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政策法规 (Policy Info): State Government Mining Royalties: Requited T

Contents
Introduction
Defining Royalties
W.A. Legislative Provisions - Mining Royalties
Notes
Introduction
The two major mining states in Australia are Queensland and Western Australia. Both states have very similar legislation in respect of mining royalties and both are heavily dependent on the mining industry for export income and government revenue. In Western Australia, two of the major remaining sources of State revenue are mining and petroleum royalties. During 1996,[1] the WA Government paid $327 million (up from $258 million in 1991-92 from the minerals industry and $142 million ($58 million in 92-93 from petroleum producers into Consolidated Revenue. This represented approximately 10% of all State Government revenue. During 1997, the Western Australian government introduced for the first time a royalty on gold producers, thus removing gold as the sole mineral exempted from royalties in the State.
Mineral royalties constitute a significant revenue source for State governments, particularly those of Western Australia and Queensland. It would be a significant blow both from a political and a financial perspective if their imposition was to be successfully challenged.
In 1994, Professor McLeod[2] argued that much State taxation was avoiding proper scrutiny - particularly in respect of compliance with section 90 of the Constitution - and that the then current interpretation of s.90 was not capable of sensible application to State laws. In effect Professor McLeod predicted the decision in Ha, which proved his argument regarding the unconstitutional nature of franchise fees essentially correct.
The 1997 High Court decision in Ha[3] represented a severe blow to the ability of the States to raise revenue through licence fees for tobacco, alcohol and petrol, and required the Commonwealth to take on the responsibility of raising what were always disguised taxes on behalf of the States.
The High Court in Ha agreed to re-open Parton,[4] quoting Dawson J in Capital Duplicators (No 2)[5] that "The divergence of opinion upon the scope of an excise duty for constitutional purposes would, I think, in itself justify a review of the authorities". In holding for the appellant, the majority High Court indicated its preference for the broad interpretation of the meaning of duties of excise, dealing a blow to franchise fee legislation across Australia and substantially narrowing the tax base of the States. This required the Federal Government to pass urgent legislation to - in effect - collect taxes on alcohol, tobacco and petrol on behalf of the States.
This paper seeks to put forward the proposition that there is a distinct possibility that the definition of duties of excise could be expanded to include at least some of the mining royalties levied by State Governments, which would place them beyond their power to impose.
Certain mining royalties could be deemed duties of excise on the basis of the principles held by the High Court in Dennis Hotels[6] Bolton[7] Parton[8] and Matthews[9] that a tax on a step of production is a duty of excise. This view was reinstated by Brennan J [as he then was] in Phillip Morris[10] along the terms that, "If there be any rock in the sea of uncertain principle, it is that a tax on a step of production or distribution of goods to the point of receipt by the consumer is a duty of excise", and Brennan CJ [for the majority] in Ha that:
The proposition that was not clearly established before Phillip Morris was that the character of the tax required a consideration of the substantive operation as well as the text of the statute imposing the tax.
Defining Royalties
The OECD[11] defines taxes as "compulsory, unrequited payments to general government". Professor McLeod states that a payment is requited where it directly secures some advantage; for example, where it secures goods and services or access to particular resources and that the legal definition of taxation also recognises that a payment is not a tax to the extent that it is requited. Thus, royalties paid to the State government for the extraction of minerals and timber are not taxes.
It can then be argued that mining royalties paid to the State government are requited given that they provide access to a particular resource and there is a direct correspondence between the size of the payment and the share of the assets extracted given that payments are calculated as a proportion of the realised value from the resource extracted.
However, it is doubtful whether we can rely solely in OECD definitions to conclude that mining royalty payments do not constitute duties of excise under the Australian interpretation of the term. This is for two reasons: firstly the long established principle by the High Court that a tax on a step of production is a duty of excise; secondly that the structure of mineral royalties taxes most minerals - though not all - at a step of production beyond that of extraction of the resource

来源 Source 输入者 Creator Henry Niu
失效期 Expiry Date 2009-03-01(年年年年-月月-日日 yyyy-MM-dd)
主题词 Key Word
联系人 Contact Person Henry Niu 公司名字 Company Name Ausmine Group (澳洲矿业集团)
电话 Phone 61-3-9016 5362 移动电话 Mobile 61-4-2580 3119
电子信箱 E-Mail info@ausmine.com 传真 Fax
输入日期 Entry Date 2008-12-01 修改日期 Modify Date 2008-12-01
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