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CLAUSE NOTES
Taxation and Related Legislation (Miscellaneous Amendments) Bill 2016
Part 1 – Preliminary
Clause 1 This Act may be cited as the Taxation and Related Legislation (Miscellaneous
Amendments) Act 2016
Clause 2 The Bill is to commence upon Royal Assent, but for Part 3 which will
commence retrospectively from 1 July 2001.
Part 2 – Duties Act 2001 Amended
Clause 3 In this Part, the Duties Act 2001 is referred to as the Principal Act.
Clause 4 Amends section 7 of the Principal Act to include vesting of dutiable property
transactions in the list of dutiable transactions to be treated as transfers, in
accordance with the intentions of the Act.
Clause 5 Amends section 56 of the Principal Act to allow a refund of duty previously
paid on a transfer of matrimonial property consequent upon a marriage
break-down where a financial agreement made under various sections of the
Family Law Act 1975 (Commonwealth) subsequently approves the transfer.
Clause 6 Amends section 56A of the Principal Act to allow a refund of duty previously
paid on a transfer of de facto property consequent upon a de facto relationship
break-down where a financial agreement made under various sections of the
Family Law Act subsequently approves the transfer.
Clause 7 Amends section 248 of the Principal Act which deals with situations where the
Commissioner considers that the consideration in an agreement for the sale,
transfer or exchange of property is inadequate
The amendment allows the Commissioner, upon provision of a valuation from
a taxpayer upon objection, to treat the value of the property identified in that
valuation as the unencumbered value of the property (rather than requiring the
Commissioner to assess duty in accordance with that valuation) or, if not
satisfied with the valuation provided, to obtain a new valuation and treat that
valuation as the unencumbered value of the property.
Section 248 is also amended in a number of places to remedy a drafting
oversight in order to clarify that the provision, which relates to determining the
unencumbered value of land, applies in respect of all dutiable transactions and
not just agreements and other instruments.
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Part 3 – Duties Act 2001 Further Amended
Clause 8 In this Part, the Duties Act 2001 is referred to as the Principal Act.
Clause 9 Inserts section 57AA into the Principal Act to exempt a number of statutory
vesting transactions where a duty liability was never intended. The amendment
exempts: the vesting of dutiable property in a legal personal representative of a
deceased person or under an intestacy under section 12 of the Administration
and Probate Act 1935; the vesting, under the Associations Incorporation Act 1964,
of dutiable property in an incorporated association; the vesting, under the Strata
Titles Act 1998, of common property in a body corporate on the registration of
a strata title plan; and the vesting of dutiable property under section 28 of the
Strata Titles Act 1998 by virtue of the cancellation of a strata plan.
Part 4 – First Home Owner Grant Act 2000 Amended
Clause 10 In this Part, the First Home Owner Grant Act 2000 is referred to as the Principal
Act.
Clause 11 Amends section 13 of the Principal Act to provide that, in the case of a
movable building, the building must be a new moveable building, for example a
building that has not previously used as a place of residence, rather than a used
moveable building, in order to be eligible for a first home owner grant.
Clause 12 Amends section 18 of the Principal Act to provide for an increased grant of
$20 000 for eligible transactions that are entered into between 1 July 2016 and
30 June 2017.
Clause 13 Inserts section 18D of the Principal Act to provide for the conditions of the
$20 000 grant.
The amendment also clarifies that, where a payment of $20 000 is made to an
eligible recipient in anticipation of the Bill receiving Royal Assent, that payment
is taken to be a first home owner grant payment for the purposes of the
Principal Act.
Part 5 – Land Tax Act 2000 Amended
Clause 14 In this Part, the Land Tax Act 2000 is referred to as the Principal Act.
Clause 15 Amends section 38 of the Principal Act to ensure that the special rate of land
tax for land owned by a club or body of persons (where the land is used for
certain sporting activities) is also able to obtain the benefit of the tax-free
threshold available to other land tax payers.
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Part 6 – Payroll Tax Act 2008 Amended
Clause 16 In this Part, the Payroll Tax Act 2008 is referred to as the Principal Act.
Clause 17 In this section the structure of the relevant contractor provisions in section 32
of the Principal Act are amended to be consistent with the approach taken in
harmonised jurisdictions.
The amendments include a new section 32(2A) which provides that an
exemption does not apply if the Commissioner determines that the contract or
arrangement under which the services were supplied was entered into with an
intention either directly or indirectly of avoiding or evading payment of tax. This
rule already applies to some, but not all, of the exemptions.
The amendment also inserts section 32(2B) which denies several of the
relevant contractor exclusions where additional services or work (of a kind not
covered by the relevant exemption) are supplied or performed under the
contract. Further, in response to case law, the relevant contractor exclusion as
it relates to owner-drivers has been tightened to make clear that a contract
under which a person is supplied with services ancillary to the conveyance of
goods by an owner-driver contractor is not an exempt contract if services not
solely for or ancillary to the conveyance of goods are also provided by the
contractor.
These amendments ensure harmonisation with Victoria and New South Wales
in relation to the payroll-tax treatment of owner-driver contracts and
anti-avoidance provisions,
The amendments also repeal the following exemptions from section 32(2)(d):
i. contracts under which services are provided solely for or in relation
to the procurement of persons desiring to be insured, and
ii. contracts under which services are provided for or in relation to the
door-to-door sale of goods solely for domestic purposes.
This amendment replicates that made in New South Wales.
Clause 18 Amends section 80 of the Principal Act to replace references to the previous
payroll tax threshold ($1.1 million per annum) with the current payroll tax
threshold ($1.25 million) for designated group employers.
Clause 19 Amends section 86, which requires employers to register for payroll tax, to
replace redundant references to the previous payroll tax threshold ($19 423
per week) with the current payroll tax threshold ($24 038 per week).
Clause 20 Amends Schedule 2 of the Principal Act (Tasmania-Specific Provisions) to
introduce a five year time limit for refunds of payroll tax which will require an
application for a refund in relation to a financial year to be made within five
years after the most recent payment to which the refund applies was made.
The amendment also enables the Commissioner to offset a refund of payroll
tax under section 83 against any liability of the employer under a taxation law
or other Act of which the Commissioner has general administration.
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Clause 21 Amends Schedule 3 of the Principal Act by introducing a transitional provision
to ensure that the amendments made to section 32 as part of the Taxation and
Related Legislation (Miscellaneous Amendments) Act 2016 only apply from the
commencement date.
The transitional provisions also provide for the new refund provision to be
inserted in Schedule 2 of the Principal Act to apply to payments whether made
before or after the commencement date.
Part 7 –Taxation Administration Act 1997 Amended
Clause 22 In this Part, the Taxation Administration Act 1997 is referred to as the Principal
Act.
Clause 23 Amends section 19 of the Principal Act to extend the standard reassessment
timeframe from three to five years. The amendment will enable the
Commissioner to ordinarily make a reassessment of a tax liability of a taxpayer
up to five years after the initial assessment of the liability.
Clause 24 Amends section 28 of the Principal Act to extend the period in which an
application for a refund of tax can be made, from three to five years, except for
land tax that was paid in instalments under section 13 of the Land Tax Act.
For refunds of land tax paid in instalments under section 13 of the Land Tax
Act, the amendment requires that an application for a refund must be lodged
with the Commissioner within 4 years after the most recent payment in relation
in relation to the refund being sought was made. This will effectively allow
refunds for up to 5 financial years.
The amendment preserves the current requirement that an application for a
refund must be made to the Commissioner in an approved form.
Under the current provisions, an application for a refund must be lodged within
3 years after the relevant payment was made.
Clause 25 Amends section 29 of the Principal Act to extend a taxpayer’s entitlement to a
refund from 3 years to 5 years except for refunds of land tax paid under
section 13 of the Land Tax Act, whereby the amendment reinforces that an
entitlement to a refund relies on an application being lodged within 4 years
after the most recent payment in relation to the refund being sought was made.
Clause 26 Amends section 29A of the Principal Act to insert a provision that enables the
Commissioner to offset interest payments that accompany refunds against
other taxation liabilities of the taxpayer. Section 29A currently requires the
Commissioner to pay interest on an overpayment of tax. The amendment is
consistent with the current approach at section 29 which enables the
Commissioner to offset an overpaid amount against other taxation liabilities of
the taxpayer.
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Clause 27 Amends section 59A of the Principal Act to enable the Commissioner to pay
unfair preference payments (and other payments that constitute voidable
transactions for the purposes of the Corporations Act) to a liquidator.
Currently, when the Commissioner receives a liquidator demand requesting
that the Commissioner remit taxes (previously paid to the Commissioner) to
the liquidator, there is no statutory provision to enable the Commissioner to do
so as the amounts were not “overpaid”.
Clause 28 Amends section 94 of the Principal Act to enable the Commissioner to offset a
refund of an amount overpaid by a taxpayer against other taxation liabilities of
the taxpayer where a taxpayer’s objection to an assessment is upheld, or where
a taxpayer’s objection to a decision other than an assessment is allowed.
The amendment introduces consistency with the approach for refunds under
section 29 where the Commissioner, if satisfied that a person has overpaid an
amount, must refund the overpaid amount or apply the overpaid amount
against other taxation liabilities of the taxpayer.
Clause 29 Amends section 95 of the Principal Act to insert a provision that enables the
Commissioner to offset interest payments that accompany refunds of tax
where a taxpayer’s objection to an assessment is upheld, or where a taxpayer’s
objection to a decision other than an assessment is allowed, against other
taxation liabilities of the taxpayer.
Section 95 currently requires the Commissioner to pay interest on an amount
refunded. The amendment is consistent with the amendment to section 29A at
clause 29.
Clause 30 Amends Schedule 1 of the Principal Act by introducing a transitional provision
to ensure that the amendments made to section 28 (clause 27) and section 29
(clause 29) of the Principal Act as part of the Taxation and Related Legislation
(Miscellaneous Amendments) Act 2016 do not apply to refunds of payments
where an application for refund has already been made before the Act receives
Royal Assent.
Clause 31 This Act will be repealed 365 days after it commences.
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