Northern Territory Consolidated Acts Northern Territory Consolidated Acts56C. Interpretation
(1) In this Division:
acquire , in relation to an interest or a shareholding in a land-holding corporation, includes acquire the interest or shareholding in any of the following ways:
(a) the allotment or issue of a share, not being the issue of a share to a member on registration of the corporation;
(b) the redemption, surrender or cancellation of a share;
(c) the variation, abrogation or alteration of a right pertaining to a share;
(ca) the payment of an amount owing for a share;
(cb) a declaration of trust over shares;
(cc) if shares are held subject to a discretionary trust - the addition of a beneficiary or class of beneficiaries to the existing beneficiaries under the trust;
(cd) if shares are held subject to a discretionary trust - a change in control of a corporate beneficiary under the trust and a change in control of the trust if both changes:
(i) occur within a 12 month period; and
(ii) arise from (or substantially from) one transaction or one series of transactions;
(ce) a statutory vesting of shares;
(cf) a merger vesting of shares;
but does not include an acquisition:
(d) 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 2001 that:
(A) has been made with the corporation's creditors or a class of them;
(B) has been approved by the court; and
(C) is not a tax avoidance scheme or part of a tax avoidance scheme;
(iv) the distribution of the estate of a deceased person, including an acquisition that occurs as the result of:
(A) a will, a codicil or an order of a court varying or modifying the provisions of a will or codicil; or
(B) 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
(v) an arrangement for the provision of finance, or the enforcement or termination of such an arrangement.
corporation has the same meaning as in the Corporations Act 2001.
director has the same meaning as in the Corporations Act 2001.
entitled means beneficially entitled.
interest has the meaning in section 56Q, and includes a significant interest.
interposed trust , see section 124-1045 of the Income Tax Assessment Act 1997 (Cth).
land includes anything fixed to the land (irrespective of whether it would be regarded as a fixture at common law).
linked entity , of a corporation, has the meaning in section 56NA(1).
listed corporation means a corporation that is on the official list of a recognised financial market if the listing is not a tax avoidance scheme or part of a tax avoidance scheme.
listed unit trust scheme means a unit trust scheme that is on the official list of a recognised financial market if the listing is not a tax avoidance scheme or part of a tax avoidance scheme.
relevant period , in relation to a relevant acquisition, means:
(a) the period of 3 years ending on the date of the relevant acquisition; or
(b) if a person makes a relevant acquisition because the person acquires an interest by exercising a right to acquire the interest - the period commencing 3 years before the day on which the person or a related person acquired the right to acquire the interest and ending on the date of the relevant acquisition.
share means a share in the share capital of a corporation and includes stock and an interest in a share or stock, and shareholding has a corresponding meaning.
significant interest has the meaning in section 56Q(4).
unit means a right or interest, whether described as a unit or sub-unit or otherwise, of a beneficiary under a unit trust scheme, and includes an interest in a unit.
unit trustee means a trustee of a unit trust scheme.
unlisted unit trust scheme means a unit trust scheme that is not a listed unit trust scheme.
(3) For the purposes of this Division, the following persons are related:
(a) natural persons who are spouses of each other, or who are related as parent and child;
(b) related corporations;
(c) trustees of the same trust, or of different trusts if there is a beneficiary common to both trusts;
(d) a natural person and a corporation if the natural person is a majority shareholder, director or secretary of the corporation or a related corporation;
(e) a natural person and a trustee of a trust of which the natural person is a beneficiary;
(f) a corporation and a trustee of a trust of which:
(i) the corporation, or a majority shareholder, director or secretary of the corporation, is a beneficiary; or
(ii) a related corporation is a beneficiary;
(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) in relation to the acquisition of an interest in a corporation by a declaration of trust over shares - the trustees and beneficiaries of the trust;
(i) in relation to an acquisition of an interest in a corporation by virtue of the addition of a beneficiary or class of beneficiaries to the existing beneficiaries under a discretionary trust - the trustees of, and the additional beneficiary or class of beneficiaries under, the trust.
(4) But a person will not be regarded as related to another if the Commissioner is satisfied that they are not, and have not been, acting in concert in relation to the acquisition of interests in a corporation.
(6) For the purposes of this Division, and subject to section 56CA, the entitlement of a person to participate as a shareholder in the distribution of the property of a corporation on a winding up of the corporation is an entitlement to an amount calculated as if:
(a) the winding up were carried out in accordance with the constitution or rules of the corporation and the law relevant to the winding up, as the constitution or rules and law exist at the time of the winding up; or
(b) the person (whether acting alone or together with related persons) had, immediately before the winding up, paid up any uncalled amount for the shares in the corporation and exercised all powers and discretions exercisable by the person (whether acting alone or together with related persons) by reason of having acquired an interest in the corporation to:
(i) effect or compel an alteration to the constitution or rules;
(ii) vary the rights conferred by shares in the corporation; or
(iii) effect or compel the substitution or replacement of shares in the corporation with other shares in the corporation,
in such manner as to maximize that amount,
whichever of the amounts under paragraph (a) or (b) results in the greater amount, unless the Commissioner determines, where the calculation under paragraph (b) results in the greater amount, that the amount of the entitlement should be calculated under paragraph (a).
(7) For the purposes of this Division, and subject to section 56CA, 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 a condition, the outcome of a contingency or the exercise of a 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.
(8) For the purposes of this Division, if the acquisition of an interest in a corporation is, or is to be, evidenced by a transfer of shares, the acquisition shall be deemed to occur on the date the transfer is made.
(9) Farming land is not to be taken into account as land of a land-holding corporation for the purpose of assessing duty on a relevant acquisition if:
(a) the transaction would, assuming it were a conveyance of the farming land between the parties to the relevant acquisition, be exempt from duty under section 87; and
(b) the parties acquiring the relevant interest intend that the farming land will continue to be used solely or principally for farming purposes; and
(c) the parties from whom the relevant interest is acquired held the relevant interest for at least 5 years before the date of the relevant acquisition or the land-holding corporation acquired the farming land before those parties acquired their interest in it.
(10) For this Division, if an interest or a shareholding in a corporation is acquired by virtue of a declaration of trust over shares:
(a) the interest or shareholding vested or to be vested in the declarant is taken to be the interest or shareholding acquired;
(b) the declarant is taken to be the person who acquired the interest or shareholding; and
(c) the acquisition is taken to have occurred at the time the declaration is made.
(11) For this Division, if an interest or a shareholding in a corporation is acquired by virtue of the addition of a beneficiary or class of beneficiaries to the existing beneficiaries under a discretionary trust:
(a) the interest or shareholding over which the trust is declared is taken to be the interest or shareholding acquired;
(b) the trustees are taken to be the persons who acquired the interest or shareholding; and
(c) the acquisition is taken to have occurred at the time of the addition.
(11A) For this Division, the addition of a beneficiary or class of beneficiaries to the existing beneficiaries under a discretionary trust includes any of the following:
(a) the addition of a beneficiary who is a natural person or a body corporate;
(b) the addition of a class of beneficiaries the members of which are natural persons, bodies corporate or both;
(c) the addition of a person or class of persons in whom the whole or part of the trust property vests if the trustee does not make a determination to vest that whole or part;
(d) the transfer or other disposition by a beneficiary of his or her beneficial interest under the trust.
(11B) If the
effect of an amendment or variation of the terms of a
non-discretionary trust
is to create a discretionary trust, this Division applies in relation to the
discretionary trust as if, at the time the amendment or variation is made:
(a) there are beneficiaries or classes of beneficiaries already existing under the discretionary trust; and
(b) the beneficiaries or classes of beneficiaries under the discretionary trust are added to the existing beneficiaries or classes of beneficiaries.
(12) For this Division, if an interest or a shareholding in a corporation is acquired by virtue of a change in control of a beneficiary under, and a change of or in control of a trustee of, a discretionary trust mentioned in paragraph (cd) of the definition of acquire :
(a) the interest or shareholding over which the trust is declared is taken to be the interest or shareholding acquired;
(b) the trustees are taken to be the persons who acquired the interest or shareholding; and
(c) the acquisition is taken to have occurred at the time of the later of the changes.
(13) For this Division, if an interest or a shareholding in a corporation is acquired by virtue of a statutory vesting:
(a) the interest or shareholding that vests in the person or body concerned is taken to be the interest or shareholding acquired;
(b) the person or body in whom the interest or shareholding vests is taken to be the person or body who acquired the interest or shareholding; and
(c) the acquisition is taken to have occurred at the time the law by or under which the vesting occurs determines when the interest or shareholding vests in the person or body.
(14) The following provisions apply to a merger vesting of shares in a land-holding corporation:
(a) for a merger vesting mentioned in section 4E(2):
(i) a 100% shareholding in each of the merging entities is taken to be the shareholding acquired; and
(ii) entity A is taken to be the person who acquired the shareholding; and
(iii) the acquisition is taken to have occurred when the merger is completed;
(b) for a merger vesting mentioned in section 4E(3):
(i) a 50% shareholding in each of the merging entities is taken to be the shareholding acquired; and
(ii) the merging entities are taken together to be the persons who acquired the shareholding; and
(iii) the acquisition is taken to have occurred when the merger is completed;
(c) for a merger vesting mentioned in section 4E(4):
(i) a 100% shareholding in, or in each of, the merging entity or entities is taken to be the shareholding acquired; and
(ii) entity B is taken to be the person who acquired the shareholding; and
(iii) the acquisition is taken to have occurred when the merger is completed.