Stamp Act 1921
Stamp Act 1921
Western Australia
Stamp Act 1921
Contents
Part I — Preliminary
1.Short title and commencement2
2.Expiry of Act2
4. 1M, 1MCTerms used in this Act2
4A.Treatment of amounts payable for GST8
Part II — Conditional contracts (interpretation)
6.Meaning of “eligible conditional contract”9
7.Persons who are “related” for the purposes of this Part9
8.Meaning of “general conditional contract”11
9.Meaning of “farming land conditional contract”13
10.Meaning of “off‑the‑plan conditional contract”13
11.Meaning of “mining tenement conditional contract”13
12.Meaning of “subdivision conditional contract”14
13.When a conditional contract becomes unconditional14
14.Termination of conditional contracts on relevant grounds14
Part III — General provisions
16. 1MCCharge of duties on instruments16
17.Liability to pay duty18
17A.Time for payment of duty18
17AA.Time for payment on certain conditional contracts19
17B.Requirement to lodge instrument19
17BA.Time for lodging certain conditional contracts20
17C.Instrument to be endorsed when duty paid etc.21
18.How instruments to be written22
19.Instruments to be separately charged with duty in certain cases23
20.Reduction of duty if matter not carried into effect23
26. 1MCFacts and circumstances affecting duty to be set forth in instrument26
27.Instruments not stamped inadmissible except in criminal proceedings27
28.No instrument to be registered etc. unless stamped30
29.Production of instruments as evidence32
30.Secondary evidence33
31.Stamped instruments as evidence34
31B.Payment of duty on statements in absence of dutiable instrument34
31C.Preparation of dutiable statement about voluntary transfers under the Financial Sector (Transfers of Business) Act 1999 of the Commonwealth39
33.Valuation of land or other property39
34.Duplicates and counterparts42
35.Unlodged transfers — independent person’s obligations42
36.Mode of calculating ad valorem duty in certain cases43
38.Instruments held in escrow43
39.Determining whether securities are situated in Western Australia44
40.Valuing a marketable security or right in respect of shares45
Part IIIB — Conveyances and transfers
63.Terms used in this Part47
63AA.Registered unit trust schemes52
63AB.Criteria for registration of a unit trust scheme54
63AC.Interim registration59
63AD.Cancellation of registration or interim registration60
63ADA.Registration of private unit trust scheme as provisional public trust63
63ADB.Cancellation of registration of provisional public trust64
63AE.Dutiable statement about disqualifying event and subsequent transfers or dispositions66
63AF.Duty chargeable on the dutiable statement67
63AG.When unit trust scheme becomes private unit trust scheme68
63AH.Liability for duty on aggregated dispositions70
63AI.Interstate security duty70
63AJ.Dutiable statement to be lodged71
63A.Duty on certain decrees and orders72
64.How ad valorem duty to be calculated in respect of stock and securities72
65.How ad valorem duty to be calculated in respect of securities and periodical payments73
66.How conveyances in consideration of a debt or subject to future payment etc. to be charged73
67.Duty where conveyance is partly in consideration of improvements made or to be made on property74
69.Conveyance duty in cases where conveyance made at request or by direction of intermediary74
70.Certain transfers of chattels dutiable75
71.Duty charged for 2 or more instruments of conveyance77
72.Transfer or assignment of mortgages for value78
73.As to conveyances on any occasion except sale or mortgage78
73A.Conveyance subject to an option79
73AA.Duty on conveyance not passing a beneficial interest81
73AB.Duty on conveyance to correct error83
73B.Conveyance agreement subject to unilateral determination84
73C.Option to purchase with right to renew85
73CA.Effect of Duties Act 2008 on sections 73D, 73DAA, 73DE and 73E86
73D.Disposition of units in unit trust schemes86
73DAA.Dutiable statement required if transfer or instrument not lodged92
73DA.Holdings of majority interest unit trustee93
73DB.Terms used in sections 73DC, 73DD and 73DE94
73DC.Acquisition of majority interest or further interest in pooled investment trust94
73DD.Meaning of “majority interest” and “further interest”96
73DE.Dutiable statement to be lodged99
73E.Disposition of shares in discretionary trustee companies100
73F.Acquisition of a licence to carry on a business activity102
73G.Farm‑in agreements relating to mining tenements103
74.Certain contracts to be chargeable as conveyances on sale106
74A.Duty chargeable on certain conveyances of corporation property111
74B.Transactions involving a call option and a put option114
74C.Acquisition of certain business assets119
75.Duty chargeable on conveyance for less than full consideration124
75A.Power to exempt instruments made for charitable or similar purposes126
75AB.Power to exempt instruments made in respect of certain funds or schemes127
75ABA.Power to exempt transfers by bankruptcy trustee to bankrupt127
75AC.Exchange of property128
75AD.Duty chargeable on partition of property128
75AE.Concessional rates for certain residential or business property129
75AF.Computation of duty for 2 or more instruments131
75AG.Reduction of duty or refund for first home owner132
75AH.Further transfer to person who was first home owner134
75C.Power to exempt for certain conveyances between spouses137
75CA.Refund where contingent consideration is not paid138
Part IIIBAA — Certain transfers of farming property
75D.Terms used in this Part140
75E.Application of this Part143
75F.Power to exempt for farming property146
75G.Partial exemption of duty146
75H.Application for exemption147
75HA.Subsequent liability for duty in certain circumstances148
75I.Part IIIBA companies151
Part IIIBAAA — Exemptions for corporate reconstructions
75J.Terms used in this Part153
75JAA.When a body corporate is dormant155
75JA.Corporate reconstructions: exemptions156
75JB.Corporate reorganisations: exemption from duty on conveyances between associated bodies corporate158
75JBA.Operation of claw‑back: application for pre‑determination in certain cases167
75JC.Corporate reorganisations: application for pre‑determination168
75JD.Corporate reorganisations: application for exemption170
75JDA.Exemption may be withheld in certain cases171
75JE.Claw‑back (instruments)172
75JF.Claw‑back (Part IIIBA statements)175
75JG.Offences and recovery of duty etc.176
75JH.Revoking an exemption177
Part IIIBA — Duty on change of control of certain land‑owning corporations
Division 1 — Provisions applicable to this Part
75K.Effect of Duties Act 2008 on this Part179
76.Terms used in this Part179
76A.Relevant acquisitions by trustees187
76AA.Assessment in the absence of a dutiable statement188
76AB.Request that Commissioner determine whether dutiable statement is required to be lodged189
Division 2 — Companies taken to be registered in Western Australia
76AG.Preparation of dutiable statement191
76AH.Statement chargeable with duty193
76AI.Companies to which this Division applies196
76AJ.Meaning of “relevant acquisition”201
76AK.Meaning of “interest”, “majority interest” and “further interest”203
76AL.How dutiable value is determined204
76AM.Liability for duty206
Division 3 — Corporations incorporated, or taken to be registered, outside Western Australia, and certain other companies not within Division 2
76AN.Preparation of dutiable statement207
76AO.Statement chargeable with duty209
76AP.Corporations to which this Division applies212
76AQ.Meaning of “relevant acquisition”218
76AR.Meaning of “interest”, “majority interest” and “further interest”220
76AS.How dutiable value is determined222
Division 3a — Listed companies taken to be registered in Western Australia
76AT.Preparation of dutiable statement225
76ATA.Statement chargeable with duty230
76ATB.Meaning of “listed land‑holder WA company”232
76ATC.Meaning of “relevant acquisition”237
76ATD.Meaning of “interest”, “controlling interest” and “additional interest”238
76ATE.How dutiable value is determined239
76ATF.Liability for duty242
Division 3b — Listed corporations incorporated, or taken to be registered, outside Western Australia, and certain other companies not within Division 3a
76ATG.Preparation of dutiable statement243
76ATH.Statement chargeable with duty247
76ATI.Meaning of “listed land‑holder corporation”250
76ATJ.Meaning of “relevant acquisition”256
76ATK.Meaning of “interest”, “controlling interest” and “additional interest”256
76ATL.How dutiable value is determined259
Division 4 — Reassessment of liability for duty
76AU.Reassessment where deeming provision applied262
Division 5 — Avoidance of duty
76AV.Commissioner may determine that an obligation to lodge a statement has been avoided263
76AW.Liability to pay duty that has been avoided265
76AX.Reasons for determination that duty has been avoided265
Part IIIC — Vehicle licences
76AY.Effect of Duties Act 2008 on this Part266
76B.Terms used in this Part266
76C.Non‑beneficial change of ownership270
76D.Duty on the grant or transfer of a vehicle licence272
76E.Determination of value and assessment of duty275
76F.Payment of duty276
76G.Applicant’s statement of value in application276
76H.Seller’s obligation to notify purchase price277
76I.Use of dealer registered vehicle for other purposes278
76J.Use of specialised equipment on another vehicle278
76K.Failure to apply for transfer of licence279
76L.Powers of Director General and Commissioner280
76M.Duty to be remitted to Commissioner280
76N.Records280
Part IIID — Leases
77.Agreement for any lease to be charged as a lease281
77A.Offer to lease281
78.Leases: how to be charged in respect of produce etc.283
79.Directions as to duty in certain cases284
80A.Power to exempt instruments made for charitable or similar purposes285
Part IIIE — Mortgage duty
Division 1 — Interpretation for this Part
81. 1M, 1MCTerms used in this Part286
82.Meaning of “mortgage”287
83.Meaning of “advance”288
84.Meaning of “loan”289
85.Meaning of “home mortgage”289
Division 2 — Liability for mortgage duty
85A.Mortgage duty abolished from 1 July 2008290
86.Assessing mortgage duty290
86A.Exemption — refinancing home loans291
86B.Exemption — refinancing small business loans292
87.Liability dates294
88.Stamping before advance295
Division 3 — Amount secured by a mortgage
89.The secured amount295
90.Contingent liabilities296
91.Mortgage over property partly outside WA297
91A.Mortgage packages298
91B.Collateral mortgages299
91C.Extent to which mortgage can be enforced299
91D.Use of stamped and collateral mortgages as security300
91E.Multi‑jurisdictional statement300
91F.Exemptions for charitable or public purposes301
Part IIIF — Insurance
Division 1 — Interpretation in Part IIIF and connection to the State
91G.Effect of Duties Act 2008 on this Part302
92.Terms used in this Part302
92A.Meaning of “general insurance” and connection to the State304
92B.Additional insurance — life riders305
92C.Payment of premiums306
Division 2 — Registration of insurers
93.Insurers to be registered307
93A.Registration of insurers307
93B.Cancelling registration of insurers307
Division 3 — Duty payable by insurers
94.Lodging returns and paying duty308
94A.Calculating the amount of duty payable on a return308
94B.Return period of an insurer309
Division 4 — Duty payable by insured persons
95.Meaning of “Division 4 insurer”309
95A.Insured person to lodge statement and pay duty309
95B.Insurer and intermediary to notify Commissioner of contracts of insurance310
Division 5 — General provisions
96.Apportionment of premiums and instalments311
96A.Refunds312
96B.Records313
Part IVB — Hire of goods
Division 1A — Abolition of duty
112.Hire of goods duty abolished from 1 January 2007315
Division 1 — Interpretation in Part IVB
112I.Meaning of “commercial hire business”315
112IA.Meaning of “goods”315
112IB.Meaning of “hire of goods”316
112IC.Meaning of “State hire of goods”317
112ID.Meaning of “equipment financing arrangement” and “hire purchase agreement”318
112IE.Meaning of “hiring charges”319
112IF.Terms used in this Part320
Division 2 — Registration of commercial hire businesses
112J.Commercial hire businesses to be registered321
112JA.Registration of commercial hire businesses321
112JB.Cancelling registration of commercial hire businesses321
Division 3 — Connection to the State
112K.Connection to the State — hire of goods and persons to which this Part applies322
Division 4 — Commercial hire businesses
112L.Lodging returns and paying duty323
112LA.Calculating the assessable amount for a return period324
112LB.Calculating the amount of duty payable on a return325
112LC.Return period for a commercial hire business325
112LD.Annual reconciliation326
Division 5 — Persons other than commercial hire businesses
112M.Statement of transaction327
112MA.Lodging statements and paying duty328
112MB.Method of calculating total hiring charges if they are not readily ascertainable329
Division 6 — General provisions
112N.Credit for duty paid in another Australian jurisdiction330
112NA.Splitting or redirecting hiring charges — anti‑avoidance provision330
112NB.Ascertainment and disclosure of place of use of goods330
112NC.Records332
Part IVC — Exemptions in relation to aged or disabled persons
112Q.Certain residential agreements with charitable bodies exempt333
112R.Certain aged care agreements exempt333
112S.Instruments not required to be lodged334
Part IVD — Maintenance agreements and orders
112UA.Terms used in this Part335
112UB.Application of Part IVD336
112UC.Duty on maintenance agreements and orders337
112UD.Duty on conveyance or transfer under maintenance agreement or order338
Part IVE — Managed investment schemes
112UE.Duty on certain instruments for the purpose of managed investment schemes339
Part V — Miscellaneous
113.Commissioner may impound unstamped documents341
114.Commissioner may destroy instruments341
119. 1MCertain exemptions where the State of Western Australia etc. is a party342
120.Regulations343
121.Application of section 1070A of the Corporations Act limited344
122.Transitional provisions344
Second Schedule — Duties payable on instruments
Third Schedule — Exemptions from duty
Schedule 4 — Transitional provisions
Division 1 — Provisions for Revenue Laws Amendment Act 2006
1.Application of old Part IVB363
2.Applications under section 75AH363
3.Application of Act to certain mortgages and advances363
4.Application of Act to certain instruments referred to in the Second Schedule item 19364
Division 2 — Provisions for Revenue Laws Amendment (Taxation) Act 2007
1.Application of Act in relation to certain first home owners364
2.Application of Act in relation to certain motor vehicles — 1 July 2007365
4.Reassessments366
Notes
Compilation table367
Defined terms
Western Australia
Stamp Act 1921
An Act to amend and consolidate the law relating to stamp duties upon instruments and to impose certain stamp duties, and for other relative purposes.
1.Short title and commencement
This Act may be cited as the Stamp Act 1921, and shall come into operation on a day to be fixed by proclamation 1.
[2.1MModification, to insert section 2, to have effect under the Commonwealth Places (Mirror Taxes Administration) Act 1999 s. 7, see Commonwealth Places (Mirror Taxes Administration) Regulations 2007 r. 38 and endnote 1M
[2.1MCModification, to insert section 2, to have effect under the Commonwealth Places (Mirror Taxes) Act 1998 (Commonwealth) s. 8, see Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007 cl. 40 and endnote 1MC
(1)This Act expires on a day fixed by proclamation.
(2)A proclamation is not to be made under subsection (1) unless, after 1 July 2008, the Commissioner has given the Minister a certificate signed by the Commissioner stating that the operation of this Act is no longer necessary.
[Section 2 inserted: No. 12 of 2008 s. 4.]
[2A, 3.Deleted: No. 2 of 2003 s. 4.]
4. 1M, 1MC
(1aa)The Taxation Administration Act 2003 is to be read with this Act as if they formed a single Act.
(1ab)The Glossary at the end of the Taxation Administration Act 2003 defines or affects the meaning of some of the words and expressions used in this Act and also affects the operation of other provisions.
(1)In this Act, except so far as the context otherwise requires —
corporation has the same definition as in section 9 of the Corporations Act;
Corporations Act means the Corporations Act 2001 of the Commonwealth;
de facto partner of 2 years, in relation to a person, means a person who is living in a de facto relationship with the person and has lived on that basis with the person for at least 2 years;
de facto partners of 2 years means 2 de facto partners of 2 years who are living in a de facto relationship with each other;
director has the same definition as in section 9 of the Corporations Act;
dutiable statement means a statement required to be lodged under section 31B, 31C, 63AE, 63AJ, 73DAA(1), 73DE, 75HA, 76AG, 76AN, 76AT, 76ATG, 77A, or 92A;
duty means duty payable under this Act;
dwellinghouse includes flat, apartment or other residential unit;
eligible conditional contract has the definition it is given in section 6;
endorse has a meaning affected by section 17C(7);
farming land conditional contract has the definition it is given in section 9;
financial institution means —
(a)an institution that is a “financial institution” for the purposes of the Cheques Act 1986 of the Commonwealth; or
(b)any other person who is, or who is in a class of persons that is, prescribed for the purposes of this definition;
financial market has the same definition as in Chapter 7 of the Corporations Act;
foreign company has the same definition as in section 9 of the Corporations Act;
former de facto partner of 2 years, in relation to a person, means a person who has lived in a de facto relationship with that person for at least 2 years, but no longer lives with that person on that basis;
general conditional contract has the definition it is given in section 8(1) as modified by section 8(2);
government body means an agent or instrumentality of the State, or an SES organisation as defined in the Public Sector Management Act 1994;
GST has the same meaning as it has in the Commonwealth A New Tax System (Goods and Services Tax) Act 1999 except that it includes notional GST of the kind for which payments may be made under the State Entities (Payments) Act 1999 by a person that is a State entity as defined in that Act;
instrument does not include a return;
interstate duty means duty of a similar nature to the duty payable under this Act that is payable in another State or Territory;
local government means a local government, regional local government, regional subsidiary or one of the associations constituted under section 9.58 of the Local Government Act 1995;
marketable security means —
(a)any stock or share of any corporation or local government or company or society;
(b)any debenture, debenture stock, bond, note or other security of a Government or of any corporation or local government or company or society, whether or not constituting a charge on the assets of the Government, local government, corporation, company or society;
(c)any right or interest, whether described as a unit or otherwise, of a beneficiary under a unit trust scheme —
(i)any of the units of which is quoted on a recognised financial market; or
(ii)that is not a private unit trust scheme within the meaning in section 63(2) or that is a unit trust scheme registered under section 63AA(2) or granted interim registration under section 63AC(2) or registered as a provisional public trust under section 63ADA(2);
mining tenement conditional contract has the definition it is given in section 11;
money includes a bill of exchange, a promissory note and all sums expressed in the currency of
mortgage has the definition it is given in section 82;
off‑the‑plan conditional contract has the definition it is given in section 10;
Part IIIBA statement means —
(a)a section 76AG statement;
(b)a section 76AN statement;
(c)a section 76AT statement; or
(d)a section 76ATG statement;
payment includes payment in money or by bill of exchange or promissory note;
primary produce contract has the definition it is given in section 9(2);
recognised financial market means a financial market prescribed for the purposes of this definition;
related, in relation to a general conditional contract, has the definition it is given in section 7;
related corporation means a related body corporate (as defined in section 9 of the Corporations Act);
right in respect of shares means a security, however described, that is or represents a right, whether actual, prospective or contingent, to be allotted or issued with an unissued marketable security, whether or not any money or other consideration is to be payable for the issue;
section 76AG statement means a dutiable statement lodged under section 76AG in relation to which the Commissioner has not made a determination under section 76AG(5a);
section 76AN statement means a dutiable statement lodged under section 76AN in relation to which the Commissioner has not made a determination under section 76AN(4a);
section 76AT statement means a dutiable statement lodged under section 76AT in relation to which the Commissioner has not made a determination under section 76AT(12);
section 76ATG statement means a dutiable statement lodged under section 76ATG in relation to which the Commissioner has not made a determination under section 76ATG(11);
stamp, when used as a verb in relation to an instrument, means to endorse the instrument in accordance with section 17C;
stamp Act means this Act or the Taxation Administration Act 2003;
subdivision conditional contract has the meaning it is given in section 12;
supply, in relation to an amount of GST, has the same meaning as it has in the Commonwealth A New Tax System (Goods and Services Tax) Act 1999;
surviving de facto partner of 2 years, in relation to a person who has died, means a person who, immediately before the person’s death was living in a de facto relationship with that person and had lived with the person on that basis for at least 2 years;
terminated on relevant grounds, in relation to a general conditional contract, has the definition it is given in section 14;
unconditional, in relation to a general conditional contract, has a meaning affected by section 13;
unencumbered value has a meaning affected by section 33;
unit, in Parts II and IIIB, has the definition it is given in section 63(1);
WA company means a company within the meaning of the Corporations Act that is taken, for the purposes of the Corporations Act, to be registered in
(2)Whenever a word or expression is defined in any Part, so that the word or expression bears the defined meaning when used in that Part, the word or expression shall, when used in the Second Schedule or the Third Schedule, be given the same meaning as it bears in that Part unless the context in which it is used in that Schedule otherwise requires.
[Section 4 inserted: No. 37 of 1979 s. 4; amended: No. 10 of 1982 s. 28; No. 81 of 1984 s. 3; No. 84 of 1985 s. 3; No. 33 of 1987 s. 5; No. 3 of 1989 s. 4; No. 41 of 1989 s. 4; No. 52 of 1991 s. 7; No. 39 of 1994 s. 15 and 21; No. 14 of 1996 s. 4; No. 48 of 1996 s. 31(1); No. 57 of 1996 s. 4; No. 13 of 1997 s. 21 and 35; No. 22 of 1998 s. 50; No. 53 of 1999 s. 17; No. 10 of 2001 s. 166; No. 36 of 2001 s. 24; No. 2 of 2003 s. 5; No. 21 of 2003 s. 25; No. 28 of 2003 s. 187; No. 66 of 2003 s. 4 and 107(2); No. 11 of 2004 s. 9; No. 12 of 2004 s. 14 and 21; No. 26 of 2016 s. 91.]
[Modification, to section 4, to have effect under the Commonwealth Places (Mirror Taxes Administration) Act 1999 s. 7, see Commonwealth Places (Mirror Taxes Administration) Regulations 2007 r. 39 and endnote 1M
[Modification, to section 4, to have effect under the Commonwealth Places (Mirror Taxes) Act 1998 (Commonwealth) s. 8, see Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007 cl. 41 and endnote 1MC
[4AA.1MModification, to insert section 4AA, to have effect under the Commonwealth Places (Mirror Taxes Administration) Act 1999 s. 7, see Commonwealth Places (Mirror Taxes Administration) Regulations 2007 r. 40 and endnote 1M.]
[4AA.1MC Modification, to insert section 4AA, to have effect under the Commonwealth Places (Mirror Taxes) Act 1998 (Commonwealth) s. 8, see Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007 cl. 42 and endnote 1MC.]
4A.Treatment of amounts payable for GST
(1)In ascertaining the value of anything or the consideration for anything, there is to be no discount for the amount of GST (if any) payable on the supply of that thing.
(2)A reference in Part IIIC to purchase price means the purchase price without any discount for the amount of GST (if any) payable on the supply of the vehicle.
[Section 4A inserted: No. 53 of 1999 s. 33; amended: No. 2 of 2003 s. 6; No. 66 of 2003 s. 5.]
[5.Deleted: No. 2 of 2003 s. 7.]
Part II — Conditional contracts (interpretation)
[Heading inserted: No. 12 of 2004 s. 15.]
6.Meaning of “eligible conditional contract”
(1)An eligible conditional contract is a contract for the sale of property where —
(a)completion of the contract is conditional on the happening of an event;
(b)the parties to the contract do not have control over the happening of the event, except to the extent that they are required under the contract to use their best endeavours to secure the happening of the event; and
(c)no other person who is related to a party to the contract has control over the happening of the event.
(2)However, none of the following is an eligible conditional contract —
(a)a put option and a call option (as defined in section 74B(1)) to which section 74B(6) applies;
(b)a contract for the sale of a unit in a unit trust scheme as defined in section 63(1);
(c)a contract that is subject to a condition which, in the opinion of the Commissioner, constitutes an arrangement or part of an arrangement to avoid or defer the payment of duty.
[Section 6 inserted: No. 12 of 2004 s. 15.]
7.Persons who are “related” for the purposes of this Part
(1)For the purposes of sections 6(1)(c), 14(a) and 17BA(3), persons are related if they are —
(a)joint owners of property;
(b)individuals who are in partnership with each other;
(c)participants in the same joint venture;
(d)family members;
(e)related corporations;
(f)a trustee and another trustee if there is any beneficiary common to the trusts of which they are trustees, whether the beneficiary has a vested share or is contingently entitled or may benefit from a discretionary trust;
(g)an individual and a corporation, if the individual is a majority shareholder, director or secretary of the corporation or a related corporation;
(h)an individual and a trustee, if the individual is a beneficiary under the trust of which the trustee is a trustee, whether the beneficiary has a vested share or is contingently entitled or may benefit from a discretionary trust;
(i)a corporation and a trustee, if —
(i)the corporation, or a majority shareholder, director or secretary of the corporation, is a beneficiary of the trust of which the trustee is a trustee; or
(ii)a related corporation to the corporation is a beneficiary of the trust of which the trustee is a trustee,
whether (in either case) the beneficiary has a vested share or is contingently entitled or may benefit from a discretionary trust.
(2)For the purposes of subsection (1) —
(a)an illegitimate person shall be treated as the legitimate child of that person’s parents;
(b)it is irrelevant whether a relationship is of the whole or half‑blood, or whether it is a natural relationship or a relationship established by a written law; and
(c)a majority shareholder in relation to a corporation is a person who would have a substantial holding in the corporation under the definition of “substantial holding” in section 9 of the Corporations Act even if the reference in that definition to 5% were a reference to 50%.
(3)For the purposes of subsection (1)(d), 2 persons are family members if, in relation to one person, the other person is —
(a)a child or remoter lineal descendant of the person;
(b)a parent or remoter lineal ancestor of the person;
(c)a brother or sister of the person or remoter lineal descendant of a brother or sister of the person;
(d)an aunt or uncle of the person;
(e)the spouse, former spouse, de facto partner or former de facto partner of the person;
(f)a family member referred to in paragraph (a), (b), (c) or (d) of a person referred to in paragraph (e); or
(g)the spouse or de facto partner of a person referred to in paragraph (a), (b), (c) or (d).
[Section 7 inserted: No. 12 of 2004 s. 15; amended: No. 11 of 2005 s. 6.]
8.Meaning of “general conditional contract”
(1)A general conditional contract is an eligible conditional contract, completion of which is conditional on the happening of one or more of the following events, as specified in the contract —
(a)the obtaining by the purchaser of a satisfactory private taxation ruling by the Commissioner of Taxation of the Commonwealth as to the consequences of the contract with respect to taxation under a law of the Commonwealth;
(b)the obtaining to the satisfaction of a purchaser under the contract of funds or of approval to obtain funds to finance the purchase;
(c)the obtaining by the purchaser of a satisfactory building inspection, geotechnical or environmental report from a third party in relation to the property to be sold or conveyed under the contract;
(d)the obtaining by a vendor of the consent of the Minister responsible for administering the Land Administration Act 1997 to transfer a lease of leasehold land to a purchaser;
(e)the authorisation of the payment to the purchaser of a first home owner grant under the First Home Owner Grant Act 2000;
(f)the obtaining by the purchaser of a licence to trade or the grant of a franchise;
(g)the obtaining by the vendor of a commercial property of the renewal of an existing lease of the property;
(h)the obtaining from the landlord of a leasehold business by the vendor of the business of a new lease, or of an assignment of the lease to a purchaser;
(i)the sale of another property by the purchaser;
(j)the obtaining by the vendor of the registration of a plan of subdivision, or of a strata plan or survey strata plan;
(k)the obtaining by the purchaser of approval from a regulatory body;
(l)the results of the making of due diligence inquiries by the purchaser where the results are to be measured against objective criteria set out in the contract;
(m)the issue of a certificate of title (however described) for the property that is the subject of the contract;
(n)a prescribed event.
(2)Except in section 20 and for the purposes of the definitions in sections 9, 10, 11 and 12, a reference in this Act to a general conditional contract is to be read as excluding a reference to a farming land conditional contract, an off‑the‑plan conditional contract, a mining tenement conditional contract or a subdivision conditional contract.
[Section 8 inserted: No. 12 of 2004 s. 15; amended: No. 29 of 2012 s. 38.]
9.Meaning of “farming land conditional contract”
(1)A farming land conditional contract is —
(a)a general conditional contract that is solely or principally for the sale of farming land as defined in section 75D(1); or
(b)a primary produce contract.
(2)A contract is a primary produce contract if —
(a)it is solely or principally for the sale of farming land as defined in section 75D(1); and
(b)completion of the contract is affected by or subject to an activity that constitutes primary production as defined in section 75D(1).
[Section 9 inserted: No. 12 of 2004 s. 15.]
10.Meaning of “off‑the‑plan conditional contract”
An off‑the‑plan conditional contract is a general conditional contract that includes provision for —
(a)the sale of a strata lot; and
(b)the construction on the strata lot, after the contract is executed, of a building for commercial, residential or mixed‑use purposes.
[Section 10 inserted: No. 12 of 2004 s. 15.]
11.Meaning of “mining tenement conditional contract”
A mining tenement conditional contract is a general conditional contract for the sale of —
(a)a mining tenement held under the Mining Act 1978, being a mining tenement within the meaning of that Act or the Mining Act 1904 2;
(b)a right under a mining tenement in force under section 5 of the Mining Act 1978;
(c)a right of occupancy in force under section 5 of the Mining Act 1978; or
(d)a tenement, right or interest that is —
(i)similar to a tenement or right described in paragraph (a), (b) or (c); and
(ii)held under the law of the Commonwealth or of another State or a Territory, or under the law of another country.
[Section 11 inserted: No. 12 of 2004 s. 15.]
12.Meaning of “subdivision conditional contract”
A subdivision conditional contract is a general conditional contract for the sale of land, completion of which is conditional on the obtaining by the purchaser of approval from the relevant authorities to subdivide the land or part of the land.
[Section 12 inserted: No. 12 of 2004 s. 15.]
13.When a conditional contract becomes unconditional
A general conditional contract becomes unconditional when the condition to which its completion was subject is fulfilled.
[Section 13 inserted: No. 12 of 2004 s. 15.]
14.Termination of conditional contracts on relevant grounds
A general conditional contract is terminated on relevant grounds if —
(a)it is not carried into effect because the condition to which it is or was subject cannot be fulfilled for reasons that are not within the control of a party to the contract or a person who is related to a party to the contract; and
(b)none of the parties has received or will receive a benefit under the contract.
[Section 14 inserted: No. 12 of 2004 s. 15.]
[15‑15B.Deleted: No. 2 of 2003 s. 7.]
16. 1MCCharge of duties on instruments
(1)From and after the commencement of this Act 1 and subject to this section, the duties to be charged for the use of the Crown on or in respect of the instruments specified in the Second Schedule shall be the duties specified opposite to those instruments in that Schedule, which duties shall be in substitution for the duties chargeable under the enactments repealed by this Act.
(2)The duties specified in the Second Schedule shall be subject to the exemptions specified in the Third Schedule or otherwise by or under this Act and in any other Act for the time being in force.
(3)Where an instrument which relates to property situate in, or deemed to be situate in, Western Australia or to any matter or thing done or to be done in Western Australia —
(a)is executed in
(b)is executed in some place outside
the provisions of a stamp Act shall extend and apply to the instrument, notwithstanding that the instrument is not in Western Australia, in all respects as if the instrument were executed and held in Western Australia.
(4)Despite anything else in this Part or in the Second Schedule, duty is not chargeable on a general conditional contract if the contract is not required to be lodged with the Commissioner because of the operation of section 17BA(4).
(5)Despite anything to the contrary in this Act, duty is not chargeable on an instrument —
(a)specified in any of items 4 to 12, 14A, 15, 17 or 19 of the Second Schedule; and
(b)first executed on or after 1 July 2008,
unless it is a continuing instrument.
(6)The reference in subsection (5) to an instrument specified in an item of the Second Schedule includes a reference to an instrument that would, but for this section, be chargeable with duty as if it were such an instrument.
(7)In subsection (5) —
continuing instrument means —
(a)an instrument of conveyance or transfer that replaces another instrument for the conveyance or transfer of the same property where the replaced instrument was first executed before 1 July 2008; or
(b)an instrument of conveyance or transfer where —
(i)the conveyance or transfer of property is made in accordance with an arrangement made on or after 28 November 2007; and
(ii)the sole or principal purpose of the arrangement was to defer the conveyance or transfer of the property until 1 July 2008 or later so that the rates of duty applicable under the Duties Act 2008 would apply to the conveyance or transfer.
[Section 16 amended: No. 21 of 1961 s. 2; No. 3 of 1971 s. 2; No. 37 of 1979 s. 14; No. 112 of 1982 s. 3; No. 98 of 1986 s. 4; No. 33 of 1987 s. 6; No. 41 of 1989 s. 7; No. 2 of 2003 s. 8; No. 12 of 2004 s. 16; No. 12 of 2008 s. 5.]
[Modification, to section 16, to have effect under the Commonwealth Places (Mirror Taxes) Act 1998 (Commonwealth) s. 8, see Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007 cl. 43 and endnote 1MC.]
(1)The person liable to pay duty on an instrument is —
(a)if a person is specified in the Second Schedule as the person liable to pay the duty on the instrument — that person;
(b)if another person is expressly liable under any other provision of a stamp Act to pay the duty — that other person;
(c)if the instrument is a dutiable statement — the person required to lodge the dutiable statement; or
(d)in any other case — the party to the instrument by whom or on whose behalf it is held.
(2)Nothing in this section is to be taken —
(a)to exonerate any other person from any liability imposed on the person under a stamp Act; or
(b)to exempt any instrument or matter from any duty to which it is liable under a stamp Act.
(3)A person who is liable to pay duty is also liable to pay any penalty tax, interest or other amount payable under a stamp Act in connection with the duty.
[Section 17 inserted: No. 2 of 2003 s. 9; amended: No. 66 of 2003 s. 6.]
(1)The liability to pay duty on an instrument arises —
(a)when the instrument is first executed; or
(b)if the instrument is a dutiable statement, on the occurrence of the transaction or event to which the statement relates.
(2)The duty is payable within one month after the date of the assessment notice.
(3)Subsection (2) does not apply in a particular case if a provision of a stamp Act specifies that in that particular case duty is payable at, or within, a different time or period.
(4)A taxpayer must pay the duty within the time required by subsection (2) or that other provision.
Penalty: $5 000.
[Section 17A inserted: No. 2 of 2003 s. 9.]
17AA.Time for payment on certain conditional contracts
(1)The duty on a farming land conditional contract or a mining tenement conditional contract is payable within 12 months after the date on which the contract was first executed or one month after the date of the assessment notice, whichever is the later.
(2)The duty on an off‑the‑plan conditional contract or a subdivision conditional contract is payable within 2 years after the date on which the contract was first executed or one month after the date of the assessment notice, whichever is the later.
[Section 17AA inserted: No. 12 of 2004 s. 17.]
17B.Requirement to lodge instrument
(1)A person who is, or may be, liable to pay duty on an instrument except a mortgage must lodge the instrument with the Commissioner within 2 months after the date on which the instrument was first executed.
Penalty: $5 000.
(1a)The person who is, or may be, liable to pay duty on a mortgage must lodge the mortgage with the Commissioner each time a liability arises under section 87, and must lodge it within 2 months after the respective liability date as defined in section 81.
(2)Subsection (1) does not apply in a particular case if a provision of a stamp Act specifies that in that particular case the instrument must be lodged at or within a different time or period.
[Section 17B inserted: No. 2 of 2003 s. 9; amended: No. 66 of 2003 s. 7; No. 12 of 2004 s. 22.]
17BA.Time for lodging certain conditional contracts
(1)If a general conditional contract becomes unconditional within one month after the date on which it was first executed, then the person who is, or may be, liable to pay duty on the contract must lodge the contract with the Commissioner within 2 months after the date on which it was first executed.
Penalty: $5 000.
(2)If a general conditional contract is not required to be lodged under subsection (1), then the person who is, or may be, liable to pay duty on the contract must lodge the contract —
(a)within one month after the date on which the contract becomes unconditional; or
(b)within 12 months after the date on which the contract was first executed,
whichever is earlier.
Penalty: $5 000.
(3)Despite subsection (2), if a vendor is related to a purchaser then the person who is, or may be, liable to pay the duty on the contract must lodge the contract with the Commissioner within 2 months after the day on which the contract was first executed.
Penalty: $5 000.
(4)Despite subsections (1), (2) and (3), a person is not required to lodge a general conditional contract with the Commissioner if the contract is terminated on relevant grounds before it is required to be lodged under this section.
(5)The person who is or may be liable to pay duty on a contract of any of the following kinds must lodge the contract with the Commissioner within 2 months after the day on which the contract was first executed —
(a)a farming land conditional contract;
(b)a mining tenement conditional contract;
(c)an off‑the‑plan conditional contract;
(d)a subdivision conditional contract.
Penalty: $5 000.
[Section 17BA inserted: No. 12 of 2004 s. 18.]
17C.Instrument to be endorsed when duty paid etc.
(1)When —
(a)duty is paid on an instrument;
(b)penalty tax or any other amount payable under a stamp Act in respect of an instrument is paid;
(c)the payment of duty payable on, or penalty tax or any other amount payable under a stamp Act in respect of, an instrument is waived;
(d)the Commissioner assesses an instrument as being not chargeable with duty;
(e)the Commissioner exempts an instrument from duty; or
(f)the Commissioner allows a reduction of the duty payable on an instrument,
then the Commissioner must —
(g)endorse the instrument accordingly; or
(h)if the instrument is dealt with under a special tax return arrangement — issue a stamp duty certificate in accordance with the arrangement.
(2)An endorsement under subsection (1) must be made in a prescribed manner.
(3)An instrument is taken to be endorsed in accordance with subsection (1) if the Commissioner endorses, in a prescribed manner, a copy or memorandum of the instrument under section 20 of the Taxation Administration Act 2003.
(3a)An instrument is taken to be endorsed in accordance with subsection (1) if the Commissioner endorses it under section 31B(15), 63A(2), 72(4), 74(4), 77(2) or 77A(11).
(4)The grant or transfer of a licence (as defined in section 76B) is taken to be endorsed in accordance with subsection (1) when it is granted or transferred.
(5)An endorsement of an instrument, or on a copy or memorandum of an instrument, in a prescribed manner is prima facie evidence of the matters noted in the endorsement.
(6)The Commissioner may, at the request of a party to an instrument specified in the Third Schedule, endorse the instrument as exempt from duty.
(7)In this Act, a reference to endorsing an instrument is to be read as including a reference to issuing a stamp duty certificate in relation to the instrument under subsection (1)(h).
[Section 17C inserted: No. 2 of 2003 s. 9; amended: No. 66 of 2003 s. 8; No. 12 of 2004 s. 23.]
18.How instruments to be written
Every instrument shall be written in such a manner as to leave a blank space at least 40 millimetres deep at the top of the first page or face of that instrument as a place for stamping thereon the amount of duty paid in respect of that instrument.
[Section 18 inserted: No. 37 of 1979 s. 16; amended: No. 2 of 2003 s. 10.]
19.Instruments to be separately charged with duty in certain cases
Except where express provision to the contrary is made by this or any other Act —
(a)an instrument containing or relating to 2 or more distinct matters is to be separately and distinctly charged, as if it were a separate instrument with duty in respect of each of the matters;
(b)an instrument made for any consideration in respect whereof it is chargeable with ad valorem duty, and also for any further or other valuable consideration, is to be separately and distinctly charged, as if it were a separate instrument, with duty in respect to each of the considerations.
[Section 19 amended: No. 2 of 2003 s. 11.]
20.Reduction of duty if matter not carried into effect
(1)The amount of duty payable on an instrument is reduced by the amount of the full duty payable in respect of a matter included in the instrument if the Commissioner is satisfied that —
(a)the matter has not been, and will not be, carried into effect;
(b)the taxpayer has not received, and will not receive, a benefit in respect of the matter; and
(c)the reason the matter was not, and will not be, carried into effect is not merely to enable a replacement transaction to be entered into.
(2)The amount of duty payable on an instrument is reduced in accordance with subsection (3) if the Commissioner is satisfied that —
(a)a matter included in an instrument has not been, and will not be, carried into effect;
(b)the taxpayer has received, or will receive, a benefit in respect of the matter;
(c)the value of the benefit is less than the full duty payable in respect of the matter; and
(d)the reason the matter was not, and will not be, carried into effect is not merely to enable a replacement transaction to be entered into.
(3)The amount of duty payable on the instrument is reduced by the amount of the difference between the value of the benefit referred to in subsection (2)(b) and the amount of the full duty payable in respect of the matter.
(4)A taxpayer receives a benefit in respect of a matter included in an instrument if, as a result of the matter not being carried into effect, an amount of money, or a right, property or service, is received —
(a)by the taxpayer; or
(b)with the consent, or at the direction of, the taxpayer, by an independent person.
(5)A taxpayer receives a benefit in respect of a matter contained in an instrument chargeable as a conveyance or transfer of property if —
(a)the instrument provides for or contemplates the conveyance or transfer of the property to an independent person;
(b)under an agreement, arrangement or understanding between the taxpayer and another party, the property has been or is to be conveyed or transferred to that other party or to another person; or
(c)the taxpayer obtains exclusive use or control of the property under a term contract (however described), whether or not the contract is for any reason not fully carried into effect.
(6)Where a taxpayer receives a benefit of the kind described in subsection (5) the value of the benefit is the amount of the full duty payable in respect of the matter.
(7)For the purpose of calculating the value of a benefit received by a taxpayer in respect of a matter (other than a benefit of the kind described in subsection (5)), an amount equal to the amount (if any) required to restore the taxpayer to the position the taxpayer would have been in if the matter had not been included in the instrument, is not to be taken into account.
(8)Subject to section 17 of the Taxation Administration Act 2003, the Commissioner must make any reassessment necessary to give effect to this section.
(9A)For the purposes of subsection (8), in respect of a matter included in a general conditional contract that has not been, and will not be, carried into effect, the Taxation Administration Act 2003 section 17 applies as if —
(a)despite subsection (1) of that section, a person is not entitled to apply for a reassessment —
(i)more than 5 years after the original assessment was made; or
(ii)more than 12 months after cancellation day,
whichever is the later; and
(b)despite subsection (4) of that section, the Commissioner may only make a reassessment on an application if the application was made within that time.
(9B)Subsection (9A) applies in relation to a matter included in a general conditional contract only if the day on which the contract is rescinded, annulled, abandoned or otherwise terminated without completion is on or after the day on which the Revenue Laws Amendment Act 2012 section 39 comes into operation.
(9)In this section —
full duty, in relation to a matter, means the amount of duty that would, but for this section, be payable in respect of the matter;
independent person, in relation to a matter, means a person who is not a party to the instrument that includes the matter;
party, in relation to a matter, means a person who is a party to the instrument that includes the matter;
replacement transaction, in relation to a matter, means a transaction between the taxpayer and an independent person that is substantially similar in effect to the transaction that was to have been effected by the instrument that includes the matter.
[Section 20 inserted: No. 2 of 2003 s. 12; amended: No. 29 of 2012 s. 39.]
[21.Deleted: No. 2 of 2003 s. 12.]
[22.Deleted: No. 37 of 1979 s. 18.]
[23.Deleted: No. 2 of 2003 s. 12.]
[24, 25.Deleted: No. 37 of 1979 s. 20.]
26. 1MCFacts and circumstances affecting duty to be set forth in instrument
(1)All the facts and circumstances affecting the liability of any instrument to duty, or the amount of the duty with which any instrument is chargeable, are to be fully and truly set forth in the instrument; and a person must not, with intent to defraud the Crown —
(a)execute any instrument in which all the said facts and circumstances are not fully and truly set forth; or
(b)being employed or concerned in or about the preparation of any instrument, neglect or omit fully and truly to set forth therein all the said facts and circumstances.
Penalty: $20 000.
(1a)For the purposes of subsection (1) the suppression from an instrument of any fact or circumstance referred to in subsection (1) or the inclusion therein of any matter that is known to be false in a material particular is prima facie evidence of intent to defraud the Crown.
(2)The Commissioner may, in a case in which he considers that the circumstances so require, permit any error in an instrument to be corrected before the instrument is stamped.
(3)A person who, after an instrument has been stamped, alters the instrument in any manner which may increase its liability to duty shall produce the altered instrument, within one calendar month after the making of the alteration, to enable the Commissioner to reassess the amount of duty payable on the instrument.
Penalty: $20 000.
(4)For the purposes of this section facts and circumstances referred to in subsection (1) that are set forth in a document accompanying an instrument when it is presented for stamping are to be regarded as being set forth in that instrument.
[Section 26 amended: No. 113 of 1965 s. 4(1); No. 37 of 1979 s. 21; No. 81 of 1984 s. 8; No. 33 of 1987 s. 8; No. 20 of 1996 s. 18; No. 2 of 2003 s. 13.]
[Modification, to section 26, to have effect under the Commonwealth Places (Mirror Taxes) Act 1998 (Commonwealth) s. 8, see Commonwealth Places (Mirror Taxes) (Modification of Applied Laws (WA)) Notice 2007 cl. 44 and endnote 1MC.]
27.Instruments not stamped inadmissible except in criminal proceedings
(1)Except as otherwise provided by a stamp Act no instrument chargeable with duty and executed in Western Australia, or relating, wheresoever executed, to any property situate or deemed to be situate or to any matter or thing done or to be done in Western Australia, shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless it is stamped in accordance with the law in force at the time when it was first executed.
(2)Any document executed in
(a)affords any evidence of —
(i)an acquisition to which section 31B applies;
(ii)a transfer to which section 31C applies;
(iii)a disposition to which section 73DAA(1) applies; or
(iv)a transaction referred to in section 77A(1);
and
(b)is a document —
(i)relating to an acquisition, transaction, disposition or transfer for which a dutiable statement is required to be lodged under section 31B, 31C, 73DAA(1) or 77A; but
(ii)which is not itself chargeable with duty,
shall not, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless a dutiable statement has been lodged under section 31B, 31C, 73DAA(1) or 77A in respect of the acquisition, transaction, disposition or transfer to which that document relates and the duty with which the dutiable statement is chargeable has been paid.
(3)Sections 29 and 30 and this section do not apply to an instrument or a document relating to an acquisition, transaction or transfer for which a dutiable statement is required to be lodged under section 31B, 31C or 77A, and this section does not apply to an instrument or a document relating to a disposition for which a dutiable statement is required to be lodged under section 73DAA(1), where the instrument or document is pleaded in a pleading filed in any court, or tendered as evidence in any court, on behalf of a party (not being a person who is liable to pay the duty in respect of the instrument or dutiable statement, as the case requires) —
(a)in the case where the instrument or document is pleaded, if before the pleading is filed in the court, the person —
(i)has informed the Commissioner of the name of the person liable to pay the duty in respect of the instrument or dutiable statement; and
(ii)has lodged —
(I)the instrument or a copy of the instrument; or
(II)the document or a copy of the document,
as the case requires, with the Commissioner;
and
(b)in the case where the instrument or document is tendered, if the court is satisfied that the person —
(i)has informed, or will in accordance with arrangements approved by the court, inform the Commissioner of the name of the person liable to pay the duty in respect of the instrument or dutiable statement; and
(ii)has lodged, or will in accordance with arrangements approved by the court, lodge —
(I)the instrument or a copy of the instrument; or
(II)the document or a copy of the document,
as the case requires, with the Commissioner.
[Section 27 amended: No. 67 of 1966 s. 3; No. 102 of 1970 s. 4; No. 98 of 1986 s. 6; No. 33 of 1987 s. 9; No. 41 of 1989 s. 8; No. 39 of 1994 s. 18; No. 41 of 1995 s. 4(1); No. 20 of 1996 s. 19; No. 13 of 1997 s. 36(1); No. 22 of 1998 s. 31; No. 36 of 2001 s. 14; No. 2 of 2003 s. 14; No. 66 of 2003 s. 9; No. 11 of 2005 s. 7.]
28.No instrument to be registered etc. unless stamped
(1)A person whose duty it is to receive, register, enrol, enter or record —
(a)any original instrument or duplicate or counterpart instrument or any copy of an instrument shall not, if the original instrument is chargeable with duty or is exempt from duty or would, if it were in Western Australia, be so chargeable or exempt, receive, register, enrol, enter or record the original instrument, duplicate or counterpart instrument or copy unless he is satisfied that the original instrument has been stamped or is exempt from duty or that the duplicate or counterpart instrument or copy has been stamped under subsection (3), as the case requires; or
(b)any document referred to in section 27(2) shall not receive, register, enrol, enter or record that document unless he is satisfied that a dutiable statement has been lodged under section 31B, 31C, 73DAA(1) or 77A in respect of the acquisition, transaction, disposition or transfer to which that document relates and that the duty with which the dutiable statement is chargeable has been paid.
Penalty: $20 000.
(2)A person referred to in subsection (1) may refer any question concerning the liability to duty of an original instrument, duplicate or counterpart instrument or copy of an instrument to the Commissioner for determination.
(3)When an original instrument has not been stamped and the Commissioner is satisfied that it is not reasonably practicable to present the original instrument for stamping, he may, at the request of any person and on payment of the duty which is chargeable on the original instrument, stamp the duplicate or counterpart or copy thereof as if it were the original instrument.
(4)If a caveat relates to an instrument which is liable to duty or a document referred to in section 27(2) the registrar must reject the caveat unless —
(a)the instrument or the dutiable statement relating to the document has been stamped; or
(b)the registrar is satisfied, on evidence provided by the person lodging the caveat, that the instrument or the dutiable statement relating to the document, has been lodged with the Commissioner for assessment.
Penalty: $20 000.
(5)If a caveat relates to an instrument that is not liable to duty the registrar may reject it unless when it is lodged it is accompanied by a statutory declaration —
(a)stating that the instrument is not liable to duty; and
(b)setting out why the instrument is not liable to duty (including reference to any relevant provisions of a stamp Act).
(6)In subsections (4) and (5) —
caveat means a caveat lodged under —
(a)Part V of the Transfer of Land Act 1893; or
(b)the Mining Act 1978;
registrar means the Registrar of Titles or a mining registrar within the meaning of the Mining Act 1978 (as the case requires).
[Section 28 inserted: No. 37 of 1979 s. 22; amended: No. 93 of 1982 s. 4; No. 81 of 1984 s. 9; No. 98 of 1986 s. 7; No. 33 of 1987 s. 10; No. 41 of 1989 s. 9; No. 36 of 2001 s. 15; No. 2 of 2003 s. 15; No. 66 of 2003 s. 10.]
29.Production of instruments as evidence
(1)Upon production of an instrument chargeable with any duty or a document referred to in section 27(2) (other than a document relating to a disposition to which section 73DAA(1) applies) as evidence in any court of civil judicature, or before any arbitrator or referee, notice shall be taken by the court, arbitrator or referee of whether, and to what amount, the instrument has been stamped or of any failure to comply with section 31B(1), 31C(1) or 77A(1) in respect of the acquisition, transaction or transfer to which that document relates, or to pay the duty with which the dutiable statement required to be lodged under section 31B, 31C or 77A in respect of that acquisition, transaction or transfer is chargeable, as the case requires.
(2)If an instrument referred to in subsection (1) is one which may legally be stamped at the time of production, it may, on payment to an officer of the relevant court or to the arbitrator or referee concerned of the amount of unpaid duty and of any penalty tax payable in respect of the instrument, be received in evidence, saving all just exceptions on other grounds.
(2a)If a document referred to in subsection (1) relates to an acquisition, transaction or transfer in respect of which a dutiable statement is required to be lodged under section 31B, 31C or 77A and either the dutiable statement has not been lodged or the duty with which the dutiable statement is chargeable has not been paid, the document may, on production to an officer of the relevant court or to the arbitrator or referee concerned of the dutiable statement and payment to him of the amount of duty and of any penalty tax payable in respect of the dutiable statement, be received in evidence, saving all just exceptions on other grounds.
(3)On receiving payment under subsection (2) or (2a) the officer of the court, arbitrator or referee concerned shall forthwith transmit to the Commissioner the instrument or dutiable statement concerned, together with the duty and any penalty tax paid in respect of the instrument or dutiable statement.
(4)On receiving the instrument or dutiable statement the Commissioner is to make an assessment of the duty payable on it, issue an assessment notice, stamp the instrument or dutiable statement and return it to the officer of the court, arbitrator or referee with the assessment notice.
(5)Section 23(3) of the Taxation Administration Act 2003 does not apply to an assessment notice referred to in subsection (4).
[Section 29 amended: No. 9 of 1974 s. 10; No. 37 of 1979 s. 23; No. 98 of 1986 s. 8; No. 33 of 1987 s. 11; No. 57 of 1997 s. 113(1); No. 36 of 2001 s. 16; No. 2 of 2003 s. 16; No. 66 of 2003 s. 11.]
(1)In proceedings in any court of civil judicature or before any arbitrator or referee, secondary evidence of —
(a)an instrument may, if the instrument is one which may then legally be stamped, be admitted, saving all just exceptions on other grounds, notwithstanding that the instrument is chargeable with duty and has not been stamped, if the duty and any penalty tax payable in respect of the instrument are paid to an officer of that court or to the arbitrator or referee, as the case requires; or
(b)a document referred to in section 27(2) (other than a document relating to a disposition to which section 73DAA(1) applies) may be admitted, saving all just exceptions on other grounds, on production to an officer of that court or to the arbitrator or referee of a dutiable statement lodged under section 31B, 31C or 77A and payment to him of the amount of duty and of any penalty tax payable in respect of the dutiable statement.
(2)On receiving payment under subsection (1) the officer of the court, arbitrator or referee is to deliver the instrument or dutiable statement to the Commissioner together with the duty and any penalty tax paid in respect of the instrument or dutiable statement.
(3)On receiving the instrument or dutiable statement the Commissioner is to make an assessment of the duty payable on it, issue an assessment notice, stamp the instrument or dutiable statement and return it to the officer of the court, arbitrator or referee with the assessment notice.
(4)Section 23(3) of the Taxation Administration Act 2003 does not apply to an assessment notice referred to in subsection (3).
[Section 30 inserted: No. 98 of 1986 s. 9; amended: No. 33 of 1987 s. 12; No. 36 of 2001 s. 17; No. 2 of 2003 s. 17; No. 66 of 2003 s. 12.]
31.Stamped instruments as evidence
An instrument that has been stamped or is taken to have been stamped —
(a)is admissible in evidence; and
(b)except in proceedings under Part 4 of the Taxation Administration Act 2003, the endorsement of the instrument is conclusive evidence that the assessment is correct.
[Section 31 inserted: No. 12 of 2004 s. 24.]
[31AA‑31AC, 31A.Deleted: No. 2 of 2003 s. 18.]
31B.Payment of duty on statements in absence of dutiable instrument
(1)A person who acquires an interest by way of an acquisition to which this section applies shall, within 2 months after the acquisition, lodge a statement with the Commissioner in respect of the acquisition.
Penalty: $20 000.
(2)A dutiable statement must be prepared in an approved form.
(3)Subject to subsection (8), this section applies to any of the following —
(a)the acquisition of beneficial ownership of an estate or interest in —
(i)freehold land, whether or not registered under the Transfer of Land Act 1893;
(ii)a Crown lease registered under the Transfer of Land Act 1893; or
(iii)a mining tenement registered under the Mining Act 1978,
or any buildings on, or fixtures annexed to, or to buildings on, any such land, lease or tenement if the land, lease or tenement is situated in
(b)the acquisition of beneficial ownership of chattels (as defined in section 70) and other property (as defined in section 70);
(c)the acquisition of beneficial ownership of chattels (as defined in section 70) acquired as part of a series of acquisitions or transactions relating to chattels and to other property (as defined in section 70) at least one of which changes, or is or includes an agreement to change, the beneficial ownership of the other property;
(d)the acquisition of a business asset (as defined in section 74C) of a business in circumstances in which section 74C applies.
(4)A merger of a corporation (Company A) with and into another corporation (Company B) in circumstances where neither subsection (5) nor subsection (6) applies is taken to effect an acquisition by Company B of the beneficial ownership of the property of Company A, and this section applies to that acquisition.
(5)A merger of corporations (the merging corporations) in circumstances where another corporation (Company C) results as a consequence of the merger is taken to effect an acquisition by Company C of the beneficial ownership of the property of the merging corporations, and this section applies to that acquisition.
(6)A merger of corporations (the merging corporations) with and into each other in circumstances where each of the merging corporations continues in existence is taken to effect an acquisition by the merging corporations, jointly, of the beneficial ownership of 50% (in value) of the property of the merging corporations, and this section applies to that acquisition.
(7)Where —
(a)section 73F applies to a transaction relating to a business licence; and
(b)the business licence is of a kind prescribed for the purposes of this section,
the transaction is taken to be an acquisition to which this section applies.
(8)This section does not apply to —
(a)an acquisition effected by an instrument that is —
(i)chargeable with duty under item 4 or 6 of the Second Schedule; or
(ii)exempt from duty;
or
(b)an acquisition evidenced by an instrument if the instrument is chargeable with duty under item 4 of the Second Schedule; or
(c)an acquisition evidenced by an instrument which, if the acquisition were effected by that instrument (irrespective of whether it is practicable or possible to do so), would be an acquisition effected by an instrument that is —
(i)exempt from duty; or
(ii)chargeable with duty under item 6 of the Second Schedule;
or
(d)an acquisition which, if it were effected by an instrument (irrespective of whether it is practicable or possible to do so), would be effected by an instrument that is —
(i)exempt from duty; or
(ii)chargeable with duty under item 6 of the Second Schedule;
or
(e)an acquisition relating to chattels and other property as referred to in subsection (3)(b) unless this section would have applied to the acquisition if it had only related to the other property; or
(f)a transaction relating to chattels as referred to in subsection (3)(c) unless at least one of the transactions in the series relates to other property (as defined in section 70) and is —
(i)dutiable (as defined in section 70); or
(ii)a transaction to which subsection (1) applies;
or
(g)the acquisition of beneficial ownership of property of a bankrupt under section 58 of the Bankruptcy Act 1966 of the Commonwealth; or
(h)an acquisition that occurs on or after 1 July 2008.
(9)A dutiable statement lodged under subsection (1) is taken to be an instrument of conveyance of property and is chargeable with duty accordingly.
(10)Each person from whom another person has made an acquisition to which this section applies shall, within 2 months after the acquisition is made, notify the Commissioner in an approved form that the acquisition has been made.
Penalty: $20 000.
(11)Nothing in this section prevents the joint making of a notification under subsection (10) in respect of an acquisition by any 2 or more parties to the acquisition who are required to make the notification.
(12)The requirement to lodge a dutiable statement under subsection (1) or give notification under subsection (10) ceases to apply if an instrument that evidences the acquisition and is chargeable with ad valorem duty is executed at any time after the acquisition was made, but nothing in this subsection affects the liability of a person for an offence against subsection (1) or (10) committed before the instrument was executed.
(13)Where subsection (12) has effect, the instrument referred to in that subsection is to be regarded, for the purposes of sections 16(5) and 17A, as having been first executed on the day on which the acquisition was made.
(14)If an instrument is executed as referred to in subsection (12) after a dutiable statement has been lodged under subsection (1), subsection (9) ceases to apply to the dutiable statement unless duty has already been paid in respect of it.
(15)If duty has already been paid as mentioned in subsection (14), the instrument is not chargeable with ad valorem duty but the Commissioner, on being requested to do so, is to endorse on the instrument the duty paid.
[Section 31B inserted: No. 66 of 2003 s. 13; amended: No. 31 of 2006 s. 4; No. 12 of 2008 s. 6.]
31C.Preparation of dutiable statement about voluntary transfers under the Financial Sector (Transfers of Business) Act 1999 of the Commonwealth
(1)If assets of a body (the transferring body) are transferred to another body (the receiving body) under Part 3 of the Financial Sector (Transfers of Business) Act 1999 of the Commonwealth, the receiving body must, within 2 months after the transfer, lodge a statement with the Commissioner in respect of the transfer, but only if the assets are property of a kind that, if there was an instrument effecting or evidencing the transfer, duty would be chargeable on the instrument.
Penalty: $20 000.
(1a)Subsection (1) does not apply to a transfer that occurs on or after 1 July 2008.
(2)A dutiable statement must be prepared in an approved form.
(2a)A dutiable statement lodged under subsection (1) is taken to be an instrument of transfer of the assets and is chargeable with duty accordingly.
(2b)Duty is payable by the receiving body.
(3)Section 31B does not apply to, or in relation to, the transfer.
[Section 31C inserted: No. 36 of 2001 s. 18; amended: No. 2 of 2003 s. 20; No. 66 of 2003 s. 14; No. 12 of 2008 s. 7.]
[31D.Deleted: No. 2 of 2003 s. 21.]
[32.Deleted: No. 2 of 2003 s. 22.]
33.Valuation of land or other property
(1)When determining the value of any land or other property for the purpose of a stamp Act —
(a)the existence of any overriding power of revocation or reconveyance is to be disregarded;
(b)the value of an undivided share in the land or other property, whether held jointly or in common, is to be ascertained by multiplying the total value of the land or other property by the share expressed as a fraction; and
(c)when applying the ordinary principles of valuation —
(i)it is to be assumed that a hypothetical purchaser would, when negotiating the price of the land or other property, have knowledge of all existing information relating to the land or other property; and
(ii)no account is to be taken of any amount that a hypothetical purchaser would have to expend to reproduce, or otherwise acquire a permanent right of access to and use of, existing information relating to the land or other property.
(2)When determining the unencumbered value of any land or other property for the purposes of a stamp Act —
(a)an encumbrance on the land or other property is to be disregarded; and
(b)an interest, agreement or arrangement (not being an encumbrance) that —
(i)has the effect of reducing the value of the land or other property; and
(ii)was granted or made on or after 27 December 1996,
is, subject to subsection (3), to be disregarded.
(3)An interest, agreement or arrangement is not to be disregarded if, in the Commissioner’s opinion —
(a)it was not granted or made for the purpose of reducing the value of the land or other property; and
(b)it was not granted to or made in favour of —
(i)the taxpayer;
(ii)in the case of an instrument chargeable under item 19 of the Second Schedule — the person on whom the land or other property is settled or agreed to be settled, or to whom the land or other property is given or agreed to be given, or for whom it is declared to be held in trust;
(iii)in the case of a relevant acquisition to which Division 3 of Part IIIBA applies — the person who acquired the majority interest or further interest;
(iiia)in the case of a relevant acquisition to which Division 3b of Part IIIBA applies — the person who acquired the controlling interest or additional interest; or
(iv)a person who is associated with, or related to (within the meaning of section 76), a person referred to in subparagraph (i), (ii), (iii) or (iiia).
(4)In this section —
land includes an estate or interest in —
(a)freehold land, whether or not registered under the Transfer of Land Act 1893;
(b)a Crown lease registered under the Transfer of Land Act 1893; or
(c)a mining tenement registered under the Mining Act 1978,
or any buildings on, or fixtures annexed to, or to buildings on, any such land, Crown lease or mining tenement.
[Section 33 inserted: No. 2 of 2003 s. 22; amended: No. 11 of 2004 s. 10; No. 36 of 2005 s. 4.]
[33A.Deleted: No. 2 of 2003 s. 22.]
34.Duplicates and counterparts
A duplicate or counterpart of a stamped instrument is chargeable with duty under item 9 of the Second Schedule.
[Section 34 inserted: No. 2 of 2003 s. 22.]
[34A‑34C.Deleted: No. 2 of 2003 s. 22.]
35.Unlodged transfers — independent person’s obligations
(1)This section applies in relation to a transfer of property if the instrument of transfer has not been lodged before the end of the period within which it is required under a stamp Act to be lodged.
(2)Where a person who is not a party to the transfer —
(a)has custody or control of the instrument of transfer; or
(b)in dealing with the property, acts on the authority of, in reliance on or in pursuance of the instrument of transfer,
the person must lodge the instrument, or notify the Commissioner about the instrument, as soon as practicable after the person becomes aware, or ought reasonably to have become aware, that the instrument has not been lodged before the end of the period within which it is required to be lodged under a stamp Act.
Penalty: $20 000.
(3)A notification under subsection (2) must set out, to the extent that the information can be ascertained from the transfer or is otherwise known to the person —
(a)the nature of the transfer;
(b)the names of the parties to the transfer;
(c)the date on which the transfer was first executed;
(d)a summary of the principal terms of the transfer (such as the property to which it relates and the consideration paid or payable); and
(e)any prescribed information.
(4)In this section —
instrument of transfer means an instrument of transfer, or a dutiable statement, on which duty is payable under item 4 of the Second Schedule;
transfer includes conveyance.
[Section 35 inserted: No. 2 of 2003 s. 22; amended: No. 66 of 2003 s. 107(3).]
36.Mode of calculating ad valorem duty in certain cases
Where an instrument is chargeable with ad valorem duty in respect of —
(a)any money in any currency other than the currency of
(b)any marketable security or right in respect of shares,
the duty shall be calculated on the value of the money in the currency of
[Section 36 amended: No. 93 of 1966 s. 5; No. 37 of 1979 s. 27; No. 2 of 2003 s. 23.]
[37.Deleted: No. 2 of 2003 s. 24.]
For the purposes of a stamp Act an escrow is taken to be an instrument duly executed and delivered and is liable to duty accordingly.
[Section 38 inserted: No. 2 of 2003 s. 24.]
39.Determining whether securities are situated in
(1)A marketable security or right in respect of shares of a WA company is, for the purposes of a stamp Act, taken to be situated in Western Australia, irrespective of where the register on which it is registered by the company is situated and despite section 1070A(4) of the Corporations Act or any other law.
(2)A marketable security or right in respect of shares of a foreign company is, for the purposes of a stamp Act, taken to be situated in
(3)A unit in a unit trust scheme is, for the purposes of a stamp Act, taken to be situated in
(a)the scheme’s principal register is kept in
(b)where the scheme’s principal register is not kept in
(i)an individual, resident in
(ii)a WA company; or
(iii)a foreign company with a registered office under the Corporations Act in
(4)A marketable security or right in respect of shares of a company that is taken under the Corporations Act to be registered in another State or Territory is, for the purposes of a stamp Act, taken not to be situated in
(5)Subsection (1) is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act in relation to section 1070A(4) of that Act.
[Section 39 inserted: No. 66 of 2003 s. 15.]
[39A.Deleted: No. 2 of 2003 s. 24.]
40.Valuing a marketable security or right in respect of shares
(1)The value of a marketable security or right in respect of shares is to be determined —
(a)as if the constitution or governing rules of the issuer satisfied any requirements of the Australian Stock Exchange Limited that must be satisfied before the security or right could be quoted on the Australian Stock Exchange Limited; and
(b)disregarding any provision in the constitution or governing rules of the issuer providing for the valuation of the security or right.
(2)Despite subsection (1), the Commissioner may determine the value of a marketable security or right in respect of shares to be the amount the Commissioner considers would be received by the holder of the security or right if the issuer were to be voluntarily wound up on the day of the transfer.
[Section 40 inserted: No. 66 of 2003 s. 15.]
[41‑44.Deleted: No. 37 of 1979 s. 30.]
[Headings before section 45 deleted: No. 37 of 1979 s. 31.]
[45.Deleted: No. 37 of 1979 s. 32.]
[46‑48.Deleted: No. 72 of 1965 s. 6(b)‑(d).]
[Part IIIA:
s. 49‑50D deleted: No. 66 of 2003 s. 16(1);
s. 50E deleted: No. 42 of 1993 s. 4.]
[51.Deleted: No. 37 of 1979 s. 37.]
[52.Deleted: No. 2 of 2003 s. 30.]
[53‑60.Deleted: No. 37 of 1979 s. 39.]
[61.Deleted: No. 96 of 1976 s. 4.]
[62.Deleted: No. 96 of 1976 s. 5.]
Part IIIB — Conveyances and transfers
[Heading inserted: No. 37 of 1979 s. 40.]
[Heading deleted: No. 2 of 2003 s. 31.]
(1)In this Part —
conveyance on sale includes —
(a)every instrument and decree or order of any court or of the Commissioner of Titles, whereby any property or any estate or interest in any property on the sale thereof is transferred to or vested in the purchaser or any other person on his behalf or by his direction;
(b)every transfer or assignment of a lease of any lands; and
(c)every decree or order of any court or of the Commissioner of Titles for, or having the effect of an order for, foreclosure;
custodian trustee has the same meaning as it has in section 15 of the Trustees Act 1962;
discretionary trustee means a trustee of any property over which any person has a power of appointment which was not created by will;
disposition, in relation to a unit, includes —
(a)a transfer or other disposition of the unit;
(b)the allotment or issue of the unit;
(c)the redemption, surrender or cancellation of the unit;
(d)the variation, abrogation or alteration of a right pertaining to the unit with respect to the capital of the unit trust scheme; and
(e)any means by which a unit is disposed of or the rights of its holder are diminished;
provisional public trust means a unit trust scheme that is registered under section 63ADA(2);
start up period means —
(a)in relation to a unit trust scheme except a provisional public trust to which paragraph (b) applies — the period of one year beginning on the day on which the first units under the scheme are issued; or
(b)in relation to a provisional public trust for which the prospectus or information memorandum has been, or is to be, lodged with the Australian Securities and Investments Commission — the period of one year beginning on —
(i)the day on which the first units under the scheme are issued; or
(ii)the day of lodgement,
whichever period is the later to expire;
transfer, in relation to a unit, means a conveyance, transfer, or instrument chargeable as a conveyance;
trustee means, unless the contrary intention appears, a trustee who is not a discretionary trustee or a unit trustee;
unit means any right or interest, whether described as a unit or otherwise, of a beneficiary under a unit trust scheme and includes an interest in a unit;
unit trust scheme means, unless the contrary intention appears, a private unit trust scheme within the meaning in subsection (2);
unit trustee means a trustee of a unit trust scheme.
(1aa)For the purposes of sections 63AA(2a)(a) and 63AB(2)(g), the Commissioner may treat 2 or more parcels of land as a single parcel of land if the Commissioner is satisfied that it is appropriate to do so having regard to —
(a)the ownership of the parcels of land;
(b)the proximity of the parcels of land;
(c)the use of the parcels of land; and
(d)any other matter the Commissioner considers to be relevant.
(2)A unit trust scheme is a private unit trust scheme if at the time of any conveyance, transfer or other disposition of a unit —
(a)the unit trust scheme is not —
(i)one to which Division 11 (sections 1451 to 1465) of Part 11.2 of the Corporations Law applied by reason of section 1452 of that Law; or
(ii)a managed investment scheme registered under section 601EB of the Corporations Act,
or is a scheme referred to in subparagraph (i) or (ii) but no units have been issued to the public or an insufficient number of persons is beneficially entitled to units under the scheme; and
(b)the unit trust scheme —
(i)is not an approved deposit fund or a pooled superannuation trust within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or
(ii)is an approved deposit fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth but no units have been issued to the public or an insufficient number of persons is beneficially entitled to units under the scheme.
(3)An insufficient number of persons is beneficially entitled to units under a unit trust scheme if —
(a)fewer than 50 persons are so entitled; or
(b)20 or fewer persons are so entitled to 75% or more of the total issued units under the scheme.
(4)For the purposes of subsection (2)(a) and (b)(ii) —
(a)each partner in a partnership that holds units under a unit trust scheme is to be treated as beneficially entitled to the same proportion of the units as the proportion of the partnership assets to which the partner would be entitled on the dissolution of the partnership and after all the debts and liabilities of the partnership had been discharged; and
(b)a person is to be treated as beneficially entitled to a unit held by the person or by a related person.
(5)For the purposes of subsection (4), the following persons are related —
(a)individuals who are spouses or de facto partners of each other or between whom the relationship is that of parent and child;
(b)related corporations;
(c)a trustee and a trustee of another trust if —
(i)there is any beneficiary common to the trusts, whether the beneficiary has a vested share or is contingently entitled or may benefit from a discretionary trust; and
(ii)the beneficiary’s share or interest in each trust constitutes more than 50% of the trust property or of the issued units in the unit trust scheme;
(d)an individual and a corporation if the individual is a majority shareholder, director or secretary of the corporation or a related corporation;
(e)an individual and a trustee if —
(i)the individual is a beneficiary under the trust, whether the individual has a vested share or is contingently entitled or may benefit from a discretionary trust; and
(ii)the individual’s share or interest in the trust constitutes more than 50% of the trust property or of the issued units in the unit trust scheme;
(f)a corporation and a trustee if —
(i)the corporation or a majority shareholder, director or secretary of the corporation is a beneficiary of the trust; or
(ii)a related corporation to the corporation is a beneficiary of the trust,
and that beneficiary’s share or interest in the trust constitutes more than 50% of the trust property or of the issued units in the unit trust scheme.
(6)For the purposes of subsection (5) —
(a)an illegitimate person is to be treated as the legitimate child of that person’s parents;
(b)it is irrelevant whether a relationship is of the whole or half‑blood, or whether it is a natural relationship or a relationship established by a written law;
(c)a majority shareholder, in relation to a corporation, is a person who would have a substantial holding in the corporation under the definition of “substantial holding” in section 9 of the Corporations Act even if the reference in that definition to 5% were a reference to 50%; and
(d)a trustee includes a discretionary trustee and a unit trustee.
(7)For the purposes of subsection (5), the share or interest of a person in a trust is to be determined as the greatest share or interest that the person could derive at any time from the trust whether by the fulfilment of any condition, the outcome of any contingency or the exercise of any power or discretion or otherwise, and in particular a person that may benefit from a discretionary trust is to be deemed to be entitled to —
(a)the property subject to the discretionary trust, unless the Commissioner determines otherwise; or
(b)such part of that property as the Commissioner determines.
[Section 63 inserted: No. 37 of 1979 s. 41; amended: No. 112 of 1982 s. 5; No. 33 of 1987 s. 15; No. 39 of 1994 s. 21; No. 48 of 1996 s. 44; No. 24 of 1999 s. 4; No. 3 of 2001 s. 18; No. 10 of 2001 s. 167; No. 36 of 2001 s. 26; No. 2 of 2003 s. 32; No. 66 of 2003 s. 17.]
63AA.Registered unit trust schemes
(1)In this section —
land has the same meaning as in section 76;
scheme land means land held by a unit trustee in the unit trustee’s capacity as trustee of a unit trust scheme.
(1a)A unit trustee may apply to the Commissioner in an approved form for registration of a unit trust scheme.
(1b)An application may be made whether or not the unit trust scheme has previously been registered under subsection (2).
(1c)An application for registration of a unit trust scheme as a pooled investment trust is to be accompanied by a statement by the unit trustee in an approved form of the unencumbered value of the interests in scheme land referred to in section 63AB(2)(f) and, if applicable, (g)(i).
(2)The Commissioner may register the unit trust scheme as a pooled investment trust or an equity trust with effect from the date of the application if —
(a)the Commissioner is satisfied that the unit trust scheme is eligible for registration under section 63AB(2) as a pooled investment trust or section 63AB(3) as an equity trust;
(ab)in the case of an application for registration of a unit trust scheme as a pooled investment trust — the unit trust scheme is not to be treated as a sub‑trust under subsection (2a); and
(b)the Commissioner is satisfied that registration is not being used and is not likely to be used as part of a scheme or arrangement with the collateral purpose of avoiding or reducing the duty that otherwise would be or might become payable.
(2a)For the purposes of subsection (2)(ab) and sections 63AC(2)(ab) and 63AD(8), a unit trust scheme is to be treated as a sub‑trust if —
(a)the scheme land comprises only one parcel of land;
(b)a unit holder in the scheme participated directly or indirectly (otherwise than by means of the unit holder’s subscription under the scheme) in the unit trustee’s acquisition of the scheme land;
(c)a unit holder in the scheme states in a financial report, or other document, provided to its members that the unit holder has an interest in the scheme land;
(d)a unit holder in the scheme beneficially owns an interest in any land otherwise than as a unit holder in a unit trust scheme; or
(e)a unit holder in the scheme makes an offer to the public for subscriptions principally by reference to the scheme land and not to units in a unit trust scheme,
unless the Commissioner is satisfied that in the circumstances of a particular case it is not reasonable to treat the scheme as a sub‑trust.
(3)For the purpose of being satisfied as to a matter referred to in subsection (2)(b), the Commissioner may take into account any matter that the Commissioner considers to be relevant.
(3a)Subject to this Part, registration of a unit trust scheme under subsection (2) has effect for a period of 3 years.
(4)The Commissioner shall advise the unit trustee whether or not he has registered the unit trust scheme as a pooled investment trust or an equity trust.
(4a)Subject to section 17 of the Taxation Administration Act 2003, if the Commissioner registers a unit trust scheme as a pooled investment trust or an equity trust the Commissioner shall make any reassessment necessary to give effect to that registration.
(5)If the Commissioner decides not to register a unit trust scheme as a pooled investment trust or an equity trust he must give the unit trustee reasons for his decision.
(6)If the Commissioner decides not to register a unit trust scheme as a pooled investment trust or an equity trust, the unit trustee may challenge the validity or correctness of that decision in accordance with Part 4 of the Taxation Administration Act 2003 as if the unit trustee were a taxpayer and the decision were a decision affecting the trustee’s liability to pay duty.
[Section 63AA inserted: No. 36 of 2001 s. 27; amended: No. 2 of 2003 s. 33; No. 66 of 2003 s. 18.]
63AB.Criteria for registration of a unit trust scheme
(1)In this section —
land has the same definition as in section 76.
(1a)For the purposes of this section, a person and another person are related if they are related as provided in section 63(5).
(2)For the purposes of section 63AA(2), a unit trust scheme is eligible for registration as a pooled investment trust if it meets all of the following criteria —
(a)the scheme is established and managed by a funds manager solely or principally for the investment and management of subscriptions by unit holders of the kind described in paragraph (c) and is not established or managed for a particular person;
(b)at least 2 persons who are not related are unit holders in the scheme;
(c)each unit holder in the scheme —
(i)holds the unit in the unit holder’s capacity as a trustee of a complying superannuation fund within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth;
(ii)holds the unit in the unit holder’s capacity as a trustee of a complying approved deposit fund within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth;
(iii)holds the unit in the unit holder’s capacity as a trustee or manager of a fund that is part of a public sector superannuation scheme within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;
(iv)is a life company that holds the unit solely for the purpose of an investment of its statutory funds maintained by it under the Life Insurance Act 1995 of the Commonwealth;
(v)holds the unit in the unit holder’s capacity as a trustee of a unit trust that is not a unit trust scheme;
(vi)holds the unit in the unit holder’s capacity as a trustee of a master trust, being a trust by means of which the public may invest in managed funds;
(vii)holds the unit in the unit holder’s capacity as a trustee of a unit trust scheme registered under section 63AA(2) as a pooled investment trust;
(viii)holds the unit in the unit holder’s capacity as a trustee of a unit trust scheme each unit holder in which is of a kind described in another subparagraph of this paragraph;
(ix)holds the unit in the unit holder’s capacity as a trustee or manager of a fund or trust that the Commissioner is satisfied corresponds to a fund or trust referred to in subparagraph (i), (ii), (iii), (v) or (vi) under the law of an external Territory or a country other than Australia;
(x)is a body corporate that the Commissioner is satisfied —
(I)corresponds to a company referred to in subparagraph (iv) under the law of an external Territory or a country other than
(II)holds the unit for a purpose that corresponds to the purpose referred to in that subparagraph;
(xi)holds not more than 5% of the total issued units under the scheme; or
(xii)is a person who, the Commissioner is satisfied, is, or is in a class of persons that is, prescribed for the purposes of this paragraph;
(d)if paragraph (c)(xi) applies to 2 or more unit holders in the scheme to which no other subparagraph of paragraph (c) applies, those unit holders do not together hold more than 10% of the total issued units under the scheme;
(e)at least 2 unit holders in the scheme who are not related each have a subscription under the scheme of not less than $3 000 000;
(f)the unit trustee, in the unit trustee’s capacity as trustee of the scheme, holds interests in land (whether or not situated in
(g)either —
(i)the interests in land referred to in paragraph (f) include interests in at least 3 parcels of land, and at least 2 of those interests each have an unencumbered value of not less than $10 000 000; or
(ii)at least 6 unit holders who are not related each have a subscription under the scheme of not less than $3 000 000;
(h)the scheme provides for offers of initial subscriptions only to persons to whom an offer of securities does not need disclosure under section 708(8) or (11) of the Corporations Act.
(2a)In subsection (2)(a) —
funds manager means —
(a)a body corporate that, as its principal business, provides funds management and investment services to persons of the kind described in subsection (2)(c) if —
(i)that business is not conducted to provide those services only to particular persons; and
(ii)the body corporate manages funds invested with it of not less than $500 000 000;
or
(b)a body corporate that is a member of a group of related corporations that, as the group’s principal business, provides funds management and investment services to persons of the kind described in subsection (2)(c) if —
(i)that business is not conducted to provide those services only to particular persons; and
(ii)the body corporate or the group manages funds invested with it of not less than $500 000 000.
(2b)For the purposes of subsection (2)(c), a unit held by a unit holder in the unit holder’s capacity as a custodian trustee is taken to be held by each of the persons on whose behalf the custodian trustee holds the unit.
(3)For the purposes of section 63AA(2), a unit trust scheme is eligible for registration as an equity trust if it meets all of the following criteria —
(a)the unit trustee, as trustee of the scheme, does not hold, and is not empowered or able to hold, any thing other than —
(i)shares, or an option to acquire shares, in a company or corporation that is not a company to which section 76AI or 76ATB or a corporation to which section 76AP or 76ATI applies;
(ii)units in a unit trust that are marketable securities;
(iii)property that the Commissioner is satisfied is necessary for the administration of the scheme but which is not and cannot be used for the purpose of investment;
(iv)cash or money in an account at call;
(v)negotiable instruments, and money on deposit with any person;
(vi)any thing prescribed for the purposes of this paragraph;
(b)not less than 5 persons are holders of units under the scheme;
(c)no person beneficially entitled to units under the scheme, other than the Government of the Commonwealth, a State or a Territory or a corporation of which such a Government is a majority shareholder, is entitled to more than 40% of the total issued units under the scheme.
(4)For the purpose of determining whether the criteria referred to in subsection (3)(c) have been satisfied, one person shall be treated as being beneficially entitled to all units held by the person and all units held by another person if those persons are related as provided in section 63(5).
[Section 63AB inserted: No. 36 of 2001 s. 27; amended: No. 2 of 2003 s. 34; No. 28 of 2003 s. 188; No. 66 of 2003 s. 19; No. 11 of 2004 s. 11; No. 12 of 2004 s. 25.]
(1)A unit trustee may apply to the Commissioner in an approved form for interim registration of a unit trust scheme if the application is made before the end of the start up period.
(2)The Commissioner may grant the unit trust scheme interim registration as a pooled investment trust or an equity trust, as the case may be, for the start up period if —
(a)the Commissioner is satisfied that, subject to subsection (2a), the scheme satisfies the criteria for registration set out in section 63AB(2)(a), (c) (other than subparagraph (xi)) and (h) or (3)(a), as the case requires;
(ab)in the case of an application for interim registration of a unit trust scheme as a pooled investment trust — the scheme is not to be treated as a sub‑trust under section 63AA(2a); and
(b)the trustee gives the Commissioner an undertaking that units in the scheme will be issued so that at the end of the start up period the scheme will also comply with the criteria referred to in section 63AB(2)(b), (c), (d), (e), (f) and (g) or (3)(b) and (c), as the case requires, and the Commissioner is satisfied that those criteria will be fulfilled by the end of the start up period.
(2a)If —
(a)at the beginning of the start up period the body corporate that established and manages a unit trust scheme is not a funds manager (as defined in section 63AB(2a)); and
(b)the Commissioner is satisfied that —
(i)the scheme otherwise satisfies the criteria for registration referred to in subsection (2)(a); and
(ii)the body corporate will be a funds manager by the end of the start up period,
the Commissioner may grant the scheme interim registration as a pooled investment trust under subsection (2).
(3)The Commissioner shall advise the unit trustee whether or not he has granted the unit trust scheme interim registration as a pooled investment trust or an equity trust.
(3a)Subject to section 17 of the Taxation Administration Act 2003, if the Commissioner grants a unit trust scheme interim registration as a pooled investment trust or an equity trust, then the Commissioner shall make any reassessment necessary to give effect to that registration.
(4)If the Commissioner decides not to grant the unit trust scheme interim registration as a pooled investment trust or an equity trust he must give the unit trustee reasons for his decision.
(5)If the Commissioner decides not to grant the unit trust scheme interim registration as a pooled investment trust or an equity trust, the unit trustee may challenge the validity or correctness of that decision in accordance with Part 4 of the Taxation Administration Act 2003 as if the unit trustee were a taxpayer and the decision were a decision affecting the trustee’s liability to pay duty.
[Section 63AC inserted: No. 36 of 2001 s. 27; amended: No. 2 of 2003 s. 35; No. 66 of 2003 s. 20.]
63AD.Cancellation of registration or interim registration
(1)For the purposes of this section and section 63AE, a disqualifying event occurs —
(a)in the case of a unit trust scheme that has been registered under section 63AA(2) — if the scheme ceases to comply with a criterion that is applicable to it referred to in section 63AB(2) or (3);
(b)in the case of a unit trust scheme that has been granted interim registration — if, during the start up period, the scheme ceases to comply with a criterion that is applicable to it referred to in section 63AB(2)(a), (c) (other than subparagraph (xi)) or (h), or (3)(a);
(c)in the case of a unit trust scheme that has been granted interim registration — if, on the last day of the start up period, the scheme does not comply with a criterion that is applicable to it referred to in section 63AB(2)(b), (c), (d), (e), (f) or (g), or (3)(b) or (c); or
(d)in the case of a unit trust scheme that was established and is managed by a body corporate and that has been granted interim registration as a pooled investment trust by virtue of section 63AC(2a) — if, on the last day of the start up period, the body corporate is not a funds manager (as defined in section 63AB(2a)).
(2)If a disqualifying event occurs, the unit trustee shall, within 14 days after the day on which the disqualifying event occurs, give the Commissioner notice about the disqualifying event, unless it is taken to have occurred under subsection (4) or (6).
(3)When the Commissioner receives a notice under subsection (2) —
(a)in the case of a unit trust scheme registered under section 63AA(2), the registration is cancelled and the cancellation is taken to have had effect on and from immediately before the occurrence of the event; and
(b)in the case of a unit trust scheme granted interim registration under section 63AC(2), the interim registration is cancelled and the cancellation is taken to have had effect on and from immediately before the start up period.
(4)If the Commissioner has not been notified of the occurrence of a disqualifying event but he is satisfied that a disqualifying event has occurred, a disqualifying event is taken to have occurred and the Commissioner shall —
(a)in the case of a unit trust scheme registered under section 63AA(2), cancel the registration;
(b)in the case of a unit trust scheme granted interim registration under section 63AC(2), cancel the interim registration; and
(c)notify the unit trustee of —
(i)the cancellation;
(ii)from when the cancellation takes effect;
(iii)the reasons for the cancellation; and
(iv)when the Commissioner is satisfied that the disqualifying event occurred.
(5)Cancellation under subsection (4) is taken to have had effect —
(a)in the case of a unit trust scheme registered under section 63AA(2), on and from immediately before the occurrence of the disqualifying event; or
(b)in the case of a unit trust scheme granted interim registration under section 63AC(2), on and from immediately before the start up period.
(6)If the Commissioner is satisfied that a unit trust scheme registered under section 63AA(2) or granted interim registration under section 63AC(2) is being used as part of a scheme or arrangement with the collateral purpose of avoiding or reducing the duty that otherwise would be or might become payable, a disqualifying event is taken to have occurred and the Commissioner shall —
(a)cancel the registration or interim registration; and
(b)notify the unit trustee of the matters referred to in subsection (4)(c).
(7)For the purpose of being satisfied as to a matter referred to in subsection (6), the Commissioner may take into account any matter that the Commissioner considers to be relevant.
(8)If a unit trust scheme registered under section 63AA(2) or granted interim registration under section 63AC(2) is to be treated as a sub‑trust under section 63AA(2a), a disqualifying event is taken to have occurred and the Commissioner shall —
(a)cancel the registration or interim registration; and
(b)notify the unit trustee of the matters referred to in subsection (4)(c).
[Section 63AD inserted: No. 36 of 2001 s. 27; amended: No. 2 of 2003 s. 36; No. 66 of 2003 s. 21.]
63ADA.Registration of private unit trust scheme as provisional public trust
(1)A unit trustee may apply to the Commissioner in an approved form for registration of a unit trust scheme as a provisional public trust if the application is made before the end of the start up period.
(2)The Commissioner may register the unit trust scheme as a provisional public trust for the start up period if satisfied that —
(a)it is intended that, by the end of the start up period, the unit trust scheme will no longer be a private unit trust scheme within the meaning in section 63(2); and
(b)registration is not being used and is not likely to be used as part of a scheme or arrangement with the collateral purpose of avoiding or reducing the duty that otherwise would be or might become payable on the conveyance or transfer of trust property.
(3)For the purpose of being satisfied as to a matter referred to in subsection (2)(b), the Commissioner may take into account any matter that the Commissioner considers to be relevant.
(4)The Commissioner —
(a)must advise the unit trustee as to whether or not the Commissioner has registered the unit trust scheme as a provisional public trust; and
(b)if the Commissioner decides not to register a unit trust scheme as a provisional public trust, must give the unit trustee reasons for that decision.
(5)Subject to section 17 of the Taxation Administration Act 2003, if the Commissioner registers a unit trust scheme as a provisional public trust, then the Commissioner must make any reassessment necessary to give effect to that registration.
(6)If the Commissioner decides not to register a unit trust scheme as a provisional public trust, the unit trustee may challenge the validity or correctness of that decision in accordance with Part 4 of the Taxation Administration Act 2003 as if the unit trustee were a taxpayer and the decision were a decision affecting the trustee’s liability to pay duty.
[Section 63ADA inserted: No. 66 of 2003 s. 22.]
63ADB.Cancellation of registration of provisional public trust
(1)For the purposes of this section and section 63AE a disqualifying event occurs in relation to a unit trust scheme that has been registered as a provisional public trust —
(a)if, on the last day of the start up period, the scheme is a private unit trust scheme within the meaning in section 63(2); or
(b)without limiting paragraph (a), if —
(i)the start up period begins on the day on which the prospectus or information memorandum for the scheme is lodged with the Australian Securities and Investments Commission; and
(ii)during the start up period, there is a disposition of a unit that was held in the scheme on the first day of that period.
(2)A disposition referred to in subsection (1)(b)(ii) is to be disregarded if the Commissioner is satisfied that in the circumstances of a particular case it is reasonable to do so.
(3)If a disqualifying event occurs —
(a)the Commissioner must cancel the registration of the unit trust scheme as a provisional public trust;
(b)the cancellation is taken to have had effect on and from immediately before the start up period; and
(c)the unit trustee must, within 14 days after the day on which the disqualifying event occurs, give the Commissioner notice about the disqualifying event, unless it is taken to have occurred under subsection (4) or (5).
(4)If the Commissioner has not been notified of the occurrence of a disqualifying event but is satisfied that a disqualifying event has occurred —
(a)a disqualifying event is taken to have occurred and subsection (3)(a) and (b) apply; and
(b)the Commissioner must notify the unit trustee of —
(i)the cancellation under subsection (3)(a) of the registration of the unit trust scheme as a provisional public trust;
(ii)the reasons for the cancellation; and
(iii)when the Commissioner is satisfied that the disqualifying event occurred.
(5)If the Commissioner is satisfied that a provisional public trust is being used as part of a scheme or arrangement with the collateral purpose of avoiding or reducing the duty that otherwise would be or might become payable on the conveyance or transfer of trust property —
(a)a disqualifying event is taken to have occurred and subsection (3)(a) and (b) apply; and
(b)the Commissioner must notify the unit trustee of the matters referred to in subsection (4)(b).
(6)For the purposes of subsection (5), if a conveyance or transfer of the trust property of a provisional public trust —
(a)is taken to be made for the purposes of section 73D(4); and
(b)results solely from the allotment or issue of units in the provisional public trust during the start up period,
the conveyance or transfer is to be disregarded in relation to a unit held in the provisional public trust on the first day of the start up period.
(7)For the purpose of being satisfied as to a matter referred to in subsection (5), the Commissioner may take into account any matter that the Commissioner considers to be relevant.
[Section 63ADB inserted: No. 66 of 2003 s. 22.]
63AE.Dutiable statement about disqualifying event and subsequent transfers or dispositions
(1)If a disqualifying event occurs in relation to a unit trust scheme, the unit trustee of the scheme shall within 2 months after the day on which the disqualifying event occurred lodge a statement with the Commissioner in relation to the event.
Penalty: $20 000.
(2)The dutiable statement must —
(a)be prepared in an approved form;
(b)in relation to the occurrence of a disqualifying event, contain details of the disqualifying event;
(c)in the case of the cancellation of the registration under section 63AA(2) of a unit trust scheme, contain details of transfers and dispositions in relation to the scheme that occurred in the period commencing immediately before the occurrence of the disqualifying event and ending on the day on which the Commissioner is given notice of the event or the day on which the Commissioner is satisfied that the event occurred and which would have been chargeable with duty under section 73D had the scheme not been registered;
(d)in the case of the cancellation of the interim registration of a unit trust scheme, contain details of transfers and dispositions in relation to the scheme that occurred in the period commencing immediately before the start up period and ending on the day on which the Commissioner is given notice of the event or the day on which the Commissioner is satisfied that the event occurred and which would have been chargeable with duty under section 73D had the scheme not been granted interim registration; and
(e)in the case of the cancellation of the registration of a unit trust scheme as a provisional public trust, contain details of transfers and dispositions in relation to the scheme that occurred in the period commencing immediately before the start up period and ending on the day on which the Commissioner is given notice of the event or the day on which the Commissioner is satisfied that the event occurred and which would have been chargeable with duty under section 73D had the scheme not been registered as a provisional public trust.
[Section 63AE inserted: No. 36 of 2001 s. 27; amended: No. 2 of 2003 s. 37; No. 66 of 2003 s. 23.]
63AF.Duty chargeable on the dutiable statement
(1)A dutiable statement lodged under section 63AE is taken to be an instrument effecting or evidencing the transfers and dispositions details of which are included in the dutiable statement under section 63AE(2)(c), (d) or (e) and is chargeable with duty accordingly.
[(2)deleted]
(3)Duty is payable by the unit trustee.
[Section 63AF inserted: No. 37 of 2001 s. 15; amended: No. 2 of 2003 s. 38; No. 66 of 2003 s. 24.]
63AG.When unit trust scheme becomes private unit trust scheme
(1)In this section and sections 63AH, 63AI and 63AJ —
aggregated dispositions means dispositions that —
(a)include a disposition referred to in subsection (3)(a) (the transitional disposition); and
(b)under this section together form substantially one disposition;
private unit trust scheme has the meaning given in section 63(2).
(2)Subject to subsection (3), if, as a result of the disposition of a unit, a unit trust scheme becomes a private unit trust scheme, the unit trust scheme is taken to have become a private unit trust scheme immediately before that disposition.
(3)If —
(a)as a result of the disposition of a unit, a unit trust scheme becomes a private unit trust scheme; and
(b)that disposition is one of 2 or more dispositions of units in the unit trust scheme that together form substantially one disposition,
the unit trust scheme is taken to have become a private unit trust scheme immediately before the first of those dispositions.
(4)For the purposes of subsection (3), dispositions of units in a unit trust scheme are together taken to form substantially one disposition if those dispositions are made in response to —
(a)one offer made or one arrangement entered into; or
(b)offers made or arrangements entered into within 12 months of each other by a person or by a person and a related person.
(5)For the purposes of subsection (4), a person and another person are related if they are related as provided in section 63(5).
(6)If —
(a)the aggregated dispositions are made in response to 2 or more offers made or arrangements entered into; and
(b)the Commissioner is satisfied that a disposition that would otherwise form part of the aggregated dispositions is not made for a common purpose,
the Commissioner is to treat that disposition as not forming part of the aggregated dispositions.
(7)Subject to subsection (10), duty is chargeable under section 73D in respect of the dispositions that comprise —
(a)the transitional disposition; and
(b)any of the aggregated dispositions made before the transitional disposition is made,
as if those dispositions together formed one disposition made at the time the transitional disposition is made.
(8)If any disposition forming part of the aggregated dispositions is made after the transitional disposition is made, duty is chargeable under section 73D in respect of all the aggregated dispositions as if they together formed one disposition made at the time the last of the aggregated dispositions is made.
(9)The amount of duty payable under subsection (8) is to be reduced by the amount of any duty paid under subsection (7).
(10)A unit trustee liable to pay duty under both subsections (7) and (8) may elect to pay duty solely under subsection (8) by lodging with the Commissioner a notice, in an approved form, within 2 months after the transitional disposition is made.
(11)For the purposes of this section, if the disposition of a unit is not made within the period of 3 months after the unit holder ceases to be the beneficial owner of the unit, the disposition of the unit is taken to have been made on the expiry of that period, and the Commissioner may create a memorandum of the disposition for the purposes of section 20 of the Taxation Administration Act 2003.
[Section 63AG inserted: No. 66 of 2003 s. 25(1).]
63AH.Liability for duty on aggregated dispositions
(1)Despite section 73D(7), the unit trustee is liable to pay the duty that is chargeable under section 73D because of section 63AG in respect of the aggregated dispositions.
(2)If —
(a)a person other than the unit trustee has paid duty under section 73D in respect of a disposition that forms part of the aggregated dispositions; and
(b)the unit trustee has paid the duty referred to in subsection (1) in respect of those dispositions,
the person referred to in paragraph (a) is entitled to a refund of the amount of duty paid by that person.
(3)Subject to section 17 of the Taxation Administration Act 2003, the Commissioner must make any reassessment necessary to give effect to this section.
[Section 63AH inserted: No. 66 of 2003 s. 25(1).]
(1)If interstate security duty has been paid in respect of any disposition forming part of the aggregated dispositions, the amount of the aggregated duty that is attributable to that disposition is to be reduced by the same proportion of the interstate security duty as the value of the trust property situated in Western Australia bears to the aggregate value of all the trust property.
(2)In subsection (1) —
aggregated duty means the duty that is chargeable under section 73D because of section 63AG in respect of the aggregated dispositions;
interstate security duty means duty chargeable in another State or a Territory on a conveyance or transfer of any marketable security or right in respect of shares.
[Section 63AI inserted: No. 66 of 2003 s. 25(1).]
63AJ.Dutiable statement to be lodged
(1)If duty is chargeable under section 73D because of section 63AG in respect of the aggregated dispositions, the unit trustee of the unit trust scheme concerned must lodge with the Commissioner —
(a)if no election is made under section 63AG(10) — within 2 months after the transitional disposition is made, a statement in respect of that disposition and any disposition forming part of the aggregated dispositions that is made before the transitional disposition is made; and
(b)if any disposition forming part of the aggregated dispositions is made after the transitional disposition is made — within 2 months after the last of the aggregated dispositions is made, a statement in respect of all the aggregated dispositions.
Penalty: $20 000.
(2)A dutiable statement must be prepared in an approved form.
(3)A dutiable statement lodged under subsection (1) is taken to be an instrument evidencing the dispositions in respect of which it is lodged and is chargeable with duty to the extent that duty chargeable on those dispositions under section 73D because of section 63AG has not been paid.
(4)The amount of duty payable in respect of a dutiable statement lodged under paragraph (b) of subsection (1) is to be reduced by the amount of any duty paid in respect of a dutiable statement lodged under paragraph (a) of that subsection.
[Section 63AJ inserted: No. 66 of 2003 s. 25(1).]
63A.Duty on certain decrees and orders
(1)Ad valorem duty on a decree or order referred to in the definition of “conveyance on sale” in section 63 shall not exceed the duty on a sum equal to the value of the property to which that decree or order relates and, when that decree or order states that value, then despite section 33 and sections 21 and 22 of the Taxation Administration Act 2003, that statement shall be conclusive for the purpose of determining the amount of duty.
(2)When ad valorem duty has been paid on a decree or order referred to in subsection (1), any conveyance or transfer following on that decree or order shall not be chargeable with duty but the Commissioner, on being requested to do so, is to endorse on the conveyance or transfer the duty paid.
[Section 63A inserted: No. 37 of 1979 s. 41; amended: No. 2 of 2003 s. 39; No. 66 of 2003 s. 26.]
64.How ad valorem duty to be calculated in respect of stock and securities
(1)Where the consideration or any part of the consideration for a conveyance on sale consists of any marketable security or right in respect of shares, such conveyance is to be charged with ad valorem duty in respect of the value of such security or right.
(2)Where the consideration or any part of the consideration for a conveyance on sale consists of any security not being a marketable security or right in respect of shares, such conveyance is to be charged with ad valorem duty in respect of the amount due on the day of the date thereof for principal and interest upon such security.
[Section 64 amended: No. 93 of 1966 s. 6; No. 48 of 1996 s. 32.]
65.How ad valorem duty to be calculated in respect of securities and periodical payments
(1)When the consideration or any part of the consideration for a conveyance on sale consists of money payable periodically —
(a)for a definite period so that the total amount to be paid can be ascertained prior to the commencement of that period;
(b)in perpetuity or for any indefinite period not terminable with life; or
(c)during any life or lives,
the conveyance on sale is to be charged with ad valorem duty on the value of the ascertainable consideration or on the value of the property concerned, whichever is the greater.
(2)Notwithstanding anything in subsection (1), a conveyance on sale chargeable with ad valorem duty in respect of, and containing provision for securing, any periodical payments is not to be charged with any duty whatsoever in respect of that provision.
[Section 65 inserted: No. 37 of 1979 s. 42; amended: No. 2 of 2003 s. 40.]
66.How conveyances in consideration of a debt or subject to future payment etc. to be charged
Where any property is conveyed, whether by way of sale or otherwise, to any person in consideration, wholly or in part, of any debt due to him or subject either certainly or contingently to the payment or transfer of any money, marketable security or right in respect of shares, whether being or constituting a charge or encumbrance upon the property or not, such debt, money, marketable security or right in respect of shares is to be deemed the whole or part, as the case may be, of the consideration in respect whereof the conveyance is chargeable with ad valorem duty and such conveyance shall be deemed to be a conveyance on sale of the property and to be chargeable with ad valorem duty accordingly.
[Section 66 amended: No. 93 of 1966 s. 7; No. 112 of 1982 s. 6; No. 33 of 1987 s. 16; No. 48 of 1996 s. 33; No. 2 of 2003 s. 41.]
67.Duty where conveyance is partly in consideration of improvements made or to be made on property
A conveyance on sale made for any consideration in respect whereof it is chargeable with ad valorem duty and in further consideration of a covenant by the purchaser to make, or of his having previously made, any substantial improvement of or addition to the property conveyed or transferred to him or of any covenant relating to the subject matter of the conveyance, is not chargeable, and shall be deemed not to have been chargeable, with any duty in respect of such further consideration.
[Section 67 amended: No. 37 of 1979 s. 43; No. 81 of 1984 s. 14; No. 2 of 2003 s. 42.]
[68.Deleted: No. 37 of 1979 s. 44.]
69.Conveyance duty in cases where conveyance made at request or by direction of intermediary
(1)Subject to sections 73 and 74, where —
(a)property is conveyed or transferred by one person (the transferor) to another person (the transferee) or is agreed to be so conveyed or transferred; and
(b)another person (the intermediary) obtained the beneficial ownership of the property after the transferor acquired the beneficial ownership thereof but before he conveyed or transferred, or agreed to convey or transfer, the property to the transferee,
the instrument of conveyance or the agreement shall be subject to duty, as if it were both a conveyance of the property by the transferor to the intermediary, and also a conveyance of the property by the intermediary to the transferee; and if there are 2 or more intermediaries, as if it were a conveyance of the property from the transferor to the first intermediary and a conveyance from each intermediary to the other in succession, and from the last intermediary to the transferee.
(2)Subsection (1) does not apply to the extent that duty under item 4 of the Second Schedule has been paid on a conveyance or transfer to any intermediary.
[Section 69 inserted: No. 33 of 1987 s. 17; amended: No. 39 of 1994 s. 14; No. 2 of 2003 s. 43; No. 66 of 2003 s. 27(1).]
70.Certain transfers of chattels dutiable
(1)In this section, unless the contrary intention appears —
arrangement means an instrument or an unwritten arrangement;
chattels means goods, wares or merchandise, other than exempt chattels, and includes an estate or interest in them;
dutiable means chargeable with duty under —
(a)item 4, 10, 14A, 15, 17 or 19 of the Second Schedule; or
(b)item 12(1) or (3) of the Second Schedule if —
(i)the term of the lease, including any period for which the lease may be renewed, exceeds, or is to exceed, 20 years; and
(ii)any option to renew the lease is, or is to be, exercisable by the lessor;
exempt chattels means —
(a)goods, wares or merchandise referred to in item 2(7), (7a) or (7b) of the Third Schedule;
(aa)goods, wares or merchandise used solely or principally in connection with the business of primary production (as defined in section 75D); or
(b)a vehicle the transfer of the licence of which is chargeable with duty under Part IIIC and item 14 or 6 of the Second Schedule or is exempt under item 9 of the Third Schedule;
other property means property other than goods, wares or merchandise, and includes an estate or interest in such property;
transfer includes convey, exchange, partition, settle, give, vest, grant, release and renounce.
(1a)For the purposes of this section a mining tenement (as defined in section 76) is an estate or interest in property.
(2)If an instrument —
(a)transfers, or is or includes an agreement to transfer, or evidences the transfer of, a chattel and other property; and
(b)is dutiable in respect of the other property,
the instrument is chargeable with duty in respect of the unencumbered value of the other property plus the unencumbered value of the chattel.
(3)If —
(a)an instrument —
(i)transfers, or is or includes an agreement to transfer, or evidences the transfer of, a chattel; and
(ii)is one of 2 or more arrangements that together form, or arise from, substantially one transaction, or one series of transactions, relating to chattels and to other property;
and
(b)at least one of the other arrangements mentioned in paragraph (a)(ii) transfers, or is or includes an agreement to transfer, or evidences the transfer of, other property and is dutiable,
the instrument mentioned in paragraph (a) is chargeable with duty in respect of the unencumbered value of the other property plus the unencumbered value of the chattel.
(4)The duty payable on an instrument referred to in subsection (3)(a) is to be reduced by any duty paid in respect of the arrangement referred to in subsection (3)(b).
(5)For the purposes of subsection (3)(a)(ii), if a person enters into arrangements —
(a)within, or apparently within, 12 months of each other; and
(b)with the same person (whether that person enters the arrangements alone or with the same person or different persons),
it shall be presumed, unless the Commissioner is satisfied to the contrary, that the arrangements arose out of one transaction or one series of transactions.
[Section 70 inserted: No. 22 of 1998 s. 33; amended: No. 28 of 2000 s. 4; No. 2 of 2003 s. 44; No. 66 of 2003 s. 28.]
71.Duty charged for 2 or more instruments of conveyance
Where there are 2 or more instruments of conveyance for completing the purchaser’s title to the property sold, the principal instrument of conveyance only is to be charged with ad valorem duty, and the other instruments are to be respectively charged with such other duty as they may be liable to, but such last‑mentioned duty shall not exceed the ad valorem duty payable in respect of the principal instrument.
[Section 71 amended: No. 37 of 1979 s. 46; No. 2 of 2003 s. 45.]
[Heading deleted: No. 2 of 2003 s. 46.]
72.Transfer or assignment of mortgages for value
(1)In this section —
sale, in relation to a mortgage, means sale for a consideration in money or money’s worth for not less than market value;
transfer or assignment, in relation to a mortgage, means the transfer or assignment of the mortgage by way of sale.
(2)Where, on the transfer or assignment of any mortgage, there are 2 or more instruments to complete the transferee’s title to the mortgage, the principal instrument only is to be charged with duty under item 13(3)(a) of the Second Schedule.
(3)A contract or agreement for the sale of any mortgage shall be charged with the same duty under item 13(3)(a) of the Second Schedule to be paid by the purchaser as if it were an instrument actually setting out the transfer or assignment of the mortgage contracted or agreed to be sold.
(4)When, in relation to any mortgage, duty has been paid on a principal instrument or a contract or agreement in accordance with subsection (2) or (3), any other instrument setting out the transfer or assignment of the mortgage to the transferee is not chargeable with duty, but the Commissioner, on being requested to do so, is to endorse the duty on the instrument.
(5)Where an instrument, contract or agreement applies to 2 or more mortgages, duty is chargeable under item 13(3) of the Second Schedule in respect of each mortgage.
[Section 72 inserted: No. 20 of 1996 s. 23; amended: No. 2 of 2003 s. 47; No. 66 of 2003 s. 29.]
[Heading deleted: No. 2 of 2003 s. 48.]
73.As to conveyances on any occasion except sale or mortgage
Except as otherwise provided by a stamp Act, every instrument, and every decree or order of any court or of the Commissioner of Titles, whereby any property on any occasion, except a sale or mortgage, is transferred to or vested in any person and every instrument which is or is intended to be a record or acknowledgement of any verbal promise or agreement previously made (whether voluntary or upon any good or valuable consideration other than a bona fide pecuniary consideration) to give or settle any property in any manner whatsoever is chargeable with duty as a conveyance or transfer of property.
[Section 73 amended: No. 35 of 1941 s. 2; No. 113 of 1965 s. 8(1); No. 63 of 1977 s. 2; No. 37 of 1979 s. 47; No. 112 of 1982 s. 7; No. 81 of 1984 s. 15; No. 2 of 2003 s. 49.]
73A.Conveyance subject to an option
(1)Where any property or estate or interest therein (the property) is agreed to be conveyed or transferred, or is conveyed or transferred, to any person subject to the exercise of an option to purchase the property, whether the option is exercisable in writing or otherwise, the agreement or the conveyance or transfer, as the case may be, is chargeable with duty as a conveyance or transfer of the property and the consideration for such conveyance or transfer shall be deemed to be an amount equal to the sum of —
(a)the amount paid by way of consideration for the granting of the option; and
(b)the amount payable in the event of the option being exercised.
(2)Each of the parties to an agreement, conveyance or transfer referred to in subsection (1) is liable to pay the duty with which it is chargeable.
(3)Section 73AA does not apply to a conveyance or transfer referred to in subsection (1).
(4)Where ad valorem duty has been duly paid in conformity with subsection (1) on an agreement the conveyance or transfer made in conformity with the agreement shall be chargeable with duty under item 6 of the Second Schedule.
(5)Where, after ad valorem duty has been paid in conformity with subsection (1), the Commissioner is satisfied —
(a)that the option referred to in that subsection has not been exercised and that the time within which that option may be exercised has expired; and
(b)where the property was conveyed or transferred to the person to whom the option was granted —
(i)that the property has been reconveyed or retransferred to the person from whom it was conveyed or transferred or to a person to whom his rights have been transmitted on death or bankruptcy; and
(ii)that the person to whom the option was granted did not, prior to the reconveyance or retransfer of the property, exercise or receive any right or benefit in respect of the property being a right or benefit of a kind normally exercisable or receivable only by the beneficial owner of property,
then —
(c)the duty chargeable on the agreement or the conveyance or transfer (as the case may be) is reduced to the amount of duty that would have been payable if the consideration had been the amount referred to in subsection (1)(a) only; and
(d)any reconveyance or retransfer referred to in paragraph (b) is chargeable with duty under item 6 of the Second Schedule.
(5a)Subject to section 17 of the Taxation Administration Act 2003, the Commissioner must make any reassessment necessary to give effect to this section.
(5b)For the purposes of subsection (5a), section 17 of the Taxation Administration Act 2003 applies as if the original assessment had been made —
(a)when the reconveyance or retransfer referred to in subsection (5)(b)(i) occurred; or
(b)on the expiry, referred to in subsection (5)(a), of the time within which the option could have been exercised,
whichever is later.
(6)Where ad valorem duty has been duly paid in conformity with subsection (1) any agreement made in pursuance of and by the exercise of the option referred to in that subsection shall not be chargeable with any further duty.
[Section 73A inserted: No. 63 of 1977 s. 3; amended: No. 37 of 1979 s. 48; No. 81 of 1984 s. 16; No. 2 of 2003 s. 50.]
73AA.Duty on conveyance not passing a beneficial interest
(1)A conveyance or transfer —
(a)made for effectuating the appointment of a new trustee, or the retirement of a trustee, whether the trust is expressed or implied;
(b)made to a beneficiary by a trustee or by another person in a fiduciary capacity, except a discretionary trustee or a unit trustee, under any trust whether express or implied;
(c)made to a beneficiary by a discretionary trustee under any trust whether express or implied otherwise than in the exercise of any power of appointment;
(d)made by a discretionary trustee, in the exercise of a power of appointment over the property conveyed or transferred, to a beneficiary who is an individual for his own use and benefit, if —
(i)at the time when the discretionary trustee acquired the property conveyed or transferred the beneficiary was named or described in the instrument which created the power of appointment as a beneficiary or as a member of a class of beneficiaries in whose favour the discretionary trustee was empowered by that instrument to appoint the property; and
(ii)evidence of the acquisition by the discretionary trustee, as such trustee, of the property conveyed or transferred is produced to the Commissioner with that conveyance or transfer;
(e)made to the holder of a unit in a unit trust scheme by a unit trustee if —
(i)evidence of the acquisition by the unit trustee, as trustee of that unit trust scheme, of the property conveyed or transferred is produced to the Commissioner with that conveyance or transfer; and
(ii)the Commissioner is satisfied that —
(I)the conveyance or transfer has the effect of reducing the rights of the holder of the unit in respect of the property held by the unit trustee to the extent of the property, or the value of the property, conveyed or transferred; and
(II)the conveyance or transfer does not have the effect of varying, abrogating or altering the rights of the holder or holders of other units under the unit trust scheme in respect of the remaining property held by the unit trustee;
or
(f)not otherwise coming within this section but which the Commissioner is satisfied —
(i)does not pass a beneficial interest in the property conveyed or transferred;
(ii)is not made in contemplation of the passing of a beneficial interest therein; and
(iii)is not part of, or made pursuant to, a scheme whereby any beneficial interest in the property conveyed or transferred, whether vested or contingent, has passed or will or may pass,
shall be charged with duty in accordance with item 6 of the Second Schedule.
(2)A conveyance or transfer that is —
(a)made by any trustee or other person in a fiduciary capacity to a beneficiary; or
(b)made by a unit trustee to the holder of a unit in a unit trust scheme,
and that does not conform to subsection (1)(b), (c), (d) or (e), and a conveyance or transfer in respect of which the Commissioner is not satisfied as mentioned in subsection (1)(f), shall be deemed to operate as a voluntary disposition and is chargeable with duty under section 75(1).
[Section 73AA inserted: No. 81 of 1984 s. 17; amended: No. 33 of 1987 s. 18; No. 20 of 1996 s. 24; No. 2 of 2003 s. 51.]
73AB.Duty on conveyance to correct error
If the Commissioner is satisfied that —
(a)a conveyance or transfer of property (the correcting transfer) is solely for the purpose of correcting the effect of an error in respect of —
(i)the contract or agreement for the sale of that property; or
(ii)a previous conveyance or transfer of that or other property;
(b)no additional consideration is paid or payable in respect of the correcting transfer; and
(c)the correcting transfer passes an interest in the property only to the extent necessary to correct the effect of the error,
the correcting transfer shall be charged with duty in accordance with item 6 of the Second Schedule.
[Section 73AB inserted: No. 66 of 2003 s. 30.]
73B.Conveyance agreement subject to unilateral determination
(1)When any property or estate or interest therein (the property) is agreed to be conveyed or transferred to any person —
(a)wholly or partly in consideration of the making by that person of 2 or more payments at intervals specified in that agreement; and
(b)subject to the right of that person to determine that agreement at any time on making such of the payments referred to in paragraph (a) as may have become due and payable under that agreement at the time of that determination,
that agreement is chargeable with duty as a conveyance or transfer of the property and the consideration for that agreement shall be deemed to be an amount equal to the sum of both or all, as the case may be, of the payments referred to in paragraph (a).
(2)The person to whom property is to be conveyed or transferred under an agreement referred to in subsection (1) is liable to pay the duty with which the agreement is chargeable.
(3)When, after ad valorem duty has been duly paid in conformity with subsection (1), the Commissioner is satisfied that the person referred to in that subsection (the determiner) determined the agreement concerned before the final payment had become due and payable under that agreement, the amount of duty payable on the agreement is reduced to the amount of duty that would have been payable if the consideration had been equal to the amount of the payment or payments paid or due and payable by the determiner when the determination was made.
(4)Subject to section 17 of the Taxation Administration Act 2003, the Commissioner must make any reassessment necessary to give effect to this section.
(5)For the purposes of subsection (4), section 17 of the Taxation Administration Act 2003 applies as if the original assessment had been made when the determination was made.
[Section 73B inserted: No. 37 of 1979 s. 49; amended: No. 81 of 1984 s. 18; No. 2 of 2003 s. 52.]
73C.Option to purchase with right to renew
(1)Where an instrument confers on any person the right of an option to purchase any property or an estate or interest in property and provides for the renewal of that right on such occasion or occasions as is or are specified therein the instrument is chargeable with ad valorem duty on the sum of the amounts paid by way of consideration for the right of the option and the amount or amounts, as the case may be, payable for the renewal or renewals of the option.
(2)The person on whom the right of the option is conferred by an instrument referred to in subsection (1) is liable to pay the duty with which it is chargeable.
(3)When, after ad valorem duty has been duly paid in conformity with subsection (1), the Commissioner is satisfied that the person on whom the right of the option was conferred by the instrument —
(a)exercised the option; or
(b)failed to renew the right of option,
before the occurrence of the final occasion referred to in the instrument the amount of duty payable on the instrument is reduced to the amount of duty that would have been payable if the consideration had been equal to the amount paid or payable in respect of any occasion or occasions referred to in the instrument that have occurred before the person exercised the option or failed to renew the right of option.
(4)Subject to section 17 of the Taxation Administration Act 2003, the Commissioner must make any reassessment necessary to give effect to this section.
(5)For the purposes of subsection (4), section 17 of the Taxation Administration Act 2003 applies as if the original assessment had been made when the person exercised the option or failed to renew the right of option.
[Section 73C inserted: No. 93 of 1982 s. 5; amended: No. 81 of 1984 s. 19; No. 2 of 2003 s. 53.]
73CA.Effect of Duties Act 2008 on sections 73D, 73DAA, 73DE and 73E
(1)Sections 73D(2), 73DAA(1), 73DE(1) and 73E(2) do not apply to a disposition made on or after 1 July 2008.
(2)Without limiting section 16(5) and (6), section 73D(4) and (6a) and 73E(4) and (6) do not apply to —
(a)a transfer; or
(b)an instrument effecting a disposition,
first executed on or after 1 July 2008.
(3)Section 73D(4) and (6a) and 73E(4) and (6) do not apply to an instrument evidencing a disposition made on or after 1 July 2008.
(4)When used in this section in relation to section 73E, disposition has the meaning given in section 73E(1).
[Section 73CA inserted: No. 12 of 2008 s. 8.]
73D.Disposition of units in unit trust schemes
(1)In this section —
chattels has the same definition as in section 76;
land has the same definition as in section 76.
(1a)This section applies to a disposition in relation to a unit in a unit trust scheme if the trust property of the scheme comprises or includes —
(a)property situated, or taken to be situated, in
(b)any interest, including any beneficial interest, in such property.
(1b)For the purposes of this section, if —
(a)the unit trustee (Trustee A) of a unit trust scheme (Trust A) holds as trustee of Trust A a unit in another unit trust scheme (Trust B); and
(b)the unit trustee of Trust B holds as trustee of Trust B —
(i)land and chattels situated in
(ii)any interest, including any beneficial interest and any interest taken to be held by that trustee by the operation of this subsection, in land and chattels situated in
Trustee A is taken to hold as trustee of Trust A an undivided share, equivalent to the proportion of the total issued units under Trust B represented by the unit in Trust B held by Trustee A, in the land and chattels or in that interest in land and chattels.
(1c)Subsection (1b) —
(a)applies for the purposes of a disposition made on or after 27 June 2006 in relation to a unit in a unit trust scheme; and
(b)has effect despite anything to the contrary in any trust deed or other document.
(2)A person shall not give effect to, recognise, or register, record, or enter in the books or records of a unit trust scheme a disposition in relation to a unit unless —
(a)a transfer or an instrument effecting or evidencing the disposition is executed and (unless the person executed the transfer or the instrument) delivered to the person and the duty with which the transfer or the instrument is chargeable has been paid; or
(b)the person is satisfied that a dutiable statement has been lodged under section 63AJ or 73DAA in respect of the disposition and that the duty with which the dutiable statement is chargeable has been paid.
Penalty: $20 000.
(3)For the purposes of assessing duty under this section, the exemption in item 2(1) of the Third Schedule does not apply.
(4)Subject to section 73CA and subsections (4a), (4b), (5), (5a) and (6), a transfer of a unit and an instrument effecting or evidencing a disposition in relation to a unit shall each be chargeable with duty as if it were separately —
(a)a conveyance or transfer free of encumbrances of an undivided share, equivalent to the proportion of the total issued units under the unit trust scheme represented by the unit, in land and chattels situated in Western Australia or any interest, including any beneficial interest, in any such land and chattels held by the unit trustee as trustee of the unit trust scheme; and
(b)a conveyance of the unit.
(4a)The value of the unit, for the purpose of assessing duty under subsection (4)(b), shall be the value of the unit reduced by the value of the land and chattels or interest in land and chattels (if any) determined for the purpose of assessing duty under paragraph (a) of that subsection.
(4b)Subject to subsections (5) and (5a), the duty chargeable on a transfer of a unit or an instrument effecting or evidencing a disposition in relation to a unit shall not in any event be less than the amount of duty determined under item 4(1) of the Second Schedule on the amount or value of the consideration for the transfer or the disposition.
(5)Where a disposition does not significantly affect any right or rights pertaining to any unit, having regard to the rights pertaining to the other issued units under the unit trust scheme, the instrument effecting or evidencing the disposition shall be chargeable with duty under item 6 of the Second Schedule.
(5a)Where a disposition, or a series of dispositions —
(a)has effect in relation to the number of units held by all holders of units in proportion to the number of units respectively held by them immediately prior to the disposition or dispositions taking effect; and
(b)does not have the effect of varying, abrogating or altering the rights of any holder of units as against the rights of any other holder of units with respect to the capital of the unit trust scheme,
the instrument effecting or evidencing the disposition, and each instrument effecting or evidencing a disposition in a series of dispositions, shall be chargeable with duty under item 6 of the Second Schedule.
(6)The Commissioner shall, where it is necessary to determine, for the purposes of subsection (1b) or (4), the proportion of the total issued units under a unit trust scheme represented by a unit, take into account, in such manner as he considers appropriate, the respective rights and obligations pertaining to the unit and the other units under the unit trust scheme.
(6a)Subject to section 73CA and subsection (6c), in addition to the duty chargeable on a transfer or an instrument under subsection (4), the transfer or instrument shall each be chargeable with duty at the rate provided for in item 4(1) of the Second Schedule calculated on the unencumbered value of any ascribed chattels, but duty shall not be charged in respect of —
(a)any of the chattels in respect of which duty has been paid under section 31B or 70 by a person liable under subsection (7) to pay the duty with which the transfer or instrument is chargeable under subsection (4);
(b)any of the chattels in respect of which interstate duty has been paid by such a person; or
(c)any of the chattels that, in the opinion of the Commissioner, are usually not situated in
(6b)Chattels are ascribed chattels for the purpose of subsection (6a) if, within the 12 months preceding the date of the disposition evidenced by the transfer or instrument —
(a)the unit trustee, as trustee of the unit trust scheme, held them or any interest (including any beneficial interest) in them; and
(b)a person liable under subsection (7) to pay the duty with which the transfer or instrument is chargeable under subsection (4) acquired them, directly or indirectly, from the unit trustee.
(6c)The transfer or instrument is not chargeable with duty under subsection (6a) if the Commissioner is satisfied that no transaction by means of which the ascribed chattels were transferred from the unit trustee to the person referred to in subsection (6b)(b) was effected for the collateral purpose of reducing the duty that otherwise would be chargeable on the transfer or instrument.
(7)Subject to sections 63AH and 73DC(6), each of the holders of a unit under a unit trust scheme is liable to pay the duty with which a transfer of the unit or an instrument effecting or evidencing a disposition in relation to the unit is chargeable.
(8)A unit trustee shall, where a transfer of a unit or an instrument effecting or evidencing a disposition in relation to a unit has been delivered to him, retain the transfer or instrument, as the case may be, in accordance with section 87 of the Taxation Administration Act 2003.
[(9)deleted]
(10)A right or obligation arising out of a disposition in relation to a unit shall not be invalidated by reason only that the unit trustee gave effect to or recognised the disposition or registered, recorded or entered the disposition in the books or records of the unit trust scheme in contravention of subsection (2).
(11)Subject to subsection (12) and section 73DC, this section does not apply to a disposition of a unit in a unit trust scheme during any period that the unit trust scheme is —
(a)registered under section 63AA(2);
(b)granted interim registration under section 63AC(2); or
(c)registered as a provisional public trust under section 63ADA(2).
(12)If —
(a)the registration or interim registration of a unit trust scheme; or
(b)the registration of a unit trust scheme as a provisional public trust,
is cancelled, this section is taken to have applied to the unit trust scheme from the time the cancellation was taken to have effect unless duty is chargeable under section 63AF.
[Section 73D inserted: No. 112 of 1982 s. 8; amended: No. 81 of 1984 s. 20; No. 109 of 1984 s. 5; No. 33 of 1987 s. 19; No. 22 of 1998 s. 34; No. 36 of 2001 s. 28; No. 2 of 2003 s. 54; No. 66 of 2003 s. 31; No. 11 of 2005 s. 8; No. 67 of 2006 s. 4; No. 12 of 2008 s. 9.]
73DAA.Dutiable statement required if transfer or instrument not lodged
(1)Subject to section 73CA and subsection (3) if, for a disposition in relation to a unit —
(a)a transfer; or
(b)an instrument effecting or evidencing the disposition,
is not lodged with the Commissioner, each liable person must, within 2 months after the disposition is made, lodge a statement with the Commissioner in respect of the disposition.
Penalty: $20 000.
(2)In subsection (1) —
liable person means —
(a)if a transfer or instrument has been executed — a person who is liable to pay duty in respect of the disposition; or
(b)if a transfer or instrument has not been executed — a person who would be liable to pay duty in respect of the disposition if a transfer or instrument were executed.
(3)Subsection (1) does not apply in relation to a disposition that is included in a dutiable statement under section 63AJ.
(4)A dutiable statement must be prepared in an approved form.
(5)A dutiable statement lodged under subsection (1) is taken to be an instrument evidencing the disposition in respect of which it is lodged and is chargeable with duty accordingly.
(6)The requirement to lodge a dutiable statement under subsection (1) in respect of a disposition ceases to apply if a transfer or an instrument effecting or evidencing the disposition is lodged with the Commissioner at any time after the disposition was made, but nothing in this subsection affects the liability of a person for an offence against subsection (1) committed before the transfer or the instrument is lodged.
(7)If subsection (6) has effect, the transfer or instrument referred to in that subsection is to be regarded, for the purposes of sections 16(5) and 17A, as having been first executed on the day on which the disposition was made.
(8)Section 31B does not apply to, or in relation to, a disposition referred to in subsection (1).
[Section 73DAA inserted: No. 66 of 2003 s. 32; amended: No. 12 of 2008 s. 10.]
73DA.Holdings of majority interest unit trustee
(1)For the purposes of section 73D(4), a unit trustee who has a majority interest in a company that is beneficially entitled to land and chattels (as defined in section 76) situated in Western Australia is taken to hold an undivided share in the land and chattels to the extent provided in subsection (2).
(2)The extent of the undivided share in land and chattels referred to in subsection (1) is the same proportion of the value of the land and chattels situated in Western Australia to which the company is beneficially entitled as the proportion of the property of the company which the trustee would be entitled to claim in a distribution of property, as provided in section 76(5), if the company were to be wound up at the time of the disposition effected or evidenced by the relevant transfer or instrument.
(3)For the purposes of this section —
(a)company means a company to which Division 2 or 3a of Part IIIBA applies or a corporation to which Division 3 or 3b of that Part applies; and
(b)a unit trustee has a majority interest in a company if he would be entitled, if the company were to be wound up at the time of the disposition effected or evidenced by the relevant transfer or instrument, to participate (otherwise than as a creditor, or other person to whom the company is liable) in a distribution of the property of the company, as provided in section 76(5), to an extent greater than 50% of the value of the property distributable otherwise than to creditors, or other persons to whom the company is liable.
[Section 73DA inserted: No. 33 of 1987 s. 20; amended: No. 22 of 1998 s. 35; No. 60 of 2000 s. 20(2); No. 2 of 2003 s. 55; No. 11 of 2004 s. 12.]
73DB.Terms used in sections 73DC, 73DD and 73DE
(1)In sections 73DC, 73DD and 73DE —
acquire, in relation to an interest in a registered unit trust scheme, means acquire beneficially in any manner or by any means and includes the increasing of an existing interest;
registered unit trust scheme means a unit trust scheme registered as a pooled investment trust under section 63AA(2).
(2)For the purposes of sections 73DC, 73DD and 73DE, an interest acquired or held by a custodian trustee on behalf of a person is taken to have been acquired, or to be held, by the person.
(3)For the purposes of section 73DC, 73DD and 73DE, a person and another person are related if —
(a)they are related as provided in section 63(5); or
(b)they acquire interests in a registered unit trust scheme by virtue of acquisitions that together form or arise from substantially one transaction or one series of transactions.
[Section 73DB inserted: No. 66 of 2003 s. 33.]
73DC.Acquisition of majority interest or further interest in pooled investment trust
(1)Despite section 73D(11) and subject to this section, duty is chargeable under section 73D in respect of a disposition of a unit in a registered unit trust scheme if, as a result of the disposition, a person acquires, or a person and a related person acquire, a majority interest or a further interest in the scheme.
(2)If paragraph (b) of section 73DD(1) applies in relation to the acquisition of a majority interest in a registered unit trust scheme, duty is chargeable under section 73D in respect of the dispositions of units in the scheme (the aggregated dispositions) that result in a person, or a person and a related person, acquiring the interests referred to in that paragraph as if the aggregated dispositions formed one disposition made at the time the majority interest was acquired.
(3)If the aggregated dispositions include one or more dispositions (relevant aggregated dispositions) made when the unit trust scheme was not —
(a)registered under section 63AA(2); or
(b)granted interim registration under section 63AC(2),
duty chargeable under section 73D, as referred to in subsection (2), is to be reduced by the amount of duty that would be chargeable under that section in respect of the relevant aggregated dispositions if those dispositions together formed one disposition made immediately before the majority interest was acquired.
(4)Duty is chargeable under section 73D in respect of a disposition of a unit in a registered unit trust scheme that results in a person, or a person and a related person, acquiring a further interest in the scheme as if —
(a)that disposition; and
(b)each of the dispositions that resulted in the person, or the person and the related person, acquiring an interest in the scheme held by the person, or by the person and the related person, immediately before the further interest was acquired,
together formed one disposition made at the time the further interest was acquired.
(5)Duty chargeable under section 73D, as referred to in subsection (4), is to be reduced by the amount of duty that would be chargeable under that section in respect of the dispositions referred to in subsection (4)(b) if those dispositions together formed one disposition made immediately before the further interest was acquired.
(6)Despite section 73D(7), the person liable to pay the duty chargeable under section 73D because of this section in respect of a disposition is the person who acquires the majority interest or further interest in the registered unit trust scheme.
(7)If a majority interest or a further interest in a registered unit trust scheme is acquired by virtue of acquisitions of interests in the scheme by a person and a related person, those persons are jointly and severally liable to pay the duty referred to in subsection (6).
(8)If interstate security duty has been paid in respect of a disposition in respect of which duty is chargeable under section 73D because of this section, the duty chargeable under that section is to be reduced by the same proportion of the interstate security duty as the value of the trust property situated in Western Australia bears to the aggregate value of all the trust property.
(9)In subsection (8) —
interstate security duty means duty chargeable in another State or a Territory on a conveyance or transfer of any marketable security or right in respect of shares.
[Section 73DC inserted: No. 66 of 2003 s. 33.]
73DD.Meaning of “majority interest” and “further interest”
(1)For the purposes of section 73DC, a person acquires a majority interest in a registered unit trust scheme if a disposition of a unit in the scheme results in the person, or the person and a related person, acquiring an interest in the scheme (the relevant interest) such that having acquired —
(a)the relevant interest itself; or
(b)the relevant interest when taken with each interest in the scheme that —
(i)is held by the person or by a related person immediately before the relevant interest was acquired; and
(ii)was acquired within 3 years before the relevant interest was acquired (whether or not the scheme was a registered unit trust scheme at the time of the acquisition),
the person, or the person and the related person, would be beneficially entitled, if the property of the scheme were to be distributed, to participate in a distribution of the property of the scheme to an extent of 50% or more of the value of the distributable property.
(2)The acquisition of the relevant interest or another interest referred to in paragraph (b) of subsection (1) is to be taken into account for the purposes of that subsection only if, at the time of the acquisition, the property of the registered unit trust scheme included land (as defined in section 76) situated in Western Australia.
(3)If on the first day on which a unit trust scheme is registered under section 63AA(2) a majority interest is held in the scheme, an interest acquired in the scheme as a result of one or more dispositions made during a period that the scheme was granted interim registration under section 63AC(2) is taken to have been acquired as a result of a disposition made on that day.
(4)For the purposes of section 73DC, a person acquires a further interest in a registered unit trust scheme if —
(a)the person holds, or the person and a related person hold, a majority interest in the scheme;
(b)the acquisition of that majority interest gave rise to a liability for duty under section 73D because of section 73DC; and
(c)a disposition of a unit in the scheme results in the person acquiring, or the person and a related person acquiring, an interest in the scheme such that having acquired that interest the person, or the person and the related person, would be beneficially entitled, if the property of the scheme were distributed, to participate further in a distribution of the property of the scheme.
(5)For the purposes of this section, if —
(a)the registration of a unit trust scheme is cancelled under section 63AD; and
(b)a disposition of a unit in the scheme (the relevant disposition) is made within 12 months after that registration is cancelled,
the scheme is to be treated as if it is still a registered unit trust scheme when the relevant disposition is made.
(6)Subsection (5) does not apply if the Commissioner is satisfied that the relevant disposition is not made with the collateral purpose of avoiding or reducing the duty that otherwise would be or might become payable if the registration of the unit trust scheme had not been cancelled.
(7)For the purpose of being satisfied as to a matter referred to in subsection (6), the Commissioner may take into account any matter that the Commissioner considers to be relevant.
(8)For the purposes of this section, a reference to the entitlement to participate in a distribution of the property of a unit trust scheme is a reference to that entitlement otherwise than as a creditor or other person to whom the scheme is liable, and a reference to distributable property is a reference to property distributable to persons otherwise than as creditors or other persons to whom the scheme is liable.
(9)For the purposes of this section, the entitlement of a person on the distribution of the property of a unit trust scheme is to be determined as the greatest entitlement that the person could derive at any time from the scheme whether by the fulfilment of any condition, the outcome of any contingency or the exercise of any power or discretion or otherwise, and in particular a person that may benefit from a discretionary trust is to be deemed to be entitled to —
(a)the property subject to the discretionary trust, unless the Commissioner determines otherwise; or
(b)such part of that property as the Commissioner determines.
[Section 73DD inserted: No. 66 of 2003 s. 33.]
73DE.Dutiable statement to be lodged
(1)Subject to section 73CA and subsection (3), a person who acquires a majority interest or a further interest in a registered unit trust scheme must, within 2 months after the acquisition, lodge a statement with the Commissioner in respect of the disposition or dispositions that resulted in the acquisition of that interest and in respect of which duty is chargeable under section 73D because of section 73DC.
Penalty: $20 000.
(2)A dutiable statement must be prepared in an approved form.
(3)If a majority interest or a further interest in a registered unit trust scheme is acquired by a person and one or more related persons, subsection (1) is taken to be complied with if one of those persons lodges a dutiable statement under that subsection on behalf of all those persons.
(4)A dutiable statement lodged under subsection (1) is taken to be an instrument evidencing the disposition or dispositions in respect of which it is lodged and is chargeable with duty to the extent that duty chargeable on that disposition or those dispositions under section 73D because of section 73DC has not been paid.
[Section 73DE inserted: No. 66 of 2003 s. 33; amended: No. 12 of 2008 s. 11.]
73E.Disposition of shares in discretionary trustee companies
(1)In this section —
company means a corporation which is a discretionary trustee;
disposition, in relation to a share, includes —
(a)a transfer or other disposition of the share;
(b)the allotment or issue of the share;
(c)the redemption, surrender or cancellation of the share; and
(d)the variation, abrogation or alteration of a right pertaining to the share with respect to voting, whether at meetings of the company or the directors or otherwise,
but does not include a disposition by which the personal representative of a deceased person disposes of a share to a beneficiary in the administration of the estate of the deceased;
officer, in relation to a corporation, has the same definition as in section 9 of the Corporations Act;
share means a share or stock of a company that is not listed on a recognised financial market and includes an interest in a share.
(2)A company which is resident or domiciled in Western Australia or which carries on business in Western Australia as a discretionary trustee and an officer of such a company shall not make, accept, give effect to, recognise, or register, record or enter in the books or records of the company a disposition in relation to a share unless —
(a)a transfer or an instrument effecting or evidencing the disposition is executed and delivered to the company; and
(b)the transfer or the instrument, as the case may be, is stamped.
Penalty: $20 000.
[(3)deleted]
(4)Subject to section 73CA and subsections (5) and (6), a transfer of a share and an instrument effecting or evidencing a disposition in relation to a share shall each be chargeable with duty as if it were a conveyance free of encumbrances of an undivided share, equivalent to the proportion of the total issued capital of the company represented by the share, in the property held by the discretionary trustee as trustee of the discretionary trust.
(5)Subsection (4) shall not apply to a transfer or instrument if the Commissioner is satisfied that it is not made in contemplation of the passing of a beneficial interest in any property held by the company as discretionary trustee and is not part of, or made pursuant to, a scheme whereby any beneficial interest, vested or contingent, in any property held by the company as discretionary trustee has passed or will or may pass to any person.
(6)Subject to section 73CA, where —
(a)a disposition in relation to a share involves a variation, abrogation or alteration of a right or rights pertaining to the share; and
(b)the Commissioner is satisfied, having regard to the rights pertaining to the other issued shares in the capital of the company, that the disposition does not significantly affect the right or rights pertaining to the share,
the instrument effecting or evidencing the disposition shall be chargeable with duty under item 6 of the Second Schedule.
(7)The Commissioner shall, where it is necessary to determine, for the purposes of subsection (4), the proportion of the total issued capital of a company represented by a share, take into account, in such manner as he considers appropriate, the respective rights and obligations pertaining to the share and the other shares in the capital of the company.
(8)Each of the holders of a share in a company is liable to pay the duty with which a transfer of the share or an instrument effecting or evidencing a disposition in relation to the share is chargeable.
(9)A company shall, where a transfer of a share or an instrument effecting or evidencing a disposition in relation to a share has been delivered to it, retain the transfer or instrument, as the case may be, in accordance with section 87 of the Taxation Administration Act 2003.
[(10)deleted]
(11)A right or obligation arising out of a disposition in relation to a share shall not be invalidated by reason only that the company or an officer of the company made, accepted, gave effect to or recognised the disposition or registered, recorded or entered the disposition in the books or records of the company in contravention of subsection (2).
[Section 73E inserted: No. 112 of 1982 s. 8; amended: No. 39 of 1994 s. 21; No. 53 of 1999 s. 20; No. 10 of 2001 s. 168; No. 2 of 2003 s. 56; No. 21 of 2003 s. 26; No. 12 of 2008 s. 12.]
73F.Acquisition of a licence to carry on a business activity
(1)In this section —
business licence means —
(a)a licence, permit or authority which is issued, granted or given under a written law and which is required by a written law to be held by a person carrying out an activity for gain or reward; or
(b)a licence, permit or authority which is issued, granted or given under a law of the Commonwealth and which is required by a law of the Commonwealth to be held by a person carrying out an activity in Western Australia for gain or reward.
(2)This section applies to a transaction by which a person (the licensee) who holds a business licence —
(a)disposes of the business licence to another person;
(b)agrees to the business licence being transferred to another person; or
(c)agrees to relinquish the business licence, or agrees not to apply for a renewal of the business licence, so that it, or another business licence in respect of the same kind of activity, can be issued, granted or given to another person.
(3)Where this section applies to a transaction the business licence to which the transaction relates is property situated in
(4)Where this section applies to a transaction relating to a business licence issued, granted or given under a law of the Commonwealth, duty can only be charged to the extent of —
(a)the value of the business licence so far as it authorises the carrying out of an activity in Western Australia; or
(b)the portion of the consideration for the transaction that relates to the carrying out of an activity in
whichever is the greater amount.
[Section 73F inserted: No. 41 of 1995 s. 6; amended: No. 2 of 2003 s. 57.]
73G.Farm‑in agreements relating to mining tenements
(1)In this section —
exploration amount, in relation to a farm‑in agreement, means an amount to be expended, after the agreement is made, on exploration or development of the mining tenement carried out after the agreement is made;
farm‑in agreement means an agreement between the owner of a mining tenement and another person that, after the other person expends the exploration amount specified in the agreement, that other person will have a right to acquire an interest in the mining tenement that is —
(a)specified in the agreement; and
(b)to be held with the owner of the mining tenement;
mining tenement means —
(a)a mining tenement held under the Mining Act 1978, being a mining tenement within the meaning of that Act or the Mining Act 1904 2; and
(b)a mining tenement or right of occupancy continued in force by section 5 of the Mining Act 1978;
payment does not include payment of an exploration amount.
(2)An instrument evidencing or effecting a farm‑in agreement is —
(a)to the extent that —
(i)the instrument evidences or effects a farm‑in agreement; and
(ii)no payment has been made or is payable in respect of the right to acquire the interest, or the acquisition of the interest, specified in the farm‑in agreement,
chargeable with duty at the rate set out under item 8 of the Second Schedule; and
(b)to the extent that —
(i)the instrument provides for the acquisition of an interest in a mining tenement otherwise than pursuant to a farm‑in agreement; or
(ii)payment has been made or is payable in respect of the right to acquire the interest, or the acquisition of the interest, specified in the farm‑in agreement,
chargeable with duty at the rate set out in item 4 or 19 of the Second Schedule, as the case requires.
(3)If the Commissioner is satisfied that —
(a)a conveyance or transfer evidences or effects the acquisition of an interest in a mining tenement pursuant to a farm‑in agreement;
(b)the amount specified in the farm‑in agreement to be expended on exploration or development of the mining tenement has been expended accordingly; and
(c)any duty chargeable under subsection (2) in respect of the instrument has been paid,
then —
(d)to the extent that —
(i)the conveyance or transfer evidences or effects the acquisition of the interest; and
(ii)no payment has been made or is payable in respect of the acquisition,
the conveyance or transfer is chargeable with duty under item 6 of the Second Schedule; and
(e)to the extent that —
(i)the conveyance or transfer provides for the acquisition of an interest in a mining tenement otherwise than pursuant to the farm‑in agreement; or
(ii)payment has been made or is payable in respect of the acquisition of the interest specified in the farm‑in agreement and duty in respect of that acquisition was not paid under subsection (2)(b),
the conveyance or transfer is chargeable with duty under item 4 or 19 of the Second Schedule, as the case requires.
[Section 73G inserted: No. 66 of 2003 s. 34.]
74.Certain contracts to be chargeable as conveyances on sale
(1aa)In this section —
dormant has the meaning given by section 75JAA;
dormant corporation means a corporation that has been dormant from when it was incorporated;
interest, in relation to a managed investment scheme, has the same meaning as it has in section 9 of the Corporations Act;
managed investment scheme has the same meaning as it has in section 9 of the Corporations Act;
member means a person who holds an interest in a managed investment scheme;
scheme property, in relation to a managed investment scheme, has the same meaning as it has in the Corporations Act in relation to a managed investment scheme that is registered under section 601EB of that Act.
(1)Every contract or agreement, howsoever executed, for the sale of any estate or interest in any property shall be charged with the same ad valorem duty to be paid by the purchaser as if it were an actual conveyance on sale of the estate, interest or property contracted or agreed to be sold.
(2)Subject to this section, when the name of the purchaser as set out in a contract or agreement referred to in subsection (1) differs from the name of the transferee as set out in the subsequent conveyance or transfer, that conveyance or transfer shall be deemed to be a separate and distinct transaction and shall be subject to ad valorem duty.
(3)Notwithstanding anything in subsection (2), if —
(a)the Commissioner is satisfied that the person named in the contract or agreement concerned as the purchaser was acting as the agent of the person named in the subsequent conveyance or transfer as the transferee at the time when that contract or agreement was executed;
(b)the Commissioner endorses on the subsequent conveyance or transfer concerned that the Commissioner is satisfied in relation to the matters referred to in paragraph (a); and
(c)the contract or agreement of sale concerned is stamped,
the same duty as is payable under item 6 of the Second Schedule shall be payable on the subsequent conveyance or transfer.
(3a)Notwithstanding subsection (2), if —
(a)the person named as purchaser in a contract or agreement referred to in subsection (1) entered into the contract or agreement with the intention that the property concerned would be transferred to —
(i)a corporation that the person intended to be incorporated; or
(ii)a dormant corporation, the shares in which the person intended to be acquired;
(b)at the time the contract or agreement was entered into action was being taken to incorporate the corporation or acquire the shares in the dormant corporation; and
(c)duty has been paid on the contract or agreement under subsection (1),
a conveyance or transfer of the property by the vendor under the contract or agreement to the corporation after it has been incorporated or after the shares in it have been acquired, as the case requires, shall be charged with duty under item 6 of the Second Schedule.
(3b)Notwithstanding subsection (2), if —
(a)the Commissioner is satisfied that a managed investment scheme has been, or is to be, established by means of an offer to subscribe to the scheme made to the public;
(b)the Commissioner is satisfied that before the establishment of the scheme —
(i)the person named as purchaser in a contract or agreement referred to in subsection (1) entered into the contract or agreement; or
(ii)the person promoting the scheme arranged for that contract or agreement to be entered into,
with the intention that the property concerned would become scheme property;
(c)the contract or agreement provides to the effect that, if the scheme is not established, the contract or agreement is terminated;
(d)the Commissioner endorses on the subsequent conveyance or transfer that the Commissioner is satisfied in relation to the matters referred to in paragraphs (a) and (b); and
(e)duty has been paid on the contract or agreement under subsection (1),
a conveyance or transfer of the property by the vendor under the contract or agreement that results in the property becoming scheme property shall be charged with duty under item 6 of the Second Schedule.
(3c)Notwithstanding subsection (2), if —
(a)a contract or agreement referred to in subsection (1) is entered into; and
(b)duty has been paid on the contract or agreement under subsection (1),
a conveyance or transfer of the property concerned by the vendor under the contract or agreement —
(c)to the extent of the whole or any part of the interest that the purchaser would have acquired in the property if the contract or agreement had been completed; and
(d)to a person who at the time the contract or agreement was entered into was related to that purchaser,
shall be charged with duty under item 6 of the Second Schedule.
(3d)For the purposes of subsection (3c), the following persons are related to a purchaser who is an individual —
(a)the purchaser’s spouse or de facto partner;
(b)a parent or remoter lineal ancestor of the purchaser or the purchaser’s spouse or de facto partner;
(c)a child or remoter lineal descendant of the purchaser or the purchaser’s spouse or de facto partner;
(d)a brother or sister of the purchaser or the purchaser’s spouse or de facto partner;
(e)a corporation if —
(i)the purchaser is the sole shareholder of the corporation; or
(ii)the purchaser is a shareholder of the corporation and is related (within the meaning of this section) to each of the other shareholders;
(f)a unit trustee in the unit trustee’s capacity as trustee of a unit trust if —
(i)the purchaser is the sole unit holder in the unit trust; or
(ii)the purchaser is a unit holder in the unit trust and is related (within the meaning of this section) to each of the other unit holders.
(3e)For the purposes of subsection (3c), a person is related to a purchaser that is a corporation if —
(a)the person is the sole shareholder of the purchaser; or
(b)the person is a shareholder of the purchaser and, if the person were a purchaser, would be related (within the meaning of this section) to each of the other shareholders.
(3f)For the purposes of subsection (3c), a person is related to a purchaser that is a unit trustee if —
(a)the person is the sole unit holder in the unit trust; or
(b)the person is a unit holder in the unit trust and, if the person were a purchaser, would be related (within the meaning of this section) to each of the other unit holders.
(3g)For the purposes of subsections (3d), (3e) and (3f), a person cannot be related to a purchaser in relation to the conveyance or transfer to the person of property that the person intends to hold on behalf of another person (the beneficiary) —
(a)as the trustee of a discretionary trust (as defined in section 76);
(b)subject to subsection (3d)(f), as a unit trustee; or
(c)as a trustee other than a trustee referred to in paragraph (a) or (b), unless the beneficiary is also related (within the meaning of this section) to the purchaser.
(3h)For the purposes of subsections (3d), (3e) and (3f) —
(a)an illegitimate person is to be treated as the legitimate child of that person’s parents; and
(b)it is irrelevant whether a relationship is of the whole or half‑blood, or whether it is a natural relationship or a relationship established by a written law.
(4)When duty has been paid in accordance with subsection (1), the conveyance or transfer concerned made to the purchaser shall not be chargeable with duty but the Commissioner, on being requested to do so, is to endorse on the conveyance or transfer the duty paid.
[Section 74 inserted: No. 37 of 1979 s. 50; amended: No. 81 of 1984 s. 21; No. 2 of 2003 s. 58; No. 66 of 2003 s. 35.]
74A.Duty chargeable on certain conveyances of corporation property
(1)A conveyance or transfer of any property —
(a)by a corporation to any of its shareholders in the course of a distribution of assets on a reduction of its capital, including a conveyance or transfer of property in consideration of or pursuant to a surrender, redemption or cancellation of any shareholding;
(b)by the liquidator of a corporation to any of its shareholders pursuant to a right attaching to any of its shares to select or receive any particular property of it; or
(c)by the liquidator of a corporation to any of its shareholders in the course of a distribution of its assets as a consequence of its winding up, not being a conveyance or transfer to which paragraph (b) applies,
shall be chargeable with duty in accordance with item 4 of the Second Schedule and —
(d)the unencumbered value of the property shall be taken to be the consideration paid; and
(e)the shareholder shall be liable to pay the amount of duty charged.
(2)If in a case to which subsection (1)(c) applies, the Commissioner is satisfied that the corporation is not being wound up as part of an arrangement or scheme designed with the collateral purpose of reducing the duty otherwise payable on the conveyance or transfer of the property, the Commissioner may deduct from the unencumbered value of the property an amount calculated under subsection (4) but in any event not greater than the unencumbered value of the property.
(3)In considering whether or not he or she is satisfied for the purpose of subsection (2), the Commissioner may have regard to —
(a)the duration of the shareholder’s shareholding in the corporation;
(b)whether or not the shareholder held shares in a related corporation of the corporation that owned the property before it was owned by the corporation;
(c)the period for which the property has been owned by the corporation or a related corporation of the corporation;
(d)any dealing in shares of the corporation or a related corporation of the corporation —
(i)by the shareholder or a related corporation of the shareholder; or
(ii)by a previous owner of the property;
(e)whether there is any commercial efficacy to an arrangement or scheme of transactions involving any one or more of —
(i)the corporation;
(ii)the shareholder;
(iii)a related corporation of the corporation or the shareholder;
(iv)a person who has a substantial holding (as defined in the Corporations Act) in a person referred to in subparagraph (i), (ii) or (iii),
in relation to the winding up, other than to reduce the duty otherwise payable on the conveyance or transfer; and
(f)any other matters he or she considers relevant.
(4)The deduction to be made under subsection (2) shall be calculated as follows —
where —
Ais the value of the shareholder’s entitlement in the undistributed assets of the corporation as determined under subsection (5);
Bis the unencumbered value of all the assets that are, or are to be, distributed to the shareholder in the course of the distribution; and
Cis the unencumbered value of the property that is the subject of the conveyance or transfer that is chargeable with duty.
(5)In subsection (4) the value of the shareholder’s entitlement in the undistributed assets of the corporation is the amount (if any) by which the value of the shareholder’s entitlement in the undistributed assets of the corporation immediately before the conveyance or transfer exceeds the sum of —
(a)any amount owed by the corporation to the shareholder as a creditor at the date of the conveyance or transfer;
(b)any amount owed by the corporation to the shareholder as a creditor that the shareholder, in the year ending on the date of the conveyance or transfer, has released the corporation from paying; and
(c)the amount of any liability of the corporation that the shareholder, in the year ending on the date of the conveyance or transfer, has, or has caused to be, assumed or discharged on behalf of the corporation.
[Section 74A inserted: No. 13 of 1997 s. 37; amended: No. 10 of 2001 s. 169; No. 2 of 2003 s. 59; No. 66 of 2003 s. 36.]
74B.Transactions involving a call option and a put option
(1)In this section —
call option means the right referred to in subsection (2)(a);
option property means —
(a)the property to which the call option applies; or
(b)if the put option applies to only a part of the property to which the call option applies, that part of the property;
property includes an estate or interest in property;
put option means the right referred to in subsection (2)(b).
(2)Subject to subsection (4), this subsection applies if, at the same time —
(a)a person (“A”) has a right to require another person (“B”) to sell property to A, or to a person who has an agreement, arrangement or understanding with A relating to the property; and
(b)B has a right to require A, or a person referred to in paragraph (a), to purchase —
(i)the property;
(ii)a part of the property; or
(iii)property that includes the property,
from B.
(3)Subsection (2) applies regardless of when the call option or the put option is exercisable.
(4)The Commissioner may determine that subsection (2) does not apply if the Commissioner is satisfied —
(a)that the call option and the put option are for, and only for, the purpose of obtaining finance or making other financial arrangements; or
(b)that the call option and the put option form part of a scheme of call options and put options given by the proprietors of a business that —
(i)are for, and only for, the purpose of facilitating the continuation of the business by one or some of the proprietors (the continuing proprietor or proprietors); and
(ii)are not exercisable except on the occurrence of an event specified in them that would cause the continuing proprietor or proprietors to seek to acquire the interest of another of the proprietors.
(5)In subsection (4)(b) —
proprietor means —
(a)in the case of a partnership, a partner;
(b)in the case of a company, a shareholder;
(c)in the case of a unit trust scheme, a unit holder; or
(d)in any other case, a person the Commissioner determines to be a proprietor of the business.
(6)From the time when subsection (2) applies the call option is to be regarded as —
(a)a contract for the sale of the option property to A for the purposes of section 74(1); or
(b)an acquisition by A of beneficial ownership of the option property for the purposes of section 31B,
whichever is applicable in the circumstances.
(7)The consideration for the contract or acquisition mentioned in subsection (6) is taken to be —
(a)the sum of —
(i)the amount paid by way of consideration for the granting of the call option in respect of the option property; and
(ii)the amount payable in the event of the call option being exercised in respect of the option property;
or
(b)if the unencumbered value of the option property is ascertainable and it is greater than the sum mentioned in paragraph (a), that unencumbered value.
(8)If as a result of the call option or the put option being exercised —
(a)a contract or agreement for the sale of the option property is executed; or
(b)there is an acquisition of beneficial ownership of the option property for the purposes of section 31B,
the duty payable in respect of the contract or agreement or because of the acquisition is to be reduced by the amount of any duty paid because of subsections (6) and (7).
(9)This subsection applies if —
(a)A has assigned the call option to another person (“C”) so that C has a right to require B to sell the option property to C, or to a person who has an agreement, arrangement or understanding with C relating to the property; and
(b)B has a right to require C, or a person referred to in paragraph (a), to purchase the option property from B.
(10)If subsection (9) applies, subsection (2) does not apply in relation to the rights of C and B referred to in subsection (9)(a) and (b).
(11)From the time when subsection (9) applies the assignment of the call option is to be regarded as —
(a)a contract for the sale of the option property to C for the purposes of section 74(1); or
(b)an acquisition by C of beneficial ownership of the option property for the purposes of section 31B,
whichever is applicable in the circumstances.
(12)The consideration for the contract or acquisition mentioned in subsection (11) is taken to be —
(a)the sum of —
(i)the amount paid by way of consideration for the assignment of the right referred to in subsection (9)(a); and
(ii)the amount payable in the event of the right referred to in subsection (9)(a) being exercised;
or
(b)if the unencumbered value of the option property is ascertainable and it is greater than the sum mentioned in paragraph (a), that unencumbered value.
(13)If as a result of the right referred to in subsection (9)(a) or the right referred to in subsection (9)(b) being exercised —
(a)a contract or agreement for the sale of the option property is executed; or
(b)there is an acquisition of beneficial ownership of the option property for the purposes of section 31B,
the duty payable in respect of the contract or agreement or because of the acquisition is to be reduced by the amount of any duty paid because of subsections (11) and (12).
(14)If —
(a)the call option and the put option both expire without being exercised; or
(b)after either of those options is rescinded or cancelled by agreement, the other expires without being exercised,
and subsection (9) has never applied, the duty chargeable on the call option is reduced to the amount of duty that would have been payable but for subsections (6) and (7).
(15)If —
(a)the rights referred to in subsection (9)(a) and (b) both expire without being exercised; or
(b)after either of those rights is rescinded, withdrawn, surrendered or cancelled by agreement, the other expires without being exercised,
the duty chargeable on the assignment of the call option is reduced to the amount of duty that would have been payable but for subsections (11) and (12).
(16)Subject to section 17 of the Taxation Administration Act 2003, the Commissioner must make any reassessment necessary to give effect to subsection (14) or (15).
(17)For the purposes of subsection (16), section 17 of the Taxation Administration Act 2003 applies as if the original assessment had been made —
(a)in the case of subsection (14), as soon as the call option and the put option had both expired; or
(b)in the case of subsection (15), as soon as the rights referred to in subsection (9)(a) and (b) had both expired.
(18)In relation to duty paid because of subsections (6) and (7) —
(a)the matter is not carried into effect for the purposes of section 20(1)(a) or (2)(a) if —
(i)the call option and the put option are rescinded or cancelled by agreement; or
(ii)after either of those options expires without being exercised, the other is rescinded or cancelled by agreement;
and
(b)if section 20(1) or (2) applies, the amount of duty is not to be reduced to less than the amount that would have been payable but for subsections (6) and (7).
(19)In relation to duty paid because of subsections (11) and (12) —
(a)the matter is not carried into effect for the purposes of section 20(1)(a) or (2)(a) if —
(i)the rights referred to in subsection (9)(a) or (b) are rescinded, withdrawn, surrendered or cancelled by agreement; or
(ii)after either of those rights expires without being exercised, the other is rescinded, withdrawn, surrendered or cancelled by agreement;
and
(b)if section 20(1) or (2) applies, the amount of duty is not to be reduced to less than the amount that would have been payable but for subsections (11) and (12).
[Section 74B inserted: No. 66 of 2003 s. 37.]
74C.Acquisition of certain business assets
(1)In this section —
business asset means —
(a)goodwill of a business;
(b)a restraint of trade arrangement for a business;
(c)a business identity;
(d)a business licence as defined in paragraph (b) of the definition of that term in section 73F(1) if it authorises the carrying out of an activity in
(e)a right of a business under an uncompleted contract to supply commodities or provide services;
(f)intellectual property of a business; or
(g)things that a business has that are in the nature of rent rolls and client lists;
business identity means a business name, trading name or Internet domain name, or a right to use a business name, trading name or Internet domain name;
circuit layout right means an exclusive right under the Circuit Layouts Act 1989 of the Commonwealth for an eligible layout under that Act;
commodities includes land, money, credit and goods and any interest in them;
franchise arrangement means an agreement or other arrangement under which a person (the franchisor) who carries on a business authorises or permits another person (the franchisee) —
(a)to engage in the business of producing, supplying or providing commodities or services, or both, at a place other than the place of business of the franchisor as long as the franchisee does so under —
(i)a stated marketing, business or technical plan or system; and
(ii)a common format or common procedure, or both;
and
(b)to use a mark or common trade name in such a way that the business carried on by the franchisee is or is capable of being identified by the public as being substantially associated with the mark or name identifying, commonly connected with or controlled by the franchisor or a person who would be related to the franchisor for the purposes of Part IIIBA;
intellectual property means —
(a)a patent, trademark, industrial design, copyright, registered design, plant breeder right or circuit layout right;
(b)anything else that has the following characteristics —
(i)it is in the nature of a strategy, process, procedure, mode of operation or way of working that enables a commodity or service to be produced, supplied or provided or that enhances the production, supply, provision or quality of a commodity or service;
(ii)it was created, devised or developed to be used for business purposes or, having been created, devised or developed for other purposes, has been applied, adapted or modified for use for business purposes;
or
(c)a right to use or exploit —
(i)anything mentioned in paragraph (a) or (b); or
(ii)an adaptation or modification of anything mentioned in paragraph (a) or (b);
plant breeder right means —
(a)a plant breeder’s right under the Plant Breeder’s Rights Act 1994 of the Commonwealth; or
(b)a plant breeder’s right corresponding to a right mentioned in paragraph (a);
restraint of trade arrangement for a business means a restraint of trade arrangement which, in the opinion of the Commissioner, enhances or is likely to enhance the value of the business.
(2)This section applies if a business asset of a business is acquired by a person and, at any time in the year preceding the acquisition, the business has —
(a)been carried on in or from
(b)supplied commodities or provided services to customers in
(3)This section does not apply to the acquisition of a business asset by the franchisee from the franchisor in accordance with a franchise arrangement unless another person has relinquished, or agreed not to extend, that business asset or a business asset of the same kind so that the franchisee could acquire that business asset.
(4)This section does not apply to the acquisition of intellectual property unless the acquisition is the subject of an arrangement that includes the acquisition of a business asset other than intellectual property.
(5)If a person —
(a)carries on, or has carried on, a business (the first business); and
(b)creates intellectual property, a restraint of trade arrangement or a business identity related to the first business for the purpose of the carrying on of the first business or another business by another person,
the creation of the intellectual property, restraint of trade arrangement or business identity is to be regarded for the purposes of this section as the acquisition by that other person of a business asset of the first business.
(6)If this section applies —
(a)the business asset is to be regarded for the purposes of this Act as property; and
(b)the acquisition of the business asset is to be regarded for the purposes of this Act as a transaction that transfers property and is chargeable with duty,
whether or not the business asset would otherwise be regarded under this Act as property and despite item 2(7) of the Third Schedule.
(7)Subject to subsection (10), duty on the acquisition of the business asset is to be assessed in accordance with whichever of subsection (8) or (9) is applicable.
(8)If the principal place of business or head office of the business is in
where —
Ais the dutiable amount;
CUVis the consideration for the acquisition of the business asset, or the unencumbered value of the business asset, whichever is the greater;
TSis the gross amount (in Australian dollars) of all the commodities supplied and services provided by the business in the last 3 completed financial years preceding the acquisition; and
ISis the gross amount (in Australian dollars) of the commodities supplied and services provided by the business to customers elsewhere in Australia in the last 3 completed financial years preceding the acquisition.
(9)If neither the principal place of business nor the head office of the business is in
where —
Ais the dutiable amount;
CUVis the consideration for the acquisition of the business asset, or the unencumbered value of the business asset, whichever is the greater;
TSis the gross amount (in Australian dollars) of all the commodities supplied and services provided by the business in the last 3 completed financial years preceding the acquisition; and
WASis the gross amount (in Australian dollars) of the commodities delivered and services provided by the business to customers in Western Australia in the last 3 completed financial years preceding the acquisition.
(10)Despite whichever of subsection (8) or (9) is applicable, the Commissioner may determine the dutiable amount on another basis if the Commissioner is satisfied that the other basis would be more appropriate in the circumstances.
(11)If this section applies to the acquisition of a business asset as defined in paragraph (d) of the definition of that term in subsection (1), section 73F does not apply to the acquisition.
(12)Section 74 applies to a contract or agreement for the acquisition of a business asset to which this section would apply.
[Section 74C inserted: No. 66 of 2003 s. 37.]
75.Duty chargeable on conveyance for less than full consideration
(1)Subject to subsection (2), every conveyance or transfer or instrument chargeable as a conveyance operating as a voluntary disposition inter vivos shall be chargeable with duty under item 19 of the Second Schedule in respect of the unencumbered value of the property disposed of.
(2)Notwithstanding subsection (1), every conveyance or transfer, or instrument chargeable as a conveyance, that confers a benefit on the person to whom the property is conveyed or transferred because the unencumbered value of the property exceeds the consideration payable in respect of that property, or because of other circumstances, shall be chargeable with duty under item 4 of the Second Schedule as if that unencumbered value were the consideration paid.
(3)A conveyance or transfer —
(a)for effectuating the appointment of a new trustee or the retirement of a trustee, whether the trust is expressed or implied;
(b)made to a beneficiary by a trustee or by another person in a fiduciary capacity, except a discretionary trustee or a unit trustee, under any trust whether express or implied;
(c)made to a beneficiary by a discretionary trustee under any trust, whether express or implied, otherwise than in the exercise of any power of appointment;
(d)made by a discretionary trustee, in the exercise of a power of appointment over the property conveyed or transferred, to a beneficiary who is an individual for his own use and benefit, if —
(i)at the time when the discretionary trustee acquired the property conveyed or transferred the beneficiary was named or described in the instrument which created the power of appointment as a beneficiary or as a member of a class of beneficiaries in whose favour the discretionary trustee was empowered by that instrument to appoint the property; and
(ii)evidence of the acquisition by the discretionary trustee, as such trustee, of the property conveyed or transferred is produced to the Commissioner with that conveyance or transfer;
(e)made to the holder of a unit in a unit trust scheme by a unit trustee if —
(i)evidence of the acquisition by the unit trustee, as trustee of that unit trust scheme, of the property conveyed or transferred is produced to the Commissioner with that conveyance or transfer; and
(ii)the Commissioner is satisfied that —
(I)the conveyance or transfer has the effect of reducing the rights of the holder of the unit in respect of the property held by the unit trustee to the extent of the property, or the value of the property, conveyed or transferred; and
(II)the conveyance or transfer does not have the effect of varying, abrogating, or altering the rights of the holder or holders of other units under the unit trust scheme in respect of the remaining property held by the unit trustee;
or
(f)not otherwise coming within this subsection but which the Commissioner is satisfied —
(i)does not pass a beneficial interest in the property conveyed or transferred;
(ii)is not made in contemplation of the passing of a beneficial interest therein; and
(iii)is not part of, or made pursuant to, a scheme whereby any beneficial interest in the property conveyed or transferred, whether vested or contingent, has passed or will or may pass,
shall not be charged with duty under this section.
[Section 75 inserted: No. 81 of 1984 s. 22; amended: No. 33 of 1987 s. 21; No. 100 of 1987 s. 4; No. 39 of 1994 s. 14 and 21; No. 20 of 1996 s. 25; No. 13 of 1997 s. 42; No. 2 of 2003 s. 60; No. 66 of 2003 s. 38.]
75A.Power to exempt instruments made for charitable or similar purposes
The Commissioner may exempt from ad valorem duty any deed of gift, conveyance, transfer, settlement or other instrument operating as a voluntary disposition of property, or any conveyance on the purchase of property, if the Commissioner is satisfied that it has been made for the purposes of a university or for charitable or similar public purposes.
[Section 75A inserted: No. 2 of 2003 s. 61.]
[75AA.Deleted: No. 2 of 2003 s. 61.]
75AB.Power to exempt instruments made in respect of certain funds or schemes
The Commissioner may exempt from ad valorem duty any instrument that the Commissioner is satisfied is an instrument —
(a)by which money or property is given or agreed to be given to; or
(b)which establishes or regulates or relates to the establishment or regulation of,
any fund or scheme established for the principal purpose of making provision by way of superannuation payments, annuities, pensions, gratuities, allowances, lump sum payments, benefits, assistance or the like for the directors, officers, servants or employees of any employer or employers on the termination of their office or service, whether by death or otherwise, or on their withdrawal from membership of that fund or scheme or during their incapacity for work attributable to illness or accident or for the widows, widowers, surviving de facto partners of 2 years or children or dependants or legal personal representatives of any of those directors, officers, servants or employees or for any persons duly selected or nominated for that purpose pursuant to the provisions of that fund or scheme.
[Section 75AB inserted: No. 37 of 1979 s. 51; amended: No. 81 of 1984 s. 25; No. 2 of 2003 s. 62; No. 28 of 2003 s. 189.]
75ABA.Power to exempt transfers by bankruptcy trustee to bankrupt
(1)When the Commissioner is satisfied that an instrument is an instrument by which property that vested in a bankruptcy trustee on the bankruptcy of a person is conveyed from the bankruptcy trustee back to that person, the Commissioner may exempt the instrument from duty.
(2)In this section —
bankruptcy trustee means —
(a)the Official Trustee in Bankruptcy; or
(b)a registered trustee,
under the Bankruptcy Act 1966 of the Commonwealth.
[Section 75ABA inserted: No. 28 of 2000 s. 5; amended: No. 2 of 2003 s. 63.]
Any instrument or instruments effecting an exchange of any property for any other property shall be chargeable with duty as if the exchange involved —
(a)the conveyance or transfer of the first‑mentioned property for consideration equal to the unencumbered value of that property; and
(b)the conveyance or transfer of the second‑mentioned property for consideration equal to the unencumbered value of that property.
[Section 75AC inserted: No. 20 of 1996 s. 27.]
75AD.Duty chargeable on partition of property
(1)Any instruments effecting the partition of any property shall be chargeable with duty under item 15 of the Second Schedule and any amount paid or other consideration given to achieve equality is also to be charged with ad valorem duty on that amount or on the value of that consideration under item 4 of the Second Schedule.
(2)Notwithstanding anything in subsection (1), when there is no amount or consideration referred to in that subsection or any amount or consideration referred to in that subsection is insufficient to achieve equality, duty shall be chargeable on the amount of that insufficiency under item 19 of the Second Schedule.
[Section 75AD inserted: No. 37 of 1979 s. 51; amended: No. 39 of 1994 s. 14; No. 66 of 2003 s. 39.]
75AE.Concessional rates for certain residential or business property
(1)A conveyance or transfer of residential property or business property is chargeable with duty under item 4(5) of the Second Schedule if —
(a)duty on the conveyance or transfer would, but for this section, be chargeable under item 4(1) of the Second Schedule;
(b)the value of the property does not exceed $200 000; and
(c)the property is conveyed or transferred to —
(i)one person who is an eligible purchaser;
(ii)in the case of business property — 2 or more purchasers all of whom are eligible purchasers; or
(iii)in the case of residential property — 2 or more purchasers —
(I)at least one of whom is an eligible purchaser; and
(II)all of whom are either eligible purchasers or government bodies.
(2)Subject to section 17 of the Taxation Administration Act 2003, the Commissioner must make any reassessment necessary to give effect to this section.
(3)In this section —
business property means property that is or includes a business undertaking;
eligible purchaser, in relation to a business property, means a person who —
(a)is not a government body;
(b)after purchasing the property will carry on the business undertaking that is or is part of the property; and
(c)intends to carry on that business for an indefinite period;
eligible purchaser, in relation to a residential property, means —
(a)an individual who —
(i)occupies, or after purchasing the property will occupy, the dwellinghouse on the property as his or her principal place of residence;
(ii)intends to so occupy the dwellinghouse for an indefinite period; and
(iii)is not acquiring, and does not intend to hold, the property as agent, trustee or otherwise on behalf of another person;
or
(b)a trustee who is acquiring, and intends to hold, the property in trust for one or more disabled beneficiaries, if at least one disabled beneficiary of the trust uses, or after the property is purchased will use, the property as his or her principal place of residence;
residential property means property that includes a dwellinghouse.
(4)In paragraph (b) of the definition of “eligible purchaser”, as defined in relation to residential property —
disabled beneficiary has the meaning given to that term in clause 1 of the Glossary at the end of the Land Tax Assessment Act 2002;
trustee has the meaning given to that term in clause 1 of the Glossary at the end of the Land Tax Assessment Act 2002.
(5)In the case of the definition of “trustee”, subsection (4) has effect despite section 63.
[Section 75AE inserted: No. 2 of 2003 s. 64; amended: No. 12 of 2004 s. 26; No. 11 of 2005 s. 9.]
75AF.Computation of duty for 2 or more instruments
(1)Where 2 or more instruments to which this section applies together form, or arise from, substantially one transaction, or one series of transactions, those instruments shall be chargeable with ad valorem duty calculated upon the sum of the amounts by reference to which ad valorem duty on each of those instruments would, but for this subsection, have been calculated, and that duty shall be apportioned to the various instruments as determined by the Commissioner.
(2)Where, by instruments to which this section applies that have been, or appear to have been, executed within 12 months of each other, a person conveys or transfers, or agrees to convey or transfer, property or properties to the same person (whether that person takes alone or with the same or different persons), it shall be presumed, unless the Commissioner is satisfied to the contrary, that the instruments arose out of one transaction or one series of transactions.
(3)This section does not operate to reduce the duty payable on any instrument.
(4)This section applies to conveyances or transfers of property and other instruments chargeable with duty under item 4(1), item 17 or item 19 of the Second Schedule.
[Section 75AF inserted: No. 81 of 1984 s. 26; amended: No. 41 of 1989 s. 12; No. 2 of 2003 s. 65.]
75AG.Reduction of duty or refund for first home owner
(1)Duty on an instrument of transfer of property referred to in the Second Schedule item 4(2) or (3) becomes chargeable at the rate set out in the respective subitem when the transferee, or each transferee, if there are more than one —
(a)is paid a first home owner grant in relation to the property or becomes a person to whom a first home owner grant is or will be payable, in relation to the property; or
(b)becomes a person to whom a first home owner grant would be, or would have been, payable in relation to the property if consideration had been given for the transfer of the property.
(1a)Subsection (1) does not apply to an instrument of transfer of property referred to in the Second Schedule item 4(2) or (3) if —
(a)the unencumbered value of the land and home (in the case of property referred to in item 4(2)) exceeds $600 000; or
(b)the unencumbered value of the land (in the case of property referred to in item 4(3)) exceeds $400 000.
(2)The transferee may apply to the Commissioner for the amount of duty chargeable on the instrument to be assessed under this section.
(3)If there is more than one transferee, the application must be made jointly by each transferee.
(4)The application may only be made within the period —
(a)beginning on the commencement date of the eligible transaction to which the application relates; and
(b)ending 12 months after the completion of the eligible transaction.
(5)The application must —
(a)be in an approved form; and
(b)include the information necessary to enable the Commissioner to decide whether duty on the instrument is chargeable under this section.
(6)For the purposes of this section and for the purposes of applying the Administration Act in relation to the operation of this section —
(a)the FHOG Act is to be treated as if it were a taxation Act;
(b)the FHOG Act applies to and in relation to an application under this section, to the extent that it can be applied for those purposes, as if a reference in the FHOG Act to an application or an applicant were a reference to the application or applicant under this section; and
(c)this Act and the Administration Act apply in relation to any information given to the Commissioner for the purposes of the FHOG Act by a person who is an applicant under this section as if the information had been given to the Commissioner for the purposes of this section.
(7)Information provided by an applicant in or in connection with an application under this section must, if the Commissioner so requires, be verified by statutory declaration or supported by other evidence required by the Commissioner.
[(8)deleted]
(9)If a transferee is required to repay an amount under section 21 or 51 of the FHOG Act, or would be required to repay an amount if a first home owner grant had been paid to the transferee, duty on the instrument of transfer is not, or is no longer (as the case requires) chargeable under this section.
(10)Despite section 17 of the Administration Act, the Commissioner must make any reassessment necessary to give effect to this section.
(11)An expression used in this section that is defined in the FHOG Act has the same meaning in this section as it has in that Act.
(12)In this section, unless the contrary intention appears —
Administration Act means the Taxation Administration Act 2003;
FHOG Act means the First Home Owner Grant Act 2000;
instrument of transfer includes —
(a)an instrument of conveyance;
(b)an instrument on which duty is chargeable under the Second Schedule item 19; and
(c)any other instrument that is chargeable as a conveyance or transfer;
transferee, in relation to property, means a person to whom the property is conveyed or transferred, except —
(a)a person who, under the FHOG Act, would not be required to join in making an application for a first home owner grant; or
(b)a prescribed person.
[Section 75AG inserted: No. 12 of 2004 s. 20; amended: No. 11 of 2005 s. 10; No. 31 of 2006 s. 5; No. 12 of 2007 s. 11.]
75AH.Further transfer to person who was first home owner
(1)An expression used in this section that is defined in section 75AG, or given a meaning under that section, has the same meaning in this section as it has in that section.
(2)Subject to subsection (6), this section applies when —
(a)duty was chargeable under section 75AG on an instrument of transfer of property referred to in the Second Schedule item 4(2) or (3) and executed on or after 1 July 2004 (the first instrument); and
(b)before 1 July 2008, a transferee in relation to the first instrument —
(i)executes another instrument of transfer of property (the further instrument) which evidences the acquisition of a further interest in the property from a person excluded from the operation of section 16(1) of the FHOG Act; and
(ii)is liable to pay duty on the further instrument.
(3)When this section applies —
(a)duty is chargeable on the further instrument at the rate at which it was chargeable on the first instrument, using the same thresholds that applied when duty was charged on the first instrument; and
(b)irrespective of the value of the property at the time of the execution of the further instrument and the consideration paid in respect of the further instrument, the amount or value of the consideration on which duty is chargeable on the further instrument is the same as the higher of —
(i)the amount or value of the consideration on which duty was charged on the first instrument; or
(ii)the unencumbered value of the whole of the property at the time of execution of the first instrument;
and
(c)the assessment of the duty payable on the further instrument is to be made on the amount or value referred to in paragraph (b), but —
(i)the portion of duty assessed in relation to the transferee is to bear the same proportion to the whole of the duty assessed as the interest that would be held by the transferee after the execution and registration of the further instrument bears to the whole of the property; and
(ii)the further instrument is exempt from the remaining portion of the duty that would, but for this subparagraph, be payable;
and
(d)the amount of duty payable is to be reduced by the amount of the duty paid by the transferee on the first instrument and any other further instrument on which duty has been paid.
(4)Section 75AG(2), (3), (5), (6) and (7) applies, with necessary changes, in respect of an application under this section.
(5)The application may only be made within the period ending 12 months after the execution of the further instrument.
(6)If a transferee is required to repay an amount under section 21 or 51 of the FHOG Act in relation to the first instrument or a further instrument, or would be required to repay an amount if a first home owner grant had been paid to the transferee, duty on the further instrument is not, or is no longer, (as the case requires) chargeable under this section.
(7)If any transferee in relation to the further instrument was not a transferee in relation to the first instrument, duty on the further instrument is not chargeable under this section.
(8)Despite section 17 of the Administration Act, the Commissioner must make any reassessment necessary to give effect to this section.
[Section 75AH 3 inserted: No. 31 of 2006 s. 6; amended: No. 12 of 2008 s. 13.]
[75B.Deleted: No. 48 of 1996 s. 41.]
75C.Power to exempt for certain conveyances between spouses
(1)Upon application made in the manner provided in subsection (3), the Commissioner may exempt from duty any instrument chargeable with duty under item 4(1) or 19 of the Second Schedule where —
(a)the person from whom, and the person to whom, the property is conveyed or transferred, or agreed to be conveyed or transferred, are married to each other or are de facto partners of 2 years;
(b)the property conveyed or transferred, or agreed to be conveyed or transferred, by the instrument includes a dwellinghouse which, at the time of the execution of the instrument was used solely or principally as the ordinary place of residence of the persons referred to in paragraph (a);
(c)the lot on which the dwellinghouse referred to in paragraph (b) is erected is used principally or solely for residential purposes associated with that dwellinghouse;
(d)the person from whom the property is conveyed or transferred, or agreed to be conveyed or transferred, is the sole owner of the property; and
(e)the result of the conveyance or transfer is or will be that the property is owned solely by the persons referred to in paragraph (a) as joint tenants.
(2)Where an instrument referred to in subsection (1) does not relate only to a dwellinghouse and lot described in that subsection the exemption provided by that subsection extends only to the amount of the aggregate value of all property to which the instrument relates that the Commissioner is satisfied is the amount of the value of the dwellinghouse and lot.
(3)An application under subsection (1) in respect of an instrument shall be made to the Commissioner by the persons referred to in subsection (1)(a) in an approved form.
(3a)If on such an application the Commissioner is satisfied that the instrument is an instrument of the kind described in subsection (1), he shall exempt it from duty in accordance with this section.
(4)In this section —
lot means —
(a)a lot as defined in the Land Tax Assessment Act 2002; and
(b)2 or more such lots in the same ownership —
(i)on which is constructed a dwellinghouse, parts of which stand on each of the lots; and
(ii)which have common boundaries and which in the opinion of the Commissioner should be treated as a single lot for the purpose of this section.
[Section 75C inserted: No. 100 of 1987 s. 5; amended: No. 3 of 1989 s. 7; No. 52 of 1991 s. 15; No. 20 of 1996 s. 30; No. 2 of 2003 s. 67; No. 28 of 2003 s. 190.]
75CA.Refund where contingent consideration is not paid
(1)If payment of any part of the consideration (the contingent consideration) in respect of which a contract or agreement for the sale of any estate or interest in any property (the contract) was charged with ad valorem duty was dependent on the happening of a future event, then if, on an application under subsection (2), it is shown to the satisfaction of the Commissioner that —
(a)the contract was executed on or after the day on which this section came into operation;
(b)the contingent consideration has not been paid;
(c)the event did not happen, or did not happen within the time specified in the contract for the happening of the event; and
(d)either —
(i)the event cannot happen in the future; or
(ii)the time specified in the contract for the happening of the event has passed or expired,
then the contingent consideration is taken not to be, and never to have been, part of the consideration in respect of which the contract is chargeable and the Commissioner must reassess the duty payable on the contract accordingly.
(2)An application for the purposes of this section —
(a)is to be made in an approved form by the person liable to pay the duty; and
(b)cannot be made more than 5 years after the contract was executed.
(3)In this section, a reference to the happening of an event includes a reference to an event not happening.
[Section 75CA inserted: No. 66 of 2003 s. 41.]
Part IIIBAA — Certain transfers of farming property
[Heading inserted: No. 79 of 1994 s. 4(1).]
(1)In this Part —
discretionary trust has the same definition as in section 76;
discretionary trustee means the trustee of a discretionary trust;
family member, in relation to a person, means —
(a)a child or remoter lineal descendant of the person;
(b)a parent or remoter lineal ancestor of the person;
(c)a brother or sister of the person or remoter lineal descendant of a brother or sister of the person;
(d)an aunt or uncle of the person;
(e)the spouse, former spouse, de facto partner of 2 years or former de facto partner of 2 years of the person; or
(f)the spouse or de facto partner of 2 years of a person referred to in paragraph (a), (b), (c) or (d),
or more than one of them;
farming company means a corporation —
(a)the shares of which are not quoted on a financial market; and
(b)which has assets which include —
(i)farming property; or
(ii)a share in a corporation —
(I)the shares of which are not quoted on a financial market; and
(II)the assets of which include farming property;
farming land means —
(a)land that is used solely or principally for the purpose of primary production; or
(b)land that is used solely or principally for the purpose of silviculture or reafforestation;
farming partnership means a partnership, the assets of which include farming property;
farming property means —
(a)farming land; or
(b)personal property which is used solely or principally in connection with the business of primary production;
instrument of conveyance means a conveyance or transfer of property or other instrument chargeable with duty —
(a)under item 4 of the Second Schedule; or
(b)at a rate of duty provided for in item 4 of the Second Schedule,
but does not include a Part IIIBA statement;
land includes an estate or interest in —
(a)freehold land, whether or not registered under the Transfer of Land Act 1893; or
(b)a Crown lease registered under the Transfer of Land Act 1893;
primary production means —
(a)the growing or rearing of plants (including trees, fungi or any crop) for the purpose of selling them, parts of them or their produce;
(b)the breeding, rearing or maintenance of living creatures for the purpose of —
(i)selling them (or their progeny) for food;
(ii)the production or collection of their skins, shells or bodily produce; or
(iii)selling parts of them or their skins, shells or bodily produce;
(c)the breeding or rearing of horses for the purpose of selling them or their progeny;
trustee means a trustee who is not a discretionary trustee or the trustee of a unit trust.
(1a)For the purposes of this Part a person controls a discretionary trust if —
(a)the person is in a position to influence, either directly or indirectly, the vesting of the whole or any part of the capital of the trust property, or of the whole or any part of the income from that trust property; or
(b)in a case where a corporation is in a position to influence, either directly or indirectly, the vesting of the whole or any part of the capital of the trust property, or of the whole or any part of the income from that trust property, the person is beneficially entitled to a share, or an interest in a share, in that corporation or a related corporation or to act as a director or secretary of that corporation or related corporation.
(2)For the purposes of this Part —
(a)an illegitimate person shall be treated as the legitimate child of that person’s parents; and
(b)it is irrelevant whether a relationship is of the whole or half‑blood, or whether it is a natural relationship or a relationship established by a written law.
[Section 75D inserted: No. 79 of 1994 s. 4(1); amended: No. 20 of 1996 s. 31; No. 57 of 1996 s. 6; No. 13 of 1997 s. 42; No. 53 of 1999 s. 21; No. 21 of 2003 s. 27; No. 2 of 2003 s. 68; No. 28 of 2003 s. 191; No. 66 of 2003 s. 42; No. 12 of 2004 s. 27.]
(1)Subject to subsections (2), (3), (4), (5) and (6), this Part applies in respect of an instrument of conveyance made by a person (the transferor), or made by a trustee on behalf of, and at the direction of, a person (the transferor) —
(a)of farming property to a family member of the transferor;
(b)of an interest in a farming partnership to a family member of the transferor;
[(c)deleted]
(d)of —
(i)farming property; or
(ii)an interest in a farming partnership,
to a trustee where after the transfer or conveyance the subject of the instrument, the beneficial owner of the trust property will be a family member of the transferor; or
(e)of —
(i)farming property; or
(ii)an interest in a farming partnership,
[(iii)deleted]
to a discretionary trustee of a discretionary trust, where —
(iv)all the persons who have a share or interest in the trust property, whether vested or contingent, or who may benefit from the discretionary trust are family members of the transferor; and
(v)the transferor does not control the discretionary trust.
(2)This Part —
(a)applies if the transfer or conveyance the subject of the instrument of conveyance referred to in subsection (1) is made by a transferor to any combination of the persons referred to in that subsection; and
(b)does not apply to a transfer or conveyance the subject of the instrument of conveyance referred to in subsection (1) if the transferees include a person who is not one of the persons referred to in that subsection.
(3)This Part applies only where —
(a)the family member, trustee or discretionary trustee to whom the farming property is conveyed or transferred intends to continue to use the farming property in the business of primary production;
(b)the farming partnership in which an interest is conveyed or transferred to a family member, trustee or discretionary trustee intends to continue to use the farming property in the business of primary production; or
(c)section 75I applies and the farming company in which an interest is conveyed or transferred to the family member, trustee or discretionary trustee intends to continue to use the farming property in the business of primary production.
(3a)However, if —
(a)part of the farming property consists of farming land;
(b)some (but not all) of the farming land is leased to another person; and
(c)under the lease, the lessee is using the leased land solely or principally for the purposes of silviculture or reafforestation,
then this Part applies under subsection (3) as if the family member, trustee or discretionary trustee, or the farming partnership or farming company, intends to use or continue to use the leased portion of the land in the business of primary production.
(4)In relation to an instrument of conveyance referred to in subsection (1)(a) or (b), this Part applies only where the relevant family member does not intend to hold the farming property or partnership interest, as the case requires, as agent, trustee or otherwise on behalf of any other person.
(5)Where an exemption has been granted under this Part in relation to an instrument of conveyance of farming property or an interest in a farming partnership, to a person (or to a trustee on behalf of a person) (the initial instrument), this Part does not apply to a subsequent instrument of conveyance by that person or trustee made within 5 years of the initial instrument if the Commissioner is of the opinion that the subsequent instrument of conveyance relates to the same farming property or partnership interest which was the subject of the exemption.
(6)Where —
(a)an exemption has been granted under this Part in relation to an instrument of conveyance to a discretionary trustee of a discretionary trust referred to in subsection (1)(e) (the initial transfer); and
(b)part or all of the farming property or partnership interest the subject of that instrument is subsequently conveyed or transferred to a beneficiary of that discretionary trust and duty in accordance with item 6 of the Second Schedule is charged on the relevant conveyance or transfer,
this Part does not apply to an instrument of conveyance by that beneficiary made within 5 years of the initial transfer if the Commissioner is of the opinion that the instrument of conveyance relates to the same farming property or partnership interest that was the subject of the exemption.
[Section 75E inserted: No. 79 of 1994 s. 4(1); amended: No. 20 of 1996 s. 32; No. 2 of 2003 s. 69; No. 66 of 2003 s. 43; No. 12 of 2004 s. 28.]
75F.Power to exempt for farming property
If the Commissioner is satisfied that this Part applies to an instrument of conveyance, the Commissioner may, on receiving an application under section 75H —
(a)exempt the instrument from duty; or
(b)in the circumstances referred to in section 75G, partially exempt the instrument from duty.
[Section 75F inserted: No. 2 of 2003 s. 70.]
(1)Where the Commissioner is satisfied that an instrument of conveyance is an instrument to which this Part applies but —
(a)in relation to an instrument referred to in section 75E(1)(a), (d)(i) or (e)(i), the instrument does not relate only to farming property; or
(b)in relation to an instrument referred to in section 75E(1)(b), (d)(ii) or (e)(ii), the assets of the farming partnership do not only comprise farming property,
[(c)deleted]
for the purpose of assessing duty on that instrument, notwithstanding any other provision of a stamp Act —
(d)the Commissioner shall assess duty on the unencumbered value of the farming property or partnership interest as determined in accordance with section 33 and sections 21 and 22 of the Taxation Administration Act 2003;
(e)the farming property shall be deemed to have no value; and
(f)in making the valuation referred to in paragraph (d) the Commissioner shall only have regard to an apportioned liability.
(2)When assessing the duty referred to in subsection (1) —
(a)duty shall be charged on the instrument referred to in that subsection at the rate of duty provided for in item 4 of the Second Schedule; and
(b)the person liable to pay that duty shall be the person who, if not for the operation of this Part, would have been so liable.
(3)In this section the apportioned liability, in relation to a partnership referred to in subsection (1)(b), shall be calculated as follows —
where —
Ais the value of the farming property (as determined in accordance with section 33 and sections 21 and 22 of the Taxation Administration Act 2003) comprised in the assets of the partnership;
Bis the total value of the assets of the partnership;
Cis the amount of the total liabilities of the partnership; and
Lis the apportioned liability.
[Section 75G inserted: No. 79 of 1994 s. 4(1); amended: No. 20 of 1996 s. 33; No. 2 of 2003 s. 71; No. 66 of 2003 s. 44.]
(1)An application for an exemption under section 75F is to be made in an approved form by the person acquiring the farming property or partnership interest or, if there is more than one such person, by all of them.
(2)Despite section 17(1) of the Taxation Administration Act 2003, an application for a reassessment of the duty payable on an instrument to which this Part applies on the basis that an exemption under section 75F should have been, but was not, granted in relation to the instrument cannot be made more than 12 months after the day on which the instrument was stamped.
[Section 75H inserted: No. 2 of 2003 s. 72; amended: No. 66 of 2003 s. 45.]
75HA.Subsequent liability for duty in certain circumstances
(1)In this section —
current exempted property means, when a taxable event occurs in relation to a discretionary trust, that part of —
(a)a farming property;
(b)an interest in a farming partnership; or
(c)a share in a farming company,
as the case requires, conveyed by an instrument of conveyance the subject of a farming exemption that is, at the date of the taxable event, vested in the discretionary trustee as trustee of the discretionary trust;
entitled share, in relation to a farming company, means a share that would entitle the holder of that share, if the property of the farming company were to be distributed after the share was acquired (on the basis of a winding up) to participate (otherwise than as a creditor or other person to whom the farming company is liable) in the distribution of the property of the farming company;
farming exemption means an exemption or partial exemption granted by the Commissioner under this Part;
relevant proportion means the proportion that the shares in a farming company that are current exempted property bear to the total number of entitled shares in the farming company;
the transferor has the meaning given in section 75E(1).
(2)For the purposes of this section a taxable event occurs in relation to a discretionary trust when —
(a)a person who is not a family member of the relevant transferor —
(i)becomes entitled to a share or interest in the trust property of the discretionary trust, whether that share or interest is vested or contingent; or
(ii)otherwise benefits from the discretionary trust;
or
(b)the relevant transferor gains control of the discretionary trust.
(3)Where a farming exemption has been granted in relation to an instrument of conveyance to a discretionary trustee of a discretionary trust and during the life of the transferor a taxable event occurs, the discretionary trustee of the relevant discretionary trust shall, unless subsection (4) or (4a) applies, within a period of one month after the date of the taxable event, lodge a statement with the Commissioner in respect of the taxable event.
Penalty: $20 000.
(3a)A dutiable statement is to be prepared in an approved form.
(4)A discretionary trustee is not required to lodge a dutiable statement if —
(a)a dutiable statement in respect of the farming exemption has previously been lodged with the Commissioner; or
(ab)the taxable event occurs on or after 1 July 2008; or
(b)there is no current exempted property.
(4a)If the property conveyed by an instrument of conveyance was a share in a farming company, the discretionary trustee is not required to lodge a dutiable statement unless subsection (6) will apply if such a statement is lodged.
(5)If a dutiable statement is lodged in respect of a farming exemption for an instrument of conveyance referred to in section 75E(1)(e)(i) or (ii), the dutiable statement is taken to be an instrument operating as a voluntary disposition under section 75(1) of the current exempted property and is chargeable with duty accordingly.
(6)If —
(a)a dutiable statement is required to be lodged under this section in respect of a farming exemption for an instrument of conveyance that conveyed a share in a farming company;
(b)a section 76AG statement is required to be lodged in respect of the acquisition that is the subject of the instrument of conveyance; and
(c)at the date of the taxable event the relevant farming company is still beneficially entitled to farming land to which it was beneficially entitled when the acquisition referred to in paragraph (b) occurred,
then the dutiable statement lodged under this section is taken to be an instrument operating as a voluntary disposition under section 75(1) of the relevant proportion of the farming land or of that part of the farming land and is chargeable with duty accordingly.
[(7)deleted]
(8)The amount of duty payable in respect of a dutiable statement lodged in respect of a farming exemption for an instrument of conveyance that conveyed an interest in a farming partnership or a share in a farming company is reduced (up to the amount of duty payable in respect of the dutiable statement) by the amount of any duty previously paid on the instrument of conveyance.
[Section 75HA inserted: No. 20 of 1996 s. 34; amended: No. 60 of 2000 s. 20(3), (4) and (5); No. 2 of 2003 s. 73; No. 66 of 2003 s. 46 and 107(4); No. 12 of 2008 s. 14.]
(1)Where —
(a)the Commissioner is satisfied that, if the amendments made to this Part by the Business Tax Review (Assessment) Act (No. 2) 2003 had not been made, an instrument of conveyance of a share in a farming company would have been —
(i)an instrument referred to in section 75E(1)(c), (d)(iii) or (e)(iii); and
(ii)an instrument to which this Part applied;
and
(b)the transaction to which that instrument relates gives rise to a liability to lodge a section 76AG statement,
the Commissioner may —
(c)if the land to which the section 76AG statement relates comprises only farming land in Western Australia — exempt the section 76AG statement from duty; or
(d)if the land to which the section 76AG statement relates does not only comprise farming land in Western Australia — partially exempt the section 76AG statement from duty.
(2)The amount of a partial exemption is the amount equal to R in the formula —
where —
Ais the value of the farming land in Western Australia;
Bis the value of all the land and chattels the subject of the section 76AG statement; and
Cis the amount of the duty —
(a)that would be chargeable on the section 76AG statement; or
(b)where section 76AH(3) applies, that would ultimately be chargeable on the section 76AG statement,
if this Part did not apply to it.
(3)Despite section 17(1) of the Taxation Administration Act 2003, an application for a reassessment of the duty payable on a section 76AG statement on the basis that an exemption under section 75I should have been, but was not, granted in relation to the section 76AG statement cannot be made more than 12 months after the day on which the section 76AG statement was stamped.
[Section 75I inserted: No. 2 of 2003 s. 74; amended: No. 66 of 2003 s. 47; No. 12 of 2004 s. 29.]
Part IIIBAAA — Exemptions for corporate reconstructions
[Heading inserted: No. 48 of 1996 s. 42.]
(1)In this Part, unless the contrary intention appears —
body corporate does not include a corporation sole;
dormant, in relation to a body corporate, has the meaning given by section 75JAA;
licence has the meaning given to that term in section 76B;
section 31B or 31C statement means a dutiable statement lodged under section 31B or 31C;
shares includes stock;
vehicle has the meaning given to that term in section 76B.
(1a)For the purposes of this Part a section 31B or 31C statement is taken to have been executed on the day on which the conveyance, transfer or assignment to which it relates occurred.
(2)In this Part, unless the contrary intention appears —
(a)2 bodies corporate are associated if —
(i)one of them beneficially owns (directly or indirectly) at least 90% of the issued share capital of, and has voting control over, the other; or
(ii)a third body corporate beneficially owns (directly or indirectly) at least 90% of the issued share capital of each body corporate and has voting control over each body corporate;
(b)a body corporate (A) has voting control over another body corporate (B) if A is in a position to cast or control the casting of at least 90% of the maximum number of votes that might be cast at a general meeting of B (excluding any power to vote by any person by virtue of the provisions of any debentures or a trust deed securing the issue of such debentures);
(c)if the claw‑back applies —
(i)in the case of an instrument, section 75JE applies; or
(ii)in the case of a Part IIIBA statement, section 75JF applies.
(3)In this Part, other than section 75JA, unless the contrary intention appears —
issued share capital means issued share capital that carries the right to unlimited participation in the distribution of income and capital of a body corporate or issued share capital to which subsection (4) applies.
(4)This subsection applies to issued share capital of a body corporate if the Commissioner is satisfied —
(a)that the body corporate is not carried on for the purposes of profit or gain to its members;
(b)that the issued share capital of the body corporate carries no right, or a limited right, for its members to participate in the distribution of income and capital of the body corporate; and
(c)that the non‑existence or limitation of that right is not part of an arrangement having as its purpose, or one of its purposes, the reduction of duty that might otherwise become payable.
[Section 75J inserted: No. 48 of 1996 s. 42; amended: No. 51 of 1997 s. 5; No. 29 of 2000 s. 5; No. 60 of 2000 s. 20(6); No. 10 of 2001 s. 170; No. 36 of 2001 s. 19; No. 2 of 2003 s. 75; No. 66 of 2003 s. 48; No. 11 of 2005 s. 11.]
75JAA.When a body corporate is dormant
A body corporate is dormant throughout a particular period if, and only if, throughout that period the body —
(a)did not receive or become entitled to any income or incur or become liable for any expenditure;
(b)did not purchase, sell or supply any goods or other property, or any services, or enter into any agreement or pass any resolution in relation to the purchase, sale or supply of goods or other property, or services;
(c)did not issue, sell, purchase or make available any securities, or enter into any agreement or pass any resolution in relation to the issue, sale, purchase or making available of securities;
(d)did not issue a prospectus or statement, or enter into any agreement or pass any resolution in relation to the issue of a prospectus or statement, in connection with the issue, sale, purchase or making available, or the proposed issue, sale, purchase or making available, of any securities;
(e)did not take part in any research, development or exploration activities, or enter into any agreement or pass any resolution in relation to taking part in research, development or exploration activities;
(f)was not, and did not become, a party to any lease, franchise, joint venture or partnership arrangement, and did not take part in any lease, franchise, joint venture or partnership arrangement, or enter into any agreement or pass any resolution in relation to becoming a party to, or taking part in, any lease, franchise, joint venture or partnership arrangement;
(g)did not make, receive or guarantee any loan, or enter into any agreement or pass any resolution in relation to making, receiving or guaranteeing a loan;
(h)was not, and did not become, a party to any underwriting agreement and did not enter into any agreement or pass any resolution in relation to becoming a party to any underwriting agreement;
(i)did not obtain or receive a grant of any licence or other authority, or make any application or pass any resolution in relation to obtaining a licence or other authority; and
(j)was not, and did not become, a party to any litigation or negotiations with any other person or body.
[Section 75JAA inserted: No. 10 of 2001 s. 171.]
75JA.Corporate reconstructions: exemptions
(1)This section applies if in connection with a scheme for the reconstruction of a body corporate or the amalgamation of bodies corporate —
(a)a body corporate (the transferee) acquires at least 90% of the issued share capital of —
(i)a body corporate; or
(ii)each of 2 or more bodies corporate that were associated with one another immediately prior to the acquisition,
(the target);
(b)the transferee is incorporated in Australia and has been dormant from when it was incorporated until it resolves to make the acquisition;
(c)at least 90% of the consideration for the acquisition of the target, or if there are 2 or more targets, each target, consists of the issue of shares in the transferee to the holders of shares in the target or targets in exchange for those shares;
(d)each holder of shares in the target or targets whose shares are acquired receives consideration equal in value to the value of those shares; and
(e)immediately after the acquisition at least 90% of the issued share capital of the transferee consists of shares issued in consideration for the acquisition of shares in the target or, if there are 2 or more targets, for the acquisition of shares in all the targets.
(2)If, on an application under section 75JD, it is shown to the satisfaction of the Commissioner that this section applies because of subsection (1) and the acquisition is a relevant acquisition under Division 2 or 3 of Part IIIBA, the Commissioner shall exempt a Part IIIBA statement lodged in respect of the acquisition from duty chargeable under section 76AH or 76AO.
(3)If a Part IIIBA statement is exempted under subsection (2) and within 5 years after the date of the occurrence of the relevant acquisition to which the Part IIIBA statement relates —
(a)the transferee issues or cancels any shares or varies the rights of any of its shares; or
(b)the beneficial interest in any share in the transferee issued in the circumstances described in subsection (1)(c) is transferred from the person to whom the share was issued,
then —
(c)the transferee shall notify the Commissioner in an approved form within one month after the relevant event; and
(d)if the relevant event occurred before 1 July 2008, the claw‑back applies unless, in a case where paragraph (b) applies, the Commissioner is satisfied that the transfer is in connection with a scheme for the reconstruction of a body corporate or the amalgamation of bodies corporate.
(4)If the relevant event occurs on or after 1 July 2008, subsection (3)(c) does not apply if the event is the subject of —
(a)an application made under the Duties Act 2008 section 262 for an exemption; or
(b)an application made under the Duties Act 2008 section 180; or
(c)a statement lodged under the Duties Act 2008 section 200.
[Section 75JA inserted: No. 48 of 1996 s. 42; amended: No. 51 of 1997 s. 6; No. 53 of 1999 s. 22; No. 2 of 2003 s. 76; No. 21 of 2003 s. 28(1); No. 66 of 2003 s. 49; No. 11 of 2004 s. 13; No. 12 of 2004 s. 30; No. 11 of 2005 s. 12; No. 12 of 2008 s. 15.]
75JB.Corporate reorganisations: exemption from duty on conveyances between associated bodies corporate
(1)This section applies if —
(a)an instrument conveys, transfers or assigns a beneficial interest in property from one body corporate (“A”) to another body corporate (“B”);
(b)the instrument does not convey, transfer or assign any other interest or property which if separately conveyed, transferred or assigned would not be exempt from duty;
(c)A and B are associated bodies corporate;
(d)at the date of execution of the instrument, A and B have been associated bodies corporate for at least the qualifying period unless —
(i)A and B became associated in the circumstances of an acquisition described in subsection (1) of section 75JA (B being “the transferee” referred to in that subsection), a Part IIIBA statement in respect of that acquisition was exempted under section 75JA(2) and section 75JF has not become applicable to that statement;
(ii)A and B have been associated since A acquired at least 90% of the issued share capital —
(A)of B on its incorporation in Australia; or
(B)of B as a body corporate incorporated in Australia that had been dormant since it was incorporated,
and B has been dormant from when A and B became associated until B resolved to acquire the beneficial interest;
(iii)A and B became associated because B acquired at least 90% of the issued share capital of A, a Part IIIBA statement was lodged in respect of that acquisition, and ad valorem duty was paid on that Part IIIBA statement; or
(iv)A and B are associated in the circumstances described in section 75J(2)(a)(ii), the third body corporate referred to in section 75J(2)(a)(ii) (“C”) has owned the issued share capital of B in those circumstances since B was incorporated in Australia, B has been dormant from when it was incorporated until it resolved to acquire the property from A, and A has been associated with C for at least the qualifying period;
(e)B does not hold the beneficial interest on trust for another person; and
(f)the instrument was not made pursuant to or in connection with an arrangement under which —
(i)the consideration, or any part of it, for the conveyance, transfer or assignment was to be provided or received, directly or indirectly, by a person other than A or B or a body corporate that at the time the instrument was executed was associated with either A or B; or
(ii)A or B or a body corporate associated with either of them is to be enabled to provide any of the consideration or is to dispose of any of the consideration by or in consequence (wholly or partially) of the carrying out of a transaction involving a payment or other disposition by a person other than A or B or a body corporate associated with either of them at the time the instrument was executed.
(1a)If, in relation to an instrument executed on or after 18 May 2005 (other than one executed in reliance on a determination made under section 75JC(4) before that day), C’s ownership of the issued share capital of B referred to in subparagraph (iv) of subsection (1)(d) is indirect, this section does not apply by virtue of that subparagraph unless this section would have applied if the beneficial interest had been conveyed, transferred or assigned —
(a)from A to C; and
(b)from C to B.
(2)In subsection (1)(d) the qualifying period is the shorter of 3 years or —
(a)if prior to A acquiring the beneficial interest, the interest was owned by bodies corporate associated with A — the period while the interest was continuously owned by A and those associated bodies corporate;
(b)if the beneficial interest came into the ownership of A or of a body corporate associated with A by means of an instrument on which ad valorem duty or interstate duty has been paid — the period since that instrument was executed; or
(c)in any other case — the period since A acquired the beneficial interest.
(2a)This section also applies if —
(a)an instrument executed on or after the day on which section 50 of the Business Tax Review (Assessment) Act (No. 2) 2003 comes into operation 1 evidences an agreement to transfer or assign an interest in a vehicle and includes the following information —
(i)the make and model of the vehicle;
(ii)the licence plate number of the vehicle;
(iii)the market value of the vehicle;
(iv)the purchase price (if applicable) of the vehicle;
and
(b)subsection (1)(b) to (f) are met (with any necessary modifications).
(3)If on an application under section 75JD in respect of an instrument to which subsection (1)(a) refers it is shown to the satisfaction of the Commissioner that this section applies, then —
(a)the Commissioner shall exempt an instrument executed on or after 1 October 1996 to which this section applies from duty under item 4, 13(3) or 19 of the Second Schedule; and
(b)if the conveyance, transfer or assignment effected by an instrument to which this section applies is a relevant acquisition under Part IIIBA that occurs on or after 1 October 1996 — the Commissioner shall exempt a Part IIIBA statement lodged in respect of the relevant acquisition from duty chargeable under section 76AH, 76AO, 76ATA or 76ATH.
(3aa)In determining whether this section applies for the purposes of subsection (3)(b), the reference in subsection (1)(d) to the date of execution of the instrument is taken to be a reference to the date of the relevant acquisition.
(3a)If, on an application under section 75JD in respect of an instrument to which subsection (2a) refers, it is shown to the satisfaction of the Commissioner that this section applies, then the Commissioner shall issue to the applicant an exemption certificate in the approved form.
(4)If —
(aa)an instrument is exempted under subsection (3); or
(ab)an exemption certificate is issued under subsection (3a) in relation to an instrument,
and within 5 years after the execution of the instrument or the date of the relevant acquisition —
(a)A and B cease to be associated;
(b)B, being a body corporate that became associated with A in the circumstances described in section 75JA(1)(a) to (e), issues or cancels any shares or varies the rights of any of its shares;
(ba)section 75J(4) having applied to the issued share capital of A or B, a change is made to the purpose for which that body corporate is carried on;
(c)the beneficial interest in any share in B issued in the circumstances described in section 75JA(1)(c) is transferred from the person to whom the share was issued;
(ca)on or after 18 May 2005 there is a transfer of A’s beneficial interest in shares in B (the share transfer) such that, if the conveyance, transfer or assignment referred to in subsection (1)(a) had occurred after the share transfer, this section would not have applied to the instrument effecting the conveyance, transfer or assignment; or
(d)B’s assets are distributed on a liquidation,
A and B, or A or B, or the person (as the case requires) shall notify the Commissioner in an approved form within one month after the relevant event.
(4a)If the event referred to in subsection (4)(a), (b), (ba), (c), (ca) or (d) occurs on or after 1 July 2008, subsection (4) does not apply if the event is the subject of —
(a)an application made under the Duties Act 2008 section 262 for an exemption; or
(b)an application made under the Duties Act 2008 section 180; or
(c)a statement lodged under the Duties Act 2008 section 200.
(5)If —
(aa)an instrument is exempted under subsection (3); or
(ab)an exemption certificate is issued under subsection (3a) in relation to an instrument,
and before 1 July 2008 and within 5 years after the execution of the instrument or the date of the relevant acquisition A and B cease to be associated then the claw‑back applies.
(5a)The claw‑back under subsection (5) does not apply if A and B cease to be associated in circumstances where A has no assets or no assets other than cash or money in an account at call or on deposit with any person or a negotiable instrument.
(5b)If A is liquidated a reference in subsection (5a) to its assets is a reference to them at the time of the appointment of the liquidator and at all subsequent times until they are distributed to the shareholders.
(5c)In subsections (5c) to (5j) —
controlling body means —
(a)in a case to which subsection (5e)(a) applies, a body corporate which, at the time of the execution of the instrument or the date of the relevant acquisition, owned and controlled the parent body;
(b)in a case to which subsection (5e)(b) applies, a body corporate which, at the time the association referred to in subsection (5e)(b) arose, owned and controlled the parent body;
own and control a body corporate means to beneficially own (directly or indirectly) at least 90% of the issued share capital of, and have control (within the meaning of section 75J(2)(b)) over, the body corporate;
parent body means the other body corporate referred to in subsection (5d) or, if there is more than one of them, whichever of them did not, at the relevant time or date mentioned in the definition of “controlling body”, own and control any of the others;
qualifying period has the same meaning as it has in subsection (1)(d).
(5d)An association is a prescribed relationship for the purposes of subsection (5e) if A and B are associated because another body corporate owns and controls each of them.
(5e)For the purposes of subsection (5f), the relevant circumstances have occurred if —
(a)the association between A and B which satisfied the requirement of subsection (1)(c) was a prescribed relationship for the whole or a part of the qualifying period; or
(b)the association between A and B which prevents the claw‑back under subsection (5) from applying is a prescribed relationship.
(5f)If —
(aa)an instrument is exempted under subsection (3) or an exemption certificate is issued under subsection (3a) in relation to an instrument; and
(ab)the relevant circumstances have occurred,
and within 5 years after the execution of the instrument or the date of the relevant acquisition the parent body —
(a)ceases to beneficially own (directly or indirectly) at least 90% of the issued share capital of B; or
(b)ceases to have voting control (within the meaning of section 75J(2)(b)) over B,
then —
(c)the parent body and B shall notify the Commissioner in an approved form within one month after the relevant event; and
(d)if the relevant event occurred before 1 July 2008, the claw‑back applies.
(5fa)If the relevant event occurs on or after 1 July 2008, subsection (5f)(c) does not apply if the event is the subject of —
(a)an application made under the Duties Act 2008 section 262 for an exemption; or
(b)an application made under the Duties Act 2008 section 180; or
(c)a statement lodged under the Duties Act 2008 section 200.
(5g)Despite subsection (5f)(d), the Commissioner may, on an application under this subsection, waive the claw‑back if —
(a)a body corporate approved by the Commissioner (being a controlling body) continues to own and control B; and
(b)the Commissioner is satisfied that waiving the claw‑back would not be inconsistent with the objects of this section.
(5h)The application shall be in an approved form.
[(5i)deleted]
(5j)If the claw‑back is waived under subsection (5g) —
(a)subsection (5f) then applies as if references in it to the parent body were references to the body corporate approved under subsection (5g); and
(b)a reference in this Part to subsection (5f)(c) is to be read as a reference to that provision as applied by paragraph (a).
(6)If —
(aa)an instrument is exempted under subsection (3); or
(ab)an exemption certificate is issued under subsection (3a) in relation to an instrument,
and before 1 July 2008 and within 5 years after the execution of the instrument or the date of the relevant acquisition B’s assets are distributed to its shareholders on a liquidation, then the claw‑back applies.
(7)If —
(aa)an instrument is exempted under subsection (3); or
(ab)an exemption certificate is issued under subsection (3a) in relation to an instrument,
and A and B became associated in the circumstances described in section 75JA(1)(a) to (e) and before 1 July 2008 and within 5 years after the execution of the instrument or the date of the relevant acquisition A and B cease to be associated in circumstances where the claw‑back does not apply under subsection (5) and —
(a)B issues or cancels any shares or varies the rights of any of its shares;
(b)the beneficial interest in any share in B issued in the circumstances described in section 75JA(1)(c) is transferred from the person to whom the share was issued; or
(c)B’s assets are distributed to its shareholders on a liquidation,
then the claw‑back applies unless, in a case where paragraph (b) applies, the Commissioner is satisfied that the transfer is in connection with a scheme for the reconstruction of a body corporate or the amalgamation of bodies corporate.
(8)If the claw‑back applies under subsection (7), A shall not be liable to pay any duty or penalty tax under section 75JE or 75JF.
(9)Subject to subsection (10), if —
(aa)an instrument is exempted under subsection (3); or
(ab)an exemption certificate is issued under subsection (3a) in relation to an instrument,
and section 75J(4) applied to the issued share capital of A or B, the claw‑back applies if the Commissioner is satisfied that before 1 July 2008 and within 5 years after the execution of the instrument or the date of the relevant acquisition that body corporate has been carried on for the purposes of profit or gain to its members.
(10)The claw‑back under subsection (9) does not apply if the constitution or governing rules of the body corporate have been changed so that its issued share capital carries the right to unlimited participation in the distribution of its income and capital.
(11)If —
(aa)an instrument is exempted under subsection (3); or
(ab)an exemption certificate is issued under subsection (3a) in relation to an instrument,
the claw‑back applies if there is a transfer of the kind referred to in subsection (4)(ca) on or after 18 May 2005 but before 1 July 2008 and within 5 years after the execution of the instrument or the date of the relevant acquisition.
[Section 75JB inserted: No. 48 of 1996 s. 42; amended: No. 51 of 1997 s. 7; No. 29 of 2000 s. 6(1); No. 3 of 2001 s. 19; No. 2 of 2003 s. 77; No. 66 of 2003 s. 50; No. 11 of 2004 s. 14; No. 12 of 2004 s. 31; No. 11 of 2005 s. 13; No. 12 of 2008 s. 16.]
75JBA.Operation of claw‑back: application for pre‑determination in certain cases
(1)Terms used in this section have the same meanings as they have in section 75JB.
(2)If a cessation of ownership or voting control referred to in section 75JB(5f)(a) or (b) is proposed or contemplated in circumstances where a controlling body will continue to own and have voting control of B, a person acting on behalf of B, the parent body or the controlling body, may request the Commissioner to determine whether in those circumstances the Commissioner would, under section 75JB(5g), approve the controlling body and waive the claw‑back.
(3)The request shall be in an approved form.
[(4)deleted]
(5)If the Commissioner is given sufficient information to do so the Commissioner shall make the requested determination.
(6)If the Commissioner determines that the controlling body would be approved and the claw‑back waived then, on an application under section 75JB(5g), the Commissioner shall approve the controlling body and waive the claw‑back unless the Commissioner is of the opinion that in relation to the request for a determination there was not a full and true disclosure of relevant information and evidence.
[Section 75JBA inserted: No. 29 of 2000 s. 7; amended: No. 2 of 2003 s. 78; No. 66 of 2003 s. 51.]
75JC.Corporate reorganisations: application for pre‑determination
(1)A person acting on behalf of a body corporate that proposes to be party to an acquisition, transaction or transfer that would give rise to —
(a)an instrument which, if executed; or
(b)an obligation to lodge a section 31B or 31C statement or a Part IIIBA statement which, if finalised,
might be exempt from duty under section 75JA or 75JB, may request the Commissioner to determine whether a draft of that instrument or statement, if executed or finalised, would be so exempt.
(2)The request shall be in an approved form.
(3)The Commissioner may require the person making the request to provide a copy of the draft instrument or statement and any information and evidence that the Commissioner needs to make the determination.
(4)If the Commissioner is given sufficient information to do so the Commissioner shall make the requested determination.
(5)If the Commissioner determines that an exemption would be granted then, on an application under section 75JD for an exemption, the Commissioner shall grant the exemption unless —
(a)the executed instrument or the finalised section 31B or 31C statement or Part IIIBA statement, differs in a material particular from a draft provided;
(b)circumstances relating to the executed instrument, the section 31B or 31C statement or the Part IIIBA statement and relevant for the purposes of sections 75JA and 75JB differ materially from those that related to a draft provided or were described in information or evidence provided; or
(c)the Commissioner is of the opinion that in relation to the request for a determination there was not a full and true disclosure of relevant information and evidence.
(6)If the Commissioner determined that an exemption would be granted but the instrument was not executed before 1 July 2008 or the acquisition or transfer that gave rise to an obligation to lodge a 31B or 31C statement or Part IIIBA statement did not occur before 1 July 2008, the determination has no effect.
[Section 75JC inserted: No. 48 of 1996 s. 42; amended: No. 36 of 2001 s. 20; No. 2 of 2003 s. 79; No. 66 of 2003 s. 52; No. 11 of 2005 s. 14; No. 12 of 2008 s. 17.]
75JD.Corporate reorganisations: application for exemption
(1)An application for an exemption under section 75JA or 75JB must be made in an approved form.
(2)An application for an exemption under section 75JA or 75JB as to an instrument or Part IIIBA statement cannot be made more than 12 months after the date of execution of the instrument or the occurrence of the relevant acquisition.
(2a)An application for an exemption under section 75JA or 75JB as to an instrument (other than an instrument referred to in section 75JB(2a)) or Part IIIBA statement cannot be made if duty payable on the instrument or statement has been assessed.
(2b)An application for an exemption under section 75JB for an instrument referred to in section 75JB(2a) cannot be made if, because of the agreement evidenced by the instrument, an application has been made for the transfer of a licence.
(2c)Subsection (2d) applies to an application for the reassessment of duty payable on an instrument or Part IIIBA statement to be made on the basis that, if an application for an exemption under section 75JA or 75JB (as the case requires) had been made before the duty was assessed, an exemption would have been granted.
(2d)Despite section 17(1) of the Taxation Administration Act 2003, an application for reassessment to which this subsection applies cannot be made more than 12 months after the date of execution of the instrument or the occurrence of the relevant acquisition.
(2e)Subsection (2f) applies to an application for the reassessment of duty payable on the transfer of a licence to be made on the basis that, if an application for an exemption under section 75JB as to an instrument referred to in section 75JB(2a) had been made before the application for the transfer was made, an exemption certificate would have been issued under section 75JB(3a).
(2f)Despite section 17(1) of the Taxation Administration Act 2003, an application for reassessment to which this subsection applies cannot be made more than 12 months after the date of execution of the instrument.
(3)Subject to section 17(2), (3) and (4) of the Taxation Administration Act 2003, the Commissioner must make any reassessment necessary to give effect to sections 75JA and 75JB.
(4)If any information given to the Commissioner in relation to an exempted instrument or Part IIIBA statement is false in a material particular or any material information is not given to the Commissioner the claw‑back applies and the penalty tax under section 75JE(b) or 75JF(b) is to be calculated to the date an assessment notice is issued by the Commissioner.
(5)In subsection (4) —
exempted instrument includes an instrument in relation to which an exemption certificate has been issued under section 75JB(3a).
(6)Despite an exemption under section 75JA or 75JB being granted in relation to an instrument or Part IIIBA statement, the Commissioner must make an assessment of any penalty tax payable under section 26 of the Taxation Administration Act 2003 on the instrument or statement as if the exemption had not been granted.
[Section 75JD inserted: No. 48 of 1996 s. 42; amended: No. 2 of 2003 s. 80; No. 66 of 2003 s. 53; No. 11 of 2005 s. 15; No. 12 of 2005 s. 7.]
75JDA.Exemption may be withheld in certain cases
(1)In this section —
duty avoidance arrangement means an arrangement —
(a)avoiding or circumventing the operation of the provisions of this Part so far as they make the availability and continued effect of an exemption under section 75JB dependent on bodies corporate having been associated for a particular period or remaining associated for a particular period; or
(b)having as its purpose, or one of its purposes, the reduction of duty that might otherwise become payable.
(2)Without limiting section 75JC, the Commissioner may determine under that section that an exemption under section 75JB would not be granted in respect of an instrument or a Part IIIBA statement if the Commissioner considers that the instrument or Part IIIBA statement would, if executed or finalised, relate or be likely to relate to a duty avoidance arrangement.
(3)Even if on an application under section 75JD it is shown to the satisfaction of the Commissioner that section 75JB applies, the Commissioner may refuse to grant an exemption under section 75JB(3) or to issue an exemption certificate under section 75JB(3a) in respect of an instrument or to grant an exemption under section 75JB(3) in respect of a Part IIIBA statement if the Commissioner considers that the instrument or Part IIIBA statement relates or is likely to relate to a duty avoidance arrangement.
(4)Despite subsection (3), if the Commissioner is required under section 75JC(5) to grant an exemption in respect of an instrument or a Part IIIBA statement, the exemption is to be granted even if the Commissioner considers that the instrument or Part IIIBA statement relates or is likely to relate to a duty avoidance arrangement.
[Section 75JDA inserted: No. 29 of 2000 s. 8(1); amended: No. 2 of 2003 s. 81; No. 66 of 2003 s. 54.]
(1)If this section applies to an instrument that has been exempted from duty under section 75JB(3) —
(a)the instrument shall be deemed not to have been exempted;
(b)the instrument shall be charged with penalty tax equal to 20% per annum of the duty chargeable on the instrument calculated from the date of the execution of the instrument to the date the Commissioner is notified under section 75JB(4) or (5f)(c), or if the Commissioner is not so notified, to the date an assessment notice is issued by the Commissioner;
(c)the duty and penalty tax shall be paid within one month after an assessment notice is issued by the Commissioner;
(d)the parties to the instrument or, in the case of a section 31B or 31C statement, the parties to the acquisition, transaction or transfer, are jointly and severally liable to pay the duty and penalty tax;
(e)if a body corporate that is liable to pay the duty and penalty tax has been wound up voluntarily, its directors at the time of the resolution to wind‑up shall be jointly and severally liable to pay the duty and penalty tax unless the Commissioner is satisfied that —
(i)the winding‑up was a creditors’ voluntary winding‑up (as defined in the Corporations Act); and
(ii)no creditor was an associate (as defined in the Corporations Act) of the body corporate;
and
(f)on payment of the duty and penalty tax the instrument shall be deemed to be, and always to have been, stamped.
(2)If this section applies to an instrument in relation to which an exemption certificate has been issued under section 75JB(3a), the exemption certificate is revoked by force of this subsection and if, under section 76D(3)(c), the licence for a vehicle has been transferred without duty being payable —
(a)the Commissioner shall assess the amount of duty payable on the transfer under Part IIIC;
(b)the transfer shall be charged with penalty tax equal to 20% per annum of the duty chargeable on the transfer calculated from the date of the application for the transfer to the date the Commissioner is notified under section 75JB(4) or (5f)(c), or if the Commissioner is not so notified, to the date an assessment notice is issued by the Commissioner;
(c)the duty and penalty tax shall be paid within one month after an assessment notice is issued by the Commissioner;
(d)if a body corporate that is liable to pay the duty and penalty tax has been wound up voluntarily, its directors at the time of the resolution to wind‑up shall be jointly and severally liable to pay the duty and penalty tax unless the Commissioner is satisfied that —
(i)the winding‑up was a creditors’ voluntary winding‑up (as defined in the Corporations Act); and
(ii)no creditor was an associate (as defined in the Corporations Act) of the body corporate;
and
(e)on payment of the duty and penalty tax the transfer shall be deemed to be, and always to have been, stamped.
(3)For the purposes of subsection (2)(a) —
(a)the amount to be assessed is the amount of duty that would have been payable when the licence was transferred if the exemption certificate had not been in existence; and
(b)section 76E(2) and (3) apply to the assessment as if the Commissioner were the Director General as defined in section 76B.
[Section 75JE inserted: No. 48 of 1996 s. 42; amended: No. 51 of 1997 s. 8; No. 29 of 2000 s. 9; No. 10 of 2001 s. 172; No. 36 of 2001 s. 21; No. 2 of 2003 s. 82; No. 66 of 2003 s. 55; No. 11 of 2005 s. 16.]
75JF.Claw‑back (Part IIIBA statements)
If this section applies to a Part IIIBA statement —
(a)the Part IIIBA statement shall be deemed not to have been exempted;
(b)the Part IIIBA statement shall be charged with penalty tax equal to 20% per annum of the duty chargeable on the Part IIIBA statement calculated from the date of the relevant acquisition to the date the Commissioner is notified under section 75JA(3)(c) or 75JB(4) or (5f)(c), or if the Commissioner is not so notified, to the date an assessment notice is issued by the Commissioner;
(c)the duty and penalty tax shall be paid within one month after an assessment notice is issued by the Commissioner;
(d)these persons are jointly and severally liable to pay the duty and penalty tax —
(i)in the case of a section 76AG statement or section 76AT statement — the parties to the instrument that gave rise to the relevant acquisition;
(ii)in the case of a section 76AN statement or section 76ATG statement — the parties to the instrument that gave rise to the relevant acquisition and the corporation that is required to lodge the section 76AN statement or section 76ATG statement;
(e)if a body corporate that is liable to pay the duty and penalty tax has been wound up voluntarily, its directors at the time of the resolution to wind‑up shall be jointly and severally liable to pay the duty and penalty tax unless the Commissioner is satisfied that —
(i)the winding‑up was a creditors’ voluntary winding‑up (as defined in the Corporations Act); and
(ii)no creditor was an associate (as defined in the Corporations Act) of the body corporate;
and
(f)on payment of the duty and penalty tax the Part IIIBA statement shall be deemed to be, and always to have been, stamped.
[Section 75JF inserted: No. 48 of 1996 s. 42; amended: No. 29 of 2000 s. 9; No. 10 of 2001 s. 172; No. 2 of 2003 s. 83; No. 66 of 2003 s. 56; No. 11 of 2004 s. 15.]
75JG.Offences and recovery of duty etc.
(1)If a person contravenes section 75JA(3)(c) or 75JB(4) or (5f)(c) —
(a)the person commits an offence; and
(b)if the offence is committed by a body corporate, an officer (as defined in section 9 of the Corporations Act) of the body corporate who is knowingly a party to the contravention commits an offence.
Penalty:
(a)$20 000; and
(b)an amount equal to the duty chargeable on the instrument or Part IIIBA statement had it not been exempted under section 75JA or 75JB.
(2)If a body corporate contravenes section 75JA(3)(c) or 75JB(4) or (5f)(c) and the Commissioner is for any reason unable to recover the duty or penalty tax referred to in section 75JE or 75JF, each officer (as defined in section 9 of the Corporations Act) of the body corporate at the time of the contravention who is knowingly a party to the contravention shall be liable for the duty or penalty tax, as the case may be.
(3)If in connection with a request under section 75JBA or 75JC or an application under section 75JB(5g) or 75JD, a person gives the Commissioner information knowing that it is false in a material particular or knowingly does not give the Commissioner all material information, the person commits an offence.
Penalty:
(a)$20 000; and
(b)an amount equal to the duty that would have been chargeable on —
(i)if a draft instrument or statement, or information or evidence about a draft instrument or statement, has been provided to the Commissioner under section 75JC — the instrument or statement had it been executed or finalised; or
(ii)if a request has been made under section 75JBA or an application has been made under section 75JB(5g) or 75JD — the instrument or statement concerned.
[Section 75JG inserted: No. 48 of 1996 s. 42; amended: No. 29 of 2000 s. 10; No. 10 of 2001 s. 173; No. 2 of 2003 s. 84; No. 11 of 2005 s. 17.]
(1)If the Commissioner determines that an instrument, or a Part IIIBA statement, that has been exempted from duty under this Part is part of a scheme or arrangement entered into or carried out by a person —
(a)a purpose of which is to avoid or reduce duty on an instrument or a Part IIIBA statement or duty under Part IIIC; or
(b)the sole or dominant purpose of which is to avoid or reduce tax other than duty,
the Commissioner may revoke the exemption or, if an exemption certificate has been issued in relation to the instrument, the certificate.
(2)If an exemption or certificate is revoked under subsection (1), section 75JE or 75JF, as the case requires, applies to the instrument or Part IIIBA statement concerned.
[Section 75JH inserted: No. 12 of 2008 s. 18.]
Part IIIBA — Duty on change of control of certain land‑owning corporations
[Heading inserted: No. 33 of 1987 s. 22.]
Division 1 — Provisions applicable to this Part
[Heading inserted: No. 33 of 1987 s. 22; amended: No. 11 of 2004 s. 16.]
75K.Effect of Duties Act 2008 on this Part
This Part does not apply to a relevant acquisition under Division 2, 3, 3a or 3b that occurs on or after 1 July 2008.
[Section 75K inserted: No. 12 of 2008 s. 19.]
(1)In this Part, unless the contrary intention appears —
acquire, in relation to an interest in a WA company or a corporation, means to acquire beneficially in any manner or by any means and includes the increasing of an existing interest, but does not include an acquisition —
(a)that is chargeable with duty under section 73E(4);
(b)that occurs solely as the result of —
(i)the appointment of a receiver or trustee in bankruptcy;
(ii)the appointment of a liquidator;
(iii)the making of a compromise or arrangement under Part 5.1 of the Corporations Act —
(I)which has been made with the corporation’s creditors or a class of them;
(II)which has been approved by the court; and
[(III)deleted]
(IV)in respect of which the Commissioner is satisfied that it is not an arrangement having as its purpose, or one of its purposes, the defeat of the object of this Part;
or
(iv)the distribution of the estate of a deceased person, including an acquisition that occurs as the result of —
(I)a will, a codicil or an order of a court varying or modifying the provisions of a will or codicil; or
(II)an intestacy or an order of a court varying or modifying the application, in relation to the estate of a deceased person, of the provisions of a law relating to the distribution of the assets of persons who die intestate;
or
(c)that is effected or evidenced by an instrument on which duty is chargeable under item 6 of the Second Schedule;
chattels means goods, wares or merchandise other than —
(a)goods, wares or merchandise referred to in item 2(7), (7a) or (7b) of the Third Schedule;
(b)a vehicle the transfer of the licence of which is exempt under item 9 of the Third Schedule; or
(c)goods, wares or merchandise used solely or principally in connection with the business of primary production (as defined in section 75D(1)),
and includes an estate or interest in them;
discretionary trust means —
(a)a trust under which the vesting of the whole or any part of the capital of the trust property, or the whole or any part of the income from that capital, or both —
(i)is required to be determined by a person either in respect of the identity of the beneficiaries, or the quantum of interest to be taken, or both; or
(ii)will occur in the event that a discretion conferred under the trust is not exercised;
or
(b)a trust which is, by regulation, declared to be a discretionary trust for the purposes of this Part,
but does not include —
(c)a trust that is solely a charitable trust; or
(d)a trust that is, by regulation, declared not to be a discretionary trust for the purposes of this Part;
distributable property has the meaning given by subsection (4a);
entitled means beneficially entitled, and entitlement has a corresponding meaning;
land includes a mining tenement, and also includes —
(a)any estate or interest in land; and
(b)anything fixed to the land including anything that is, or purports to be, the subject of an entitlement separate from the ownership of the land;
minerals means naturally occurring substances obtained or obtainable from the earth;
mining tenement means —
(a)a mining tenement held under the Mining Act 1978 being a mining tenement within the meaning of that Act or the Mining Act 1904 2;
(b)a mining tenement or right of occupancy continued in force by section 5 of the Mining Act 1978; and
(c)a tenement, right or interest that is —
(i)similar to a tenement or right referred to in paragraph (a) or (b); and
(ii)held under the law of another State, a Territory, the Commonwealth or another jurisdiction;
primary products has a meaning corresponding with the definition of “primary production” in section 75D(1) except that in relation to plants the term extends to plants that have not been grown or reared and to parts of them and their produce;
rules of a corporation means one or more of the following —
(a)the corporation’s constitution;
(b)replaceable rules applying to the corporation under the Corporations Act;
(c)internal management rules applying to the corporation under the Corporations Act;
share means a share or stock of a corporation and includes an interest in a share, and shareholding has a corresponding meaning;
trust includes a unit trust scheme, but, except in section 76A, does not include a unit trust scheme referred to in paragraph (c) of the definition of “marketable security” in section 4(1).
(1a)For the purpose of this Division a reference to the acquisition of an interest includes a reference to the acquisition of a majority interest or a further interest within the meaning of section 76AK or 76AR or the acquisition of a controlling interest or an additional interest within the meaning of section 76ATD or 76ATK.
(1b)In the definition of “acquire” in subsection (1) a reference to the increase of an interest includes a reference to an increase that occurs by the cancellation of any shares or the variation of the rights of any shares.
(2)For the purposes of sections 76AI(3)(c), 76AP(3)(c), 76ATB(4)(d) and 76ATI(4)(d) the following —
(a)are associated persons in relation to a corporation —
(i)a related corporation;
(ii)a related person within the meaning in subsection (3)(a) to (g);
(iii)a director or secretary of the corporation or a related corporation;
(iv)a person who is entitled to any shareholding in the corporation or a related corporation;
(v)a relative of any individual referred to in subparagraph (ii), (iii), or (iv);
(vi)a corporation in which the corporation or any person referred to in subparagraph (iii), (iv) or (v) is entitled to any shareholding;
(b)are relatives of an individual for the purposes of paragraph (a)(v) —
(i)a child or remoter lineal descendant of the individual or his spouse or de facto partner;
(ii)a parent or remoter lineal ancestor of the individual or his spouse or de facto partner;
(iii)a brother or a sister of the individual or his spouse or de facto partner;
(iv)the spouse or de facto partner of the individual;
(v)the spouse or de facto partner of an individual referred to in subparagraph (i), (ii), or (iii).
(3)For the purposes of this Part the following persons are related —
(a)individuals who are spouses, or de facto partners, of each other or between whom the relationship is that of parent and child;
(b)related corporations;
(c)a trustee and another trustee if there is any beneficiary common to the trusts of which they are trustees, whether the beneficiary has a vested share or is contingently entitled or may benefit from a discretionary trust;
(d)an individual and a corporation if the individual is a majority shareholder, director or secretary of the corporation or a related corporation;
(e)an individual and a trustee if the individual is a beneficiary under the trust of which the trustee is a trustee, whether the person has a vested share or is contingently entitled or may benefit from a discretionary trust;
(f)a corporation and a trustee if —
(i)the corporation, a majority shareholder, director or secretary of the corporation is a beneficiary of the trust of which the trustee is a trustee; or
(ii)a related corporation to the corporation is a beneficiary of the trust of which the trustee is a trustee,
whether any such beneficiary has a vested share or is contingently entitled or may benefit from a discretionary trust;
(g)persons who acquire interests in a corporation by virtue of acquisitions that together form or arise from substantially one transaction or one series of transactions;
(h)persons who acquire interests in a corporation by virtue of acquisitions that arise from those persons acting in concert with each other.
(4)For the purposes of subsections (2) and (3) —
(a)an illegitimate person shall be treated as the legitimate child of that person’s parents;
(b)it is irrelevant whether a relationship is of the whole or half‑blood, or whether it is a natural relationship or a relationship established by a written law; and
(c)a majority shareholder in relation to a corporation is a person who would have a substantial holding in the corporation under the definition of “substantial holding” in section 9 of the Corporations Act even if the reference in that definition to 5% were a reference to 50%.
(4a)For the purposes of this Part, a reference to entitlement to property of a corporation or trust, or to participate in a distribution of property of a corporation or trust, is a reference to entitlement otherwise than as a creditor or other person to whom the corporation or trust is liable, and a reference to distributable property is a reference to property distributable to persons otherwise than as creditors or other persons to whom the corporation or trust is liable.
(5)For the purposes of this Part, the entitlement that a person would have at a particular time to participate in the distribution of the property of a corporation on a winding up of the corporation is an entitlement to an amount calculated —
(a)as if the winding up were carried out at that time in accordance with the rules of the corporation and any law relevant to the winding up, as the rules and law then exist; or
(b)as if the person had, immediately prior to the winding up, exercised all powers and discretions exercisable by the person by reason of having acquired an interest in the corporation —
(i)to effect or compel an alteration to the rules;
(ii)to vary the rights conferred by shares in the corporation; or
(iii)to effect or compel the substitution or replacement of shares in the corporation with other shares in the corporation,
in such manner as to maximise that amount,
whichever of the amounts under paragraph (a) or (b) results in the greater amount, unless the Commissioner determines, after consideration of the circumstances of the case, and where the calculation under paragraph (b) results in the greater amount, that the amount of the entitlement should be calculated under paragraph (a).
(5a)If the extent of a person’s entitlement to participate in a distribution of the property of a corporation is unascertainable or uncertain, that entitlement shall be determined for the purposes of this Part as being the greatest entitlement that the person could derive from the distribution.
(6)For the purposes of this Part, the entitlement of a person on the distribution of a trust shall be determined as the greatest entitlement that the person could derive at any time from the trust whether by the fulfilment of any condition, the outcome of any contingency or the exercise of any power or discretion or otherwise, and in particular a person that may benefit from, or the trust property of another trust that may comprise or be augmented by a benefit from, a discretionary trust shall be deemed to be entitled to or comprise or be augmented by —
(a)the property subject to the discretionary trust unless the Commissioner determines otherwise; or
(b)such part of that property as the Commissioner determines.
(7A)In determining the entitlement of an entity to land for the purposes of section 76AI, 76AL, 76AP, 76AS, 76ATB, 76ATE, 76ATI or 76ATL, if —
(a)the entity has an entitlement to something that is part of land as a fixture; and
(b)that entitlement is, or purports to be, separate from the ownership of the rest of the land,
the entity is to be regarded as having an entitlement to land to the extent of its entitlement to the fixture.
(7)For the purposes of sections 76AI(4), 76AP(4), 76AR(4), 76ATB(6), 76ATI(6) and 76ATK(4) reference to a trust includes any other trust if the property of the first‑mentioned trust —
(a)includes a share or interest, whether vested or contingent, or direct or indirect, in that other trust; or
(b)in the case of a discretionary trust, may comprise or be augmented by a benefit from that other trust.
[Section 76 4 inserted: No. 33 of 1987 s. 22; amended: No. 39 of 1994 s. 21; No. 57 of 1996 s. 7; No. 13 of 1997 s. 32 and 42; No. 22 of 1998 s. 36; No. 60 of 2000 s. 4; No. 10 of 2001 s. 174; No. 2 of 2003 s. 85; No. 28 of 2003 s. 192; No. 66 of 2003 s. 57; No. 11 of 2004 s. 17; No. 30 of 2008 s. 31.]
76A.Relevant acquisitions by trustees
(1)Subject to subsection (2) if by a relevant acquisition a person, in the person’s capacity as a trustee, acquires a majority interest, a further interest, a controlling interest or an additional interest in a WA company or a corporation, this Part applies as if the person had acquired the interest beneficially.
(2)If the combined interest in the WA company or corporation of a beneficiary and any person related to the beneficiary is greater than the combined interest of the trustee and any person related to the trustee —
(a)the relevant acquisition is taken to have been made by the beneficiary;
(b)the section 76AG statement, section 76AN statement, section 76AT statement or section 76ATG statement lodged by the trustee in relation to the relevant acquisition is taken to have been lodged by the beneficiary; and
(c)the section 76AG statement, section 76AN statement, section 76AT statement or section 76ATG statement is chargeable with duty accordingly.
(3)In this section —
beneficiary means a person beneficially entitled to the interest in the WA company or corporation acquired by the trustee, whether the person’s interest is vested, contingent or discretionary;
interest, controlling interest and additional interest —
(a)in relation to a section 76AT statement, have the meanings given by section 76ATD; and
(b)in relation to a section 76ATG statement, have the meanings given by section 76ATK;
interest, majority interest and further interest —
(a)in relation to a section 76AG statement, have the meanings given by section 76AK; and
(b)in relation to a section 76AN statement, have the meanings given by section 76AR;
relevant acquisition has the meaning given by section 76AJ, 76AQ, 76ATC or 76ATJ (as the case requires).
[Section 76A inserted: No. 2 of 2003 s. 86; amended: No. 66 of 2003 s. 58; No. 11 of 2004 s. 18.]
76AA.Assessment in the absence of a dutiable statement
If the Commissioner suspects that a corporation is required by section 76AN or 76ATG to lodge a dutiable statement in respect of a relevant acquisition but no such statement has been lodged, the Commissioner may exercise the Commissioner’s powers under sections 19 and 20 of the Taxation Administration Act 2003 as if —
(a)the corporation were a corporation to which Division 3 or 3b applies;
(b)an acquisition had occurred; and
(c)the acquisition resulted in a person having an entitlement referred to in section 76AR(1) or 76ATK(1) to such an extent as the Commissioner may determine.
[Section 76AA inserted: No. 2 of 2003 s. 86; amended: No. 66 of 2003 s. 59; No. 11 of 2004 s. 19.]
76AB.Request that Commissioner determine whether dutiable statement is required to be lodged
(1)A person may, within 2 months after the making of an acquisition, request the Commissioner to determine whether a dutiable statement is required to be lodged by that person under section 76AG, 76AN, 76AT or 76ATG in respect of the acquisition.
(2)A request under subsection (1) must be made in an approved form and must include —
(a)the information that would be required under —
(i)section 76AG(4)(a) to (f);
(ii)section 76AN(3)(a) to (f);
(iii)section 76AT(8)(a) to (h), (9)(a) to (c) or (10)(a) to (c); or
(iv)section 76ATG(7)(a) to (h), (8)(a) to (c) or (9)(a) to (c),
if the request were a dutiable statement; and
(b)any prescribed information.
(3)If a request is made by a person under subsection (1) as to whether a dutiable statement is required to be lodged by that person and that request complies with subsection (2) —
(a)the Commissioner shall make the requested determination; and
(b)any requirement to lodge a dutiable statement under section 76AG, 76AN, 76AT or 76ATG in respect of the acquisition does not apply in relation to that person.
(4)Despite subsection (3)(a) if the Commissioner needs any further information and evidence to make the determination, the Commissioner may defer the determination and require the person making the request to provide that information and evidence to the Commissioner within such reasonable period (the specified period) as the Commissioner specifies in the requirement.
(5)If at the end of the specified period the Commissioner does not have sufficient information and evidence to make the requested determination —
(a)the Commissioner is no longer required to make the determination; and
(b)any requirement that the person making the request lodge a dutiable statement under section 76AG, 76AN, 76AT or 76ATG in respect of the acquisition is revived as if the request had never been made.
(6)If the Commissioner determines that the person making the request is not required to lodge a dutiable statement under section 76AG, 76AN, 76AT or 76ATG, the Commissioner shall notify that person accordingly.
(7)If the Commissioner determines that the person making the request is required to lodge a dutiable statement under section 76AG, 76AN, 76AT or 76ATG, the request under subsection (1) and any information and evidence provided with the request or under subsection (4) are taken to be the dutiable statement lodged by the person.
[Section 76AB inserted: No. 66 of 2003 s. 60; amended: No. 11 of 2004 s. 20.]
[76AC‑76AF.Deleted: No. 2 of 2003 s. 86.]
Division 2 — Companies taken to be registered in Western Australia
[Heading inserted: No. 33 of 1987 s. 22; amended: No. 10 of 2001 s. 175; No. 2 of 2003 s. 87.]
76AG.Preparation of dutiable statement
(1)Where by a relevant acquisition a person acquires a majority interest or a further interest in —
(a)a WA company to which this Division applies; or
(b)a WA company to which this Division would apply if the reference to the value of land in section 76AI(2)(b) were a reference to the value of land, goods, wares and merchandise,
the person shall, within 2 months after the acquisition, lodge a statement with the Commissioner in respect of that acquisition.
Penalty: $20 000.
(2)If a requirement under subsection (1) arises in circumstances where a person acquires a majority interest or a further interest by reason of acquisitions by him and a related person or related persons being aggregated, one of such persons shall lodge a dutiable statement under that subsection of all acquisitions on behalf of all such persons.
(3)A dutiable statement must be prepared in an approved form.
(4)The dutiable statement shall include the following information —
(a)the name and address of the person who has acquired a majority interest or a further interest and of any related person referred to in subsection (2);
(b)the date of the acquisition;
(c)particulars of the interest acquired and all interests previously acquired by the person or a related person in the WA company;
(d)the person’s estimate of the unencumbered value of all land and chattels in Western Australia to which the WA company is entitled as at the date of the acquisition;
(da)particulars of any chattels, whether situated in Western Australia or not, to which the WA company was entitled in the 12 months preceding the date of the acquisition and acquired, directly or indirectly, by the person or a related person in that period;
(db)the person’s estimate of the unencumbered value of those chattels;
(e)the person’s estimate of the unencumbered value of the property of the WA company as at the date of the acquisition; and
(f)if the dutiable statement is lodged because of subsection (1)(b), a notation to that effect and such information relating to the goods, wares and merchandise referred to in subsection (1)(b), and their ownership and acquisition, as the approved form requires to be provided.
(5)A dutiable statement lodged under subsection (1) is taken to be an instrument evidencing the relevant acquisition and is chargeable with duty accordingly.
(5a)If, in the case of a dutiable statement lodged because of subsection (1)(b), the Commissioner is satisfied that the entitlement to, and valuation of, the goods, wares and merchandise referred to in subsection (1)(b) were not part of an arrangement or scheme having as its purpose, or one of its purposes, the defeat of the object of this Division, the Commissioner may determine that subsection (5) does not apply to the dutiable statement.
(5b)In deciding whether or not to make a determination under subsection (5a) the Commissioner may have regard to —
(a)the source of the goods, wares and merchandise and the source of funding for their acquisition;
(b)their nature and their relevance to any business carried on by the WA company or any subsidiary;
(c)the period for which they have been and are likely to remain the property of the WA company or any subsidiary; and
(d)any other matter that the Commissioner considers relevant.
(5c)A determination made under subsection (5a) has effect according to its terms and the Commissioner is to give notice of it to the person who lodged the dutiable statement.
(5d)If the person who lodged the dutiable statement requests the Commissioner to give reasons why the Commissioner has not made a determination under subsection (5a), the Commissioner is to give reasons to the person.
[Section 76AG inserted: No. 33 of 1987 s. 22; amended: No. 41 of 1989 s. 15; No. 39 of 1994 s. 21; No. 22 of 1998 s. 38 and 39; No. 60 of 2000 s. 7; No. 3 of 2001 s. 20; No. 2 of 2003 s. 88; No. 66 of 2003 s. 61.]
76AH.Statement chargeable with duty
(1)A section 76AG statement is chargeable, in accordance with section 76AL, with duty at the rate provided for in item 4(1) of the Second Schedule calculated as follows —
(a)where the section 76AG statement relates to a relevant acquisition within section 76AJ(1)(a)(i), the duty shall be calculated on the dutiable value determined under section 76AL(2);
(aa)where the section 76AG statement relates to a relevant acquisition within section 76AJ(1)(a)(ii), the duty —
(i)shall be calculated on the dutiable value determined under section 76AL(2a)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76AL(2a)(b);
and
(b)where the section 76AG statement relates to a relevant acquisition within section 76AJ(1)(b), the duty —
(i)shall be calculated on the dutiable value determined under section 76AL(3)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76AL(3)(b).
(2)Notwithstanding item 4(1) of the Second Schedule, where the value of the land and chattels under section 76AL(4) does not exceed $1 500 000 the duty chargeable under this section shall be calculated as follows, and where paragraph (aa) or (b) of subsection (1) applies shall be so calculated in terms of subparagraphs (i) and (ii) of that paragraph —
where —
Ais the value of the land and chattels situated in Western Australia to which the WA company is entitled as provided in section 76AL(4) at the time of the relevant acquisition; and
Bis the duty calculated under item 4(1) of the Second Schedule on the dutiable value determined under section 76AL.
(3)There shall be deducted from the duty chargeable on a section 76AG statement, any duty paid under item 4A(1) of the Second Schedule in respect of any instrument effecting or evidencing the acquisition of any interest which is taken into account in determining liability under section 76AG to lodge that statement, except any duty previously deducted under this subsection in respect of a section 76AG statement previously lodged in relation to the acquisition.
(4)Subject to subsection (5), if a section 76AG statement contains particulars of any chattels as required by section 76AG(4)(da), then, in addition to the duty chargeable under subsection (1), the section 76AG statement is chargeable with duty at the rate provided for in item 4(1) of the Second Schedule calculated on the unencumbered value of the chattels, but duty shall not be charged in respect of —
(a)any of the chattels in respect of which duty has been paid under section 31B, 31C or 70 by the person who made the relevant acquisition to which the section 76AG statement relates or by a related person;
(b)any of the chattels in respect of which ad valorem duty has been paid by that person, or a related person, in another jurisdiction; or
(c)any of the chattels that, in the opinion of the Commissioner, are usually not situated in Western Australia.
(5)The section 76AG statement is not chargeable with duty under subsection (4) if the Commissioner is satisfied that no transaction by means of which the chattels were transferred from the WA company to the person who made the relevant acquisition, or a related person, was effected for the collateral purpose of reducing the duty that otherwise would be chargeable in respect of the relevant acquisition.
[Section 76AH inserted: No. 33 of 1987 s. 22; amended: No. 39 of 1994 s. 14 and 21; No. 22 of 1998 s. 38 and 40; No. 60 of 2000 s. 8; No. 36 of 2001 s. 22; No. 2 of 2003 s. 89; No. 66 of 2003 s. 62; No. 11 of 2004 s. 21.]
76AI.Companies to which this Division applies
(1)This Division applies to a WA company if it is a land‑holder within the meaning in subsection (2) unless —
(a)it is listed on a recognised financial market; and
(b)the Commissioner is satisfied that its listing was not part of an arrangement or scheme having as its purpose, or one of its purposes, the defeat of the object of this Part.
(1a)For the purposes of subsection (1)(b) the Commissioner may take into account any matter that the Commissioner considers is relevant but must take into account —
(a)how long the WA company has been listed on a recognised financial market;
(b)any conditions or exemptions that apply to the approval of the listing of the company;
(c)who owns the company’s shares;
(d)what proportion of the company’s shares are available to be traded on the market; and
(e)the turnover of the company’s shares on the market.
(2)A WA company is a land‑holder for the purposes of this Division if at the time of a relevant acquisition —
(a)it is entitled to land situated in Western Australia and the unencumbered value of the land is not less than $1 000 000, or it is entitled to land situated in Western Australia as a co‑owner of the freehold or of a lesser estate in the land and the value of the whole of the freehold or lesser estate is not less than $1 000 000; and
(b)the value of all land to which the WA company is entitled, whether situated in Western Australia or elsewhere, is 60% or more of the value of all property to which it is entitled, other than property directed to be excluded by subsection (3),
or if the Commissioner determines that paragraphs (a) and (b) would have applied to the WA company at the time of the relevant acquisition but for a transaction, or series of transactions, which in the Commissioner’s opinion had as its purpose, or one of its purposes, the defeat of the object of this Division.
(2a)If the Commissioner makes a determination under subsection (2) —
(a)the Commissioner is to give notice of it to the person who made the relevant acquisition;
(b)the notice is to contain reasons for the determination;
(c)for the purposes of section 76AG(1) the relevant acquisition is taken to have occurred when the notice is given; and
(d)a reference in another provision of this Division to land and chattels situated in Western Australia to which the WA company is entitled includes a reference to property so situated to which it would have been entitled but for the transaction, or series of transactions, to which the determination relates.
(3)The following property of a WA company, or of any subsidiary within the meaning in subsection (4), shall not be included for the purpose of calculating the value of property under subsection (2)(b) —
(a)cash or money in an account at call;
(b)negotiable instruments, and money on deposit with any person;
(ba)property consisting of rights or interests under a sales contract (including a forward sales contract) relating to minerals, primary products or other commodities;
(bb)an amount paid or payable to the WA company or a subsidiary under a contract or agreement referred to in subsection (5)(b);
(c)money lent by the WA company or a subsidiary to —
(i)any person who in relation to the WA company is an associated person; or
(ii)any person at call or in terms that require or allow full repayment to the WA company within 12 months after the money is lent;
(d)where a corporation is a subsidiary of the WA company by virtue of Division 6 of Part 1.2 of the Corporations Act, or would be a subsidiary of it by virtue of that Division if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead, the shareholding of the WA company in the corporation, but without limiting subsection (4);
(e)in the case of the WA company, property consisting of a share or interest in a trust referred to in subsection (4);
(ea)a licence or patent or other intellectual property (including knowledge or information that has a commercial value) relating to any process, technique, method, design or apparatus to —
(i)locate, extract, process, transport or market minerals; or
(ii)grow, rear, breed, maintain, produce, harvest, collect, process, transport or market primary products;
(eb)stores, stockpiles or holdings of minerals or primary products (whether processed or unprocessed) produced by the WA company or a related person;
(ec)future tax benefits (whether in the nature of tax losses, capital losses, foreign losses or foreign tax credits) under the Income Tax Assessment Act 1997 or Income Tax Assessment Act 1936 of the Commonwealth or similar benefits under the laws of another jurisdiction;
(ed)any property prescribed for the purposes of this subsection; and
(f)any other property, whether of the same nature as or a different nature from the foregoing, in respect of which it is not shown to the Commissioner’s satisfaction that a reason for ownership by the WA company or the subsidiary within the meaning in subsection (4) is not for the purpose of defeating the object of this Division.
(3a)In forming an opinion for the purposes of subsection (3)(f) the Commissioner may have regard to —
(a)the source of the property and the source of funding for its acquisition;
(b)its nature and its relevance to any business carried on by the WA company or the subsidiary;
(c)the period for which it has been and is likely to remain the property of the WA company or the subsidiary; and
(d)any other matter that the Commissioner considers relevant.
(4)Without limiting the meaning of “entitled”, a WA company is deemed to be entitled to land or property to the extent that a subsidiary is entitled to that land or property, and for the purposes of this subsection a subsidiary is —
(a)a subsidiary corporation by virtue of Division 6 of Part 1.2 of the Corporations Act, or a corporation that would be a subsidiary corporation by virtue of that Division if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead, or any other corporation where the WA company would be entitled if the corporation were to be wound up, after the time of the relevant acquisition, to participate in a distribution of the property of the corporation to an extent not less than 50% of the value of the distributable property;
(b)the trustee of any trust where the WA company or a subsidiary corporation of the WA company, as defined in paragraph (a) —
(i)is entitled to a share or interest in the trust, whether vested or contingent; or
(ii)in the case of a discretionary trust, may benefit from that trust;
(c)any corporation, where the trustee of a trust in which the WA company or a subsidiary corporation —
(i)is entitled to a share or interest, whether vested or contingent; or
(ii)in the case of a discretionary trust, may benefit from that trust,
would be entitled if the corporation were to be wound up, after the time of the relevant acquisition, to participate in a distribution of the property of the corporation to an extent not less than 50% of the value of the distributable property; or
(d)any other corporation or the trustee of any other trust that would by an application of this subsection be a subsidiary of a corporation that is a subsidiary of the WA company.
(5)In determining the entitlement of an entity to land for the purposes of this section or section 76AL —
(a)if the entity has contracted or agreed to acquire an interest in land, that contract or agreement is to be regarded as having been completed even if it has not yet been completed; and
(b)if the entity has contracted or agreed to dispose of an interest in land but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.
(6)In determining the entitlement of an entity to property other than land for the purposes of this section —
(a)if the entity has contracted or agreed to dispose of an interest in such property, that contract or agreement is to be regarded as having been completed even if it has not yet been completed; and
(b)if the entity has contracted or agreed to acquire an interest in such property but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.
[Section 76AI inserted: No. 33 of 1987 s. 22; amended: No. 39 of 1994 s. 21; No. 57 of 1997 s. 113(2); No. 53 of 1999 s. 23; No. 60 of 2000 s. 9; No. 3 of 2001 s. 25; No. 10 of 2001 s. 176; No. 2 of 2003 s. 90; No. 21 of 2003 s. 28; No. 66 of 2003 s. 63; No. 11 of 2004 s. 22; No. 11 of 2005 s. 18, 19 and 22.]
76AJ.Meaning of “relevant acquisition”
(1)An acquisition is a relevant acquisition for the purposes of this Division —
(a)if by that acquisition a person acquires a majority interest in a WA company by acquiring an interest —
(i)that is itself a majority interest in the WA company; or
(ii)that is, when taken with each previous acquisition of an interest in the WA company made by the person on or after the relevant day for that acquisition, a majority interest in the WA company;
or
(b)if by that acquisition a person acquires a further interest in the WA company.
(2)If subsection (1)(b) applies to an acquisition, subsection (1)(a)(ii) does not apply to it.
(2a)A previous acquisition of an interest in the WA company is not to be taken into consideration under subsection (1)(a)(ii) if, at the time of that acquisition, the WA company was not a land‑holder for the purposes of this Division as enacted at that time.
(2b)Subject to subsection (2a), a previous acquisition of an interest in the WA company is to be taken into consideration under subsection (1)(a)(ii) even if, at the time of that acquisition, this Division did not apply to the WA company because of section 76AI(1)(a) and (b).
(3)For the purposes of subsection (1)(a)(ii) and section 76AL(2a)(b), if a person acquires an interest in a WA company (the earlier acquisition) and, after that acquisition, that person acquires another interest in the WA company (the later acquisition) because of an arrangement that was entered into during the relevant period, the earlier acquisition is to be regarded as having been made on or after the relevant day for the later acquisition even if it was not so made.
(4)In this section —
relevant day for an acquisition means —
(a)if the acquisition was or is made on or after 10 August 2000 but before 11 August 2002 — 10 August 1999; or
(b)if the acquisition is made on or after 11 August 2002 — the day that is 3 years before the day of the acquisition.
(5)In subsection (3) —
relevant period means —
(a)if the earlier acquisition was made before 10 August 1999 — the period beginning on the day that is one year before the day of that acquisition and ending on the day that is one year after the day of that acquisition;
(b)if the earlier acquisition was made on or after 10 August 1999 but before 10 August 2000 — the period beginning on the day that is one year before the day of that acquisition and ending on the day that is 3 years after the day of that acquisition; or
(c)if the earlier acquisition was or is made on or after 10 August 2000 — the period beginning on the relevant day for that acquisition and ending on the day that is 3 years after the day of that acquisition.
(6)Subsection (3) does not apply in relation to an arrangement entered into before 10 August 2000 unless, because of the arrangement, the person referred to in that subsection had the right to acquire the other interest referred to in that subsection.
[Section 76AJ inserted: No. 60 of 2000 s. 10; amended: No. 66 of 2003 s. 64; No. 11 of 2004 s. 23.]
76AK.Meaning of “interest”, “majority interest” and “further interest”
(1)For the purposes of this Division, a person acquires an interest in a WA company if the person acquires, or the person and any related person acquire, an entitlement such that the person, or the person and any related person, would be entitled if the WA company were to be wound up to participate in a distribution of the property of the WA company.
(2)For the purposes of this Division, a person acquires a majority interest in a WA company if the person acquires, or the person and any related person acquire, an interest in the WA company such that having acquired that interest the person, or the person and any related person, would be entitled if the WA company were to be wound up to participate in a distribution of the property of the WA company to an extent greater than 50% of the value of the distributable property and, in section 76AJ(1)(a)(i) and (ii) and subsection (3), majority interest has a corresponding meaning.
(3)For the purposes of this Division, a person acquires a further interest in a WA company if —
(a)the person has, or the person and any related person have, a majority interest in the WA company;
(b)the acquisition of that majority interest gave rise to a liability for duty under this Part; and
(c)the person acquires, or the person and any related person acquire, an interest in the WA company such that having acquired that interest the person, or the person and any related person, would be entitled if the WA company were to be wound up to participate further in a distribution of the property of the WA company.
[Section 76AK inserted: No. 60 of 2000 s. 10.]
76AL.How dutiable value is determined
(1)Where section 76AH(1) applies, duty is chargeable in accordance with this section on the basis of the value free of encumbrances (the dutiable value) of the land and chattels situated in Western Australia to which the WA company is entitled.
(1a)The method of determining the dutiable value depends on the nature of a relevant acquisition by which a person acquires an interest in a WA company.
(2)Where the relevant acquisition is within section 76AJ(1)(a)(i) the dutiable value is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the WA company to which the person, or the person and any related person, would be entitled, as provided in subsection (5), after the acquisition.
(2a)Where the relevant acquisition is within section 76AJ(1)(a)(ii) the dutiable value —
(a)for the purposes of section 76AH(1)(aa)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the WA company to which the person, or the person and a related person, would be entitled, as provided in subsection (5), after the acquisition of the majority interest;
(b)for the purposes of section 76AH(1)(aa)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the WA company to which the person, or the person and a related person, would have been entitled, as provided in subsection (5), before the relevant day as defined in section 76AJ(4).
(3)Where the relevant acquisition is within section 76AJ(1)(b) the dutiable value —
(a)for the purposes of section 76AH(1)(b)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the WA company to which the person, or the person and a related person, would be entitled, as provided in subsection (5), after the acquisition of the further interest;
(b)for the purposes of section 76AH(1)(b)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the WA company to which the person, or the person and a related person, would have been entitled, as provided in subsection (5), at the time of the immediately preceding relevant acquisition by that person, or a related person.
(4)For the purposes of subsections (2), (2a) and (3), the unencumbered value of the land and chattels to which a WA company is entitled at any time is the sum of —
(a)in the case of land and chattels to which the WA company is entitled without reference to subsection (4) of section 76AI, the unencumbered value of the land and chattels at that time; and
(b)in the case of land and chattels to which a subsidiary is entitled as mentioned in that subsection, the amount to which, if the property of a subsidiary or of all subsidiaries in the chain of relationships were to be distributed at that time (in the case of a corporation, on the basis of a winding up), without having regard to any liabilities of the same, the WA company would be entitled in respect of the unencumbered value at that time of land and chattels to which the subsidiary is, or all subsidiaries are, entitled.
(5)For the purposes of subsections (2), (2a) and (3), the property of a WA company to which a person, or the person and any related person, would be entitled is the property to which the person, or the person and any related person, would be entitled if the WA company were to be wound up after the acquisition.
[Section 76AL inserted: No. 33 of 1987 s. 22; amended: No. 39 of 1994 s. 21; No. 22 of 1998 s. 38; No. 60 of 2000 s. 11; No. 2 of 2003 s. 91; No. 11 of 2004 s. 24.]
Without limiting section 17(1)(c), where an acquisition is a relevant acquisition by virtue of a person and any related person acquiring an interest in a WA company all such persons are jointly and severally liable for the duty chargeable under this Division on the section 76AG statement lodged in relation to the acquisition.
[Section 76AM inserted: No. 33 of 1987 s. 22; amended: No. 39 of 1994 s. 21; No. 60 of 2000 s. 12; No. 2 of 2003 s. 92; No. 66 of 2003 s. 65.]
Division 3 — Corporations incorporated, or taken to be registered, outside Western Australia, and certain other companies not within Division 2
[Heading inserted: No. 10 of 2001 s. 177; amended: No. 2 of 2003 s. 93.]
76AN.Preparation of dutiable statement
(1)Where by a relevant acquisition a person acquires a majority interest or a further interest in —
(a)a corporation to which this Division applies; or
(b)a corporation to which this Division would apply if the reference to the value of land in section 76AP(2)(b) were a reference to the value of land, goods, wares and merchandise,
the corporation shall, within 2 months after the acquisition, lodge a statement with the Commissioner in respect of that acquisition.
Penalty: $20 000.
(2)A dutiable statement must be prepared in an approved form.
(3)The dutiable statement shall include the following information —
(a)the name and address of the person who has acquired a majority interest or a further interest, and of any related person if the acquisition is required to be aggregated with an acquisition by such person;
(b)the date of the acquisition;
(c)particulars of the interest acquired and all interests previously acquired by the person or a related person in the corporation;
(d)the corporation’s estimate of the unencumbered value of all land and chattels in Western Australia to which the corporation is entitled as at the date of the acquisition;
(da)particulars of any chattels, whether situated in Western Australia or not, to which the corporation was entitled in the 12 months preceding the date of the acquisition and acquired, directly or indirectly, by the person or a related person in that period;
(db)the corporation’s estimate of the unencumbered value of those chattels;
(e)the corporation’s estimate of the unencumbered value of the property of the corporation as at the date of the acquisition; and
(f)if the dutiable statement is lodged because of subsection (1)(b), a notation to that effect and such information relating to the goods, wares and merchandise referred to in subsection (1)(b), and their ownership and acquisition, as the approved form requires to be provided.
(4)A dutiable statement lodged under subsection (1) is taken to be an instrument evidencing the relevant acquisition and is chargeable with duty accordingly.
(4a)If, in the case of a dutiable statement lodged because of subsection (1)(b), the Commissioner is satisfied that the entitlement to, and valuation of, the goods, wares and merchandise referred to in subsection (1)(b) were not part of an arrangement or scheme having as its purpose, or one of its purposes, the defeat of the object of this Division, the Commissioner may determine that subsection (4) does not apply to the dutiable statement.
(4b)In deciding whether or not to make a determination under subsection (4a) the Commissioner may have regard to —
(a)the source of the goods, wares and merchandise and the source of funding for their acquisition;
(b)their nature and their relevance to any business carried on by the corporation, trustee or related corporation;
(c)the period for which they have been and are likely to remain the property of the corporation, trustee or related corporation; and
(d)any other matter that the Commissioner considers relevant.
(4c)A determination made under subsection (4a) has effect according to its terms and the Commissioner is to give notice of it to the corporation.
(4d)If the corporation requests the Commissioner to give reasons why the Commissioner has not made a determination under subsection (4a), the Commissioner is to give reasons to the corporation.
[Section 76AN inserted: No. 33 of 1987 s. 22; amended: No. 41 of 1989 s. 16; No. 22 of 1998 s. 38 and 41; No. 60 of 2000 s. 13; No. 3 of 2001 s. 21; No. 2 of 2003 s. 94; No. 66 of 2003 s. 66.]
76AO.Statement chargeable with duty
(1)A section 76AN statement is chargeable, in accordance with section 76AS, with duty at the rate provided for in item 4(1) of the Second Schedule calculated as follows —
(a)where the section 76AN statement relates to a relevant acquisition within section 76AQ(1)(a)(i), the duty shall be calculated on the dutiable value determined under section 76AS(2);
(aa)where the section 76AN statement relates to a relevant acquisition within section 76AQ(1)(a)(ii), the duty —
(i)shall be calculated on the dutiable value determined under section 76AS(2a)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76AS(2a)(b);
and
(b)where the section 76AN statement relates to a relevant acquisition within section 76AQ(1)(b), the duty —
(i)shall be calculated on the dutiable value determined under section 76AS(3)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76AS(3)(b).
(2)Notwithstanding item 4(1) of the Second Schedule, where the value of the land and chattels under section 76AS(4) does not exceed $1 500 000 the duty chargeable under this section shall be calculated as follows, and where paragraph (aa) or (b) of subsection (1) applies, shall be so calculated in terms of subparagraphs (i) and (ii) of that paragraph —
where —
Ais the value of the land and chattels situated in Western Australia to which the corporation is entitled as provided in section 76AS(4) at the time of the relevant acquisition; and
Bis the duty calculated under item 4(1) of the Second Schedule on the dutiable value determined under section 76AS.
(3)There shall be deducted from the duty chargeable on a section 76AN statement, any duty paid under item 4A(1) of the Second Schedule in respect of any instrument effecting or evidencing the acquisition of any interest which is taken into account in determining liability under section 76AN to lodge that statement, except any duty previously deducted under this subsection in respect of a section 76AN statement previously lodged in relation to the acquisition.
(4)Subject to subsection (5), if a section 76AN statement contains particulars of any chattels as required by section 76AN(3)(da), then, in addition to the duty chargeable under subsection (1), the section 76AN statement is chargeable with duty at the rate provided for in item 4(1) of the Second Schedule calculated on the unencumbered value of the chattels, but duty shall not be charged in respect of —
(a)any of the chattels in respect of which duty has been paid under section 31B, 31C or 70 by the person who made the relevant acquisition to which the section 76AN statement relates or by a related person;
(b)any of the chattels in respect of which ad valorem duty has been paid by that person, or a related person, in another jurisdiction; or
(c)any of the chattels that, in the opinion of the Commissioner, are usually not situated in Western Australia.
(5)The section 76AN statement is not chargeable with duty under subsection (4) if the Commissioner is satisfied that no transaction by means of which the chattels were transferred from the corporation to the person who made the relevant acquisition, or a related person, was effected for the collateral purpose of reducing the duty that otherwise would be chargeable in respect of the relevant acquisition.
[Section 76AO inserted: No. 33 of 1987 s. 22; amended: No. 39 of 1994 s. 14; No. 22 of 1998 s. 38 and 42; No. 60 of 2000 s. 14; No. 36 of 2001 s. 22; No. 2 of 2003 s. 95; No. 66 of 2003 s. 67; No. 11 of 2004 s. 25.]
76AP.Corporations to which this Division applies
(1)This Division applies to a corporation if —
(a)it is —
(i)a body corporate that is taken to be registered outside Western Australia (for the purposes of the Corporations Act) or that is otherwise formed or incorporated outside Western Australia, not being a body corporate that is —
(A)within paragraphs (a) to (d) of section 66A(4) of the Corporations Law; or
(B)a subsidiary, within the meaning in section 76AI(4), of a WA company to which Division 2 applies;
or
(ii)a WA company that would be a subsidiary, within the meaning in section 76AI(4), of a body corporate referred to in subparagraph (i) if that body corporate were a WA company;
and
[(b)deleted]
(c)it is a land‑holder within the meaning in subsection (2),
unless —
(d)it is listed on a recognised financial market; and
(e)the Commissioner is satisfied that its listing was not part of an arrangement or scheme having as its purpose, or one of its purposes, the defeat of the object of this Part.
(1a)For the purposes of subsection (1)(e) the Commissioner may take into account any matter that the Commissioner considers is relevant but must take into account —
(a)how long the corporation has been listed on a recognised financial market;
(b)any conditions or exemptions that apply to the approval of the listing of the corporation;
(c)who owns the corporation’s shares;
(d)what proportion of the corporation’s shares are available to be traded on the market; and
(e)the turnover of the corporation’s shares on the market.
(2)A corporation is a land‑holder for the purposes of this Division if at the time of a relevant acquisition —
(a)it is entitled to land situated in Western Australia and the unencumbered value of the land is not less than $1 000 000, or it is entitled to land situated in Western Australia as a co‑owner of the freehold or of a lesser estate in the land and the value of the whole of the freehold or lesser estate is not less than $1 000 000; and
(b)the value of all land to which the corporation is entitled, whether situated in Western Australia or elsewhere, is 60% or more of the value of all property to which it is entitled, other than property directed to be excluded by subsection (3),
or if the Commissioner determines that paragraphs (a) and (b) would have applied to the corporation at the time of the relevant acquisition but for a transaction, or series of transactions, which in the Commissioner’s opinion had as its purpose, or one of its purposes, the defeat of the object of this Division.
(2a)If the Commissioner makes a determination under subsection (2) —
(a)the Commissioner is to give notice of it to the corporation;
(b)the notice is to contain reasons for the determination;
(c)for the purposes of section 76AN(1) the relevant acquisition is taken to have occurred when the notice is given; and
(d)a reference in another provision of this Division to land and chattels situated in Western Australia to which the corporation is entitled includes a reference to property so situated to which it would have been entitled but for the transaction, or series of transactions, to which the determination relates.
(3)The following property of a corporation, or of a trustee or another corporation referred to in subsection (4), shall not be included for the purpose of calculating the value of property under subsection (2)(b) —
(a)cash or money in an account at call;
(b)negotiable instruments, and money on deposit with any person;
(ba)property consisting of rights or interests under a sales contract (including a forward sales contract) relating to minerals, primary products or other commodities;
(bb)an amount paid or payable to the corporation or the trustee or other corporation referred to in subsection (4) under a contract or agreement referred to in subsection (5)(b);
(c)money lent by the corporation or a trustee or a related corporation referred to in subsection (4) to —
(i)any person who in relation to the corporation is an associated person; or
(ii)any person at call or in terms that require or allow full repayment to the corporation within 12 months after the money is lent;
(d)in the case of the corporation, property consisting of a shareholding in another corporation referred to in subsection (4) or of a share or interest or entitlement under a trust referred to in that subsection;
(da)a licence or patent or other intellectual property (including knowledge or information that has a commercial value) relating to any process, technique, method, design or apparatus to —
(i)locate, extract, process, transport or market minerals; or
(ii)grow, rear, breed, maintain, produce, harvest, collect, process, transport or market primary products;
(db)stores, stockpiles or holdings of minerals or primary products (whether processed or unprocessed) produced by the corporation or a related person;
(dc)future tax benefits (whether in the nature of tax losses, capital losses, foreign losses or foreign tax credits) under the Income Tax Assessment Act 1997 or Income Tax Assessment Act 1936 of the Commonwealth or similar benefits under the laws of another jurisdiction;
(dd)any property prescribed for the purposes of this subsection; and
(e)any other property, whether of the same nature as or a different nature from the foregoing, in respect of which it is not shown to the Commissioner’s satisfaction that a reason for ownership by the corporation or the trustee or other corporation referred to in subsection (4) is not for the purpose of defeating the object of this Division.
(3a)In forming an opinion for the purposes of subsection (3)(e) the Commissioner may have regard to —
(a)the source of the property and the source of funding for its acquisition;
(b)its nature and its relevance to any business carried on by the corporation or the trustee or other corporation;
(c)the period for which it has been and is likely to remain the property of the corporation or the trustee or other corporation; and
(d)any other matter that the Commissioner considers relevant.
(4)Without limiting the meaning of “entitled”, a corporation is deemed to be entitled to land or property where —
(a)the trustee of a trust is entitled to that land or property and the corporation —
(i)has a share or interest in the trust whether vested or contingent; or
(ii)in the case of a discretionary trust, may benefit from that trust,
but an entitlement under subparagraph (i) is limited to the extent of that share or interest;
(b)in a case where the entitlement to participate referred to in section 76AR(2) or (3), (whichever is applicable to the relevant acquisition) relates to the corporation itself, any of the following corporations is entitled to that land or property —
(i)a corporation that is a subsidiary (as defined in the Corporations Act) of the corporation, or that would be a subsidiary (as so defined) of the corporation if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead;
(ii)any other corporation where the corporation would be entitled if the other corporation were to be wound up, after the time of the relevant acquisition, to participate in a distribution of the property of the other corporation to an extent not less than 50% of the value of the distributable property;
or
(c)in a case where the entitlement to participate referred to in section 76AR(2) or (3), (whichever is applicable to the relevant acquisition) relates to a holding corporation (as defined in section 76AR(4)(a)) of the corporation, any of the following corporations is entitled to that land or property —
(i)a corporation that is a subsidiary (as defined in the Corporations Act) of the holding corporation, or that would be a subsidiary (as so defined) of the holding corporation if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead;
(ii)any other corporation where the holding corporation would be entitled if the other corporation were to be wound up, after the time of the relevant acquisition, to participate in a distribution of the property of the other corporation to an extent not less than 50% of the value of the distributable property.
(5)In determining the entitlement of an entity to land for the purposes of this section or section 76AS —
(a)if the entity has contracted or agreed to acquire an interest in land, that contract or agreement is to be regarded as having been completed even if it has not yet been completed; and
(b)if the entity has contracted or agreed to dispose of an interest in land but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.
(6)In determining the entitlement of an entity to property other than land for the purposes of this section —
(a)if the entity has contracted or agreed to dispose of an interest in such property, that contract or agreement is to be regarded as having been completed even if it has not yet been completed; and
(b)if the entity has contracted or agreed to acquire an interest in such property but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.
[Section 76AP inserted: No. 33 of 1987 s. 22; amended: No. 39 of 1994 s. 21; No. 53 of 1999 s. 24; No. 60 of 2000 s. 15; No. 3 of 2001 s. 26; No. 10 of 2001 s. 178; No. 2 of 2003 s. 96; No. 21 of 2003 s. 28; No. 66 of 2003 s. 68; No. 11 of 2004 s. 26; No. 11 of 2005 s. 18, 20 and 23.]
76AQ.Meaning of “relevant acquisition”
(1)An acquisition is a relevant acquisition for the purposes of this Division —
(a)if by that acquisition a person acquires a majority interest in a corporation by acquiring an interest —
(i)that is itself a majority interest in the corporation; or
(ii)that is, when taken with each previous acquisition of an interest in the corporation made by the person on or after the relevant day for that acquisition, a majority interest in the corporation;
or
(b)if by that acquisition a person acquires a further interest in the corporation.
(2)If subsection (1)(b) applies to an acquisition, subsection (1)(a)(ii) does not apply to it.
(2a)A previous acquisition of an interest in the corporation is not to be taken into consideration under subsection (1)(a)(ii) if, at the time of that acquisition, the corporation was not a land‑holder for the purposes of this Division as enacted at that time.
(2b)Subject to subsection (2a), a previous acquisition of an interest in the corporation is to be taken into consideration under subsection (1)(a)(ii) even if, at the time of that acquisition, this Division did not apply to the corporation because of section 76AP(1)(d) and (e).
(3)For the purposes of subsection (1)(a)(ii) and section 76AS(2a)(b), if a person acquires an interest in a corporation (the earlier acquisition) and, after that acquisition, that person acquires another interest in the corporation (the later acquisition) because of an arrangement that was entered into during the relevant period, the earlier acquisition is to be regarded as having been made on or after the relevant day for the later acquisition even if it was not so made.
(4)In this section —
relevant day for an acquisition means —
(a)if the acquisition was or is made on or after 10 August 2000 but before 11 August 2002 — 10 August 1999; or
(b)if the acquisition is made on or after 11 August 2002 — the day that is 3 years before the day of the acquisition.
(5)In subsection (3) —
relevant period means —
(a)if the earlier acquisition was made before 10 August 1999 — the period beginning on the day that is one year before the day of that acquisition and ending on the day that is one year after the day of that acquisition;
(b)if the earlier acquisition was made on or after 10 August 1999 but before 10 August 2000 — the period beginning on the day that is one year before the day of that acquisition and ending on the day that is 3 years after the day of that acquisition; or
(c)if the earlier acquisition was or is made on or after 10 August 2000 — the period beginning on the relevant day for that acquisition and ending on the day that is 3 years after the day of that acquisition.
(6)Subsection (3) does not apply in relation to an arrangement entered into before 10 August 2000 unless, because of the arrangement, the person referred to in that subsection had the right to acquire the other interest referred to in that subsection.
[Section 76AQ inserted: No. 60 of 2000 s. 16; amended: No. 66 of 2003 s. 69; No. 11 of 2004 s. 27.]
76AR.Meaning of “interest”, “majority interest” and “further interest”
(1)For the purposes of this Division, a person acquires an interest in a corporation if the person acquires, or the person and any related person acquire, an entitlement such that the person, or the person and any related person, would be entitled if the property of the corporation or the holding corporation were to be distributed (in the case of a corporation on the basis of a winding up) to participate in a distribution of the property of the corporation or holding corporation.
(2)For the purposes of this Division, a person acquires a majority interest in a corporation if the person acquires, or the person and any related person acquire, an interest in the corporation such that having acquired that interest the person, or the person and any related person, would be entitled if the property of the corporation or a holding corporation were to be distributed (in the case of a corporation on the basis of a winding up) to participate in a distribution of the property of the corporation or holding corporation to an extent greater than 50% of the value of the distributable property and, in section 76AQ(1)(a)(i) and (ii) and subsection (3), majority interest has a corresponding meaning.
(3)For the purposes of this Division, a person acquires a further interest in a corporation if —
(a)the person has, or the person and any related person have, a majority interest in the corporation;
(b)the acquisition of that majority interest gave rise to a liability for duty under this Part; and
(c)the person acquires, or the person and any related person acquire, an interest in the corporation such that having acquired that interest the person, or the person and any related person, would be entitled if the property of the corporation or a holding corporation were to be distributed (in the case of a corporation on the basis of a winding up) to participate further in a distribution of the property of the corporation or holding corporation.
(4)In this section holding corporation in relation to a corporation —
(a)means a corporation —
(i)that is an ultimate holding company as defined in section 9 of the Corporations Act;
(ii)of which a corporation is a subsidiary by virtue of Division 6 of Part 1.2 of the Corporations Act or would be a subsidiary by virtue of that Division if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead; or
(iii)which would be entitled if a corporation were to be wound up to participate in a distribution of the property of that corporation to an extent not less than 50% of the value of the distributable property;
and
(b)is deemed to include —
(i)any trust if the trustee of the trust would be entitled if the corporation or a holding corporation (as defined in paragraph (a)) were to be wound up to participate in a distribution of the property of the corporation or holding corporation to an extent not less than 50% of the value of the distributable property;
(ii)a corporation, if in respect of any trust referred to in subparagraph (i) that corporation —
(I)is entitled to a share or interest in the trust whether vested or contingent; or
(II)in the case of a discretionary trust, may benefit from that trust;
and
(iii)any other corporation, or the trustee of any other trust that would by an application of this subsection be a holding corporation of a corporation that is a holding corporation of the corporation.
[Section 76AR inserted: No. 60 of 2000 s. 16; amended: No. 10 of 2001 s. 179; No. 11 of 2005 s. 18 and 21.]
76AS.How dutiable value is determined
(1)Where section 76AO(1) applies, duty is chargeable in accordance with this section on the basis of the value free of encumbrances (the dutiable value) of the land and chattels situated in Western Australia to which the corporation is entitled.
(1a)The method of determining the dutiable value depends on the nature of a relevant acquisition by which a person acquires an interest in a corporation.
(2)Where the relevant acquisition is within section 76AQ(1)(a)(i) the dutiable value is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the corporation to which the person, or the person and any related person, would be entitled, as provided in subsection (5), after the acquisition.
(2a)Where the relevant acquisition is within section 76AQ(1)(a)(ii) the dutiable value —
(a)for the purposes of section 76AO(1)(aa)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the corporation to which the person, or the person and a related person, would be entitled, as provided in subsection (5), after the acquisition of the majority interest;
(b)for the purposes of section 76AO(1)(aa)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the corporation to which the person, or the person and a related person, would have been entitled, as provided in subsection (5), before the relevant day as defined in section 76AQ(4).
(3)Where the relevant acquisition is within section 76AQ(1)(b) the dutiable value —
(a)for the purposes of section 76AO(1)(b)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the corporation to which the person, or the person and a related person, would be entitled, as provided in subsection (5), after the acquisition of the further interest;
(b)for the purposes of section 76AO(1)(b)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation is entitled, as provided by subsection (4), at the time of the acquisition, as the proportion of the property of the corporation to which the person, or the person and a related person, would have been entitled, as provided in subsection (5), at the time of the immediately preceding relevant acquisition by that person, or a related person.
(4)For the purposes of subsections (2), (2a) and (3), the unencumbered value of the land and chattels to which a corporation is entitled at any time is the sum of —
(a)in the case of land and chattels to which the corporation is entitled without reference to subsection (4) of section 76AP, the unencumbered value of the land and chattels at that time; and
(b)in the case of land and chattels to which a trustee or a corporation is entitled as mentioned in that subsection, the amount to which, if the property of a trust or corporation referred to in that subsection or all such trusts and corporations in the chain of relationships were to be distributed at that time (in the case of a corporation, on the basis of a winding up), without having regard to any liabilities of the same, the corporation would be entitled in respect of the unencumbered value at that time of land and chattels to which all such trusts and corporations are entitled.
(5)For the purposes of subsections (2), (2a) and (3), the property of a corporation to which a person, or the person and any related person, would be entitled is the property to which the person, or the person and any related person, would be entitled if the property of the corporation and all holding corporations, as defined in section 76AR(4), in the chain of relationships were to be distributed after the acquisition (in the case of a corporation, on the basis of a winding up), without having regard to any liabilities of the same.
[Section 76AS inserted: No. 33 of 1987 s. 22; amended: No. 22 of 1998 s. 38; No. 60 of 2000 s. 17; No. 2 of 2003 s. 97; No. 11 of 2004 s. 28.]
Division 3a — Listed companies taken to be registered in Western Australia
[Heading inserted: No. 11 of 2004 s. 29.]
76AT.Preparation of dutiable statement
(1)Where by a relevant acquisition a person acquires a controlling interest in —
(a)a listed land‑holder WA company; or
(b)a WA company that would be a listed land‑holder WA company if the reference to the value of land in section 76ATB(2)(b) were a reference to the value of land, goods, wares and merchandise,
the person shall, within 2 months after the acquisition, lodge a statement with the Commissioner in respect of that acquisition.
(2)Subject to subsections (4)(d) and (5)(c), where by a relevant acquisition a person acquires an additional interest in a WA company the person shall, within 2 months after the acquisition, lodge a statement with the Commissioner in respect of that acquisition.
(3)Within 2 months after a relevant acquisition referred to in subsection (2) (acquisition A) the person referred to in subsection (2) may apply to the Commissioner in an approved form for approval to lodge periodical statements for the purposes of this section in respect of periods approved by the Commissioner (each of which is referred to in this Division as a relevant period).
(4)If the Commissioner approves the application —
(a)the Commissioner is to notify the person accordingly specifying —
(i)the day on which each relevant period ends; and
(ii)any conditions to which the approval is subject;
(b)the first relevant period is taken to have begun on the day of acquisition A and a subsequent relevant period begins on the day after the day on which the immediately preceding relevant period ends;
(c)the person shall —
(i)within 14 days after the first relevant period ends, lodge a statement with the Commissioner in respect of acquisition A and any other relevant acquisitions by which the person acquired additional interests in the WA company during that relevant period; and
(ii)within 14 days after each subsequent relevant period ends, lodge a statement with the Commissioner in respect of any relevant acquisitions by which the person acquired additional interests in the WA company during that relevant period;
and
(d)subsection (2) does not apply to acquisition A or any other relevant acquisition referred to in paragraph (c).
(5)If the Commissioner does not approve the application —
(a)the Commissioner is to notify the person accordingly giving reasons for the decision;
(b)the person shall, within 2 months after the notification is given, lodge statements with the Commissioner in respect of acquisition A and each other relevant acquisition (if any) by which the person acquired an additional interest in the WA company after acquisition A and before the notification is given; and
(c)subsection (2) does not apply to acquisition A or any other relevant acquisition referred to in paragraph (b).
(6)If a requirement under this section arises in circumstances where a person acquires a controlling interest or an additional interest by reason of acquisitions by the person and a related person or related persons being aggregated, one of such persons shall comply with this section on behalf of all such persons by including all the acquisitions in a dutiable statement lodged under this section.
(7)A dutiable statement must be prepared in an approved form.
(8)A dutiable statement under subsection (1) shall include the following information —
(a)the name and address of the person who has acquired the controlling interest and of any related person referred to in subsection (6);
(b)the date of the acquisition;
(c)particulars of the interest acquired and all interests previously acquired by the person or a related person in the WA company;
(d)the person’s estimate of the unencumbered value of all land and chattels in Western Australia to which the WA company is entitled as at the date of the acquisition;
(e)particulars of any chattels, whether situated in Western Australia or not, to which the WA company was entitled in the 12 months preceding the date of the acquisition and acquired, directly or indirectly, by the person or a related person in that period;
(f)the person’s estimate of the unencumbered value of those chattels;
(g)the person’s estimate of the unencumbered value of the property of the WA company as at the date of the acquisition;
(h)if the dutiable statement is lodged because of subsection (1)(b), a notation to that effect and such information relating to the goods, wares and merchandise referred to in subsection (1)(b), and their ownership and acquisition, as the approved form requires to be provided.
(9)A dutiable statement under subsection (2) or (5)(b) shall include the following information —
(a)the name and address of the person who has acquired the additional interest and of any related person referred to in subsection (6);
(b)the date of the acquisition;
(c)particulars of the interest acquired and all interests previously acquired by the person or a related person in the WA company.
(10)A dutiable statement under subsection (4)(c) in respect of a relevant period shall include the following information —
(a)the name and address of the person who acquired the additional interest or additional interests during the relevant period and of any related person referred to in subsection (6);
(b)in relation to each additional interest acquired during the relevant period —
(i)the date of the acquisition; and
(ii)particulars of the interest;
(c)particulars of all interests acquired by the person or a related person in the WA company before the relevant period.
(11)A dutiable statement lodged under this section is taken to be an instrument evidencing the relevant acquisition or relevant acquisitions and is chargeable with duty accordingly.
(12)If, in the case of a dutiable statement lodged because of subsection (1)(b), the Commissioner is satisfied that the entitlement to, and valuation of, the goods, wares and merchandise referred to in subsection (1)(b) were not part of an arrangement or scheme having as its purpose, or one of its purposes, the defeat of the object of this Division, the Commissioner may determine that subsection (11) does not apply to the dutiable statement.
(13)In deciding whether or not to make a determination under subsection (12) the Commissioner may have regard to —
(a)the source of the goods, wares and merchandise and the source of funding for their acquisition;
(b)their nature and their relevance to any business carried on by the WA company or any subsidiary;
(c)the period for which they have been and are likely to remain the property of the WA company or any subsidiary; and
(d)any other matter that the Commissioner considers relevant.
(14)A determination made under subsection (12) has effect according to its terms and the Commissioner is to give notice of it to the person who lodged the dutiable statement.
(15)If the person who lodged the dutiable statement requests the Commissioner to give reasons why the Commissioner has not made a determination under subsection (12), the Commissioner is to give reasons to the person.
(16)A person who fails to comply with subsection (1), (2), (4)(c) or (5)(b) commits an offence.
Penalty: $20 000.
[Section 76AT inserted: No. 11 of 2004 s. 29.]
76ATA.Statement chargeable with duty
(1)A section 76AT statement is chargeable, in accordance with section 76ATE, with duty at the rate provided for in item 4(1) of the Second Schedule calculated as follows —
(a)where the section 76AT statement relates to a relevant acquisition within section 76ATC(1)(a)(i), the duty shall be calculated on the dutiable value determined under section 76ATE(3);
(b)where the section 76AT statement relates to a relevant acquisition within section 76ATC(1)(a)(ii), the duty —
(i)shall be calculated on the dutiable value determined under section 76ATE(4)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76ATE(4)(b);
(c)unless paragraph (d) applies, where the section 76AT statement relates to a relevant acquisition within section 76ATC(1)(b), the duty —
(i)shall be calculated on the dutiable value determined under section 76ATE(5)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76ATE(5)(b);
(d)where approval has been granted under section 76AT(4), the duty —
(i)shall be calculated on the dutiable value determined under section 76ATE(6)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76ATE(6)(b).
(2)Notwithstanding item 4(1) of the Second Schedule, where the value of the land and chattels under section 76ATE(7) does not exceed $1 500 000 the duty chargeable under this section shall be calculated as follows, and where paragraph (b), (c) or (d) of subsection (1) applies shall be so calculated in terms of subparagraphs (i) and (ii) of that paragraph —
where —
Ais the value of the land and chattels situated in Western Australia to which the WA company is entitled as provided in section 76ATE(7); and
Bis the duty calculated under item 4(1) of the Second Schedule on the dutiable value determined under section 76ATE.
(3)Subject to subsection (4), if a section 76AT statement contains particulars of any chattels as required by section 76AT(8)(e), then, in addition to the duty chargeable under subsection (1), the section 76AT statement is chargeable with duty at the rate provided for in item 4(1) of the Second Schedule calculated on the unencumbered value of the chattels, but duty shall not be charged in respect of —
(a)any of the chattels in respect of which duty has been paid under section 31B, 31C or 70 by the person who made the relevant acquisition to which the section 76AT statement relates or by a related person;
(b)any of the chattels in respect of which ad valorem duty has been paid by that person, or a related person, in another jurisdiction; or
(c)any of the chattels that, in the opinion of the Commissioner, are usually not situated in Western Australia.
(4)The section 76AT statement is not chargeable with duty under subsection (3) if the Commissioner is satisfied that no transaction by means of which the chattels were transferred from the WA company to the person who made the relevant acquisition, or a related person, was effected for the collateral purpose of reducing the duty that otherwise would be chargeable in respect of the relevant acquisition.
(5)If —
(a)a section 76AT statement relates to a relevant acquisition within section 76ATC(1)(a)(ii); and
(b)duty charged under Division 2 or 3 (the previous duty) has been paid in respect of a previous acquisition of an interest in the WA company that is taken into consideration under section 76ATC(1)(a)(ii),
there shall be deducted from the duty payable on the section 76AT statement the amount that the previous duty would have been if the previous acquisition had occurred immediately before the relevant acquisition occurred.
[Section 76ATA inserted: No. 11 of 2004 s. 29.]
76ATB.Meaning of “listed land‑holder WA company”
(1)In this Division a WA company is a listed land‑holder WA company if it is a land‑holder within the meaning in subsection (2) and is listed on a recognised financial market.
(2)A WA company is a land‑holder for the purposes of this Division if at the time of an acquisition of a controlling interest —
(a)it is entitled to land situated in Western Australia and the unencumbered value of the land is not less than $1 000 000, or it is entitled to land situated in Western Australia as a co‑owner of the freehold or of a lesser estate in the land and the value of the whole of the freehold or lesser estate is not less than $1 000 000; and
(b)the value of all land to which the WA company is entitled, whether situated in Western Australia or elsewhere, is 60% or more of the value of all property to which it is entitled, other than property directed to be excluded by subsection (4),
or if the Commissioner determines that paragraphs (a) and (b) would have applied to the WA company at the time of the acquisition of the controlling interest but for a transaction, or series of transactions, which in the Commissioner’s opinion had as its purpose, or one of its purposes, the defeat of the object of this Division.
(3)If the Commissioner makes a determination under subsection (2) —
(a)the Commissioner is to give notice of it to the person who acquired the controlling interest;
(b)the notice is to contain reasons for the determination;
(c)for the purposes of section 76AT(1) the acquisition of the controlling interest is taken to have occurred when the notice is given; and
(d)a reference in another provision of this Division to land and chattels situated in Western Australia to which the WA company is entitled includes a reference to property so situated to which it would have been entitled but for the transaction, or series of transactions, to which the determination relates.
(4)The following property of a WA company, or of any subsidiary within the meaning in subsection (6), shall not be included for the purpose of calculating the value of property under subsection (2)(b) —
(a)cash or money in an account at call;
(b)negotiable instruments, and money on deposit with any person;
(c)property consisting of rights or interests under a sales contract (including a forward sales contract) relating to minerals, primary products or other commodities;
(ca)an amount paid or payable to the WA company or a subsidiary under a contract or agreement referred to in subsection (7)(b);
(d)money lent by the WA company or a subsidiary to —
(i)any person who in relation to the WA company is an associated person; or
(ii)any person at call or in terms that require or allow full repayment to the WA company within 12 months after the money is lent;
(e)where a corporation is a subsidiary of the WA company by virtue of Division 6 of Part 1.2 of the Corporations Act, or would be a subsidiary of it by virtue of that Division if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead, the shareholding of the WA company in the corporation, but without limiting subsection (6);
(f)in the case of the WA company, property consisting of a share or interest in a trust referred to in subsection (6);
(g)a licence or patent or other intellectual property (including knowledge or information that has a commercial value) relating to any process, technique, method, design or apparatus to —
(i)locate, extract, process, transport or market minerals; or
(ii)grow, rear, breed, maintain, produce, harvest, collect, process, transport or market primary products;
(h)stores, stockpiles or holdings of minerals or primary products (whether processed or unprocessed) produced by the WA company or a related person;
(i)future tax benefits (whether in the nature of tax losses, capital losses, foreign losses or foreign tax credits) under the Income Tax Assessment Act 1997 or Income Tax Assessment Act 1936 of the Commonwealth or similar benefits under the laws of another jurisdiction;
(j)any property prescribed for the purposes of this subsection;
(k)any other property, whether of the same nature as or a different nature from the foregoing, in respect of which it is not shown to the Commissioner’s satisfaction that a reason for ownership by the WA company or the subsidiary within the meaning in subsection (6) is not for the purpose of defeating the object of this Division.
(5)In forming an opinion for the purposes of subsection (4)(k) the Commissioner may have regard to —
(a)the source of the property and the source of funding for its acquisition;
(b)its nature and its relevance to any business carried on by the WA company or the subsidiary;
(c)the period for which it has been and is likely to remain the property of the WA company or the subsidiary; and
(d)any other matter that the Commissioner considers relevant.
(6)Without limiting the meaning of “entitled”, a WA company is deemed to be entitled to land or property to the extent that a subsidiary is entitled to that land or property, and for the purposes of this subsection a subsidiary is —
(a)a subsidiary corporation by virtue of Division 6 of Part 1.2 of the Corporations Act, or a corporation that would be a subsidiary corporation by virtue of that Division if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead, or any other corporation where the WA company would be entitled if the corporation were to be wound up, after the time of the acquisition of the controlling interest, to participate in a distribution of the property of the corporation to an extent not less than 50% of the value of the distributable property;
(b)the trustee of any trust where the WA company or a subsidiary corporation of the WA company, as defined in paragraph (a) —
(i)is entitled to a share or interest in the trust, whether vested or contingent; or
(ii)in the case of a discretionary trust, may benefit from that trust;
(c)any corporation, where the trustee of a trust in which the WA company or a subsidiary corporation —
(i)is entitled to a share or interest, whether vested or contingent; or
(ii)in the case of a discretionary trust, may benefit from that trust,
would be entitled if the corporation were to be wound up, after the time of the acquisition of the controlling interest, to participate in a distribution of the property of the corporation to an extent not less than 50% of the value of the distributable property; or
(d)any other corporation or the trustee of any other trust that would by an application of this subsection be a subsidiary of a corporation that is a subsidiary of the WA company.
(7)In determining the entitlement of an entity to land for the purposes of this section or section 76ATE —
(a)if the entity has contracted or agreed to acquire an interest in land, that contract or agreement is to be regarded as having been completed even if it has not yet been completed; and
(b)if the entity has contracted or agreed to dispose of an interest in land but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.
(8)In determining the entitlement of an entity to property other than land for the purposes of this section —
(a)if the entity has contracted or agreed to dispose of an interest in such property, that contract or agreement is to be regarded as having been completed even if it has not yet been completed; and
(b)if the entity has contracted or agreed to acquire an interest in such property but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.
[Section 76ATB inserted: No. 11 of 2004 s. 29; amended: No. 11 of 2005 s. 18, 19 and 24.]
76ATC.Meaning of “relevant acquisition”
(1)An acquisition is a relevant acquisition for the purposes of this Division —
(a)if by that acquisition a person acquires a controlling interest in a WA company by acquiring an interest —
(i)that is itself a controlling interest in the WA company; or
(ii)that is, when taken with each previous acquisition of an interest in the WA company made by the person, a controlling interest in the WA company;
or
(b)if by that acquisition a person acquires an additional interest in the WA company.
(2)If subsection (1)(b) applies to an acquisition, subsection (1)(a)(ii) does not apply to it.
(3)A previous acquisition of an interest in the WA company is to be taken into consideration under subsection (1)(a)(ii) even if, at the time of that acquisition, the WA company was not a land‑holder within the meaning in section 76ATB(2) or was not listed on a recognised financial market.
[Section 76ATC inserted: No. 11 of 2004 s. 29.]
76ATD.Meaning of “interest”, “controlling interest” and “additional interest”
(1)For the purposes of this Division, a person acquires an interest in a WA company if the person acquires, or the person and any related person acquire, an entitlement such that the person, or the person and any related person, would be entitled if the WA company were to be wound up to participate in a distribution of the property of the WA company.
(2)For the purposes of this Division, a person acquires a controlling interest in a WA company if the person acquires, or the person and any related person acquire, an interest in the WA company such that having acquired that interest the person, or the person and any related person, would be entitled if the WA company were to be wound up to participate in a distribution of the property of the WA company to an extent not less than 90% of the value of the distributable property and, in section 76ATC(1)(a)(i) and (ii) and subsection (3), controlling interest has a corresponding meaning.
(3)For the purposes of this Division, a person acquires an additional interest in a WA company if —
(a)the person has, or the person and any related person have, a controlling interest in the WA company;
(b)the acquisition of that controlling interest gave rise to a liability for duty under this Part; and
(c)the person acquires, or the person and any related person acquire, an interest in the WA company such that having acquired that interest the person, or the person and any related person, would be entitled if the WA company were to be wound up to participate further in a distribution of the property of the WA company.
[Section 76ATD inserted: No. 11 of 2004 s. 29.]
76ATE.How dutiable value is determined
(1)Where section 76ATA(1) applies, duty is chargeable in accordance with this section on the basis of the value free of encumbrances (the dutiable value) of the land and chattels situated in Western Australia to which the WA company is entitled.
(2)The method of determining the dutiable value depends on the nature of a relevant acquisition by which a person acquires an interest in a WA company.
(3)Where the relevant acquisition is within section 76ATC(1)(a)(i) the dutiable value is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company is entitled, as provided by subsection (7), at the time of the acquisition, as the proportion of the property of the WA company to which the person, or the person and any related person, would be entitled, as provided in subsection (8), after the acquisition.
(4)Where the relevant acquisition is within section 76ATC(1)(a)(ii) the dutiable value —
(a)for the purposes of section 76ATA(1)(b)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company is entitled, as provided by subsection (7), at the time of the acquisition, as the proportion of the property of the WA company to which the person, or the person and a related person, would be entitled, as provided in subsection (8), after the acquisition of the controlling interest;
(b)for the purposes of section 76ATA(1)(b)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company is entitled, as provided by subsection (7), at the time of the acquisition, as the proportion of the property of the WA company to which the person, or the person and a related person, would have been entitled, as provided in subsection (8), before the day that is 3 years before the day of the acquisition of the controlling interest.
(5)Unless subsection (6) applies, where the relevant acquisition is within section 76ATC(1)(b) the dutiable value —
(a)for the purposes of section 76ATA(1)(c)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company was entitled, as provided by subsection (7), at the time the controlling interest was acquired, as the proportion of the property of the WA company to which the person, or the person and a related person, would be entitled, as provided in subsection (8), after the acquisition of the additional interest;
(b)for the purposes of section 76ATA(1)(c)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company was entitled, as provided by subsection (7), at the time the controlling interest was acquired, as the proportion of the property of the WA company to which the person, or the person and a related person, would have been entitled, as provided in subsection (8), at the time of the immediately preceding relevant acquisition by that person, or a related person.
(6)Where approval has been granted under section 76AT(4) the dutiable value —
(a)for the purposes of section 76ATA(1)(d)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company was entitled, as provided by subsection (7), at the time the controlling interest was acquired, as the proportion of the property of the WA company to which the person, or the person and a related person, would be entitled, as provided in subsection (8), at the end of the relevant period to which the section 76AT statement relates;
(b)for the purposes of section 76ATA(1)(d)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the WA company was entitled, as provided by subsection (7), at the time the controlling interest was acquired, as the proportion of the property of the WA company to which the person, or the person and a related person, would have been entitled, as provided in subsection (8), before the beginning of the relevant period to which the section 76AT statement relates.
(7)For the purposes of subsections (3), (4), (5) and (6), the unencumbered value of the land and chattels to which a WA company is entitled at any time is the sum of —
(a)in the case of land and chattels to which the WA company is entitled without reference to subsection (6) of section 76ATB, the unencumbered value of the land and chattels at that time; and
(b)in the case of land and chattels to which a subsidiary is entitled as mentioned in that subsection, the amount to which, if the property of a subsidiary or of all subsidiaries in the chain of relationships were to be distributed at that time (in the case of a corporation, on the basis of a winding up), without having regard to any liabilities of the same, the WA company would be entitled in respect of the unencumbered value at that time of land and chattels to which the subsidiary is, or all subsidiaries are, entitled.
(8)For the purposes of subsections (3), (4), (5) and (6), the property of a WA company to which a person, or the person and any related person, would be entitled is the property to which the person, or the person and any related person, would be entitled if the WA company were to be wound up after the acquisition.
(9)If the day of the acquisition of the controlling interest is 30 June 2007 or earlier, the reference in subsection (4)(b) to the day that is 3 years before the day of the acquisition of the controlling interest is taken to be a reference to 1 July 2004.
[Section 76ATE inserted: No. 11 of 2004 s. 29.]
Without limiting section 17(1)(c), where an acquisition is a relevant acquisition by virtue of a person and any related person acquiring an interest in a WA company all such persons are jointly and severally liable for the duty chargeable under this Division on the section 76AT statement lodged in relation to the acquisition.
[Section 76ATF inserted: No. 11 of 2004 s. 29.]
Division 3b — Listed corporations incorporated, or taken to be registered, outside Western Australia, and certain other companies not within Division 3a
[Heading inserted: No. 11 of 2004 s. 29.]
76ATG.Preparation of dutiable statement
(1)Where by a relevant acquisition a person acquires a controlling interest in —
(a)a listed land‑holder corporation; or
(b)a corporation that would be a listed land‑holder corporation if the reference to the value of land in section 76ATI(2)(b) were a reference to the value of land, goods, wares and merchandise,
the corporation shall, within 2 months after the acquisition, lodge a statement with the Commissioner in respect of that acquisition.
(2)Subject to subsections (4)(d) and (5)(c), where by a relevant acquisition a person acquires an additional interest in a corporation the corporation shall, within 2 months after the acquisition, lodge a statement with the Commissioner in respect of that acquisition.
(3)Within 2 months after a relevant acquisition referred to in subsection (2) (acquisition A) the corporation may apply to the Commissioner in an approved form for approval to lodge periodical statements for the purposes of this section in respect of the person referred to in subsection (2) (the bidder) in respect of periods approved by the Commissioner (each of which is referred to in this Division as a relevant period).
(4)If the Commissioner approves the application —
(a)the Commissioner is to notify the corporation accordingly specifying —
(i)the day on which each relevant period ends; and
(ii)any conditions to which the approval is subject;
(b)the first relevant period is taken to have begun on the day of acquisition A and a subsequent relevant period begins on the day after the day on which the immediately preceding relevant period ends;
(c)the corporation shall —
(i)within 14 days after the first relevant period ends, lodge a statement with the Commissioner in respect of acquisition A and any other relevant acquisitions by which the bidder acquired additional interests in the corporation during that relevant period; and
(ii)within 14 days after each subsequent relevant period ends, lodge a statement with the Commissioner in respect of any relevant acquisitions by which the bidder acquired additional interests in the corporation during that relevant period;
and
(d)subsection (2) does not apply to acquisition A or any other relevant acquisition referred to in paragraph (c).
(5)If the Commissioner does not approve the application —
(a)the Commissioner is to notify the corporation accordingly giving reasons for the decision;
(b)the corporation shall, within 2 months after the notification is given, lodge statements with the Commissioner in respect of acquisition A and each other relevant acquisition (if any) by which the bidder acquired an additional interest in the corporation after acquisition A and before the notification is given; and
(c)subsection (2) does not apply to acquisition A or any other relevant acquisition referred to in paragraph (b).
(6)A dutiable statement must be prepared in an approved form.
(7)A dutiable statement under subsection (1) shall include the following information —
(a)the name and address of the person who has acquired the controlling interest, and of any related person if the acquisition is required to be aggregated with an acquisition by such person;
(b)the date of the acquisition;
(c)particulars of the interest acquired and all interests previously acquired by the person or a related person in the corporation;
(d)the corporation’s estimate of the unencumbered value of all land and chattels in Western Australia to which the corporation is entitled as at the date of the acquisition;
(e)particulars of any chattels, whether situated in Western Australia or not, to which the corporation was entitled in the 12 months preceding the date of the acquisition and acquired, directly or indirectly, by the person or a related person in that period;
(f)the corporation’s estimate of the unencumbered value of those chattels;
(g)the corporation’s estimate of the unencumbered value of the property of the corporation as at the date of the acquisition; and
(h)if the dutiable statement is lodged because of subsection (1)(b), a notation to that effect and such information relating to the goods, wares and merchandise referred to in subsection (1)(b), and their ownership and acquisition, as the approved form requires to be provided.
(8)A dutiable statement under subsection (2) or (5)(b) shall include the following information —
(a)the name and address of the person who has acquired the additional interest, and of any related person if the acquisition is required to be aggregated with an acquisition by such person;
(b)the date of the acquisition;
(c)particulars of the interest acquired and all interests previously acquired by the person or a related person in the corporation.
(9)A dutiable statement under subsection (4)(c) in respect of a relevant period shall include the following information —
(a)the name and address of the bidder, and of any related person if any acquisition is required to be aggregated with an acquisition by such person;
(b)in relation to each additional interest acquired during the relevant period —
(i)the date of the acquisition; and
(ii)particulars of the interest;
(c)particulars of all interests acquired by the bidder or a related person in the corporation before the relevant period.
(10)A dutiable statement lodged under this section is taken to be an instrument evidencing the relevant acquisition or relevant acquisitions and is chargeable with duty accordingly.
(11)If, in the case of a dutiable statement lodged because of subsection (1)(b), the Commissioner is satisfied that the entitlement to, and valuation of, the goods, wares and merchandise referred to in subsection (1)(b) were not part of an arrangement or scheme having as its purpose, or one of its purposes, the defeat of the object of this Division, the Commissioner may determine that subsection (10) does not apply to the dutiable statement.
(12)In deciding whether or not to make a determination under subsection (11) the Commissioner may have regard to —
(a)the source of the goods, wares and merchandise and the source of funding for their acquisition;
(b)their nature and their relevance to any business carried on by the corporation, trustee or related corporation;
(c)the period for which they have been and are likely to remain the property of the corporation, trustee or related corporation; and
(d)any other matter that the Commissioner considers relevant.
(13)A determination made under subsection (11) has effect according to its terms and the Commissioner is to give notice of it to the corporation.
(14)If the corporation requests the Commissioner to give reasons why the Commissioner has not made a determination under subsection (11), the Commissioner is to give reasons to the corporation.
(15)A person who fails to comply with subsection (1), (2), (4)(c) or (5)(b) commits an offence.
Penalty: $20 000.
[Section 76ATG inserted: No. 11 of 2004 s. 29.]
76ATH.Statement chargeable with duty
(1)A section 76ATG statement is chargeable, in accordance with section 76ATL, with duty at the rate provided for in item 4(1) of the Second Schedule calculated as follows —
(a)where the section 76ATG statement relates to a relevant acquisition within section 76ATJ(1)(a)(i), the duty shall be calculated on the dutiable value determined under section 76ATL(3);
(b)where the section 76ATG statement relates to a relevant acquisition within section 76ATJ(1)(a)(ii), the duty —
(i)shall be calculated on the dutiable value determined under section 76ATL(4)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76ATL(4)(b);
(c)unless paragraph (d) applies, where the section 76ATG statement relates to a relevant acquisition within section 76ATJ(1)(b), the duty —
(i)shall be calculated on the dutiable value determined under section 76ATL(5)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76ATL(5)(b);
(d)where approval has been granted under section 76ATG(4) the duty —
(i)shall be calculated on the dutiable value determined under section 76ATL(6)(a); but
(ii)shall be reduced by the amount of duty determined on the dutiable value calculated under section 76ATL(6)(b).
(2)Notwithstanding item 4(1) of the Second Schedule, where the value of the land and chattels under section 76ATL(7) does not exceed $1 500 000 the duty chargeable under this section shall be calculated as follows, and where paragraph (b), (c) or (d) of subsection (1) applies, shall be so calculated in terms of subparagraphs (i) and (ii) of that paragraph —
where —
Ais the value of the land and chattels situated in Western Australia to which the corporation is entitled as provided in section 76ATL(7); and
Bis the duty calculated under item 4(1) of the Second Schedule on the dutiable value determined under section 76ATL.
(3)Subject to subsection (4), if a section 76ATG statement contains particulars of any chattels as required by section 76ATG(7)(e), then, in addition to the duty chargeable under subsection (1), the section 76ATG statement is chargeable with duty at the rate provided for in item 4(1) of the Second Schedule calculated on the unencumbered value of the chattels, but duty shall not be charged in respect of —
(a)any of the chattels in respect of which duty has been paid under section 31B, 31C or 70 by the person who made the relevant acquisition to which the section 76ATG statement relates or by a related person;
(b)any of the chattels in respect of which ad valorem duty has been paid by that person, or a related person, in another jurisdiction; or
(c)any of the chattels that, in the opinion of the Commissioner, are usually not situated in Western Australia.
(4)The section 76ATG statement is not chargeable with duty under subsection (3) if the Commissioner is satisfied that no transaction by means of which the chattels were transferred from the corporation to the person who made the relevant acquisition, or a related person, was effected for the collateral purpose of reducing the duty that otherwise would be chargeable in respect of the relevant acquisition.
(5)If —
(a)a section 76ATG statement relates to a relevant acquisition within section 76ATJ(1)(a)(ii); and
(b)duty charged under Division 2 or 3 (the previous duty) has been paid in respect of a previous acquisition of an interest in the corporation that is taken into consideration under section 76ATJ(1)(a)(ii),
there shall be deducted from the duty payable on the section 76ATG statement the amount that the previous duty would have been if the previous acquisition had occurred immediately before the relevant acquisition occurred.
[Section 76ATH inserted: No. 11 of 2004 s. 29.]
76ATI.Meaning of “listed land‑holder corporation”
(1)In this Division a corporation is a listed land‑holder corporation if —
(a)it is —
(i)a body corporate that is taken to be registered outside Western Australia (for the purposes of the Corporations Act) or that is otherwise formed or incorporated outside Western Australia, not being a body corporate that is —
(I)within paragraphs (a) to (d) of section 66A(4) of the Corporations Law; or
(II)a subsidiary, within the meaning in section 76ATB(6), of a WA company to which Division 3a applies;
or
(ii)a WA company that would be a subsidiary, within the meaning in section 76ATB(6), of a body corporate referred to in subparagraph (i) if that body corporate were a WA company;
and
(b)it is a land‑holder within the meaning in subsection (2) and is listed on a recognised financial market.
(2)A corporation is a land‑holder for the purposes of this Division if at the time of an acquisition of a controlling interest —
(a)it is entitled to land situated in Western Australia and the unencumbered value of the land is not less than $1 000 000, or it is entitled to land situated in Western Australia as a co‑owner of the freehold or of a lesser estate in the land and the value of the whole of the freehold or lesser estate is not less than $1 000 000; and
(b)the value of all land to which the corporation is entitled, whether situated in Western Australia or elsewhere, is 60% or more of the value of all property to which it is entitled, other than property directed to be excluded by subsection (4),
or if the Commissioner determines that paragraphs (a) and (b) would have applied to the corporation at the time of the acquisition of the controlling interest but for a transaction, or series of transactions, which in the Commissioner’s opinion had as its purpose, or one of its purposes, the defeat of the object of this Division.
(3)If the Commissioner makes a determination under subsection (2) —
(a)the Commissioner is to give notice of it to the corporation;
(b)the notice is to contain reasons for the determination;
(c)for the purposes of section 76ATG(1) the acquisition of the controlling interest is taken to have occurred when the notice is given; and
(d)a reference in another provision of this Division to land and chattels situated in Western Australia to which the corporation is entitled includes a reference to property so situated to which it would have been entitled but for the transaction, or series of transactions, to which the determination relates.
(4)The following property of a corporation, or of a trustee or another corporation referred to in subsection (6), shall not be included for the purpose of calculating the value of property under subsection (2)(b) —
(a)cash or money in an account at call;
(b)negotiable instruments, and money on deposit with any person;
(c)property consisting of rights or interests under a sales contract (including a forward sales contract) relating to minerals, primary products or other commodities;
(ca)an amount paid or payable to the corporation or the trustee or other corporation referred to in subsection (6) under a contract or agreement referred to in subsection (7)(b);
(d)money lent by the corporation or a trustee or a related corporation referred to in subsection (6) to —
(i)any person who in relation to the corporation is an associated person; or
(ii)any person at call or in terms that require or allow full repayment to the corporation within 12 months after the money is lent;
(e)in the case of the corporation, property consisting of a shareholding in another corporation referred to in subsection (6) or of a share or interest or entitlement under a trust referred to in that subsection;
(f)a licence or patent or other intellectual property (including knowledge or information that has a commercial value) relating to any process, technique, method, design or apparatus to —
(i)locate, extract, process, transport or market minerals; or
(ii)grow, rear, breed, maintain, produce, harvest, collect, process, transport or market primary products;
(g)stores, stockpiles or holdings of minerals or primary products (whether processed or unprocessed) produced by the corporation or a related person;
(h)future tax benefits (whether in the nature of tax losses, capital losses, foreign losses or foreign tax credits) under the Income Tax Assessment Act 1997 or Income Tax Assessment Act 1936 of the Commonwealth or similar benefits under the laws of another jurisdiction;
(i)any property prescribed for the purposes of this subsection; and
(j)any other property, whether of the same nature as or a different nature from the foregoing, in respect of which it is not shown to the Commissioner’s satisfaction that a reason for ownership by the corporation or the trustee or other corporation referred to in subsection (6) is not for the purpose of defeating the object of this Division.
(5)In forming an opinion for the purposes of subsection (4)(j) the Commissioner may have regard to —
(a)the source of the property and the source of funding for its acquisition;
(b)its nature and its relevance to any business carried on by the corporation or the trustee or other corporation;
(c)the period for which it has been and is likely to remain the property of the corporation or the trustee or other corporation; and
(d)any other matter that the Commissioner considers relevant.
(6)Without limiting the meaning of “entitled”, a corporation is deemed to be entitled to land or property where —
(a)the trustee of a trust is entitled to that land or property and the corporation —
(i)has a share or interest in the trust whether vested or contingent; or
(ii)in the case of a discretionary trust, may benefit from that trust,
but an entitlement under subparagraph (i) is limited to the extent of that share or interest;
(b)in a case where the entitlement to participate referred to in section 76ATK(2) relates to the corporation itself, any of the following corporations is entitled to that land or property —
(i)a corporation that is a subsidiary (as defined in the Corporations Act) of the corporation, or that would be a subsidiary (as so defined) of the corporation if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead;
(ii)any other corporation where the corporation would be entitled if the other corporation were to be wound up, after the time of the acquisition of the controlling interest, to participate in a distribution of the property of the other corporation to an extent not less than 50% of the value of the distributable property;
or
(c)in a case where the entitlement to participate referred to in section 76ATK(2) relates to a holding corporation (as defined in section 76ATK(4)(a)) of the corporation, any of the following corporations is entitled to that land or property —
(i)a corporation that is a subsidiary (as defined in the Corporations Act) of the holding corporation, or that would be a subsidiary (as so defined) of the holding corporation if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead;
(ii)any other corporation where the holding corporation would be entitled if the other corporation were to be wound up, after the time of the acquisition of the controlling interest, to participate in a distribution of the property of the other corporation to an extent not less than 50% of the value of the distributable property.
(7)In determining the entitlement of an entity to land for the purposes of this section or section 76ATL —
(a)if the entity has contracted or agreed to acquire an interest in land, that contract or agreement is to be regarded as having been completed even if it has not yet been completed; and
(b)if the entity has contracted or agreed to dispose of an interest in land but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.
(8)In determining the entitlement of an entity to property other than land for the purposes of this section —
(a)if the entity has contracted or agreed to dispose of an interest in such property, that contract or agreement is to be regarded as having been completed even if it has not yet been completed; and
(b)if the entity has contracted or agreed to acquire an interest in such property but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.
[Section 76ATI inserted: No. 11 of 2004 s. 29; amended: No. 11 of 2005 s. 18, 20 and 25.]
76ATJ.Meaning of “relevant acquisition”
(1)An acquisition is a relevant acquisition for the purposes of this Division —
(a)if by that acquisition a person acquires a controlling interest in a corporation by acquiring an interest —
(i)that is itself a controlling interest in the corporation; or
(ii)that is, when taken with each previous acquisition of an interest in the corporation made by the person, a controlling interest in the corporation;
or
(b)if by that acquisition a person acquires an additional interest in the corporation.
(2)If subsection (1)(b) applies to an acquisition, subsection (1)(a)(ii) does not apply to it.
(3)A previous acquisition of an interest in the corporation is to be taken into consideration under subsection (1)(a)(ii) even if, at the time of that acquisition, the corporation was not a land‑holder within the meaning in section 76ATI(2) or was not listed on a recognised financial market.
[Section 76ATJ inserted: No. 11 of 2004 s. 29.]
76ATK.Meaning of “interest”, “controlling interest” and “additional interest”
(1)For the purposes of this Division, a person acquires an interest in a corporation if the person acquires, or the person and any related person acquire, an entitlement such that the person, or the person and any related person, would be entitled if the property of the corporation or the holding corporation were to be distributed (in the case of a corporation on the basis of a winding up) to participate in a distribution of the property of the corporation or holding corporation.
(2)For the purposes of this Division, a person acquires a controlling interest in a corporation if the person acquires, or the person and any related person acquire, an interest in the corporation such that having acquired that interest the person, or the person and any related person, would be entitled if the property of the corporation or a holding corporation were to be distributed (in the case of a corporation on the basis of a winding up) to participate in a distribution of the property of the corporation or holding corporation to an extent not less than 90% of the value of the distributable property and, in section 76ATJ(1)(a)(i) and (ii) and subsection (3), controlling interest has a corresponding meaning.
(3)For the purposes of this Division, a person acquires an additional interest in a corporation if —
(a)the person has, or the person and any related person have, a controlling interest in the corporation;
(b)the acquisition of that controlling interest gave rise to a liability for duty under this Part; and
(c)the person acquires, or the person and any related person acquire, an interest in the corporation such that having acquired that interest the person, or the person and any related person, would be entitled if the property of the corporation or a holding corporation were to be distributed (in the case of a corporation on the basis of a winding up) to participate further in a distribution of the property of the corporation or holding corporation.
(4)In this section —
holding corporation in relation to a corporation —
(a)means a corporation —
(i)that is an ultimate holding company as defined in section 9 of the Corporations Act;
(ii)of which a corporation is a subsidiary by virtue of Division 6 of Part 1.2 of the Corporations Act or would be a subsidiary by virtue of that Division if “more” in section 46(a)(ii) and (iii) of the Corporations Act were deleted and “not less” were inserted instead; or
(iii)which would be entitled if a corporation were to be wound up to participate in a distribution of the property of that corporation to an extent not less than 50% of the value of the distributable property;
and
(b)is deemed to include —
(i)any trust if the trustee of the trust would be entitled if the corporation or a holding corporation (as defined in paragraph (a)) were to be wound up to participate in a distribution of the property of the corporation or holding corporation to an extent not less than 50% of the value of the distributable property;
(ii)a corporation, if in respect of any trust referred to in subparagraph (i) that corporation —
(I)is entitled to a share or interest in the trust whether vested or contingent; or
(II)in the case of a discretionary trust, may benefit from that trust;
and
(iii)any other corporation, or the trustee of any other trust that would by an application of this subsection be a holding corporation of a corporation that is a holding corporation of the corporation.
[Section 76ATK inserted: No. 11 of 2004 s. 29; amended: No. 11 of 2005 s. 18 and 21.]
76ATL.How dutiable value is determined
(1)Where section 76ATH(1) applies, duty is chargeable in accordance with this section on the basis of the value free of encumbrances (the dutiable value) of the land and chattels situated in Western Australia to which the corporation is entitled.
(2)The method of determining the dutiable value depends on the nature of a relevant acquisition by which a person acquires an interest in a corporation.
(3)Where the relevant acquisition is within section 76ATJ(1)(a)(i) the dutiable value is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation is entitled, as provided by subsection (7), at the time of the acquisition, as the proportion of the property of the corporation to which the person, or the person and any related person, would be entitled, as provided in subsection (8), after the acquisition.
(4)Where the relevant acquisition is within section 76ATJ(1)(a)(ii) the dutiable value —
(a)for the purposes of section 76ATH(1)(b)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation is entitled, as provided by subsection (7), at the time of the acquisition, as the proportion of the property of the corporation to which the person, or the person and a related person, would be entitled, as provided in subsection (8), after the acquisition of the controlling interest;
(b)for the purposes of section 76ATH(1)(b)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation is entitled, as provided by subsection (7), at the time of the acquisition, as the proportion of the property of the corporation to which the person, or the person and a related person, would have been entitled, as provided in subsection (8), before the day that is 3 years before the day of the acquisition of the controlling interest.
(5)Unless subsection (6) applies, where the relevant acquisition is within section 76ATJ(1)(b) the dutiable value —
(a)for the purposes of section 76ATH(1)(c)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation was entitled, as provided by subsection (7), at the time the controlling interest was acquired, as the proportion of the property of the corporation to which the person, or the person and a related person, would be entitled, as provided in subsection (8), after the acquisition of the additional interest;
(b)for the purposes of section 76ATH(1)(c)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation was entitled, as provided by subsection (7), at the time the controlling interest was acquired, as the proportion of the property of the corporation to which the person, or the person and a related person, would have been entitled, as provided in subsection (8), at the time of the immediately preceding relevant acquisition by that person, or a related person.
(6)Where approval has been granted under section 76ATG(4) the dutiable value —
(a)for the purposes of section 76ATH(1)(d)(i), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation was entitled, as provided by subsection (7), at the time the controlling interest was acquired, as the proportion of the property of the corporation to which the person, or the person and a related person, would be entitled, as provided in subsection (8), at the end of the relevant period to which the section 76ATG statement relates;
(b)for the purposes of section 76ATH(1)(d)(ii), is the same proportion of the value of the land and chattels situated in Western Australia to which the corporation was entitled, as provided by subsection (7), at the time the controlling interest was acquired, as the proportion of the property of the corporation to which the person, or the person and a related person, would have been entitled, as provided in subsection (8), before the beginning of the relevant period to which the section 76ATG statement relates.
(7)For the purposes of subsections (3), (4), (5) and (6) the unencumbered value of the land and chattels to which a corporation is entitled at any time is the sum of —
(a)in the case of land and chattels to which the corporation is entitled without reference to subsection (6) of section 76ATI, the unencumbered value of the land and chattels at that time; and