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STAMP DUTIES ACT 1923 - SECT 91

STAMP DUTIES ACT 1923 - SECT 91

91—Interpretation

        (1)         In this Part—

"asset" includes any form of property;

"associate"—see subsection (8);

"close personal relationship" means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—

            (a)         the relationship between a legally married couple; or

            (b)         a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;

Note—

Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.

"constituent documents" of a relevant entity means—

            (a)         for a company—its constitution; or

            (b)         for a unit trust scheme—the instruments constituting or governing the administration of the scheme;

"corresponding law" means a law of another State, or a Territory, of the Commonwealth that imposes duties corresponding to those imposed by this Act;

"direct interest"—see section 93(1);

"executive officer" of a company means a person who is concerned in, or takes part in, the management of the company (regardless of the person's designation and whether or not the person is a director of the company);

"group" means a group of associates;

"hold"—a person "holds" a share or unit in a relevant entity if the person—

            (a)         is registered as the holder; or

            (b)         is beneficially entitled to the share or unit; or

            (c)         controls the exercise of rights attached to the share or unit;

"indirect interest"—see section 95;

"land asset" and "local land asset"—see section 92;

"land holding entity"—see section 98;

"listed company" means a company that is limited by shares and some or all of those shares are quoted on a recognised financial market;

"listed trust" means a unit trust scheme some or all of the units in which are quoted on a recognised financial market;

"motor vehicle" and "trailer" have the same meanings as these expressions respectively have in the Motor Vehicles Act 1959 ;

"notional interest"—see section 96;

"prescribed interest" means—

            (a)         in relation to a private company or a private unit trust scheme—a proportionate interest in the entity of 50% or more; and

            (b)         in relation to a listed company or a public unit trust scheme—a proportionate interest of 90% or more;

"private company" means—

            (a)         a company that is limited by shares but whose shares are not quoted on a recognised financial market; or

            (b)         a company that is not limited by shares,

but does not include a company excluded from the ambit of this definition by the regulations;

"private unit trust scheme" means a unit trust scheme other than a listed trust or a widely held trust, but does not include a unit trust scheme that is an approved deposit fund or a pooled superannuation trust within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth;

"proportionate interest" in a relevant entity means—

            (a)         for a person or group that has a direct or indirect interest in the entity—the percentage representing the extent of that interest; or

            (b)         for a person or group that has both a direct and an indirect interest in the entity—an aggregate percentage representing the extent of both those interests;

"public unit trust scheme" means a listed trust or a widely held trust;

"related"—see section 94;

"relevant entity" means—

            (a)         a private company; or

            (b)         a listed company; or

            (c)         a private unit trust scheme; or

            (d)         a public unit trust scheme;

"significant interest" in a relevant entity means a proportionate interest in the entity of 50% or more;

"underlying"—the underlying assets of a relevant entity include both the assets held beneficially by the entity and its notional interests in the assets of related entities;

"unit" in a unit trust scheme means—

            (a)         a right to participate in profits, income or distribution of assets under the scheme; or

            (b)         a right to any such right of participation;

"unit trust scheme" means an arrangement under which investors may acquire rights to participate, as beneficiaries under a trust, in profits, income or distribution of assets arising from the acquisition, holding, management, use or disposal of property;

"widely held trust"—see section 97;

"winding up"—a unit trust scheme is wound up if the assets subject to the scheme are distributed in their entirety.

        (2)         Property is taken to be held beneficially by a unit trust scheme if it is held by the trustees of the scheme in trust for the unitholders.

        (3)         A relevant entity or other person that is an object of a discretionary trust is to be regarded, for the purposes of this Part, as beneficially entitled to the trust property unless—

            (a)         the relevant entity or other person satisfies the Commissioner that this subsection operates unreasonably in the circumstances of the particular case; and

            (b)         the Commissioner determines that the relevant entity or other person is not, in the circumstance of the particular case, to be regarded as beneficially entitled to the trust property.

        (4)         A relevant entity or other person that is a partner in a partnership is to be regarded, for the purposes of this Part, as beneficially entitled to a proportionate share in each and every asset of the partnership.

        (5)         For the purposes of subsection (4) but subject to subsection (6), a proportionate share of a partner will be represented by the greater of the following:

            (a)         the relative entitlement of the partner to participate in the surplus property of the partnership after the realisation of assets and the payment, satisfaction or discharge of debts and liabilities;

            (b)         the relative capital contribution of the partner (being equity and any loan capital).

        (6)         The Commissioner may—

            (a)         if satisfied that it would be reasonable and appropriate to do so in the circumstances of the particular case—

                  (i)         determine that the paragraph under subsection (5) that provides the lesser proportionate share (rather than the greater) will be the paragraph that applies; or

                  (ii)         determine that the proportionate share of a partner will be represented in some other manner; and

            (b)         if paragraph (b) of subsection (5) applies, determine not to take loan capital into account if the Commissioner is satisfied that the loan was entered into as part of a genuine business arrangement and not as an arrangement to avoid or reduce duty under this Part.

        (7)         Subsections (4) and (5) do not limit the operation of any other section of this Act (but not so as to impose double duty with respect to the same transaction).

        (8)         A person is an "associate" of, or "associated" with, another if—

            (a)         they are married or in a close personal relationship; or

            (b)         1 is the parent, child, brother or sister of the other; or

            (c)         they are in partnership; or

            (d)         they are companies which are related bodies corporate for the purposes of the Corporations Act 2001 of the Commonwealth; or

            (e)         1 is a company and the other is a director or executive officer of, or shareholder in, the company; or

            (f)         they are both trustees of a trust or 1 is a trustee of a trust and the other is a beneficiary of the trust; or

            (g)         a chain of relationships can be traced between them under 1 or more of the above paragraphs,

(but a person is not to be regarded as an associate of another if the Commissioner is satisfied that the association has not arisen as a result of a common commercial interest or purpose and they will act entirely independently of each other).

        (9)         An obligation or liability imposed under this Part on a unit trust scheme attaches to the trustees for the time being of the scheme jointly and severally.

        (10)         An obligation or liability imposed under this Part on a group attaches to the members of the group jointly and severally.