REGULATIONS UNDER THE GIFT DUTY ASSESSMENT ACT 1941.*
I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Gift Duty Assessment Act 1941.
Dated this sixteenth day of December, 1941.
Signed by the Governor-General
Governor-General.
By His Excellency’s Command,
Signed by the Treasurer
Treasurer.
_________
GIFT DUTY REGULATIONS.
Part I.—Preliminary.
Citation.
These Regulations may be cited as the Gift Duty Regulations.
Parts.
These Regulations are divided into Parts as follows:—
Part I.—Preliminary.
Part II.—Administration.
Part III—Returns.
Part IV.—Collection and Recovery of Gift Duty.
Part V.—Objections and Appeals.
Part VI.—Miscellaneous.
Definitions.
3.—(1.) In these Regulations, unless the contrary intention appears—
“Board” means a Valuation Board or a Board of Review, as the case may be;
“the Act” means the Gift Duty Assessment Act 1941, 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 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.
The Oath or Declaration which an officer may be required to make in pursuance of sub-section (6.) of section 10 of the Act shall be in accordance with Form 2 or Form 3, as the case may be, in the Schedule to these Regulations.
Part III.—Returns.
Furnishing of returns in pursuance of section 19 of the Act.
Subject to these Regulations every return furnished in pursuance of section 19 of the Act—
(a) shall be in accordance with Form 1 in the Schedule to these Regulations; and
(b) shall be furnished to the Commissioner—
(i) at the office of the Deputy Commissioner in the State in which the donor resides; or
(ii) if the donor is not resident in Australia, at the office of the Deputy Commissioner, Central Office, Melbourne.
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.
Substantial compliance with form.
The Commissioner, Second Commissioner or a Deputy Commissioner may at any time accept a return in a form substantially similar to a prescribed form.
Extension of time.
The Commissioner, Second Commissioner, or a Deputy Commissioner may at any time by notice in writing grant an extension of the time for furnishing a return.
Signature to returns.
9.—(1.) Subject to sub-regulation (2.) of this regulation, every return shall be signed and declared by the person making the return.
(2.) Where the person making the return is unable to write, the Commissioner, Second Commissioner or a Deputy Commissioner may accept a return if—
(a) that person 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 that person and he fully understood and approved the contents thereof and freely and voluntarily affixed his mark thereto as a signature.
When return deemed to be furnished.
10 A return shall be deemed not to have been duly furnished to the Commissioner unless and until—
(a) the proper form in accordance with these Regulations, duly signed by the person making the return, 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.
Notice of address.
The person making the return shall, in the return, give an address in Australia for service.
Notice of change of address.
Any person making a return 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.
Failure to notify change of address.
Any such person 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.
Annotations on returns.
14.—(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 IV.—Collection and Recovery of Gift Duty.
How duty may be paid.
Gift 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 note 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 Commonwealth Bank of Australia.
Post Office to be agent of remitter.
Where a remittance is posted by any person 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 until the remittance has been received by the addressee.
Payment by cheque.
Where a cheque has been delivered or remitted to the Commissioner or a Deputy Commissioner in payment of gift duty, the duty shall, notwithstanding any receipt given therefor, be deemed not to have been paid until the amount for which the cheque is drawn has been collected.
Receipts to be issued.
Receipts for gift duty may be issued by such persons as the Commissioner, Second Commissioner or a Deputy Commissioner authorizes.
Payment of gift duty.
Except with the express consent of the Commissioner, Second Commissioner or a Deputy Commissioner, no money shall be accepted on account or in part payment of gift duty.
Postage to be prepaid.
The postage on every return, statement, communication, remittance, or other matter sent by post, addressed to the Commissioner, Second Commissioner or a Deputy Commissioner, shall be fully prepaid by the sender.
Deficient postage.
When any sum is received as payment of gift 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 unstamped or insufficiently stamped matter received through the post from the donor or donee and shall credit in payment of duty only the net amount then remaining.
Certificate as to service of notice of assessment, &c.
In any action against a person for the recovery of gift duty, a certificate in writing, signed by the Commissioner, the Second Commissioner or a Deputy Commissioner, certifying that—
(a) the person named in the certificate is the person liable under the Act to pay gift duty;
(b) the assessment of gift duty was duly made against him in respect of the gift 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 gift duty,
shall be prima facie evidence of the facts stated in the certificate.
Evidence by affidavit.
In any action for the recovery of gift duty, evidence may be given by affidavit, but the Court may require the deponent to attend for the purpose of being cross-examined.
Officer may appear for Commissioner.
Any officer authorized in writing by the Commissioner, the Second Commissioner or a Deputy Commissioner, whether generally or in respect of any special proceedings, may appear on behalf of the Commissioner or a Deputy Commissioner before any County Court, District Court, Local Court or Court of Summary jurisdiction in any suit instituted in the name of the Commissioner or a Deputy Commissioner for the recovery of any duty unpaid, including any further or additional duty, or in any prosecution under Part VII. of the Act, and any officer so appearing shall be deemed to represent the Commissioner or a Deputy Commissioner, as the case may be, and shall be entitled to conduct the proceedings on his behalf and to give evidence.
Part V.—Objections and Appeals.
Objections.
An objection under the provisions of sub-section (1.) of section 31 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.
Particulars to be supplied by Commissioner.
26.—(1.) The Commissioner, in referring a decision to a Valuation Board in accordance with sub-section (1.) of section 32 or to a Board of Review in accordance with sub-section (1.) of section 33 of the Act, shall furnish the Chairman of the Valuation Board or Board of Review, as the case may be, 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 sub-paragraph (b) and (c) of the last preceding sub-regulation.
Notice of review.
27.—(1.) The Chairman of a Valuation Board or 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.
Order, place and time of review.
28.—(1.) All references for the purpose of review by a Valuation Board and all references for the purpose of review by a Board of Review shall respectively 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 of three weeks commencing on the twenty-fifth day of December.
Conduct of reviews.
29.—(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.
Evidence.
30.—(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 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 the 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 sub-regulation shall be as prescribed by regulation 41 of these Regulations.
Decisions of a Board.
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, or the objection is the subject of an undecided reference on other grounds, give effect to the decision within sixty days after receipt thereof.
Re-opening of reviews.
32.—(1.) The time within which a Board may re-open a review in accordance with the proviso to sub-section (5.) of section 32 or sub-section (5.) of section 33 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 regulation 25 of these Regulations.
Communications to Board.
33.—(1.) All communications to a Valuation Board shall be addressed to the Chairman of the Land Valuation Board, Commonwealth Buildings, Treasury Gardens, Melbourne.
(2.) All communications to a Board of Review shall be addressed to the Chairman of the Board of Review, Commonwealth Bank Buildings, Castlereagh-street, Sydney,
Part VI.—Miscellaneous.
Service of notices, &c.
Any notice or other communication by or on behalf of the Commissioner may be served upon any donor, donee or other person—
(a) by causing it to be served personally on him;
(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, service thereof shall, unless the contrary is proved, 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.
Signatures.
Any notice to be given by the Commissioner may be given by an 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.
Signatures deemed to be duly signed.
36.—(1.) Any certificate, notice or other document bearing the written, stamped or printed signature of the Commissioner, the Second Commissioner or a Deputy Commissioner shall, until the contrary is proved, be deemed to have been duly signed by the person by whom it purports to have been signed.
(2.) Judicial notice shall be taken of every such signature and of the fact that the person whose signature it purports to be holds, or has held, the office of Commissioner, Second Commissioner or Deputy Commissioner, as the case may be.
Onus of proof.
In any proceedings against a person for failing or neglecting duly to furnish a return, a certificate in writing signed by the Commissioner, Second Commissioner or Deputy Commissioner at whose office the return should have been furnished, certifying that no return has been received from that person by any officer authorized by the Commissioner to receive returns at the place where, under these Regulations, a return should have been furnished, shall be prima facie evidence that the defendant has failed or neglected duly to furnish a return.
Copies or extracts certified by the Commissioner to be received in evidence.
A writing certified by the Commissioner, the 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 an 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.
Commissioner may specify time in which act is 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.
Where prosecution will be instituted.
A prosecution under sections 43 or 46 of the Act for failing or neglecting duly to furnish a return, or for knowingly and wilfully making and delivering a false return, may, at the option of the prosecutor, be instituted in a court of summary jurisdiction, having jurisdiction either at the place where, under these Regulations, the return is to be furnished or at the usual or last known place of business or abode of the defendant.
Expenses of witnesses.
Any person required under section 39 of the Act to attend and give evidence shall be entitled to be reimbursed the sum (not exceeding in any case One pound per diem) actually and necessarily lost by him by reason of his attendance and, in addition, if the person resides more than four miles from the place of hearing, such sum for travelling expenses (not exceeding the sum actually paid) as the person conducting the inquiry thinks reasonable.
Calculation of value of life interest.
42.—(1.) Wherever it is necessary for the purpose of the Act to calculate the value of a life interest or an interest for a period certain, the value shall be calculated in accordance with the appropriate value of One pound per annum shown in any standard set of tables for calculation of values on a four and one-half per centum basis.
(2.) The appropriate value based upon the same periods of rest between the payments as are specified in the instrument creating the interest shall be employed.
(3.) Where the instrument creating the interest does not specify any period of rest between payments, the appropriate value based upon annual payments shall be employed.
THE SCHEDULE.
Form 1.
Sec. 19.
Commonwealth of Australia.
Reg. 5
Gift Duty Assessment Act 1941.
File. No.
RETURN UNDER SECTION 19.
Part A.
Name in full of Donor
Address of Donor
Occupation of Donor
Name in full of Donee
Occupation and address of Donee
Relationship of Donee (if any) by ties of blood or marriage to Donor
Date of Gift
Name of Person furnishing return
Address for Service of notices, etc.
DECLARATION
Donor, Donee, or Trustee of Donee.
I,
do solemnly and sincerely declare -
That the statement hereafter made and marked Part B contains true and full particulars of all property both real and personal comprised in the gift made by the above-named donor to the above-named donee on the above-mentioned date.
That the value of the property set forth in such particulars is to the best of my knowledge and belief the true and full value of the said property as at the time of the making of the gift of the property.
That to the best of my knowledge and belief the donee is not entitled as against the donor or any other person, or as against any other property, to any right of indemnity or contribution in respect of the encumbrances affecting the property as set out in the statement.
That, with the exception of gifts exempt under the provisions of section 14 of the Act no other gift (except those set out in Part C), whether to the same or any other donee, has been made by the abovenamed donor at the same time or within the period of eighteen months immediately preceding the date of the gift referred to above.
Strike out if not applicable.
That the particulars set out in Part C are, to the best of my knowledge and belief, true and correct.
That the document attached hereto, and marked “D”, is a true copy of the instrument creating or evidencing the said gift made on the above-mentioned date.
And I make this solemn declaration by virtue, of the Statutory Declarations Act 1911-1922 conscientiously believing the statements herein to be true in every particular.
* To be declared before a Police, Stipendiary, or Special Magistrate, a Justice of the Peace, a Commissioner for Affidavits, a Commissioner for Declarations or a Notary Public.
Note.—This return should be lodged with the Deputy Federal Commissioner of Taxation for the State in which the donor resides, or if the donor is not resident in Australia—at the office of the Deputy Commissioner of Taxation, London Stores Building, Elizabeth-street, Melbourne.
Part B.
Particulars and Value of Property Comprised in the Gift Hereinbefore referred to.
Particulars of Encumbrances Existing upon the Property Comprised in the Gift Hereinbefore Referred to as to which there is no Right of Indemnity against the Donor or any other Person or Estate.
* Where gift comprises real or leasehold estate references to titles and full descriptions should be supplied.
_________
Form 2. Sec. 10.
Reg. 4.
Commonwealth of Australia.
Gift Duty Assessment Act 1941.
OFFICER’S OATH OF SECRECY.
I, of in the
State of in the Commonwealth of Australia, being an officer within the meaning of section 10 of the Gift Duty Assessment Act 1941, do swear that I will not, either directly or indirectly, except as permitted under the said section, and either while I am, or after I cease to be, an officer,
make a record of, or divulge or communicate to any person, any information respecting the affairs of any other person disclosed or obtained under the provisions of the Gift Duty Assessment Act 1941, or of any amendment thereof.
so help me god.
Signature
Sworn and subscribed at in the State of
this day of 19 , before me—
<table cellspacing="0" cellpadding="0" style="margin-left:16.2pt; margin-bottom:0pt; border-collapse:collapse"><tbody><tr><td style="width:178.55pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-bottom:0pt; text-indent:21.6pt; text-align:justify; line-height:normal"><span style="font-family:'Times New Roman', serif">Justice of the Peace for the State</span></p></td><td rowspan="2" style="width:17.55pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-bottom:0pt; text-align:justify; line-height:normal"><img src="image.004.png" width="12" height="34" alt="Brace grouping details of Justice of the Peace"></p></td></tr><tr><td style="width:178.55pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-left:21.6pt; margin-bottom:0pt; text-indent:21.6pt; text-align:justify; line-height:normal"><span style="font-family:'Times New Roman', serif">of</span></p></td></tr></tbody></table>
Signature.
_________
Form 3.
Sec. 10.
Reg. 4.
Commonwealth of Australia.
Gift Duty Assessment Act 1941.
OFFICER’S DECLARATION OF SECRECY.
I, of in the
State of in the Commonwealth of Australia, being an officer within the meaning of section 10 of the Gift Duty Assessment Act 1941, do solemnly and sincerely declare that I will not, either directly or indirectly, except as permitted under the said section, and either while I am, or after I cease to be, an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of any other person, disclosed or obtained under the provisions of the Gift Duty Assessment Act 1941, or of any amendment thereof.
Signature.
Declared at in the State of
this of 19 , before me.
<table cellspacing="0" cellpadding="0" style="margin-left:16.2pt; margin-bottom:0pt; border-collapse:collapse"><tbody><tr><td style="width:178.55pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-bottom:0pt; text-indent:21.6pt; text-align:justify; line-height:normal"><span style="font-family:'Times New Roman', serif">Justice of the Peace for the State</span></p></td><td rowspan="2" style="width:17.55pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-bottom:0pt; text-align:justify; line-height:normal"><img src="image.004.png" width="12" height="34" alt="Brace grouping details of Justice of the Peace"></p></td></tr><tr><td style="width:178.55pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-left:21.6pt; margin-bottom:0pt; text-indent:13.35pt; text-align:justify; line-height:normal"><span style="font-family:'Times New Roman', serif">of</span></p></td></tr><tr><td style="width:178.55pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-left:43.2pt; margin-bottom:0pt; text-indent:-7.9pt; line-height:normal"><span style="font-family:'Times New Roman', serif">Commissioner for Declarations.</span></p></td><td style="width:17.55pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p style="margin-bottom:0pt; text-align:justify; line-height:normal"><span style="font-family:'Times New Roman', serif"></span></p></td></tr></tbody></table>
Signature.
__________________
By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.
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