Tasmania: 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 a superannuation fund includes a reference to a beneficiary of the fund. (6) If a trust is established by a testamentary instrument, then, for the purposes of subsection (1) , a beneficiary of the trust is taken to have a beneficial interest in the capital of the trust, to be calculated as the amount to which the beneficiary would be entitled were the estate fully administered. 4C. Presumption in respect of corporations and trusts For the purposes of the definition of foreign person – (a) all corporations are taken to be foreign corporations; and (b) all trusts are taken to be foreign trusts – unless the Commissioner is satisfied under section 4A , 4B , 30HB , 30L or 30M that the corporation or trust is not a foreign corporation or a foreign trust. 5. Act read together with Taxation Administration Act 1997 This Act is to be read together with the Taxation Administration Act 1997 . Chapter 2 - Transactions concerning dutiable property PART 1 - Introduction and overview 6. Imposition of duty on certain transactions concerning dutiable property (1) This Chapter charges duty on – (a) a transfer of dutiable property; and (b) the following transactions: (i) . . . . . . . . (ii) a declaration of trust; (iii) a grant or surrender of an interest in land in Tasmania; (iv) a foreclosure of a mortgage over dutiable property; (v) . . . . . . . . (vi) any other transaction that results in a change of beneficial ownership of dutiable property; and (c) a vesting of dutiable property – (i) by, or expressly authorised under, a statute of this State or any other jurisdiction, whether in Australia or elsewhere; or (ii) by, or under, an order of a court of this State or any other jurisdiction, whether in Australia or elsewhere. (2) Such a transfer, transaction or vesting is a dutiable transaction for the purposes of this Act. (2A) For the purposes of, but without limiting, subsection (1)(c)(i) – (a) property is vested by or under a statute if the statute vests the property in an entity that is the successor in law to or continuation of, or the same entity as, the entity in which the property was formerly vested; but (b) property is not vested by or under a statute on the registration of a company under Part 5B.1 of Chapter 5B of the Corporations Act. (3) In this Chapter – declaration of trust means any declaration (other than by a will or testamentary instrument) that any identified property vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the property, or the person entitled to appoint the property, may not have joined in or assented to the declaration; transfer includes an assignment and an exchange. 7. Imposition of duty on dutiable transactions that are not transfers (1) The duty charged by this Chapter on a dutiable transaction referred to in section 6(1)(b) or (c) is to be charged as if each such dutiable transaction were a transfer of dutiable property. (2) Accordingly, for the purpose of charging duty under this Chapter, in relation to a dutiable transaction specified in Column 1 of the following Table – (a) the property specified opposite the dutiable transaction in Column 2 is taken to be the property transferred (and a reference in this Act to property transferred includes a reference to such property); and (b) the person specified opposite the dutiable transaction in Column 3 is taken to be the transferee of the dutiable property (and a reference in this Act to a transferee includes a reference to such a person); and (c) the transfer of the dutiable property is taken to have occurred at the time specified opposite the dutiable transaction in Column 4 (and a reference in this Act to the time at which a transfer occurs includes a reference to such a time). Column 1 Dutiable transaction Column 2 Property transferred Column 3 Transferee Column 4 When transfer occurs declaration of trust the property vested or to be vested in the declarant the person declaring the trust when the declaration is made grant or surrender the granted or surrendered property the person to whom the property is granted or surrendered when the grant or surrender takes place foreclosure the mortgaged property the mortgagee when the foreclosure order is made vesting by or as a consequence of court order the vested property the person in whom the property is vested when the vesting occurs vesting by or as a consequence of statute the vested property the person in whom the property is vested when the vesting occurs giving, granting or issue of licence the licence the person to whom the licence is issued when the licence is issued any other transaction that results in a change in beneficial ownership of dutiable property the property the beneficial ownership of which is changed (but only to the extent of the change in beneficial ownership) the person who obtains the beneficial ownership or whose beneficial ownership is increased when beneficial ownership changes 8. What form must a dutiable transaction take? It is immaterial whether or not a dutiable transaction is effected by a written instrument or by any other means, including electronic means. 9. What is dutiable property? (1) Dutiable property is any of the following: (a) land in Tasmania; (b) a mineral tenement; (c) fixtures to land or a mineral tenement; (d) a land use entitlement; (e) . . . . . . . . (f) . . . . . . . . (g) . . . . . . . . (h) . . . . . . . . (i) a partnership interest, being an interest in a partnership that has partnership property that is dutiable property elsewhere referred to in this section; (j) goods in Tasmania, if the subject of an arrangement that includes a dutiable transaction over any dutiable property elsewhere referred to in this section, not including the following: (i) goods that are stock-in-trade; (ii) materials held for use in manufacture; (iii) goods under manufacture; (iv) livestock; (v) a registered motor vehicle that is not exempted from motor tax under the Vehicle and Traffic Act 1999 or the Transport Act 1981 ; (k) an option to purchase dutiable property; (l) an interest in any dutiable property referred to in the preceding paragraphs of this section, except to the extent that – (i) it arises as a consequence of the ownership of a unit in a unit trust scheme and is not a land use entitlement; or (ii) it is, or is attributable to, an option over dutiable property. (iii) . . . . . . . . (2) . . . . . . . . (3) . . . . . . . . 10. When does a liability for duty arise? A liability for duty charged by this Chapter arises when a dutiable transaction occurs. 11. Who is liable to pay the duty? Duty charged by this Chapter is payable by the transferee, unless this Chapter requires another person to pay the duty. 12. The liability of joint tenants For the purpose of assessing duty charged by this Chapter, joint tenants of dutiable property are taken to hold the dutiable property as tenants in common in equal shares. 13. Necessity for written instrument or written statement (1) If a dutiable transaction that is liable to ad valorem duty under this Chapter is not effected by a written instrument, the transferee must make a written statement in a form approved by the Commissioner. (2) The written statement must be made within 3 months after the liability arises. (3) Subject to a special arrangement approved under Part 6 of the Taxation Administration Act 1997 , if a dutiable transaction is completed or evidenced by a written instrument within 3 months after the date on which the dutiable transaction occurs, the requirement to lodge a statement and pay duty in respect of the statement may be satisfied by the lodgment of and payment of duty on the written instrument within 3 months after the date on which the dutiable transaction occurs. 14. Lodging written instrument or written statement with Commissioner Subject to a special arrangement approved under Part 6 of the Taxation Administration Act 1997 , a transferee who is liable to pay duty in respect of a dutiable transaction must, within 3 months after the liability arises, lodge with the Commissioner – (a) the written instrument that effects the dutiable transaction or, if there is more than one such written instrument, each one of them as provided by section 16(1) ; or (b) the written statement made in compliance with section 13 . 15. When must duty be paid? A tax default does not occur for the purposes of the Taxation Administration Act 1997 if duty is paid within 3 months after the liability to pay the duty arises. 16. No double duty (1) If a dutiable transaction is effected by more than one instrument, one instrument is to be stamped with the duty payable on the dutiable transaction and each other instrument is to be stamped with nil duty payable. (2) If a dutiable transaction is effected electronically (in accordance with the Electronic Transactions Act 2000 ) in whole or in part and duty has been paid, no further duty is payable in respect of an instrument or electronic transaction that forms part of the dutiable transaction. (3) No duty is chargeable under this Chapter on a transfer to a trustee of dutiable property subject to a declaration of trust if ad valorem duty has been paid on the declaration of trust in respect of the same dutiable property. (4) No duty is chargeable under this Chapter on a declaration of trust that declares the same trusts as those upon and subject to which the same dutiable property was transferred to the person declaring the trust if ad valorem duty has been paid on the transfer. 17. What is the rate of duty? Duty is charged on the dutiable value of the dutiable property subject to the dutiable transaction at the relevant rate set out in Part 3 . PART 2 - Dutiable value 18. What is the dutiable value of dutiable property? (1) The dutiable value of dutiable property that is subject to a dutiable transaction is the greater of – (a) the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration, or both); and (b) the unencumbered value of the dutiable property. (2) The dutiable value of dutiable property transferred by way of foreclosure is the unencumbered value of the dutiable property and not the value of the debt secured by the mortgaged property. (3) . . . . . . . . (4) . . . . . . . . 19. What is the consideration for the transfer of dutiable property? (1) The consideration for the transfer of dutiable property is taken to include the amount or value of all encumbrances, whether certain or contingent, subject to which the dutiable property is transferred. (2) Subject to the grant of an application under subsection (5) , if, as part of an arrangement involving a dutiable transaction over dutiable property agreed by an agreement for sale (the relevant agreement) – (a) the transferor or an associated person of the transferor effects improvements (the relevant improvements) to the dutiable property after the relevant agreement was entered into; and (b) the relevant improvements – (i) involve the construction on the dutiable property of a single home (other than a flat, home unit or other similar building) that – (A) may be lawfully occupied as a place of residence; and (B) is intended for occupation as a place of residence; and (ii) are, or will be, work within the meaning of the Building Act 2016 ; and (c) there is not, at the time of the relevant agreement, a building on the dutiable property that may be lawfully occupied as a place of residence – the consideration for the dutiable transaction does not include the consideration relating to the relevant improvements performed on the dutiable property after the relevant agreement but before the dutiable transaction. (3) For the purposes of subsection (2) , the following do not constitute improvements in relation to a dutiable property: (a) works that are – (i) necessary for, or related to, preparation of the site, on which a single home is to be constructed on the dutiable property, to enable the construction to occur; and (ii) preliminary to the construction of the single home – including but not limited to works consisting of excavation (other than excavation for the purposes of enabling footings for the single home to be established), levelling of land or the removal of vegetation; (b) underground infrastructure, and the installation of underground infrastructure, on the dutiable property, including but not limited to underground infrastructure for the purposes of the provision of electricity, water, sewerage or telecommunications services. (4) A transferee in respect of a dutiable transaction may apply, in the approved form, to the Commissioner to determine that consideration for the dutiable transaction does not include the consideration relating to the relevant improvements performed on the dutiable property after the relevant agreement but before the dutiable transaction. (5) If the Commissioner is satisfied that the requirements of subsection (2)(a) , (b) and (c) have been met in relation to the dutiable property that is the subject of the dutiable transaction, the Commissioner may grant the application made under subsection (4) in relation to that transaction. (6) Despite the Commissioner granting an application under subsection (5) , the transferee in relation to the application may apply to the Commissioner to have the grant of the application revoked. 20. What is the unencumbered value of dutiable property? (1) The unencumbered value of dutiable property is the amount for which the property might reasonably have been sold in the open market or as calculated by sections 247 and 248(2) and (2A) , as may be appropriate – (a) in the case of a transfer of dutiable property on a sale of the property, at the time the agreement for sale was entered into; or (b) in any other case, at the time the dutiable transaction occurred – free from any encumbrance to which the property was subject at that time. (2) . . . . . . . . (3) If, before land is transferred to a transferee, the transferee has made improvements to the land, the unencumbered value of the land is to be determined as if those improvements had not been made. 21. Arrangements that reduce the dutiable value (1) In determining the dutiable value of dutiable property under this Part, any interest, agreement or arrangement (other than an encumbrance) granted or made in respect of the dutiable property that has the effect of reducing the dutiable value is to be disregarded, subject to subsection (2) . (2) An interest, agreement or arrangement is not to be disregarded if the Commissioner is satisfied that it was not granted or made as part of an arrangement or scheme with a collateral purpose of reducing the duty otherwise payable on the dutiable transaction. (3) In considering whether or not he or she is satisfied for the purposes of subsection (2) , the Commissioner may have regard to – (a) the duration of the interest, agreement or arrangement before the dutiable transaction; and (b) whether the interest, agreement or arrangement has been granted to or made with an associated person; and (c) whether there is any commercial efficacy to the granting of the interest or the making of the agreement or arrangement other than to reduce duty; and (d) any other matters the Commissioner considers relevant. 22. Aggregation of dutiable transactions (1) Dutiable transactions relating to separate items of dutiable property, or separate parts of, or interests in, dutiable property are to be aggregated and treated as a single dutiable transaction if – (a) either – (i) in the case of dutiable transactions that are transfers on a sale of an item or part of dutiable property, the agreements for sale are entered into within 12 months; or (ii) in any other case, the dutiable transactions occur within 12 months; and (b) the transferee is the same or the transferees are associated persons; and (c) the dutiable transactions together form, evidence, give effect to or arise from what is, substantially, one arrangement relating to all of the items or parts of, or interests in, the dutiable property. (2) Dutiable transactions are not to be aggregated under this section if the Commissioner is satisfied that it would not be just and reasonable to do so in the circumstances. (2A) In considering whether or not he or she is satisfied for the purposes of subsection (2) , it is just and reasonable for the Commissioner to determine that it is appropriate to aggregate a gift that is interdependent with, or forms substantially part of one arrangement with, a transaction of value. (3) The dutiable value of aggregated dutiable property is the sum of the dutiable values of the items or parts of, or the interests in, the dutiable property as at the time at which each dutiable transaction occurs. (4) The amount of duty payable in accordance with this section is to be reduced by the amount of any ad valorem duty paid on a prior dutiable transaction that is, or prior dutiable transactions that are, aggregated in accordance with this section. (5) Duty may be apportioned to the instruments effecting or evidencing the dutiable transactions, or may be charged in accordance with section 16(1) , as determined by the Commissioner. (6) Subject to a special arrangement approved under Part 6 of the Taxation Administration Act 1997 , a transferee to whom this section applies must disclose to the Commissioner, in writing, at or before the time at which an instrument or statement relating to the dutiable transactions is lodged for stamping, details known to the transferee of – (a) all of the items or parts of, or interests in, the dutiable property included or to be included in the arrangement referred to in subsection (1) ; and (b) the consideration for each item or part of, or interest in, that dutiable property. Penalty: Fine not exceeding 100 penalty units. (7) . . . . . . . . 23. Apportionment – dutiable property and other property (1) If a dutiable transaction relates to dutiable property and property that is not dutiable property, it is chargeable with duty under this Chapter only to the extent that it relates to dutiable property. (2) If a dutiable transaction relates to different types of dutiable property for which different rates of duty are chargeable under this Chapter, the dutiable transaction is chargeable with duty under this Chapter as if a separate dutiable transaction had occurred in relation to each such type of dutiable property. 24. Certain transactions concerning leases of commercial property (1) The Commissioner, if satisfied that it would not be just and reasonable in the circumstances to charge duty on the dutiable value of all the dutiable property in a dutiable transaction, which transaction – (a) consists of a grant, surrender or transfer of a lease of a commercial property; and (b) involves goods that are dutiable property in accordance with section 9(1)(j) – may disregard the value of all or any of the goods in determining the dutiable value of the property. (2) For the purposes of subsection (1) , a lease of a commercial property is a lease in respect of real property that is to be used for the purposes of a business, whether or not there are premises on the property that may be used in whole or in part as a residence. (3) The Commissioner may only exercise the discretion referred to in subsection (1) if satisfied that the dutiable transaction was not structured for the purpose of reducing or avoiding the payment of duty. 25. Partnership interests (1) The dutiable value of a partnership interest is to be determined in accordance with the following formula: where – DV is the dutiable value; A is the value of the partnership interest, or so much of the consideration for the dutiable transaction as relates to the partnership interest, whichever is the greater; X is the unencumbered value of all dutiable property of the partnership; Y is the unencumbered value of all assets of the partnership. (2) If the property of a partnership includes a land-related asset and an interest in the land-related asset is transferred as a result of the transfer of a partnership interest, the unencumbered value of all dutiable property of the partnership ("X" in subsection (1) ) is to be reduced by the unencumbered value of the land-related asset, but only if ad valorem duty has been paid or is payable on the transfer of the interest in the land-related asset or if the transfer of the interest in the land-related asset is exempt from duty. (3) For the purposes of subsection (2) , each of the following items of dutiable property is a land-related asset: (a) land in Tasmania; (b) a land use entitlement; (c) an interest in an item of dutiable property referred to in paragraph (a) or (b) . 26. Partitions (1) For the purposes of this section, a partition occurs when property (some or all of which is dutiable property) that is held by persons jointly (as joint tenants or tenants in common) and beneficially is transferred or agreed to be transferred to one or more of those persons. (2) For the purposes of this section and sections 14 and 16 , a partition is taken to be a single dutiable transaction. (3) The dutiable value of a partition is to be determined in accordance with the following formula: where – DV is the dutiable value; A is the sum of the amounts by which the unencumbered value of the property transferred or agreed to be transferred to a person exceeds the unencumbered value of the interest held by the person in that property immediately before the partition, or the sum of any consideration for the partition paid by any of the parties, whichever is the greater; X is the unencumbered value of all dutiable property the subject of the partition; Y is the unencumbered value of all property the subject of the partition. (4) . . . . . . . . (5) The minimum duty chargeable on a transaction that effects a partition is $50. (6) Duty charged by this section is payable by the persons making the partition or any one or more of them. 27. Effect of alteration in purchase price If, after an agreement for the sale of dutiable property is entered into and before the property is transferred – (a) the consideration under the agreement is reduced and the reduced consideration is not less than the unencumbered value of the dutiable property when the consideration was reduced; or (b) the consideration under the agreement is reduced because the parties have agreed not to transfer some of the dutiable property previously agreed to be transferred and the reduced consideration is not less than the unencumbered value of the dutiable property that remained to be transferred when the consideration was reduced; or (c) the consideration under the agreement is increased and the dutiable value when the consideration was increased is greater than the dutiable value when the agreement was entered into – the Commissioner must assess or reassess the liability to duty of the transfer in accordance with the change in the consideration. 28. Entitlements of joint purchasers (1) If any property is agreed to be purchased by 2 or more persons otherwise than as joint tenants, the agreement for the purchase is to specify the part to be taken by each purchaser. (2) In the absence of such a specification referred to in subsection (1) , the purchasers are taken to have purchased the property in equal shares. PART 3 - Rates of duty 29. General rate (1) The rate of duty chargeable on a dutiable transaction is as follows: The dutiable value of the dutiable property subject to the dutiable transaction Rate of duty Not more than $3 000 $50 More than $3 000 but not more than $25 000 $50 plus $1.75 for every $100, or part, by which the dutiable value exceeds $3 000 More than $25 000 but not more than $75 000 $435 plus $2.25 for every $100, or part, by which the dutiable value exceeds $25 000 More than $75 000 but not more than $200 000 $1 560 plus $3.50 for every $100, or part, by which the dutiable value exceeds $75 000 More than $200 000 but not more than $375 000 $5 935 plus $4 for every $100, or part, by which the dutiable value exceeds $200 000 More than $375 000 but not more than $725 000 $12 935 plus $4.25 for every $100, or part, by which the dutiable value exceeds $375 000 More than $725 000 $27 810 plus $4.50 for every $100, or part, by which the dutiable value exceeds $725 000 (2) This rate applies unless other provision is made by this Chapter. PART 3A - Additional duty on certain dutiable transactions involving foreign persons 30. Meaning of primary production property For the purposes of this Part, primary production property means the following: (a) land in Tasmania that – (i) is capable of being lawfully used solely or primarily for primary production purposes; or (ii) a person intends to develop so the land is capable of being lawfully used solely or primarily for primary production purposes; (b) an option to purchase land, to the extent that the option to purchase land relates to land referred to in paragraph (a) ; (c) a land use entitlement, to the extent that the land use entitlement relates to land referred to in paragraph (a) ; (d) a partnership interest, being an interest in a partnership that has partnership property, to the extent that the partnership property relates to – (i) land referred to in paragraph (a) ; or (ii) an option to purchase land referred to in paragraph (b) ; or (iii) a land use entitlement referred to in paragraph (c) ; (e) goods in Tasmania on which duty is chargeable under Part 1 if – (i) those goods are dutiable property in accordance with section 9(1)(j) ; and (ii) those goods are part of an arrangement involving a dutiable transaction over land referred to in paragraph (a) ; and (iii) the use of the goods can be directly linked to, or is incidental to the use, or intended use, for primary production purposes, of, all or part of the land referred to in paragraph (a) . 30A. Meaning of residential property (1) For the purposes of this Part, residential property means the following: (a) land in Tasmania – (i) which is vacant land on which a building may be lawfully built and occupied as a place of residence so that the land is capable of being lawfully used solely or primarily for residential purposes; or (ii) which is capable of being lawfully used solely or primarily for residential purposes; or (iii) which includes a building, or part of a building, that a person intends to have refurbished or extended so the land is capable of being lawfully used solely or primarily for residential purposes; or (iv) on which a person intends to have a building constructed so the land is capable of being lawfully used solely or primarily for residential purposes; or (v) in respect of which a person has undertaken or intends to undertake land development for the purposes of – (A) constructing a building so the land is capable of being lawfully used solely or primarily for residential purposes; or (B) enabling another person to construct a building so the land is capable of being lawfully used solely or primarily for residential purposes; (b) an option to purchase land, to the extent that the option to purchase land relates to land referred to in paragraph (a) ; (c) a land use entitlement, to the extent that the land use entitlement relates to land referred to in paragraph (a) ; (d) a partnership interest, being an interest in a partnership that has partnership property, to the extent that the partnership property relates to – (i) land referred to in paragraph (a) ; or (ii) an option to purchase land referred to in paragraph (b) ; or (iii) a land use entitlement referred to in paragraph (c) ; (e) goods in Tasmania on which duty is chargeable under Part 1 if – (i) those goods are dutiable property in accordance with section 9(1)(j) ; and (ii) those goods are part of an arrangement involving a dutiable transaction over land referred to in paragraph (a) ; and (iii) the use of the goods can be directly linked to, or is incidental to the use, or intended use, for residential purposes, of, all or part of the land referred to in paragraph (a) . (2) Despite subsection (1) , residential property does not include land on which a building is being lawfully used solely, or primarily, as one of the following premises: