Financial Institutions Duty Act 1982

Version No. 044

Financial Institutions Duty Act 1982

No. 9850 of 1982

Version incorporating amendments as at 7 December 2007

table of provisions

SectionPage

1

SectionPage

Part 1—Preliminary

1Short title and commencement

2Taxation Administration

3Definitions

4Further interpretative provision

5Continuing credit contract

6Goods and services

7Short-term dealings

8Receipt of consideration other than money

9Moneys deposited in account or transferred from one
financial institution to another

10Amount credited to creditor's account with debtor

11Exchange of money for money

11ATerm deposit re-investment

12Related corporations

13Declaration of short-term dealer in unofficial market

14Carrying on business

15Act to bind the Crown

PART II—repealed

16, 17ARepealed

Part III—Liability to Duty

17Liability to duty discontinued

18Financial institutions duty

19Exemption where financial institution not registered and
not required to be registered

20Financial institutions duty in respect of certain short-term dealings

21Duty imposed on depositors

21AFinancial institutions duty paid under corresponding applied
law

22Exemption where deposit less than $500 000 p.a. etc.

23Grouping of financial institutions

24Grouping of depositors

24AJoint and several liability of group members

24BTime for payment of duty

24CDeemed payment of duty in certain cases

24DPerson leaving Victoria

Part IV—Exempt Bank Accounts

25Special bank accounts of non-bank financial institutions

26Short-term dealing account of registered short-term money market operator

27Trust fund account

28Credit provider's account

29Local Government account

29ADuration of certificate of approval

30Government Department account

31Cancellation by bank of designation of account

31AOffence where certain payments to exempt accounts

32Audited returns of exempt bank accounts

Part V—Registration and Returns

32AApplication of this Part limited

33Registration of financial institutions

34Repealed69

35Returns by financial institutions

35AReturns by Victorian brokers

36Further returns

37Registration of short-term money market operators

38Returns by registered short-term money market operators

39Further returns

40Registration of persons depositing with unregistered financial institution

41Repealed74

42Returns by depositors

43Further returns by depositor

44Undertaking by financial institutions

Part VI—Collection and Recovery of Duty

45–52Repealed78

53Liquidator to give notice

54Agents for absentee principal winding-up business

55When duty not paid during lifetime

56Payment of duty by executors or administrators

57Recovery of duty paid on behalf of another person

58, 59Repealed

PARTs VII, VIII—repealed

60–73Repealed

Part IX—Miscellaneous

74Repealed84

75Agents and trustees

76Person in receipt or control of money for absentee

77–85ARepealed86

86Regulations

PART X—repealed88

87–106Repealed88

______

SCHEDULE—repealed89

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ENDNOTES

1. General Information

2. Table of Amendments

3. Explanatory Details

1

Version No. 044

Financial Institutions Duty Act 1982

No. 9850 of 1982

Version incorporating amendments as at 7 December 2007

Long Title amended by No. 40/1997 s. 138(Sch. 2 item 7.1).

An Act to impose a Duty upon Financial Institutions and other persons in respect of certain Receipts and for other purposes.

1

Financial Institutions Duty Act 1982
No. 9850 of 1982

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

Part 1—Preliminary

1Short title and commencement

(1)This Act may be cited as the Financial Institutions Duty Act 1982.

(2)Subject to subsections (3), (4), (5) and (6), this Act shall be deemed to have come into operation on 1 December 1982.

(3)Sections 96 and 97 shall come into operation on 1 January 1983.

(4)Section 101 shall come into operation on 1 February 1983.

(5)Section 102 shall come into operation on 1 July 1983.

(6)Section 103 shall come into operation on 1 August 1983.

S. 2
repealed by No. 68/1989 s. 7(a), new s. 2 inserted by No. 40/1997 s. 138(Sch. 2 item 7.2).

2Taxation Administration

s. 2

This Act is to be read together with the Taxation Administration Act 1997 which provides for the administration and enforcement of this Act and other taxation laws.

3Definitions

(1)In this Act, unless the contrary intention appears[1]—

agent includes every person who in Victoria for or on behalf of another person outside Victoria holds or has the management or control of the business of that other person and every person who, by an order of the Commissioner, is declared to be an agent or the sole agent for any other person for the purposes of this Act and on whom notice of that order has been served;

amount financed means—

(a)in relation to a credit sale, the sum of the cash price (less the credit sale deposit if any) and amounts payable under the contract to the credit provider that, if the credit sale were a regulated credit sale within the meaning of the Credit Act 1981, would be required to be stated in accordance with paragraphs (d) to (i) of Clause 1 of Schedule 2 of that Act; and

(b)in relation to a loan, the sum of the amount agreed under the loan to be lent and amounts payable under the loan to the credit provider that, if the loan were a regulated loan within the meaning of that Act, would be required to be stated in accordance with paragraphs (b) to (f) of Clause 1 of Schedule 4 of that Act;

S. 3(1) def. of approved superannu-ation scheme amended by No. 48/1998
s. 5(a).

approved superannuation scheme means—

(a)a scheme of superannuation retirement benefit or pension—

(i)created or arranged by an employer for the benefit of his employees and operated under the terms of an instrument of trust executed by or on behalf of the employer;

(ii)created for the benefit of self-employed persons and operated under an instrument of trust; or

(iii)created for the benefit of employees or self-employed persons—

s. 3

not being a scheme that the Treasurer, having regard to the number of persons (being less than 20) contributing to the scheme, the amount of their contributions, the amounts of the benefits provided for and such other matters as the Treasurer thinks fit, has declared by notice given to the person by whom the scheme is operated that the scheme is not an approved superannuation scheme for the purposes of this Act; or

(b)a scheme of superannuation retirement benefit or pension created and operated by or under any law of the Commonwealth or of a State or Territory;

average daily liability means an amount determined in accordance with section 7 in respect of which financial institutions duty is payable under section 20;

bank means a bank as defined in section 5 of the Banking Act 1959 of the Commonwealth as amended and in force for the time being or a bank constituted under a law of a State;

bill of exchange means an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person or to bearer;

S. 3(1) def. of books amended by No. 119/1994 s. 33(4)(a)(i).

s. 3

books includes any register or other record of information and any accounts or accounting records (within the meaning of the Corporations Law) however compiled, recorded or stored and also includes any other document;

S. 3(1) def. of broker inserted by No. 101/1995 s. 19(1), substituted by No. 103/1998
s. 6.

broker means a person (other than a bank) who is a broker within the meaning of the Business Rules of Australian Stock Exchange Limited;

S. 3(1) def. of broker receipts inserted by No. 101/1995 s. 19(1).

broker receipts means—

(a)receipts and amounts retained or realised (after deduction of any trading losses) in the nature of profits from trading in securities;

(b)dividends received from trading in securities and dividends received on securities held by the broker;

(c)brokerage received or retained (whether from trading in equities, options, futures, fixed interest or any other means);

(d)commissions received or retained;

(e)interest and fees received or retained;

(f)receipts from the sale of capital assets, other than goods, not traded in the ordinary course of the business of the broker;

cash includes cheques;

certificate of deposit includes an interest bearing deposit;

S. 3(1) def. of Commiss-ioner substituted by No. 40/1997 s. 138(Sch. 2 item 7.3(a))

Commissioner means Commissioner of the State Revenue under the Taxation Administration Act 1997;

company includes a body or association (corporate or unincorporate) and a partnership;

s. 3

continuing credit contract means a continuing credit contract within the meaning of section 5;

S. 3(1) def. of corres-ponding State or Territory inserted by No. 101/1995 s. 19(1).

corresponding State or Territory means another State or Territory that is declared by order of the Governor in Council in force under subsection (4) to be a corresponding State or Territory for the purposes of this Act;

credit includes any form of financial accommodation;

credit contract means a credit sale, a loan or a continuing credit contract;

credit provider means a person who provides credit under credit contracts in the course of a business carried on by him in Victoria;

credit provider's account means an account kept by a bank in respect of which a certificate issued under section 28 is in force;

credit sale means a contract for the provision of credit by a credit provider in relation to the supply of goods and services where—

(a)a charge is made for the provision of credit;

(b)the amount payable is not required to be paid within the period of four months after the provision of credit; or

(c)the amount payable may be paid by five or more instalments or by a deposit and four or more instalments;

s. 3

credit sale deposit—

(a)in relation to a credit sale of goods, means an amount that, under the credit sale, was paid or payable on or before the delivery of the goods or, where the delivery is not completed on one day, on or before the commencement of the delivery;

(b)in relation to a credit sale of services, means an amount that, under the credit sale, was paid or payable on or before the commencement of the supply of the services; and

(c)in relation to a credit sale of goods and services, means an amount that, under the contract, was paid or payable on or before the commencement of the delivery or supply of the goods and services;

dealer has the same meaning as in the Securities Industry (Victoria) Code;

dealing has the same meaning as in the Securities Industry (Victoria) Code;

S. 3(1) def. of depositor amended by No. 40/1997 s. 138(Sch. 2 item 7.3(b)).

depositor means a person who is registered, or who is required to apply for registration, under section 40 and, in Part IX, includes a person who has at any time been so registered or required to be so registered;

S. 3(1) def. of Deputy Commiss-ioner substituted by No. 40/1997 s. 138(Sch. 2 item 7.3(c)).

Deputy Commissioner means Deputy Commissioner of State Revenue under the Taxation Administration Act 1997;

dutiable deposit in relation to a depositor means a deposit by the depositor of money in Victoria other than a deposit to which section 21(3) applies;

s. 3

S. 3(1) def. of dutiable receipt amended by No. 101/1995 s. 19(2)(a).

dutiable receipt in relation to a financial institution means a receipt by the financial institution of money in Victoria other than a receipt to which section 18(3) applies and, in relation to a Victorian broker, includes a broker receipt;

S. 3(1) def. of duty repealed by No. 40/1997 s. 138(Sch. 2 item 7.3(d)).

*****

exempt bank account means—

(a)a credit provider's account;

(b)a Government Department account;

(c)a Local Government account;

(d)a short-term dealing account;

(e)a special account; or

(f)a trust fund account;

exempt financial institution means a person who is not a financial institution or is a financial institution that is not a registered financial institution and that has not—

(a)during the preceding twelve months received an amount of money exceeding $5 000 000, other than non-dutiable receipts; or

(b)during the preceding month received an amount of money exceeding $416 666, other than non-dutiable receipts—

and that is not a member of a group within the meaning of section 23 in respect of which the total of the amounts received by the members of the group (other than non-dutiable receipts)—

(c)during the preceding twelve months exceeded $5 000 000; or

s. 3

(d)during the preceding month exceeded $416 666;

S. 3(1) def. of financial institution amended by Nos 55/1987 s. 57(3)(Sch. 5 item 29), 45/1994 s. 42(Sch. item 5.1), 119/1994 s. 33(4)(a)(ii), 101/1995 s. 19(2)(b), 40/1997 s. 138(Sch. 2 item 7.3(e)), 48/1998
s. 4(a).

financial institution means—

(a)a bank;

(b)a person whose sole or principal business activities in Victoria are the borrowing of money and the provision of finance;

(c)a dealer;

(ca)a Victorian broker;

(d)a trustee company;

(e)a credit provider;

(f)a management company within the meaning of section 9 of the Corporations Law or of a corresponding law in force in another State or in a Territory that carries on business in Victoria;

*****

(h)the Treasurer in relation to receipts paid to the credit of the Cash Management Account or the State Development Account in the Trust Fund in the Public Account; and

(i)except in Parts III, IV and V, a person who is a registered short-term money market operator but is not a financial institution by reason of a preceding paragraph of this definition—

s. 3

and, in Part IX includes a person who has, at any time, been a financial institution under this Act but does not in any Part of this Act include—

(j)a corporation the sole or principal business in Victoria of which is the operation of an approved superannuation scheme;

(k)a corporation that is registered under the Life Insurance Act 1945 of the Commonwealth as amended and in force for the time being;

(l)a corporation the sole or principal business in Victoria of which is insurance business as defined by section 3(1) of the Insurance Act 1973 of the Commonwealth as amended and in force for the time being;

(m)a corporation that is a medical benefits organization or a hospital benefits organization registered under the National Health Act 1953 of the Commonwealth as amended and in force for the time being;

(n)a dealer who is not a person referred to in paragraphs (a) or (b) or (d) to (h) and who does not carry on a business of dealing in securities except—

(i)in his capacity as an official receiver or trustee within the meaning of the Bankruptcy Act 1966 of the Commonwealth as amended and in force for the time being; or

(ii)in his capacity as a receiver, as a receiver and manager, or as another person appointed by a court to carry on the business concerned;

s. 3

(o)a dealer, being a corporation that is not a person referred to in paragraphs (a) or (b) or (d) to (h) and that carries on, or holds itself out as carrying on, a business of dealing in debentures of that body corporate but does not carry on a business of dealing in any other securities;

(p)the Treasurer in relation to receipts other than receipts paid to the credit of the Cash Management Account or the State Development Account in the Trust Fund in the Public Account;

(q)Credit Union Services Corporation (Australia) Limited;

(r)Funds Transfer Services (Vic.) Limited;

(s)Building Society Resources Limited; or

(t)a person, or class of persons, that is prescribed as a person to whom, or class of persons to which, this Act does not apply;

S. 3(1) def. of financial institutions duty amended by Nos 119/1994 s. 14(1), 30/1995 s. 4(a), 40/1997 s. 138(Sch. 2 item 7.3(f)).

s. 3

financial institutions duty means financial institutions duty chargeable under section 18, 20 or 21 or an amount payable under section 32(1) or (1A);

financial year means the period of twelve months ending on 30 June;

Government Department account means an account kept by a bank in respect of which a notice given under section 30 is in force;

liquidator means the person who, whether or not appointed as liquidator, is the person required by law to carry out the winding-up of a company;

loan means a contract for the provision of credit by a credit provider to another person in one or more of the following ways—

(a)by paying an amount to or in accordance with the instructions of that other person;

(b)by applying an amount in satisfaction or reduction of an amount owed to him by that other person;

(c)by varying the terms of a contract under which moneys owed to him by that other person are payable;

(d)by deferring the obligation of that other person to pay an amount to him;

s. 3

(e)by taking from that other person a bill of exchange or other negotiable instrument on which the other person (whether alone or with another person) is liable as drawer, acceptor or endorser;

Local Government account means an account kept by a bank in respect of which a certificate issued under section 29 is in force;

money includes a bill of exchange and a promissory note;

month means one of the twelve months of the year;

non-dutiable receipt means a receipt of money of a kind that, if received by a registered financial institution, would not be a dutiable receipt;

pastoral finance company means a person carrying on a business of financing pastoral pursuits or a business of stock or station agents to whom an order in force under section 11 of the Banking Act 1959 of the Commonwealth as amended and in force for the time being applies;

person includes a body or association (corporate or unincorporate) and a partnership;

S. 3(1) def. of premises repealed by No. 40/1997 s. 138(Sch. 2 item 7.3(d)).

*****

prescribed means prescribed by this Act;

promissory note means an unconditional promise in writing made by one person to another, signed by the maker, arranging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person or to bearer;

s. 3

registered financial institution means—

(a)a financial institution that is registered under this Act;

(b)the Treasurer; or

(c)a financial institution that, under section 44, is deemed to be so registered;

registered short-term money market operator means the Treasurer or a person registered by the Commissioner under section 37;

return period in relation to a financial institution, a registered short-term money market operator or a depositor means a period in respect of which the financial institution, registered short-term money market operator or depositor is required to furnish a return under this Act;

S. 3(1) def. of securities amended by No. 40/1997 s. 138(Sch. 2 item 7.3(g)).

securities has the same meaning as in section 9 of the Corporations Law;

share includes stock;

S. 3(1) def. of short-term dealer amended by Nos 10087 s. 3(1)(Sch. 1 item 63), 119/1994 s. 33(4)(a)(iii).

short-term dealer means—

(a)a body corporate that, under section 65(1)(a) of the Corporations Law, is declared, or deemed to be declared, to be an authorized dealer in the short-term money market; or

(b)a body corporate in respect of which a declaration under section 13 is, or is deemed to be, in force;

s. 3

short-term dealing account means an account kept by a bank in respect of which a certificate issued by the Commissioner under section 26 is in force;

special account means an account kept by a bank in respect of which a certificate issued by the Commissioner under section 25 is in force;

this Act includes the regulations;

Treasurer means the Treasurer of Victoria;

S. 3(1) def. of trustee substituted by No. 40/1997 s. 138(Sch. 2 item 7.3(h)).

trustee includes—

(a)a person who is a trustee under an implied or constructive trust;

(b)in relation to a deceased person, an executor of the will, or an administrator of the estate, of the deceased person;

(c)a receiver or manager of the property of a company, or a liquidator of a company for the purpose of its winding up;

(d)a receiver, guardian, committee or manager of the property of a person under a legal or other disability;

(e)a person having possession, control or management of a business or property of a person who is under a legal or other disability;

(f)any person acting in a fiduciary capacity;

S. 3(1) def. of trustee company amended by No. 10168 s. 3.