On its fourth attempt, the Victorian Government succeeded yesterday in pushing the
Duties Amendment Bill through Parliament.
To win over the minority parties, the Government's proposal to shorten the duty payment and lodgement period to 14 days was withdrawn. The current three month grace period remains intact. The Government also agreed to exclude leases of caravan park sites used as principal residences. This exemption mirrors the previously introduced exclusion for leases of residences in retirement villages.
The issue remains that the new Act oversteps its mark in its attack on leases and trust transactions. The focus will shift to the Commissioner of State Revenue to explain how the new provisions will be administered.
The new Act operates retrospectively from 21 November 2008.
Duties Amendment Act
The Duties Amendment Act makes the following changes to the Victorian Duties Act 2000, effective on 21 November 2008:
Leases and assignments of lease
Transfer duty is imposed on the granting of a lease (or an agreement for lease) of land for which consideration other than rent reserved is payable either in respect of the lease or in respect of a right or option to purchase the land, a right of first refusal in respect of the sale of the land, or any other arrangement by which the lessee or an associate of the lessee obtains any other interest in the land.
'Rent reserved' is rent and other amounts payable for the right to use the land under the lease.
Transfer duty is also imposed on the transfer or assignment of a lease (or an agreement for lease) for which any consideration is payable either in respect of the transfer or assignment or in respect of a right or option to purchase the land, a right of first refusal in respect of the sale of the land, or any other arrangement by which the transferee or an associate of the transferee obtains any other interest in the land.
Leases that are residency rights in retirement villages and leases of caravan park sites used as the lessee's principal place of residence are excluded.
A transaction involving a lease of the kind that is subject to duty is charged with duty calculated on the higher of the non-rent consideration and the value of the land that is subject to the lease. The value of the land is to be determined without regard to the lease or any mortgage or charge on the land.
If duty is paid on the grant, transfer or assignment of a lease of the kind that is subject to duty, no transfer duty is chargeable on the subsequent transfer of the land to the lessee or transferee. The general duty exemptions and concessions have also been extended to include such leases.
Surrenders of dutiable property
Transfer duty is imposed on a surrender of dutiable property. This includes not only a surrender of a lease of the kind that is subject to duty, but also a surrender of any kind of interest in dutiable property (other than a security interest, an option to purchase, or a non-dutiable lease).
Change in beneficial ownership of land
Transfer duty is imposed on any transaction that results in a change in beneficial ownership of dutiable property, including:
- the creation of dutiable property;
- the extinguishment of dutiable property;
- a change in equitable interests in dutiable property;
- dutiable property becoming the subject of a trust; and
- dutiable property ceasing to be the subject of a trust.
The definition of 'dutiable property' includes any kind of interest in dutiable property (other than a security interest, an option to purchase, or a non-dutiable lease).
'Beneficial ownership' includes ownership of dutiable property by a person as a trustee of a trust. This means that a trustee of a trust of dutiable property will be taken to have beneficial ownership of the property.
Transactions that result in a change in beneficial ownership of the dutiable property (or an interest in dutiable property) are charged with duty on the whole of the property rather than on the proportional ownership change in the property.
The
indirect tax specialists at Hall & Wilcox have extensive experience and expertise in this area of tax. To discuss how Hall & Wilcox can assist you, please contact the head of our duties area,
Rodney Richard.
For further information, please contact: