 18B What is a foreign company (1) Each of the following is a foreign company— (a) a corporation incorporated outside Australia; (b) a corporation in which foreign persons have a controlling interest. (2) A corporation is taken to be a corporation mentioned in subsection (1)(b) if, taking their interests together, 1 or more persons who are foreign persons or related persons of foreign persons— (a) are in a position to control at least 50% of the voting power in the corporation; or (b) are in a position to control at least 50% of the potential voting power in the corporation; or (c) have an interest in at least 50% of the issued shares in the corporation. (3) In this section— potential voting power see the Foreign Acquisitions and Takeovers Act 1975 (Cwlth), section 22. voting power see the Foreign Acquisitions and Takeovers Act 1975 (Cwlth), section 22. 18C What is a foreign trust (1) A trust is a foreign trust if at least 50% of the trust interests in the trust are foreign interests. (2) In this section— foreign interest means— (a) a trust interest of an individual who is not an Australian citizen or permanent resident; or (b) a trust interest of a foreign company; or (c) a trust interest of a trustee of a foreign trust; or (d) a trust interest held by a related person of a person mentioned in any of paragraphs (a) to (c). 18D Who is a foreign person Each of the following is a foreign person— (a) an individual who is not an Australian citizen or permanent resident; (b) a foreign company; (c) the trustee of a foreign trust. 18E Who is a related person (1) A person is a related person of another person if— (a) for individuals—they are members of the same family; or (b) for an individual and a corporation—the person or a member of the person's family is a majority shareholder, director or secretary of the corporation or a related body corporate of the corporation, or has an interest of 50% or more in it; or (c) for an individual and a trustee—the person or a related person under another provision of this section is a beneficiary of the trust; or (d) for corporations—they are related bodies corporate; or (e) for a corporation and a trustee—the corporation or a related person under another provision of this section is a beneficiary of the trust; or (f) for trustees— (i) there is a person who is a beneficiary of both trusts; or (ii) a person is a beneficiary of 1 trust and a related person under another provision of this section is a beneficiary of the other trust; or (g) they are partners in a partnership. (2) However, a person is not a related person of another person under subsection (1), other than subsection (1)(d), if the commissioner is satisfied the interests of the persons as beneficiaries in a trust— (a) were acquired independently and, when the liability for land tax arises, are being used independently; and (b) were not acquired for a common purpose and, when the liability for land tax arises, are not being used for a common purpose. Note— See section 7 for when a liability for land tax arises. (3) In this section— related bodies corporate means bodies corporate that are related under the Corporations Act, section 50. 18F What is a trust interest (1) A trust interest is a person's interest as a beneficiary of a trust, other than a life interest. (2) For a trust that is a discretionary trust, only a taker in default of an appointment by the trustee can have a trust interest. (3) Also, for a trust that is a superannuation fund, a member of the fund has a trust interest in the fund. 18G Beneficiary's trust interest is percentage of or proportionate to property held on trust (1) A beneficiary's trust interest is— (a) for a beneficiary who is a taker in default under a discretionary trust— (i) the percentage of the trust income or trust property the beneficiary would receive in default of appointment by the trustee; or (ii) if the beneficiary would receive both trust income and trust property in default of appointment by the trustee, the greater percentage of the trust income or trust property the beneficiary would receive; or (b) for a beneficiary of a trust, other than a discretionary trust, whose entitlement is solely to income of the property held on trust—the proportion that the value of the beneficiary's entitlement bears to the value of the entitlements of all beneficiaries expressed as a percentage; or (c) for another beneficiary—the proportion that the beneficiary's entitlement under the trust bears to the unencumbered value of the property held on trust expressed as a percentage. (2) For subsection (1)(c), the beneficiary's entitlement under the trust is— (a) the amount of the unencumbered value of the property held on trust that the beneficiary could receive as a result of the acquisition of the beneficiary's trust interest determined when liability for land tax arises; or (b) the entitlement stated in subsection (3) if— (i) the beneficiary's entitlement under the trust is not subject to a prior life interest; and (ii) the beneficiary's entitlement under the trust may increase, including from nothing, on the fulfilment of any condition, contingency or the exercise or non-exercise of any power or discretion; and (iii) the condition, contingency, power or discretion is part of an arrangement a significant purpose of which is to lessen the amount of the beneficiary's entitlement at a particular time. (3) For subsection (2)(b), the beneficiary's entitlement under the trust is the maximum interest in the property held on trust that the beneficiary would have on the fulfilment of the condition or contingency or the exercise or non-exercise of the power or discretion. (4) In this section— unencumbered value, of property, means the value of the property determined without regard to— (a) any encumbrance to which the property is subject, whether contingently or otherwise; or (b) any liabilities of the trust, including a liability to indemnify the trustee. Part 4 Assessment of land tax Division 1 Aggregation of land 19 General principle—taxable land is aggregated (1) A taxpayer's liability for land tax must be assessed on the total taxable value of all taxable land owned by the taxpayer when the liability arises. Example— An individual owns 2 properties that are both taxable land. The properties each have a taxable value of $500,000. The taxpayer's liability for land tax is worked out using the total taxable value of $1,000,000. (2) This section is subject to sections 20 and 21. 20 Separate assessment of trust land (1) The liability for land tax of a taxpayer who is a trustee of a trust must be separately assessed on the taxable land that is subject to the trust, as if that land were the only land owned by the taxpayer as a trustee. (2) However, subsection (1) does not apply if— (a) the taxpayer is trustee of more than 1 trust; and (b) the interests of the beneficiaries of 2 or more of the trusts are, when the taxpayer's liability for land tax arises, the same. (3) If subsection (1) does not apply, the taxpayer's liability for land tax as trustee of the trusts mentioned in subsection (2)(b) must be assessed on the total taxable value of all taxable land that is subject to those trusts. 21 Separate assessment of land subject to time-sharing scheme For assessing a taxpayer's liability for land tax on land that is the subject of a time-sharing scheme, that land is taken to be the only land owned by the taxpayer. Division 2 Co-owners 22 Assessment of co-owners of land (1) A co-owner of land— (a) is taken to own part of the land in proportion to the co-owner's interest in the land; and (b) subject to section 19, must be severally assessed. (2) For subsection (1)(a), co-owners who hold their interests as joint tenants are taken to hold equal interests in the land. (3) Part 6 does not confer a benefit on a co-owner of land if— (a) requirements about the owner of exempt land are provided for under the part; and (b) the co-owner does not satisfy the requirements. (4) Despite subsection (1), the commissioner may make 1 assessment as if the land were owned by 1 co-owner as the trustee of the other co-owners. (5) The commissioner may make an assessment mentioned in subsection (4) only if— (a) there are at least 5 co-owners of the land; and (b) the commissioner considers the land is used for investment or commercial purposes. (6) For deciding whether the land is used for investment or commercial purposes, the commissioner must consider the following factors— (a) the purposes for which the land is used; (b) the number of co-owners of the land; (c) whether the co-owners are individuals, trustees or companies; (d) whether the relationship between the co-owners is predominantly a commercial or business relationship; (e) the value of the land; (f) any other relevant matter. (7) If the commissioner may make an assessment mentioned in subsection (4), the commissioner may make the assessment as if the land were owned by a trustee of a foreign trust if— (a) 1 or more of the co-owners are any of the following— (i) an absentee; (ii) a foreign company; (iii) a trustee of a foreign trust; and (b) the co-owners mentioned in paragraph (a) together own at least a 50% interest in the land. Division 3 Trust land 22A Assessment of trustees (1) If land is owned by 2 or more trustees of the same trust, the commissioner must make 1 assessment as if the land were owned by 1 person. (2) This section applies despite section 22. (3) Also, this section does not limit section 23. 23 Deceased estates (1) This section applies if an estate administrator owns land in that capacity when a liability for land tax arises. (2) The estate administrator may give the commissioner a request, in the approved form, to assess the relevant beneficiaries as if they were the owners of the land. (3) If a request is made under subsection (2) and the commissioner is satisfied this section applies, for this Act— (a) each relevant beneficiary is taken to be the owner of part of the land in proportion to the beneficiary's interest in the land; and (b) the estate administrator is taken not to be the owner of the land. (4) To the extent subsection (3) does not apply to the land, if the estate administrator would, apart from this section, be liable to pay land tax on the land, then, for the purpose of assessing a liability for land tax, until the administration of the estate is complete— (a) the deceased person is taken to be the owner of the land; and (b) the estate administrator is taken not to be the owner of the land. (5) Land that is taken to be owned by the deceased person under subsection (4)(a), or a part of that land, is exempt land, for the purpose of assessing a liability for land tax arising on the next 30 June after the date of death, if— (a) as at the last 30 June before the date of death, the land or part was exempt land; and (b) as at the next 30 June after the date of death— (i) the land or part is not being used and has not been used since the date of death; or (ii) the land or part is being used, and has been used since the date of death, only for a purpose for which it was being used on the last 30 June before the date of death. (6) A reference in subsection (5) to the next 30 June after the date of death is, if the date of death is 30 June, a reference to that day. (7) In this section— estate administrator means— (a) an executor or administrator of a deceased estate; or (b) a trustee of a trust created under a will. relevant beneficiary means a beneficiary of the deceased estate or trust who has an interest in the land when a liability for land tax arises. 24 Beneficiaries of discretionary trusts (1) The beneficiaries of a discretionary trust when a liability for land tax arises are the persons in whose favour a power of appointment has been exercised during the 12 month period ending when the liability arises. Note— See also schedule 4, definition beneficiary (2) In this section— discretionary trust means a trust over property for which a person has a power of appointment. Division 4 Home unit companies 25 Definition for div 4 In this division— owner, of a unit, means the person who is entitled to exclusively occupy the unit because the person owns shares in the home unit company that owns the land on which the unit is located. 26 What is a home unit (1) For this division, a home unit is a unit used as the home of— (a) the owner of the unit; or (b) if the owner of the unit holds the owner's shares in the home unit company in trust—all beneficiaries of the trust. (2) However, subsection (3) applies if— (a) a unit that is trust property of a trust (trust 1) is used as the home of all beneficiaries of the trust; and (b) a beneficiary of trust 1 is a prescribed relative of a beneficiary of another trust (trust 2); and (c) the trust property of trust 2 includes— (i) a home unit forming part of any building; or (ii) exempt land used as the home of all beneficiaries of trust 2. (3) The unit mentioned in subsection (2)(a) is not a home unit unless the commissioner is satisfied that trust 1 and trust 2 were not established by or on the instructions of the same person. (4) If a home unit is also used for a non-exempt purpose— (a) the commissioner must apportion the use of the unit between use as a home and use for non-exempt purposes, having regard to— (i) the proportion of the gross floor area of the unit used for each purpose; and (ii) the extent to which each proportion is used for the purpose; and (b) the fraction equivalent to the proportion of the unit used for non-exempt purposes must be used for calculating the value of b for section 27. (5) For this section, part 6, division 1, subdivision 2 applies to a unit— (a) as if references in the subdivision to land, a residential area on land, and a residence on land, included a reference to a unit; and (b) as if the reference in section 36(2)(f) to the person's acquisition of the land were a reference to the person's acquisition of shares in the home unit company; and (c) with any other necessary modifications. 27 Calculation of home unit company's liability (1) The amount of a home unit company's liability for land tax for a financial year is the amount calculated as follows— where— a is the amount of land tax that would be payable by the company if— (a) section 32 applied; and (b) the average unit value was the taxable value of the taxable land owned by the company. b is the number of units, other than home units, forming part of a building located on taxable land owned by the company. (2) For this section, average unit value means the amount calculated as follows— where— t is the taxable value of the taxable land owned by the home unit company. u is the number of units forming part of a building located on the land. (3) This section applies despite sections 6(2) and 32. 28 Reassessment—demolition or renovations (1) This section applies if— (a) a home unit company's liability for land tax for a financial year (the relevant year) is calculated on the basis that a unit is used as a person's home under section 38 as applied by section 26(5); and (b) the person mentioned in section 38 does not resume using the unit as the person's principal place of residence before a liability for land tax arises for the next financial year. (2) The home unit company must give notice to the commissioner stating the person did not resume using the unit as his or her principal place of residence before a liability for land tax arose for the next financial year. Note— Under the Administration Act, the requirement under this subsection is a lodgement requirement for which a failure to comply is an offence under section 121 of that Act. (3) The notice mentioned in subsection (2) must be given within 28 days after the day on which the liability mentioned in subsection (1)(b) arises. (4) The commissioner must make a reassessment of the home unit company's liability for land tax for the relevant year on the basis that the unit was not a home unit. Division 5 Other provisions about assessments 29 Lots in community titles schemes or on BUGTA plans (1) For assessing a taxpayer's liability for land tax on a lot included in a community titles scheme or shown on a BUGTA plan— (a) the commissioner must apportion the taxable value of the relevant land between the lots included in the community titles scheme or shown on the BUGTA plan in proportion to the relevant lot entitlements; and (b) the taxable value of each lot is taken to be the amount apportioned to it under paragraph (a); and (c) each lot is taken to be a separate parcel. (2) If all or some of the lots included in the community titles scheme or shown on the BUGTA plan are included in a time-sharing scheme— (a) the lots included in the time-sharing scheme are taken to be 1 lot (the time-sharing lot); and (b) the relevant lot entitlement of the time-sharing lot is taken to be the total of the relevant lot entitlements for the lots included in the time-sharing scheme. (3) This section applies despite section 16 and the BCCM Act, section 194. (4) In this section— relevant land means— (a) the scheme land for the community titles scheme; or (b) the land comprised in the BUGTA plan. relevant lot entitlement means— (a) for a lot included in a community titles scheme—the interest schedule lot entitlement of the lot; or (b) for a lot shown on a BUGTA plan—the lot entitlement of the lot. 30 Discounting of Land Valuation Act value—subdivided land not yet developed (1) This section applies to a parcel (the relevant parcel) if— (a) the relevant parcel is 1 of the parts into which a larger parcel has been subdivided; and (b) the person who subdivided the larger parcel (the subdivider) was the owner of the larger parcel when it was subdivided; and (c) when the larger parcel was subdivided, the relevant parcel was not developed land; and (d) since the larger parcel was subdivided, the relevant parcel has been held for sale; and (e) when a liability for land tax on the relevant parcel arises— (i) the subdivider is still the owner of the relevant parcel; and (ii) the relevant parcel is still not developed land and is not being held by the subdivider for further subdivision; and (f) the Land Valuation Act value of the relevant parcel for the relevant financial year is not calculated under that Act, chapter 2, part 3, division 3; and Note— The Land Valuation Act, chapter 2, part 3, division 3 provides for separate parcels to be included in 1 valuation in particular circumstances. (g) the subdivider owns at least 5 other parcels that satisfy paragraphs (a) to (e). (2) For assessing the subdivider's liability for land tax, the Land Valuation Act value of the relevant parcel must be discounted by 40%. (3) For this section, land is taken to be subdivided when a plan of subdivision providing for the division of the land into lots is registered under the Land Title Act 1994. (4) In this section— developed land means land improved, or being improved, by the construction of a building or other improvement reasonably capable of being used. Part 5 Rate of land tax 31 Meaning of absentee (1) An absentee is a person who does not ordinarily reside in Australia. (2) An absentee includes a person who— (a) can not satisfy the commissioner that he or she ordinarily resides in Australia; and (b) when ownership of the person's land is decided for this Act— (i) is absent from Australia; or (ii) has been absent from Australia for more than half of the 12 month period ending when the ownership is decided. (3) An absentee does not include— (a) a public officer of the Commonwealth or of a State who is absent in the performance of the officer's duty; or (b) an individual (the employee) employed by an employer in Australia for a continuous period of 1 year immediately before the employee's absence, if the commissioner is satisfied that— (i) the employee is absent in the performance of the employee's duty for his or her employer; and (ii) the employee's absence will not be longer than 5 years; or (c) an Australian citizen; or (d) the holder of a permanent visa under the Migration Act 1958 (Cwlth), section 30(1). (4) Subsection (3)(b) stops applying, for that absence, as soon as it is longer than 5 years. (5) In this section— Australia includes an external Territory. 32 Rate of land tax generally (1) Land tax is imposed on the total taxable value of the taxable land owned by a taxpayer at the following rate— (a) for an individual other than an absentee or trustee—the rate provided for under schedule 1; (b) for a company or trustee— (i) the general rate provided for under schedule 2, part 1; and (ii) if the company or trustee is a foreign company or a trustee of a foreign trust—the surcharge rate provided for under schedule 2, part 2; (c) for an absentee— (i) the general rate provided for under schedule 3, part 1; and (ii) the surcharge rate provided for under schedule 3, part 2. (2) This section applies subject to sections 20 and 21. Note— See, however, section 58B, about concessions for eligible BTR developments. 33 Reduced rate for particular trustees (1) This section applies to— (a) a trustee for a person under the Bankruptcy Act 1966 (Cwlth); or (b) a trustee for an incapacitated person within the meaning of the Public Trustee Act 1978; or (c) a trustee of a special disability trust under— (i) the Social Security Act 1991 (Cwlth), section 1209L; or (ii) the Veterans' Entitlements Act 1986 (Cwlth), section 52ZZZW. (2) Despite section 32, the commissioner must assess the trustee's liability for land tax at the rate provided for under schedule 1. 34 Reassessment—employee absent from Australia longer than 5 years (1) This section applies if— (a) a taxpayer's liability for land tax for a financial year is assessed on the basis that the taxpayer is not an absentee under section 31(3)(b); and (b) the taxpayer's absence from Australia is longer than 5 years. (2) The taxpayer must, within 28 days after the day on which the taxpayer has been absent from Australia for 5 years, give notice to the commissioner that this section applies. Note— Under the Administration Act, the requirement under this subsection is a lodgement requirement for which a failure to comply is an offence under section 121 of that Act. (3) The commissioner must reassess the taxpayer's liability for land tax for the financial year on the basis that the taxpayer was an absentee. Part 6 Exempt land Division 1 Homes Subdivision 1 Preliminary 35 Explanation of operation of home provisions (1) The purpose of this section is to explain generally how this division provides for land that is used as a home to be exempt land. (2) Land is exempt under subdivision 3 if it is used as the home of— (a) the owner; or (b) if the owner is a trustee and is not an absentee—all beneficiaries of the trust. (3) Under subdivision 2, land is used as a person's home if— (a) the 6 month residency test in section 36(1)(a) is satisfied; or (b) the person satisfies the requirements of section 37 or 38 (the person received care during the 6 month residency period or the person is temporarily living elsewhere because of renovations); or (c) the commissioner is satisfied the person is using the land as his or her principal place of residence when the relevant liability for land tax arises (see section 36(1)(c)). (4) Land is partially exempt under subdivision 3 if it is used as a home as mentioned in subsection (2) but it is also used for a non-exempt purpose. (5) Under subdivision 2, land is used for a non-exempt purpose if it is used for any other substantial purpose, except if the only other purpose it is used for is 1 or more of the following— (a) for— (i) 1 allowable letting; or (ii) 2 allowable lettings, if at least 1 is a family letting and certain other requirements are met (see section 40); (b) for a working from home arrangement. Subdivision 2 Basic concepts about homes 36 Land used as the home of a person (1) Land is used as the home, of a person for a financial year, only if— (a) that land, and no other land, has been continuously used by the person for residential purposes, whether alone or with another person, for the 6 month period (the 6 month residency period) ending when a liability for land tax arises for the financial year; or (b) the land is taken to be used as the person's home under section 37 or 38; or (c) otherwise—the commissioner is satisfied the land is used as the person's principal place of residence, whether alone or with another person, when a liability for land tax arises for the financial year. (2) For deciding whether land is used as the person's principal place of residence under subsection (1)(c), the commissioner may have regard to the following— (a) the length of time the person has occupied a residence on the land; (b) the place of residence of the person's family; (c) whether the person has moved his or her personal belongings into a residence on the land; (d) the person's address on the electoral roll; (e) whether services such as telephone, electricity and gas are connected to the land; (f) whether the person acquired the land with an intention to occupy a residence on the land as his or her principal place of residence; (g) any other relevant matter. 37 Land taken to be used as a home—person who receives care (1) This section applies to land, for a financial year, if— (a) the person who owns the land received care for all or part of the 6 month residency period; and (b) the person used the land for a qualifying residential use before the person started to receive care; and (c) the person has used the land for a qualifying residential use continuously for a period of at least 6 consecutive months; and (d) subsection (6) does not prevent the person from being taken to use the land as the person's home under this section. (2) For this section, the person receives care if the person— (a) resides at a hospital as an inpatient; or (b) receives residential care at a residential care service; or (c) resides on other land that is not owned by the person and is under the care of someone else. (3) The land is taken to be used as the person's home for the financial year. (4) However, subsection (3) does not apply if income was derived from use of the land during the 1 year period ending when the liability for land tax arises. (5) Despite subsection (4), income may be derived from a lease, licence or other arrangement under which a person has a right to occupy the land, if— (a) the right of occupation is for not more than 6 months in the 1 year period; or (b) the income is not more than is reasonably required to cover the following— (i) rates and other charges levied on the land by the local government for the land; and (ii) maintenance expenses for the land. (6) The maximum period for which the person may be taken to use the land as the person's home under this section is 6 years from the end of the last period of at least 6 consecutive months during which the land was used by the person for a qualifying residential use. (7) In this section— qualifying residential use, of land by the owner of the land, means use of the land, and no other land, by the owner for residential purposes, whether alone or with another person. residential care service see the Aged Care Act 1997 (Cwlth), schedule 1. 38 Land taken to be used as a home—demolition or renovations Land is taken to be used as a person's home for a financial year if— (a) the commissioner is satisfied that the person is temporarily residing elsewhere, when a liability for land tax arises for the financial year, because— (i) a residence on the land has been or is being demolished and a new residence is being or will be constructed; or (ii) a residence on the land is being renovated to an extent requiring it to be vacated; and (b) the land was used as the principal place of residence of the person at some time during the 6 month residency period; and (c) the person intends to resume using the land as the person's principal place of residence before a liability for land tax arises for the next financial year. 39 Land used for non-exempt purpose (1) This section applies if land is used as the home of a person (the principal resident) for a financial year (the relevant financial year). (2) The commissioner may decide the land is used for a non-exempt purpose if— (a) the commissioner is satisfied that, when a liability for land tax arises for the relevant financial year, the land is being used for any purpose other than as the home of the principal resident; and (b) the commissioner is satisfied that use of the land for purposes mentioned in paragraph (a) is substantial; and (c) section 40 does not apply. (3) For deciding whether use of the land for purposes mentioned in subsection (2)(a) is substantial, the commissioner must have regard to each of the following factors— (a) whether a person other than the principal resident has been given a right to occupy part of the land under a tenancy agreement; (b) whether a person, other than the principal resident or a member of the principal resident's family who uses the land as his or her home, carries out work on the land as an employee or contractor, other than work related to the land itself or a building located on the land; (c) the extent to which a person uses the land, or has set the land aside for use, for purposes mentioned in subsection (2)(a); Examples— 1 Two rooms of a house on the land are set aside for a hairdressing business. 2 A shed on the land is used for a repair business. 3 A retail shop is operated at the front of a house on the land. (d) whether the gross income generated during the financial year immediately before the relevant financial year from business or an income producing activity on the land is more than— (i) an amount prescribed under a regulation; or (ii) if no amount is prescribed under a regulation—$30,000; (e) any other relevant matter. 40 Land not used for non-exempt purpose—allowable lettings and work from home arrangements (1) The commissioner may not decide land is used for a non-exempt purpose if— (a) the land is used as the home of a person (the principal resident) for a financial year; and (b) when a liability for land tax arises for the financial year, either or both of the following apply— (i) there is a permitted number of allowable lettings for the land; (ii) a person who resides on the land carries out work on the land, other than excluded work, as an employee under an arrangement with the person's employer; and (c) the commissioner is satisfied the land is used only for the purposes mentioned in paragraphs (a) and (b) when a liability for land tax arises for the financial year. (2) There is an allowable letting for the land if— (a) a person (the occupant) other than the principal resident has been given the right to occupy a residential area on the land (the leased area) under a tenancy agreement; and (b) the leased area is not more than 50% of the total floor area of all residential areas on the land; and (c) the leased area is not a residential area that— (i) is 1 of 3 or more flats in a building; and (ii) is not used for residential purposes by the principal resident; and (d) the leased area is used by the occupant for residential purposes; and (e) the occupant has not given the right to occupy any part of the area to another person under a tenancy agreement; and (f) the rent payable for the leased area is not more than the market rent for the area. (3) The permitted number, of allowable lettings for the land, means— (a) 1 allowable letting; or (b) 2 allowable lettings, if— (i) at least 1 of the lettings is a family letting; and (ii) the total floor area of the leased areas for the lettings is not more than 50% of the total floor area of all residential areas on the land. (4) An allowable letting is a family letting if the occupant is a member of the principal resident's family. Note— If there is a family letting for the land and the land is used for a non-exempt purpose, the family letting may be included in the use of the land as a home for the purpose of a partial exemption. See section 42. (5) In this section— excluded work means work involving use of the land for a purpose for which, or in a way in which, residential land is not ordinarily used. Example of work that would be excluded work— manufacturing work carried out in a shed Example of work that would not be excluded work— office work carried out under a telecommuting arrangement in a home study Subdivision 3 Exemptions 41 Exemption for land used as home (1) This section applies to land that is— (a) comprised in 1 parcel; and (b) either— (i) owned by a person, other than a trustee or the manager of a time-sharing scheme, and used as the person's home; or (ii) owned by a trustee of a trust, other than an absentee, and used as the home of all beneficiaries of the trust; and (c) not used for a non-exempt purpose. (2) The land is exempt land. (3) This section is subject to section 43. Note— A co-owner, other than a trustee, who does not use the land as his or her home can not obtain a benefit under this section (see section 22(3)). 42 Partial exemption if land used for non-exempt purpose (1) This section applies to land that is— (a) comprised in 1 parcel; and (b) either— (i) owned by a person, other than a trustee or the manager of a time-sharing scheme, and used as the person's home; or (ii) owned by a trustee of a trust, other than an absentee, and used as the home of all beneficiaries of the trust; and (c) used for a non-exempt purpose. (2) The part of the land used as a home is exempt land. (3) For subsection (2), the commissioner must apportion the taxable value of the land between use as a home and use for non-exempt purposes, having regard to— (a) the proportion of the land used for each purpose; and (b) the extent to which each proportion is used for the purpose. (4) For apportioning the taxable value of the land under subsection (3), if there is not more than 1 family letting for the land, the family letting is taken to be included in the use of the land as a home. (5) This section is subject to section 43. (6) In this section— family letting see section 40. Note— A co-owner, other than a trustee, who does not use the land as his or her home can not obtain a benefit under this section (see section 22(3)). 42A Exemption for old home after transitioning to current home (1) This section applies in relation to the imposition of land tax on taxable land for a financial year (the current financial year) if— (a) a person is the owner of land (the current home)— (i) that, on the liability date for the current financial year, is exempt or partially exempt land under section 41 or 42; and (ii) of which, on the liability date for the financial year (the previous financial year) occurring immediately before the current financial year, the person was not the owner; and (b) the person is also the owner of land (the old home)— (i) of which the person has continuously been the owner since the liability date for the previous financial year; and (ii) that, on the liability date for the previous financial year, was exempt or partially exempt land for the person as owner of the land under section 41 or 42; and (iii) of which, on the liability date for the financial year immediately following the current financial year, the person is no longer the owner. (2) Subject to subsection (3), the person's old home is exempt land for the current financial year, to the extent that the old home was exempt or partially exempt land under section 41 or 42 on the liability date for the previous financial year. (3) The old home is not exempt under subsection (2) if the person receives rents or profits from— (a) the current home before it is used as the home of the person, other than to the extent provided for under subsection (4); or (b) the old home after it is used as the home of the person. (4) For subsection (3)(a), the person may receive rents or profits from the current home if— (a) the current home was acquired by the person subject to a lease under which a person (the lessee) had a right to occupy the land; and (b) the lessee gave vacant possession of the current home to the person on the earlier of— (i) the end of the term of the lease; or (ii) within 6 months after the day the person acquired the current home. (5) In this section— liability date, for a financial year, means the time when liability for land tax for the financial year arises under section 7. 42B Exemption for new home before transitioning from current home (1) This section applies in relation to the imposition of land tax on taxable land for a financial year (the current financial year) if— (a) a person is the owner of land (the current home)— (i) that, on the liability date for the current financial year, is exempt or partially exempt land under section 41 or 42, other than because the land is taken to be used as a home under section 38; and (ii) of which, on the liability date for the financial year (the next financial year) occurring immediately after the current financial year, the person is no longer the owner; and (b) the person is also the owner of land (the new home)— (i) of which, on the liability date for the financial year occurring immediately before the current financial year, the person was not the owner; and (ii) that, on the liability date for the current financial year, is capable of being used by a person for residential purposes, whether alone or with another person; and (iii) that, on the liability date for the next financial year, is exempt or partially exempt land under section 41 or 42 for the person; and (iv) of which, on the liability date for the next financial year, the person is still the owner. (2) Subject to subsection (3), the person's new home is exempt land for the current financial year, to the extent that the person's current home is exempt or partially exempt land under section 41 or 42 on the liability date for the current financial year. (3) The new home is not exempt under subsection (2) if the person receives rents or profits from— (a) the current home after it is used as the home of the person; or (b) the new home before it is used as the home of the person, other than to the extent provided for under subsection (4). (4) For subsection (3)(b), the person may receive rents or profits from the new home if— (a) the new home was acquired by the person subject to a lease under which a person (the lessee) has a right to occupy the land; and (b) the lessee gives vacant possession of the new home to the person on the earlier of— (i) the end of the term of the lease; or (ii) within 6 months after the day the person acquired the new home. (5) In this section— liability date, for a financial year, means the time when liability for land tax for the financial year arises under section 7. 43 Provision for particular family trusts (1) Land that is trust property of a trust (trust 1) is not exempt land under this division if— (a) either— (i) land that is trust property of another trust (trust 2) is exempt land under this division; or (ii) a home unit that is trust property of another trust (also trust 2) is taken into account under section 27; and (b) a beneficiary of trust 1 is a prescribed relative of a beneficiary of trust 2. (2) However, subsection (1) does not apply, and the land is exempt land, if the commissioner is satisfied trust 1 and trust 2 were not established by or on the instructions of the same person. (3) In this section— home unit see section 26. owner, of a home unit, see section 25. Subdivision 4 Reassessment provisions 44 Reassessment—demolition or renovations (1) This section applies if— (a) a person's liability for land tax for a financial year (the relevant year) is assessed on the basis that land is taken to be used as a person's home under section 38; and (b) the person does not resume using the land as the person's principal place of residence before a liability for land tax arises for the next financial year. (2) The person must give notice to the commissioner stating the person is not using the land as his or her principal place of residence. Note— Under the Administration Act, the requirement under this subsection is a lodgement requirement for which a failure to comply is an offence under section 121 of that Act. (3) The notice mentioned in subsection (2) must be given within 28 days after the day the liability mentioned in subsection (1)(b) arises. (4) The commissioner must make a reassessment of the person's liability for land tax for the relevant year on the basis that the land was not exempt land. 44A Reassessment—transitioning to or from current home (1) This section applies if a person's liability for land tax is assessed on the basis that the person is, under section 42A, the owner of an old home that is exempt land for a financial year (the relevant year), but— (a) on the liability date mentioned in section 42A(1)(b)(iii), the person is still the owner of the old home; or (b) the old home is not exempt under section 42A(2) because the person has received rents or profits in the way mentioned in section 42A(3). (2) This section also applies if a person's liability for land tax is assessed on the basis that the person is, under section 42B, the owner of a new home that is exempt land for a financial year (also the relevant year), but— (a) on the liability date mentioned in section 42B(1)(a)(ii), the person is still the owner of the current home mentioned in that section; or (b) on the liability date mentioned in section 42B(1)(b)(iii), the new home is not exempt or partially exempt land under section 41 or 42 for the person; or (c) on the liability date mentioned in section 42B(1)(b)(iv), the person is not the owner of the new home; or (d) the new home is not exempt under section 42B(2) because the person has received rents or profits in the way mentioned in section 42B(3). (3) Each matter mentioned in subsection (1)(a) and (b) and (2)(a) to (d) is a relevant matter. (4) The person must give notice to the commissioner stating the details of the relevant matter. Note— Under the Administration Act, the requirement under this subsection is a lodgement requirement for which a failure to comply is an offence under section 121 of that Act. (5) The notice mentioned in subsection (4) must be given within 28 days after the day the relevant matter happens, or the circumstances comprising the relevant matter arise. (6) The commissioner must make a reassessment of the person's liability for land tax for the relevant year on the basis that the land was not exempt land. 45 Reassessment—newly subdivided land (1) This section applies if— (a) a person's liability for land tax for a relevant financial year is assessed on the basis that land is exempt land under this division; and (b) the land is later subdivided by the person other than as a result of a compulsory acquisition required by a local government, a State, or a State or Commonwealth statutory body. (2) The commissioner must make a reassessment of the person's liability for land tax for the relevant financial year on the basis that the taxable portion of the land was not exempt land. (3) If— (a) the person used the land as the person's principal place of residence for all of the relevant financial years; and (b) the land is subdivided into not more than 5 lots; then subsection (2) does not apply unless, within 5 years from the day of the original subdivision, any of the subdivided lots are further subdivided so that the land is ultimately subdivided into more than 5 lots. (4) For this section— (a) land is taken to be subdivided when a plan of subdivision providing for the division of the land into lots is registered; and (b) the land subdivided is taken to include any land mentioned in subsection (1)(a) shown on the plan of subdivision as any of the following— (i) a new road dedicated for public use; (ii) for use as a drainage reserve; (iii) for use as a public garden or recreation space; (iv) for use as a pathway or canal; (v) for another use prescribed under a regulation. (5) For subsection (2), the taxable value of the taxable portion is taken to be the amount equivalent to the relevant proportion of the taxable value of the land that is subdivided when the liability for land tax arises. (6) In this section— plan of subdivision means— (a) a plan under the Building Units and Group Titles Act 1980; or (b) a plan of subdivision under the Land Title Act 1994; or (c) a plan or scheme, however described, showing the division of, amalgamation into, dedication of or redefinition of, at least 1 lot, that is able to be registered in a land registry under the Land Title Act 1994. relevant financial years means the 5 financial years preceding the financial year during which the land is subdivided. relevant proportion means the proportion the area of the taxable portion bears to the area of the land that is subdivided. taxable portion means the portion of land that remains after subtracting, from the area of the land that is subdivided, the greater of— (a) 0.1ha; or (b) the parcel on which the principal place of residence was located at the time of the subdivision, if any. Division 2 Charitable institutions 46 Meaning of exempt purpose In this division— exempt purpose means each of the following— (a) activities of a religious nature; (b) a public benevolent purpose; (c) an educational purpose; (d) conducting a kindergarten; (e) the care of sick, aged, infirm, afflicted or incorrigible people; (f) the relief of poverty; (g) the care of children by— (i) being responsible for them on a full-time basis; and (ii) providing them with all necessary food, clothing and shelter; and (iii) providing for their general wellbeing and protection; (h) another charitable purpose or promotion of the public good; (i) providing a residence to a minister, or members of a religious order, who is or are engaged in an object or pursuit of a kind mentioned in any of paragraphs (a) to (h). 47 Exemption for land owned by or for charitable institution (1) This section applies to all land owned by, or held in trust for, a charitable institution, other than land to which section 48 applies. (2) The land is exempt land if— (a) it is used predominantly by the charitable institution for 1 or more exempt purposes; or (b) for vacant land—the charitable institution intends to use it predominantly for 1 or more exempt purposes within the following period (the use requirement period)— (i) 3 years after the acquisition of the land, or a longer period ending on a date fixed by the commissioner by notice given to the charitable institution; (ii) if the commissioner extends the period under section 49—the period ending on the date fixed by the commissioner. 48 Exemption for land owned by or for exempt charitable institution under repealed Act (1) This section applies to vacant land that was, on 29 June 1989, owned by or held in trust for an exempt charitable institution under the repealed Land Tax Act 1915. (2) The land is exempt land if it is not used by the institution for any purpose other than an exempt purpose. 49 Extension of use requirement period (1) This section applies if a taxpayer's liability for land tax for a financial year is assessed on the basis that vacant land is exempt land under section 47(2)(b). (2) The charitable institution may apply to the commissioner in the approved form for an extension of the use requirement period. (3) The application must be made within 28 days before the use requirement period ends. (4) The commissioner may extend the use requirement period to end on a later date fixed by the commissioner if the commissioner is satisfied— (a) the land has not been used predominantly for 1 or more exempt purposes, or used for any other purpose; but (b) the land will be used predominantly for 1 or more exempt purposes by that later date. (5) The commissioner must give notice to the charitable institution of the commissioner's decision on the application. (6) The use requirement period may be extended under this section more than once. 50 Reassessment—land not used for exempt purpose within use requirement period etc. (1) This section applies if— (a) a taxpayer's liability for land tax for a financial year is assessed on the basis that land is exempt land under section 47(2)(b); and (b) any of the following applies— (i) the land is not used by the institution predominantly for 1 or more exempt purposes before the use requirement period ends; (ii) during the use requirement period, the institution starts to use the land for a purpose that is not an exempt purpose, except if the institution is using the land predominantly for 1 or more exempt purposes; (iii) the land is sold during the use requirement period before the institution has used it predominantly for 1 or more exempt purposes. (2) The charitable institution must, within 28 days after the relevant day, give notice to the commissioner stating that this section applies for the land. (3) The commissioner must make a reassessment of the charitable institution's liability for land tax for the financial year on the basis that the land was not exempt land. (4) In this section— relevant day means— (a) if subsection (1)(b)(i) applies—the last day of the use requirement period; or (b) if subsection (1)(b)(ii) or (iii) applies—the day the event mentioned in the subsection happens. Division 3 Other exemptions 51 Aged care facilities (1) Land on which an aged care facility is located is exempt land. (2) In this section— aged care facility means a facility at which residential care is provided by an approved provider within the meaning of the Aged Care Act 1997 (Cwlth), schedule 1. 51A Supported accommodation (1) Land on which a supported accommodation service is conducted is exempt land. (2) In this section— residential service see the Residential Services (Accreditation) Act 2002, section 4. supported accommodation service means a residential service accredited at level 3 under the Residential Services (Accreditation) Act 2002. 52 Government land (1) Land owned by the Commonwealth or the State is exempt land. (2) Land owned by a local government or public authority is exempt land unless the entity is subject to State taxation under an Act of the Commonwealth or a State. 53 Land used for primary production (1) This section applies to land, or a part of land, that is used solely for the business of primary production, but only if the land or the part of land is used for an activity prescribed by regulation that is carried on for the business. (2) The land, or the part of the land, is exempt land if it is owned by any of the following— (a) an individual, other than a trustee or absentee; (b) a trustee of a trust, if all beneficiaries of the trust are persons mentioned in paragraph (a), (c) or (d); (c) a relevant proprietary company; (d) a charitable institution. (3) For this section, if part of the land is exempt land, the commissioner must apportion the taxable value of the land between use for a purpose mentioned in subsection (1) and use for any other purpose. (4) This section does not apply to land owned by the manager of a time-sharing scheme. (5) In this section— beneficiary includes a beneficiary in the first instance and a beneficiary through a series of trusts. exempt foreign company see the Corporations Act, section 9. proprietary company see the Corporations Act, section 9. relevant proprietary company means a pr