New South Wales Consolidated Acts

LANDLORD AND TENANT (AMENDMENT) ACT 1948 - SECT 31MAA

31MAA Definitions

(1) In this Division:
"allowable deduction" means an allowable deduction as defined in the Income Tax Act, not being:

(a) a concessional deduction as so defined, or

(b) a deduction allowable under section 75 or 76 of that Act.

"attributable earnings" means:

(a) in relation to a lessee of prescribed premises, not being a lessee referred to in paragraph (b), (c) or (d) of this definition-the total income (not including the amount paid for board or lodging by any boarder or lodger ordinarily residing in the premises) of the lessee, from all sources whether in or out of Australia, less any losses or outgoings incurred by the lessee in gaining or producing that income that are allowable deductions, but together with:

(i) the total income, from all sources whether in or out of Australia of any resident of the prescribed premises, less any losses or outgoings incurred by that resident in gaining or producing that income that are allowable deductions,

(ii) in respect of a boarder or lodger ordinarily residing in the premises-the sum of two hundred and eight dollars,

(b) in relation to a lessee, not being a lessee referred to in paragraph (c) or (d) of this definition, of prescribed premises which are sub-let in whole or in part by the lessee, with the express or implied consent of the lessor, in the course of the lessee’s business of sub-letting for residential purposes-the total income of the lessee, from all sources whether in or out of Australia, less any losses or outgoings incurred by the lessee in gaining or producing that income that are allowable deductions, but together with the total income, from all sources whether in or out of Australia, of any resident of the prescribed premises, less any losses or outgoings incurred by that resident in gaining or producing that income that are allowable deductions,

(c) in relation to lessees of prescribed premises who hold the lease as members of a partnership-the total income of the partnership, from all sources whether in or out of Australia, less any losses or outgoings incurred in gaining or producing that income that are allowable deductions, and

(d) in relation to a lessee of prescribed premises, being a company or other corporation-the total income of the company, from all sources whether in or out of Australia, together, where applicable, with any amount referred to in paragraph (a) of section 109 of the Income Tax Act, but less any losses or outgoings incurred by the company in gaining or producing that income that are allowable deductions.

"boarder" or "lodger", in relation to any prescribed premises, does not include a boarder or lodger ordinarily residing in those prescribed premises who is a relative of the lessee, or, where there is more than one lessee, or any of the lessees, of those prescribed premises.
"current value rental":

(a) in relation to a determination under this Division of the fair rent of any prescribed premises, not being prescribed premises that form part of any other premises, means the quotient obtained by dividing the aggregate of the assessed annual value of those premises and an amount equal to one-ninth of that assessed annual value, by the number of tenancy periods in a year applicable to those prescribed premises and by adding to that quotient a reasonable allowance determined by the Fair Rents Board for any goods or for maintaining any services supplied by the lessor in connection with the lease of those prescribed premises, and

(b) in relation to a determination under this Division of the fair rent of any prescribed premises that form part of any other premises, means the quotient obtained by dividing such proportion of the aggregate of:

(i) the assessed annual value of those other premises, and

(ii) an amount equal to one-ninth of that assessed annual value,

as the Fair Rents Board may determine by the number of tenancy periods in a year applicable to those prescribed premises and by adding to that quotient a reasonable allowance determined by the Fair Rents Board for any goods or for maintaining any services supplied by the lessor in connection with the lease of those prescribed premises.

"financial year" means year ending on the thirtieth day of June.
"income" includes any income that is exempt income as defined in the Income Tax Act.
"Income Tax Act" means the Income Tax Assessment Act 1936 (as amended by subsequent Acts) of the Parliament of the Commonwealth.
"net income", in relation to any financial year, means:

(a) in respect of a lessee or resident referred to in paragraph (a) or (b) of the definition of "attributable earnings" in this subsection, the total income derived by that lessee or resident during that year from all sources whether in or out of Australia less any losses or outgoings incurred by that lessee or resident in gaining or producing that total income that are allowable deductions, and

(b) in respect of a lessee referred to in paragraph (c) or (d) of the definition of "attributable earnings" in this subsection, the amount of the attributable earnings of that lessee for that year.

"prescribed amount" means the amount of four thousand dollars or, where another amount has been prescribed in lieu thereof, that other amount.
"relative", in relation to a lessee, means a person related to the lessee in the first or second degree, ascertained by reference either to consanguinity or affinity or to both.
"resident", in relation to any prescribed premises, means any person ordinarily residing in the premises other than the lessee, a sub-lessee, a relative of a sub-lessee ordinarily residing with that sub-lessee, a person under the age of sixteen years or a boarder or lodger.

(2) For the purposes of the definition of "current value rental" in subsection (1), the assessed annual value of any prescribed premises shall be deemed to be:

(a) where the prescribed premises are situated on land, the assessed annual value of which, together with the improvements thereon, was shown in the valuation list under the Valuation of Land Act 1916 , as subsequently amended, last furnished to a rating or taxing authority in accordance with that Act, as so amended, before the date of the application for the determination of the fair rent of those premises under this Division-that assessed annual value or, where a valuation made by the Valuer-General within three months before the day the application for the determination was lodged with the clerk of the Fair Rents Board and showing the assessed annual value of those premises is produced to the Fair Rents Board making the determination, the assessed annual value so shown,

(b) where the prescribed premises are situated within the area of a council under the Local Government Act 1919 , as subsequently amended, and are on land, the assessed annual value of which, together with the improvements thereon, was not shown in a valuation list referred to in paragraph (a) but was included in the last general valuation of the area of that council made under Schedule 3 to that Act, as so amended-that assessed annual value or, where a valuation made by a valuer holding the prescribed qualifications under the Local Government Act 1919 , as subsequently amended, within three months before the day the application for the determination was lodged with the clerk of the Fair Rents Board and showing the assessed annual value of those premises is produced to the Fair Rents Board making the determination, the assessed annual value so shown,

(c) in the case of any other prescribed premises-the assessed annual value, as defined in section 7 of the Valuation of Land Act 1916 , as subsequently amended, of the land on which the premises are situated, together with the improvements thereon, as shown on a valuation made by the Valuer-General or by a valuer holding the prescribed qualifications under the Local Government Act 1919 , as subsequently amended, within three months before the day the application for the determination was lodged with the clerk of the Fair Rents Board, or

(d) where the Fair Rents Board is satisfied that any such assessed annual value is not correct as at the time to which it refers-such amount as in the opinion of the Board represents the correct assessed annual value as at that time.

(3) Where the current value rental of any prescribed premises calculated in accordance with this Division would, but for this subsection, be an amount that is not a multiple of five cents, the current value rental of the premises shall be the amount so calculated after deducting therefrom such amount as is in excess of a multiple of five cents.

(4) A reference in the definition of "attributable earnings" or "net income" in subsection (1) to the total income of any person includes a reference to any income that is assessable income within the meaning of the Income Tax Act and where the question of whether any income is assessable depends upon a decision or determination of, or the exercise of any discretion by, the Commissioner of Taxation under the Income Tax Act, includes that income unless that Commissioner has by his or her decision or determination, or the exercise of his or her discretion, treated it as not being assessable income.

(5) For the purposes of paragraph (b) of the definition of "attributable earnings" and the definition of "resident" in subsection (1):

(a) a reference to sub-letting of prescribed premises includes a reference to permitting the use of prescribed premises under an agreement or arrangement whether oral or in writing of leave and licence for the use thereof, and

(b) a reference to a sub-lessee of prescribed premises includes a reference to a person who has the use of prescribed premises under such an agreement or arrangement.