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(b) any assessed interest and penalty tax for the
invalid land tax;
(c) any amount paid for late payment interest in
relation to the invalid land tax.
63E What is a claim for a land tax windfall
(1) A person makes a claim for a land tax windfall for
taxable land for a financial year if the person, on
or after the decision day, gives notice to the
commissioner that the person disputes the
person’s liability for invalid land tax purportedly
imposed for the financial year, including, for
example, by—
(a) asking the commissioner for a reassessment
to decrease the person’s purported liability
for the invalid land tax to nil; or
(b) objecting to the assessment of the person’s
purported liability for the invalid land tax
under the Administration Act, part 6; or
(c) starting a proceeding in relation to the
person’s purported liability for the invalid
land tax; or
(d) advising the commissioner that the person
does not intend to pay an amount relating to
the person’s purported liability for the
invalid land tax; or
(e) asking the commissioner to refund an
amount paid for the person’s purported
liability for the invalid land tax.
(2) Also, a person is taken to have made a claim for a
land tax windfall if—
(a) the commissioner is required, under a court
order, to repay to the person an amount paid
to the commissioner in relation to the
person’s purported liability for invalid land
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tax, other than an order in a proceeding
mentioned in subsection (1)(c); or
(b) all of the following apply—
(i) the person had, before the decision day
(whether before or after the
commencement of this section),
objected to an assessment of land tax
for a financial year;
(ii) the question of whether the land tax is
invalid land tax is relevant to the
decision on the objection;
(iii) the commissioner had not, before the
decision day, given a written notice to
the person of the commissioner’s
decision on the objection under the
Administration Act, section 68;
(iv) the person does not, before the written
notice of the commissioner’s decision
is given, withdraw the objection; or
(c) both of the following apply—
(i) the commissioner and the person are
aware of the person’s purported
liability for invalid land tax;
(ii) the person does not, by the following
day (the payment day), pay an amount
that would, if the invalid land tax had
been validly imposed, have been
payable—
(A) if the person withdrew an
objection mentioned in paragraph
(b)—the day that is 30 days after
the person notified the
commissioner of the withdrawal;
(B) otherwise—the day that is 30 days
after the decision day.
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(3) Subsection (2)(a) applies in relation to a
proceeding started before or after the
commencement of this section.
Division 3 Liability for windfall tax
63F When liability for windfall tax arises
(1) A person’s liability for windfall tax arises when
the person makes a claim for a land tax windfall.
(2) For subsection (1), a claim is made by a person on
the following day—
(a) if the person gives notice to the
commissioner disputing the person’s
liability for invalid land tax imposed on
taxable land for a financial year—the day
the commissioner is notified;
(b) if the person is taken to have made a claim
under section 63E(2)(a)—the day the order
is made;
(c) if the person is taken to have made a claim
under section 63E(2)(b)—on the day written
notice of the commissioner’s decision on the
objection is given;
(d) if the person is taken to have made a claim
under section 63E(2)(c)—the day after the
payment day.
63G Who is liable to pay windfall tax
(1) Windfall tax must be paid by—
(a) if a person gives notice to the commissioner
disputing the person’s liability for invalid
land tax imposed on taxable land for a
financial year—the person; or
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(b) if a person is taken to have made a claim
under section 63E(2)(a)—the person
required to be repaid under the order; or
(c) if a person is taken to have made a claim
under section 63E(2)(b)—the person who
made the objection; or
(d) if a person is taken to have made a claim
under section 63E(2)(c)—the person who
does not pay the amount by the payment
day.
(2) A reference in subsection (1) to the person by
whom windfall tax must be paid includes a
reference to—
(a) if the purported liability for invalid land tax
for which windfall tax is imposed was
assessed under section 22(4) as if the land
were owned by 1 co-owner—each co-owner
of the land when the purported liability
arose; or
(b) if the person’s liability for invalid land tax
for which windfall tax is imposed was
assessed under section 22A(1) as if the land
were owned by 1 person—each trustee of
the trust when the purported liability arose.
63H Rate of windfall tax
The rate of windfall tax imposed on a claim for a
land tax windfall is 100% of the amount of the
land tax windfall.
63I Commissioner must apply amounts paid for
invalid land tax to liability for windfall tax
(1) This section applies if—
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(a) a person liable for windfall tax has paid an
amount to the commissioner in relation to a
purported liability for invalid land tax; and
(b) the person’s purported liability for invalid
land tax is, on a reassessment, decreased to
nil.
(2) Despite the Administration Act, section 37(1)(a),
the person is not entitled to a refund of the
amount.
(3) The commissioner must apply the amount to the
person’s liability for windfall tax in the following
order—
(a) firstly, any amount of the land tax windfall
attributable to assessed interest or penalty
tax that would have been payable in relation
to the invalid land tax if it had been validly
imposed;
(b) secondly, any amount of the land tax
windfall attributable to an amount paid by
the person for late payment interest in
relation to the invalid land tax;
(c) thirdly, the amount of the land tax windfall
attributable to the invalid land tax that would
have been payable if it had been validly
imposed.
(4) If the commissioner is required, because of an
order of a court or tribunal, to repay an amount to
a person for an amount paid in relation to invalid
land tax, the commissioner is taken to have
complied with the order if the commissioner
applies the amount under subsection (3).
(5) To remove any doubt, it is declared that this
section does not affect the operation of the
Administration Act, section 42 in relation to
payments received by the commissioner for
windfall tax.
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Division 4 Reassessment of windfall
tax
63J Reassessment of windfall tax
(1) This section applies if—
(a) windfall tax is assessed on a claim for a land
tax windfall in relation to taxable land for a
financial year; and
(b) the commissioner would, if the invalid land
tax to which the land tax windfall relates
had been validly imposed on the land, have
been required or permitted to make a
reassessment of liability for land tax at a
foreign surcharge rate under this Act or the
Administration Act.
(2) If a reassessment would have been required for
the land tax, the commissioner must make a
reassessment of the windfall tax.
(3) If a reassessment would have been permitted for
the land tax, the commissioner may make a
reassessment of the windfall tax.
(4) For reassessing the windfall tax—
(a) section 32(1)(b)(ii) or (c) applies for
working out the amount of the invalid land
tax as if it were validly imposed land tax at a
foreign surcharge rate; and
(b) the Administration Act, part 5 applies for
working out unpaid tax interest and penalty
tax in relation to the amount of the invalid
land tax as if it were validly imposed land
tax at a foreign surcharge rate.
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Division 5 Effect of purported liability
for invalid land tax on
other liabilities for land tax
63K Land tax validly imposed on taxable land not
affected by invalid land tax
(1) This section applies in relation to assessments of
land tax for taxable land for a financial year if
invalid land tax was purportedly imposed on the
land at the foreign surcharge rate mentioned in
section 32(1)(b)(ii).
(2) An assessment of land tax at the general rate
under section 32(1)(b)(i) is taken to be, and to
have always been, made separately from an
assessment of land tax at a foreign surcharge rate,
whether or not the assessments are the subject of
the same assessment notice.
(3) The purported imposition of the invalid land tax
does not affect—
(a) the validity of the assessment of land tax at
the general rate under section 32(1)(b)(i) for
the taxable land for the financial year; or
(b) any other right or liability acquired or
incurred, or an act or omission done or
made, in relation to the assessment of land
tax mentioned in paragraph (a).
Division 6 Recovery of windfall tax
Subdivision 1 Charge for unpaid windfall
tax
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63L Charge over interest in land for outstanding
liability for windfall tax
(1) This section applies if—
(a) invalid land tax was purportedly imposed on
taxable land for a financial year; and
(b) a person is liable for windfall tax in relation
to the land for the financial year; and
(c) all or part of the windfall tax is not paid by
the date the amount (the outstanding
liability) is payable; and
(d) the person with the outstanding liability has
an interest in the land when the liability
becomes payable.
(2) The outstanding liability is a first charge on the
person’s interest in the land.
(3) The charge has priority over all other
encumbrances over the person’s interest in the
land.
(4) Subsection (3) applies—
(a) whether the other encumbrances over the
person’s interest in the land—
(i) are registered or unregistered; or
(ii) were created before or after the charge
arises under subsection (2); and
(b) despite the Land Title Act 1994, part 3,
divisions 2 and 2A.
(5) The commissioner may lodge, under the
Administration Act, part 4, division 5, a request to
register the charge on the land.
(6) Despite the Administration Act, section 47B, the
registrar of titles must not register the charge if the
person is no longer the registered owner of the
land.
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(7) On its registration, the charge is not affected by a
disposition of the person’s interest in the land.
63M Commissioner may apply to Supreme Court
for order to sell
(1) This section applies if—
(a) a charge has been registered over the land
under section 63L; and
(b) the outstanding liability has not been paid
within 18 months after registration.
(2) The commissioner may apply to the Supreme
Court for an order to sell the land stated in the
application.
(3) At least 6 months before making the application,
the commissioner must give the persons
mentioned in subsection (4) notice of the
commissioner’s intention to apply to the Supreme
Court for an order to sell the land unless the
outstanding liability is paid within 6 months after
the date of the notice.
(4) The persons to whom notice must be given are—
(a) the persons liable to pay the outstanding
liability; and
(b) the owner of the land.
63N When court must order sale of land
(1) The court must order the sale of the land if it is
satisfied—
(a) proper notice of the application for the order
was given under section 63M; and
(b) there is an outstanding liability payable to
the State.
(2) However, the court may make an order only for
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the land the court considers is sufficient to realise
proceeds to pay the amounts mentioned in section
63O(a) to (d).
63O Application of proceeds of sale
The proceeds of the sale of land sold under the
order must be applied as follows—
(a) first, in payment of the commissioner’s
expenses on the application to the court for
the order;
(b) second, in payment of expenses properly
incurred by the commissioner on the sale or
any attempted sale;
(c) third, in payment of the outstanding liability
under the Administration Act, section 42;
(d) fourth, in payment of amounts secured by a
security interest or charge on the land
recorded before the charge mentioned in
section 63M(1)(a), unless the land is sold
subject to the security interest or charge;
(e) fifth, any balance must be applied as the
court orders.
63P Registration of transfer
(1) If land is sold under the order to sell, the person
stated in the order for this section must—
(a) sign a transfer in the appropriate form in
favour of the purchaser; and
(b) lodge the transfer with the registrar of titles.
(2) The registrar of titles must register the transfer as
if it had been signed by the registered owner of the
land.
(3) Subsection (2) applies despite non-production of
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the relevant instrument of title.
63Q Former owner may recover proceeds of sale
as a debt
(1) The amount equal to the proceeds of the sale of
land under the order to sell less an amount paid
under section 63O(d) is a debt payable to the
former owner of the land by the persons liable to
pay the outstanding liability for which the order
was made.
(2) The former owner may recover the debt in a court
of competent jurisdiction.
(3) In this section—
former owner, of land sold under the order to sell,
means the person who owned the land
immediately before its sale.
Subdivision 2 Other recovery provisions
63R Recovery of windfall tax from mortgagee
(1) This section applies if—
(a) invalid land tax was purportedly imposed on
taxable land for a financial year; and
(b) a person is liable for windfall tax in relation
to the land for the financial year; and
(c) an outstanding liability for windfall tax is
payable; and
(d) the person with the outstanding liability has
an interest in the land when the liability
becomes payable.
(2) The commissioner may require a mortgagee for
the person’s interest in the land to pay, for the
person, the outstanding liability.
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(3) If a mortgagee pays an outstanding liability under
this section—
(a) the mortgagee is entitled to recover the
amount from the person as a debt; and
(b) the amount is taken to be secured by the
mortgage in addition to any other amount it
secures.
63S Other security for payment of outstanding
liability
(1) The commissioner may take security for the
payment of an outstanding liability.
(2) The security must be in the form of a bank
guarantee or cash deposit, or both.
(3) In this section—
bank guarantee see section 61(3).
Division 7 Miscellaneous
63T Limitation period does not apply for particular
reassessments
(1) This section applies if—
(a) invalid land tax is purportedly imposed on
taxable land for a financial year; and
(b) a person makes a claim for a land tax
windfall in relation to the land for the
financial year.
(2) Despite the Administration Act, section 21, a
reassessment to decrease the person’s liability for
the invalid land tax to nil may be made at any
time.
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