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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Business Tax Review (Assessment)
Bill (No. 2) 2003
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Stamp duty changes
Division 1 -- Stamp Act 1921 amended
3. The Act amended 3
4. Section 4 amended 3
5. Section 4A amended 4
6. Section 17 amended 4
7. Section 17B amended 5
8. Section 17C amended 5
9. Section 27 amended 5
10. Section 28 amended 7
11. Section 29 amended 7
12. Section 30 amended 8
13. Section 31B replaced 8
14. Section 31C amended 13
15. Sections 39 and 40 inserted 13
16. Part IIIA (s. 49-50D) repealed and transitional 15
17. Section 63 amended 15
18. Section 63AA amended 20
19. Section 63AB amended 22
20. Section 63AC amended 26
21. Section 63AD amended 28
22. Sections 63ADA and 63ADB inserted 31
23. Section 63AE amended 34
24. Section 63AF amended and transitional 35
page i
208--3
Business Tax Review (Assessment) Bill (No. 2) 2003
Contents
25. Sections 63AG to 63AJ inserted and transitional 36
26. Section 63A amended 41
27. Section 69 amended and transitional 41
28. Section 70 amended 41
29. Section 72 amended 43
30. Section 73AB inserted 43
31. Section 73D amended 44
32. Section 73DAA inserted 46
33. Sections 73DB to 73DE inserted 47
34. Section 73G inserted 54
35. Section 74 amended 56
36. Section 74A amended 61
37. Sections 74B and 74C inserted 62
38. Section 75 amended 74
39. Section 75AD amended 74
40. Section 75AG amended and transitional 74
41. Section 75CA inserted 75
42. Section 75D amended 76
43. Section 75E amended 76
44. Section 75G amended 78
45. Section 75H amended 78
46. Section 75HA amended 78
47. Section 75I amended 80
48. Section 75J amended 81
49. Section 75JA amended 81
50. Section 75JB amended and transitional 82
51. Section 75JBA amended 87
52. Section 75JC amended 87
53. Section 75JD amended 87
54. Section 75JDA amended 88
55. Section 75JE amended 88
56. Section 75JF amended 90
57. Section 76 amended 90
58. Section 76A amended 91
59. Section 76AA amended 91
60. Section 76AB inserted 91
61. Section 76AG amended 93
62. Section 76AH amended 94
63. Section 76AI amended 94
64. Section 76AJ amended 94
65. Section 76AM amended 95
page ii
Business Tax Review (Assessment) Bill (No. 2) 2003
Contents
66. Section 76AN amended 95
67. Section 76AO amended 95
68. Section 76AP amended 96
69. Section 76AQ amended 96
70. Section 76B amended 97
71. Section 76D amended 98
72. Section 76G amended 99
73. Section 76H amended 99
74. Section 76I amended 99
75. Section 77 amended 99
76. Section 77A inserted 100
77. Section 79 amended 102
78. Section 80 repealed 102
79. Part IIIE (s. 81-90A) replaced 102
80. Section 92 amended 113
81. Section 92A amended 115
82. Section 92B amended 115
83. Section 96 amended 115
84. Parts IV (s. 100-107) and IVAC (s. 112H-112HA)
repealed 115
85. Part IVB (s. 112I-112P) replaced 116
86. Section 119 amended 133
87. Second Schedule amended 133
88. Third Schedule amended 134
Division 2 -- Transitional provisions
89. Registered pooled investment trusts 136
90. Determinations under section 75JBA or 75JC 137
91. Agreements for lease 138
92. Mortgages 138
93. Life insurance 138
94. Hire of goods 139
Division 3 -- Amendments to other Acts
95. Taxation Administration Act 2003 amended 140
96. Totalisator Agency Board Betting Act 1960 amended 141
Part 3 -- Stamp duty on workers
compensation insurance policies
97. The Act amended 142
98. Section 92 amended and transitional 142
99. Second Schedule amended 143
page iii
Business Tax Review (Assessment) Bill (No. 2) 2003
Contents
100. Taxation Administration Act 2003 amended and
transitional 143
Part 4 -- Debits Tax Assessment
Act 2002 amended
101. The Act amended 144
102. Section 5 amended 144
103. Section 9 amended 144
104. Section 10 amended 144
105. Section 12 amended 144
106. Section 14 amended 145
Part 5 -- Minor amendments
107. Stamp Act 1921 amended 146
108. Taxation Administration Act 2003 amended 147
109. Land Tax Assessment Act 2002 amended 148
page iv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in committee)
Business Tax Review (Assessment)
Bill (No. 2) 2003
A Bill for
An Act to amend the --
· Stamp Act 1921;
· Taxation Administration Act 2003;
· Debits Tax Assessment Act 2002; and
· Land Tax Assessment Act 2002,
to make consequential amendments and transitional arrangements
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Business Tax Review (Assessment)
Act (No. 2) 2003.
5 2. Commencement
(1) This Act, except Parts 3, 4 and 5, comes into operation on a day
fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
10 (3) Part 3 comes into operation on 1 July 2004.
(4) Part 4 comes into operation on the day on which this Act
receives the Royal Assent.
(5) Part 5 is deemed to have come into operation immediately after
the Taxation Administration Act 2003 came into operation.
page 2
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 3
Part 2 -- Stamp duty changes
Division 1 -- Stamp Act 1921 amended
3. The Act amended
The amendments in this Division are to the Stamp Act 1921*.
5 [* Reprinted as at 3 August 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 368 and
Act No. 21 of 2003.]
4. Section 4 amended
10 (1) The amendments in this section are to section 4(1).
(2) The definition of "dutiable statement" is deleted and the
following definition is inserted instead --
"
"dutiable statement" means a statement required to be
15 lodged under section 31B, 31C, 63AE, 63AJ,
73DAA(1), 73DE, 75HA, 76AG, 76AN, 77A, or
92A;
".
(3) The definition of "marketable security" is amended in
20 paragraph (c) as follows:
(a) by deleting "or subunit";
(b) in subparagraph (ii) after "section 63AC(2)" by
inserting --
"
25 or registered as a provisional public
trust under section 63ADA(2)
".
page 3
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 5
(4) The definitions of "section 76AG statement" and "section 76AN
statement" are amended by deleting "prepared" and inserting
instead --
" lodged ".
5 (5) The definition of "WA company" is amended by inserting after
"taken" --
" , for the purposes of the Corporations Act, ".
(6) The following definitions are inserted in the appropriate
alphabetical positions --
10 "
"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
15 be made under the State Entities (Payments)
Act 1999 by a person that is a State entity as
defined in that Act;
"supply", in relation to an amount of GST, has the
same meaning as it has in the Commonwealth
20 A New Tax System (Goods and Services Tax)
Act 1999;
".
5. Section 4A amended
Section 4A(3) and (4) are repealed.
25 6. Section 17 amended
Section 17(1) is amended as follows:
(a) by deleting "on which duty is payable";
page 4
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 7
(b) by deleting paragraph (c) and "or" after it and inserting
instead --
"
(c) if the instrument is a dutiable statement -- the
5 person required to lodge the dutiable statement;
or
".
7. Section 17B amended
Section 17B(1) is repealed and the following subsection is
10 inserted instead --
"
(1) A person who is, or may be, liable to pay duty on an
instrument must lodge the instrument with the
Commissioner within 2 months after the date on which
15 the instrument was first executed.
Penalty: $5 000.
".
8. Section 17C amended
After section 17C(3) the following subsection is inserted --
20 "
(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).
25 ".
9. Section 27 amended
(1) Section 27(2) is amended as follows:
(a) by deleting paragraph (a) and "and" after it and inserting
instead --
30 "
(a) affords any evidence of --
(i) an acquisition to which section 31B
applies;
page 5
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 9
(ii) a transfer to which section 31C applies;
(iii) a disposition to which
section 73DAA(1) applies; or
(iv) a transaction referred to in
5 section 77A(1);
and
";
(b) by deleting paragraph (b)(i) and "but" after it and
inserting instead --
10 "
(i) relating to an acquisition, transaction,
disposition for which a dutiable
statement is required to be lodged under
section 31B, 31C, 73DAA(1) or 77A;
15 but
";
(c) by deleting "prepared under section 31B(1) or 31C(1)"
and inserting instead --
"
20 lodged under section 31B, 31C, 73DAA(1)
or 77A
";
(d) by deleting "the transaction" and inserting instead --
" the acquisition, transaction, disposition ".
25 (2) Section 27(3) is amended as follows:
(a) by deleting "a transaction" and inserting instead --
" an acquisition, transaction ";
(b) by deleting "prepared under section 31B or 31C" and
inserting instead --
30 "
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
page 6
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 10
required to be lodged under section 73DAA(1), where
the instrument or document is
".
10. Section 28 amended
5 Section 28(1)(b) is amended as follows:
(a) by deleting "prepared under section 31B(1) or 31C(1)"
and inserting instead --
"
lodged under section 31B, 31C, 73DAA(1)
10 or 77A
";
(b) by deleting "transaction" and inserting instead --
" acquisition, transaction, disposition ".
11. Section 29 amended
15 (1) Section 29(1) is amended as follows:
(a) after "section 27(2)" by inserting --
"
(other than a document relating to a disposition to
which section 73DAA(1) applies)
20 ";
(b) by deleting "or 31C(1)" in the first place where it occurs
and inserting instead --
" , 31C(1) or 77A(1) ";
(c) by deleting "prepared under section 31B(1) or 31C(1)"
25 and inserting instead --
" lodged under section 31B, 31C or 77A ";
(d) by deleting "transaction" in both places where it occurs
and inserting instead --
" acquisition, transaction ".
page 7
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 12
(2) Section 29(2a) is amended as follows:
(a) by deleting "a transaction" and inserting instead --
" an acquisition, transaction ";
(b) by deleting "prepared under section 31B(1) or 31C(1)"
5 and inserting instead --
" lodged under section 31B, 31C or 77A ";
(c) by deleting "has not been prepared" and inserting
instead --
" has not been lodged ".
10 12. Section 30 amended
Section 30(1)(b) is amended as follows:
(a) after "section 27(2)" by inserting --
"
(other than a document relating to a disposition
15 to which section 73DAA(1) applies)
";
(b) by deleting "prepared under section 31B or 31C(1)" and
inserting instead --
" lodged under section 31B, 31C or 77A ".
20 13. Section 31B replaced
Section 31B is repealed and the following section is inserted
instead --
"
31B. Payment of duty on statements in absence of
25 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.
30 Penalty: $20 000.
page 8
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 13
(2) A dutiable statement must be prepared in an approved
form.
(3) Subject to subsection (8), this section applies to any of
the following --
5 (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
10 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
15 tenement if the land, lease or tenement is
situated in Western Australia;
(b) the acquisition of beneficial ownership of
chattels (as defined in section 70) and other
property (as defined in section 70);
20 (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
25 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
30 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
page 9
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 13
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
5 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")
10 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
15 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
20 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
25 is --
(i) chargeable with duty under item 4 or 6
of the Second Schedule; or
(ii) exempt from duty;
(b) an acquisition evidenced by an instrument if the
30 instrument is chargeable with duty under item 4
of the Second Schedule;
page 10
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 13
(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
5 acquisition effected by an instrument that is --
(i) exempt from duty; or
(ii) chargeable with duty under item 6 of the
Second Schedule;
(d) an acquisition which, if it were effected by an
10 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
15 Second Schedule;
(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
20 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 --
25 (i) dutiable (as defined in section 70); or
(ii) a transaction to which subsection (1)
applies.
(9) A dutiable statement lodged under subsection (1) is
taken to be an instrument of conveyance of property
30 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
page 11
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 13
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
5 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
10 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
15 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 section 17A, as having been first executed
20 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
25 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
30 duty paid.
".
page 12
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 14
14. Section 31C amended
(1) Section 31C(1) is amended by deleting "must prepare a dutiable
statement" and inserting instead --
"
5 must, within 2 months after the transfer, lodge a
statement with the Commissioner
".
(2) Section 31C(2) is amended by inserting after "must be" --
" prepared ".
10 (3) Section 31C(2a) is amended by deleting "prepared" and
inserting instead --
" lodged ".
15. Sections 39 and 40 inserted
After section 38 the following sections are inserted in Part III --
15 "
39. Determining whether securities are situated in
Western Australia
(1) A marketable security or right in respect of shares of a
WA company is, for the purposes of a stamp Act, taken
20 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
25 foreign company is, for the purposes of a stamp Act,
taken to be situated in Western Australia if it is
registered on a register kept by the company in
Western Australia.
page 13
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 15
(3) A unit in a unit trust scheme is, for the purposes of a
stamp Act, taken to be situated in Western Australia
if --
(a) the scheme's principal register is kept in
5 Western Australia; or
(b) where the scheme's principal register is not
kept in Western Australia, the scheme's
manager, or if the scheme does not have a
manager, the trustee, is --
10 (i) an individual, resident in Western
Australia;
(ii) a WA company; or
(iii) a foreign company with a registered
office under the Corporations Act in
15 Western Australia.
(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
20 Western Australia even if it is registered on a register
in Western Australia.
(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
25 section 1070A(4) of that Act.
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 --
30 (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
page 14
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 16
quoted on the Australian Stock Exchange
Limited; and
(b) disregarding any provision in the constitution
or governing rules of the issuer providing for
5 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
10 security or right if the issuer were to be voluntarily
wound up on the day of the transfer.
".
16. Part IIIA (s. 49-50D) repealed and transitional
(1) Part IIIA is repealed.
15 (2) The amendments effected by this section and
sections 87(2), 88(2) and 88(4) do not apply in relation to a
blank cheque provided by a financial institution to the holder of
a cheque account before this section came into operation
regardless of when the cheque is drawn.
20 17. Section 63 amended
(1) Section 63(1) is amended as follows:
(a) by inserting in the appropriate alphabetical positions the
following definitions --
"
25 "custodian trustee" has the same meaning as it has in
section 15 of the Trustees Act 1962;
"disposition", in relation to a unit, includes --
(a) a transfer or other disposition of the unit;
(b) the allotment or issue of the unit;
30 (c) the redemption, surrender or cancellation of
the unit;
page 15
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 17
(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
5 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
10 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
15 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 --
20 (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,
25 transfer, or instrument chargeable as a
conveyance;
"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;
30 ";
(b) in the definitions of "trustee" and "unit trust scheme"
after "means" by inserting --
" , unless the contrary intention appears, ".
page 16
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 17
(2) After section 63(1) the following subsection is inserted --
"
(1aa) For the purposes of sections 63AA(2a)(a) and
63AB(2)(g), the Commissioner may treat 2 or more
5 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;
10 (c) the use of the parcels of land; and
(d) any other matter the Commissioner considers to
be relevant.
".
(3) Section 63(1a) and (1b) are repealed.
15 (4) Section 63(2) is amended by deleting "disposition of a unit or
sub-unit -- " and inserting instead --
" other disposition of a unit -- ".
(5) Section 63(4) is repealed and the following subsections are
inserted instead --
20 "
(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
25 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
30 (b) a person is to be treated as beneficially entitled
to a unit held by the person or by a related
person.
page 17
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 17
(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
5 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
10 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
15 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;
20 (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
25 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;
30 (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
page 18
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 17
(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
5 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;
10 (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
15 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
20 (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
25 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 --
30 (a) the property subject to the discretionary trust,
unless the Commissioner determines otherwise;
or
(b) such part of that property as the Commissioner
determines.
35 ".
page 19
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 18
18. Section 63AA amended
(1) Section 63AA(1) is repealed and the following subsections are
inserted instead --
"
5 (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.
10 (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).
15 (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,
20 (g)(i).
".
(2) Section 63AA(2) is amended as follows:
(a) by deleting "the Commissioner is satisfied that";
(b) in paragraph (a) before "the unit" by inserting --
25 " the Commissioner is satisfied that ";
(c) after paragraph (a) by deleting "and" and inserting --
"
(ab) in the case of an application for registration of a
unit trust scheme as a pooled investment
30 trust -- the unit trust scheme is not to be treated
as a sub-trust under subsection (2a); and
";
page 20
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 18
(d) in paragraph (b) before "registration" by inserting --
" the Commissioner is satisfied that ".
(3) After section 63AA(2) the following subsection is inserted --
"
5 (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;
10 (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
15 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
20 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,
25 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.
".
(4) After section 63AA(3) the following subsection is inserted --
30 "
(3a) Subject to this Part, registration of a unit trust scheme
under subsection (2) has effect for a period of 3 years.
".
page 21
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 19
(5) After section 63AA(4) the following subsection is inserted --
"
(4a) Subject to section 17 of the Taxation Administration
Act 2003, if the Commissioner registers a unit trust
5 scheme as a pooled investment trust or an equity trust
the Commissioner shall make any reassessment
necessary to give effect to that registration.
".
19. Section 63AB amended
10 (1) Section 63AB(2) is repealed and the following subsections are
inserted instead --
"
(1a) For the purposes of this section, a person and another
person are related if they are related as provided in
15 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 --
20 (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
25 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
30 capacity as a trustee of a complying
superannuation fund within the meaning
of the Superannuation Guarantee
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Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 19
(Administration) Act 1992 of the
Commonwealth;
(ii) holds the unit in the unit holder's
capacity as a trustee of a complying
5 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
10 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
15 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
20 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
25 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
30 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
35 scheme each unit holder in which is of a
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Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 19
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
5 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
10 Australia;
(x) is a body corporate that the
Commissioner is satisfied --
(I) corresponds to a company
referred to in subparagraph (iv)
15 under the law of an external
Territory or a country other
than Australia; and
(II) holds the unit for a purpose that
corresponds to the purpose
20 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
25 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
30 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
35 scheme of not less than $3 000 000;
page 24
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 19
(f) the unit trustee, in the unit trustee's capacity as
trustee of the scheme, holds interests in land
(whether or not situated in Western Australia)
that together have an unencumbered value of
5 not less than $50 000 000;
(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
10 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;
15 (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) --
20 "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 --
25 (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
30 $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
page 25
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 20
management and investment services to
persons of the kind described in
subsection (2)(c) if --
(i) that business is not conducted to
5 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.
10 (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.
".
15 (2) Section 63AB(4) is amended as follows:
(a) by deleting "(2)(b) and (c) and";
(b) by deleting all of the subsection after "person and" and
inserting instead --
"
20 all units held by another person if those persons are
related as provided in section 63(5).
".
(3) Section 63AB(5), (6), (7) and (8) are repealed.
20. Section 63AC amended
25 (1) Section 63AC(1) is amended by deleting "not later than one
year after the day on which the first units under the scheme are
issued." and inserting instead --
"
if the application is made before the end of the start up
30 period.
".
page 26
Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 20
(2) Section 63AC(2) is amended as follows:
(a) by deleting "a period of one year beginning on the day
on which the first units under the scheme are issued (the
"start up period")" and inserting instead --
5 " the start up period ";
(b) by deleting paragraph (a) and "and" after it and inserting
instead --
"
(a) the Commissioner is satisfied that, subject to
10 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
15 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
";
20 (c) in paragraph (b) by deleting "section 63AB(2)(a), (b),
(c) and (d)" and inserting instead --
" section 63AB(2)(b), (c), (d), (e), (f) and (g) ".
(3) After section 63AC(2) the following subsection is inserted --
"
25 (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
30 (b) the Commissioner is satisfied that --
(i) the scheme otherwise satisfies the
criteria for registration referred to in
subsection (2)(a); and
page 27
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 21
(ii) the body corporate will be a funds
manager by the end of the start up
period,
the Commissioner may grant the scheme interim
5 registration as a pooled investment trust under
subsection (2).
".
(4) After section 63AC(3) the following subsection is inserted --
"
10 (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
15 registration.
".
21. Section 63AD amended
(1) Section 63AD(1) is repealed and the following subsection is
inserted instead --
20 "
(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
25 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
30 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);
page 28
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 21
(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
5 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
10 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)).
15 ".
(2) Section 63AD(2) is amended by deleting "event." and inserting
instead --
"
event, unless it is taken to have occurred under
20 subsection (4) or (6).
".
(3) Section 63AD(3)(b) is amended by deleting "first units under
the scheme were issued." and inserting instead --
" start up period. ".
25 (4) Section 63AD(4) is amended as follows:
(a) after "has occurred," by inserting --
"
a disqualifying event is taken to have occurred and
";
30 (b) by deleting paragraph (c) and inserting the following
paragraph instead --
"
(c) notify the unit trustee of --
(i) the cancellation;
page 29
Business Tax Review (Assessment) Bill (No. 2) 2003
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Division 1 Stamp Act 1921 amended
s. 21
(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 ".
(5) Section 63AD(5)(b) is amended by deleting "first units under
the scheme were issued." and inserting instead --
" start up period. ".
(6) Section 63AD(6) is amended as follows:
10 (a) after "payable" by inserting --
"
, a disqualifying event is taken to have occurred and
";
(b) by deleting paragraph (b) and inserting the following
15 paragraph instead --
"
(b) notify the unit trustee of the matters referred to
in subsection (4)(c).
".
20 (7) After section 63AD(7) the following subsection is inserted --
"
(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
25 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
30 in subsection (4)(c).
".
page 30
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 22
22. Sections 63ADA and 63ADB inserted
After section 63AD the following sections are inserted --
"
63ADA. Registration of private unit trust scheme as
5 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.
10 (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
15 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
20 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
25 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
30 scheme as a provisional public trust; and
(b) if the Commissioner decides not to register a
unit trust scheme as a provisional public trust,
page 31
Business Tax Review (Assessment) Bill (No. 2) 2003
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Division 1 Stamp Act 1921 amended
s. 22
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
5 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
10 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.
15 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
20 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 --
25 (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
30 (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.
page 32
Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 22
(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.
5 (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
10 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
15 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 --
20 (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)
25 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.
30 (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
page 33
Business Tax Review (Assessment) Bill (No. 2) 2003
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Division 1 Stamp Act 1921 amended
s. 23
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
5 (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 --
10 (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,
15 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
20 take into account any matter that the Commissioner
considers to be relevant.
".
23. Section 63AE amended
(1) Section 63AE(1) is amended by deleting "prepare a dutiable
25 statement." and inserting instead --
"
within 2 months after the day on which the
disqualifying event occurred lodge a statement with the
Commissioner in relation to the event.
30 ".
(2) Section 63AE(2) is amended as follows:
(a) in paragraph (a) by inserting after "be" --
" prepared ";
page 34
Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 24
(b) in paragraph (c) after "registration" by inserting --
" under section 63AA(2) ";
(c) after paragraph (c) by deleting "and";
(d) in paragraph (d) by deleting "first units under the
5 scheme were issued" and inserting instead --
" start up period ";
(e) after paragraph (d) by deleting the full stop and
inserting --
"
10 ; 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
15 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
20 chargeable with duty under section 73D had the
scheme not been registered as a provisional
public trust.
".
24. Section 63AF amended and transitional
25 (1) Section 63AF(1) is amended as follows:
(a) by deleting "prepared" and inserting instead --
" lodged ";
(b) by deleting "or (d)" and inserting instead --
" , (d) or (e) ".
30 (2) Section 63AF(2) is repealed.
(3) However, section 63AF(2) of the Stamp Act 1921 continues to
apply in relation to an instrument of conveyance or transfer
page 35
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 25
disclosed in a dutiable statement if the instrument was executed
before this section came into operation, and in any such case the
reference in section 63AF(2) to item 4A is to be read as a
reference to that item as in force from time to time prior to its
5 repeal by this Act.
25. Sections 63AG to 63AJ inserted and transitional
(1) After section 63AF the following sections are inserted --
"
63AG. When unit trust scheme becomes private unit trust
10 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
15 disposition"); and
(b) under this section together form substantially
one disposition;
"private unit trust scheme" has the meaning given in
section 63(2).
20 (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.
25 (3) If --
(a) as a result of the disposition of a unit, a unit
trust scheme becomes a private unit trust
scheme; and
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Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 25
(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
5 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
10 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
15 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 --
20 (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
25 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
30 section 73D in respect of the dispositions that
comprise --
(a) the transitional disposition; and
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Business Tax Review (Assessment) Bill (No. 2) 2003
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Division 1 Stamp Act 1921 amended
s. 25
(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.
5 (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
10 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
15 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
20 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
25 disposition for the purposes of section 20 of the
Taxation Administration Act 2003.
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
30 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
page 38
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 25
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,
5 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.
10 63AI. Interstate security duty
(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
15 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
20 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
25 respect of shares.
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
30 lodge with the Commissioner --
(a) if no election is made under
section 63AG(10) -- within 2 months after the
page 39
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 25
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
5 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
10 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.
15 (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
20 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
25 paragraph (a) of that subsection.
".
(2) Section 63AG of the Stamp Act 1921, as inserted by
subsection (1), does not apply to or in relation to a disposition
referred to in that section --
30 (a) made before the day on which this section comes into
operation; or
(b) made in response to an offer made or arrangement
entered into before that day.
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s. 26
26. Section 63A amended
Section 63A(2) is amended by deleting "liable to duty." and
inserting instead --
"
5 chargeable with duty but the Commissioner, on being
requested to do so, is to endorse on the conveyance or
transfer the duty paid.
".
27. Section 69 amended and transitional
10 (1) Section 69(2) is amended by deleting "or 4A(1)".
(2) However, section 69(2) as in force before this section came into
operation continues to apply in relation to an instrument of
conveyance or transfer to an intermediary executed before this
section came into operation and in any such case the reference
15 in section 69(2) to item 4A is to be read as a reference to that
item as in force from time to time prior to its repeal by this Act.
28. Section 70 amended
(1) The amendments in subsections (2) to (5) are to section 70(1).
(2) The definition of "chargeable with duty" is amended by deleting
20 " "chargeable with duty" " and inserting instead --
" "dutiable" ",
and by moving that definition to the appropriate alphabetical
position.
(3) The definition of "exempt chattels" is amended as follows:
25 (a) in paragraph (a) by deleting "chattels" and inserting
instead --
" goods, wares or merchandise ";
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Division 1 Stamp Act 1921 amended
s. 28
(b) after paragraph (a) by deleting "or" and inserting --
"
(aa) goods, wares or merchandise used solely or
principally in connection with the business
5 of primary production (as defined in
section 75D); or
".
(4) The definitions of "estate or interest in land", "farming land"
and "land" are deleted.
10 (5) The following definition is inserted in the appropriate
alphabetical position --
"
"other property" means property other than goods,
wares or merchandise, and includes an estate or
15 interest in such property;
".
(6) After section 70(1) the following subsection is inserted --
"
(1a) For the purposes of this section a mining tenement (as
20 defined in section 76) is an estate or interest in
property.
".
(7) Section 70(2) and (3) are each amended by deleting "land"
wherever it occurs and inserting instead --
25 " other property ".
(8) Section 70(2)(b) and (3)(b) are each amended by deleting
"chargeable with duty" and inserting instead --
" dutiable ".
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Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 29
29. Section 72 amended
Section 72(4) is amended by deleting "duty." and inserting
instead --
"
5 duty, but the Commissioner, on being requested to do
so, is to endorse the duty on the instrument.
".
30. Section 73AB inserted
After section 73AA the following section is inserted --
10 "
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
15 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
20 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
25 the effect of the error,
the correcting transfer shall be charged with duty in
accordance with item 6 of the Second Schedule.
".
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Division 1 Stamp Act 1921 amended
s. 31
31. Section 73D amended
(1) Section 73D(1) is amended as follows:
(a) by deleting the definition of "disposition";
(b) at the end of the definition of "land" by deleting the
5 semicolon and inserting instead a full stop;
(c) by deleting the definitions of "transfer" and "unit".
(2) After section 73D(1) the following subsection is inserted --
"
(1a) This section applies to a disposition in relation to a unit
10 in a unit trust scheme if the trust property of the
scheme comprises or includes --
(a) property situated, or taken to be situated, in
Western Australia; or
(b) any interest, including any beneficial interest,
15 in such property.
".
(3) Section 73D(2) is amended as follows:
(a) by deleting "make, accept,";
(b) by deleting paragraphs (a) and (b) and "and" between
20 them and inserting instead --
"
(a) a transfer or an instrument effecting or
evidencing the disposition is executed and
(unless the person executed the transfer or the
25 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
30 in respect of the disposition and that the duty
with which the dutiable statement is chargeable
has been paid.
".
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Stamp Act 1921 amended Division 1
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(4) Section 73D(7) is amended by deleting "Each" and inserting
instead --
" Subject to sections 63AH and 73DC(6), each ".
(5) Section 73D(10) is amended by deleting "made, accepted, gave
5 effect to," and inserting instead --
" gave effect to ".
(6) Section 73D(11) is amended as follows:
(a) after "subsection (12)" by inserting --
" and section 73DC ";
10 (b) after paragraph (a) by deleting "or";
(c) after paragraph (b) by deleting the full stop and
inserting --
"
; or
15 (c) registered as a provisional public trust under
section 63ADA(2).
".
(7) Section 73D(12) is amended by deleting "If the registration or
interim registration of a unit trust scheme is cancelled," and
20 inserting instead --
"
If --
(a) the registration or interim registration of a unit
trust scheme; or
25 (b) the registration of a unit trust scheme as a
provisional public trust,
is cancelled,
".
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s. 32
32. Section 73DAA inserted
After section 73D the following section is inserted --
"
73DAA. Dutiable statement required if transfer or
5 instrument not lodged
(1) Subject to subsection (3) if, for a disposition in relation
to a unit --
(a) a transfer; or
(b) an instrument effecting or evidencing the
10 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.
15 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
20 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.
25 (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.
30 (5) A dutiable statement lodged under subsection (1) is
taken to be an instrument evidencing the disposition in
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Stamp Act 1921 amended Division 1
s. 33
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
5 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)
10 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 section 17A, as having been first executed
15 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).
".
33. Sections 73DB to 73DE inserted
20 After section 73DA the following sections are inserted --
"
73DB. Interpretation for sections 73DC, 73DD and 73DE
(1) In sections 73DC, 73DD and 73DE --
"acquire", in relation to an interest in a registered unit
25 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
30 under section 63AA(2).
(2) For the purposes of sections 73DC, 73DD and 73DE,
an interest acquired or held by a custodian trustee on
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Division 1 Stamp Act 1921 amended
s. 33
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 --
5 (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.
10 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,
15 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
20 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
25 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 --
30 (a) registered under section 63AA(2); or
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s. 33
(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
5 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
10 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
15 (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
20 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
25 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.
30 (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.
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(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
5 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
10 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
15 another State or a Territory on a conveyance or
transfer of any marketable security or right in
respect of shares.
73DD. Meaning of majority interest and further interest
(1) For the purposes of section 73DC, a person acquires a
20 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 --
25 (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
30 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
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s. 33
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
5 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
10 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.
15 (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
20 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
25 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
30 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
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s. 33
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
5 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
10 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
15 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
20 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
25 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.
30 (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
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s. 33
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
5 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
10 determines.
73DE. Dutiable statement to be lodged
(1) Subject to 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
15 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.
20 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
25 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
30 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.
".
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Division 1 Stamp Act 1921 amended
s. 34
34. Section 73G inserted
After section 73F the following section is inserted --
"
73G. Farm-in agreements relating to mining tenements
5 (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
10 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,
15 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;
20 "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; and
25 (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.
30 (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
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Stamp Act 1921 amended Division 1
s. 34
(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,
5 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
10 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
15 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.
20 (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
25 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,
30 then --
(d) to the extent that --
(i) the conveyance or transfer evidences or
effects the acquisition of the interest; and
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s. 35
(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
5 (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
10 (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),
15 the conveyance or transfer is chargeable with
duty under item 4 or 19 of the Second
Schedule, as the case requires.
".
35. Section 74 amended
20 (1) Before section 74(1) the following subsection is inserted --
"
(1aa) In this section --
"dormant" has the meaning given by section 75JAA;
"dormant corporation" means a corporation that has
25 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
30 as it has in section 9 of the Corporations Act;
"member" means a person who holds an interest in a
managed investment scheme;
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"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
5 section 601EB of that Act.
".
(2) Section 74(2) is amended by deleting "subsection (3)," and
inserting instead --
" this section, ".
10 (3) Section 74(3) is amended as follows:
(a) in paragraph (a) by deleting "of the opinion" and
inserting instead --
" satisfied ";
(b) in paragraph (b) by deleting "his opinion" and inserting
15 instead --
"
that the Commissioner is satisfied in relation to
the matters
".
20 (4) Section 74(3a) is repealed and the following subsections are
inserted instead --
"
(3a) Notwithstanding subsection (2), if --
(a) the person named as purchaser in a contract or
25 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
30 be incorporated; or
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s. 35
(ii) a dormant corporation, the shares in
which the person intended to be
acquired;
(b) at the time the contract or agreement was
5 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),
10 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.
15 (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;
20 (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
25 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
30 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;
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(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
5 (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
10 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
15 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
20 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,
25 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 --
30 (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;
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s. 35
(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
5 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
10 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 --
15 (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
20 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
25 (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
30 to a purchaser that is a unit trustee if --
(a) the person is the sole unit holder in the unit
trust; or
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(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.
5 (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") --
10 (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
15 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
20 (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.
".
25 (5) Section 74(4) is amended by deleting "liable to duty." and
inserting instead --
"
chargeable with duty but the Commissioner, on being
requested to do so, is to endorse on the conveyance or
30 transfer the duty paid.
".
36. Section 74A amended
Section 74A(1) is amended by deleting "or 4A(1), as the case
requires,".
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37. Sections 74B and 74C inserted
After section 74A the following sections are inserted --
"
74B. Transactions involving a call option and a put
5 option
(1) In this section --
"call option" means the right referred to in
subsection (2)(a);
"option property" means --
10 (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;
15 "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 --
20 (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
25 (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,
30 from B.
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(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 --
5 (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
10 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
15 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
20 acquire the interest of another of the
proprietors.
(5) In subsection (4)(b) --
"proprietor" means --
(a) in the case of a partnership, a partner;
25 (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.
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(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
5 (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
10 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;
15 and
(ii) the amount payable in the event of the
call option being exercised in respect of
the option property;
or
20 (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
25 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
30 section 31B,
the duty payable in respect of the contract or agreement
or because of the acquisition is to be reduced by the
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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
5 ("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
10 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).
15 (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
20 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 --
25 (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
30 (ii) the amount payable in the event of the
right referred to in subsection (9)(a)
being exercised;
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or
(b) if the unencumbered value of the option
property is ascertainable and it is greater than
the sum mentioned in paragraph (a), that
5 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
10 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
15 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
20 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
25 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
30 (b) both expire without being exercised; or
(b) after either of those rights is rescinded,
withdrawn, surrendered or cancelled by
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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
5 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).
10 (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;
15 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
20 (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
25 (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
30 duty is not to be reduced to less than the
amount that would have been payable but for
subsections (6) and (7).
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(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 --
5 (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
10 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
15 duty is not to be reduced to less than the
amount that would have been payable but for
subsections (11) and (12).
74C. Acquisition of certain business assets
(1) In this section --
20 "business asset" means --
(a) goodwill of a business;
(b) a restraint of trade arrangement for a
business;
(c) a business identity;
25 (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 Western Australia and
elsewhere;
30 (e) a right of a business under an uncompleted
contract to supply commodities or provide
services;
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(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
5 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
10 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
15 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,
20 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
25 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
30 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
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controlled by the franchisor or a person who
would be related to the franchisor for the
purposes of Part IIIBA;
"intellectual property" means --
5 (a) a patent, trademark, industrial design,
copyright, registered design, plant breeder
right or circuit layout right;
(b) anything else that has the following
characteristics --
10 (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
15 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
20 developed for other purposes, has
been applied, adapted or modified for
use for business purposes;
or
(c) a right to use or exploit --
25 (i) anything mentioned in paragraph (a)
or (b); or
(ii) an adaptation or modification of
anything mentioned in paragraph (a)
or (b);
30 "plant breeder right" means --
(a) a plant breeder's right under the Plant
Breeder's Rights Act 1994 of the
Commonwealth; or
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(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
5 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 --
10 (a) been carried on in or from Western Australia;
or
(b) supplied commodities or provided services to
customers in Western Australia.
(3) This section does not apply to the acquisition of a
15 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
20 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.
25 (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
30 first business for the purpose of the carrying on
of the first business or another business by
another person,
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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
5 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
10 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
15 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
20 business is in Western Australia, duty is to be assessed
on the amount determined using the following
formula --
CUV × (TS - IS)
A=
TS
where --
25 A is the dutiable amount;
CUV is the consideration for the acquisition of the
business asset, or the unencumbered value of
the business asset, whichever is the greater;
TS is the gross amount (in Australian dollars) of all
30 the commodities supplied and services provided
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by the business in the last 3 completed financial
years preceding the acquisition; and
IS is the gross amount (in Australian dollars) of
the commodities supplied and services provided
5 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 Western Australia, duty is to
10 be assessed on the amount determined using the
following formula --
CUV × WAS
A=
TS
where --
A is the dutiable amount;
15 CUV is the consideration for the acquisition of the
business asset, or the unencumbered value of
the business asset, whichever is the greater;
TS is the gross amount (in Australian dollars) of all
the commodities supplied and services provided
20 by the business in the last 3 completed financial
years preceding the acquisition; and
WAS is the gross amount (in Australian dollars) of
the commodities delivered and services
provided by the business to customers in
25 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
30 is satisfied that the other basis would be more
appropriate in the circumstances.
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(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.
5 (12) Section 74 applies to a contract or agreement for the
acquisition of a business asset to which this section
would apply.
".
38. Section 75 amended
10 Section 75(2) is amended by deleting "or 4A(1), as the case
requires,".
39. Section 75AD amended
Section 75AD(1) is amended by deleting "or 4A(1), as the case
requires,".
15 40. Section 75AG amended and transitional
(1) Section 75AG(1)(c) is amended as follows:
(a) in subparagraph (i) by deleting "$202 500" and inserting
instead --
" $277 500 ";
20 (b) in subparagraph (ii) by deleting "$135 000" and
inserting instead --
" $185 000 ".
(2) Section 75AG(3)(d) is amended by deleting "$52 000" and
inserting instead --
25 " $72 000 ".
(3) The amendments effected by this section do not apply in
relation to --
(a) an agreement for the conveyance or transfer of
residential property executed before this section came
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into operation regardless of when any instrument of
conveyance or transfer entered into in accordance with
the agreement is executed; or
(b) an instrument of conveyance or transfer made in
5 accordance with an agreement referred to in
paragraph (a), regardless of when the instrument is
executed.
41. Section 75CA inserted
After section 75C the following section is inserted in
10 Part IIIB --
"
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
15 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
20 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
25 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
30 happening of the event has passed or
expired,
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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
5 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
10 contract was executed.
(3) In this section, a reference to the happening of an event
includes a reference to an event not happening.
".
42. Section 75D amended
15 Section 75D(1) is amended in the definition of "instrument of
conveyance" by deleting "or item 4A" in both places where it
occurs.
43. Section 75E amended
(1) Section 75E(1) is amended as follows:
20 (a) by deleting paragraph (c);
(b) in paragraph (d) --
(i) after subparagraph (i) by inserting --
" or ";
(ii) at the end of subparagraph (ii) by deleting "; or"
25 and inserting a comma; and
(iii) by deleting subparagraph (iii);
(c) in paragraph (e) --
(i) after subparagraph (i) by inserting --
" or ";
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(ii) at the end of subparagraph (ii) by deleting "; or"
and inserting a comma; and
(iii) by deleting subparagraph (iii).
(2) Section 75E(3) is amended by deleting "company," and "or
5 share".
(3) Section 75E(4) is amended as follows:
(a) by deleting "subsection (1)(a), (b) or (c)" and inserting
instead --
" subsection (1)(a) or (b) ";
10 (b) by deleting "property, interest or share," and inserting
instead --
" property or partnership interest, ".
(4) Section 75E(5) is amended as follows:
(a) by deleting "property, an interest in a farming
15 partnership or a share in a farming company," and
inserting instead --
" property or an interest in a farming partnership, ";
(b) by deleting "property, interest in partnership or share"
and inserting instead --
20 " property or partnership interest ".
(5) Section 75E(6) is amended as follows:
(a) in paragraph (b) by deleting "property, interest in the
farming partnership or share in the farming company"
and inserting instead --
25 " property or partnership interest ";
(b) by deleting "property, interest in a farming partnership
or share in a farming company" and inserting instead --
" property or partnership interest ".
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44. Section 75G amended
(1) Section 75G(1) is amended as follows:
(a) after paragraph (a) by inserting --
" or ";
5 (b) at the end of paragraph (b) by deleting "; or" and
inserting a comma;
(c) by deleting paragraph (c);
(d) in paragraph (d) by deleting "property, interest in the
partnership or share in the company" and inserting
10 instead --
" property or partnership interest ".
(2) Section 75G(2)(a) is amended by deleting "or item 4A" and
", as the case requires".
(3) Section 75G(3) is amended as follows:
15 (a) by deleting "or company referred to in subsection (1)(b)
or (c)" and inserting instead --
" referred to in subsection (1)(b) ";
(b) in the definitions of "A", "B" and "C" by deleting "or
company, as the case requires".
20 45. Section 75H amended
Section 75H(1) is amended by deleting ", interest or share" and
inserting instead --
" or partnership interest ".
46. Section 75HA amended
25 (1) Section 75HA(3) is amended as follows:
(a) by deleting "referred to in section 75E(1)(e)" and
inserting instead --
" to a discretionary trustee of a discretionary trust ";
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(b) by inserting after "subsection (4)" --
" or (4a) ";
(c) by deleting "prepare a dutiable statement" and inserting
instead --
5 " lodge a statement with the Commissioner ".
(2) Section 75HA(3a) is amended by inserting after "be" --
" prepared ".
(3) Section 75HA(4) is amended as follows:
(a) by deleting "prepare" and inserting instead --
10 " lodge ";
(b) in paragraph (a) by deleting "prepared under this section
and".
(4) After section 75HA(4) the following subsection is inserted --
"
15 (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.
20 ".
(5) Section 75HA(5) is amended by deleting "prepared" and
inserting instead --
" lodged ".
(6) Section 75HA(6) is amended as follows:
25 (a) by deleting "prepared" in each place where it occurs and
inserting instead --
" lodged ";
(b) in paragraph (a) by deleting "referred to in
section 75E(1)(e)(iii)" and inserting instead --
30 " that conveyed a share in a farming company ";
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s. 47
(c) by deleting paragraph (c) and inserting instead --
"
(c) at the date of the taxable event the relevant
farming company is still beneficially entitled to
5 farming land to which it was beneficially
entitled when the acquisition referred to in
paragraph (b) occurred,
".
(7) Section 75HA(7) is repealed.
10 (8) Section 75HA(8) is amended as follows:
(a) by deleting "prepared" and inserting instead --
" lodged ";
(b) by deleting "referred to in section 75E(1)(e)(ii) or (iii)"
and inserting instead --
15 "
that conveyed an interest in a farming partnership or a
share in a farming company
".
47. Section 75I amended
20 (1) Section 75I(1) is amended by deleting paragraph (a) and "and"
after it and inserting instead --
"
(a) the Commissioner is satisfied that, if the
amendments made to this Part by the Business
25 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
30 section 75E(1)(c), (d)(iii) or (e)(iii); and
(ii) an instrument to which this Part applied;
and
".
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s. 48
(2) Section 75I(1)(b) is amended by deleting "prepare" and
inserting instead --
" lodge ".
48. Section 75J amended
5 (1) The amendments in this section are to section 75J(1).
(2) The definition of "foreign person" is deleted.
(3) The definition of "section 31B or 31C statement" is amended by
deleting "prepared" and inserting instead --
" lodged ".
10 (4) The definition of "shares" is amended by deleting the full stop
and inserting a semicolon.
(5) The following definitions are inserted in the appropriate
alphabetical positions --
"
15 "licence" has the meaning given to that term in
section 76B;
"vehicle" has the meaning given to that term in
section 76B.
".
20 49. Section 75JA amended
(1) Section 75JA(1a), (2) and (2a) are repealed and the following
subsection is inserted instead --
"
(2) If, on an application under section 75JD, it is shown to
25 the satisfaction of the Commissioner that this section
applies because of subsection (1) and the acquisition is
a relevant acquisition under Part IIIBA, the
Commissioner shall exempt a Part IIIBA statement
lodged in respect of the acquisition from duty
30 chargeable under section 76AH or 76AO.
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s. 50
".
(2) Section 75JA(3) is amended by deleting "subsection (2)(b)" and
inserting instead --
" subsection (2) ".
5 (3) Section 75JA(4) is repealed and the following subsection is
inserted instead --
"
(4) If --
(a) an instrument was exempted under
10 subsection (2a) before it was repealed; and
(b) within 6 months after the acquisition the
transferee has not become listed on a
recognised stock exchange situated in the
country where the transferee is incorporated,
15 the clawback applies.
".
50. Section 75JB amended and transitional
(1) Section 75JB(1)(d) is amended as follows:
(a) by deleting subparagraph (i);
20 (b) after subparagraph (ii) by deleting "or";
(c) in subparagraph (iii) by deleting "prepared" and
inserting instead --
" lodged ";
(d) after subparagraph (iii) by inserting --
25 "
or
(iv) A and B are associated in the
circumstances described in
section 75J(2)(a)(ii), the third body
30 corporate referred to in
section 75J(2)(a)(ii) ("C") has owned the
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Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 50
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
5 to acquire the property from A, and A has
been associated with C for at least the
qualifying period;
".
(2) The amendment effected by subsection (1)(a) does not apply in
10 relation to an instrument if, before the commencement day, the
Commissioner issued a pre-determination to the effect that
section 75JB(1)(d)(i) of the Stamp Act 1921 applied to the
parties to the instrument, and in any such case --
(a) the reference in section 75JB(1)(d)(i) to section 75JA(1a)
15 is to be read as a reference to that subsection as in force
from time to time prior to its repeal by this Act; and
(b) any such pre-determination is as binding on the
Commissioner after the commencement day as it was
before that day.
20 (3) After section 75JB(2) the following subsection is inserted --
"
(2a) This section also applies if --
(a) an instrument executed on or after the day on
which section 50 of the Business Tax Review
25 (Assessment) Act (No. 2) 2003 comes into
operation 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;
30 (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
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s. 50
(b) subsection (1)(b) to (f) are met (with any
necessary modifications).
".
(4) Section 75JB(3) is amended as follows:
5 (a) by inserting after "section 75JD" --
"
in respect of an instrument to which subsection (1)(a)
refers
";
10 (b) in paragraph (a) by deleting "4A,";
(c) in paragraph (b) by deleting "prepared" and inserting
instead --
" lodged ".
(5) After section 75JB(3) the following subsection is inserted --
15 "
(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
20 the applicant an exemption certificate in the approved
form.
".
(6) Section 75JB(4) is amended as follows:
(a) by deleting "If " and inserting instead --
25 "
If --
(aa) an instrument is exempted under subsection (3);
or
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Stamp Act 1921 amended Division 1
s. 50
(ab) an exemption certificate is issued under
subsection (3a) in relation to an instrument,
and
";
5 (b) in paragraph (b) by deleting "or (1a)(a) to (h)";
(c) in paragraph (c) by deleting "or (1a)(f)".
(7) Section 75JB(5) is amended by deleting "If " and inserting
instead --
"
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,
15 and
".
(8) Section 75JB(5f) is amended as follows:
(a) by deleting from and including "If the" to and including
"parent body -- " and inserting instead --
20 "
If --
(aa) an instrument is exempted under subsection (3)
or an exemption certificate is issued under
subsection (3a) in relation to an instrument;
25 (ab) the relevant circumstances have occurred; and
(ac) within 5 years after the execution of the
instrument or the date of the relevant
acquisition,
the parent body --
30 ";
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Division 1 Stamp Act 1921 amended
s. 50
(b) in paragraph (b) by inserting after "to have" --
" voting ".
(9) Section 75JB(6) is amended by deleting "If " and inserting
instead --
5 "
If --
(aa) an instrument is exempted under subsection (3);
or
(ab) an exemption certificate is issued under
10 subsection (3a) in relation to an instrument,
and
".
(10) Section 75JB(7) is amended as follows:
(a) by deleting "If " and inserting instead --
15 "
If --
(aa) an instrument is exempted under subsection (3);
or
(ab) an exemption certificate is issued under
20 subsection (3a) in relation to an instrument,
and
";
(b) by deleting "or (1a)(a) to (h)";
(c) in paragraph (b) by deleting "or (1a)(f)".
25 (11) The amendments effected by subsections (6)(b), (6)(c), (10)(b)
and (10)(c) do not apply in relation to an instrument executed
before the commencement day, and in any such case the references
in section 75JB of the Stamp Act 1921 to section 75JA(1a) of that
Act are to be read as references to that subsection as in force from
30 time to time prior to its repeal by this Act.
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Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 51
(12) In this section --
"commencement day" means the day on which this section
came into operation.
51. Section 75JBA amended
5 Section 75JBA(2) is amended as follows:
(a) by inserting after "ownership or" --
" voting ";
(b) by deleting "control B" and inserting instead --
" have voting control of B ".
10 52. Section 75JC amended
(1) Section 75JC(1) is amended as follows:
(a) by deleting "a transaction" and inserting instead --
" an acquisition, transaction ";
(b) in paragraph (b) by deleting "prepare" and inserting
15 instead --
" lodge ".
(2) Section 75JC(5)(a) is amended by deleting "to" and inserting
instead --
" from ".
20 53. Section 75JD amended
(1) Section 75JD(2) is amended as follows:
(a) by deleting "on --" and inserting instead --
" on an instrument or Part IIIBA statement ";
(b) by deleting paragraphs (a) and (b) and "or" between
25 them.
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s. 54
(2) After section 75JD(2) the following subsection is inserted --
"
(2a) Despite section 17(1) of the Taxation Administration
Act 2003, an application for a reassessment of the duty
5 payable on the transfer of a licence on the basis that an
exemption certificate under section 75JB(3a) should
have been, but was not, issued in relation to an
instrument cannot be made more than 12 months after
the date of the application for the transfer.
10 ".
(3) After section 75JD(4) the following subsection is inserted --
"
(5) In subsection (4) --
"exempted instrument" includes an instrument in
15 relation to which an exemption certificate has been
issued under section 75JB(3a).
".
54. Section 75JDA amended
Section 75JDA(3) is amended by deleting "in respect of an
20 instrument or" and inserting instead --
"
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
25 ".
55. Section 75JE amended
(1) Section 75JE is amended as follows:
(a) by inserting before "If " the subsection designation
"(1)";
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Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 55
(b) by inserting after "to an instrument" --
"
that has been exempted from duty under
section 75JB(3)
5 ";
(c) in paragraph (d), by inserting before "transaction" --
" acquisition, ".
(2) At the end of section 75JE the following subsections are
inserted --
10 "
(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
15 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
20 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
25 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;
30 (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
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Division 1 Stamp Act 1921 amended
s. 56
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
5 Corporations Act); and
(ii) no creditor was an associate (as defined
in the Corporations Act) of the body
corporate;
and
10 (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
15 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
20 General as defined in section 76B.
".
56. Section 75JF amended
Section 75JF(d)(ii) is amended by deleting "prepare" and
inserting instead --
25 " lodge ".
57. Section 76 amended
(1) The amendments in this section are to section 76(1).
(2) The definition of "acquire" is amended in paragraph (b)(iii) as
follows:
30 (a) after Item (II) by inserting --
" and ";
(b) by deleting Item (III) and "and" after it.
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Business Tax Review (Assessment) Bill (No. 2) 2003
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s. 58
(3) The definition of "chattels" is amended in paragraph (c) by
deleting "that are usually situated on farming land" and
inserting instead --
"
5 used solely or principally in connection with
the business of primary production
".
58. Section 76A amended
Section 76A(2)(b) is amended by deleting "prepared" in both
10 places where it occurs and inserting instead --
" lodged ".
59. Section 76AA amended
Section 76AA is amended by deleting "prepare" and inserting
instead --
15 " lodge ".
60. Section 76AB inserted
After section 76AA the following section is inserted in
Part IIIBA Division 1 --
"
20 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
25 by that person under section 76AG or 76AN in respect
of the acquisition.
(2) A request under subsection (1) --
(a) must be made in an approved form; and
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Division 1 Stamp Act 1921 amended
s. 60
(b) must include --
(i) the information that would be required
under section 76AG(4)(a) to (f) or
76AN(3)(a) to (f) if the request were a
5 dutiable statement; and
(ii) 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
10 subsection (2) --
(a) the Commissioner shall make the requested
determination; and
(b) any requirement to lodge a dutiable statement
under section 76AG or 76AN in respect of the
15 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
20 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.
25 (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
30 (b) any requirement that the person making the
request lodge a dutiable statement under
section 76AG or 76AN in respect of the
acquisition is revived as if the request had
never been made.
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Stamp Act 1921 amended Division 1
s. 61
(6) If the Commissioner determines that the person making
the request is not required to lodge a dutiable statement
under section 76AG or 76AN, the Commissioner shall
notify that person accordingly.
5 (7) If the Commissioner determines that the person making
the request is required to lodge a dutiable statement
under section 76AG or 76AN, the request under
subsection (1) and any information and evidence
provided with the request or under subsection (4) are
10 taken to be the dutiable statement lodged by the person.
".
61. Section 76AG amended
(1) Section 76AG(1) is amended by deleting "prepare a dutiable
statement" and inserting instead --
15 "
, within 2 months after the acquisition, lodge a
statement with the Commissioner
".
(2) Section 76AG(2) is amended by deleting "prepare" and
20 inserting instead --
" lodge ".
(3) Section 76AG(3) is amended by inserting after "be" --
" prepared ".
(4) Section 76AG(4)(f), (5), (5a), (5c) and (5d) are each amended
25 by deleting "prepared" and inserting instead --
" lodged ".
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Division 1 Stamp Act 1921 amended
s. 62
62. Section 76AH amended
(1) Section 76AH(2) is amended as follows:
(a) by deleting the formula and inserting the following
formula instead --
5 "
A - $1 000 000
xB
$500 000
";
(b) after the definition of "A" by inserting --
" and ";
10 (c) at the end of the definition of "B" by deleting "; and"
and inserting a full stop;
(d) by deleting the definition of "C".
(2) Section 76AH(2a) is repealed.
(3) Section 76AH(3) is amended as follows:
15 (a) by deleting "prepare" and inserting instead --
" lodge ";
(b) by deleting "prepared" and inserting instead --
" lodged ".
63. Section 76AI amended
20 Section 76AI(2)(b) is amended by deleting "80%" and inserting
instead --
" 60% ".
64. Section 76AJ amended
After section 76AJ(2) the following subsection is inserted --
25 "
(2a) A previous acquisition of an interest in the WA
company is not to be taken into consideration under
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Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 65
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.
".
5 65. Section 76AM amended
Section 76AM is amended by deleting "prepared" and inserting
instead --
" lodged ".
66. Section 76AN amended
10 (1) Section 76AN(1) is amended by deleting "prepare a dutiable
statement" and inserting instead --
"
, within 2 months after the acquisition, lodge a
statement with the Commissioner
15 ".
(2) Section 76AN(2) is amended by inserting after "be" --
" prepared ".
(3) Section 76AN(3)(f), (4) and (4a) are each amended by deleting
"prepared" and inserting instead --
20 " lodged ".
67. Section 76AO amended
(1) Section 76AO(2) is amended as follows:
(a) by deleting the formula and inserting the following
formula instead --
25 "
A - $1 000 000
xB
$500 000
";
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Division 1 Stamp Act 1921 amended
s. 68
(b) after the definition of "A" by inserting --
" and ";
(c) at the end of the definition of "B" by deleting "; and"
and inserting a full stop;
5 (d) by deleting the definition of "C".
(2) Section 76AO(2a) is repealed.
(3) Section 76AO(3) is amended as follows:
(a) by deleting "prepare" and inserting instead --
" lodge ";
10 (b) by deleting "prepared" and inserting instead --
" lodged ".
68. Section 76AP amended
Section 76AP(2)(b) is amended by deleting "80%" and inserting
instead --
15 " 60% ".
69. Section 76AQ amended
After section 76AQ(2) the following subsection is inserted --
"
(2a) A previous acquisition of an interest in the corporation
20 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.
".
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Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 70
70. Section 76B amended
(1) Section 76B(1) is amended by inserting in the appropriate
alphabetical positions the following definitions --
"
5 "market value" means --
(a) in relation to a new vehicle --
(i) which is a vehicle of a class
prescribed for the purposes of this
paragraph; and
10 (ii) for which a price has been fixed by
the manufacturer, importer or
principal distributor as the retail
selling price in Western Australia of a
vehicle of that make and model,
15 the sum of --
(iii) the price so fixed; and
(iv) the price fixed by the manufacturer,
importer or principal distributor as the
additional retail selling price in
20 Western Australia of any optional
feature in or of the vehicle;
and
(b) in relation to any other vehicle -- the
amount for which the vehicle might
25 reasonably be sold, free of encumbrances, in
the open market;
"new vehicle" means a vehicle that has never been
used or that has only been used --
(a) for the purpose of selling it in the ordinary
30 course of a dealer's business;
(b) for the purpose of demonstrating it to
prospective purchasers;
(c) for both those purposes; or
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s. 71
(d) for either or both those purposes and for
minor incidental purposes,
but does not include a vehicle that has been used
for the purpose in paragraph (b) for a period of
5 more than 3 months;
"optional feature" means --
(a) any particular kind of transmission in a
vehicle; and
(b) any other feature in or of a vehicle
10 prescribed by the regulations,
that is not a standard feature of a vehicle of that
make and model;
".
(2) Section 76B(2) is repealed and the following subsection is
15 inserted instead --
"
(2) A reference in this Part to the use of a vehicle for the
purpose referred to in section 76D(4)(a) or the
purposes referred to in section 76D(5)(a) includes a
20 reference to its use for that purpose or those purposes
and for minor incidental purposes.
".
71. Section 76D amended
(1) Section 76D(3) is amended as follows:
25 (a) after paragraph (a) by deleting "or";
(b) after paragraph (b) by deleting the full stop and
inserting --
"
; or
30 (c) the transfer of a licence if an exemption
certificate issued under section 75JB(3a) in
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Stamp Act 1921 amended Division 1
s. 72
relation to an instrument relating to the vehicle
is given to the Director General.
".
(2) Section 76D(5)(a)(i) is amended by deleting "that" and inserting
5 instead --
" the dealer's ".
72. Section 76G amended
Section 76G is amended by inserting after "76D(2)" --
" or to which section 76D(3)(c) applies ".
10 73. Section 76H amended
Section 76H(1) is amended by inserting after "76D(2)" --
" or is a transfer to which section 76D(3)(c) applies ".
74. Section 76I amended
Section 76I(1) is amended by deleting "mentioned in
15 section 76D(4) or (5)" and inserting instead --
"
referred to in section 76D(4)(a) or the purposes
referred to in section 76D(5)(a)
".
20 75. Section 77 amended
Section 77(2) is amended by deleting "liable to duty." and
inserting instead --
"
chargeable with duty but the Commissioner, on being
25 requested to do so, is to endorse on the lease the duty
paid in accordance with subsection (1).
".
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Division 1 Stamp Act 1921 amended
s. 76
76. Section 77A inserted
After section 77 the following section is inserted --
"
77A. Offer to lease
5 (1) Subject to subsection (2), where there is a
transaction --
(a) by which --
(i) land situated in Western Australia;
(ii) buildings on land situated in Western
10 Australia; or
(iii) fixtures annexed to, or to buildings on,
land situated in Western Australia,
is or are leased;
(b) in respect of which there exists a written offer
15 to lease, or a written acceptance of an offer to
lease, that land or those buildings or fixtures;
and
(c) which is not effected or evidenced by an
instrument chargeable with ad valorem duty
20 under item 12 of the Second Schedule,
the lessee of the land, buildings or fixtures shall, within
2 months after entering into the transaction, lodge a
statement with the Commissioner in respect of the
transaction.
25 Penalty: $20 000.
(2) Subsection (1) does not apply to a lessee unless, had an
instrument effecting or evidencing the transaction been
executed, the lessee would have been liable to pay ad
valorem duty under item 12 of the Second Schedule in
30 respect of the transaction.
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s. 76
(3) A dutiable statement shall be prepared in an approved
form.
(4) A dutiable statement lodged under subsection (1) is
taken to be a lease and is chargeable with duty
5 accordingly.
(5) Each party to a transaction described in subsection (1),
except the person required to lodge the dutiable
statement, shall, within 2 months after entering into the
transaction, notify the Commissioner in an approved
10 form that the transaction has been entered into.
Penalty: $20 000.
(6) Subsection (5) does not apply to a party unless, had an
instrument effecting or evidencing the transaction been
executed, the lessee would have been liable to pay ad
15 valorem duty under item 12 of the Second Schedule in
respect of the transaction.
(7) Nothing in this section prevents the joint making of a
notification under subsection (5) in respect of a
transaction by any 2 or more parties to the transaction
20 who are required to make the notification.
(8) The requirement to lodge a dutiable statement under
subsection (1) or give notification under subsection (5)
ceases to apply if an instrument that evidences the
transaction and is chargeable with ad valorem duty
25 under item 12 of the Second Schedule is executed at
any time after the transaction was entered into, but
nothing in this subsection affects the liability of a
person for an offence against subsection (1) or (5)
committed before the instrument was executed.
30 (9) Where subsection (8) has effect, the instrument
referred to in that subsection is to be regarded, for the
purposes of section 17A, as having been first executed
on the day on which the transaction occurred.
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Division 1 Stamp Act 1921 amended
s. 77
(10) If an instrument is executed as referred to in
subsection (8) after a dutiable statement has been
lodged under subsection (1), subsection (4) ceases to
apply to the dutiable statement unless duty has already
5 been paid in respect of it.
(11) If duty has already been paid as mentioned in
subsection (10), 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
10 duty paid.
(12) Regulations may exempt from the operation of
subsections (1) and (5) any transactions belonging to a
class specified in those regulations.
".
15 77. Section 79 amended
Section 79(3), (4), (6) and (7) are repealed.
78. Section 80 repealed
Section 80 is repealed.
79. Part IIIE (s. 81-90A) replaced
20 Part IIIE is repealed and the following Part is inserted instead --
"
Part IIIE -- Mortgage duty
Division 1 -- Interpretation for this Part
81. Definitions
25 In this Part, unless the contrary intention appears --
"advance" has the meaning given in section 83;
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Stamp Act 1921 amended Division 1
s. 79
"corresponding Act" means an Act of another State
that deals with the imposition and assessment of
mortgage duty (however described);
"collateral mortgage" means a mortgage that is or is
5 to be stamped as a collateral mortgage under
section 91B;
"home mortgage" has the meaning given in
section 85;
"liability date", in relation to a mortgage, means a
10 date on which the liability to pay mortgage duty on
the instrument arises;
"loan", in relation to a mortgage, has the meaning
given in section 84;
"mortgage" has the meaning given in section 82;
15 "mortgage duty" means duty payable on a mortgage
in accordance with this Part;
"mortgage package" has the meaning given in
section 91A;
"referable point" means the document used under
20 section 91(3) to work out the dutiable proportion
of a mortgage;
"secured amount", in relation to a mortgage, means
the amount determined under Division 3 as the
amount secured by the mortgage;
25 "security interest", in relation to property, means the
estate or interest of a mortgagee, chargee or other
secured creditor.
82. Mortgages
(1) For the purposes of this Part, a "mortgage" is an
30 instrument that --
(a) is a security by way of mortgage or charge over
property that is wholly or partly in Western
Australia at the liability date;
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s. 79
(b) is a security by way of a conveyance or an
assignment of property that is wholly or partly
in Western Australia to a trustee, that is to be
sold or otherwise converted into money, and is
5 redeemable before the sale or conversion,
except a conveyance or an assignment made for
the benefit of creditors who accept the
conveyance or assignment in full satisfaction of
debts owed to them;
10 (c) is a conveyance or an assignment of property
that is wholly or partly in Western Australia, or
effects or is evidence of an agreement for the
conveyance or assignment of property that is
wholly or partly in Western Australia, where
15 the conveyance or assignment apparently is or
will be absolute but is intended only as security
for an advance; or
(d) on the deposit of documents of title, authority
to control title or a pledge to provide authority
20 to control title, to property wholly or partly in
Western Australia, becomes a mortgage or
evidences the terms of a mortgage.
(2) For section 91B, a reference to a mortgage or earlier
mortgage includes a reference to a mortgage first
25 executed before the commencement of this section.
83. Advances
(1) An "advance" is the provision or obtaining of funds by
way of financial accommodation by --
(a) a loan; or
30 (b) a bill facility that is one or more agreements,
understandings or arrangements as a consequence
of which a bill of exchange or promissory note --
(i) is drawn, accepted, endorsed or made; or
(ii) is held, negotiated or discounted.
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(2) Subsection (1)(b) applies whether or not the funds are
obtained from --
(a) the person who draws, accepts, endorses or
makes the bill of exchange or promissory note; or
5 (b) a person who is a party to any of the
agreements, understandings or arrangements.
(3) An "advance" includes a contingent liability under
section 90.
84. Loans
10 Each of the following is a "loan" --
(a) an advance of money;
(b) the payment of money for or on account of, or
at the request of, any person;
(c) a forbearance to require the payment of money
15 owing on any account;
(d) any transaction, whatever its terms or form, that
in substance effects a loan of money.
85. Home mortgages
(1) A mortgage is a home mortgage if --
20 (a) the mortgagor is an individual;
(b) part or all of the secured amount is used for a
dwellinghouse as provided by subsection (2);
and
(c) the dwellinghouse is being or will be used by
25 the mortgagor as his or her sole or principal
place of residence.
(2) An amount is used for a dwellinghouse if it is used
solely in or towards the cost of any of the following --
(a) purchasing any property which is or includes a
30 dwellinghouse;
(b) building a dwellinghouse;
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(c) effecting improvements or additions to a
dwellinghouse;
(d) repaying money that was used solely for a
purpose referred to in paragraph (a), (b) or (c).
5 Division 2 -- Liability for Mortgage Duty
86. Assessing mortgage duty
For the purposes of section 16, the amount of mortgage
duty chargeable on a mortgage specified in item 13 of
the Second Schedule is calculated, subject to the
10 exemptions set out in item 7 of the Third Schedule, by
applying the rates of duty specified in item 13 to the
secured amount in accordance with this Part.
87. Liability dates
(1) A mortgage is liable to mortgage duty when it is first
15 executed.
(2) A mortgage is also liable to mortgage duty when an
advance or a further advance is made under the
mortgage if the total secured amount exceeds the
secured amount for which the mortgage has been
20 stamped, or is exempt from duty, under this or a
corresponding Act.
(3) Subsection (4) applies to an instrument of security that
does not affect property in Western Australia when it is
first executed if the instrument --
25 (a) affects any property that is specifically
identified, whether or not in the instrument,
when it is first executed and, under an
arrangement, the property is intended to be
secured by the security; or
30 (b) affects land, other than a security interest, in
Western Australia within one year after it is
first executed.
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(4) The instrument of security is liable for mortgage duty
when it first affects the property or land unless it is
stamped with, or is exempt from, similar duty under a
corresponding Act.
5 (5) An instrument referred to in section 82(1)(d) that
becomes a mortgage or is evidence of the terms of a
mortgage is liable to mortgage duty on the deposit of
the instruments.
88. Stamping before advance
10 (1) A mortgage may be stamped before an advance is
made under the mortgage, whether or not an earlier
advance has been made under it.
(2) A mortgage mentioned in section 91 or 91A may be
stamped to secure any amount exceeding that to which
15 it is already stamped based on the dutiable proportion
for the mortgage when it is stamped.
Division 3 -- Amount secured by a mortgage
89. The secured amount
(1) The amount secured by a mortgage is the amount equal
20 to the sum of the advances actually secured by it and
recoverable under the terms of the mortgage.
(2) However, if --
(a) a mortgage has been stamped, or is exempt
from duty, under this or a corresponding Act
25 for an amount of advances secured by the
mortgage;
(b) a further advance secured by the mortgage is
made; and
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(c) the total amount secured by the mortgage
exceeds the amount for which the mortgage has
been stamped,
then the amount secured by the mortgage is the amount
5 by which the amount of the advances secured by the
mortgage exceeds the amount for which the mortgage
has been stamped.
(3) Mortgage duty is not payable on any part of the
secured amount that is advanced for one or more of the
10 following --
(a) the insurance of the mortgaged property against
damage by fire, or for keeping up a life
insurance policy included in the mortgaged
property or for taking out a new life insurance
15 policy in lieu of the previous policy;
(b) the renewal of any grant or lease of any of the
mortgaged property upon the ending of a life
interest in the mortgaged property.
90. Contingent liabilities
20 (1) This section applies to a mortgage securing or capable
of securing, whether directly or indirectly, an amount
contingently payable (the "secured amount") in
connection with an advance (the "primary
advance") --
25 (a) by a guarantor or indemnifying party under a
guarantee or indemnity; or
(b) by another party under another type of
instrument.
(2) Mortgage duty is assessed on the secured amount as if
30 it were a separate advance secured by the mortgage.
(3) For subsection (2), the contingent liability is limited to
the amount of the primary advance.
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(4) This section --
(a) does not apply if the Commissioner is satisfied
there is no connection between the mortgage
and the primary advance; and
5 (b) does not require mortgage duty to be paid more
than once for an advance.
91. Mortgage over property partly outside WA
(1) Mortgage duty chargeable in relation to mortgaged
property that is partly in Western Australia and partly
10 outside Western Australia is assessed by applying the
appropriate rate of duty to the dutiable proportion of
the secured amount worked out in accordance with
subsection (2).
(2) The dutiable proportion of the secured amount is the
15 amount that bears to the secured amount the same
proportion that, at the liability date, the value of the
mortgaged property in Western Australia bears to the
total value of the mortgaged property (excluding the
value of any part of the mortgaged property that is
20 located in a Territory or outside Australia).
(3) The dutiable proportion must be worked out by
reference to the property values according to a
referable point.
(4) For subsection (3), a referable point is any of the
25 following prepared in the year before the liability date
for the mortgage --
(a) an independent valuation of the secured
property;
(b) a statement of the mortgagee based on
30 information obtained by the mortgagee in
deciding to make the advance to the mortgagor;
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(c) property valuations used by the mortgagor in
preparing an annual return to be lodged under
the Corporations Act;
(d) a financial report of the mortgagor, certified by
5 an independent auditor as presenting a true and
fair view of the corporation's financial position;
(e) agreed property valuations that form the basis
of the mortgagor's insurance policies;
(f) another document the Commissioner considers
10 to be appropriate for working out the dutiable
proportion.
(5) However, if there is more than one referable point for a
mortgage, the referable point is the later or latest of the
referable points.
15 (6) Also, the referable point used for the purposes of this
Act must be the same as the referable point used to
determine liability to mortgage duty under the
corresponding Acts of the other jurisdictions in which
part of the property is located.
20 91A. Mortgage packages
(1) Two or more security instruments constitute a
"mortgage package" if --
(a) at least one of the instruments is a mortgage;
(b) at a liability date, the instruments secure or
25 partly secure the same moneys; and
(c) at least one of the instruments is a security
affecting property wholly or partly outside
Western Australia.
(2) Also, a "mortgage package" includes --
30 (a) a mortgage executed after the liability date if
the Commissioner is satisfied the mortgage was
intended to be part of the package; and
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(b) a mortgage previously collateral to an earlier
advance under one or more of the other
mortgages in the package.
(3) Mortgage duty on a mortgage package is assessed as if
5 the instruments constituting the mortgage package
were one mortgage that was first executed on the day
the last of the executed instruments was executed.
(4) One of the mortgages in the mortgage package must be
stamped with the mortgage duty paid in Western
10 Australia for the mortgage package and each other
mortgage in the mortgage package must be stamped as
a collateral mortgage.
91B. Collateral mortgages
(1) Mortgage duty is not imposed in relation to the part of
15 the amount secured by a collateral mortgage that is
secured by --
(a) a mortgage or security instrument that is
stamped under this Act or a corresponding Act;
or
20 (b) a mortgage package that has been stamped
under section 91A or a corresponding Act.
(2) A collateral mortgage that no longer secures an amount
secured by a mortgage, instrument or mortgage
package mentioned in subsection (1) is not security for
25 another advance unless mortgage duty for the amount
of the other advance is paid.
(3) The Commissioner, on being requested to do so, is to
endorse on the collateral mortgage the mortgage duty
paid on the mortgage, instrument or mortgage package.
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91C. Extent to which mortgage can be enforced
(1) A mortgage or mortgage package for which mortgage
duty is imposed or a similar duty is chargeable under a
corresponding Act is enforceable only to the extent of
5 the amount secured by the mortgage or mortgage
package for which duty has been paid or the mortgage
or mortgage package is exempt from mortgage duty,
under this Act or the corresponding Act.
(2) For subsection (1), mortgage duty has been paid on a
10 mortgage or mortgage package affecting property that
is partly in and partly outside Western Australia if --
(a) duty has been paid on the total advances under
the mortgage or mortgage package when the
mortgage duty paid is taken with the duty paid
15 under a corresponding Act; and
(b) the dutiable proportion of the mortgage or
mortgage package is not incorrect by more
than 5% when worked out under section 91(3).
91D. Use of stamped and collateral mortgages as security
20 (1) A stamped or collateral mortgage that was, but is no
longer, part of the same mortgage package and no
longer secures the same moneys as were or are secured
by the package is not security for another advance
secured by that package unless mortgage duty for the
25 amount of the other advance is paid.
(2) The fact that the stamped or collateral mortgage is no
longer part of the mortgage package does not affect the
amounts for which the remaining mortgages in the
mortgage package provide security.
30 91E. Multi-jurisdictional statement
(1) If mortgage duty is imposed in relation to the dutiable
proportion of a mortgage, (whether for a mortgage over
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property not wholly in Western Australia, a mortgage
package or on original or subsequent advances), the
mortgagor or mortgagee must make a statement in the
approved form about the location and value of the
5 secured property.
Penalty: $5 000.
(2) The making of a statement under subsection (1) by the
mortgagor or mortgagee relieves the other person from
complying with the subsection.
10 (3) The statement may be taken to be the mortgage, or the
instruments comprising the mortgage package, as the
case requires.
91F. Exemptions for charitable or public purposes
If the Commissioner is satisfied that a mortgage has
15 been given to secure an advance that has been, is being
or will be used for a university or any charitable or
similar public purpose, the Commissioner may exempt
the mortgage from mortgage duty.
".
20 80. Section 92 amended
(1) Section 92 is amended as follows:
(a) by inserting before "In" the subsection designation "(1)";
(b) in the definition of "policy of insurance" by deleting
"accident;" and inserting instead --
25 "
accident, but does not include any policy of
life insurance where the period for which the
insurance is effected commences on or after
the day on which section 80 of the Business
30 Tax Review (Assessment) Act (No. 2) 2003
came into operation;
".
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(2) At the end of section 92 the following subsections are
inserted --
"
(2) If --
5 (a) a policy of life insurance, in addition to
providing the insurance referred to in the
definition of "policy of life insurance", also
provides for the payment of a benefit on the
happening of an event or contingency that does
10 not relate to or depend on a life or lives (the
"additional insurance"); and
(b) an identifiable part of the premium payable
under the policy is attributable to the additional
insurance,
15 then to the extent that it provides for the additional
insurance, the policy is a policy of insurance but is not
a policy of life insurance.
(3) Subsection (2) applies --
(a) whether or not the life insurance and the
20 additional insurance are distinct matters for the
purposes of section 19; and
(b) whether or not payment of a benefit under the
additional insurance component of the
policy --
25 (i) will or may reduce the benefit payable
under the life insurance component of
the policy; or
(ii) will or may terminate the policy.
".
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81. Section 92A amended
(1) Section 92A(1) is amended as follows:
(a) by deleting "effects --" and paragraphs (a) and (b) and
"or" between them and inserting instead --
5 "
effects any insurance in respect of --
(a) property in Western Australia; or
(b) any liability, loss or damage occurring or
brought about by the happening of any event
10 within Western Australia,
";
(b) by deleting "prepare and" and "dutiable".
(2) Section 92A(2) is amended by inserting after "be" --
" prepared ".
15 (3) Section 92A(3), (4) and (5) are each amended by deleting
"prepared" and inserting instead --
" lodged ".
82. Section 92B amended
Section 92B(1)(a) and (b) are each amended by deleting ", a
20 policy of life insurance or".
83. Section 96 amended
(1) Section 96(1) and (2) are each amended by deleting "or (3)(a)".
(2) Section 96(4) is repealed.
84. Parts IV (s. 100-107) and IVAC (s. 112H-112HA) repealed
25 Parts IV and IVAC are repealed.
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85. Part IVB (s. 112I-112P) replaced
Part IVB is repealed and the following Part is inserted instead --
"
Part IVB -- Hire of goods
5 Division 1 -- Interpretation in Part IVB
112I. Commercial hire business
(1) For the purposes of this Part, a person who hires out
goods as a business is called a "commercial hire
business".
10 (2) It is immaterial whether or not hiring out the goods is
the principal business of the person or is ancillary to
some other form of business, and whether or not any
such principal or ancillary business is carried on
wholly or partly outside Western Australia.
15 112IA. Goods
For the purposes of this Part, "goods" includes --
(a) all chattels personal;
(b) a fixture which is severable from the realty; and
(c) a fixture which is not severable from the realty,
20 but which is treated by an arrangement between
the owner of the realty and any other person,
made in connection with a grant of the right to
use the fixture, as if it were not a part of the
realty,
25 but does not include books, money, livestock and
things in action.
112IB. Hire of goods
(1) A "hire of goods" is an arrangement under which
goods are or may be used at any time by a person other
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than the person hiring out the goods, except an
arrangement excluded under subsection (3).
(2) There are 2 kinds of hire of goods --
(a) equipment financing arrangements; and
5 (b) ordinary hiring arrangements.
(3) A hire of goods does not include any of the
following --
(a) an arrangement that gives a person a right to
use goods that is incidental to a lease of, or a
10 licence to occupy or use, land, if there is no
apportionment of consideration between the
right to use the goods and the right to possess,
use or occupy the land;
(b) an arrangement made between related
15 corporations;
(c) an arrangement for the hire of an aircraft, ship
or vessel, or for the hire of an engine or other
component part of an aircraft, ship or vessel;
(d) an arrangement for the provision of goods to a
20 trader for the purpose of displaying or
demonstrating the goods pending their sale or
hire to a third party;
(e) an arrangement under which an operator is
provided by or at the direction of the person
25 hiring out the goods to operate the goods for the
hirer (that is, an arrangement that is commonly
known as a "wet hire");
(f) an arrangement for the use of goods the
provision of which is incidental and ancillary to
30 the provision of a service if the provision of the
goods is solely to enable the contractual
provision of the service;
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(g) an arrangement under which a motor vehicle is
subleased by an employee to an employer in
connection with the employee's remuneration
or other employment benefits;
5 (h) an arrangement for the use, by a person who is
partially or totally incapacitated, of an invalid
aid or prosthetic device or of any similar aid,
device or appliance;
(i) a credit contract within the meaning of the
10 Consumer Credit (Western Australia) Code;
(j) an arrangement relating to the use of a caravan
that is to remain on site;
(k) a State hire of goods;
(l) an arrangement that is prescribed by regulations
15 made for the purpose of this subsection.
(4) A hire of goods need not be effected or evidenced by
an instrument in writing for the purposes of this Part.
(5) A hire of goods may be constituted by 2 or more
arrangements, which individually do not constitute a
20 hire of goods.
112IC. State hire of goods
(1) A "State hire of goods" is a hire of goods to which at
least one of the following is a party --
(a) the State;
25 (b) a State instrumentality, agent of the State or
Government authority, designated by the
Minister as an exempt person or body for the
purposes of this subsection;
(c) a person acting on behalf of, or for the benefit
30 of, the State or an exempt person or body.
(2) The Minister may by order published in the Gazette
designate a State instrumentality, agent of the State or
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Government authority as exempt for the purposes of
subsection (1).
(3) An order under subsection (2) may be varied or
revoked by the Minister by a further order published in
5 the Gazette.
112ID. Equipment financing arrangements
(1) An "equipment financing arrangement" is a hire of
goods that consists of --
(a) a hire purchase agreement; or
10 (b) some other agreement for a term of not less
than 9 months and under which the final
payment is payable at least 8 months after the
agreement is entered into.
(2) A "hire purchase agreement" is --
15 (a) a letting of goods with an option to purchase; or
(b) an agreement for the purchase of goods by
instalments (whether the agreement describes
the instalments as rent or hire or otherwise),
but does not include any agreement by which the
20 property in the goods covered by the agreement passes
at the time of the agreement or on or at any time before
the delivery of the goods.
112IE. Hiring charges
(1) "Hiring charges" are payments made by or on behalf
25 of the hirer to the person who hires out the goods --
(a) for the hire of the goods; or
(b) that arise as an incident of the hire of the goods.
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(2) The following charges are included as hiring
charges --
(a) payments for damage waiver or for damage
excess;
5 (b) late return fees;
(c) an amount paid to the person who hires out the
goods for giving the hirer information about, or
rights relating to, the use of the goods for the
purposes of the hire of goods.
10 (3) The following charges are not included as hiring
charges --
(a) payments for delivery, repositioning, erection,
installation, maintenance or cleaning of the
goods;
15 (b) refundable deposits or bonds (unless retained as
hiring charges);
(c) in the case of hire purchase agreements --
deposits or other consideration paid or given to
the person who hires out the goods at or before
20 the time the agreement is made;
(d) insurance premiums payable by the hirer;
(e) an amount equivalent to duty paid or payable
under this Act or interstate duty;
(f) payments for the sale of goods (such as fuel,
25 replacement parts or theft replacement);
(g) an amount equivalent to any GST payable on
the supply to which the hire of goods relates;
(h) a payment by the hirer under a hire of goods if
title to the goods passes to the hirer as a
30 consequence of the payment;
(i) any payment of a type prescribed by the
regulations.
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112IF. Terms used in this Part
In this Part --
"annual duty-free threshold" has the meaning given
by section 112LB(2);
5 "commercial hire business" has the meaning given by
section 112I;
"duty-free threshold", for a return period, is worked
out in accordance with section 112LB(2);
"equipment financing arrangement" has the
10 meaning given by section 112ID(1);
"goods" has the meaning given by section 112IA;
"hire of goods" has the meaning given by
section 112IB;
"hire purchase agreement" has the meaning given by
15 section 112ID(2);
"hirer" means a person who hires goods from a person
who hires out goods under a hire of goods;
"hiring charges" has the meaning given by
section 112IE;
20 "ordinary hiring arrangement" means a hire of
goods that is not an equipment financing
arrangement (see section 112IB(2));
"registered commercial hire business" means a
commercial hire business that is registered under
25 section 112JA;
"return period" has the meaning given by
section 112LC;
"State hire of goods" has the meaning given by
section 112IC.
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Division 2 -- Registration of commercial hire businesses
112J. Commercial hire businesses to be registered
(1) A commercial hire business that is not registered under
section 112JA must apply to be registered under that
5 section if, in a month, the total amount of the hiring
charges received by the commercial hire business in
the month exceeds $4 167.
(2) An application for registration must be made in an
approved form on or before the 21st day after the end of
10 the month referred to in subsection (1).
Penalty: $20 000.
112JA. Registration of commercial hire businesses
(1) The Commissioner must register a commercial hire
business that applies for registration.
15 (2) The Commissioner must register a commercial hire
business that has not applied for registration if satisfied
that the commercial hire business ought to be
registered for the purposes of this Part.
(3) The Commissioner must give notice to a commercial
20 hire business of its registration.
112JB. Cancelling registration of commercial hire
businesses
(1) The Commissioner may cancel the registration of a
commercial hire business on his or her own initiative or
25 at the request of the business.
(2) The Commissioner is not to cancel a commercial hire
business's registration unless satisfied that registration
of the commercial hire business is no longer necessary
for the purposes of this Part.
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(3) A cancellation has effect on and from the day specified
in the notice of cancellation of registration, which may
be a day that is earlier than the day on which the notice
is issued.
5 Division 3 -- Connection to the State
112K. Connection to the State -- hire of goods and
persons to which this Part applies
(1) Duty under Division 4 is payable in relation to a hire of
goods in a return period if the goods are used solely or
10 predominantly in Western Australia during the return
period.
(2) Duty under Division 5 is payable in relation to a hire of
goods if the goods are used solely or predominantly in
Western Australia during the course of the hire.
15 (3) For the purposes of deciding whether goods are used
solely or predominantly in Western Australia --
(a) if a motor vehicle that is registered under the
law of a State or Territory is the subject of an
equipment financing arrangement -- the
20 vehicle is taken to be used solely in that State
or Territory;
(b) if a motor vehicle that is registered under the
law of a State or Territory is the subject of an
ordinary hiring arrangement -- the vehicle is
25 taken to be used solely in the State or Territory
in which it is initially delivered under the
arrangement;
(c) in any other case -- goods are used
predominantly in Western Australia if they are
30 used more in Western Australia than in any
other single State or Territory; and
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(d) if goods are not used solely or predominantly in
any particular State or Territory -- they are
taken to be used predominantly in the State or
Territory in which they are initially delivered
5 under the hire of goods.
Division 4 -- Commercial hire businesses
112L. Lodging returns and paying duty
(1) A registered commercial hire business must --
(a) lodge a return in an approved form for each
10 return period of the commercial hire business;
and
(b) pay the duty payable on the return (if any),
on or before the 21st day after the end of the return
period.
15 Penalty: $5 000.
(2) The commercial hire business must lodge the return
even if no duty is payable on the return.
(3) A commercial hire business that is not registered under
section 112JA must --
20 (a) lodge a return in an approved form for a month
if the total amount of hiring charges received
by the commercial hire business in that month
exceeds $4 167; and
(b) pay the duty payable on the return (if any),
25 on or before the 21st day after the end of the month.
Penalty: $5 000.
(4) The month referred to in subsection (3) is to be treated
as a return period for the purposes of this Part.
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112LA. Calculating the assessable amount for a return
period
(1) The assessable amount for a return period of a
commercial hire business is --
5 (a) the sum of all hiring charges received by the
commercial hire business in the return period;
or
(b) if the Commissioner has, under subsection (2),
approved another basis for calculating the
10 assessable amount for the commercial hire
business -- the amount calculated for the return
period on that basis.
(2) The Commissioner may by notice approve a basis for
calculating an assessable amount for a return period for
15 a commercial hire business if the Commissioner is
satisfied that the amount of duty payable on that basis
will, over a period of time, approximate the amount of
duty otherwise payable using assessable amounts
calculated in accordance with subsection (1)(a).
20 (3) An approval may be revoked by the Commissioner at
any time by notice to the commercial hire business.
(4) A registered commercial hire business may, with the
Commissioner's consent, change the basis for
calculating the assessable amount from return period to
25 return period but it must not change the basis within a
return period.
(5) On the change of basis, the Commissioner may assess
or reassess the duty payable in any return period prior
to the change of basis to include any hiring charges that
30 would not be accounted for, or to exclude any hiring
charges that would otherwise be accounted for twice,
because of the change of basis.
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Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 85
112LB. Calculating the amount of duty payable on a return
(1) The amount of duty payable on the return for a return
period is the amount equal to the sum of --
(a) 0.75% of that part of the assessable amount for
5 the return period that is attributable to
equipment financing arrangements; and
(b) 1.5% of the amount by which that part of the
assessable amount for the return period that is
attributable to ordinary hiring arrangements
10 exceeds the duty-free threshold for the return
period.
(2) The duty-free threshold for a return period is --
annual number of whole months in
duty-free × the return period
threshold 12
where --
"annual duty-free threshold" is $50 000.
15 112LC. Return period for a commercial hire business
The return period of a registered commercial hire
business is --
(a) one month, if a special tax return arrangement
is not in force; or
20 (b) the return period provided in a special tax
return arrangement in force under section 49 of
the Taxation Administration Act 2003.
112LD. Annual reconciliation
(1) If the sum of all assessable amounts of a registered
25 commercial hire business in a financial year does not
exceed the annual duty-free threshold, the commercial
hire business is entitled to a refund or rebate of all duty
paid or payable in respect of those assessable amounts.
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Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 85
(2) If --
(a) the sum of all assessable amounts of a
registered commercial hire business in a
financial year exceeds the annual duty-free
5 threshold;
(b) the assessable amount for one or more return
periods of the commercial hire business in the
year consists of or includes an amount of hiring
charges attributable to ordinary hiring
10 arrangements (an "attributable amount"); and
(c) the sum of all attributable amounts in the year
does not exceed the annual duty-free threshold,
the commercial hire business is entitled to a refund or
rebate of all duty paid or payable in respect of the
15 attributable amounts.
(3) If --
(a) the sum of all assessable amounts of a
registered commercial hire business in a
financial year exceeds the annual duty-free
20 threshold;
(b) the assessable amount for one or more return
periods of the commercial hire business in the
year consists of or includes an amount of hiring
charges attributable to ordinary hiring
25 arrangements (an "attributable amount");
(c) the sum of all attributable amounts of the year
exceeds the annual duty-free threshold; and
(d) the sum of the amounts of duty paid by the
commercial hire business in respect of the
30 attributable amounts in the financial year
exceeds 1.5% of the dutiable amount,
then the commercial hire business is entitled to a rebate
equal to the difference between the total amount of
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Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 85
duty paid in respect of the attributable amounts and
1.5% of the dutiable amount.
(4) In subsection (3)(d) --
"dutiable amount" means the amount by which the
5 sum of the attributable amounts in the financial
year exceeds the annual duty-free threshold for the
financial year.
(5) If a commercial hire business is registered for a part of
a financial year, then, in applying subsection (1), (2)
10 or (3), the annual duty-free threshold for the
commercial hire business is reduced as follows --
annual number of days in the year the commercial
duty-free × hire business was registered
threshold number of days in the year
(6) Subject to section 17(4) of the Taxation Administration
Act 2003, the Commissioner must make any
assessment necessary to give effect to this section.
15 Division 5 -- Persons other than commercial
hire businesses
112M. Statement of transaction
(1) If a hirer hires goods under a hire of goods from a
person who is not a commercial hire business and the
20 total amount of hiring charges paid or payable for the
hire of the goods is at least $1 000, the hirer must
prepare a statement that includes particulars of the
following --
(a) the name and address of each party to the hire;
25 (b) a description of the goods;
(c) the commencement date and the term of the
hire;
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Business Tax Review (Assessment) Bill (No. 2) 2003
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Stamp Act 1921 amended Division 1
s. 85
(d) the total of the hiring charges paid or payable
over the term of the hire;
(e) the intervals at which the hiring charges are
paid or payable.
5 (2) The statement must be prepared at or before the earlier
of --
(a) the time that the hirer makes the first (or only)
payment of hiring charges; or
(b) the time that the hiring charges become
10 payable.
Penalty applicable to subsections (1) and (2): $5 000.
(3) This section does not require a separate statement to be
prepared if the hire is already evidenced in a document
that otherwise complies with this section, in which
15 case, the document is taken to be the statement.
(4) The hirer need not prepare a statement under
subsection (1) if the hire of goods is wholly for private
or domestic purposes.
112MA. Lodging statements and paying duty
20 (1) Within 3 months after the statement is required to be
prepared, the hirer must --
(a) lodge the statement with the Commissioner;
and
(b) pay the duty payable on the statement.
25 Penalty: $5 000.
(2) Duty payable on a statement is --
(a) 0.75% of the total amount of hiring charges if
the hire of goods is an equipment financing
arrangement; or
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Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 85
(b) 1.5% of the total amount of hiring charges if
the hire of goods is an ordinary hiring
arrangement.
112MB. Method of calculating total hiring charges if they
5 are not readily ascertainable
(1) If the Commissioner is satisfied that it is not reasonably
practicable to calculate the total of the hiring charges
payable over the term of the hire by the time a
statement is required to be lodged under
10 section 112MA, the Commissioner may, in a notice
given to the hirer, require the hirer to prepare one or
more statements, at the time or times specified in the
notice, to take the place of the statement required by
section 112M.
15 (2) To the extent possible, the statement or statements
must include the same information as is specified in
section 112M.
(3) Within 3 months after a statement is required to be
prepared, the hirer must --
20 (a) lodge the statement with the Commissioner;
and
(b) pay duty on the statement calculated in
accordance with section 112MA(2) to the
extent that the total hiring charges are
25 ascertainable at the time the statement is
prepared.
Penalty: $5 000.
(4) The amount of duty paid on a prior statement relating
to the same hire of goods is to be deducted from the
30 duty payable on any subsequent statement.
page 130
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 85
Division 6 -- General provisions
112N. Credit for duty paid in another Australian
jurisdiction
The duty otherwise payable under this Part in respect
5 of a hire of goods is reduced by the amount of
interstate duty paid in respect of the hire.
112NA. Splitting or redirecting hiring charges --
anti-avoidance provision
(1) The Commissioner may include in an assessment or
10 reassessment, as part of an amount received as hiring
charges, any of the following --
(a) a payment, or a portion of the payment, under a
hire of goods that is not a hiring charge,
including a charge referred to in
15 section 112IE(3), that the Commissioner is
satisfied has been made or included in the
payment for the purpose of minimising duty
under this Part;
(b) a payment that would be a hiring charge except
20 for the fact that it is paid to a person other than
the person who hires out the goods.
(2) The Commissioner may include in an assessment or
reassessment penalty tax of an amount equal to the
amount included in the assessment or reassessment
25 under subsection (1).
112NB. Ascertainment and disclosure of place of use of
goods
(1) A commercial hire business may, in determining the
commercial hire business's liability to duty, rely on a
30 statement of the hirer as to --
(a) where the goods will be solely or
predominantly used in the course of the hire; or
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Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 85
(b) in the case of an unregistered motor vehicle,
where the motor vehicle will be registered
during the course of the hire,
unless the commercial hire business knows that the
5 statement is false.
(2) A commercial hire business is not bound to inquire as
to any change in the place of use of the goods or, in the
case of a motor vehicle, the place of its registration, but
cannot continue to rely upon a statement referred to in
10 subsection (1) if the commercial hire business becomes
aware of a change in the place of use or registration.
(3) If goods are solely or predominantly used in a place
other than the place advised by the hirer in a statement
referred to in subsection (1), the Commissioner may
15 assess or reassess the duty payable according to the
actual place of sole or predominant use of the goods.
(4) If a motor vehicle is registered in a place other than the
place advised by the hirer in a statement referred to in
subsection (1), the Commissioner may assess or
20 reassess the duty payable according to the place of its
registration.
(5) A person who fails to pay duty on a hire of goods in
reliance on a statement referred to in subsection (1)
does not contravene a taxation Act for the purposes of
25 the Taxation Administration Act 2003 and the person is
not liable to penalty tax unless the duty is not paid
within one month after the issue of a notice of
assessment of the duty.
(6) A hirer who knowingly falsely makes a statement
30 referred to in subsection (1) (whether it is relied upon
or not) is guilty of an offence.
Penalty applicable to subsection (6): $20 000.
page 132
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 86
112NC. Records
A commercial hire business and a hirer who must
prepare a statement under Division 5 must keep --
(a) the records that are prescribed in the regulations
5 for the purposes of this section (if any); and
(b) any other records necessary to enable the
Commissioner to determine the person's
liability to duty under this Part.
Penalty: $20 000.
10 ".
86. Section 119 amended
(1) Section 119(4) and (5) are each amended by deleting "or 4A".
(2) Section 119(9) is repealed.
87. Second Schedule amended
15 (1) The amendments in this section are to the Second Schedule.
(2) Item 2 is deleted.
(3) Item 4 is amended by deleting "(except any marketable security
or right in respect of shares)".
(4) Item 4A is deleted.
20 (5) Item 6 is amended as follows:
(a) in the second column, under the heading "Nature of
instrument" --
(i) after paragraph (b) by inserting --
" or ";
25 (ii) at the end of paragraph (c) by deleting the
semicolon and "or" after it and inserting instead
a fullstop; and
(iii) by deleting paragraph (d);
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Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 1 Stamp Act 1921 amended
s. 88
(b) in the third column, under the heading "Duty payable",
by deleting "or 4A (as the case may be)".
(6) Item 12 is amended as follows:
(a) subitem (2) is deleted;
5 (b) subitem (3) is amended by deleting "combined" and
"and the duty payable on a lease or agreement for a lease
for the rent under subitem (2)";
(c) subitems (4) and (5) are deleted.
(7) Item 14(2) is amended by inserting before "registered" --
10 " licensed or ".
(8) Item 14A is amended by deleting "or 4A, as the case requires"
in both places where it occurs.
(9) Item 16 is amended as follows:
(a) subitems (1) and (2) are each amended by deleting ",
15 other than life insurance";
(b) subitem (3) is deleted.
(10) Item 17 is amended by deleting "or 4A(1), as the case requires".
(11) Item 19 is amended as follows:
(a) by deleting "or 4A(1), as the case requires";
20 (b) by deleting "items 4 and 4A(1)" and inserting instead --
" item 4 ".
88. Third Schedule amended
(1) The amendments in this section are to the Third Schedule.
(2) Item 1 is deleted.
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Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Stamp Act 1921 amended Division 1
s. 88
(3) Item 2 is amended as follows:
(a) by deleting subitem (1) and inserting the following
subitem instead --
"
5 (1) A conveyance or transfer of a marketable security or
right in respect of shares or an agreement under which
an option is given or taken to purchase or sell a
marketable security or right in respect of shares.
";
10 (b) in subitem (7c) by deleting "and 31B(1)(ca) and (cb)"
and inserting instead --
" and referred to in section 31B(3)(b) or (c) ";
(c) by deleting subitems (8) and (9);
(d) in subitem (11) --
15 (i) at the end of paragraph (e) by deleting "; or" and
inserting a full stop; and
(ii) by deleting paragraph (f).
(4) After item 3(5) the following subitems are inserted --
"
20 (6) Draft or order drawn by any financial institution in Western
Australia on any other financial institution in Western
Australia not payable to bearer or order, and used solely for
the purpose of settling or clearing any account between
those financial institutions.
25 (7) Letter written by a financial institution in Western Australia
to any other financial institution in Western Australia
directing the payment of any sum of money, the same not
being payable to bearer or to order, and that letter not being
sent or delivered to the person to whom payment is to be
30 made or to any person on his behalf.
(8) Letter of credit granted in Western Australia authorising
drafts payable in Western Australia to be drawn out of
Western Australia.
".
page 135
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 2 Transitional provisions
s. 89
(5) Item 6(2) is deleted.
(6) Item 7 is amended as follows:
(a) by deleting the heading and inserting instead --
" MORTGAGES (INCLUDING HOME MORTGAGES) ";
5 (b) in subitem (3) by deleting "or bond";
(c) by deleting subitems (1), (2), (4), (5), (6), (7), (8), (9)
and (10).
(7) Item 9 is amended as follows:
(a) in subitem (2) by inserting after "licensed" in each place
10 where it occurs --
" or registered ";
(b) in subitem (4)(b) by inserting after "licence" --
" or registration ";
(c) in subitem (5)(a) and (b) by inserting after "licensed" in
15 each place where it occurs --
" or registered ".
Division 2 -- Transitional provisions
89. Registered pooled investment trusts
(1) In this section --
20 "commencement day" means the day on which this section
came into operation;
"former provisions" means the Stamp Act 1921, as in force
immediately before the commencement day;
"new provisions" means the Stamp Act 1921, as in force on the
25 commencement day;
"start up period" has the same meaning as it has in
section 63AC(2) of the former provisions and refers to a
period that ends on or after the commencement day.
page 136
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Transitional provisions Division 2
s. 90
(2) Without limiting sections 63AD and 63AE of the new
provisions, a disqualifying event occurs for the purposes of
those sections if --
(a) on the commencement day, a pooled investment trust
5 registered under section 63AA(2) of the former
provisions; or
(b) on the day on which the start up period ends, a pooled
investment trust granted interim registration under
section 63AC(2) of the former provisions,
10 does not comply with section 63AB(2) of the new provisions.
(3) Subject to subsection (2) and to the new provisions other than
section 63AA(3a), if the registration of a pooled investment
trust under section 63AA(2) of the former provisions has effect
immediately before the commencement day, that registration
15 continues to have effect for the period of 3 years from that day.
90. Determinations under section 75JBA or 75JC
(1) In this section --
"commencement day" means the day on which this section
came into operation.
20 (2) If, before the commencement day, the Commissioner made a
determination --
(a) under section 75JBA that a controlling body would be
approved and the claw-back waived; or
(b) under section 75JC that an exemption would be granted,
25 the determination is as binding on the Commissioner after the
commencement day as it was before that day, even if any of the
relevant provisions of the Stamp Act 1921 have been amended
or repealed by this Act.
page 137
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 2 Transitional provisions
s. 91
91. Agreements for lease
The amendments effected by sections 5, 77, 78 and 87(6) do not
apply in relation to --
(a) an agreement for lease executed before this section came
5 into operation regardless of when any lease entered into
in accordance with the agreement is executed; or
(b) any such lease, regardless of when it is executed.
92. Mortgages
(1) In this section --
10 "amended Act" means the Stamp Act 1921 as amended by
this Act and the Business Tax Review (Taxing)
Act (No. 2) 2003;
"commencement day" means the day on which section 79
came into operation;
15 "former Act" means the Stamp Act 1921 as in force from time
to time before the commencement day.
(2) The amended Act does not apply to a mortgage or other security
on which duty was payable under Part IIIE of the former Act if
the amount secured by the mortgage does not increase on or
20 after the commencement day.
(3) However, a mortgage that was liable to duty under Part IIIE of
the former Act is liable to duty under Part IIIE of the amended
Act as if the mortgage had first been executed after the
commencement day if an advance as defined in Part IIIE of the
25 amended Act is made under the mortgage after the
commencement day.
93. Life insurance
The amendments effected by sections 80, 81, 82, 83 and 87(9)
do not apply in relation to a policy of life insurance where the
30 period for which the insurance is effected commenced before
this section came into operation.
page 138
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Transitional provisions Division 2
s. 94
94. Hire of goods
(1) In this section --
"commencement" means the time at which section 85 came
into operation;
5 "new Part IVB" means Part IVB of the Stamp Act 1921 as in
force after commencement and, for the purposes of this
section, is taken to include item 18 of the Second Schedule
as in force after commencement;
"old Part IVB" means Part IVB of the Stamp Act 1921 as in
10 force immediately before commencement and, for the
purposes of this section, is taken to include item 18 of the
Second Schedule as in force immediately before
commencement.
(2) An expression used in this section that is given a meaning in the
15 Stamp Act 1921 (including old Part IVB and new Part IVB) has
the meaning so given unless the contrary intention appears.
(3) On commencement, a person who was registered under old
Part IVB immediately before commencement is taken, for all
purposes, to have been registered under section 112JA of new
20 Part IVB.
(4) For the purposes of the ongoing application of old Part IVB
under subsection (7), the registration of a person who was
registered under old Part IVB immediately before
commencement is taken to continue under old Part IVB, unless
25 the person's registration is cancelled under new Part IVB.
(5) On commencement, a designation made by the Minister under
section 112N(1)(fa)(ii) of old Part IVB and in force immediately
before commencement is taken, for all purposes, to have been
made under section 112IC(2) of new Part IVB.
30 (6) New Part IVB applies to hiring charges received under a hire of
goods entered into after commencement.
page 139
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 2 Stamp duty changes
Division 3 Amendments to other Acts
s. 95
(7) Despite the repeal of old Part IVB, it continues to apply --
(a) in relation to the conduct of a rental business before
commencement; and
(b) in relation to the conduct of a rental business after
5 commencement to the extent that the conduct of the
rental business relates to rights, granted before
commencement, to which old Part IVB applied before
commencement.
(8) To the extent that section 112O of old Part IVB has effect after
10 commencement in relation to the conduct of a rental business, it
has effect subject to the Taxation Administration Act 2003.
Division 3 -- Amendments to other Acts
95. Taxation Administration Act 2003 amended
(1) The amendments in this section are to the Taxation
15 Administration Act 2003*.
[* Act No. 1 of 2003.]
(2) After section 18 the following section is inserted --
"
18A. Withdrawal of assessment
20 (1) The Commissioner may, within 5 years after the issue
of a notice of assessment, withdraw the assessment.
(2) An assessment may not be withdrawn if any amount of
tax has been paid on the assessment.
(3) The Commissioner must give a written notice of
25 withdrawal to the taxpayer.
(4) If an assessment in respect of an event or transaction is
withdrawn, the assessment is taken never to have been
made and, subject to this Act, the Commissioner may
make an assessment in respect of the event or
page 140
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty changes Part 2
Amendments to other Acts Division 3
s. 96
transaction at any time after the first-mentioned
assessment is withdrawn.
".
(3) Section 20(3) is amended as follows:
5 (a) by deleting "prepared and";
(b) by deleting "prepared or, if prepared, has not been";
(c) by deleting "treat it as if the memorandum were the
instrument" and inserting instead --
"
10 for the purposes of the taxation Act and this Act the
memorandum is taken to be the instrument lodged by
the person required to lodge it under the taxation Act
".
(4) Section 26(1)(a) is deleted.
15 (5) The Glossary is amended as follows:
(a) in the definition of "instrument", in paragraph (a), by
deleting "bill of exchange, promissory note,";
(b) in the definition of "penalty tax", in paragraph (c), by
deleting "or 76J(2)(b)" and inserting instead --
20 " , 76J(2)(b) or 112NA(2) ".
96. Totalisator Agency Board Betting Act 1960 amended
(1) The amendment in this section is to the Totalisator Agency
Board Betting Act 1960*.
[* Reprinted as at 8 November 2002.]
25 (2) Section 29 is amended by deleting "or cheque drawn".
page 141
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 3 Stamp duty on workers compensation insurance policies
s. 97
Part 3 -- Stamp duty on workers compensation
insurance policies
97. The Act amended
The amendments in sections 98 and 99 are to the Stamp
5 Act 1921*.
[* Reprinted as at 3 August 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 368 and
Act No. 21 of 2003.]
10 98. Section 92 amended and transitional
(1) Section 92 is amended in the definition of "policy of insurance"
by deleting all of the definition after "against" and inserting
instead --
"
15 accident, but does not include --
(a) any policy of life insurance where the period
for which the insurance is effected
commences on or after the day on which
section 80 of the Business Tax Review
20 (Assessment) Act (No. 2) 2003 came into
operation; or
(b) any policy of insurance against an
employer's liability to pay compensation
under the Workers' Compensation and
25 Rehabilitation Act 1981 where the period for
which the insurance is effected commences
on or after 30 June 2004;
".
(2) The amendments effected by this section and section 99 do not
30 apply in relation to a policy of insurance against an employer's
liability to pay compensation under the Workers' Compensation
page 142
Business Tax Review (Assessment) Bill (No. 2) 2003
Stamp duty on workers compensation insurance policies Part 3
s. 99
and Rehabilitation Act 1981 where the period for which the
insurance was effected commenced on or before 29 June 2004.
99. Second Schedule amended
The Second Schedule, item 16(1)(a) and (1a) are deleted.
5 100. Taxation Administration Act 2003 amended and transitional
(1) The amendment in this section is to the Taxation Administration
Act 2003*.
[* Act No. 1 of 2003.]
(2) Section 114(3)(f) is deleted.
10 (3) The amendment effected by this section does not apply in
relation to a policy of insurance of the kind described in that
section 114(3)(f) if the period for which the insurance is
effected commenced on or before 29 June 2004.
page 143
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 4 Debits Tax Assessment Act 2002 amended
s. 101
Part 4 -- Debits Tax Assessment Act 2002 amended
101. The Act amended
The amendments in this Part are to the Debits Tax Assessment
Act 2002*.
5 [* Act No. 50 of 2002.]
102. Section 5 amended
Section 5(4) is amended by inserting the following paragraph
before paragraph (a) --
"
10 (aa) a debit made on or after 1 July 2005;
".
103. Section 9 amended
After section 9(4) the following subsection is inserted --
"
15 (5) A financial institution is not required to lodge a
monthly return under subsection (1) or (2) for a month
commencing on or after 1 July 2005.
".
104. Section 10 amended
20 Section 10(1) is amended by inserting after "all debits" --
" made, or to be made, before 1 July 2005 ".
105. Section 12 amended
(1) Section 12(1) is amended by inserting after "certificated
account" --
25 " before 1 July 2005 ".
page 144
Business Tax Review (Assessment) Bill (No. 2) 2003
Debits Tax Assessment Act 2002 amended Part 4
s. 106
(2) Section 12(2) is amended by inserting after "30 days" --
" and before 1 July 2005 ".
106. Section 14 amended
After section 14(2) the following subsection is inserted --
5 "
(3) A financial institution is not required to lodge an
annual statement under subsection (1) for the year 2006
or any subsequent year.
".
page 145
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 5 Minor amendments
s. 107
Part 5 -- Minor amendments
107. Stamp Act 1921 amended
(1) The amendments in this section are to the Stamp Act 1921*.
[* Reprinted as at 3 August 2001.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 368 and
Act No. 21 of 2003.]
(2) Section 4(1) is amended by inserting the following definition in
the appropriate alphabetical position --
10 "
"unencumbered value" has a meaning affected by
section 33;
".
(3) Section 35(1) and (2) are each amended by deleting "Stamp
15 Act" and inserting instead --
" stamp Act ".
(4) Section 75HA(7)(b)(ii) is amended by deleting "section 76AN"
and inserting instead --
" section 76AG ".
20 (5) Section 76(2)(b)(iv) is amended by deleting "person" and
inserting instead --
" individual ".
(6) Section 88A is amended by deleting the subsection
designation "(1)".
25 (7) In the Second Schedule item 4A is amended by inserting before
"Conveyance" the subitem designation "(1)".
page 146
Business Tax Review (Assessment) Bill (No. 2) 2003
Minor amendments Part 5
s. 108
108. Taxation Administration Act 2003 amended
(1) The amendments in this section are to the Taxation
Administration Act 2003*.
[* Act No. 1 of 2003.]
5 (2) Section 23(2) is amended as follows:
(a) by deleting "if the Commissioner";
(b) in paragraph (a) by inserting before "makes a
reassessment" --
" if the Commissioner ";
10 (c) after paragraph (a) by deleting "or";
(d) in paragraph (b) by inserting before "assesses the
amount" --
" if the Commissioner ";
(e) after paragraph (b) by deleting the full stop and
15 inserting --
"
; or
(c) if no tax is payable under an exemption
(however expressed) provided under the Land
20 Tax Assessment Act 2002.
".
(3) The Glossary is amended as follows:
(a) by inserting the following definition in the appropriate
alphabetical position --
25 "
"approved" means approved by the Commissioner;
";
(b) in the definition of "instrument", in paragraph (a), by
deleting "insurance policy" and inserting instead --
30 " policy of insurance ".
page 147
Business Tax Review (Assessment) Bill (No. 2) 2003
Part 5 Minor amendments
s. 109
109. Land Tax Assessment Act 2002 amended
(1) The amendments in this section are to the Land Tax Assessment
Act 2002*.
[* Act No. 52 of 2002.]
5 (2) Section 29(4) is amended by deleting "rural zone" and inserting
instead --
" non-rural zone ".
page 148
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