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LAND TAX ACT 1936 - SECT 5

5—Exemption or partial exemption of certain land from land tax

        (1)         Land is wholly exempt from land tax under this section if—

            (a)         proper grounds for the exemption exist; and

            (b)         such an exemption has been granted, and remains in force, under this section.

        (2)         Land is partially exempt from land tax under this section if—

            (a)         proper grounds for the partial exemption exist; and

            (b)         a partial exemption has been granted, and remains in force, under this section.

        (3)         An owner of land may apply, in a form approved by the Commissioner, for an exemption or partial exemption from land tax.

        (4)         A person must not make any false or misleading statement or representation in an application made, or purporting to be made, under subsection (3).

Maximum penalty: $10 000.

        (5)         The Commissioner may, if satisfied that proper grounds exist for doing so, wholly or partially exempt land from land tax (whether or not an application for exemption has been made).

        (6)         The Commissioner must, on exempting land wholly or partially from land tax under this section, give notice to an owner of the land—

            (a)         stating the day (which may be antecedent or subsequent to the date on which the exemption is granted) as from which the exemption is to be effective; and

            (b)         stating the extent of the exemption; and

            (c)         setting out the grounds on which the exemption is granted.

        (7)         If the factual basis of an exemption as stated in a notice under subsection (6) is wrong or inaccurate, the owner to whom the notice is given must, within 21 days after receipt of the notice, notify the Commissioner of the error or inaccuracy.

Maximum penalty: $5 000.

Expiation fee: $315.

        (8)         If—

            (a)         land is exempted wholly or partially from land tax under this section; and

            (b)         circumstances change so that—

                  (i)         proper grounds for an exemption cease to exist; or

                  (ii)         proper grounds for an exemption continue to exist but a lesser exemption than the one actually given,

the owner must forthwith inform the Commissioner in writing of that fact and, whether or not the Commissioner is so informed, the land will cease to be exempt from land tax, or the extent of the exemption will be reduced (as the case requires).

        (9)         An owner of land who fails to comply with an obligation under subsection (8) is guilty of an offence.

Maximum penalty: $5 000.

Expiation fee: $315.

        (10)         Proper grounds for exempting land from land tax under this section exist as follows:

            (a)         land may be wholly exempted from land tax if—

                  (i)         the land is owned by a natural person and constitutes his or her principal place of residence (whether or not he or she is the sole owner of the land); and

                  (ii)         the buildings on the land have a predominantly residential character; and

                  (iii)         no part of the land is used for a business or commercial purpose (other than the business of primary production) or the part of the land so used is less than 25% of the total floor area of all buildings on the land;

            (ab)         land may be wholly exempted from land tax if—

                  (i)         the land is owned by a natural person (whether or not he or she is the sole owner of the land); and

                  (ii)         any buildings on the land of a predominantly residential character are uninhabitable; and

                  (iii)         the Commissioner is satisfied—

                        (A)         that the person has ceased to occupy any building on the land of a predominantly residential character because it has been destroyed or rendered uninhabitable by an occurrence for which the person is not responsible (whether directly or indirectly) or which resulted from an accident; and

                        (B)         that any such building constituted the person's principal place of residence immediately before the date on which the building was destroyed or rendered uninhabitable; and

                        (C)         that the person intends to repair or rebuild the building within a period of 3 years from the date on which the building was destroyed or rendered uninhabitable; and

                        (D)         that the buildings on the land will, after the completion of building work, have a predominantly residential character; and

                        (E)         that the person intends to occupy the land as his or her principal place of residence after the completion of the building work; and

                  (iv)         the person is not receiving an exemption from land tax under another provision of this subsection in relation to other land that constitutes the person's principal place of residence;

            (ac)         subject to this section, land may be wholly exempted from land tax if—

                  (i)         the land is owned by a natural person (whether or not he or she is the sole owner of the land) who has ceased to occupy the land; and

                  (ii)         the buildings on the land immediately before the person ceased to occupy the land had a predominantly residential character; and

                  (iii)         no part of the land is used for a business or commercial purpose (other than the business of primary production) or the part of the land so used is less than 25% of the total floor area of all buildings on the land; and

                  (iv)         the Commissioner is satisfied—

                        (A)         that the person has ceased to occupy the land as his or her principal place of residence because a building on the land is being renovated or rebuilt; and

                        (B)         that the buildings on the land will, after the completion of the renovation or rebuilding, have a predominantly residential character; and

                        (C)         that the person intends to resume occupation of the land as his or her principal place of residence when the renovation or rebuilding work is complete (or is completed to a suitable stage); and

                  (v)         the person is not receiving an exemption from land tax under another provision of this subsection in relation to other land that constitutes the person's principal place of residence;

            (ad)         subject to this section, land may be wholly exempted from land tax if—

                  (i)         the land is owned by a natural person (whether or not he or she is the sole owner of the land); and

                  (ii)         no part of the land is used for a business or commercial purpose (other than the business of primary production) or the part of the land so used is less than 25% of the total floor area of all buildings on the land; and

                  (iii)         the Commissioner is satisfied—

                        (A)         that the person is, or will be, renovating or constructing a building or buildings on the land; and

                        (B)         that the buildings on the land will, after the completion of the renovation or construction work, have a predominantly residential character; and

                        (C)         that the person intends to occupy the land as his or her principal place of residence when the renovation or construction work is completed (or is completed to a suitable stage); and

                  (iv)         the person is not receiving an exemption from land tax under another provision of this subsection in relation to other land that constitutes the person's principal place of residence;

            (b)         land may be partially exempted from land tax by reducing its taxable value in accordance with the scale prescribed in subsection (12) if—

                  (i)         the land is owned by a natural person and constitutes his or her principal place of residence (whether or not he or she is the sole owner of the land); and

                  (ii)         the buildings on the land have a predominantly residential character; and

                  (iii)         a part of the land of 25% or more but not more than 75% of the total floor area of all buildings on the land is used for a business or commercial purpose;

            (ba)         land may be wholly exempted from land tax if—

                  (i)         the land is owned by a natural person and constitutes his or her principal place of residence (whether or not he or she is the sole owner of the land); and

                  (ii)         the buildings on the land are used for the purposes of a hotel, motel, set of serviced holiday apartments or other similar accommodation; and

                  (iii)         more than 75% of the total floor area of all buildings on the land is used for the person's principal place of residence;

            (bb)         land may be partially exempted from land tax by reducing its taxable value in accordance with the scale prescribed in subsection (12) if—

                  (i)         the land is owned by a natural person and constitutes his or her principal place of residence (whether or not he or she is the sole owner of the land); and

                  (ii)         the buildings on the land are used for the purposes of a hotel, motel, set of serviced holiday apartments or other similar accommodation; and

                  (iii)         25% or more of the total floor area of all buildings on the land is used for the person's principal place of residence,

(and for the purposes of the scale prescribed in subsection (12), the area used for the hotel, motel, set of serviced holiday apartments or other similar accommodation will be taken to be the area used for business or commercial purposes);

            (c)         land may be wholly exempted from land tax if the land is a supported residential facility within the meaning of the Supported Residential Facilities Act 1992 and is licensed as such under that Act;

            (ca)         land may be wholly exempted from land tax if the whole of the land is used for the provision of residential care by an approved provider;

            (cb)         land may be partially exempted from land tax if part of the land is used for the provision of residential care by an approved provider by reducing its taxable value by an amount equal to the value of that part of the land after applying any principle determined by the Commissioner for the purposes of this paragraph;

            (d)         land may be wholly exempted from land tax if the land constitutes a caravan park;

            (e)         land within a retirement village may be exempted from land tax if—

                  (i)         the land constitutes a residential unit—

                        (A)         occupied, under a residence contract, by a natural person as his or her principal place of residence; or

                        (B)         available for occupation, under a residence contract, by a natural person as his or her principal place of residence and likely to be so occupied at some time during the ensuing 12 months; or

                  (ii)         the land is appurtenant to such a residential unit; or

                  (iii)         the land is a facility provided under the retirement village scheme for the exclusive use of residents (and their guests);

            (f)         land within a retired persons' relocatable home park may be exempted from land tax if—

                  (i)         the land constitutes the site for a relocatable home and—

                        (A)         there is a relocatable home on the site owned by a natural person and occupied by the natural person as his or her principal place of residence; or

                        (B)         it is likely that within the ensuing 12 months there will be a relocatable home on the site owned by a natural person and occupied by the natural person as his or her principal place of residence; or

                  (ii)         the land is appurtenant to such a site; or

                  (iii)         the land is a facility provided by the owner of the land for the exclusive use of residents (and their guests);

            (g)         land used for primary production that is situated within a defined rural area may be wholly exempted from land tax if—

                  (i)         the sole owner is a natural person who is engaged on a substantially full-time basis (either on his or her own behalf or as an employee) in a relevant business; or

                  (ii)         the land is owned jointly or in common by 2 or more natural persons at least 1 of whom is engaged on a substantially full-time basis (either on his or her own behalf or as an employee) in a relevant business and any other owner who is not so engaged is a relative of an owner so engaged; or

                  (iii)         the land is owned solely, jointly or in common by a retired person and the following conditions are satisfied:

                        (A)         the retired person was, prior to his or her retirement, engaged on a substantially full-time basis (either on his or her own behalf or as an employee) in a relevant business; and

                        (B)         the co-owner or co-owners of the land (if any) are relatives of the retired person; and

                        (C)         a close relative of the retired person is currently engaged on a substantially full-time basis (either on his or her own behalf or as an employee) in a relevant business; or

                  (iv)         the land is owned solely or by tenancy in common by the executor of the will, or the administrator of the estate, of a deceased person and the following conditions are satisfied:

                        (A)         the deceased person was, prior to his or her death, engaged on a substantially full-time basis (either on his or her own behalf or as an employee) in a relevant business; and

                        (B)         the co-owner or co-owners of the land (if any) are relatives of the deceased person; and

                        (C)         a close relative of the deceased person is currently engaged on a substantially full-time basis (either on his or her own behalf or as an employee) in a relevant business; or

                  (v)         the land is owned by a company, or by 2 or more companies, or by a company or companies and 1 or more natural persons, and the main business of each owner is a relevant business; or

                  (vi)         the land is owned by a company and 1 of the following conditions is satisfied:

                        (A)         a natural person owns a majority of the issued shares of the company and is engaged on a substantially full-time basis (either on his or her own behalf or as an employee) in a relevant business;

                        (B)         2 or more natural persons own in aggregate a majority of the issued shares of the company and each of them is engaged on a substantially full-time basis (either on his or her own behalf or as an employee) in a relevant business;

                        (C)         2 or more natural persons who are relatives own in aggregate a majority of the issued shares of the company and at least 1 of them is engaged on a substantially full-time basis (either on his or her own behalf or as an employee) in a relevant business;

            (h)         land may be wholly exempted from land tax if—

                  (i)         the land is owned by the trustee of a special disability trust; and

                  (ii)         the Commissioner is satisfied that the land constitutes the principal place of residence of the principal beneficiary of the special disability trust.

        (10a)         Land is not exempt from land tax during a financial year under subsection (10)(ac) or (ad) unless—

            (a)         the Commissioner is satisfied that—

                  (i)         the owner who applied for the exemption occupies the property as his or her principal place of residence for a period of at least 12 months after completion (or completion to a suitable stage) of the renovation, rebuilding or construction work to which the application related; or

                  (ii)         the owner who applied for the exemption intended to so occupy the property when applying for the exemption but there were good reasons why the owner was unable to do so; and

            (b)         the Commissioner is satisfied that no rent or other consideration is paid or payable for occupation by some other person, during the financial year or, in a case where paragraph (a)(i) applies, during the period referred to in paragraph (a)(i).

        (10b)         Land may not be exempted from land tax under subsection (10)(ac) or (ad) for a period that exceeds 2 years unless there are, in the Commissioner's opinion, good reasons to exempt the land for a longer period.

        (10c)         The Commissioner may, on application under this subsection, grant a waiver or refund of land tax paid or payable by or on behalf of an owner of land for a financial year if—

            (a)         proper grounds for exempting the land from land tax under subsection (10)(ac) or (ad) existed for that financial year; and

            (b)         the application is made not more than 5 years after the assessment of the liability to the tax to which the application relates.

        (11)         The regulations may, however, prescribe additional criteria that must be satisfied if land is to be eligible to be exempted wholly or partially from land tax under subsection (10).

        (11a)         For the avoidance of doubt, land may not be exempted from land tax under subsection (10)(ab) for a period that exceeds 3 years.

        (12)         The scale for partial exemption from land tax under subsection (10)(b) or (bb) is as follows:


Area used for business or commercial purpose expressed as a percentage of the total floor area of all buildings on the land

Percentage reduction in taxable value of land

More than 75%

Nil

75%

25%

70% or more but less than 75%

30%

65% or more but less than 70%

35%

60% or more but less than 65%

40%

55% or more but less than 60%

45%

50% or more but less than 55%

50%

45% or more but less than 50%

55%

40% or more but less than 45%

60%

35% or more but less than 40%

65%

30% or more but less than 35%

70%

25% or more but less than 30%

75%

(less than 25%)

(100%)

        (12a)         The Commissioner may, on application under this subsection, grant—

            (a)         a waiver or refund of land tax paid or payable by or on behalf of a trustee of a special disability trust on land for a particular financial year; or

            (b)         a refund of an amount paid by or on behalf of a trustee of a special disability trust as a transferee of land to the transferor of land as an adjustment of land tax paid or payable on the land for the financial year in which settlement takes place,

if the following criteria are satisfied:

            (c)         the land was acquired by the trustee during the course of the financial year;

            (d)         the Commissioner is satisfied that the land constitutes or will constitute the principal place of residence of the principal beneficiary of the special disability trust during the course of the financial year;

            (e)         the application is made not more than 5 years after the assessment of the liability to the tax to which the application relates.

        (13)         In this section—

"approved provider" has the same meaning as in the Aged Care Act 1997 of the Commonwealth;

"close personal relationship" means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—

            (a)         the relationship between a legally married couple; or

            (b)         a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;

Note—

Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.

"close relative"—a person is a close relative of another if—

            (a)         they are spouses or domestic partners; or

            (b)         one is a parent or child of the other; or

            (c)         one is a brother or sister of the other;

"domestic partner"—a person is the domestic partner of a person if he or she lives with the person in a close personal relationship;

"principal beneficiary"—

            (a)         has the meaning given in section 1209M(1) of the Social Security Act, in the case of a special disability trust within the meaning of section 1209L of that Act; or

            (b)         has the meaning given in section 52ZZZWA(1) of the Veterans' Entitlements Act, in the case of a special disability trust within the meaning of section 52ZZZW of that Act;

"relative"—a person is a relative of another if—

            (a)         they are spouses or domestic partners; or

            (b)         one is an ascendant or descendant of the other, or of the other's spouse or domestic partner; or

            (c)         one is a brother or sister of the other or a brother or sister of the other's spouse or domestic partner; or

            (d)         one is an ascendant or descendant of a brother or sister of the other or of the other's spouse or domestic partner;

"relevant business"—a business is a relevant business in relation to land used for primary production that is situated within a defined rural area if—

            (a)         the business is a business of primary production of the type for which the land is used or a business of processing or marketing primary produce; and

            (b)         the land or produce of the land is used to a significant extent for the purposes of that business;

"relocatable home" means a residence that is capable of being moved (in 1 or more sections) from site to site but does not include a caravan, motor home or other moveable structure that can be registered under the Motor Vehicles Act 1959 ;

"residential care" has the same meaning as in the Aged Care Act 1997 of the Commonwealth;

"retired persons' relocatable home park" means land comprising home sites—

            (a)         that are used (or to be used) for the purpose of establishing 2 or more relocatable homes; and

            (b)         over which rights of occupation for that purpose are granted, by lease or licence, predominantly to persons who are over the age of 55 years and have retired from full-time employment;

"Social Security Act" means the Social Security Act 1991 of the Commonwealth;

"special disability trust" means—

            (a)         a special disability trust within the meaning of section 1209L of the Social Security Act; or

            (b)         a special disability trust within the meaning of section 52ZZZW of the Veterans' Entitlements Act;

"spouse"—a person is the spouse of another if they are legally married;

"Veterans' Entitlements Act" means the Veterans' Entitlements Act 1986 of the Commonwealth.



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