Victorian Numbered Acts Victorian Numbered ActsFor section 36 of the Duties Act 2000 substitute —
(1) No duty is chargeable under this Chapter in respect of a transfer of dutiable property that is subject to a fixed trust ( "the principal trust" ) to a beneficiary of the trust if—
(a) the duty (if any) charged by this Act in respect of the dutiable transaction that resulted in the dutiable property becoming subject to the principal trust has been paid or the Commissioner is satisfied that the duty will be paid; and
(b) the beneficiary was a beneficiary at the relevant time; and
(c) the transfer is—
(i) to the beneficiary absolutely; or
(ii) to the beneficiary as trustee of another trust all the beneficiaries of which are—
(A) natural persons who were beneficiaries of that other trust at the relevant time; or
(B) a corporation as trustee of a further trust all the beneficiaries of which are natural persons who were beneficiaries of that further trust at the relevant time; and
(d) the dutiable value of the property transferred does not exceed the value of the beneficiary's interest in the principal trust; and
(e) the Commissioner is satisfied that the transfer is not part of a sale or other arrangement under which there exists any consideration for the transfer.
(2) If a beneficiary would be entitled to an exemption from duty under sub-section (1) but for sub-section (1)(d), the beneficiary is entitled to a concession from duty in respect of so much of the dutiable value of the dutiable property that does not exceed the value of the beneficiary's interest in the principal trust.
(3) Nothing in this section limits the application of the exemption in section 34.
(4) A reference in this section to dutiable property becoming or first becoming subject to a trust includes a reference to property from which that dutiable property was derived, by subdivision or consolidation of titles, becoming or first becoming subject to the trust at a time when the transferee was a beneficiary of the trust.
(5) In this section—
"fixed trust" means a trust other than—
(a) a discretionary trust (within the meaning of section 36A); or
(b) a trust to which a unit trust scheme relates; or
(c) a superannuation fund (within the meaning of section 41A);
"relevant time" in relation to dutiable property that is subject to the principal trust, means the time at which the property first became subject to the principal trust.
(1) No duty is chargeable under this Chapter in respect of a transfer of dutiable property that is subject to a discretionary trust ( "the principal trust" ) to a beneficiary of the trust if—
(a) the duty (if any) charged by this Act in respect of the dutiable transaction that resulted in the dutiable property becoming subject to the principal trust has been paid or the Commissioner is satisfied that the duty will be paid; and
(b) the beneficiary—
(i) was a beneficiary at the relevant time; or
(ii) became a beneficiary after the relevant time by reason of—
(A) becoming a spouse or domestic partner of a beneficiary within a class of beneficiary described in the principal trust; or
(B) becoming an adopted child or step child of, or being a lineal descendant of, a beneficiary within a class of beneficiary described in the principal trust; or
(C) being an adopted child, step child or lineal descendant of a person referred to in sub-sub-paragraph (A); and
(c) the transfer is—
(i) to the beneficiary absolutely; or
(ii) to the beneficiary as trustee of another trust of which all the beneficiaries are relevant beneficiaries; and
(d) if—
(i) the
transfer is to the beneficiary absolutely; and
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(ii) the beneficiary is a corporation—
all the shareholders of the corporation are natural persons who were beneficiaries of the principal trust at the relevant time; and
(e) the Commissioner is satisfied that the transfer is not part of a sale or other arrangement under which there exists any consideration for the transfer.
(2) A reference in this section to dutiable property becoming or first becoming subject to a trust includes a reference to property from which that dutiable property was derived, by subdivision or consolidation of titles, becoming or first becoming subject to the trust at a time when the transferee was a beneficiary of the trust.
(3) In this section—
"beneficiary" of a discretionary trust means a person, or a member of a class of person, in whom, by the terms of the trust, the whole or any part of the capital of the trust estate may be vested or remain vested—
(a) in the event of the exercise of a power or discretion in favour of the person (whether or not that power is presently exercisable); or
(b) in the event that a discretion conferred under the trust is not exercised;
"discretionary trust" means a trust under which the vesting of the whole or
any part of the capital of the trust estate—
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(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 in the event that a discretion conferred under the trust is not exercised; or
(c) has occurred but under which the whole or any part of that capital will be divested from the person or persons in whom it is vested if a discretion conferred under the trust is exercised—
but does not include a trust to which a unit trust scheme relates;
"relevant beneficiary" of a trust means—
(a) a natural person who—
(i) was a beneficiary of that trust at the relevant time; or
(ii) became a beneficiary of that trust after the relevant time by reason of—
(A) becoming a spouse or domestic partner of a beneficiary within a class of beneficiary described in the principal trust; or
(B) becoming an adopted child or step child of, or being a lineal descendant of, a beneficiary within a class of beneficiary described in the principal trust; or
(C) being an adopted child, step child or lineal descendant of a person referred to in sub-sub-paragraph (A); or
(b) a corporation as trustee of a further trust, all the beneficiaries of which are persons referred to in paragraph (a);
"relevant time" in relation to dutiable property that is subject to the principal trust, means the time at which the property first became subject to the principal trust.
(1) No duty is chargeable under this Chapter in respect of a transfer of dutiable property that is subject to a unit trust scheme to a unitholder in the scheme if—
(a) the duty (if any) charged by this Act in respect of the dutiable transaction that resulted in the dutiable property becoming subject to the scheme has been paid or the Commissioner is satisfied that the duty will be paid; and
(b) the unitholder was a unitholder
at the relevant time; and
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(c) the dutiable value of the property transferred as a proportion of the net assets of the scheme does not exceed the value of that proportion of the net assets of the scheme represented by the unitholding of the unitholder in the scheme at the relevant time; and
(d) as a result of the transfer, the value of the unitholder's unitholding in the scheme is reduced by the same amount as the dutiable value of the property transferred; and
(e) the Commissioner is satisfied that any duty charged as a result of the occurrence of a dutiable transaction referred to in section 7(1)(b)(vi) in relation to the property has been paid; and
(f) if the unitholder is a corporation, the share ownership, or the interests of persons (within the meaning of section 76(1)), in the unitholder did not change by 50% or more between the relevant time and the time the property was transferred to the unitholder; and
(g) the Commissioner is satisfied that the transfer is not part of a sale or other arrangement under which there exists any consideration for the transfer.
(2) If a unitholder would be entitled to an exemption from duty under sub-section (1) but for sub-section (1)(c), the unitholder is entitled to a concession from duty in respect of that proportion of the dutiable value of the dutiable property that does not exceed that proportion of the net assets of the scheme represented by the unitholding of the unitholder in the scheme at the relevant time.
(3) If a unitholder would be entitled to an exemption from duty under sub-section (1) but for sub-section (1)(f), the unitholder is entitled to a concession from duty calculated by reference to the proportion of shares in the unitholder that have not changed ownership, or the proportion of interests that have not changed, between the relevant time and the time the property was transferred to the unitholder.
(4) A reference in this section to dutiable property becoming or first becoming subject to a unit trust scheme includes a reference to property from which that dutiable property was derived, by subdivision or consolidation of titles, becoming or first becoming subject to the scheme at a time when the unitholder was a unitholder in the scheme.
(5) In this section—
"relevant time" means the time at which the dutiable property first became subject to the scheme.
(1) Despite section 21, the Commissioner is not to treat a transfer as part of a sale or arrangement for the purposes of section 36, 36A or 36B only because, at the time of or immediately after the transfer, the beneficiary or unitholder—
(a) gives a mortgage to secure the same or a greater amount as that outstanding under a mortgage to which the property was subject immediately before the time of the transfer; or
(b) assumes the liabilities under a mortgage to which the property was subject immediately before the time of the transfer—
if the Commissioner is satisfied that the giving of the mortgage or the assumption of liability is not part of a sale or other arrangement designed to take advantage of an exemption or concession under section 36, 36A or 36B (as the case requires).
(2) Despite section 21, in determining, for the purposes of section 36 or 36B, the dutiable value of property transferred to a beneficiary or unitholder, the dutiable value is to be reduced by the value of any mortgage to which the property is subject at or immediately after the time of the transfer if—
(a) the mortgage is given by the beneficiary or unitholder to secure the same or a greater amount as that outstanding under a mortgage to which the property was subject immediately before the time of the transfer, or the liabilities under the mortgage are assumed by the beneficiary or unitholder; and
(b) the Commissioner is satisfied that the giving of the mortgage or the assumption of liability under it is not part of a sale or other arrangement designed to take advantage of an exemption or concession under section 36 or 36B (as the case requires).
(3) Without limiting the ways in which the Commissioner may be satisfied for the purposes of sub-section (1) or (2)(b), the Commissioner will be taken to be satisfied if—
(a) the mortgage was created at or before the time the property became subject to the principal trust or the unit trust scheme (as the case requires); or
(b) the mortgage was part of a genuine re-financing of a mortgage referred to in paragraph (a); or
(c) the mortgage was created to secure borrowings that have been applied to the improvement of the property.'.