Duties Act 2001

Duties Act 2001

An Act to create and charge a number of duties

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;

[Section 3 Amended by No. 24 of 2002, s. 4, Applied:01 Jul 2002]

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 majority interest 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) [Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] 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;

(f) a public company and another person are associated persons if the person is a subsidiary of that public company;

(g) persons are associated persons if they are acting in concert;

Australian jurisdiction means a State or Territory of the Commonwealth;

[Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] 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 63(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;

business asset has the meaning given by section 9(1)(g) ;

[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 3 Amended by No. 36 of 2004, s. 4, Applied:01 Dec 2004]

[Section 3 Amended by No. 36 of 2004, s. 4, Applied:01 Dec 2004] 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;

[Section 3 Amended by No. 24 of 2002, s. 4, Applied:01 Jul 2002]

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;

declaration of trust means a declaration of trust referred to in section 6(3) ;

[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]

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);

[Section 3 Amended by No. 24 of 2002, s. 4, Applied:01 Jul 2002]

exempt acquisition means an acquisition referred to in section 72(1) ;

exemption certificate means a certificate of exemption in force under Part 3 of Chapter 8 ;

farming company means a company –

(a) [Section 3 Amended by No. 121 of 2001, s. 4, Applied:01 Jul 2001] 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) ;

franchise means the package of rights held by a franchisee under a franchise arrangement;

franchise arrangement means an agreement or other arrangement between 2 or more persons by which one of them (the franchisor) authorises or permits another (the franchisee) –

(a) to engage in the business of offering, selling or distributing goods and services within or partly within Tasmania, and the franchisee is required to do so –

(i) in accordance with a specified marketing, business or technical plan or system; and

(ii) under a common format or procedure (or format and procedure); and

(b) to use a mark or common trade name, in such a manner that the business carried on by the franchisee is or is capable of being identified by the public as being substantially associated with the mark or name identifying, commonly connected with or controlled by the franchisor or a related person;

franchisee means a person who is authorised or permitted by a franchisor to do certain things under a franchise arrangement;

franchisor means a person who authorises or permits a franchisee to do certain things under a franchise arrangement;

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;

home 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;

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 has the same meaning as in the Insurance (Agents and Brokers) Act 1984 of the Commonwealth;

insurer has the meaning given by section 178(1) ;

intellectual property means –

(a) a business name, trading name, trade mark, industrial design, patent, registered design or copyright; or

(b) a right, whether or not under a franchise arrangement, to use or exploit –

(i) a business name, trading name, trade mark or industrial design; or

(ii) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process);

interest includes an estate or proprietary right;

interest, in a land-rich corporation, has the meaning given by section 64(1) ;

land includes a stratum;

land holding means an interest in land as referred to in section 61 ;

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;

[Section 3 Amended by No. 60 of 2002, s. 4, Applied:01 Jul 2002]

[Section 3 Amended by No. 60 of 2002, s. 4, Applied:01 Jul 2002] 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;

liability date means the date on which a mortgage is liable under section 142 for mortgage duty;

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) ;

[Section 3 Amended by No. 121 of 2001, s. 4, Applied:01 Jul 2001] 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 interest, in a private corporation, means an interest referred to in section 64(2) ;

majority shareholder in a private 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;

[Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] 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;

[Section 3 Amended by No. 24 of 2002, s. 4, Applied:01 Jul 2002]

marriage includes a purported marriage that is void;

matrimonial property means –

(a) property of the parties to a marriage or of either of them; and

(b) any estate or interest in that property;

[Section 3 Amended by No. 60 of 2002, s. 4, Applied:01 Jul 2001]

[Section 3 Amended by No. 60 of 2002, s. 4, Applied:01 Jul 2001] 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;

[Section 3 Amended by No. 121 of 2001, s. 4, Applied:01 Jul 2001] mortgage duty means duty chargeable in respect of a mortgage as referred to in Chapter 6 ;

[Section 3 Amended by No. 121 of 2001, s. 4, Applied:01 Jul 2001] 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;

[Section 3 Amended by No. 121 of 2001, s. 4, Applied:01 Jul 2001] mortgage package means a mortgage package referred to in section 150 ;

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 ;

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 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) ;

[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] 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) ;

[Section 3 Amended by No. 121 of 2001, s. 4, Applied:01 Jul 2001] 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 corporation has the meaning given by section 59 ;

[Section 3 Amended by No. 60 of 2002, s. 4, Applied:01 Jul 2002] private hospital means a privately owned institution the main object of which is to provide overnight accommodation for the treatment of –

(a) persons suffering from any illness, injury or infirmity; or

(b) pregnant women or women immediately after childbirth; or

(c) persons who are visually, hearing or speech impaired or who are substantially and permanently handicapped by any illness, injury or congenital deformity or by any other prescribed disability; or

(d) persons who are elderly and infirm;

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 ;

[Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] public company means a public company within the meaning of the Corporations Act;

[Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001]

[Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] 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;

recognised stock exchange means –

(a) [Section 3 Amended by No. 36 of 2004, s. 4, Applied:01 Dec 2004] a stock exchange that is a member of the World Federation of Exchanges; or

(b) the Stock Exchange of Newcastle; or

(c) a stock exchange declared to be a recognised stock exchange under section 254 ;

registered insurer means an insurer registered under Part 3 of Chapter 7 ;

[Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] 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) [Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] one is the spouse or caring partner of the other; or

(ii) the relationship between them is that of a parent and child, brothers, sisters, or brother and sister;

(b) [Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] private companies are related persons if they are related bodies corporate within the meaning of the Corporations Act;

(c) [Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] 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;

[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 3 Amended by No. 36 of 2004, s. 4, Applied:01 Dec 2004] relationship property, in relation to a personal relationship, means property of the parties to the personal relationship or of either of them;

relative means a person referred to in section 225(3) ;

relevant acquisition means an acquisition referred to in section 67 ;

replica has the meaning given by section 220(4) ;

[Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] 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;

[Section 3 Amended by No. 36 of 2004, s. 4, Applied:01 Dec 2004] significant relationship has the same meaning as in the Relationships Act 2003 ;

[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 3 Amended by No. 36 of 2004, s. 4, Applied:01 Dec 2004] spouse, in relation to a person, includes the person who is in a significant relationship with that person;

[Section 3 Amended by No. 24 of 2002, s. 4, Applied:01 Jul 2002] [Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001]

[Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] 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;

trading undertaking means an undertaking that –

(a) provides goods or services for monetary or other consideration; and

(b) has a predominantly commercial or profit-making focus; and

(c) meets a substantial part of its costs from charges;

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;

[Section 3 Amended by No. 24 of 2002, s. 4, Applied:01 Jul 2002]

4.   

[Section 4 Repealed by No. 60 of 2002, s. 5, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

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) an agreement for the sale or transfer of dutiable property, whether conditional or not;

(ii) a declaration of trust over dutiable property;

(iii) a grant or surrender of an interest in land in Tasmania;

(iv) a foreclosure of a mortgage over dutiable property;

(v) [Section 6 Subsection (1) amended by No. 36 of 2004, s. 5, Applied:01 Dec 2004] the giving, granting or issuing of a licence to another person in the circumstances referred to in section 9(2) ; and

(vi) [Section 6 Subsection (1) amended by No. 36 of 2004, s. 5, Applied:01 Dec 2004] .  .  .  .  .  .  .  .  

(c) [Section 6 Subsection (1) amended by No. 36 of 2004, s. 5, Applied:01 Dec 2004] 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)  [Section 6 Subsection (2) amended by No. 36 of 2004, s. 5, Applied:01 Dec 2004] Such a transfer, transaction or vesting is a dutiable transaction for the purposes of this Act.

(2A)  [Section 6 Subsection (2A) inserted by No. 36 of 2004, s. 5, Applied:01 Dec 2004] 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;

[Section 6 Subsection (3) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 6 Subsection (3) amended by No. 60 of 2002, s. 6, Applied:01 Jul 2002] 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) 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
agreement for sale or transfer	the property agreed to be sold or transferred	the purchaser or transferee	when the agreement is entered into
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

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 within the meaning of the Mineral Resources Development Act 1995 ;

(c) fixtures to land or a mineral tenement;

(d) a land use entitlement;

(e) [Section 9 Subsection (1) amended by No. 24 of 2002, s. 5, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

(f) [Section 9 Subsection (1) amended by No. 24 of 2002, s. 5, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

(g) a business asset, being, at any relevant time –

(i) the goodwill of a business if, during the previous 12 months, a sale of goods or services, or goods and services, has been made to a Tasmanian customer of the business; or

(ii) intellectual property that has been used or exploited in Tasmania during the previous 12 months, but only if the intellectual property is the subject of a dutiable transaction that is, or forms part of, a sale of a business; or

(iii) a statutory licence or permission under a law of the Commonwealth, if the rights under the licence or permission have been exercised, during the previous 12 months, in respect of Tasmania or in an area that includes Tasmania or a part of Tasmania;

(h) a statutory licence or permission under a Tasmanian law;

(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 (other than intellectual 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;

(k) [Section 9 Subsection (1) amended by No. 24 of 2002, s. 5, Applied:01 Jul 2002] 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) [Section 9 Subsection (1) amended by No. 24 of 2002, s. 5, Applied:01 Jul 2002] it is, or is attributable to, an option over dutiable property.

(iii) [Section 9 Subsection (1) amended by No. 24 of 2002, s. 5, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

(2)  A reference in subsection (1) to a licence or permission includes a reference to a licence or permission surrendered or relinquished or for which an application for renewal is not made and the licence or permission or similar licence or permission is given, granted or issued to another person if the Commissioner considers that the giving, grant or issue has the same effect or amounts to a transfer of the licence or permission.

(3)  [Section 9 Subsection (3) omitted by No. 24 of 2002, s. 5, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

10.   When does a liability for duty arise?

(1)  A liability for duty charged by this Chapter arises when a transfer of dutiable property occurs.

(2)  However, if a transfer of dutiable property is effected by a written instrument, liability for duty charged by this Chapter arises when the instrument is first executed.

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)  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

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 –

(a) one instrument is to be stamped with the duty payable on the dutiable transaction; and

(b) [Section 16 Subsection (1) amended by No. 36 of 2004, s. 20, Applied:01 Jul 2004] each other instrument is to be stamped with nil duty payable.

(2)  [Section 16 Subsection (2) amended by No. 36 of 2004, s. 20, Applied:01 Jul 2004] No duty is chargeable in respect of a transfer of dutiable property made in conformity with an agreement for the sale or transfer of the dutiable property if the duty chargeable in respect of the agreement has been paid.

(3)  [Section 16 Subsection (3) omitted by No. 36 of 2004, s. 20, Applied:01 Jul 2004] .  .  .  .  .  .  .  .  

(4)  [Section 16 Subsection (4) amended by No. 36 of 2004, s. 20, Applied:01 Jul 2004] No duty is chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property if –

(a) the duty chargeable in respect of the agreement has been paid; and

(b) the transfer would be in conformity with the agreement if the transferee was the purchaser under the agreement; and

(c) the transfer occurs at the same time as, or proximately with, the completion or settlement of the agreement; and

(d) at the time the agreement was entered into –

(i) the purchaser under the agreement and the transferee under the transfer were related persons, except as provided by subparagraph (ii) ; or

(ii) if the purchaser purchased as a trustee, the transferee and the beneficiary were related persons.

(5)  [Section 16 Subsection (5) amended by No. 36 of 2004, s. 20, Applied:01 Jul 2004] No duty is chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property if –

(a) the duty chargeable in respect of the agreement has been paid; and

(b) the Commissioner is of the opinion that the purchaser, when that agreement was executed, was acting as the agent of the transferee.

(6)  [Section 16 Subsection (6) amended by No. 36 of 2004, s. 20, Applied:01 Jul 2004] No duty is chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property if –

(a) the duty chargeable in respect of the agreement has been paid; and

(b) the Commissioner is satisfied that the purchaser named in that agreement entered into that agreement intending to transfer any dutiable property so purchased to any of the following:

(i) a corporation that is yet to be incorporated or is in the process of being incorporated;

(ii) a company intended to be acquired by the purchaser.

(7)  [Section 16 Subsection (7) amended by No. 36 of 2004, s. 20, Applied:01 Jul 2004] No duty is chargeable 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.

(8)  [Section 16 Subsection (8) amended by No. 36 of 2004, s. 20, Applied:01 Jul 2004] No duty is chargeable on a transfer of dutiable property as a consequence of a foreclosure order if ad valorem duty has been paid on the foreclosure.

(9)  [Section 16 Subsection (9) amended by No. 36 of 2004, s. 20, Applied:01 Jul 2004] No duty is chargeable 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.

(10)  [Section 16 Subsection (10) omitted by No. 36 of 2004, s. 20, Applied:01 Jul 2004] .  .  .  .  .  .  .  .  

(11)  [Section 16 Subsection (11) omitted by No. 36 of 2004, s. 20, Applied:01 Jul 2004] .  .  .  .  .  .  .  .  

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)  [Section 18 Subsection (3) amended by No. 60 of 2002, s. 7, Applied:01 Jul 2002] The dutiable value of a business asset referred to in section 9(1)(g) , to which section 24 applies, is to be determined in accordance with section 24 .

(4)  The dutiable value of a partnership interest referred to in section 25 is to be determined in accordance with that section.

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)  The consideration for the transfer of the interest of a transferee under an uncompleted agreement for the sale or transfer of dutiable property is taken to include the balance of the amount or value of the consideration that would be required from the transferee under the agreement in order to complete it in accordance with its terms.

(3)  The consideration for the transfer of the goodwill of a business is taken to include the amount or value of the consideration for any restraint of trade arrangement entered into in connection with the transfer of the goodwill.

20.   What is the unencumbered value of dutiable property?

(1)  The unencumbered value of dutiable property is the value of the property determined without regard to any encumbrance to which the property is subject.

(2)  The unencumbered value of the goodwill of a business is taken to include the value of any restraint of trade arrangement entered into by the vendor in order to protect the value of the goodwill.

(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

[Section 21 Substituted by No. 36 of 2004, s. 6, Applied:01 Dec 2004]

(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) they 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.

(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)  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)  [Section 22 Subsection (7) omitted by No. 24 of 2002, s. 6, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

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.   Apportionment – business assets in this and other jurisdictions

(1)  This section applies to a business asset referred to in section 9(1)(g) , being –

(a) the goodwill of a business if sales of goods or services, or goods and services, have also been made to a non-Tasmanian customer of the business during the previous 12 months; or

(b) intellectual property that has also been used or exploited in one or more other Australian jurisdictions during the previous 12 months; or

(c) a statutory licence or permission under a Commonwealth law if the rights under the licence or permission have been exercised during the previous 12 months in respect of one or more other Australian jurisdictions.

(2)  The dutiable value of a business asset to which this section applies is to be determined in accordance with the following formula:

where –

DV is the dutiable value;

A is the unencumbered value of the business asset, or so much of the consideration for the dutiable transaction as relates to the business asset, whichever is the greater;

X is the gross amount of the sales of goods and services (expressed in Australian dollars) made to Tasmanian customers of the business during the last 3 completed financial years preceding the dutiable transaction;

Y is the gross amount of the sales of goods and services (expressed in Australian dollars) made to both Tasmanian customers and non-Tasmanian customers of the business during the last 3 completed financial years preceding the dutiable transaction.

(3)  If an apportionment cannot be made under subsection (2) , the Commissioner may make an apportionment on such basis as the Commissioner considers appropriate in the circumstances.

(4)  For the purposes of this Chapter, a sale of goods or services is taken to be made to –

(a) a Tasmanian customer of a business if the goods are delivered, or the services are provided, in Tasmania to the customer; and

(b) a non-Tasmanian customer of a business if the goods are delivered, or the services are provided, outside Tasmania to the customer.

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)  For the purposes of this section and despite subsection (1) , the unencumbered value of dutiable property that is a business asset to which section 24 applies is the dutiable value of the business asset determined in accordance with section 24 .

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)  For the purposes of this section and despite subsection (3) , the unencumbered value of dutiable property that is a business asset to which section 24 applies is the dutiable value of the business asset determined in accordance with section 24 .

(5)  The minimum duty chargeable on a transaction that effects a partition is $20.

(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

(1)  If after an agreement for the sale or transfer 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 agreement in accordance with the change in the consideration.

(2)  The liability to pay additional duty arising from an increase in the consideration occurs on the date the consideration is agreed to be increased.

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 $1 300	$20
More than $1 300 but not more than $10 000	$1.50 for every $100, or part, of the dutiable value
More than $10 000 but not more than $30 000	$150 plus $2 for every $100, or part, by which the dutiable value exceeds $10 000
More than $30 000 but not more than $75 000	$550 plus $2.50 for every $100, or part, by which the dutiable value exceeds $30 000
More than $75 000 but not more than $150 000	$1 675 plus $3 for every $100, or part, by which the dutiable value exceeds $75 000
More than $150 000 but not more than $225 000	$3 925 plus $3.50 for every $100, or part, by which the dutiable value exceeds $150 000
More than $225 000	$6 550 plus $4 for every $100, or part, by which the dutiable value exceeds $225 000

(2)  This rate applies unless other provision is made by this Chapter.

30.   First home owners – concessional rate

[Section 30 Repealed by No. 24 of 2002, s. 7, Applied:01 Jul 2002] [Section 30 Inserted by No. 20 of 2004, s. 4, Applied:20 May 2004]

(1)  If –

(a) a person is entitled to a grant under section 7 of the First Home Owner Grant Act 2000 in relation to an eligible transaction referred to in section 13(1)(a) of that Act; and

(b) the dutiable value of the property to which the grant relates does not exceed $350 000 –

the rate of duty chargeable on the dutiable transaction to which the grant under section 7 of that Act relates is as follows:

The dutiable value of the dutiable property subject to the dutiable transaction	Rate of duty
Not more than $152 100	$0
More than $152 100 but not more than $225 000	$3.50 for every $100, or part, by which the dutiable value exceeds $152 100 minus $1.50
More than $225 000 but not more than $350 000	$2 550 plus $4 for every $100, or part, by which the dutiable value exceeds $225 000

(2)  Subsection (1) applies to dutiable transactions entered into on or after 20 May 2004 and on or before 30 June 2005.

(3)  If the Commissioner becomes aware that a dutiable transaction, in respect of which duty was charged at a rate specified in subsection (1) , did not meet the requirements of paragraphs (a) and (b) of that subsection, the Commissioner may reassess the duty that would otherwise be payable in respect of that transaction, having regard to the amount of duty that may already have been paid.

(4)  If, under subsection (3) , the Commissioner reassesses the duty payable, the Commissioner may, in the notice in which the duty is reassessed –

(a) impose a penalty of up to 100% of the amount representing the difference between the amount of duty originally assessed and the amount of duty as reassessed; or

(b) impose interest, at the interest rate specified in section 35(1) of the Taxation Administration Act 1997 , on the amount representing the difference between the amount of duty originally assessed and the amount of duty as reassessed, on a daily basis from the date the duty would have been payable without a tax default occurring, if the rate under subsection (1) had not applied, until the date the duty is paid; or

(c) both impose a penalty referred to in paragraph (a) and impose interest referred to in paragraph (b) .

(5)  The rates of duty in subsection (1) do not apply if the Commissioner is of the opinion that the agreement for sale or transfer in relation to a dutiable transaction was entered into as part of a scheme.

(6)  The Commissioner, unless satisfied to the contrary, is to presume the existence of a scheme referred to in subsection (5) if the parties to an agreement for sale or transfer entered into before 20 May 2004 enter into another agreement for sale or transfer with respect to the same or substantially the same property on or after 20 May 2004.

(7)  If, as a result of the Commissioner's actions under subsection (3) , a person becomes liable to pay duty or a further amount of duty, that liability is a charge on the dutiable property to which the dutiable transaction referred to in subsection (1) relates.

(8)  In this section –

tax default has the same meaning as in the Taxation Administration Act 1997 .

30A.   First home owners – concession – vacant land

[Section 30A Inserted by No. 19 of 2005, s. 4, Applied:20 May 2004]

(1)  If –

(a) a person enters into an agreement for sale or transfer in relation to vacant land and is subsequently entitled to a grant under section 7 of the First Home Owner Grant Act 2000 , in relation to an eligible transaction referred to in section 13(1)(b) or 13(1)(c) of that Act, in respect of that land; and

(b) the dutiable value of that vacant land does not exceed $175 000; and

(c) duty has been paid on the agreement for sale or transfer at the rate specified in section 29 of this Act; and

(d) the eligible transaction is completed in accordance with section 13(5)(b) or (c) of the First Home Owner Grant Act 2000 before 30 June 2006 –

that person is entitled to apply to the Commissioner for a full or partial refund of the duty paid.

(2)  Subsection (1) applies to an agreement for sale or transfer only if –

(a) the agreement is entered into on or after 20 May 2004 and on or before 30 June 2005; and

(b) the application to which subsection (1) relates is lodged on or before 30 September 2006.

(3)  If the Commissioner is satisfied that the application for a refund under subsection (1) meets the requirements of paragraphs (a) , (b) , (c) and (d) of that subsection, the Commissioner must refund to the person referred to in that subsection –

(a) where the amount of duty paid did not exceed $2 400, the amount of duty paid; or

(b) where the amount of duty paid exceeded $2 400, the amount of $2 400.

(4)  If the Commissioner refunds an amount to a person under subsection (3) and later becomes aware that the application for the refund did not meet the requirements of paragraphs (a) , (b) , (c) and (d) of subsection (1) , the Commissioner may require the person to repay the amount (the "refunded amount") to the Commissioner.

(5)  If, under subsection (4) , the Commissioner requires a person to repay a refunded amount, the Commissioner may –

(a) impose a penalty of up to 100% of the refunded amount; or

(b) impose interest, at the interest rate specified in section 35(1) of the Taxation Administration Act 1997 , on the refunded amount, on a daily basis from the date the refund was paid until the date the refunded amount is repaid; or

(c) both impose a penalty referred to in paragraph (a) and impose interest referred to in paragraph (b) .

(6)  If, under subsection (4) , a person is required to repay a refunded amount, the amount of the refund is a charge on the dutiable property referred to in subsection (1) .

PART 4 - Special provisions

31.   Interim payment of duty

(1)  If the full dutiable value of dutiable property subject to a dutiable transaction cannot, in the Commissioner's opinion, be immediately ascertained, the Commissioner may make an assessment by way of estimate under section 21(2) of the Taxation Administration Act 1997 .

(2)  The written instrument or the written statement required by section 13 may be stamped "interim stamp only".

(3)  When the full dutiable value has been ascertained –

(a) the person liable to pay duty is to resubmit the written instrument or written statement to the Commissioner for further assessment; and

(b) the Commissioner must reassess the duty payable on the dutiable transaction.

(4)  If no further duty is payable, the interim stamp is to be cancelled and any amount paid in excess of the amount assessed is to be refunded.

(5)  If further duty is payable, liability for the further duty arises when the notice of assessment issues, despite section 10 .

(6)  On payment of the balance of the duty (and any interest or penalty tax), the written instrument or the written statement required by section 13 is to be stamped with the amount of the balance and marked to indicate that duty has been duly paid.

32.   Purchases "off the plan"

(1)  Liability for duty on an off the plan purchase agreement arises –

(a) on completion of the agreement; or

(b) on the assignment of the whole or any part of the purchaser's interest under the agreement; or

(c) on the expiration of 12 months after the date of the agreement –

whichever first occurs.

(2)  This section applies despite section 10 .

(3)  Nothing in this section prevents the Commissioner from accepting payment of duty and stamping an off the plan purchase agreement at any time after the agreement has been executed.

(4)  In this section,

off the plan purchase agreement means an agreement for the sale or transfer of dutiable property, being land on which a residence is to be erected or developed before completion of the sale or transfer.

33.   Cancelled agreements

(1)  An agreement for the sale or transfer of dutiable property that is rescinded or annulled is not liable to duty under this Chapter if the Commissioner is satisfied –

(a) that the agreement was not rescinded or annulled to give effect to a subsale; or

(b) that the purchaser or transferee under the agreement is a promoter of a named company proposed to be incorporated and that the company is the purchaser or transferee of the dutiable property under a subsequent agreement; or

(c) that the purchaser or transferee under the agreement and the purchaser or transferee under a subsequent agreement relating to the same dutiable property were related persons when the agreement that is rescinded or annulled was entered into.

(2)  If duty has been paid on an agreement that is not liable to duty under this Chapter because of this section, the Commissioner must reassess and refund the duty if an application for a refund is made within –

(a) 3 years after the initial assessment; or

(b) [Section 33 Subsection (2) amended by No. 60 of 2002, s. 8, Applied:01 Jul 2002] 12 months after the agreement is rescinded or annulled; or

(c) [Section 33 Subsection (2) amended by No. 60 of 2002, s. 8, Applied:01 Jul 2002] 3 years after the payment of duty pursuant to a special arrangement for the lodging of returns and payment of tax under Part 6 of the Taxation Administration Act 1997  –

whichever is the later.

34.   Transfer arising from mortgage of land

If an instrument chargeable with duty as a mortgage under Chapter 6 operates also as a conveyance of the equity, right of redemption or reversion of the property comprised in the instrument to or in trust for and according to the direction of the purchaser, it is chargeable with duty as a transfer under this Chapter in addition to duty as a mortgage, but if the equity or right of redemption or reversion is thereby conveyed or limited in any other manner, it is chargeable with duty as a mortgage only.

35.   Vesting order

(1)  [Section 35 Subsection (1) amended by No. 102 of 2001, Sched. 2, Applied:28 Jun 2002] A vesting order under the Land Titles Act 1980 is chargeable with the same duty as a transfer of the land the subject of the application as if the dutiable value of the land were the land value of the land within the meaning of the Valuation of Land Act 2001 .

(2)  Subsection (1) does not apply if the person applying for the vesting order has paid ad valorem duty in respect of the acquisition of land to which the vesting order relates or the acquisition by the person applying was exempt from duty.

(3)  The person liable to pay the duty is the applicant.

36.   Applications to bring land under Land Titles Act 1980

(1)  An application to bring land under the Land Titles Act 1980 is chargeable with the same duty as on a vesting order under that Act if the applicant has not paid ad valorem duty on a transfer of the land.

(2)  The person liable to pay the duty is the applicant.

PART 5 - Concessional rates of duty

Division 1 - Trusts

37.   Change in trustees

(1)  In this section –

new trustee means a trustee appointed in substitution for a trustee or a trustee appointed in addition to a trustee or trustees;

[Section 37 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] responsible entity means a responsible entity within the meaning of the Corporations Act;

special trustee means –

(a) The Public Trustee; and

(b) a trustee company within the meaning of the Trustee Companies Act 1953 ; and

(c) a corporation constituted under the law of another Australian jurisdiction that, in the Commissioner's opinion, corresponds in that jurisdiction to The Public Trustee or a trustee company referred to in paragraph (b) ; and

(d) the trustees of a fund that is a complying superannuation fund within the meaning of section 267 of the Income Tax Assessment Act 1936 of the Commonwealth or that, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the execution of –

(i) an instrument appointing a new trustee; or

(ii) an instrument by which a trustee retires without a new trustee being appointed in place of the retiree.

(2)  [Section 37 Subsection (2) amended by No. 24 of 2002, s. 8, Applied:01 Jul 2002] Duty of $20 is chargeable in respect of a transfer of dutiable property to a special trustee as a consequence of the retirement of a trustee or the appointment of a new trustee.

(3)  [Section 37 Subsection (3) substituted by No. 36 of 2004, s. 7, Applied:01 Dec 2004] Duty of $20 is chargeable in respect of a transfer of dutiable property to a person other than a special trustee if the Commissioner is satisfied that the transfer is made solely –

(a) because of the retirement of a trustee, the appointment of a new trustee or other change in trustees; and

(b) in order to vest the property in the trustees for the time being entitled to hold it.

(4)  [Section 37 Subsection (4) substituted by No. 36 of 2004, s. 7, Applied:01 Dec 2004] If the Commissioner becomes aware that a transfer in respect of which duty was chargeable under subsection (3) was not a transfer of the kind referred to in that subsection, the Commissioner may reassess that transfer for the duty that would otherwise be payable.

(5)  Duty of $20 is chargeable in respect of a transfer of property as a consequence of the retirement of a responsible entity of a managed investment scheme or the appointment of a new responsible entity of a managed investment scheme if the Commissioner is satisfied that the only beneficial interest acquired by a person in relation to the property as a result of the transfer is a beneficial interest acquired by the replacement or new responsible entity solely because of its appointment as responsible entity for the scheme.

(6)  [Section 37 Subsection (6) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] Duty of $20 is chargeable in respect of a transfer of dutiable property to a responsible entity if the Commissioner is satisfied that the transfer is necessary to enable an undertaking that existed before the commencement of Chapter 5C of the Corporations Law to become a registered scheme within the meaning of Division 11 of Part 11.2 of the Corporations Law (as continued in effect by section 1408 of the Corporations Act).

38.   Transfers in relation to managed investment schemes

(1)  Duty of $20 is chargeable in respect of a transfer of dutiable property from –

(a) a responsible entity of a managed investment scheme; or

(b) [Section 38 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] a person who held the dutiable property as a trustee of a prescribed interest scheme within the meaning of the Corporations Law as in force immediately before 1 July 1998 when the scheme became a registered scheme within the meaning of Division 11 of Part 11.2 of the Corporations Law (as continued in effect by section 1408 of the Corporations Act) –

to a custodian or agent of the responsible entity as custodian or agent of the scheme in which the transferor held the dutiable property.

(2)  Duty of $20 is chargeable in respect of a transfer of dutiable property from the custodian of the responsible entity of a managed investment scheme to the responsible entity.

39.   Property vested in an apparent purchaser

(1)  Duty of $20 is chargeable in respect of –

(a) a declaration of trust made by an apparent purchaser in respect of identified dutiable property –

(i) vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property; or

(ii) to be vested in the apparent purchaser upon trust for the real purchaser, if the Commissioner is satisfied that the money for the purchase of the dutiable property has been or will be provided by the real purchaser; or

(b) a transfer of dutiable property from an apparent purchaser to the real purchaser, in a case where dutiable property is vested in an apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property.

(2)  In this section,

purchase includes an allotment.

40.   Transfers back from a nominee

(1)  If –

(a) [Section 40 Subsection (1) amended by No. 24 of 2002, s. 9, Applied:01 Jul 2002] dutiable property that was transferred to a person to be held by that person as trustee for the transferor is transferred back to the transferor by the trustee; and

(b) no person other than the transferor has had a beneficial interest in the dutiable property (other than the trustee's right of indemnity) between its transfer to the trustee and its transfer back to the transferor –

the duty chargeable on the transfer of the dutiable property back to the transferor is $20.

(2)  If duty of $20 has been paid on a transfer under subsection (1) , the initial transfer to the trustee is also chargeable with duty of $20.

(3)  The Commissioner must reassess the initial transfer and refund any duty paid in excess of $20 if an application for a refund is made within –

(a) 3 years after the initial assessment; or

(b) [Section 40 Subsection (3) amended by No. 60 of 2002, s. 9, Applied:01 Jul 2002] 12 months after the transfer back to the original transferor; or

(c) [Section 40 Subsection (3) amended by No. 60 of 2002, s. 9, Applied:01 Jul 2002] 3 years after the payment of duty pursuant to a special arrangement for the lodging of returns and payment of tax under Part 6 of the Taxation Administration Act 1997  –

whichever is the later.

(4)  In this section,

trustee includes a trustee appointed in substitution for a trustee or a trustee appointed in addition to a trustee or trustees.

41.   Property passing to beneficiaries

[Section 41 Substituted by No. 60 of 2002, s. 10, Applied:01 Jul 2002] Duty of $20 is chargeable under this Chapter in respect of a transfer of dutiable property that is subject to a trust ("the principal trust") to a beneficiary of the principal trust if –

(a) the beneficiary was a beneficiary when the property, or what was substantially the same property, was first vested in a trustee of the principal trust; and

(b) the transfer is –

(i) to the beneficiary absolutely; or

(ii) to the beneficiary as trustee of another trust ("the second trust") of which all the beneficiaries are natural persons who were beneficiaries of the second trust when the property, or what was substantially the same property, was first vested in a trustee of the principal trust; and

(c) the duty charged by this Act in respect of the first vesting of the property, or what was substantially the same property, in a trustee of the principal trust has been paid.

42.   Establishment of a trust relating to unidentified property and non-dutiable property

(1)  Duty of $20 is chargeable in respect of an instrument executed in Tasmania that declares a trust over Tasmanian property none of which is dutiable property.

(2)  Duty of $20 is chargeable in respect of an instrument executed in Tasmania that declares that property, although not identified in the instrument, when vested in the person executing the instrument is to be held in trust for a person or persons or a purpose or purposes mentioned in the instrument.

(3)  It is immaterial whether or not the beneficial owner or person entitled to appoint the property has joined in or assented to the instrument.

(4)  A liability for duty charged by this section arises when the instrument is first executed.

(5)  Duty charged by this section is payable by the person declaring the trust.

(6)  [Section 42 Subsection (6) omitted by No. 24 of 2002, s. 10, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

43.   Instrument relating to managed investment scheme

(1)  Duty of $20 is chargeable in respect of an instrument that –

(a) amends, varies or replaces an instrument that establishes or governs a managed investment scheme; and

(b) does not transfer, or have the effect of transferring, any dutiable property to a person who does not hold units in the scheme; and

(c) does not have the effect of reducing the number of persons who hold units in the scheme.

(2)  Duty of $20 is chargeable in respect of a declaration of trust –

(a) made by a trustee in respect of dutiable property that, immediately before the trust is declared, is held by the trustee as trustee of the prescribed interest scheme within the meaning of the Corporations Law as in force immediately before 1 July 1998; and

(b) to hold the dutiable property on trust for the responsible entity of the managed investment scheme.

Division 2 - Superannuation

44.   Instruments relating to superannuation

(1)  The following instruments are liable to duty of $20:

(a) an instrument that establishes, or that amends provisions governing, a superannuation fund, an approved deposit fund, a pooled superannuation trust or an eligible rollover fund, being a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund within 12 months after the instrument or amending instrument takes effect;

(b) an instrument under which an employer agrees to participate in or contribute to a complying superannuation fund or a superannuation fund that, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the employer agrees to participate in or contribute to the fund;

(c) an instrument that is executed in order to set out or vary the terms of custodial arrangements concerning a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund (whether or not the instrument contains any other terms) or concerning a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund, a pooled superannuation trust or an eligible rollover fund within 12 months after the instrument takes effect.

(2)  A liability for duty charged by this section arises when the instrument is first executed.

(3)  The persons liable to pay the duty are the parties to the instrument.

(4)  Despite subsection (1) , an instrument to which this section applies is not liable to duty if –

(a) it is exempt from duty under a corresponding Act; or

(b) the duty for which it is liable under a corresponding Act has been paid.

45.   Transfer of property from one superannuation fund to another

(1)  This section applies to the transfer of dutiable property from one superannuation fund to another where –

(a) the transfer is made from a complying superannuation fund or from a fund that was a complying superannuation fund within the period of 12 months before the transfer was made; and

(b) the transfer is made to a complying superannuation fund or to a superannuation fund that, in the opinion of the trustees, will be a complying superannuation fund within 12 months after the transfer is made; and

(c) the transfer occurs in connection with a person's ceasing to be a member of, or otherwise ceasing to be entitled to benefits in respect of, the fund from which the dutiable property is transferred and the person's becoming a member of, or otherwise becoming entitled to benefits in respect of, the fund to which the dutiable property is transferred.

(2)  [Section 45 Subsection (2) amended by No. 24 of 2002, s. 11, Applied:01 Jul 2002] The duty chargeable on a transfer to which this section applies is $20.

(3)  An application for an assessment of duty in accordance with this section is to be accompanied by the following:

(a) a brief explanation of the background to the transfer and the entitlements to be extinguished and created;

(b) copies of the governing rules of the complying superannuation funds concerned;

(c) a statement of the property to be transferred;

(d) a copy of each instrument relating to the transfer;

(e) a statutory declaration from a trustee (or a director of a corporate trustee) of each of the superannuation funds concerned stating that, in the opinion of the trustee (or director), the fund will be a complying superannuation fund within 12 months after the transfer occurs.

(4)  The Commissioner may require further information.

(5)  In this section,

complying superannuation fund includes a complying approved deposit fund and an eligible rollover fund.

46.   Transfers between trustees and custodians of superannuation funds or trusts

[Section 46 Subsection (3) substituted by No. 24 of 2002, s. 12, Applied:01 Jul 2002] [Section 46 Substituted by No. 60 of 2002, s. 11, Applied:19 Dec 2002]

(1)  This section applies to the following dutiable transactions:

(a) a transfer of, or an agreement to transfer, dutiable property from a trustee of –

(i) a complying superannuation fund; or

(ii) a pooled superannuation trust; or

(iii) a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect –

to a custodian of the trustee of the fund or trust, where there is no change in the beneficial ownership of the property;

(b) a transfer of, or an agreement to transfer, dutiable property from a custodian of a trustee of –

(i) a complying superannuation fund; or

(ii) a pooled superannuation trust; or

(iii) a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect –

to a trustee of the fund or trust, where there is no change in the beneficial ownership of the property;

(c) a transfer of, or an agreement to transfer, dutiable property from a custodian of a trustee of –

(i) a complying superannuation fund; or

(ii) a pooled superannuation trust; or

(iii) a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund or a pooled superannuation trust within 12 months after the transfer takes effect –

to another custodian of the trustee of the fund or trust, where there is no change in the beneficial ownership of the property.

(2)  The duty chargeable on a dutiable transaction to which this section applies is $20.

(3)  In this section,

complying superannuation fund includes a complying approved deposit fund and an eligible rollover fund.

Division 3 - Miscellaneous

47.   Deceased estates

(1)  [Section 47 Subsection (1) amended by No. 24 of 2002, s. 13, Applied:01 Jul 2002] Subject to section 53(j) , duty of $20 is chargeable in respect of a transfer of dutiable property not made for valuable consideration by the legal personal representative of a deceased person to a beneficiary, being –

(a) a transfer made under and in conformity with the trusts contained in the will of the deceased person or arising on an intestacy; or

(b) a transfer of property the subject of a trust for sale contained in the will of the deceased person.

(2)  No duty is payable in respect of –

(a) a consent by a legal personal representative of a deceased person to a transmission application by a beneficiary; or

(b) a transmission application to a devisee who is also the sole legal personal representative.

48.   Conversion of lots to strata title

The duty chargeable on the transfer of a lot within the meaning of the Strata Titles Act 1998 is $20 if the Commissioner is satisfied that –

(a) the transferee, immediately before registration of the strata plan, held a land use entitlement in respect of the land or part of the land the subject of the strata plan; and

(b) the transfer is part of an arrangement under which the transferee will take an interest in the lot similar in effect to and in substitution for the interest the transferee had under the land use entitlement immediately before registration of the strata plan.

49.   Duty where no change of beneficial ownership

[Section 49 Substituted by No. 24 of 2002, s. 14, Applied:01 Jul 2002] The duty chargeable on a transfer of dutiable property is $20 if the Commissioner is satisfied there is no change in the beneficial ownership of the property.

50.   Adjustment of dutiable value of transfer on a company wind-up

(1)  If a transfer of dutiable property is made to a shareholder in the course of a distribution of assets of a company because of the winding-up of the company, the dutiable value of the transfer is to be reduced by –

(a) if the shareholder is not a creditor of the company, the value of the shareholder's entitlement in the undistributed assets of the company immediately before the transfer; or

(b) if the shareholder is a creditor of the company, the amount (if any) by which the value of the shareholder's entitlement in the undistributed assets of the company immediately before the transfer exceeds the amount owed by the company to the shareholder as a creditor.

(2)  [Section 50 Subsection (2) amended by No. 24 of 2002, s. 15, Applied:01 Jul 2002] Notwithstanding subsection (1) , the minimum amount payable on the transfer of dutiable property to a shareholder is $20.

(3)  Subsection (1) does not apply to the extent of any debt owed by the company to the shareholder that was converted to equity in the company within a 12 month period before the winding-up of the company.

(4)  [Section 50 Subsection (4) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] The provisions of this section do not apply to a distribution to a shareholder who was not a shareholder for at least 12 months immediately prior to the notice of appointment of liquidator being given under section 537 of the Corporations Act.

51.   

[Section 51 Repealed by No. 24 of 2002, s. 16, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

PART 6 - Exemptions

52.   Exemptions from duty

A dutiable transaction is exempt from duty under this Chapter if it is, or occurs as a consequence of any of the following:

(a) the appointment of a receiver or trustee in bankruptcy;

(b) the appointment of a liquidator;

(c) the transfer of dutiable property for no consideration to a former bankrupt from the estate of the former bankrupt;

(d) a dutiable transaction over dutiable property arising from the discharge or transfer of a mortgage or declaration of trust over a mortgage (and a reference in this paragraph to a mortgage includes a reference to a charge and an interest in a mortgage);

(e) a dutiable transaction comprising –

(i) a transfer by way of discharge of mortgage; or

(ii) a transfer by way of mortgage (not being a transfer by way of mortgage of land, or an estate or interest in land, under the Land Titles Act 1980 ), if duty as on a mortgage has been paid in respect of an instrument evidencing the mortgage or the instrument is exempt from, or is not liable to, duty;

(f) subject to section 34 , the grant of a mortgage.

53.   Exemptions relating to various transactions

Duty is not chargeable under this Chapter on the following:

(a) a transfer of dutiable property to give effect to the incorporation of an association or the amalgamation of 2 associations pursuant to the Associations Incorporation Act 1964 ;

(b) [Section 53 Amended by No. 36 of 2004, s. 8, Applied:01 Dec 2004] a contract of sale made under section 17 of the Homes Act 1935 ;

(c) a transfer of dutiable property as specified in section 9(1)(g) , (h) , (i) or (j) but does not include land, made between persons who are relatives if the relative is –

(i) a child or grandchild; or

(ii) a parent or grandparent; or

(iii) a brother or sister; or

(iv) [Section 53 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] a spouse or caring partner; or

(v) [Section 53 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] a spouse or caring partner of a child, grandchild, brother or sister;

(d) [Section 53 Amended by No. 60 of 2002, s. 12, Applied:01 Jul 2002] a lease, excluding premiums paid on the granting of a lease;

(e) [Section 53 Amended by No. 65 of 2003, s. 4, Applied:01 Jul 2004] .  .  .  .  .  .  .  .  

(f) a transfer of personal property to a gallery conducted by a council or to the trustees of the Tasmanian Museum and Art Gallery, for the purpose of exhibiting, free of charge to the public, that property as a work of art in that gallery;

(g) a transfer of copyright in personal property to a gallery conducted by a council or to the trustees of the Tasmanian Museum and Art Gallery if the property was transferred for the purpose of exhibiting, free of charge to the public, that property in the art gallery, whether the transfer of the copyright was made at the same time as that transfer or at a later time;

(h) any instrument relating to the vesting of land in the Aboriginal Land Council of Tasmania;

(i) any instrument required as a result of any variation or change made to any folio of the Register pursuant to section 12 of the Abt Railway Development Act 1999 ;

(j) an assent given under section 36(1) of the Administration and Probate Act 1935 in relation to the vesting of real estate;

(k) the transfer of any property pursuant to section 18 of the Crime (Confiscation of Profits) Act 1993 ;

(l) any gift, bequest or devise acquired by the Allport Library and Museum of Fine Arts Management Committee under section 20 of the Libraries Act 1984 or by the State Library and Archives Trust under section 17 of the Libraries Act 1984 ;

(m) any gift, bequest or devise accepted or acquired by the Minister responsible for the administration of the Archives Act 1983 or the State Archivist under section 9 of that Act;

(n) a transfer by way of gift of dutiable property so far as it passes or creates any interest, legal or equitable –

(i) in furtherance of any charitable purpose or any religious or educational purpose that is not charitable also; or

(ii) to or in favour of any corporation or association incorporated or associated for any such purpose;

(o) [Section 53 Amended by No. 60 of 2002, s. 12, Applied:01 Jul 2002] an endorsement of a grant consequent on the surrender of land under section 59 of the Crown Lands Act 1976 ;

(p) [Section 53 Amended by No. 60 of 2002, s. 12, Applied:01 Jul 2002] a surrender of a forestry right, within the meaning of the Forestry Rights Registration Act 1990 .

54.   

[Section 54 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 54 Repealed by No. 24 of 2002, s. 17, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

55.   Exemptions – transfers to partners in a marriage or relationship

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of dutiable property if it is proved to the satisfaction of the Commissioner that –

(a) [Section 55 Subsection (1) amended by No. 60 of 2002, s. 13, Applied:01 Jul 2002] [Section 55 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 55 Subsection (1) amended by No. 36 of 2004, s. 9, Applied:01 Dec 2004] as a result of the transfer or agreement, the whole of the property is or will be held by the parties to a marriage or significant relationship, or by caring partners, as joint tenants or as tenants in common in equal shares; and

(b) the dutiable property –

(i) [Section 55 Subsection (1) amended by No. 60 of 2002, s. 13, Applied:01 Jul 2002] [Section 55 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 55 Subsection (1) amended by No. 36 of 2004, s. 9, Applied:01 Dec 2004] is land that has erected on it a private dwelling house and was solely or principally used, as at the date of transfer, as the principal place of residence of the parties to the marriage or significant relationship, or of the caring partners; or

(ii) [Section 55 Subsection (1) amended by No. 60 of 2002, s. 13, Applied:01 Jul 2002] [Section 55 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 55 Subsection (1) amended by No. 36 of 2004, s. 9, Applied:01 Dec 2004] is vacant land and the parties to the marriage or significant relationship, or the caring partners, intend to use it as the site of a private dwelling house to be solely or principally used as their principal place of residence; or

(iii) [Section 55 Subsection (1) amended by No. 60 of 2002, s. 13, Applied:01 Jul 2002] [Section 55 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 55 Subsection (1) amended by No. 36 of 2004, s. 9, Applied:01 Dec 2004] is shares that confer an entitlement to exclusive possession of a company title dwelling that was solely or principally used, as at the date of transfer, as the principal place of residence of the parties to the marriage or significant relationship, or of the caring partners; and

(c) [Section 55 Subsection (1) amended by No. 60 of 2002, s. 13, Applied:01 Jul 2002] [Section 55 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 55 Subsection (1) amended by No. 36 of 2004, s. 9, Applied:01 Dec 2004] both the transferor and the transferee are the parties to the marriage or significant relationship, or are the caring partners, or one of them and no other person is a party to the transfer.

(2)  [Section 55 Subsection (2) substituted by No. 60 of 2002, s. 13, Applied:01 Jul 2002] In this section –[Section 55 Subsection (2) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]

private dwelling house includes a lot, within the meaning of the Strata Titles Act 1998 , used as a place of residence.

56.   Exemptions – break-down of marriages

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of matrimonial property if –

(a) the property is transferred, or agreed to be sold or transferred, to the parties to a marriage that is dissolved or annulled (or in the opinion of the Commissioner has irretrievably broken down) or to either of them, or to a child of the marriage under the age of 18; and

(b) the transfer or agreement is effected by or in accordance with –

(i) a document registered or approved under the Family Law Act 1975 of the Commonwealth; or

(ia) [Section 56 Subsection (1) amended by No. 121 of 2001, s. 5, Applied:17 Dec 2001] a financial agreement made under section 90B, 90C or 90D of that Act; or

(ii) an order of a court under that Act; or

(iii) a purchase at public auction of property that, immediately before the auction, was matrimonial property where the public auction is held to comply with any such document or order.

(2)  No duty is chargeable under this Chapter on a dutiable transaction to the extent that –

(a) [Section 56 Subsection (2) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] for the purposes of or ancillary to a transfer referred to in subsection (1) , it transfers a share that is matrimonial property to a person not a party to the relevant marriage in order to comply with a requirement of or prescribed under the Corporations Act; or

(b) it is a declaration of trust, by the transferee of a share transferred as referred to in paragraph (a) , for the benefit of a party to the marriage.

(3)  If –

(a) ad valorem duty was paid on a transfer, or agreement for the sale or transfer, of matrimonial property to the parties to a marriage or to either of them, or to a child of the marriage under the age of 18; and

(b) the transfer or agreement for the sale or transfer of matrimonial property is pursuant to –

(i) a document registered or approved under the Family Law Act 1975 of the Commonwealth; or

(ii) an order of the court under that Act; or

(iii) a purchase, at public auction, of property that, immediately before the auction, was matrimonial property, where the public auction is held to comply with any such document or order; and

(c) the marriage was dissolved or annulled or the Commissioner is satisfied that the marriage has irretrievably broken down –

the Commissioner must reassess the transfer or agreement and refund the duty paid.

57.   Exemptions – personal relationships

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of relationship property if –

(a) [Section 57 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] the property is transferred or agreed to be sold or transferred to the partners to a personal relationship that is terminated, or to either of them, or to a child of the partners who is under the age of 18; and

(b) the transfer or agreement –

(i) [Section 57 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 57 Subsection (1) amended by No. 36 of 2004, s. 10, Applied:01 Dec 2004] is effected by or in accordance with an order made under the Relationships Act 2003 or a prescribed agreement; or

(ii) [Section 57 Subsection (1) amended by No. 36 of 2004, s. 10, Applied:01 Dec 2004] is executed for the purpose of, or in accordance with, such an order or prescribed agreement; or

(iii) [Section 57 Subsection (1) amended by No. 36 of 2004, s. 10, Applied:01 Dec 2004] effects the purchase, at public auction, of property, that immediately before the auction, was relationship property, where the auction is held to comply with any such order or prescribed agreement.

(2)  No duty is chargeable under this Chapter on a dutiable transaction to the extent that –

(a) [Section 57 Subsection (2) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 57 Subsection (2) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] for purposes of or ancillary to a transfer referred to in subsection (1) , it transfers a share that is relationship property to a person not a party to the relevant personal relationship in order to comply with a requirement of or prescribed under the Corporations Act; or

(b) [Section 57 Subsection (2) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] it is a declaration of trust, by the transferee of a share transferred as referred to in paragraph (a) , for the benefit of a party to the personal relationship.

(3)  [Section 57 Subsection (3) inserted by No. 36 of 2004, s. 10, Applied:01 Dec 2004] In this section –

prescribed agreement means an agreement that is –

(a) a personal relationship agreement or separation agreement within the meaning of the Relationships Act 2003 ; and

(b) in accordance with paragraphs (b) , (c) , (d) and (e) of section 62(1) of the Relationships Act 2003 .

57AA.   Exemptions – certain vestings

[Section 57AA Inserted by No. 43 of 2016, s. 9, Applied:01 Jul 2001] No duty is chargeable under this Chapter on a vesting of dutiable property if –

(a) it is a vesting of dutiable property in a legal personal representative of a deceased person or under section 12 of the Administration and Probate Act 1935 ; or

(b) it is a vesting, under the Associations Incorporation Act 1964 , of dutiable property in an incorporated association; or

(c) it is a vesting, under the Strata Titles Act 1998 , of common property in a body corporate on the registration of a strata plan under that Act; or

(d) it is a vesting of dutiable property under section 28 of the Strata Titles Act 1998 by virtue of the cancellation of a strata plan.

Chapter 3 - Certain transactions treated as transfers

PART 1 - Preliminary

58.   Introduction and overview

This Chapter charges duty on certain transactions that are not dutiable transactions under Chapter 2 .

PART 2 - Acquisition of interests in certain landholders

Division 1 - Land-rich private corporations

59.    Meaning of private corporation

A private company or private unit trust scheme is, for the purposes of this Part, a private corporation.

60.   When is a private corporation land-rich?

(1)  A private corporation is land-rich if –

(a) it has land holdings in Tasmania whose unencumbered value is $500 000 or more; and

(b) its land holdings in all places, whether within or outside Australia, comprise 80% or more of the unencumbered value of all its property.

(2)  In calculating the unencumbered value of the property of a private corporation for the purposes of this section, property of any of the following kinds is not counted:

(a) cash, whether in Australian or other currency;

(b) money on deposit with any person, negotiable instruments or debt securities;

(c) loans that, according to their terms, are to be repaid on demand by the lender or within 12 months after the date of the loan;

(d) if the private corporation concerned is a private company, loans to persons who, in relation to the company or to a majority shareholder or director of the company, are associated persons;

(e) if the private corporation concerned is a private unit trust scheme, loans to persons who, in relation to a trustee or beneficiary of the scheme, are associated persons;

(f) land use entitlements;

(g) [Section 60 Subsection (2) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] if the private corporation is a holding company within the meaning of section 9 of the Corporations Act, shareholding of that private corporation in a subsidiary of that private corporation;

(h) property consisting of a share or interest in a unit trust scheme that is a subsidiary under section 62 or an interest as a beneficiary in a discretionary trust as referred to in section 63 .

(3)  In addition to subsection (2) , property is not to be counted in calculating the unencumbered value of all the property of a private corporation for the purposes of this section if the private corporation is unable to satisfy the Commissioner that the property was obtained otherwise than to reduce, for the purposes of this Division, the ratio of its land holdings in all places, whether within or outside Australia, to the unencumbered value of all its property.

61.   Land holdings of private corporations

(1)  For the purposes of this Part, a land holding is any interest in land other than the estate or interest of a mortgagee, chargee or other secured creditor or a profit a prendre.

(2)  An interest in land, however –

(a) is not a land holding of a private company unless the interest of the private company in the land is a beneficial interest; and

(b) is not a land holding of a unit trust scheme unless the interest is held by the trustees in their capacity as trustees of the scheme.

(3)  This section is in aid of, but does not limit, the operation of any provision of this Part providing for constructive ownership of interests.

(4)  For the purposes of this Part, the vendor and the purchaser under an uncompleted agreement for the sale of land are taken to be separately entitled to the whole of the land.

62.   Constructive ownership of land holdings and other property: subsidiaries

(1)  In addition to any interest in land or other property that it may hold in its own right, a private corporation is taken, for the purposes of this Part, to hold an interest (the value of which, for duty purposes, is to be calculated in accordance with subsection (2) ) in land or other property held by a subsidiary of the private corporation.

(2)  The value, for duty purposes, of the interest in land or other property that a private corporation is taken, by the operation of subsection (1) , to hold by virtue of a holding of a subsidiary ("the actual landholder") is that portion of the interest's unencumbered value to which the private corporation would be entitled on a winding-up of –

(a) the actual landholder; and

(b) every subsidiary of the private corporation that stands between the private corporation and the actual landholder in the ownership chain.

(3)  [Section 62 Subsection (3) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] For the purposes of this Part, a private company ("Company A") is the subsidiary of another private company ("Company B") if Company A is a subsidiary, within the meaning of the Corporations Act, of Company B.

(4)  For the purposes of this Part, a private company is the subsidiary of a unit trust scheme if the trustees of the scheme, in their capacities as trustees of the scheme, have a majority interest in the private company.

(5)  For the purposes of this Part, a unit trust scheme is the subsidiary of a private corporation if the corporation has a majority interest in the scheme.

63.   Constructive ownership of land holdings and other property: discretionary trusts

(1)  A person or a member of a class of persons in whose favour, by the terms of a discretionary trust, capital the subject of the trust may be applied –

(a) in the event of the exercise of a power or discretion in favour of the person or class; or

(b) in the event that a discretion conferred under the trust is not exercised –

is, for the purposes of this section, a beneficiary of the trust.

(2)  A beneficiary of a discretionary trust is taken to own or to be otherwise entitled to the property the subject of the trust, unless the Commissioner, being satisfied that the application of this subsection in the particular case would be inequitable, determines otherwise.

(3)  For the purposes of this Part, any property that is the subject of a discretionary trust is taken to be the subject of any other discretionary trust –

(a) that is; or

(b) any trustee of which (in the capacity of trustee) is –

a beneficiary of it, unless the Commissioner, being satisfied that the application of this subsection in the particular case would be inequitable, determines otherwise.

(4)  Subsection (3) extends to apply to property that is the subject of a discretionary trust only by the operation of that subsection.

(5)  In this section,

person includes a private corporation or a subsidiary of a private corporation.

Division 2 - Acquisitions of interests in private corporations

64.   What are interests and majority interests in private corporations?

(1)  A person has an interest in a private corporation if the person has an entitlement (otherwise than as a creditor or other person to whom the corporation is liable) to a distribution of property from the corporation on a winding-up of the corporation or otherwise.

(2)  A person who, by virtue of subsection (1) , has an interest in a private corporation has a majority interest in the corporation if the person, in the event of a distribution of all the property of the corporation immediately after the interest was acquired, would be entitled to more than 50% of the property distributed.

(3)  An interest in a private corporation is not counted for the purposes of this section if –

(a) the interest concerned is an interest in a private company acquired before 1 January 1990; or

(b) the interest concerned is an interest in a private unit trust acquired before 1 January 1990; or

(c) the interest concerned was acquired at a time when the private corporation did not hold land in Tasmania.

(4)  In this section,

person includes a private corporation.

65.   How may an interest be acquired?

For the purposes of this Part, an interest in a land-rich private corporation may be acquired by means of –

(a) the purchase, gift, allotment or transfer of any share or unit in a private corporation; or

(b) the variation, abrogation or alteration of a right attaching to any such share or unit; or

(c) the redemption, surrender or cancellation of any such share or unit; or

(d) the variation or alteration of a right of a holder of any such share or unit, including on payment of a call on partially paid-up shares; or

(e) in the case of a company limited by guarantee, becoming a member of the company, removing a person from membership of the company or altering members' rights –

or by any combination of the means referred to in paragraphs (a) , (b) , (c) , (d) and (e) .

Division 3 - Charging of duty

66.   When does a liability for duty arise?

A liability for duty charged by this Part arises when a relevant acquisition is made.

67.   What is a relevant acquisition?

For the purposes of this Division, a person who –

(a) acquires an interest in a land-rich private corporation –

(i) that is of itself a majority interest in the corporation; or

(ii) that, when aggregated with other interests in the corporation held by the person or an associated person, results in an aggregation that amounts to a majority interest in the corporation; or

(b) having a majority interest, or an interest described in paragraph (a)(ii) , in a land-rich private corporation, acquires a further interest in the corporation –

has made a relevant acquisition.

68.   Acquisition statements

(1)  A person who has made a relevant acquisition must prepare a statement (an "acquisition statement") and lodge it with the Commissioner.

(2)  The acquisition statement is to be prepared in a form approved by the Commissioner and must contain the following information:

(a) the name and address of the person who has acquired the interest;

(b) the date of the relevant acquisition;

(c) particulars of the interest acquired;

(d) particulars of the total interest of the person and any associated person in the private corporation at that date;

(e) the unencumbered value of all land holdings in Tasmania of the private corporation as at the date of the relevant acquisition and as at the date of acquisition of each interest acquired in the corporation during the 3 years prior to the date of the relevant acquisition;

(f) the unencumbered value of the property of the private corporation at the date of the relevant acquisition;

(g) the amount of duty paid under this Act or under a law of another Australian jurisdiction in respect of each earlier acquisition of an interest referred to in paragraph (e) ;

(h) such other information as the Commissioner may require.

69.   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.

70.   Who is liable to pay the duty?

(1)  Duty chargeable under this Part is payable by the person who makes the relevant acquisition, except as provided by subsection (2) .

(2)  If a relevant acquisition results from an aggregation of the interests of associated persons, the person who made the relevant acquisition and the associated person or persons are jointly and severally liable for payment of the duty.

71.   How duty is charged on relevant acquisitions

(1)  If an acquisition statement does not disclose any acquisitions during the 3 years preceding the relevant acquisition, duty is chargeable, at the rate specified under this Act for a transfer of dutiable property, on the amount calculated by multiplying the unencumbered value of all land holdings of the private corporation in Tasmania (calculated at the date of acquisition of the interest acquired) by the proportion of that value represented by the interest acquired in the relevant acquisition.

(2)  If an acquisition statement discloses one or more acquisitions during the 3 years preceding the relevant acquisition, duty is chargeable, at the rate specified under this Act for a transfer of dutiable property, on the aggregate of amounts severally calculated, in the manner provided by subsection (1) , in respect of each interest required to be disclosed in the statement.

(3)  Duty payable under this section is to be reduced by the sum of the duty paid or payable under this Act in respect of the acquisition, during the 3 years preceding the relevant acquisition, by the person or any associated person of an interest in the same private corporation, but only in proportion to the extent to which the duty paid or payable is attributable to the amount of the duty payable under this section.

(4)  Duty payable under this section is to be reduced by an amount (if any) calculated in accordance with the following formula:

where –

A is the unencumbered value of the land holdings in Tasmania of the private corporation at the time the dutiable acquisition was made;

B is the unencumbered value of all property of the private corporation at that time;

[Section 71 Subsection (4) amended by No. 24 of 2002, s. 18, Applied:01 Jul 2002]

[Section 71 Subsection (4) amended by No. 24 of 2002, s. 18, Applied:01 Jul 2002] C is any marketable securities duty paid or payable under a law of another Australian jurisdiction.

(5)  If a relevant acquisition is made owing to the aggregation of the interests of associated persons, but the Commissioner is satisfied that the associated persons acquired their respective interests independently and for no common purpose, the Commissioner may assess and charge duty on the relevant acquisition without aggregating the interests of the person who made it with the interests of associated persons.

(6)  This section is subject to section 75 and to the other provisions of Division 4 .

Division 4 - General and supplemental

72.   Exemptions

(1)  An acquisition by a person of an interest in a private corporation is an exempt acquisition –

(a) if the land the subject of the interest concerned could have been acquired by the person in a manner that does not result in a liability to pay ad valorem duty under Chapter 2 ; or

(b) if the interest was acquired in the person's capacity as –

(i) a receiver or trustee in bankruptcy; or

(ii) a liquidator; or

(iii) an executor or administrator of the estate of a deceased person but does not extend to subsequent acquisitions by the executor or administrator on behalf of the estate; or

(c) [Section 72 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] if the interest was acquired solely as the result of the making of a compromise or arrangement under Part 5.1 of the Corporations Act that has been approved by the court, not being a compromise or arrangement that the Commissioner is satisfied was made with the intention of defeating the operation of this Part; or

(d) if the interest concerned is acquired solely from a pro rata increase in the interests of all shareholders or unit holders; or

(e) if the interest was acquired solely as the result of the distribution of the estate of a deceased person, whether effected in the ordinary course of execution of a will or codicil or administration of an intestate estate or as the result of the order of a court, made under the Testator's Family Maintenance Act 1912 or otherwise, varying the application of the provisions of a will or codicil or varying the application of the rules governing the distribution of the property of an intestate estate; or

(f) if the interest was acquired by the parties to a marriage that is dissolved or annulled, or in the opinion of the Commissioner has irretrievably broken down, or by either of them, or by any child of the marriage under the age of 18 years, in accordance with –

(i) a document registered or approved under the Family Law Act 1975 of the Commonwealth; or

(ia) [Section 72 Subsection (1) amended by No. 121 of 2001, s. 6, Applied:17 Dec 2001] a financial agreement made under section 90B, 90C or 90D of that Act; or

(ii) an order of a court under that Act; or

(g) [Section 72 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] if the interest was acquired by the partners in a personal relationship that is terminated, or by either of them, or by a child of the partners to that relationship who has not attained the age of 18 years, in accordance with an order of a court made under the Relationships Act 2003 ; or

(h) to the extent that –

(i) [Section 72 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 72 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] for purposes of or ancillary to the acquisition of an interest referred to in paragraph (f) or (g) , the acquisition consists of the transfer of a share that is matrimonial property or relationship property to a person not a party to the relevant marriage or personal relationship, in order to comply with a requirement of or prescribed under the Corporations Act; or

(ii) [Section 72 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] the acquisition consists of a declaration of trust, by the transferee of a share transferred as referred to in subparagraph (i) , for the benefit of a party to the marriage or personal relationship.

(2)  Parties to a marriage or either of them or a child of the marriage under the age of 18 years are entitled to a refund of duty paid on a relevant acquisition where –

(a) ad valorem duty was paid on the relevant acquisition; and

(b) the acquisition was pursuant to –

(i) a document registered or approved under the Family Law Act 1975 of the Commonwealth; or

(ii) an order of the court under that Act; and

(c) the marriage was dissolved or annulled or the Commissioner is satisfied that it has irretrievably broken down.

73.   Maximisation of entitlements on distribution of property

(1)  This section applies to any calculation, for the purposes of this Part, of the entitlement of a person (the "interested person") to participate in a distribution of the property of a private corporation, whether on a winding-up of the private corporation or otherwise.

(2)  A calculation is to be made based, firstly, on a distribution carried out in accordance with the constitution of the private corporation, and with any law relevant to the distribution, as in force at the time of distribution, and the entitlement of the interested person is to be evaluated accordingly.

(3)  Next, a calculation is to be made based on a distribution carried out after the interested person, and any other person whom the interested person has power to direct with respect to such a distribution or who is, in relation to the interested person, an associated person, had exercised all powers and discretions exercisable by them by reason of having acquired an interest in the private corporation concerned –

(a) to effect or compel an alteration to the constitution of the private corporation; and

(b) to vary the rights conferred by shares or units in the private corporation; and

(c) to effect or compel the substitution or replacement of shares or units in the private corporation with other shares or units in it –

in such a manner as would maximise the value of the entitlement, and the entitlement of the interested person is to be evaluated accordingly.

(4)  The results obtained by an evaluation of the interested person's entitlement in accordance with subsections (2) and (3) are then to be compared, and whichever evaluation results in a greater entitlement is the correct evaluation, for the purposes of this Part, of the entitlement, unless the Commissioner, being satisfied that the application of this subsection in the particular case would be inequitable, determines otherwise.

74.   Valuation of property

(1)  The provisions of this Act that apply to the ascertainment of the value of transfers chargeable with ad valorem duty apply in the same way to an acquisition statement under this Part and the value of land holdings mentioned in it.

(2)  If any arrangement affecting the dutiable value of dutiable land holdings that was entered into within 12 months before a relevant acquisition was brought about by any person with the intention of reducing the dutiable value of the land holdings, the Commissioner may –

(a) cause a valuation of the land holding to be made; and

(b) direct the valuer to disregard the arrangement for the purposes of the valuation; and

(c) assess duty on the basis of the valuation carried out in accordance with the direction.

75.   Phasing-in of duty

If the unencumbered value of land holdings in Tasmania of a private corporation exceeds $500 000 but does not exceed $750 000, the duty chargeable under this Part is to be calculated in accordance with the following formula:

where –

A is the unencumbered value of the land holdings in Tasmania of the private corporation at the time the dutiable acquisition was made;

[Section 75 Amended by No. 24 of 2002, s. 19, Applied:01 Jul 2002] B is the duty that, apart from this section, would be chargeable under this Part.

[Section 75 Amended by No. 24 of 2002, s. 19, Applied:01 Jul 2002]

76.   Agreements for sale or conveyance of land

(1)  If –

(a) at the time of acquisition of an interest by any person in a land-rich private corporation that necessitates the lodgment of an acquisition statement under Division 3 , the corporation was the vendor under an uncompleted agreement for the sale or conveyance of land; and

(b) the agreement is subsequently completed –

the Commissioner is to assess or reassess the statement as though the land the subject of the agreement was not, at the time of the acquisition concerned, a land holding of the corporation.

(2)  If –

(a) at the time of acquisition of an interest by any person in a land-rich private corporation that requires the lodgment by any person of an acquisition statement under Division 3 , the private corporation was the purchaser under an uncompleted agreement for the sale or conveyance of land; and

(b) the agreement is subsequently rescinded, annulled or otherwise terminated without completion –

the Commissioner is to assess or reassess the statement as though the land the subject of the agreement was not, at the time of the acquisition concerned, a land holding of the corporation.

(3)  In this section, a reference to a "land-rich private corporation" includes a reference to a subsidiary of the corporation.

77.   Duty concession: acquisitions securing financial accommodation

(1)  If the person lodging an acquisition statement under this Part in relation to the acquisition of an interest in a land-rich private corporation –

(a) informs the Commissioner at the time the statement is lodged that the acquisition is effected for the purpose of securing financial accommodation; and

(b) the Commissioner is satisfied that the acquisition is effected for that purpose –

the statement, in so far as it relates to that acquisition, is not chargeable with duty, except as provided by subsection (2) .

(2)  The statement is chargeable with duty at the expiration of the period of 5 years after the date of the acquisition (or such longer period as may be determined by the Commissioner in the particular case) if the interest concerned is not –

(a) re-acquired by the person from whom it was acquired; or

(b) in the case of an acquisition by way of mortgage, conveyed by the mortgagee to a third person in exercise of the mortgagee's power of sale –

within that period (or that longer period).

(3)  Section 68 does not apply to the re-acquisition by a person of the interest concerned.

PART 3 - .  .  .  .  .  .  .  .  

[Part 3 of Chapter 3 Repealed by No. 24 of 2002, s. 20, Applied:01 Jul 2002]

78.   

[Section 78 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 78 Repealed by No. 24 of 2002, s. 20, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

79.   

[Section 79 Repealed by No. 24 of 2002, s. 20, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

80.   

[Section 80 Repealed by No. 24 of 2002, s. 20, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

81.   

[Section 81 Repealed by No. 24 of 2002, s. 20, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

82.   

[Section 82 Repealed by No. 24 of 2002, s. 20, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

83.   

[Section 83 Repealed by No. 24 of 2002, s. 20, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

84.   

[Section 84 Repealed by No. 24 of 2002, s. 20, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

PART 4 - Acquisition of land use entitlements by allotment of shares or issue of units

85.   When does a liability for duty arise?

[Section 85 Amended by No. 24 of 2002, s. 21, Applied:01 Jul 2002] A liability for duty charged by this Part arises when a land use entitlement is acquired by an allotment of shares or an issue of units to any person.

86.   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.

87.   Who is liable to pay the duty?

Duty chargeable under this Part is payable by the person who acquires the land use entitlement.

88.   Acquisition of land use entitlement

(1)  A person who acquires a land use entitlement by an allotment of shares or an issue of units must lodge a statement (an "acquisition statement") with the Commissioner in respect of the entitlement.

(2)  The statement must be lodged within 3 months after the entitlement is so acquired.

89.   Form of statement

An acquisition statement required to be lodged by a person is to be in a form approved by the Commissioner and is to contain the following information:

(a) the name and address of the person;

(b) the name of the relevant company or unit trust;

(c) the date on which the land use entitlement was acquired;

(d) the consideration paid by the person for the relevant shares or units;

(e) such other information as may be required by the Commissioner.

90.   Assessment of duty

The share allotment or unit issue by which a person acquires a land use entitlement is chargeable with duty at the general rate of duty set out in section 29 on the dutiable value of the land use entitlement.

PART 5 - .  .  .  .  .  .  .  .  

[Part 5 of Chapter 3 Repealed by No. 24 of 2002, s. 22, Applied:01 Jul 2002]

91.   

[Section 91 Repealed by No. 24 of 2002, s. 22, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

92.   

[Section 92 Repealed by No. 24 of 2002, s. 22, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

93.   

[Section 93 Repealed by No. 24 of 2002, s. 22, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

94.   

[Section 94 Repealed by No. 24 of 2002, s. 22, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

95.   

[Section 95 Repealed by No. 24 of 2002, s. 22, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

96.   

[Section 96 Repealed by No. 24 of 2002, s. 22, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

97.   

[Section 97 Repealed by No. 24 of 2002, s. 22, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

Chapter 4 - .  .  .  .  .  .  .  .  

[Chapter 4 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002]

PART 1 - .  .  .  .  .  .  .  .  

[Part 1 of Chapter 4 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002]

98.   

[Section 98 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

99.   

[Section 99 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

100.   

[Section 100 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

101.   

[Section 101 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

102.   

[Section 102 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

103.   

[Section 103 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

104.   

[Section 104 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

PART 2 - .  .  .  .  .  .  .  .  

[Part 2 of Chapter 4 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002]

105.   

[Section 105 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

106.   

[Section 106 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

PART 3 - .  .  .  .  .  .  .  .  

[Part 3 of Chapter 4 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002]

107.   

[Section 107 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

108.   

[Section 108 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

109.   

[Section 109 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

110.   

[Section 110 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

PART 4 - .  .  .  .  .  .  .  .  

[Part 4 of Chapter 4 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002]

111.   

[Section 111 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

112.   

[Section 112 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

113.   

[Section 113 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

114.   

[Section 114 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

Chapter 5 - .  .  .  .  .  .  .  .  

[Chapter 5 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002]

PART 1 - .  .  .  .  .  .  .  .  

[Part 1 of Chapter 5 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002]

115.   

[Section 115 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

116.   

[Section 116 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

117.   

[Section 117 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

118.   

[Section 118 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

119.   

[Section 119 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

120.   

[Section 120 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

121.   

[Section 121 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

122.   

[Section 122 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

123.   

[Section 123 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

124.   

[Section 124 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

125.   

[Section 125 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

126.   

[Section 126 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

127.   

[Section 127 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

PART 2 - .  .  .  .  .  .  .  .  

[Part 2 of Chapter 5 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002]

128.   

[Section 128 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

129.   

[Section 129 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

130.   

[Section 130 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

131.   

[Section 131 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

132.   

[Section 132 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

133.   

[Section 133 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

134.   

[Section 134 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

PART 3 - .  .  .  .  .  .  .  .  

[Part 3 of Chapter 5 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002]

135.   

[Section 135 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

136.   

[Section 136 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

137.   

[Section 137 Repealed by No. 24 of 2002, s. 23, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

Chapter 6 - Mortgages

PART 1 - Introduction and overview

138.   Imposition of duty

This Chapter charges duty on instruments that are mortgages.

139.   What is a mortgage?

For the purposes of this Chapter, an instrument is a mortgage if it is –

(a) a security by way of mortgage or charge over property wholly or partly in Tasmania at the liability date; or

(b) a security by way of a transfer of any property wholly or partly in Tasmania held in trust to be sold or otherwise converted into money and redeemable before the sale or conversion, except if the transfer is for the benefit of creditors who accept it in full satisfaction of debts owed to them; or

(c) any transfer, assignment or disposition of any estate or interest in property wholly or partly in Tasmania that is apparently absolute but intended only as a security; or

(d) an instrument that, on the deposit of documents of title, authority to control title or a pledge to provide that control, to property wholly or partly in Tasmania becomes a mortgage or evidences the terms of a mortgage.

140.   What is an advance?

(1)  For the purpose of this Chapter, an advance is the provision or obtaining of funds by way of financial accommodation by means of –

(a) a loan that is –

(i) an advance of money; or

(ii) the payment of money for or on account of, or on behalf of, or at the request of, any person; or

(iii) a forbearance to require the payment of money owing on any account; or

(iv) any transaction in any form that in substance effects a loan of money; or

(b) a bill facility that is one or more agreements, understandings or arrangements because of which a bill of exchange or promissory note –

(i) is drawn, accepted, endorsed or made; and

(ii) is held, negotiated or discounted to obtain funds –

whether or not the funds are obtained from the person who draws, accepts, endorses or makes the bill of exchange or promissory note or from a person who is a party to any such agreement, understanding or arrangement.

(2)  An advance includes a contingent liability referred to in section 148 .

141.   Who is liable to pay the duty?

The person liable to pay mortgage duty is the mortgagor or person who gives the mortgage.

142.   When does a liability arise?

(1)  A mortgage is liable to duty on the date of its first execution.

(2)  [Section 142 Subsection (2) amended by No. 121 of 2001, s. 7, Applied:01 Jul 2001] A mortgage is liable to duty on the making of an advance or further advance by which the amount secured by the mortgage exceeds the amount secured by it at the date a liability to duty last arose in respect of it under this Act or a corresponding Act.

(3)  [Section 142 Subsection (3) amended by No. 60 of 2002, s. 14, Applied:01 Jul 2001] [Section 142 Subsection (3) substituted by No. 121 of 2001, s. 7, Applied:01 Jul 2001] [Section 142 Subsection (3) substituted by No. 36 of 2004, s. 18, Applied:01 Jul 2001] An instrument of security that does not affect property in Tasmania at the date of first execution but affects land in Tasmania, other than a security interest in land in Tasmania, at any time within 12 months after that date becomes liable to duty as a mortgage on the date on which it first affects the land unless it is exempt from duty or is duly stamped under a corresponding Act.

(4)  An instrument that, on the deposit of documents of title, authority to control title or a pledge to provide that control, to property in Tasmania, becomes a mortgage or evidences the terms of a mortgage is liable to duty as a mortgage on the deposit of the documents or instruments or the provision of authority to control title or a pledge to provide such control.

143.   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.

144.   How is mortgage duty charged?

(1)  The amount of duty chargeable on a mortgage is determined by the amount secured by it as calculated under Part 2 .

(2)  The amount of duty is –

(a) $20, if no amount is secured by the mortgage or if the amount secured does not exceed $8 000; or

(b) if the amount secured by the mortgage exceeds $8 000 but does not exceed $10 000, $20 for the first $8 000 plus 0.25 per cent of the amount secured exceeding $8 000; or

(c) if the amount secured by the mortgage exceeds $10 000, $25 for the first $10 000 plus 0.35 per cent of the amount secured exceeding $10 000.

(3)  The amount of duty chargeable on a mortgage in respect of an advance or further advance is –

(a) determined on the amount secured by it as calculated under Part 2 ; and

(b) the amount of duty applicable as provided in subsection (2) .

145.   Extent mortgage is enforceable

[Section 145 Substituted by No. 121 of 2001, s. 8, Applied:01 Jul 2001]

(1)  A mortgage or mortgage package on which duty is imposed under this Act or a corresponding Act is enforceable only to the extent of the amount secured by the mortgage or mortgage package in respect of which duty has been paid under this Act or a corresponding Act.

(2)  Subsection (1) does not apply if the property affected by the mortgage package is partly in and partly outside Tasmania if –

(a) duty has been paid on the total advances under the mortgage or mortgage package when the mortgage duty paid is taken with the duty paid under a corresponding Act; and

(b) the proportion of that property in Tasmania used to determine mortgage liability –

(i) is based on a referrable point as referred to in section 149(4) for the dutiable proportion of the mortgage; and

(ii) is not incorrect by more than 5%.

146.   Where is property located?

(1)  For the purpose of this Chapter, property in the following forms is taken to be located in the place specified:

(a) [Section 146 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] shares in or securities of a body corporate –

(i) in the case of a company within the meaning of the Corporations Act, in the place in which the company is taken to be registered; or

(ii) in any other case, in the place of incorporation of the body corporate;

(b) units in a unit trust scheme –

(i) in the place where the register on which the units are registered is kept; or

(ii) in the place of residence of the manager or responsible entity of the unit trust scheme, if the register on which the units are registered is not kept in Australia;

(c) debt securities of a Government of a State or Territory of the Commonwealth, in the State or Territory concerned.

(2)  [Section 146 Subsection (2) omitted by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] .  .  .  .  .  .  .  .  

PART 2 - Calculating the amount secured by a mortgage

147.   Secured amount

(1)  [Section 147 Subsection (1) amended by No. 121 of 2001, s. 9, Applied:01 Jul 2001] A mortgage is chargeable with duty assessed on the amount of any advances secured by it and recoverable under it.

(2)  If duty of $20 is paid or taken to be paid in respect of a mortgage, the mortgage is taken to be stamped in respect of an advance of $8 000.

(3)  [Section 147 Subsection (3) substituted by No. 121 of 2001, s. 9, Applied:01 Jul 2001] For the purpose of subsection (1) , if –

(a) a mortgage has been duly stamped for an amount of advances secured by the mortgage; and

(b) a further advance secured by the mortgage is made; and

(c) the total amount of advances secured by the mortgage exceeds the amount for which the mortgage has been duly stamped –

the amount of advances secured by the mortgage is the amount by which the amount of advances secured by the mortgage exceeds the amount for which the mortgage has been duly stamped.

(4)  If several mortgages over the same property are executed to secure the same advance –

(a) only one is chargeable with duty under this Chapter; and

(b) [Section 147 Subsection (4) amended by No. 36 of 2004, s. 11, Applied:01 Dec 2004] the Commissioner, or a person authorised by the Commissioner, may denote the payment of the duty on the other mortgages.

(5)  [Section 147 Subsection (5) amended by No. 36 of 2004, s. 11, Applied:01 Dec 2004] If the duty chargeable on a mortgage depends on duty paid on another instrument, the Commissioner, or a person authorised by the Commissioner, may denote the payment of the duty so paid on the mortgage.

148.   Contingent liabilities

(1)  A mortgage used or capable of being used, whether directly or indirectly, to recover the whole or any part of an amount contingently payable in connection with an advance –

(a) by a guarantor or indemnifying party under a guarantee or indemnity; or

(b) by another party under another instrument of a different kind –

is chargeable with duty as if the whole or part of the amount of the contingent liability secured by the mortgage were a separate advance secured by the mortgage.

(2)  A reference in subsection (1) to a contingent liability is a reference to a contingent liability limited to the amount of any advance by a party referred to in subsection (1) and does not include a reference to any other kind of contingent liability.

(3)  This section does not apply if the Commissioner is satisfied that there is no connection between the mortgage and any advance by any party to the arrangements.

(4)  This section does not require duty to be paid more than once in respect of an advance.

149.   Mortgages over property not wholly within Tasmania

(1)  Duty chargeable in respect of a mortgage over property that is partly within Tasmania and partly outside Tasmania is to be assessed as if the amount secured by it were only the dutiable proportion.

(2)  The dutiable proportion is to be calculated in accordance with the following formula:

where –

DP is the dutiable proportion;

AS is the amount secured by the mortgage on which duty is charged as at the liability date;

V is the value of the property in Tasmania affected by the mortgage;

T is the value of all property affected by the mortgage, excluding property within a Territory or outside Australia.

(3)  The dutiable proportion is to be calculated by reference to the values of the properties according to any referrable point specified in subsection (4) .

(4)  [Section 149 Subsection (4) amended by No. 121 of 2001, s. 10, Applied:01 Jul 2001] A referrable point is any of the following prepared within the 12 months preceding the liability date:

(a) an independent valuation of the secured property;

(b) a statement of the mortgagee based on information obtained by the mortgagee in determining to make the advance to the mortgagor;

(c) [Section 149 Subsection (4) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] property valuations used by the mortgagor in preparing an annual return to be lodged under the Corporations Act;

(d) financial reports of the mortgagor certified by an independent auditor as presenting a true and fair view of the company's financial position;

(e) agreed valuations for property that form the basis of policies of insurance of the mortgagor;

(f) any other method approved by the Commissioner.

(5)  If there are 2 or more referrable points in relation to a mortgage, the referrable point is the later or latest of those referrable points.

(6)  [Section 149 Subsection (6) amended by No. 121 of 2001, s. 10, Applied:01 Jul 2001] The referrable point is the same referrable point used or to be used to determine liability to duty at the liability date under a corresponding Act.

(7)  Evidence of the location and percentage value of any property is to be made by either party to the mortgage by way of a statement in a form approved by the Commissioner.

(8)  A mortgage or a statement made under subsection (7) may be endorsed with duty on the basis of evidence contained in the statement.

(9)  If a statement is endorsed under subsection (8) , the mortgage may be endorsed at any time –

(a) as being stamped to the amount evidenced by the duty paid on the statement; and

(b) by showing –

(i) the percentage of the property in Tasmania securing the advance; and

(ii) the total amount secured by the mortgage.

150.   Advances secured by mortgage package

(1)  [Section 150 Subsection (1) substituted by No. 121 of 2001, s. 11, Applied:01 Jul 2001] [Section 150 Subsection (1) substituted by No. 36 of 2004, s. 12, Applied:01 Dec 2004] If –

(a) at a liability date, 2 or more security instruments secure or partly secure the same money; and

(b) at least one of the instruments is a security affecting property wholly or partly outside Tasmania; and

(c) at least one of the instruments is a mortgage –

the instruments are known as a mortgage package.

(2)  [Section 150 Subsection (2) substituted by No. 36 of 2004, s. 12, Applied:01 Dec 2004] Also, a mortgage package may include –

(a) a mortgage executed after the liability date if the Commissioner is satisfied that the mortgage was intended to be part of the package; and

(b) a mortgage previously collateral to an earlier advance under some or all of the other mortgages in the package.

(3)  [Section 150 Subsection (3) substituted by No. 36 of 2004, s. 12, Applied:01 Dec 2004] Mortgage duty must be assessed in accordance with this Part on the mortgage package as if the instruments comprising the mortgage package were one mortgage first executed on the day the last instrument to be executed was executed.

(4)  [Section 150 Subsection (4) amended by No. 36 of 2004, s. 12, Applied:01 Dec 2004] If 2 or more mortgages over property within Tasmania form part of the security for a mortgage package, one of those mortgages is to be stamped with the mortgage duty paid in Tasmania for the mortgage package and the other mortgages are to be stamped as collateral mortgages.

(5)  [Section 150 Subsection (5) amended by No. 121 of 2001, s. 11, Applied:01 Jul 2001] Evidence of the location and percentage value of any property is to be made by either party to the mortgage by way of the statement referred to in section 149(7) .

(6)  [Section 150 Subsection (6) omitted by No. 36 of 2004, s. 12, Applied:01 Dec 2004] .  .  .  .  .  .  .  .  

(7)  If a person makes an application for the stamping of a mortgage referred to in subsection (1) and one or more of the other intended mortgages in the mortgage package has not yet been executed, the executed mortgage, until all the intended mortgages are executed, when stamped is security only for that amount of the advance to which the proportion of the property secured by all the executed mortgages bears to the total of the property expressed to secure the advance.

(8)  The Commissioner may endorse the executed mortgage to indicate the proportion of the advance secured by the mortgage pending the execution of the other intended mortgages.

(9)  [Section 150 Subsection (9) amended by No. 36 of 2004, s. 12, Applied:01 Dec 2004] If a mortgage secures the same advance as a mortgage package in respect of which duty has been paid under this Chapter and the mortgage is not part of a mortgage package, the mortgage is taken to be a collateral mortgage in respect of that advance.

151.   Stamping before advance

(1)  A mortgage may be stamped before an advance whether or not an earlier advance has been made.

(2)  A mortgage referred to in section 149 or 150 may be stamped to secure any amount exceeding that to which it is already stamped based on the dutiable proportion at the time of stamping.

(3)  A mortgage stamped under subsection (2) is –

(a) duly stamped; and

(b) not required to be stamped in accordance with section 149 again until an advance brings the total amount secured above the amount to which it is already stamped.

(4)  [Section 151 Subsection (4) amended by No. 121 of 2001, s. 12, Applied:01 Jul 2001] Section 150(7) applies to a mortgage package stamped before an advance.

152.   Security

(1)  A stamped mortgage or a collateral mortgage that was, but is no longer, part of the same mortgage package and no longer secures the same money secured by that package is not security for any other money unless duty in respect of the other money has been paid.

(2)  The withdrawal of a mortgage from a mortgage package will not affect the amount to which the remaining mortgage or mortgages are security for.

153.   Collateral securities

(1)  [Section 153 Subsection (1) substituted by No. 121 of 2001, s. 13, Applied:01 Jul 2001] Mortgage duty is not chargeable in respect of that part of the amount secured by a collateral mortgage that is secured by –

(a) a mortgage or security instrument that is duly stamped under this Act or a corresponding Act; or

(b) a mortgage package that has been duly stamped under section 150 or a corresponding Act.

(1A)  [Section 153 Subsection (1A) inserted by No. 121 of 2001, s. 13, Applied:01 Jul 2001] A collateral mortgage that no longer secures the amount secured by a mortgage, security instrument or mortgage package mentioned in subsection (1) is not security for another advance unless mortgage duty for the amount of the other advance is paid.

(2)  The Commissioner, or a person authorised by the Commissioner, may endorse a collateral security with a stamp showing the duty paid in respect of the amount secured by the principal security.

(3)  A collateral security is chargeable with a minimum duty of $20.

(4)  A reference to a mortgage or security instrument duly stamped includes a reference to a mortgage package stamped in accordance with section 150 .

PART 3 - Exempt instruments

154.   Certain debentures and related instruments

(1)  Mortgage duty is not chargeable on a mortgage solely securing the repayment of advances arising from the issue by a financial corporation or a related corporation of a debenture.

(2)  Mortgage duty is not chargeable on a mortgage in respect of advances arising from the issue by a financial corporation or a related corporation of a debenture if the mortgage secures in part the repayment of those advances.

(3)  This section applies to a debenture issued, or a mortgage executed, by a related corporation only in so far as the debenture is issued, or the mortgage is executed, for the purposes of raising funds to be used for a financial corporation.

(4)  In this section –

financial corporation means a corporation whose sole or principal business is providing finance to the public, including making loans to the public;

[Section 154 Subsection (4) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] related corporation, in relation to a particular financial corporation, means a corporation that is, with respect to the financial corporation, a related body corporate within the meaning of the Corporations Act.

155.   Loan instruments in respect of certain industries

Mortgage duty is not chargeable on any instrument securing a loan made under the Tasmanian Development Act 1983 for the purpose of a prescribed industry as defined by that Act.

156.   Miscellaneous exemptions

Mortgage duty is not chargeable on, or in respect of, any money advanced on the security of any mortgage for –

(a) insurance against fire of any property; or

(b) keeping in place or effecting a new policy of life insurance; or

(c) payment in respect of such security of any duty payable under this Act.

157.   Refinancing of loans

(1)  [Section 157 Subsection (1) amended by No. 36 of 2004, s. 13, Applied:01 Dec 2004] [Section 157 Subsection (1) amended by No. 121 of 2001, s. 14, Applied:01 Jul 2001] Any mortgage (in this section called "the new mortgage") that secures an advance made under a previous mortgage is exempt from duty to the extent of the balance outstanding of the loan secured by the previous mortgage immediately prior to the discharge of that previous mortgage if –

(a) the original security is fully discharged; and

(b) [Section 157 Subsection (1) amended by No. 60 of 2002, s. 15, Applied:01 Jul 2002] the security or part of the security is the same as under the previous mortgage; and

(c) the borrower remains the same; and

(d) the loan –

(i) is used for primary production purposes; or

(ii) is used for any commercial undertaking; or

(iii) is secured by a charge over residential property.

(2)  [Section 157 Subsection (2) amended by No. 36 of 2004, s. 13, Applied:01 Dec 2004] If an original borrower –

(a) dies; or

(b) is a party to a marriage that is dissolved or annulled or, in the opinion of the Commissioner is irretrievably broken down; or

(c) [Section 157 Subsection (2) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 157 Subsection (2) amended by No. 36 of 2004, s. 13, Applied:01 Dec 2004] was a partner in a personal relationship, and mortgaged property of that relationship is being transferred pursuant to –

(i) the revocation, under the Relationships Act 2003 , of the deed of relationship for that relationship; or

(ii) an order for adjustment made under Part 5 of that Act; or

(iii) a prescribed agreement –

any remaining borrower is taken to be the same borrower for the purposes of subsection (1) .

(3)  [Section 157 Subsection (3) inserted by No. 36 of 2004, s. 13, Applied:01 Dec 2004] If –

(a) an original borrower is joined by a new borrower for the purposes of the new mortgage; and

(b) the Commissioner is satisfied that the new mortgage is being entered into by those joint borrowers consequent on a transfer, or an agreement for the sale or transfer, of dutiable property on which, by virtue of section 55 , no duty is payable under Chapter 2  –

the original borrower and the new borrower are taken to be the same borrower for the purposes of this section.

(4)  [Section 157 Subsection (4) inserted by No. 36 of 2004, s. 13, Applied:01 Dec 2004] In this section –

prescribed agreement means an agreement that is –

(a) a personal relationship agreement or separation agreement within the meaning of the Relationships Act 2003 ; and

(b) in accordance with paragraphs (b) , (c) , (d) and (e) of section 62(1) of the Relationships Act 2003 .

PART 4 - Miscellaneous

158.   Unregistered mortgages protected by caveats (anti-avoidance provision)

(1)  A caveat under the Land Titles Act 1980 in which an estate or interest is claimed under an unregistered mortgage is chargeable with duty if the mortgage is chargeable, but not stamped, with mortgage duty.

(2)  The amount of duty is the same amount as is chargeable on the mortgage.

(3)  The person liable to pay the duty is the mortgagor.

(4)  Duty is not chargeable in respect of the caveat if the Commissioner is satisfied that a sum equal to the amount payable under subsection (2) has been paid on the mortgage to which the caveat relates, or on some other instrument pursuant to the arrangement to which the mortgage relates.

(5)  If the caveat has been stamped with ad valorem duty, a mortgage under which an estate or interest is claimed in the caveat may be stamped as a collateral security.

(6)  This section does not apply to a caveat lodged in respect of a mortgage that is exempt from mortgage duty under Part 3 .

159.   Stamping counterpart or collateral instrument if mortgage is lost, destroyed or cannot be produced

(1)  A counterpart of a mortgage or a collateral security for an amount secured by a mortgage is taken to be the mortgage and may accordingly be stamped or upstamped for mortgage duty purposes if, on application by or on behalf of a person who is a party to the mortgage, the Commissioner is satisfied that –

(a) the mortgage has been lost or destroyed; or

(b) because of being deposited with the Recorder of Titles or from other reasonable cause, the mortgage cannot conveniently be produced.

(2)  For the purposes of subsection (1) , a reproduction of a mortgage or a collateral security for an amount secured by a mortgage is taken to be a counterpart of that mortgage if it is purported to be signed by the Recorder of Titles.

(3)  [Section 159 Subsection (3) substituted by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] In this section –

document means a mortgage or collateral security;

machine copy, in relation to a document, means a copy of the document made by –

(a) a machine in which, or a process by which, a latent image of the contents of the document is produced from surface contact with the document or by the use of photosensitive material other than transparent photographic film; or

(b) the electrostatic process known as Xerography or any similar process;

reproduction, in relation to a document, means –

(a) a machine copy of the document; or

(b) a print made from a transparency of the document;

transparency, in relation to a document, means –

(a) a developed negative or positive photograph of that document (in this definition referred to as an original photograph) made on a transparent base by means of light reflected from, or transmitted through, the document; or

(b) a copy of an original photograph made by the use of photosensitive material on a transparent base placed in surface contact with the original photograph; or

(c) any one of a series of copies of an original photograph, the first of the series being made by the use of photosensitive material on a transparent base placed in surface contact with a copy referred to in paragraph (b) , and each succeeding copy in the series being made in the same manner from any preceding copy in the series.

160.   Exchange of information

The Commissioner may provide information relating to any statement in respect of any mortgage package or mortgage referred to in section 149(1) to any person the Commissioner considers is connected with the administration of this Chapter or the corresponding provisions of a corresponding Act.

161.   Collection of duty and endorsement of instruments

The Commissioner, or a person authorised by the Commissioner, may –

(a) collect any duty payable under this Chapter; and

(b) endorse mortgages with a stamp showing –

(i) the percentage of property in Tasmania securing the advance; and

(ii) the total amount secured by the mortgage.

Chapter 7 - Insurance

PART 1 - General Insurance

162.   Imposition of duty

(1)  This Part charges duty on the amount of the premium paid in relation to a contract of insurance that effects general insurance (whether or not it also effects other kinds of insurance).

(2)  The amount of duty is required to be paid each time a premium is paid in relation to a contract of insurance that effects general insurance.

163.   What is general insurance?

(1)  General insurance is any kind of insurance that is applicable to –

(a) property in Tasmania; or

(b) a risk, contingency or event concerning an act or omission that, in the normal course of events, may occur within, or partly within, Tasmania –

or both.

(2)  General insurance includes insurance effected in respect of trauma or a disabling or incapacitating injury, sickness, condition or disease.

(3)  General insurance does not include life insurance or insurance that is exempt from duty by Part 5 .

164.   What is a premium in relation to general insurance?

(1)  Premium, in relation to general insurance, means the total consideration given to an insurer or an insurance intermediary by or on behalf of the insured person to effect insurance without deductions for any amounts paid or payable, or allowed or allowable, by way of commission or discount to an insurance intermediary.

(2)  Premium includes a fire service levy paid or payable in connection with insurance by an insurer or any other person.

(3)  Premium does not include –

(a) an amount paid to an insurance intermediary by the insured person as a fee, provided that the amount can be clearly identified as a fee; or

(b) an amount of duty under this or a corresponding Act.

(4)  It is immaterial where the amount is paid or where the insurance is effected.

165.   When is a premium paid?

(1)  A premium, or an instalment of a premium, is paid for the purposes of this Chapter when the first of the following events occurs:

(a) the premium or instalment is received by the insurer;

(b) an account of the insurer is credited with the amount of the premium or instalment.

(2)  A premium or instalment of a premium (apart from the case where the premium or instalment is received directly by an insurer) is taken to have been received by an insurer if it is received by another person on the insurer's behalf.

166.   What duty is payable?

The amount of duty chargeable on the premium paid in relation to a contract of insurance is 8% of the amount of the premium.

167.   Who is liable to pay the duty?

[Section 167 Amended by No. 121 of 2001, s. 15, Applied:01 Jul 2001] The insurer is liable to pay the duty, except as provided by section 168 .

168.   Circumstances in which duty is payable by the insured person

(1)  This section applies to a person who obtains, effects or renews any general insurance as an insured person with a person who is not a registered insurer.

(2)  A person to whom this section applies must, within 21 days after the end of the month in which the premium relating to the insurance is paid to an insurer (not being a registered insurer) or insurance intermediary –

(a) lodge with the Commissioner a return in the approved form containing such particulars and information as to the premium and the insurance as the Commissioner may require; and

(b) pay to the Commissioner as duty the amount calculated in accordance with section 166 .

(3)  A person to whom this section applies is taken to have complied with this section if the person's duty under this section is discharged by another person acting on the person's behalf.

(4)  The payment of a periodic premium in respect of disability income insurance that is continued, but not renewed, on the payment of the premium is taken to effect the insurance for the purposes of this section.

169.   Records to be kept

A person to whom section 168 applies must maintain records that contain information as to –

(a) the nature and location of the property insured; and

(b) the nature and location of each risk, contingency or event insured; and

(c) the amount of the premiums paid in relation to each contract of insurance.

170.   Refunds where premiums are returned

(1)  A general insurer or a person to whom section 168 applies is entitled to a refund of duty if the general insurer refunds, or there is refunded to the person, the whole or a part of a dutiable premium in respect of the contract of insurance for which duty has been paid.

(2)  The refund is the duty paid on the amount of the premium refunded.

(3)  A general insurer to whom duty is refunded may apply the amount of the refund to offset any other payment required to be made under this Chapter by the general insurer.

PART 2 - Life Insurance

171.   Imposition of duty

This Part charges duty on a policy of life insurance.

172.   What is life insurance?

(1)  Life insurance is any insurance or assurance in respect of –

(a) a life or lives; or

(b) an event or contingency relating to or depending on a life or lives –

of a person whose principal place of residence is, or persons whose principal places of residence are, in Tasmania at the time that the policy that effects the insurance is issued, but does not include insurance against accident.

(2)  Insurance against accident is any insurance under which payment is agreed to be made on the death of a person only from accident or violence or otherwise than from a natural cause or as compensation for personal injury.

(3)  A policy of mortgage insurance is a temporary policy of life insurance effected by, or on behalf of, a borrower to provide insurance in the event of the death of the borrower for the repayment of a loan taken out by the borrower.

173.   Obligation to make out and execute a policy of life insurance

A life company must, on or before the twenty-first day of each month –

(a) make out and execute a policy of life insurance for each contract or agreement for life insurance effected by or on behalf of the life company in the preceding month; and

(b) endorse the policy in the manner approved by the Commissioner.

174.   What duty is payable?

(1)  The amount of duty chargeable on a policy of life insurance, other than a temporary or term insurance policy, or a mortgage insurance policy is  –

(a) if the sum insured does not exceed $2 000, 10 cents per $200, or part, of the sum insured; or

(b) if the sum insured exceeds $2 000, $1 plus 20 cents per $200, or part, of the sum insured that exceeds $2 000.

(2)  The amount of duty chargeable on a temporary or term insurance policy is 5% of the first year's premium on the policy.

(3)  The amount of duty chargeable on a mortgage insurance policy is 2% of the premium on the policy.

(4)  In determining the sum insured by a policy of life insurance, any additional amount payable under the policy in the event of the insured dying as the result of an accident is to be disregarded.

(5)  The amount of duty chargeable on an annuity –

(a) issued, created or sold by a life company; or

(b) purchased by a person from a life company –

is $20.

(6)  For the purposes of subsection (5) a contract is an annuity if it satisfies the following requirements:

(a) the contract provides for the periodic payment of money to the annuitant in fee for life or for a specified term of years as an annual or more frequent entitlement;

(b) the periodic payment is a sum certain expressed as a dollar amount, but may be varied according to a predetermined formula;

(c) the periodic payments are not derived from the money paid for the contract but are derived solely from the contract and comprise income and not the repayment of capital.

175.   Who is liable to pay the duty?

The person issuing the policy of life insurance is liable to pay the duty, except as provided by section 176 .

176.   Circumstances in which duty is payable by the insured person

(1)  This section applies to a person (not being a registered insurer) who effects a policy of life insurance as an insured person with a person who is not a registered insurer.

(2)  A person to whom this section applies must, within 21 days after the end of the month in which the policy of life insurance was effected –

(a) lodge with the Commissioner a return in the approved form containing such particulars and information as the Commissioner may require; and

(b) pay to the Commissioner as duty the amount calculated in accordance with section 174 .

(3)  A person to whom this section applies is taken to have complied with this section if the person's duty under this section is discharged by another person acting on the person's behalf.

177.   Refund on cancellation of policy of life insurance

(1)  If a premium is refunded to a person because the person cancels a policy of life insurance within 30 days after receiving the policy, a person who has paid duty in respect of the policy is entitled to a refund of the duty paid on the amount of the premium refunded.

(2)  A life company that is refunded duty may apply the amount of the refund to offset any other payment required to be made by the life company under this Chapter.

PART 3 - How is duty paid by an insurer?

178.   Who is an insurer?

(1)  An insurer is –

(a) a life company that writes life insurance; or

(b) a general insurer.

(2)  A general insurer is a person –

(a) who writes general insurance; and

(b) who does so otherwise than as an insurance intermediary; and

(c) who is registered under the Insurance Act 1973 of the Commonwealth.

179.   Insurers must be registered

An insurer must be registered under this Part.

Penalty:  Fine not exceeding 100 penalty units.

180.   Application for registration

The Commissioner must register an insurer who applies in the approved form for registration under this Part.

181.   Cancellation of registration by the Commissioner

(1)  The Commissioner may, by written notice, cancel an insurer's registration under this Part –

(a) if the insurer's registration under the Insurance Act 1973 of the Commonwealth is terminated; or

(b) if the insurer is made bankrupt or, being a company, is wound up; or

(c) if the insurer is convicted of an offence under an Act imposing duty; or

(d) if the insurer's registration was made in error or as a consequence of a false or misleading statement made in relation to the application for registration; or

(e) if the Commissioner is of the opinion that the insurer has ceased to write general insurance in Tasmania; or

(f) if the insurer ceases to be a life company; or

(g) for any other reason the Commissioner thinks sufficient.

(2)  A cancellation of registration has effect from the date specified for the purpose by the Commissioner in the notice of cancellation.

182.   Cessation of business and cancellation of registration by the insurer

(1)  A registered insurer who ceases to write insurance business in Tasmania must –

(a) give written notice of that fact to the Commissioner; and

(b) lodge the return required to be lodged under this Part; and

(c) pay the duty payable in connection with the return on or before the twenty-first day of the month after which the notice is given.

Penalty:  Fine not exceeding 100 penalty units.

(2)  The notice cancels the insurer's registration under this Part on the day on which it is received by the Commissioner.

183.   Register of insurers

(1)  The Commissioner must keep a register of the insurers who are registered under this Part.

(2)  Anyone may inspect the register without charge at the Commissioner's principal office during the hours that the office is open to the public.

184.   Monthly returns and payment of duty

A registered insurer must, on or before the twenty-first day of each month –

(a) lodge with the Commissioner a return in the approved form showing –

(i) the total amount of all premiums for general insurance paid to the registered insurer in the preceding month other than exempt insurance under Part 5 ; and

(ii) the total duty payable on policies of life insurance (excluding temporary or term insurance, mortgage insurance and annuities dutiable under section 174(4) ) effected in the preceding month other than exempt insurance under Part 5 ; and

(iii) the total amount of all first year's premiums for temporary or term life insurance received by or on behalf of the registered insurer in the preceding month other than exempt insurance under Part 5 ; and

(iv) the total amount of all premiums in respect of policies of mortgage insurance received by or on behalf of the registered insurer in the preceding month other than exempt insurance under Part 5 ; and

(v) the total amount of all annuities effected in the preceding month at the nominal $20 rate; and

(b) pay to the Commissioner as duty the amounts determined in accordance with sections 166 and 174 .

185.   Recovery of duty by registered insurer

(1)  A registered insurer may require a person by whom a premium is payable to the insurer to pay the insurer an amount equal to the duty chargeable.

(2)  The requirement is duly made if it is contained in a written request that is given to the person and that specifies the amount of the duty.

(3)  If the amount is not paid, the insurer may recover it as a debt.

PART 4 - Apportionment

Division 1 - Apportionment of premiums and other amounts between Australian jurisdictions

186.   Application of Division 1

(1)  This Division applies to a contract of insurance –

(a) that insures –

(i) property in Tasmania as well as property in another place; or

(ii) a risk, contingency or event concerning an act or omission that, in the normal course of events, may occur within, or partly within, Tasmania as well as within, or partly within, another place –

or both; or

(b) that insures –

(i) lives; or

(ii) any event or contingency relating to or depending on lives –

or both, of persons whose principal places of residence are variously in Tasmania or another place at the time the policy is issued.

(2)  It is the intention of this Division –

(a) to provide the means for apportioning premiums paid and other amounts in relation to a contract of insurance having regard to the principle in sections 163 and 172 ; and

(b) to avoid multiple duty as between Australian jurisdictions; and

(c) to give Australian jurisdictions their appropriate share of duty by means of the apportionment.

187.   Schedule of Apportionment

(1)  The Commissioner, from time to time, may adopt a Schedule of Apportionment for the purpose of apportioning premiums and other amounts in relation to insurance in accordance with this Division.

(2)  The Schedule of Apportionment may be developed in consultation with any person the Commissioner considers suitable.

188.   Apportionment in practice

(1)  A premium or an amount is to be apportioned in accordance with the Schedule of Apportionment adopted for the time being, except as provided by this section.

(2)  An insurer or an insured person may apply in writing to the Commissioner to apportion a premium or an amount on a basis other than that provided by the Schedule of Apportionment.

(3)  The Commissioner may apportion the premium or amount on the basis referred to in subsection (2) .

(4)  In particular, if the Commissioner is not satisfied that a premium paid or another amount in relation to a contract of insurance has been properly apportioned for each risk insured, the Commissioner may determine the apportionment, reassess the liability to duty and charge duty accordingly.

Division 2 - Apportionment of premiums and other amounts as between different types of insurance

189.   Apportionment between different types of insurance

(1)  This section applies to apportionment between different types of insurance that are relevant to determining liability for duty, such as general insurance, life insurance and insurance that is exempt from duty.

(2)  This section does not apply to the apportionment of a premium or another amount between Tasmania and another place, as provided for under Division 1 .

(3)  If the Commissioner is not satisfied that a premium paid or another amount in relation to a contract of insurance that effects different types of insurance has been properly apportioned, the Commissioner may determine the apportionment, reassess the liability to duty and charge duty accordingly.

PART 5 - Exempt insurance

190.   What insurance is exempt from duty?

The following insurances are exempt from duty under this Chapter:

(a) insurance covering only property of the Crown;

(b) insurance effected by a separate policy in a distinct sum against loss by fire on the tools, implements of work or labour owned by any working mechanic, artificer, handcrafter or labourer;

(c) medical benefits insurance, being insurance effected by a contract of insurance that is issued by an organisation registered under Part VI of the National Health Act 1953 of the Commonwealth and that provides hospital benefits or medical benefits (or both), whether or not other benefits are also provided;

(d) insurance required under section 97 of the Workers Rehabilitation and Compensation Act 1988 ;

(e) insurance effected under the Motor Accidents (Liabilities and Compensation) Act 1973 ;

(f) insurance in respect of the hull of a floating vessel used primarily for commercial purposes;

(g) insurance in respect of the freight of goods;

(h) reinsurance (being a contract or contracts between 2 parties by which one party indemnifies the other against liability or payment under a contract or contracts of insurance or reinsurance);

(i) insurance taken out by the University of Tasmania;

(j) insurance taken out by the Commission for the Conservation of Antarctic Marine Living Resources;

(k) insurance taken out by the licensee, proprietor, governors, trustee, committee of management or resident manager of a private hospital for or in connection with the purposes of the hospital;

(l) a cover note in respect of life insurance in pursuance of which a duly stamped policy is issued within 3 months of the date of the cover note;

(m) [Section 190 Amended by No. 24 of 2002, s. 24, Applied:01 Jul 2002] a policy of life insurance under which the sum insured does not exceed $200;

(n) [Section 190 Amended by No. 24 of 2002, s. 24, Applied:01 Jul 2002] insurance effected by a separate policy in a distinct sum against a claim for public liability;

(o) [Section 190 Amended by No. 24 of 2002, s. 24, Applied:01 Jul 2002] insurance in a distinct sum against a claim for public liability included in a package of insurance other than in a domestic policy covering home or contents or both home and contents.

PART 6 - Miscellaneous

191.   Effect on contract of insurance of failure to comply with this Chapter

A failure to comply with this Chapter does not render a contract of insurance illegal or invalid.

Chapter 8 - Motor vehicle registration

PART 1 - Introduction and overview

192.   Imposition of duty

This Chapter charges duty on –

(a) an application to register a motor vehicle under the Vehicle and Traffic Act 1999 if –

(i) the vehicle has not previously been registered under that Act; or

(ii) the person in whose name the vehicle is to be registered differs (or the persons in whose names the motor vehicle is to be registered differ) from the person or persons in whose name or names the vehicle was last registered; or

(b) a notice of a change of beneficial ownership of a motor vehicle given under the Vehicle and Traffic Act 1999 if the acquirer of that beneficial ownership is not, or is not to be, the registered operator of that motor vehicle under that Act.

193.   Lodgment of statement of dutiable value

(1)  A person who is required by law to make an application to register a motor vehicle under the Vehicle and Traffic Act 1999 or give a notice of a change of beneficial ownership must lodge with the application for registration or the notice a statement of the dutiable value of the vehicle, unless the application or notice is not chargeable with duty under this Chapter.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A failure to lodge the statement is a tax default for the purpose of the Taxation Administration Act 1997 .

194.   Failure to register

If the Commissioner is satisfied that a person has failed to make an application to register a motor vehicle or give a notice of a change of beneficial ownership as required by the Vehicle and Traffic Act 1999 , the Commissioner may –

(a) determine the dutiable value of the motor vehicle as at the date the person became the owner or operator of the vehicle; and

(b) assess the duty payable by that person as if an application had been lodged or a notice had been given by that person under that Act; and

(c) issue a notice of assessment to that person.

195.   Who is liable to pay the duty?

Duty is payable by –

(a) the applicant for registration of the motor vehicle; or

(b) in the case of a change in beneficial ownership of a motor vehicle, the person acquiring the beneficial ownership; or

(c) in the case where a reassessment of tax liability is made under section 19 of the Taxation Administration Act 1997 in respect of an application to register a motor vehicle lodged by a motor dealer, the motor dealer.

196.   When does duty become payable?

Duty becomes payable on –

(a) the date on which –

(i) [Section 196 Amended by No. 121 of 2001, s. 16, Applied:17 Dec 2001] the motor vehicle is registered or the registration is transferred in pursuance of the relevant application; or

(ii) a notice of a change in beneficial ownership is lodged with the Registrar of Motor Vehicles; or

(b) the date specified in a notice of assessment issued under section 194 .

197.   What is the rate of duty?

(1)  [Section 197 Subsection (1) amended by No. 121 of 2001, s. 17, Applied:01 Mar 2002] The rate of duty is $3 per $100, or part, of the dutiable value of the motor vehicle, except as provided by subsections (2) , (3) and (3A) .

(2)  The rate of duty for a motor vehicle that is a passenger vehicle is as follows:

(a) if the dutiable value of the passenger vehicle does not exceed $35 000, $3 per $100, or part;

(b) if the dutiable value of the vehicle exceeds $35 000 but does not exceed $40 000, $1 050 plus $11 for every $100 or part of $100 of the value of the vehicle that exceeds $35 000;

(c) if the dutiable value of the vehicle exceeds $40 000, for every $100 or part of $100 of that value, $4.

(3)  The rate of duty applicable to a motor vehicle the dutiable value of which does not exceed $600 is $20.

(3A)  [Section 197 Subsection (3A) inserted by No. 121 of 2001, s. 17, Applied:01 Mar 2002] The rate of duty for a new motor vehicle for which a manufacturer's fleet discount has been provided is $3.50 per $100, or part.

(4)  A passenger vehicle is a motor vehicle, other than a motor cycle, that is –

(a) constructed principally for the carriage of passengers; or

(b) designed principally for the conveyance of not more than 9 adult persons, including the driver, and is constructed either on a truck chassis or with special features for off-road operation.

(5)  A passenger vehicle does not include a motor vehicle that –

(a) has a utility or panel van type body in which the forward part of the body form and the greater part of the mechanical equipment are the same as those in a passenger car manufactured by the manufacturer of the motor vehicle; or

(b) is constructed for the carriage of passengers and equipped to seat more than 9 adult persons, including the driver.

(6)  [Section 197 Subsection (6) inserted by No. 121 of 2001, s. 17, Applied:01 Mar 2002] A manufacturer's fleet discount in respect of a motor vehicle is a discount –

(a) that is given to the purchaser of the vehicle by the manufacturer of the vehicle; and

(b) that is deducted from the normal retail price of the vehicle; and

(c) that is not available to the general public.

198.   What is the dutiable value of a motor vehicle?

(1)  The dutiable value of a registered motor vehicle is –

(a) the consideration in money or money's worth given for the acquisition of the vehicle; or

(b) the market value of the vehicle at the time of acquisition of the vehicle or lodgment of a notice of change of beneficial ownership of the vehicle –

whichever is the greater.

(1A)  [Section 198 Subsection (1A) inserted by No. 121 of 2001, s. 18, Applied:01 Mar 2002] The dutiable value of a new motor vehicle is the consideration in money or money's worth given for the acquisition of the motor vehicle, if the Commissioner is satisfied that the consideration is adequate in relation to the value of that motor vehicle.

(2)  The dutiable value of a motor vehicle in any other case is –

(a) the consideration in money or money's worth given for the acquisition of the vehicle; or

(b) the market value of the vehicle at the time of application to register the vehicle –

whichever is the greater.

(3)  The dutiable value of a motor vehicle does not include –

(a) a premium paid for extended warranty insurance; or

(b) the value of any equipment transferred from another vehicle registered or previously registered in the name of the applicant which it replaces; or

(c) the value of any independently operated equipment that is unrelated to the use of the vehicle for transportation.

PART 2 - Circumstances in which duty not chargeable

199.   Exemptions

[Section 199 Amended by No. 121 of 2001, s. 19, Applied:17 Dec 2001] [Section 199 Substituted by No. 60 of 2002, s. 16, Applied:01 Jul 2002]

(1)  Duty under this Chapter is not chargeable in respect of the following:

(a) an application to register a motor vehicle or a notice of a change of beneficial ownership of a motor vehicle made by the personal representative of a deceased person to register a motor vehicle in the name of a person to whom it is bequeathed in the last will of the deceased person or who is beneficially entitled to it under Part V of the Administration and Probate Act 1935 ;

(b) an application to register a motor vehicle or a notice of a change of beneficial ownership of a motor vehicle if –

(i) the person is in the business of financing the purchase or use of motor vehicles; and

(ii) the vehicle was repossessed by, or voluntarily surrendered to, the person; and

(iii) the person, in the course of that business, does not dispose of any such vehicles except by public tender or public auction or through a motor dealer;

(c) an application to register a motor vehicle or a notice of a change of beneficial ownership of a motor vehicle registered in the names of the parties to a marriage or in the name of either of them to the extent that the vehicle was, at the time the application was made or notice lodged, matrimonial property, if it is proved to the satisfaction of the Commissioner that –

(i) the marriage is dissolved or annulled (whether before or after the certificate of registration is issued) or the marriage has irretrievably broken down; and

(ii) the application or notice was made for the purposes of or in accordance with an instrument registered or approved under the Family Law Act 1975 of the Commonwealth, a financial agreement made under section 90B, 90C or 90D of that Act or an order of a court under that Act;

(d) [Section 199 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] an application to register a motor vehicle or a notice of a change of beneficial ownership of a motor vehicle registered in the names of the partners to a personal relationship which has terminated or in the name of either of them, to the extent that the vehicle was, at the time the application was made or notice lodged, relationship property, and it is made for the purpose of or in connection with an order under the Relationships Act 2003 ;

(e) an application to register a motor vehicle or a notice of change of beneficial ownership of a motor vehicle that relates to a motor vehicle that is exempt from motor tax under the Vehicle and Traffic Act 1999 or the Transport Act 1981 ;

(ea) [Section 199 Subsection (1) amended by No. 36 of 2004, s. 14, Applied:01 Dec 2004] the acquisition of a registered motor vehicle by a person who is in the bona fide business of motor vehicle wrecking, where the Commissioner is satisfied that –

(i) the acquisition is for the sole purpose of wrecking the motor vehicle in the course of that business; and

(ii) the motor vehicle will never be re-registered;

(f) an application for transfer of registration of a motor vehicle made by a shareholder to register the motor vehicle in the name of the shareholder if –

(i) the transfer is in the course of a distribution of assets of a company because of the winding-up of the company; and

(ii) the distribution is in accordance with the shareholder's entitlement in the undistributed assets of the company immediately before the application to transfer.

(2)  Subsection (1)(f) does not apply to a distribution to a shareholder who was not a shareholder for at least 12 months immediately prior to the notice of appointment of liquidator being lodged under section 537 of the Corporations Act.

200.   Avoidance of double duty – duty paid in a corresponding Australian jurisdiction

Duty is not chargeable in respect of an application to register a motor vehicle in Tasmania if –

(a) at the time the application was made, the motor vehicle is or was registered by the person making the application under the law of an Australian jurisdiction that corresponds to the Vehicle and Traffic Act 1999 ; and

(b) duty was paid in that jurisdiction in respect of the registration.

201.   No change in beneficial ownership

No duty is chargeable in respect of an application to register a motor vehicle where –

(a) the Commissioner is satisfied there is no change in beneficial ownership and that duty has been previously paid on an application to register the motor vehicle by or on behalf of the beneficial owner of the vehicle in this or a corresponding Australian jurisdiction; or

(b) in prescribed circumstances.

202.   Reassessment of duty – repossession of stolen motor vehicle

(1)  Duty is not chargeable on an application for registration of a motor vehicle that has been repossessed from a person because, before the person acquired it, it had been stolen.

(2)  If requested by a person who has paid duty on an application for registration to which subsection (1) applies, the Commissioner must assess or reassess the duty accordingly.

203.   Refund if contract, arrangement or agreement cancelled

[Section 203 Amended by No. 121 of 2001, s. 20, Applied:17 Dec 2001] The Commissioner, on application by a person who paid duty in respect of the registration of a motor vehicle, the transfer of registration of a motor vehicle or a notice of a change of beneficial ownership may refund to the person the duty paid if the person cancelled any contract, arrangement or agreement under which that motor vehicle was acquired within 3 months of the acquisition.

PART 3 - Trading stock and demonstrator vehicles of motor dealers

204.   Exemptions for motor dealers

Duty under this Chapter is not payable by a motor dealer who holds an exemption certificate in respect of the registration or transfer of a type of motor vehicle specified in that certificate acquired for a purpose specified in section 214 .

205.   Application for exemption certificate

(1)  A motor dealer may apply to the Commissioner for a certificate certifying that the dealer is exempt from paying duty under this Act in respect of specified types of motor vehicles.

(2)  An application is to be –

(a) in an approved form; and

(b) accompanied by the prescribed fee.

(3)  The Commissioner may require an applicant to provide any further information the Commissioner considers necessary to decide the application.

206.   Grant or refusal of application

(1)  The Commissioner may –

(a) grant the application for an exemption certificate in full or in part and subject to any conditions the Commissioner considers appropriate; or

(b) refuse to grant the application.

(2)  The Commissioner may grant an application for an exemption certificate only if satisfied that the applicant –

(a) is a motor dealer; and

(b) has complied with any applicable provision of the Second-hand Dealers and Pawnbrokers Act 1994 ; and

(c) is not prohibited from carrying on business as a second-hand dealer under that Act; and

(d) has obtained any relevant approvals from the relevant council; and

(e) operates or intends to operate as a motor dealer on a continuing basis; and

(f) is not acting on behalf of another person who is not eligible to hold the certificate.

(3)  If the Commissioner refuses to grant the application, the Commissioner, by notice in writing, is to advise the applicant of –

(a) the refusal to grant the application; and

(b) the reasons for that refusal; and

(c) the right of the applicant to object to the Commissioner's decision under the Taxation Administration Act 1997 .

207.   Form of exemption certificate

An exemption certificate is to –

(a) be in an approved form; and

(b) be issued in the name of the person carrying on the business; and

(c) specify the type of motor vehicle to which it relates; and

(d) specify the conditions to which it is subject; and

(e) specify the purpose for which it was acquired; and

(f) specify the expiry date of the certificate.

208.   Period of exemption certificate

An exemption certificate is in force for a period, not exceeding 12 months, as specified in the certificate.

209.   Notification of changes

(1)  The holder of an exemption certificate must notify the Commissioner –

(a) of any change of address; and

(b) if the holder ceases to carry on the business of dealing in motor vehicles; and

(c) if the holder is prohibited from carrying on that business under any other Act.

Penalty:  Fine not exceeding 100 penalty units.

(2)  The holder of the exemption certificate must forward the certificate to the Commissioner for endorsement as soon as practicable after an event referred to in subsection (1) occurs.

Penalty:  Fine not exceeding 100 penalty units.

210.   Renewal of exemption certificate

(1)  The holder of an exemption certificate may apply to the Commissioner for renewal of the certificate.

(2)  An application for renewal is to be –

(a) in an approved form; and

(b) accompanied by the prescribed fee; and

(c) lodged no later than 2 months before the expiry of the certificate.

(3)  If a holder fails to make an application within the period specified in subsection (2)(c) or within any other period the Commissioner may allow –

(a) the exemption certificate is taken to be cancelled as at its expiry date; and

(b) the Commissioner, by written notice, is to advise the Registrar of Motor Vehicles of the cancellation; and

(c) the holder must forward the exemption certificate to the Commissioner within 14 days after that expiry date.

211.   Grant or refusal of renewal of application

(1)  The Commissioner may –

(a) grant an application for the renewal of an exemption certificate subject to any conditions the Commissioner considers appropriate; or

(b) refuse to grant the application for renewal if not so satisfied.

(2)  The Commissioner may grant the application for renewal only if satisfied as to the matters specified in section 206(2) .

(3)  If the Commissioner refuses to grant the application for renewal, the Commissioner, by notice in writing, is to –

(a) advise the holder of the exemption certificate of –

(i) the refusal to grant the application for renewal; and

(ii) the reasons for that refusal; and

(iii) the right of the holder to object to the Commissioner's decision under the Taxation Administration Act 1997 ; and

(b) advise the Registrar of Motor Vehicles of the refusal to grant that application.

212.   Suspension and cancellation of exemption certificate

(1)  The Commissioner may cancel an exemption certificate if satisfied that the holder –

(a) has ceased to be a motor dealer; or

(b) is prohibited from carrying on the business of a motor dealer under any other Act; or

(c) has not complied with any condition of the exemption certificate or any provision of this Chapter, the consequences of which, in the opinion of the Commissioner, justify the cancellation; or

(d) has used or attempted to use the certificate to obtain an exemption that is not available.

(2)  The Commissioner may suspend an exemption certificate for a specified period if satisfied that the holder has not complied with any condition of the exemption certificate or any provision of this Act.

(3)  The Commissioner, by written notice, is to advise the holder of an exemption certificate and the Registrar of Motor Vehicles of any suspension or cancellation.

(4)  On receipt of the notice, the holder must forward the exemption certificate to the Commissioner within 14 days after the receipt.

Penalty:  Fine not exceeding 100 penalty units.

(5)  Duty is payable in relation to any vehicle acquired through the use of an exemption certificate which has been cancelled under this section or taken to be cancelled under section 210(3)(a) if the former holder of that certificate of exemption has not disposed of the vehicle within 3 months of the date of cancellation or any longer period the Commissioner may allow.

213.   Continuing use of exemption certificate

The holder of an exemption certificate who makes an application for renewal under section 210 before the certificate expires continues to be exempted from paying duty in respect of the types of vehicles specified in the certificate until whichever of the following occurs first:

(a) the end of a period of 3 months, or any further period the Commissioner determines, after that expiry;

(b) if the application is refused before that expiry, the date of the refusal.

214.   Applicable exemptions

(1)  An exemption certificate may only be used to obtain exemption from payment of duty in respect of the registration or transfer of a specified motor vehicle if –

(a) in the case of a new motor vehicle, it is acquired for the sole purpose of demonstration to prospective purchasers; or

(b) in the case of a used motor vehicle, it is acquired for resale in the ordinary course of business and for no other intermediate purpose; or

(c) in the case of a holder who is a wholesaler, the motor vehicle is acquired for sale to other holders of exemption certificates or motor dealers in other States.

(2)  An exemption from payment of duty only applies if the holder of an exemption certificate makes a written statement to the Registrar of Motor Vehicles stating that –

(a) the certificate is in force; and

(b) one of the paragraphs of subsection (1) applies.

(3)  The holder of an exemption certificate is to keep a record of any exemption applied on the basis of a statement made under subsection (2) .

Penalty:  Fine not exceeding 100 penalty units.

215.   Improperly obtaining exemption

(1)  A person must not use an exemption certificate to obtain an exemption for a purpose that is not specified in section 214 .

Penalty:  Fine not exceeding 100 penalty units.

(2)  The holder of an exemption certificate that is used to obtain an exemption for a purpose that is not specified in section 214 commits a tax default under the Taxation Administration Act 1997 .

216.   Change of purpose

(1)  The holder of an exemption certificate must notify the Commissioner of any change in the purpose specified in a statement under section 214(2) for which a motor vehicle was acquired within 14 days after the change occurred.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A notification is to be –

(a) in a form approved by the Commissioner; and

(b) lodged with the Commissioner.

(3)  Where duty is payable in respect of the motor vehicle, it is payable at the applicable rate referred to in section 197 .

(4)  A tax default under the Taxation Administration Act 1997 occurs if the applicable duty is not paid within 14 days after the change in purpose occurred.

217.   Duty payable in certain circumstances

(1)  If a motor vehicle to which an exemption certificate relates has not been sold within 12 months after its date of acquisition, the holder of the exemption certificate is liable to pay duty in respect of the motor vehicle.

(2)  Subsection (1) does not apply if the holder of the exemption certificate satisfies the Commissioner that –

(a) the motor vehicle was not used for private purposes during the period referred to in that subsection; and

(b) a real attempt was made during that period to sell the motor vehicle.

(3)  Any duty payable under this section is at the applicable rate referred to in section 197 as from a date determined by the Commissioner.

218.   Record of exemption certificates

The Commissioner is to –

(a) keep records of all certificates of exemption granted or renewed under this Part; and

(b) make a summary of those records available for public inspection during normal business hours.

Chapter 9 - Miscellaneous duties

PART 1 - Duplicates and replicas

219.   Duplicates or counterparts

[Section 219 Subsection (3) amended by No. 60 of 2002, s. 17, Applied:01 Jul 2002] [Section 219 Substituted by No. 36 of 2004, s. 21, Applied:01 Jul 2004]

(1)  Subject to subsection (2) , no duty is chargeable on a duplicate or counterpart of an instrument that effects a dutiable transaction.

(2)  A duplicate or counterpart of an instrument that effects a dutiable transaction is not to be stamped as a duplicate or counterpart unless the proper duty has been paid on that instrument.

220.   Replicas

(1)  Duty is chargeable on a replica –

(a) at $20; or

(b) at the same amount as the duty with which the instrument the replica is intended to replace was stampable –

whichever is the lesser.

(2)  The persons liable to pay the duty are the parties to the replica or any one or more of them.

(3)  A replica that is duly stamped is to be marked in such manner as the Commissioner thinks fit to denote that it is a replica.

(4)  In this section,

replica means an instrument that –

(a) is executed to replace; and

(b) contains the same terms as, but no other terms than, those contained in –

a previously executed instrument that has been lost, spoiled or destroyed and that, in the Commissioner's opinion, has been duly stamped.

PART 2 - Miscellaneous duties

221.   Motor accident premium certificates

(1)  A certificate or other document issued for the purpose of the Motor Accidents (Liabilities and Compensation) Act 1973 that acknowledges the receipt of a premium paid under that Act is a certificate of premium paid notwithstanding that it is also issued for other purposes.

(2)  Duty is chargeable on a certificate of premium paid.

(3)  The amount of duty payable is $6 and the person liable to pay the duty is the applicant.

(4)  The amount of duty payable must be denoted on the certificate of premium paid.

(5)  A certificate of premium paid is not duly stamped until the duty has been paid.

(6)  The Motor Accidents Insurance Board or its agent is to –

(a) furnish to the Commissioner any returns required with regard to the certificates of premium paid issued; and

(b) pay duty received in respect of certificates of premium paid to the Commissioner in any manner and at any time notified by the Commissioner.

222.   

[Section 222 Subsection (1) amended by No. 121 of 2001, s. 21, Applied:17 Dec 2001] [Section 222 Repealed by No. 24 of 2002, s. 25, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

223.   

[Section 223 Subsection (2) amended by No. 121 of 2001, s. 22, Applied:17 Dec 2001] [Section 223 Repealed by No. 24 of 2002, s. 25, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

224.   

[Section 224 Repealed by No. 24 of 2002, s. 25, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

Chapter 10 - General exemptions from duty

PART 1 - Intergenerational rural transfers

225.   Intergenerational rural transfers

(1)  Duty under this Act is not chargeable on a transfer of real property, whether for consideration or not, and which includes personal property used solely or principally in connection with the business of primary production, if the Commissioner is satisfied that the transfer –

(a) relates to land currently used, and which will continue to be used, in the business of primary production; and

(b) does not arise from any arrangement or scheme devised to evade the payment of duty by taking the benefit of this exemption; and

(c) is from –

(i) a natural person to a relative of the person or to a trustee of a trust in which all the beneficiaries are individually named and are relatives of the person at the time of the transfer and may not be varied other than by the addition of a relative individually named in any deed of variation; or

(ii) a company to a trustee of a trust in which all the beneficiaries are individually named and are relatives of all the shareholders of the company at the time of the transfer and may not be varied other than by the addition of a relative individually named in a deed of variation; or

(iii) a company to a natural person and all the shareholders of the company are relatives of the person; or

(iv) a trustee of a trust to a person who is a relative of all those named beneficiaries of the trust who are natural persons; or

(v) a trustee of a trust to a trustee of another trust of which all the beneficiaries are individually named and relatives at the time of the transfer of all those beneficiaries of the first-mentioned trust who are natural persons and of which the named beneficiaries may not be varied other than by the addition of a relative individually named in a deed of variation.

(2)  Duty under this Act is not chargeable on any transfer of shares in a farming company to the extent of the proportion of the value of the shares which is the same proportion that the value of the farming property bears to the value of the total assets of the company, if the transfer is from a natural person to –

(a) a relative of the person; or

(b) a trustee of a trust in which all the beneficiaries are individually named and are relatives of the person at the time of the transfer and may not be varied other than by the addition of a relative individually named in a deed of variation.

(3)  A relative of a person is –

(a) a lineal descendant of the person; or

(b) an adopted child, a natural child or a step-child of the person; or

(c) a lineal ancestor of the person; or

(d) a brother, sister, nephew, niece, aunt or uncle of the person; or

(e) [Section 225 Subsection (3) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] the spouse or caring partner of the person or of a person referred to in paragraph (a) , (b) , (c) or (d) .

226.   Subsequent liability for duty in certain circumstances

(1)  If the Commissioner, after being satisfied as required under section 225 , becomes aware that a transfer in respect of which duty was not chargeable under that section was not a transfer referred to in that section, the Commissioner may assess that transfer for the duty that would otherwise be payable.

(2)  Duty is chargeable on a transfer referred to in section 225 if any of the following occurs:

(a) a person who is not a relative of the transferor –

(i) becomes entitled to a share or interest in the trust, whether that share or interest is vested or contingent; or

(ii) otherwise benefits from the trust;

(b) the transferor gains control of the trust.

(3)  The transferee must lodge with the Commissioner a statement in an approved form within one month after any event referred to in subsection (2) occurs and pay the duty that would be assessed in respect of that transaction.

Penalty:  Fine not exceeding 100 penalty units.

(4)  Section 19(3) of the Taxation Administration Act 1997 does not apply to this section.

PART 2 - Miscellaneous exemptions

227.   Miscellaneous exemptions

(1)  Duty is not chargeable in respect of the following:

(a) any instrument made by the Department responsible for the administration of the Hospitals Act 1918 in respect of the grant, purchase, transfer, mortgage or lease of any land if duty on that instrument would otherwise be payable by that Department;

(b) any instrument made in respect of the mortgage or lease of any land by, to, or with the licensee, proprietor, governors, trustees, committee of management, or resident manager of a private hospital not for or in connection with the acquisition of a private hospital if duty on that instrument would otherwise be payable by that private hospital;

(c) any instrument made by, to, or with the University of Tasmania in respect of the grant, purchase, conveyance, transfer, mortgage, or lease of any land if duty on that instrument would otherwise be payable by the University of Tasmania;

(d) any instrument on which duty would otherwise be payable by a person constituted, established or appointed under an Act or under the Royal prerogative to administer or control any department, business, undertaking or public institution on behalf of the State who is exempted by proclamation from the payment of all duties under this Act;

(e) any instrument in respect of loans made for the purpose of the Farm Water Development Act 1985 ;

(f) any instrument in respect of loans made for the purpose of the King and Flinders Islands (Power) Financial Assistance Act 1984 ;

(g) any instrument in respect of financial assistance made for the purpose of the Rural Adjustment Act 1995 ;

(h) any instrument or transaction to which the Tasmanian Public Finance Corporation is a party;

(i) any agreement made under section 17(2) of the Forest Practices Act 1985 ;

(ia) [Section 227 Subsection (1) amended by No. 60 of 2002, s. 18, Applied:01 Jul 2002] any agreement entered into under Part 5 of the Land Use Planning and Approvals Act 1993 ;

(j) any instrument effecting a purchase of a replacement property or any mortgage in respect of that property to replace affected property purchased by the Crown under section 10(1) of the Rosetta Landslip Act 1992 provided that the agreement to purchase the replacement property is entered into within a period of 12 months immediately after the purchase of that affected property by the Crown;

(ja) [Section 227 Subsection (1) amended by No. 121 of 2001, s. 23, Applied:17 Dec 2001] a duplicate instrument required under the Land Titles Act 1980 , if the original instrument or a copy of the original instrument has been duly stamped;

(k) any permit, licence, pipeline licence or access authority within the meaning of the Petroleum (Submerged Lands) Act 1982 , any instrument effecting the transfer of such a licence or authority or any instrument relating to any legal or equitable interest in such a licence or authority;

(l) any instrument for effecting a surrender of any land to the Crown.

(2)  A person who is liable to pay duty in respect of any instrument or transaction is exempted from the payment of the duty if –

(a) the instrument or transaction relates to any action, matter or proceeding in respect of which legal aid is provided under section 51 of the Legal Aid Commission Act 1990 ; and

(b) the person was eligible to receive legal assistance under such a scheme.

227A.   Mortgage-backed securities

[Section 227A Inserted by No. 121 of 2001, s. 24, Applied:01 Jul 2001]

(1)  Duty under this Act is not chargeable in respect of a mortgage over the interest of a person in a pool of mortgages relating to debt securities that are mortgage-backed securities issued by the person to secure the repayment of financial accommodation provided to the person.

(2)  Duty under this Act is not chargeable in respect of a mortgage of a mortgage, a pool of mortgages or part of a pool of mortgages in connection with creating, issuing, marketing or securing a mortgage-backed security.

(3)  Duty under this Act is not chargeable in respect of –

(a) the issue or making of a mortgage-backed security; or

(b) the transfer or assignment of, or other dealing with, a mortgage-backed security; or

(c) the discharge, cancellation or termination of a mortgage-backed security.

(4)  Duty under this Act is not chargeable in respect of a mortgage of a mortgage, a pool of mortgages or part of a pool of mortgages for the purpose of creating, issuing, marketing or securing a mortgage-backed security –

(a) to a person entitled to a mortgage-backed security or a trustee or agent for such a person; or

(b) by or to a person who issues, makes or endorses a mortgage-backed security; or

(c) to a person who provides security (whether as a guarantor, surety or otherwise) to a person entitled to a mortgage-backed security or a trustee or agent for such a person –

if the mortgage is executed on or after 1 July 2001.

227B.   Instruments issued for purpose of creating, issuing or marketing mortgage-backed securities

[Section 227B Inserted by No. 121 of 2001, s. 24, Applied:01 Jul 2001] Duty under this Act is not chargeable on an instrument that, in the opinion of the Commissioner, was executed for the purpose of creating, issuing or marketing mortgage-backed securities.

227C.   Loan-backed securities

[Section 227C Inserted by No. 121 of 2001, s. 24, Applied:01 Jul 2001]

(1)  Duty is not chargeable in respect of an instrument that is, or effects, any of the following:

(a) the issue or making of a loan-backed security;

(b) the transfer or assignment of, or other dealing in, a loan-backed security;

(c) an instrument that, in the Commissioner's opinion, was executed for the purpose of creating, issuing or marketing loan-backed securities;

(d) a mortgage over the interest of a person in a pool of loans, being a mortgage relating to loan-backed securities issued by the person to secure the repayment of financial accommodation provided to the person;

(e) a policy of insurance covering any or all assets in a pool of loans acquired or held for the purpose of issuing loan-backed securities, but only so far as the instrument relates to loan-backed securities.

Chapter 11 - Miscellaneous

PART 1 - Stamping instruments

228.   Provision of stamps

The Commissioner may provide stamps or such other equipment as may be required for –

(a) stamping instruments; or

(b) otherwise denoting the payment of duty –

in accordance with the provisions of this Act.

229.   Limitation on use of designated stamps

(1)  A stamp that by its terms is limited to an instrument of a specified kind must not be used for an instrument of a different kind.

Penalty:  Fine not exceeding 100 penalty units.

(2)  An instrument of a specified kind for which a particular stamp is specified is taken not to be duly stamped unless it is stamped with the stamp so specified.

230.   Form of stamps to be used

(1)  An instrument that is required to be stamped by this Act is to be stamped by means of an impressed stamp.

(2)  Another form of stamping may be used if its use is authorised by this Act or the Commissioner.

231.   Stamping of instruments

[Section 231 Substituted by No. 36 of 2004, s. 15, Applied:01 Dec 2004]

(1)  The Commissioner must stamp an instrument in respect of which duty is chargeable under this Act, or that effects or evidences a dutiable transaction, and that has been lodged for stamping with the Commissioner if the duty, and any interest or penalty tax under Part 5 of the Taxation Administration Act 1997 , is paid in full.

(2)  If this Act provides that no duty is chargeable on an instrument, the Commissioner may endorse it as he or she sees fit.

232.   When is an instrument duly stamped?

An instrument is duly stamped if it is stamped in accordance with this Act or section 53(1) of the Taxation Administration Act 1997 .

233.   Adhesive stamps

(1)  An adhesive stamp may be used to stamp the following instruments:

(a) a superannuation instrument to which section 44 applies;

(b) [Section 233 Subsection (1) amended by No. 36 of 2004, s. 16, Applied:01 Dec 2004] .  .  .  .  .  .  .  .  

(c) [Section 233 Subsection (1) amended by No. 36 of 2004, s. 16, Applied:01 Dec 2004] .  .  .  .  .  .  .  .  

(d) any other instrument for which, under a taxation law within the meaning of the Taxation Administration Act 1997 , tax may be denoted by use of an adhesive stamp.

(2)  An instrument that may be stamped by use of an adhesive stamp is not duly stamped unless –

(a) an adhesive stamp for the appropriate amount of duty is attached to the instrument; and

(b) the adhesive stamp is cancelled by marking the date of its cancellation on its face in such a way as to render it incapable of being used for any other instrument.

(3)  An adhesive stamp that has been attached to an instrument and cancelled must not be removed from the instrument except by the Commissioner after an application for a refund of the duty denoted by the stamp has been approved.

Penalty:  Fine not exceeding 100 penalty units.

234.   Licences to deal in stamps

(1)  The Commissioner may, on such terms and conditions as are determined by the Commissioner, grant a licence to a person to sell stamps.

(2)  The licence must include the name and address of the licensee.

(3)  The Commissioner may sell stamps to a licensee at such commission discount as may be determined by the Commissioner.

(4)  The Commissioner may cancel a licence granted under this section at any time by giving notice of the cancellation to the licensee.

(5)  A person who is not licensed under this section must not sell or deal in stamps.

Penalty:  Fine not exceeding 100 penalty units.

235.   Refunds – spoiled and unused stamps

(1)  A person may apply to the Commissioner for a refund of the value of adhesive stamps that have become spoiled or useless.

(2)  The spoiled or useless stamps must be produced to the Commissioner.

(3)  If an adhesive stamp is erroneously placed on a document, an application for a refund may be made as if the stamp were spoiled.

236.   Reassessments – failed instruments

(1)  An instrument that fails in its intended operation and becomes useless is not chargeable with duty under this Act.

(2)  The Commissioner must make a reassessment of duty in respect of such an instrument if an application for a reassessment is made within –

(a) 3 years after the initial assessment; or

(b) [Section 236 Subsection (2) amended by No. 60 of 2002, s. 19, Applied:01 Jul 2002] 12 months after the instrument has failed; or

(c) [Section 236 Subsection (2) amended by No. 60 of 2002, s. 19, Applied:01 Jul 2002] 3 years after the payment of duty pursuant to a special arrangement for the lodging of returns and payment of tax under Part 6 of the Taxation Administration Act 1997  –

whichever is the later.

(3)  The instrument in respect of which the application is made must be produced to the Commissioner unless the Commissioner dispenses with its production.

237.   Instruments to be separately charged with duty in certain cases

An instrument that contains or relates to several distinct matters for which different duties are chargeable under this Act is to be separately and distinctly charged with duty in respect of each such matter, as if each matter were expressed in a separate instrument.

238.   Execution of instruments

(1)  For the purposes of this Act, an instrument is taken to be first executed the first time that it is signed and sealed, or signed (as the case may be) by any party to it.

(2)  However, a contract made by acceptance of an offer contained in an instrument is taken to be first executed when the offer is accepted.

(3)  If an instrument is ineffective by reason of a failure of the necessary parties to execute it, a refund may be made of any money paid for stamping.

239.   Stamping of instruments after execution

(1)  Except where otherwise expressly provided by this or another Act, a person liable with respect to any instrument chargeable with duty or any dutiable transaction must cause the instrument, or an instrument that effects or evidences the transaction, to be duly stamped or, in accordance with the provisions of this Act, marked "interim stamp only" within 6 months after it was first executed.

Penalty:  Fine not exceeding 100 penalty units.

(2)  For the purposes of this section, a written statement that is required to be stamped is taken to be first executed when the transaction to which the statement relates occurs.

240.   Stamping taken to constitute an assessment

For the purposes of this Act, the stamping of an instrument (excluding a return) by the Commissioner is taken to be evidence of an assessment of the duty payable under this Act in respect of the instrument.

241.   Copies of instruments

(1)  A copy of an original instrument is chargeable with duty as if it had been executed in the same way as the original instrument and had been first executed at the same time as the original instrument unless the Commissioner is satisfied –

(a) that the original instrument has been duly stamped; or

(b) that a copy of the original instrument has been duly stamped in accordance with this section.

(2)  If a copy of an original instrument is duly stamped in accordance with the section, the original instrument is taken to be duly stamped.

(3)  In this section –

copy of an original instrument means an unexecuted instrument in which, in the Commissioner's opinion, the matter contained in the original instrument is wholly or substantially reproduced, whether or not the matter reproduced has the same appearance as the matter contained in the original instrument, but does not include a replica within the meaning of section 220 ;

original instrument means an instrument that is chargeable with duty otherwise than under this section.

242.   Calculation of time

(1)  This section applies to the calculation of a period of time for the purpose of determining when the payment of duty is due under this Act.

(2)  A month is taken to be a period commencing at the beginning of a day of one of the 12 named months (within the meaning of the Acts Interpretation Act 1931 ) and ending –

(a) at the end of the corresponding day of the next named month; or

(b) if there is no such corresponding day, at the end of the next named month.

(3)  A period of 2 or more months is taken to be a period commencing at the beginning of a day of one of the 12 named months (within the meaning of the Acts Interpretation Act 1931 ) and ending –

(a) at the end of the corresponding day of the last named month within the period; or

(b) if there is no such corresponding day, at the end of that named month.

(4)  Section 29 (except subsection (1) ) of the Acts Interpretation Act 1931 applies to the calculation of a period of time to which this section applies.

PART 2 - Enforcement

243.   Registration of instruments

[Section 243 Substituted by No. 60 of 2002, s. 20, Applied:01 Jul 2002] A person must not register, record, enrol or accept for any purpose an instrument that effects in whole or in part a dutiable transaction or an instrument chargeable with duty unless –

(a) notwithstanding a provision of any other Act, it is duly stamped; or

(b) it is endorsed by the Commissioner or in a manner approved by the Commissioner.

Penalty:  Fine not exceeding 100 penalty units.

244.   

[Section 244 Repealed by No. 24 of 2002, s. 26, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

245.   

[Section 245 Repealed by No. 24 of 2002, s. 26, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

246.   Receipt of instruments in evidence

(1)  An instrument that effects a dutiable transaction or is chargeable with duty under this Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless –

(a) it is duly stamped; or

(b) it is endorsed by the Commissioner or in a manner approved by the Commissioner.

(2)  A court or tribunal may admit in evidence an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, and that does not comply with subsection (1)  –

(a) if the instrument is after its admission transmitted to the Commissioner in accordance with arrangements approved by the court or tribunal; or

(b) if (where the person who produces the instrument is not the person liable to pay the duty) the name and address of the person so liable is forwarded, together with the instrument, to the Commissioner in accordance with arrangements approved by the court or tribunal.

(3)  A court or tribunal may admit in evidence an unexecuted copy of an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, if the court or tribunal is satisfied that –

(a) the instrument of which it is a copy is duly stamped, or is endorsed in a manner approved by the Commissioner; or

(b) the copy is duly stamped under section 241 .

247.   Valuation of property

(1)  The Commissioner may require a person who is liable to duty determined with reference to the value of property to provide a declaration by a competent valuer as to the unencumbered value of the property or to provide such other evidence of that value as the Commissioner thinks fit.

(2)  The Commissioner may assess duty in accordance with the value so declared.

(3)  The Commissioner may have property valued if not satisfied with the value so declared and may assess duty on the basis of the valuation.

(4)  The Commissioner may recover the cost of obtaining a value under this section from the dutiable person.

248.   Assessment where consideration inadequate

(1)  If the Commissioner is of the opinion that the consideration shown in an agreement for the sale, transfer or exchange of any real property (or an interest in real property) is inadequate with respect to the value of that real property or interest, the Commissioner may assess the duty payable on the agreement or other instrument by treating the unencumbered value of the relevant real property determined in accordance with subsection (2) as the dutiable value for the sale, transfer or exchange of that property.

(2)  [Section 248 Subsection (2) amended by No. 102 of 2001, Sched. 2, Applied:28 Jun 2002] The unencumbered value of the relevant real property is the value calculated by multiplying the capital value of the real property as determined under the Valuation of Land Act 2001 by the last adjustment factor determined by the Valuer-General before the date of the agreement, transfer, assignment or other instrument or dealing relating to that real property.

(3)  The Commissioner may assess the duty payable on the unencumbered value of the relevant real property determined by the Valuer-General as at the date on which the agreement, transfer, assignment or other instrument was made if –

(a) the Commissioner is unable to determine the value of real property as provided by subsection (2) ; or

(b) a party to the agreement, transfer, assignment or similar instrument so requests.

(4)  If the Valuer-General determines the unencumbered value of relevant real property for the purpose of subsection (3) and charges the Commissioner a fee for that determination, the Commissioner may recover that fee from the person who is liable to pay duty in respect of any instrument referred to in this section.

249.   Ascertainment of value of certain interests

If it is necessary for the purpose of assessing duty under this Act to ascertain the value of –

(a) any estate or annuity or interest for the life of any person; or

(b) any estate or annuity or interest determinable on or subject to any contingency or the happening of any event; or

(c) any estate or annuity or interest in remainder expectant on the death of any person or expectant on or subject to any contingency or the happening of any event –

regard may be had in ascertaining the value of any such property to the death of the person having the life estate or annuity or interest or the happening of the contingency or event at any time before the assessment of duty is actually made.

250.   Impounding of instruments

(1)  The Commissioner may impound any instrument that ought to be but is not stamped or is insufficiently stamped.

(2)  The Commissioner may retain any impounded instrument until the duty or any interest or penalty tax, or all such amounts, have been paid.

PART 3 - Miscellaneous

251.   Application of Act

(1)  [Section 251 Subsection (1) amended by No. 60 of 2002, s. 21, Applied:01 Jul 2002] This Act does not require a servant or agent of the Crown, acting as such, to pay any duty imposed under this Act.

(2)  For the purpose of subsection (1) , a Government Business Enterprise, within the meaning of the Government Business Enterprises Act 1995  –

(a) is not the Crown; and

(b) is not taken to be acting on behalf of the Crown only because it is a Government Business Enterprise.

252.   Loans to pay duty on certain instruments

(1)  [Section 252 Subsection (1) amended by No. 121 of 2001, s. 25, Applied:17 Dec 2001] A person may apply in writing to the Commissioner for a loan to pay duty on any instrument dutiable under Chapter 2 , 6 or 9 that is made to, by or with that person in respect of land purchased or money borrowed to finance the purchase of that land if –

(a) a building intended for use as a single dwelling is constructed on that land that is, or will be, the first to be established as a residence by that person or by that person jointly with another person (whether in this State or elsewhere) on land purchased or held in an estate in fee simple or under a lease that provides a reasonable expectation of occupation for the remainder of the person's life; and

(b) the building is, or will be, used as that person's usual place of residence and is not being, or will not be, used as a means of providing a source of income; and

(c) the value of that land, including the building, does not exceed $120 000.

(2)  For the purpose of subsection (1)(c) , the value of land is whichever is the greater of the following:

(a) the purchase price paid and the value of chattels included in that sale of that land;

(b) the capital value of the land determined by the Valuer-General as at the date on which the land was purchased together with the value of any chattels included in the purchase of the land as determined by a person considered by the Commissioner to be competent to value those chattels.

(3)  The Commissioner may require an applicant to furnish any evidence the Commissioner considers necessary to satisfy the Commissioner that the applicant is entitled to obtain the loan.

(4)  The Commissioner, if satisfied that an applicant is entitled under subsection (1) to obtain a loan, may make a loan to the applicant of an amount equal to the amount of duty payable on any relevant instrument if the applicant enters into an agreement with the Commissioner under section 253 .

(5)  Except as provided in section 253(2) , a loan is not subject to the payment of interest.

253.   Agreements relating to loans

(1)  An agreement relating to a loan referred to in section 252 is –

(a) to provide that –

(i) the amount of the loan is to be repaid to the Commissioner by instalments of any amount specified in the agreement over a period of 2 years commencing on the date of the agreement; and

(ii) the instalments are payable at the intervals specified in the agreement; and

(b) subject to any other terms and conditions the Commissioner thinks fit and are specified in the agreement.

(2)  Without limiting the generality of subsection (1)(b) , an agreement may be subject to a condition that if a person fails to pay an instalment by the due date the person is liable to pay to the Commissioner, within the period specified in the agreement, interest on the instalment at the interest rate specified in section 35 of the Taxation Administration Act 1997 .

(3)  Duty is not payable in respect of the agreement.

(4)  If a person fails to comply with a term or condition of the agreement –

(a) the agreement ceases to have effect; and

(b) the whole of the loan, or the balance of the loan outstanding, on the agreement and any interest owing under the agreement become payable immediately by that person to the Commissioner and are recoverable as a debt due to the Crown.

(5)  Any loan made by the Commissioner is to be paid out of the Consolidated Fund, which, to the necessary extent, is appropriated accordingly.

254.   Recognised stock exchanges

The Minister, by order published in the Gazette, may declare a stock exchange to be a recognised stock exchange for the purpose of this Act.

255.   Duty paid under former Act

If an assessment or reassessment of duty under this Act is required to take into consideration another amount of duty paid, a reference in this Act to duty includes a reference to duty within the meaning of the former Act that has been paid in accordance with that Act.

256.   Stamping under former Act

An instrument is duly stamped for the purposes of this Act if, immediately before the commencement day, it was duly stamped for the purposes of the former Act.

257.   Regulations

(1)  The Governor may make regulations for the purpose of this Act.

(2)  Regulations may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the regulations.

(3)  The Governor may make regulations of a savings or transitional nature consequent on the enactment of this Act;

(4)  Regulations under subsection (3) may take effect from the commencement of this Act or a later day.

258.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Treasurer; and

(b) the department responsible to the Treasurer in relation to the administration of this Act is the Department of Treasury and Finance.

259.   Savings and transitional provisions

The provisions in Schedule 1 have effect.

260.   

See Schedule 2 .

261.    Stamp Duties Act 1931 repealed

The Stamp Duties Act 1931 is repealed.

262.    Stamp Duties Regulations 1998 rescinded

The Stamp Duties Regulations 1998 are rescinded.

SCHEDULE 1 - Savings and transitional provisions

Section 259

1.   Interpretation

In this Schedule –

commencement day means the day on which this Act commences;

former Act means the Stamp Duties Act 1931 .

2.   Provisions relating to dutiable property

(1) Section 22 extends to dutiable transactions at least one of which occurred before the commencement day and at least one of which occurred on or after the commencement day if –

(a) they occurred within 12 months; and

(b) the other provisions of that section are satisfied.

(2) Section 40 extends to –

(a) a transfer of property that is dutiable property to a trustee; and

(b) the payment of duty on that transfer –

before the commencement day if the transfer back to the transferor occurs on or after that day.

(3) Without limiting section 255  –

(a) the reference in section 41(2)(a)(i) to duty charged under this Act includes a reference to duty charged under the former Act; and

(b) section 41(3) does not apply if the Commissioner is satisfied that any change in beneficiaries occurred before the commencement day.

(4) Section 33 extends to an agreement that was entered into before the commencement day and that was rescinded or annulled on or after that day.

(5) Section 56(3) extends to a payment of ad valorem duty made before the commencement day under the former Act.

3.   Provisions relating to certain transactions treated as transfers

(1) In section 71  –

(a) a reference to a period of 3 years is a reference to any such period starting before the commencement day and ending on or after the commencement day; and

(b) a reference to duty paid under this Act includes a reference to duty paid under the former Act; and

(c) a reference to duty paid under that section includes a reference to duty paid under Division 1 of Part IV of the former Act.

(2) An interest acquired before the commencement day in a land holding corporation in which the unencumbered value of the real property under section 35(1)(b) of the former Act was less than $1 million at the date of the relevant acquisition is to be disregarded for the purpose of calculating duty under this Act.

4.   [Schedule 1 Amended by No. 24 of 2002, s. 27, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

5.   [Schedule 1 Amended by No. 121 of 2001, s. 26, Applied:17 Dec 2001] [Schedule 1 Amended by No. 24 of 2002, s. 27, Applied:01 Jul 2002] .  .  .  .  .  .  .  .  

6.   Provisions relating to mortgages

(1) The duty charged by Chapter 6 is charged on an advance or a further advance made on or after the commencement day on a mortgage first executed before the commencement day to the extent that the amount advanced exceeds the amount to which the mortgage has been stamped to secure under the former Act.

(2) A mortgage duly stamped, endorsed exempt or not chargeable with duty under the former Act immediately before the commencement day is, on that day, taken to be duly stamped under this Act.

(3) A mortgage that is not duly stamped under the former Act immediately before the commencement day is, on that day, taken to be chargeable with duty under Chapter 6 .

(4) [Schedule 1 Amended by No. 121 of 2001, s. 26, Applied:17 Dec 2001] Despite subclause (3) , if –

(a) an advance was made under a mortgage over property partly within and partly outside Tasmania before the commencement day; and

(b) the mortgage is not duly stamped under the former Act before that day –

duty on the mortgage is assessable in accordance with item 3(f) of Schedule 4 to the former Act.

7.   Provisions relating to insurance

(1) A person who, immediately before the commencement day, is a person approved under section 12A of the former Act is, on that day, taken to be registered as an insurer.

(2) A policy of life insurance stamped under item 33 of Schedule 2 to the former Act is not chargeable with duty under Chapter 7 .

8.   Provision relating to motor vehicle registration

A certificate of exemption issued under the former Act remains in force until 4 months after the commencement day.

9.   Provision relating to miscellaneous matters

Section 236 extends to an application for a refund of duty paid under the former Act before the commencement day.

10.   Stamping under former Act

(1) Section 15 of the former Act applies to an instrument first executed but not stamped or insufficiently stamped before the commencement day.

(2) Section 70(3) of the former Act applies to an agreement for the sale of a business or a contract of sale first executed but not stamped or insufficiently stamped before the commencement day.

11.   Contracts of sale

Section 70(10) of the former Act applies to a contract for the sale, conveyance or transfer of land that is executed before the commencement day.

12.   Objections

An objection made under section 21 of the former Act and not determined before the commencement day is, on and after that day, to be determined under the former Act.

13.   Appeals

An appeal made under section 22 of the former Act and not determined before the commencement day is, on and after that day, to be determined under the former Act.

14.   Approved persons

A person who, immediately before the commencement day, was a person approved under section 12A of the former Act is, on that day, taken to be an approved person under Division 2 of Part 6 of the Taxation Administration Act 1997 .

15.   Payment of duty

Any arrangement for the payment of duty made under the former Act before the commencement day and not discharged before that day continues on and after that day until the obligation to pay is discharged.

16.   Obligation to pay duty

(1) Any obligation to pay duty under the former Act in force immediately before the commencement day continues on and after that day until it is discharged.

(2) The amount of duty payable in respect of an obligation referred to in subclause (1) is to be calculated, where applicable, in accordance with Schedule 4 to the former Act as if that Act had not been repealed.

17.   Authorised officer

A person who, immediately before the commencement day was an authorised officer under Division 3A of Part III of the former Act is, on that day, taken to be an authorised officer under Part 2 of the Taxation Administration Act 1997 .

18.   Powers of Commissioner and authorised officers

(1) The Commissioner may exercise any power referred to in Division IA or Division 4 of Part III of the former Act in relation to any obligation referred to in clause 16 as if that Act had not been repealed.

(2) An authorised officer referred to in clause 17 may exercise any power referred to in Division 3A of Part III of the former Act in relation to any obligation referred to in clause 16 as if that Act had not been repealed.

SCHEDULE 2 - Consequential Amendments

The amendments effected by Section 260 and this Schedule have been incorporated into the authorised version of the appropriate Acts.