This compilation was prepared on 13 November 2000
taking into account amendments up to SR 1984 No. 420
[Note: The enabling legislation of this Statutory Rule was repealed by Act No. 118 of 1999]
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
Contents
Page
Part I Preliminary
1 Citation [see Note 1]
2 Parts
3 Repeal
4 Interpretation
Part II Returns
5 Exemption from furnishing returns
6 Where whole estate distributed prior to death
7 Prescribed matters for purposes of section 10 of Act
8 Furnishing of returns required by Commissioner
9 Substantial compliance with form
10 Extension of time
10A Furnishing of returns as directed by Commissioner
11 Copy of will and settlement to be furnished with return
11A Particulars to be furnished with returns
12 Signature to returns
13 When return deemed to be furnished
14 Notice of address
15 Notice of change of address
16 Failure to notify change of address
17 Annotations on returns
Part III Collection and recovery of estate duty
18 How duty may be paid
19 Post office to be agent of remitter
20 Payment by cheque
21 Receipts to be issued
22 Part payment of estate duty
23 Postage to be prepaid
24 Deficient postage
25 Certificate as to service of notice of assessment etc
26 Evidence by affidavit
Part IV Objections and appeals
27 Objections
28 Particulars to be supplied by Commissioner
28A Notice of review
28B Order, place and time of review
28C Conduct of reviews
28D Evidence
28E Decision of a Board
28F Re-opening of reviews
28G Communication to Board
Part V Miscellaneous
29 Service of notices etc
30 Signatures
31 Presumption as to signatures
33 Copies or extracts certified by the Commissioner to be received in evidence
34 Commissioner may specify time in which acts to be done
36 Expenses of witnesses
37 Oath or affirmation for purposes of section 48A
Schedule 1
Schedule 2 Scale of expenses
Notes
Part I Preliminary
1 Citation [see Note 1]
These Regulations may be cited as the Estate Duty Regulations.
2 Parts
These Regulations are divided into Parts, as follows:
Part I — Preliminary (Regulations 1–4)
Part II — Returns (Regulations 5–17)
Part III — Collection and Recovery of Estate Duty (Regulations 18–26)
Part IV — Objections and Appeals (Regulations 27–28G)
Part V — Miscellaneous (Regulations 29–36).
3 Repeal
Statutory Rules 1917, No. 267 and Statutory Rules 1929, No. 32 are repealed.
4 Interpretation
(1) In these Regulations, unless the contrary intention appears:
Board means a Board of Review.
the Act means the Estate Duty Assessment Act 1914-1940, and, when considered in relation to any time, means that Act, or, if it has been amended, that Act as amended as in force at that time.
(2) For all the purposes of these Regulations:
(a) the Australian Capital Territory shall be deemed to be part of the State of New South Wales; and
(b) the Northern Territory shall be deemed to be a separate State.
Part II Returns
5 Exemption from furnishing returns
Unless required in writing by the Commissioner, a Second Commissioner or a Deputy Commissioner so to do, it shall not be necessary for the administrator to furnish a return in accordance with section 10 of the Act in respect of an estate where the value of the estate (as defined in section 18A of the Act) does not exceed:
(a) in the case of an estate the whole of which passes to the widow, widower, children or grandchildren of the deceased person — Twenty thousand dollars; or
(b) in any other case — Ten thousand dollars.
6 Where whole estate distributed prior to death
Where in any estate there is no administrator liable to furnish a return and the property of the deceased person liable to estate duty has been distributed at, or within three years prior to, the decease of the deceased person, each of the persons to whom the property has been distributed shall, within three months after the date of the death of the deceased person, furnish a full and complete return of all the property received by him from the deceased person and shall be liable for the payment of any estate duty assessable in respect of that property.
7 Prescribed matters for purposes of section 10 of Act
For the purposes of section 10 of the Act, but subject to these Regulations:
(a) the prescribed period is:
(i) the period of three months after the death of the person whose estate is being administered; or
(ii) where probate of the will or letters of administration are not granted within the period specified in the last preceding subparagraph, the period of one month after the date on which probate of the will or letters of administration are granted;
(b) the prescribed form is the form contained in the Schedule to these Regulations together with the schedules referred to in that form; and
(c) the prescribed place is:
(i) where the estate of the deceased person is situated wholly within one State — the office of the Deputy Commissioner in that State; or
(ii) where the estate of the deceased person is not situated wholly within one State — the office of the Deputy Commissioner:
(A) if the principal records of the estate are kept in one State — in that State; or
(B) in any other case — in Victoria.
8 Furnishing of returns required by Commissioner
Every return required by the Commissioner shall be prepared and furnished in accordance with such form, and lodged at such office, within such time, as the Commissioner specifies in the requirement.
9 Substantial compliance with form
The Commissioner, a Second Commissioner or a Deputy Commissioner may at any time accept a return in a form substantially similar to a prescribed form.
10 Extension of time
The Commissioner, a Second Commissioner or a Deputy Commissioner may at any time, by notice in writing, grant an extension of the time for furnishing a return.
10A Furnishing of returns as directed by Commissioner
Where the Commissioner has, by notice in writing, directed an administrator to furnish a return at the office of the Deputy Commissioner in the State specified in the notice, the return shall be furnished in accordance with that direction.
11 Copy of will and settlement to be furnished with return
The administrator shall furnish with the return:
(a) a certified copy of the will (if any) of the deceased and all codicils to the will, or a photographic copy of those documents furnished by the Registrar of Probates or other appropriate officer of the Supreme Court of a State or Territory; and
(b) a certified copy of every settlement made by the deceased, either before or after the commencement of the Act.
11A Particulars to be furnished with returns
The administrator shall furnish with the return of the estate of a deceased person:
(a) a statement setting out the basis on which each asset included in the return has been valued;
(b) where the deceased person held a beneficial interest in a joint tenancy or joint ownership of the real or personal property, a statement setting out:
(i) the date of creation of the joint tenancy or joint ownership; and
(ii) the amounts contributed by each joint tenant or joint owner;
(c) where the deceased person held leasehold estate, a statement setting out:
(i) the term of the lease;
(ii) the rental payable under the lease;
(iii) the buildings erected on the leased land; and
(iv) the covenants contained in the lease;
(d) where the deceased person had, at the time of his death, money placed on fixed deposit, a statement setting out:
(i) the dates and periods of deposit; and
(ii) the rates of interest; and
(e) where, under the will of the deceased person, a person receives a life tenancy or an annuity, a statement setting out the age of the life tenant or annuitant, as the case may be.
12 Signature to returns
(1) Subject to subregulation (2) of this regulation, every return shall be signed by the administrator.
(2) Where the administrator is unable to write, the Commissioner, a Second Commissioner or a Deputy Commissioner may accept a return, if otherwise in order, if:
(a) the administrator affixes his mark thereto as a signature;
(b) the mark is attested by a witness; and
(c) the witness certifies on the return that the return was read over to the administrator and that the administrator fully understood and approved the contents thereof and freely and voluntarily affixed his mark thereto as a signature.
(3) If there are more administrators than one in respect of an estate, the signature of one administrator to the return shall be sufficient.
13 When return deemed to be furnished
A return shall not be deemed to have been duly furnished to the Commissioner unless and until:
(a) the proper form in accordance with these Regulations, signed by the administrator, and containing a full, true and complete statement of all matters and things required to be stated therein by the Act, these Regulations, the Commissioner and the form itself; and
(b) all documents and copies which, by the Act, these Regulations or the Commissioner, are required to be furnished with the return;
have, at the place where under these Regulations the return is to be furnished, been received by an officer authorized by the Commissioner to receive returns.
14 Notice of address
The administrator shall, in the return, give an address in Australia for service.
15 Notice of change of address
An administrator who changes his address shall, within one month after the change, give to the Commissioner, at the place where the return was furnished, notice in writing of his new address in Australia for service.
16 Failure to notify change of address
Any administrator who changes his address and fails to give to the Commissioner notice in writing of his new address in Australia for service shall not be permitted to plead that change of address as a defence in any proceedings (whether civil or criminal) instituted against him under the Act or these Regulations.
17 Annotations on returns
(1) The Commissioner may cause or permit his officers to make on any return such marks, figures and annotations as the Commissioner thinks fit.
(2) The marks, figures and annotations shall be made in ink of a colour different from that of the ink used in the return.
Part III Collection and recovery of estate duty
18 How duty may be paid
Estate duty may be paid:
(a) by delivery of cash, bank notes or cheques at the office of the Commissioner or of any Deputy Commissioner;
(b) by remitting the duty to the Commissioner or any Deputy Commissioner by bank draft, cheque, postal money order, or postal order payable in the city to which the remittance is sent; or
(c) by depositing the net amount of the duty to the credit of the Commissioner or a Deputy Commissioner at any branch of the Reserve Bank of Australia.
19 Post office to be agent of remitter
Where a remittance is posted by an administrator addressed to the Commissioner or a Deputy Commissioner, the Post Office shall be deemed to be the agent of the remitter, and payments shall not be deemed to have been made public until the remittance has been received by the addressee.
20 Payment by cheque
Where a cheque has been delivered or remitted to the Commissioner or a Deputy Commissioner in payment of estate duty, the duty shall, notwithstanding any receipt given therefore, not be deemed to have been paid until the amount for which the cheque is drawn has been collected.
21 Receipts to be issued
Receipts for estate duty shall be issued by such persons as the Commissioner, a Second Commissioner or a Deputy Commissioner authorizes.
22 Part payment of estate duty
Except with the express consent of the Commissioner, a Second Commissioner or a Deputy Commissioner, no money shall be accepted on account or in part payment of estate duty.
23 Postage to be prepaid
The postage on every return, statement, communication, remittance, or other matter sent by post, addressed to the Commissioner, a Second Commissioner or a Deputy Commissioner, shall be fully prepaid by the sender.
24 Deficient postage
When any sum is received as payment of estate duty, the Commissioner or Deputy Commissioner, as the case may be, shall first deduct therefrom the amount of postage and surcharge (if any) paid upon any unstamped or insufficiently stamped matter received through the post from the administrator and shall credit in payment of duty only the net amount then remaining.
25 Certificate as to service of notice of assessment etc
In any action against a person for the recovery of estate duty, a certificate in writing, signed by the Commissioner, a Second Commissioner or a Deputy Commissioner, certifying that:
(a) the person named in the certificate is the administrator or other person liable under the Act to pay estate duty;
(b) an assessment of estate duty was duly made against him in respect of the estate mentioned in the certificate;
(c) the particulars of the assessment are as stated in the certificate;
(d) notice of the assessment was duly served upon him;
(e) the sum named in the certificate was, at the date of the certificate, due by him to the King on behalf of the Commonwealth in respect of estate duty;
shall be prima facie evidence of the facts stated in the certificate.
26 Evidence by affidavit
In any action for the recovery of estate duty, evidence may be given by affidavit, but the Court may require the deponent to attend for the purpose of being cross-examined.
Part IV Objections and appeals
27 Objections
An objection under the provisions of subsection (1) of section 24 of the Act against an assessment shall be posted to or lodged with the Commissioner at the address from which the notice of assessment objected to was issued.
28 Particulars to be supplied by Commissioner
(1) The Commissioner, in referring a decision to a Board of Review in accordance with subsection 26 (1) of the Act, shall furnish the Chairman of the Board of Review with printed or typewritten statements in quadruplicate containing:
(a) the name and address of the objector;
(b) full details of the objector’s claims as made to the Commissioner;
(c) the Commissioner’s reasons for disallowing the objector’s claims.
(2) The Commissioner shall at the same time furnish the objector with a copy of the statements referred to in paragraphs (b) and (c) of the last preceding subregulation.
28A Notice of review
(1) The Chairman of a Board of Review shall cause notice to be served upon the Commissioner and the objector of the date on which the review is to take place.
(2) Notice of a review shall be given not less than fourteen days prior to the date on which the review is to take place.
(3) A notice under this regulation may be served either personally or by post, and, if served by post, service shall be effected by properly addressing, prepaying and posting the notice as a letter, and, unless the contrary is proved, service shall be deemed to have been effected at the time when the letter would have been delivered in the ordinary course of post.
28B Order, place and time of review
(1) All references for the purpose of review by a Board of Review shall be numbered consecutively and, unless the Chairman of the Board otherwise directs, the review shall take place in the order in which the references are received in respect of each State by that Board.
(2) The sittings of a Board for purposes of reviews shall be held in such place or places and at such time or times as are fixed by the Chairman of the Board.
(3) A Board shall not be required to sit on public holidays or during a yearly vacation commencing on the twenty-fifth day of December and ending on the twenty-first day of January.
28C Conduct of reviews
(1) Subject to this Part, reviews by a Board shall be conducted as the Chairman from time to time directs.
(2) All reviews shall take place in camera unless the objector otherwise elects.
(3) Where a review takes place in public the decision shall be given at a public meeting of the Board.
(4) Either party to a review may nominate a person to represent him at the review.
(5) The Chairman of a Board may adjourn any review from time to time as he thinks fit.
28D Evidence
(1) A Board shall take all oral evidence on oath or affirmation, and for that purpose the Chairman of the Board or, in the absence of the Chairman, the Acting Chairman, shall have power to administer oaths and affirmations.
(2) The Chairman of the Board may, and, at the request of the Commissioner or by the person representing the Commissioner at the review, shall, by notice in writing, require any person:
(a) to furnish the Board with such information as, in opinion of the Commissioner or the person representing the Commissioner at the review, is necessary for the purpose of the review; and
(b) to attend and give evidence before the Board concerning any matter relevant to the review and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.
(3) The expenses to be allowed to any person required to attend and give evidence under the last preceding subregulation shall be as prescribed by regulation 36 of these Regulations.
28E Decision of a Board
(1) A Board shall give a written decision on each review and shall forward copies of the decision to the Commissioner and to the objector, and the Commissioner shall, unless the decision has been appealed from, give effect to the decision within sixty days after receipt thereof.
(2) Upon the request of the Commissioner or the objector, made at the hearing, the Board when giving its decision shall state in writing its findings of fact and its reasons in law for the decision.
28F Re-opening of reviews
(1) The time within which a Board may re-open a review in accordance with the proviso to subsection 26 (5) of the Act shall be thirty days.
(2) Notice of such re-opening shall be served upon the Commissioner and the objector as prescribed by regulations 28A of these Regulations.
28G Communication to Board
A communication to a Board may be addressed to the Chairman of the Board in the care of the Deputy Commissioner of Taxation in the State in which the person making the communication resides.
Part V Miscellaneous
29 Service of notices etc
Any notice or other communication by or on behalf of the Commissioner may be served upon any administrator or other person:
(a) by causing it to be served personally on him; or
(b) by leaving it at his address for service; or
(c) by posting it by prepaid letter post, addressed to him at his address for service;
and, in any case to which paragraph (c) of this regulation applies, unless the contrary is proved, service thereof shall be deemed to have been effected at the time when it would, in the ordinary course of post, have arrived at the place to which it was addressed.
30 Signatures
Any notice to be given by the Commissioner may be given by any officer of the Commissioner duly authorized in that behalf, and any notice purporting to be signed by the authority of the Commissioner shall be as valid and effectual for all purposes as if signed by the Commissioner in person.
31 Presumption as to signatures
(1) Judicial notice shall be taken of the names and signatures of the persons who are, or were at any time, the Commissioner, a Second Commissioner or a Deputy Commissioner.
(2) A certificate, notice or other document bearing the written, printed or stamped name (including a facsimile of the signature) of a person who is, or was at any time, the Commissioner, a Second Commissioner or a Deputy Commissioner in lieu of that person’s signature shall, unless it is proved that the document was issued without authority, be deemed to have been duly signed by that person.
33 Copies or extracts certified by the Commissioner to be received in evidence
A writing certified by the Commissioner, a Second Commissioner or a Deputy Commissioner to be a true copy of, or a true extract from, any assessment, return, list, declaration, statement, book, document, or writing of any nature whatsoever in the custody of the Commissioner or of any officer of the Commissioner shall, for all purposes, be prima facie evidence of the original of which it purports to be a copy or extract, and shall be receivable in evidence to the same extent as the original.
34 Commissioner may specify time in which acts to be done
Wherever the Commissioner, in the exercise of any power conferred upon him by the Act or these Regulations, requires any person to do any act, the requirement may specify the period (not being in any case less than seven days) within which the act shall be done.
36 Expenses of witnesses
(1) Any person required under section 45 of the Act to attend and give evidence shall be entitled to be paid, in respect of the attendance, such amount in respect of expenses as the person conducting the inquiry determines in accordance with the scale of expenses set out in Schedule 2.
(2) In the scale in Schedule 2:
(a) a reference to the Commissioner includes a reference to a Second Commissioner, a Deputy Commissioner, or any officer authorized by the Commissioner, a Second Commissioner or a Deputy Commissioner for the purposes of subsection 45 (1) of the Act; and
(b) a reference to the High Court Rules is a reference to the High Court Rules as in force from time to time.
37 Oath or affirmation for purposes of section 48A
(1) In this regulation, designated person means a person designated for the purposes of section 48A of the Act.
(2) For the purposes of examining a person upon oath or affirmation for the purposes of section 48A of the Act, a designated person may administer an oath or take an affirmation.
Schedule 1
(regulation 7)
COMMONWEALTH OF AUSTRALIA
Estate Duty Assessment Act 1914‑1953
Return of the Estate of late of
deceased, Image unavailable in extracted text
Address for Service of Notices etc
I, of in the State of
do solemnly and sincerely declare:
That I am the person liable under the Estate Duty Assessment Act 1914‑1953 to make a return of the Estate of the above‑mentioned deceased and to pay the duty thereon under that Act.
That the deceased died on the day of ,
19 , at and was aged years
months. Image unavailable in extracted text was at the time of death (here insert marital status) and had during life followed the occupation of .
That the statement of assets and liabilities set out in this return and the accompanying Schedules Nos. to (inclusive) contain a true statement of all the items comprising the estate, both real and personal, of or to which the above‑mentioned deceased was at the time of death possessed or entitled, or which is deemed to be part of his estate in accordance with the provisions of the Act.
That the value of each item set out in the return and schedules is the true and full value of the item in respect of which the value is specified.
That the liabilities stated in the return and schedules are justly due by the estate.
That the deceased did not within three years immediately preceding death make any gift inter vivos (not including any gift of property the value of which together with the value of the property comprised in any other gifts made to the same person within three years before his decease did not exceed One hundred dollars), sales to relatives by blood, marriage or adoption, or settlement of any estate, real or personal, save and except Image unavailable in extracted text described and valued in Schedule No. .
That the deceased had not an interest of any kind for his life
in property comprised in a settlement (not being a settlement made
by the deceased) being an interest he surrendered to any other person within three years before his decease, save and except Image unavailable in extracted text described and valued in Schedule No .
That the deceased had not during his lifetime made any settlement under which he had any interest of any kind for his life whether or not that interest had been surrendered by him before his decease unless it was surrendered more than three years before his death, save and except Image unavailable in extracted text described and valued in Schedule No. .
That the deceased had not immediately prior to his death any
beneficial interest either as joint tenant or joint owner with other persons in
any real or personal property save and except Image unavailable in extracted text described and valued in Schedule No. .
That the deceased had not at the time of his death a beneficial interest in property, being a beneficial interest which, by virtue of a settlement or agreement made by him passed or accrued on or after his death, to or devolved on or after his death upon, any other person, save and except Image unavailable in extracted text described and valued in Schedule No. .
That, save and except in respect of Image unavailable in extracted text described and valued in Schedule No. premiums have not been paid wholly or in part by or on behalf of the deceased in respect of any policy of insurance on the life of the deceased in favour of deceased’s widow, widower, children, grand‑children, parents, brothers, sisters, nephews or nieces.
That the deceased was at the time of his death domiciled in
That the estate of the deceased is situated in
That the persons and institutions whose names are specified in this return under the heading “Beneficiaries in the Estate” are persons and institutions beneficially entitled.
I undertake, in the event of any additional assets, or any excess in any amount claimed as an allowable deduction, being discovered which would render further duty payable, to advise the Commissioner of Taxation, and to pay any further duty found to be payable by me.
And I make this solemn declaration by virtue of the Statutory Declarations Act 1911‑1950,2 conscientiously believing the statements therein to be true in every particular.
Declared at
in the State of
this day of , 19 .
(Signature)
Before me:
(Title of person before
whom declaration is made)
STATEMENT OF ASSETS
Item
Particular of Assets
Value
$
1
(1) REAL ESTATE as per Schedule No. ..............
(2) Beneficial interest in a joint tenancy or joint ownershipof real estate held by the deceased immediately prior to death, as per Schedule No.
Total ..........................
2
PERSONAL ESTATE comprising:
(1) Leasehold estate as per Schedule No. ............
(2) Rents due or accrued at date of death, as perSchedule No...........................
(3) Life Insurance Policies and Bonuses, as perSchedule No. .........................
(4) Money in hand or house ....................
(5) Money in Bank –– Savings Account including accruedinterest ..................
–– Current account including accruedinterest ..................
–– Fixed deposit includinginterest .............
(6) Mortgages — as perSchedule No. ......................
(7) Debentures of all kinds, Treasury Bills, and other similar securities, and accrued interest, as per ScheduleNo.
(8) Debts due to the estate, as per Schedule No.........
as per Schedule No. .......................
(10) Furniture and household effects, as per Schedule No.
(11) Watches, Trinkets, Jewellery, Clothing, and similar items, as per Schedule No.
(12) Motor Cars, Carriages, Harness and Saddlery, as per Schedule No.
(13) Crops, as per Schedule No. ..................
(14) Number and Value of Bushels in WheatCertificates held by deceased for each Pool, as per Schedule No.
(15) Live Stock, as per Schedule No. ...............
(16) Farming implements, as per Schedule No. ........
(17) Plant, and similar items, as per Schedule No. .......
(18) Tools, as per Schedule No. ..................
(19) Stock in shop or business, as per Schedule No. .....
(20) Goodwill of trade or business, as per Schedule No.
(21) Interest in a deceased person’s estate, as perSchedule No. .........................
(22) Interest in a partnership, as per Schedule No. ......
(23) Beneficial interest in a joint tenancy or joint ownership of personal estate held by deceased immediately prior to death, as per Schedule No.
(24) Property over which deceased had a general power of appointment which was exercised by his Will, as per Schedule No.
(25) Personal property outside Australia, as perSchedule No. .........................
(26) Total value of interests set out in Schedules Nos. to (inclusive) being the Schedules refereed to in paragraphs 6, 7, 8, 10 and 11 of this declaration.
(27) Other personal property not coming under any of the above items, as per Schedule No.
Total .......................
STATEMENT OF LIABILITIES
Item
Particulars of Liabilities
Value
$
1
Secured Debts:(1) Mortgages as per Schedule No. ................(2) Other secured debts as per Schedule No. ..........
2
Unsecured Debts as per Schedule No. .................
3
Probate and Succession Duties payable on the estate .......
4
Other Lawful Deductions or Charges as per Schedule No.
Person attending before the Commissioner to give evidence because of that person’s professional, scientific or other special skill or knowledge — in respect of each day on which that person so attends, an amount of not less than the lesser amount specified in the High Court Rules in relation to expenses of witnesses possessing such skill or knowledge and not more than the greater amount so specified.
Person, other than a person referred to in Item 1, attending before the Commissioner:
(a) in the case of a person remunerated by wages, salary or fees — such amount as is provided for in the High Court Rules in relation to expenses of witnesses so remunerated;
(b) in any other case — such amount as is provided for in the High Court Rules in relation to expenses of witnesses generally.
Person attending before the Commissioner to give expert evidence — in addition to any other amount payable to that person under Item 1 or 2, a reasonable amount for qualifying to give that evidence.
Any person attending before the Commissioner — such amount as is reasonable:
(a) in respect of that person’s conveyance to and from the place at which that person so attends; and
(b) if that person is required to be absent overnight from that person’s usual place of residence — for meals and accommodation.
Notes to the Estate Duty Regulations
Note 1
Note: The Estate Duty Regulations (in force under the Estate Duty Assessment Act 1914) as shown in this compilation comprise Statutory Rules 1941 No. 78 amended as indicated in the Tables below.