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Australia – September/October 2014 Stamp Duty Developments.

25 November, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Tax

 

WA: Commissioner’s Practice DA 35.0

 
The WA Office of State Revenue has issued Commissioner’s Practice DA 35.0: Duties – Transfers of Western Australian Business Assets, which applies to an agreement for the transfer of dutiable property (other than land or an interest in land) where the liability to duty on the agreement arose on or after 13 October 2014, and the subsequent transfer of dutiable property is not effected, or evidenced, by an instrument in hard copy form.

 
Section 22 of the Duties Act 2008 (WA) (WA Duties Act) provides that the person liable to pay duty on a dutiable transaction must make a transfer duty statement in the approved form within the time provided under section 23 of the WA Duties Act for lodging with the Commissioner unless the transaction is effected, or evidenced, by an instrument in hard copy form.

 
The Commissioner’s Practice states that a taxpayer is not required to make a transfer duty statement for the transfer of dutiable property (other than land or a right in relation to land) where that statement, if made, would be duty endorsed under section 42(1) of the WA Duties Act in conformity with a duty endorsed agreement for the transfer for the same dutiable property. The Commissioner’s Practice also specifies the situations in which a taxpayer is required to make a transfer duty statement and outlines the circumstances where the Commissioner will request a transfer duty statement, namely including where:

 
a) the agreement for transfer provides that the named purchaser is acting on behalf of an undisclosed principal;

 
b) the purchaser named in the agreement for transfer is acting on behalf of any entity to be formed; or

 
c) the Commissioner believes that the transfer of dutiable property may not be in conformity with the preceding agreement for transfer.

 
Where a taxpayer is required to make a transfer duty statement and does not make the statement in the requisite time provided under section 23 of the WA Duties Act, the taxpayer commits an offence and may be subject to a penalty of up to AUD 20k upon conviction. The Commissioner’s Practice took effect on 13 October 2014.

 
WA: Commissioner’s Practice DA 33.0

 
The WA Office of State Revenue has issued DA 33.0: Duties – Transfer of land under bailiff seizure and sale order which outlines how the Commissioner will assess the duty liability relating to the sale of property by a property (seizure and sale) order where a purchaser agrees to assume the liabilities of the vendor.

 
The Commissioner’s Practice states that where the transfer of dutiable property is effected by a property (seizure and sale) order, the instrument effecting the transaction must be lodged regardless of whether the consideration for the transaction is paid or given or is required to be paid or given. A property (seizure and sale order) that is submitted for an assessment of duty should be accompanied by a completed “Duties Document Lodgement and Assessment Form”.

 
The Commissioner’s Practice took effect from 16 September 2014.

 

NSW: State Revenue Legislation Further Amendment Act 2014 (NSW)

 
The State Revenue Legislation Further Amendment Bill 2014 (NSW) has passed the Legislative Council without amendment and received Royal Assent. 

 
The Act amends the Duties Act 1997 (NSW):

 
(a) to prevent avoidance practices by (i) imposing duty on certain transactions involving options to purchase land and (ii) imposing duty on the novation of an agreement for the lease of land in NSW as if it were a transfer of dutiable property;

 
(b) to make further provision for the duty payable on transactions involving self-managed superannuation funds; and

 
(c) to exempt a same owner transfer of registration of a heavy vehicle trailer from registration duty.

 
The Act commenced on the date of Royal Assent, being 23 October 2014, except for the amendments to the Payroll Tax Act 2007 (NSW) which apply broadly from 1 July 2014.

 
NSW: State Revenue Legislation Amendment (Electronic Transactions) Act 2014 (NSW)

 
The State Revenue Legislation Amendment (Electronic Transactions) Bill 2014 (NSW) has passed both the NSW Legislative Assembly and NSW Legislative Council without amendment and received Royal Assent.

 
The Act amends the Duties Act 1997 (NSW) and the Taxation Administration Act 1996 (NSW) to make further provision for the assessment and payment of tax by electronic means. In particular, the Act clarifies that electronic instruments lodged under the Electronic Conveyancing National Law (NSW) are regarded as written instruments for the purposes of the Duties Act 1997(NSW) and provide for the circumstances in which such an instrument is taken to be executed.

 
The Act took effect on 28 October 2014.

 

WA: Taxation Legislation Amendment Bill (No 2) 2014 (WA)

 
The Taxation Legislation Amendment Bill (No 2) 2014 (WA) has been introduced into the WA Legislative Assembly.

 
The Bill proposes, among other matters, to improve the efficacy of the WA Duties Act in two ways.

 
Firstly, the Bill proposes to ensure that certain indirect acquisitions of land made through the purchase of interests in corporations and unit trust schemes are treated in a similar manner to an agreement to acquire or dispose of a direct interest in land. This amendment, if passed, will apply retrospectively from 1 July 2008 (the date the WA Duties Act commenced).

 
Secondly, the Bill proposes to clarify that when valuing dutiable property, information relating to the property is to be regarded as an attribute of the property and not a separate item to which an independent value can be ascribed. As this amendment will not change the current policy surrounding the treatment of information, the amendment is proposed to commence from the day after the Bill receives Royal Assent.

 
TAS: Taxation Legislation (Miscellaneous Amendments) Bill 2014 (Tas)

 
The Taxation Legislation (Miscellaneous Amendments) Bill 2014 (Tas) has passed the Tasmanian Legislative Assembly and now moves to the Legislative Council.

 
The Bill proposes to amend the Duties Act 2001 (Tas) to:

 
(a) expand the exemption for transfers made in accordance with a will, so that a pro rata exemption can be applied in circumstances where a transfer is made partially in accordance with a will;

 
(b) clarify that premiums paid for or in connection with the grant, transfer or surrender of a lease will only be dutiable where a premium exceeding a fixed sum is paid.

 
These amendments are proposed to apply from 22 November 2012 and 21 October 2013 respectively; and

 
(c) clarify that a relative of the transferor includes their spouse or caring partner for the purposes of the intergenerational rural transfer exemption. This amendment is proposed to commence from 21 October 2013.

 

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For further information, please contact:

 

Geoffrey Mann, Partner, Ashurst 
geoffrey.mann@ashurst.com

 

Nika Dharmadasa, Ashurst
nika.dharmadasa@ashurst.com

 

Karen Czarny, Ashurst
karen.czarny@ashurst.com

 

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