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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Duties Bill 2007
CONTENTS
Chapter 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
4. Relationship with Taxation Administration
Act 2003 7
5. GST and value or consideration 8
6. Family relationships 8
7. The term "wound up" 8
8. Notes in the text 9
Chapter 2 -- Transfer duty
Part 1 -- Preliminary
9. Terms used in this Chapter 10
Part 2 -- Imposition of transfer duty
10. Transfer duty imposed 12
Part 3 -- Dutiable transactions and
dutiable property
Division 1 -- Dutiable transactions
11. The term "dutiable transaction" 13
12. Vesting of property in Western Australia by statute
law -- section 11(1)(d)(i) 14
13. The term "farm-in agreement" -- section 11(1)(j) 15
14. Transactions for chattels alone not usually dutiable
transactions 15
259--2 page i
Duties Bill 2007
Contents
Division 2 -- Dutiable property
15. The term "dutiable property" 16
16. The term "right" 16
17. The term "new dutiable property" 17
18. The term "special dutiable property" 18
Part 4 -- Collection of transfer duty
Division 1 -- Liability for transfer duty
19. When liability for duty arises 18
20. Person liable to pay duty 19
21. Joint tenants to be treated as tenants in common in
equal shares 19
Division 2 -- Lodging transaction
records
22. Transfer duty statement to be made if no
instrument 19
23. Lodging instrument or statement 20
24. Form of a dutiable transaction 21
Division 3 -- Payment of transfer duty
25. Payment of duty 21
Division 4 -- Rate of transfer duty
26. Rate of transfer duty 22
Division 5 -- Dutiable value
27. Dutiable value of dutiable transactions, unless
otherwise provided 23
28. Dutiable value of certain dutiable transactions 23
29. Dutiable value of certain dutiable transactions
relating to corporation or unit trust scheme
property on winding up 24
30. Consideration for a dutiable transaction 30
31. Assessment or reassessment if consideration is
altered 30
32. Reassessment if contingent consideration is not
paid 32
33. Reassessment if agreement determined with
consideration only partly paid 33
34. Reassessment if option exercised or not renewed 34
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Duties Bill 2007
Contents
35. Credit for duty already paid on option to acquire
dutiable property 35
36. Unencumbered value of property 36
37. Aggregation of dutiable transactions 38
38. Apportionment 39
39. Partitions 40
40. Exchanges 41
Division 6 -- No double duty
41. No double duty -- general 41
42. No double duty -- particular dutiable transactions 42
43. Purchaser and transferee related for the purpose of
section 42(2)(a) 47
Part 5 -- Application of this Chapter
to certain transactions
Division 1 -- Simultaneous put and call
options
44. Terms used in this Division 49
45. Call option of simultaneous put and call option to
be taken to be an agreement for the transfer of the
option property 50
46. Dutiable value of simultaneous put and call option 51
47. Credit if duty paid on a dutiable transaction
referred to in section 45 51
48. Assessment or reassessment if simultaneous put
and call option not exercised or assigned 52
49. Assignment of call option to be taken to be an
agreement for the transfer of the option property 53
50. Dutiable value of assignment of call option 53
51. Credit if duty paid on a dutiable transaction
referred to in section 49 54
52. Assessment or reassessment if assigned call option
not exercised or further assigned 54
Division 2 -- Discretionary trust
acquisitions and surrenders
53. Property held by a partnership or trust 55
54. The term "taker in default" 55
55. The term "trust acquisition" 55
56. The term "trust surrender" 56
page iii
Duties Bill 2007
Contents
57. When a discretionary trust holds an indirect
interest in dutiable property 56
58. Acquiring an interest in a discretionary trust 56
59. Dutiable value of a trust acquisition or trust
surrender 57
60. Interest in a discretionary trust of a taker in default 57
61. Value of a taker in default's interest in a
discretionary trust 58
62. When a trust acquisition or trust surrender is not a
dutiable transaction 58
Division 3 -- Corporate trustees
63. Terms used in this Division 59
64. Reference to property held by trustees 60
65. The term "corporate trustee" 60
66. When a corporate trustee holds an indirect interest
in dutiable property 60
67. Share disposition taken to be an agreement for the
transfer of trust property 60
68. Dutiable value of a transaction referred to in
section 67 61
69. Person liable to pay duty on a disposition of a
share 61
Division 4 -- Partnerships
70. The term "dutiable property" 62
71. References to property held by a partnership or
trust 62
72. The term "partnership acquisition" 62
73. When a partnership holds an indirect interest in
land in Western Australia 62
74. Partner's partnership interest 63
75. Acquiring a partnership interest 63
76. Dutiable value of a partnership acquisition 63
77. Value of a partnership interest 64
78. Dutiable value of a transaction reduced for transfer
of dutiable property to a partner on retirement or
dissolution 65
Division 5 -- Western Australian
business assets
79. Terms used in this Division 66
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Duties Bill 2007
Contents
80. Transactions involving business licences that are to
be taken to be an agreement to transfer a Western
Australian business asset 69
81. Transactions for particular Western Australian
business assets that are not dutiable transactions 69
82. Dutiable value of dutiable transactions for business
assets 70
83. Dutiable value of certain business licences required
by a law of the Commonwealth 71
84. Dutiable value of business licences required by a
law of Western Australia 71
85. Head office or principal place of business in
Western Australia 72
86. Head office or principal place of business in
another State 72
Division 6 -- Conditional agreements
87. Conditional agreements 73
88. The term "farming land conditional agreement" 77
89. The term "mining tenement conditional
agreement" 77
90. The term "off-the-plan conditional agreement" 78
91. The term "subdivision conditional agreement" 78
Part 6 -- Exemptions, nominal duty
and concessions
Division 1 -- Exemptions
92. Declaration of public authorities as exempt bodies 78
93. No duty if an exempt body would be solely liable 78
94. Duty reduction and liability if an exempt body and
another party would be liable 79
95. Transactions for charitable or similar public
purposes are exempt transactions 80
96. Terms used in this Subdivision 80
97. Transactions between spouses or de facto partners
that are exempt transactions 81
98. Application for exemption under this Subdivision 81
99. Terms used in this Subdivision 82
100. The term "family member" 83
101. The term "transferee" 83
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Duties Bill 2007
Contents
102. Transactions between family members for farming
property that are exempt family farm transactions 84
103. No duty on exempt family farm transactions 86
104. No exemption for subsequent transactions for the
same farming property within 5 years 86
105. Subsequent liability to duty in certain
circumstances 87
106. Application for an exemption under this
Subdivision 88
107. Cancelled transactions 88
108. Bankruptcy transactions 90
109. Transactions involving representatives of another
country 90
110. Financial Sector (Transfers of Business) Act 1999
Part 4 transactions 91
111. Special disability trust transactions 91
112. Transactions under other Acts 91
113. Transactions effected by a matrimonial instrument
or a de facto relationship instrument 93
Division 2 -- Nominal duty
114. Certain dutiable transactions on vesting or
termination of discretionary trust 93
115. Certain dutiable transactions on exercise of power
of appointment by trustee of discretionary trust 93
116. Transfer of, or agreement for the transfer of,
dutiable property to a beneficiary 94
117. Property vested in an apparent purchaser 95
118. Transfer to and from a trustee 96
119. Dutiable transactions related to changes in trustees
and managed investment schemes 96
120. Transfer by way of security 98
121. Terms used in this Subdivision 99
122. Transfer of, or agreement for the transfer of,
dutiable property to a superannuation fund for
consideration 100
123. Subsequent liability in certain circumstances 101
124. Transfer of, or agreement for the transfer of,
dutiable property to a superannuation fund without
consideration 101
125. Transfer from one superannuation fund to another 102
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Duties Bill 2007
Contents
126. Transfer of, or agreement for the transfer of,
dutiable property between trustees and custodians
of superannuation funds 103
127. Transfer of, or agreement for the transfer of,
dutiable property from superannuation fund to
member 104
128. Terms used in this Subdivision 104
129. The term "matrimonial instrument" 105
130. The term "de facto relationship instrument" 106
131. Transactions effected by or in accordance with a
matrimonial instrument or a de facto relationship
instrument 106
132. Reassessment on application 107
133. Evidence as to marriage or de facto relationship 108
134. Transfer of, or agreement for the transfer of,
certain lots under a planning scheme 108
135. Farm-in agreements 109
136. Business licences held under the Fish Resources
Management Act 1994 109
137. Change of tenure 109
138. Correction of clerical errors in previous dutiable
transactions 110
139. Deceased estates 110
140. Other dutiable transactions prescribed 111
Division 3 -- First home owner
concessions
141. Terms used in this Division 111
142. Transactions by first home owners that are
concessional transactions 112
143. Concessions for first home owners 113
144. Application for concession under this Division 114
145. Subsequent liability in certain circumstances 115
146. Other provisions about first home owner
concessions 115
Division 4 -- Residential or business
concessions
147. Concessional rates for transactions referred to in
Stamp Act 1921 section 75AE 116
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Duties Bill 2007
Contents
Chapter 3 -- Landholder Duty
Part 1 -- Preliminary
148. Terms used in this Chapter 117
149. Entitlement to land: effect of uncompleted
agreements; fixtures 118
150. Meaning of "unencumbered value" of land or
chattels 119
Part 2 -- Imposition of landholder
duty
151. Landholder duty imposed 119
Part 3 -- Certain key concepts
defined and related provisions
152. The term "entity" 119
153. Meaning of "interest" in a landholder or other
entity 119
154. Determination of interests 120
Part 4 -- Landholders to which this
Chapter applies
155. Entities that are landholders 122
156. Entities that are linked 123
157. Value of land of linked entity 124
158. Extent of interest in discretionary trust 124
159. Extent of interest in partnership 125
Part 5 -- Acquisitions .to which this
Chapter applies
Division 1 -- Means by which interest
acquired
160. Acquisition of an interest in an entity 125
Division 2 -- Relevant acquisitions of
interests in landholders
161. Terms used in this Division 126
162. Persons that are related 126
163. Acquisition of significant interest in a landholder 128
164. Acquisition of further interest by holder of
significant interest 128
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Duties Bill 2007
Contents
165. Meaning of "acquisition" in this Subdivision 129
166. Effect of acquisition being exempt 129
167. Exemption if nominal duty would be chargeable on
transfer 129
168. Exemption if transfer duty would not be
chargeable 129
169. Exemption if acquisition is dutiable under
section 67 130
170. Exemption relating to approved arrangements with
creditors under the Corporations Act 130
171. Exemption of acquisition by family member of
interest in corporation engaged in primary
production 130
172. Calculation of duty where some land of
corporation not used for primary production 131
173. Reversal of exemption where certain changes made
to discretionary trust 132
174. No exemption where interest transferred within
5 years 133
Part 6 -- Collection of landholder
duty
Division 1 -- Preliminary
175. The term "acquirer" 134
176. When an acquisition occurs 134
177. Certain transactions to be treated as agreements 135
178. Exceptions to section 177 136
Division 2 -- Liability
179. Person liable to pay duty 136
180. Application to Commissioner for determination of
liability 137
181. Determination of application 138
182. Powers of Commissioner where further
information required for determination of
application 138
Division 3 -- Payment of landholder
duty
183. Payment of landholder duty 139
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Duties Bill 2007
Contents
Division 4 -- Rates of landholder duty
184. Rates of landholder duty 140
Division 5 -- Calculation of landholder
duty
185. The term "interest of the acquirer" 140
186. Value of landholder 140
187. Time of determination of the value of further
interests for calculation of duty 141
188. Calculation of duty 141
189. Reduction where significant interest acquired in a
landholder 142
190. Meaning of "excluded interest" for section 189 142
191. Reduction where further interest acquired in a
landholder 143
192. Meaning of "excluded interest" for section 191 143
193. Calculation of duty where statement lodged under
section 201 144
194. Calculation of duty in respect of certain
acquisitions on winding up of corporation or unit
trust scheme 144
Division 6 -- Reassessment of liability
for landholder duty
195. Reassessment of duty where section 149 was
applied 147
196. Reassessment of duty where section 176(2) was
applied 148
197. Further matter to be considered by the
Commissioner 149
198. Taxation Administration Act not affected 149
Division 7 -- Lodgment of statements
199. The term "acquisition statement" 149
200. Acquisition statement to be lodged 150
201. Acquisition of further interests in landholder:
lodgment of periodical statements may be
approved 150
202. Lodgment obligations where application under
section 201 refused 152
203. Form and content of acquisition statements 152
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Duties Bill 2007
Contents
204. Failure to lodge acquisition statement 153
Division 8 -- Information to be provided
to Parliament
205. Minister to inform Parliament of amounts of duty
assessed and duty paid during 3 years following
commencement of this Chapter 153
Chapter 4 -- Insurance duty
Part 1 -- Preliminary
206. Terms used in this Chapter 155
Part 2 -- Imposition of insurance
duty
207. Insurance duty imposed 156
208. Contracts of insurance 156
209. General insurance and connection to the State 156
210. Additional insurance -- life riders 157
211. The term "premium" 158
212. When a premium is paid 158
Part 3 -- Collection of insurance duty
Division 1 -- Liability
213. Person liable to pay duty 159
214. The term "general insurer" 159
Division 2 -- Amount of insurance duty
215. Amount of duty payable 159
216. Apportionment of premiums and instalments 160
Division 3 -- Insurers
217. Insurers to be registered 161
218. Registration of insurers 161
219. Return period of an insurer 161
220. Insurers to lodge returns 161
221. Time for payment of duty by insurers 162
222. Cancelling registration of insurers 162
Division 4 -- Insured persons
223. Insured persons to lodge statements 163
224. Time for payment of duty by insured persons 163
page xi
Duties Bill 2007
Contents
Part 4 -- General provisions as to
insurance duty
225. Insurer and intermediary to notify Commissioner
of contracts of insurance 163
226. Refunds 164
227. Records 165
Chapter 5 -- Vehicle licence
duty
Part 1 -- Preliminary
228. Terms used in this Chapter 166
Part 2 -- Imposition of vehicle licence
duty
229. Vehicle licence duty imposed 167
230. Vehicles and their licences 167
Part 3 -- Collection of vehicle licence
duty
Division 1 -- Preliminary
231. Terms used in this Part 168
Division 2 -- Liability
232. Person liable to pay duty 169
Division 3 -- Assessment and payment of
vehicle licence duty
233. Assessment of duty 169
234. Applicant's statement of value in application 170
235. Payment of duty 170
Division 4 -- Amount of vehicle licence
duty
236. Amount of duty payable 171
Division 5 -- Dutiable value of a vehicle
237. Dutiable value of certain new vehicles 172
238. Dutiable value of certain other vehicles 172
239. Dutiable value of specialised vehicles 172
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Duties Bill 2007
Contents
Part 4 -- Exemptions and nominal
duty
Division 1 -- Exemptions -- general
240. If no vehicle licence fee payable under Road
Traffic Act 174
241. Reconstruction exemption 174
242. Previous licence or registration 174
243. Certain heavy vehicles 175
244. Prescribed class of person or vehicle or prescribed
purpose 176
Division 2 -- Exemptions -- motor
vehicle dealers
245. Minor incidental purposes 176
246. Exempt use of a vehicle -- trading stock 176
247. Exempt use of a vehicle -- charitable and other
purposes 177
248. Change of exempt use of a vehicle 178
249. Change to non-exempt use of a vehicle 178
Division 3 -- Nominal duty
250. Transactions for which nominal duty is chargeable 180
Part 5 -- General provisions as to
vehicle licence duty
251. Failure to apply for transfer of licence 181
252. Seller's obligation to notify purchase price 182
253. Functions of Director General and Commissioner 183
254. Form of certain declarations 183
255. Duty to be credited to Commissioner 184
256. Records 184
Chapter 6 -- Certain exemptions
for connected entities
257. Terms used in this Chapter 185
258. The term "family" 186
259. The term "relevant consolidation transaction" 186
260. The term "relevant reconstruction transaction" 187
261. Pre-determining certain questions 189
262. Application for exemption 190
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Duties Bill 2007
Contents
263. Grant of exemption 191
264. Commissioner to be notified of certain events after
an exempt relevant transaction 192
265. Revoking an exemption 194
266. Liability for duty and tax if exemption revoked 195
Chapter 7 -- General
anti-avoidance provisions
267. Schemes affected by this Chapter 196
268. The term "tax avoidance scheme" 196
269. Tax avoidance scheme -- pre-determination of
section 270 decision 197
270. Decision of Commissioner about tax avoidance
scheme 199
271. Statement in relation to determination 200
Chapter 8 -- Other general
provisions
Part 1 -- Duty endorsement
272. The term "duty endorsed" 202
273. Endorsement of duty or exemption from duty 202
274. Endorsement of duty that depends on duty paid on
another transaction 204
275. Duty endorsement as evidence 204
Part 2 -- Enforcement
276. Registration or recording of dutiable transactions 205
277. Functions as to business licences 206
278. Lodgment of certain caveats 206
279. Receipt of transaction records in evidence 207
280. Obligations relating to unlodged instruments 208
Part 3 -- Miscellaneous
281. Destruction of transaction records and relevant
material 209
282. Correction of errors 209
283. Amounts expressed in foreign currency 210
284. Application of Corporations Act
section 1070A(1)(a) limited 210
285. Regulations 210
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Duties Bill 2007
Contents
286. Transitional provisions 211
Schedule 1 -- When liability for
transfer duty on a dutiable
transaction arises and the person
liable to pay it
Schedule 2 -- Rates of transfer duty
Division 1 -- General rate
Division 2 -- Concessional rates
Division 3 -- Nominal duty
Schedule 3 -- Transitional provisions
Division 1 -- Provisions for Duties Act 2007
Subdivision 1 -- Preliminary
1. Terms used in this Division 217
Subdivision 2 -- Provisions for Chapter 2
2. When Chapter 2 starts to apply 217
3. No double duty 217
4. Alteration of consideration (section 31) 217
5. Aggregation (section 37) 218
6. Exchanges (section 40) 218
7. Exempt bodies (section 92) 218
8. Family farm transactions (sections 104 and 105) 218
9. Matrimonial and de facto relationship instruments
(sections 129, 130) 219
10. First home owners (Part 6 Division 3) 219
Subdivision 3 -- Provisions for Chapter 3
11. When Chapter 3 starts to apply 220
12. Acquisitions under an agreement made before
1 July 2008 220
13. Meaning of "excluded interest" (sections 190
and 192) 220
Subdivision 4 -- Provisions for Chapter 4
14. Terms used in this Subdivision 221
15. When Chapter 4 starts to apply 221
16. Registration 221
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Duties Bill 2007
Contents
Subdivision 5 -- Provisions for Chapter 5
17. Terms used in this Subdivision 221
18. When Chapter 5 starts to apply 221
19. Section 228 -- definition of "new vehicle" 222
20. Section 239 -- specialised vehicles 222
21. Section 247 -- approval of philanthropic purposes 222
22. Section 250 -- transfer of vehicles: nominal duty 222
23. Section 252 -- statements made under the Stamp
Act 1921 section 76H 223
Subdivision 6 -- Provisions for Chapter 7
24. When Chapter 7 starts to apply 224
Subdivision 7 -- General
25. Some references to duty include stamp duty 224
26. Application of some Chapter 8 provisions 225
27. Regulations 225
28. References to the Stamp Act 1921 225
Division 2 -- Provisions for Duties Legislation
Amendment Act 2007 Part 2 Division 2
Subdivision 2
29. Vehicle licence duty rate change 226
Division 3 -- Provisions for Duties Legislation
Amendment Act 2007 Part 2 Division 2
Subdivision 3
30. Residential property and business property and
assets 226
Defined Terms
page xvi
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Duties Bill 2007
A Bill for
An Act dealing with the imposition of a number of kinds of duty.
The Parliament of Western Australia enacts as follows:
page 1
Duties Bill 2007
Chapter 1 Preliminary
s. 1
Chapter 1 -- Preliminary
1. Short title
This is the Duties Act 2007.
2. Commencement
5 This Act comes into operation as follows:
(a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on 1 July 2008.
3. Terms used in this Act
10 In this Act, unless the contrary intention appears --
"chattel" does not include any of the following --
(a) chattels that are stock-in-trade;
(b) chattels held for use in manufacture;
(c) chattels under manufacture;
15 (d) chattels held or used in connection with the business
of primary production;
(e) livestock;
(f) a vehicle the transfer or grant of a licence for which
is chargeable with, or exempt from, vehicle licence
20 duty;
(g) a ship or vessel;
(h) any other chattel prescribed for the purpose of this
definition;
"consideration" means the amount of a monetary consideration
25 or the value of a non-monetary consideration;
"corporate trustee" has the meaning given in section 65;
"corporation" has the meaning given in the Corporations Act
section 57A;
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Duties Bill 2007
Preliminary Chapter 1
s. 3
"Corporations Act" means the Corporations Act 2001
(Commonwealth);
"court" includes a tribunal;
"director" has the meaning given in the Corporations Act
5 section 9;
"discretionary trust" means --
(a) a trust under which the vesting of the whole or any
part of the capital of the trust property, or the whole
or any part of the income from that capital, or both --
10 (i) is required to be determined by a person either
in respect of the identity of the beneficiaries,
or the quantum of interest to be taken, or both;
or
(ii) will occur in the event that a discretion
15 conferred under the trust is not exercised;
or
(b) a trust that is, by regulation, declared to be a
discretionary trust for the purposes of this Act,
but does not include --
20 (c) a trust that is solely a charitable trust; or
(d) a trust that is, by regulation, declared not to be a
discretionary trust for the purposes of this Act;
"duplicate" of a transaction record for a dutiable transaction
means an executed instrument that wholly reproduces the
25 transaction record;
"dutiable property" has the meaning given in section 15;
"dutiable transaction" has the meaning given in section 11;
"duties Act" means this Act or the Taxation Administration
Act;
30 "duty" means duty under this Act;
"duty endorsed" has the meaning given in section 272;
page 3
Duties Bill 2007
Chapter 1 Preliminary
s. 3
"entitled" means --
(a) in relation to a person as the trustee of a unit trust
scheme or other trust -- entitled for the purposes of
the scheme or trust; and
5 (b) otherwise -- beneficially entitled;
"exempt body" means --
(a) the State of Western Australia; or
(b) a public authority declared to be an exempt body
under section 92; or
10 (c) a local government, except when it acts in its capacity
as the trustee of a superannuation fund;
"general rate" of duty means the rate set out in Schedule 2
Division 1;
"GST" has the meaning given in the A New Tax System (Goods
15 and Services Tax) Act 1999 (Commonwealth) except that it
includes notional GST of the kind for which payments may
be made under the State Entities (Payments) Act 1999 by a
person that is a State entity as defined in that Act;
"land" includes --
20 (a) any estate or interest in land other than a carbon right
or a carbon covenant registered under the Carbon
Rights Act 2003; and
(b) a mining tenement; and
(c) a licence under the Petroleum Pipelines Act 1969;
25 and
(d) anything that is part of land as a fixture;
"landholder duty" means duty under Chapter 3;
"local government" means --
(a) a local government established under the Local
30 Government Act 1995; or
page 4
Duties Bill 2007
Preliminary Chapter 1
s. 3
(b) a regional local government established under the
Local Government Act 1995 Part 3 Division 4; or
(c) an association constituted under the Local
Government Act 1995 section 9.58;
5 "lodge" means lodge with the Commissioner;
"majority shareholder", in relation to a corporation, means a
person that would have a substantial holding in the
corporation under the definition of "substantial holding" in
the Corporations Act section 9 if the reference in that
10 definition to 5% were a reference to 50%;
"mining tenement" means any of the following --
(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;
15 (b) a mining tenement or right of occupancy continued in
force by the Mining Act 1978 section 5;
"nominal duty" means the amount of duty referred to in
Schedule 2 Division 3;
"order" includes determination, judgment or decree;
20 "partnership" has the meaning given in the Partnership
Act 1895 section 7;
"prescribed" means prescribed by regulation;
"prescribed financial market" means a financial market, as
defined in the Corporations Act section 767A(1), that is
25 prescribed for this definition;
"primary production" means any of the following --
(a) the growing or rearing of plants (including trees,
fungi or any crop) for the purpose of selling them,
parts of them or their produce;
30 (b) the breeding, rearing or maintenance of living
creatures for any of the following purposes --
(i) selling them (or their progeny) for food;
page 5
Duties Bill 2007
Chapter 1 Preliminary
s. 3
(ii) the production or collection of their skins,
shells or bodily produce;
(iii) selling parts of them or their skins, shells or
bodily produce;
5 (c) the breeding or rearing of horses for the purpose of
selling them or their progeny;
"public authority" means --
(a) a trading concern, instrumentality or public utility of
the State; or
10 (b) any other person or body, whether corporate or not,
who or which, under the authority of a written law,
administers or carries on for the benefit of the State, a
social service or public utility;
"registered scheme" has the meaning given in the Corporations
15 Act section 9;
"related corporation" has the meaning "related body
corporate" is given in the Corporations Act section 9;
"security interest" means the estate or interest of a mortgagee,
chargee or other secured creditor;
20 "share" --
(a) in Chapter 2 Part 5 Division 3 -- has the meaning
given in section 63; and
(b) otherwise -- means a share or stock of a corporation
or an interest in a share or stock of a corporation;
25 "supply", in relation to an amount of GST, has the meaning
given in the A New Tax System (Goods and Services Tax)
Act 1999 (Commonwealth);
"Taxation Administration Act" means the Taxation
Administration Act 2003;
30 "transaction" includes an event;
page 6
Duties Bill 2007
Preliminary Chapter 1
s. 4
"transaction record", in relation to a dutiable transaction,
means --
(a) an instrument that effects, or evidences, the dutiable
transaction; or
5 (b) a transfer duty statement for the dutiable transaction;
or
(c) a copy or memorandum that, under the Taxation
Administration Act section 20, is treated as an
instrument or statement referred to in paragraph (a)
10 or (b);
"transfer duty" means duty under Chapter 2;
"transfer duty statement" means a statement referred to in
section 22;
"vehicle licence duty" means duty under Chapter 5;
15 "wound up" has the meaning given in section 7(1).
Note: Other terms are defined or explained in the Chapters in which they are
used. At the end of this Act there is an alphabetical list of all terms that
are defined anywhere in this Act. See also section 4(2).
4. Relationship with Taxation Administration Act 2003
20 (1) The Taxation Administration Act provides for the
administration and enforcement of this Act.
(2) If a term has a meaning in the Taxation Administration Act, it
has the same meaning in this Act unless the contrary intention
appears in this Act.
25 Note: Under the Taxation Administration Act 2003 section 3(2), this Act is to
be read with that Act as if they formed one Act.
(3) If this Act requires duty to be paid within a period, the duty is
due for payment, for the purposes of the Taxation
Administration Act, on the last day of that period.
page 7
Duties Bill 2007
Chapter 1 Preliminary
s. 5
5. GST and value or consideration
In ascertaining the value of anything or the consideration for
anything, there is to be no discount for the amount of GST (if
any) payable on the supply of that thing.
5 6. Family relationships
In determining whether a person is a family member of, or
related to, another person --
(a) an illegitimate person is to be treated as the legitimate
child of that person's parents; and
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.
7. The term "wound up"
(1) A reference to being wound up is --
15 (a) in the case of a corporation -- to it being wound up in
accordance with its constitution (so far as it has a
constitution that deals with its winding up) and in
accordance with any law for the time being applicable;
and
20 (b) in the case of a unit trust scheme -- to it being
terminated in accordance with the provisions of the trust
deed or any other document constituting the scheme and
in accordance with any law for the time being
applicable.
25 (2) A winding up begins --
(a) in the case of a corporation -- when the winding up is
taken to begin under the Corporations Act; and
(b) in the case of a unit trust scheme --
(i) when any circumstance or event occurs, or any
30 time arrives, that, because of the trust deed or
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Duties Bill 2007
Preliminary Chapter 1
s. 8
other document constituting the scheme, requires
the scheme to be wound up; or
(ii) when the holders of units issued under the
scheme pass a resolution directing the trustee to
5 wind up the scheme; or
(iii) when the trustee decides to wind up the scheme;
or
(iv) when a court orders that the scheme be wound
up,
10 whichever happens first.
8. Notes in the text
A note included in this Act is explanatory and is not part of
this Act.
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Duties Bill 2007
Chapter 2 Transfer duty
Part 1 Preliminary
s. 9
Chapter 2 -- Transfer duty
Part 1 -- Preliminary
9. Terms used in this Chapter
In this Chapter, unless the contrary intention appears --
5 "concessional rate" of duty means a rate set out in Schedule 2
Division 2;
"conditional agreement" has the meaning given in section 87;
"consideration" has a meaning affected by section 30;
"de facto partner of 2 years", in relation to a person, means a
10 person who is living in a de facto relationship with the
person and has lived on that basis with the person for at
least 2 years;
"de facto partners of 2 years" means 2 de facto partners of
2 years who are living in a de facto relationship with each
15 other;
"declaration of trust" means any declaration (other than by a
will) that any identified property vested or to be vested in
the person making the declaration is or is to be held in trust
for the person or persons, or the purpose or purposes,
20 mentioned in the declaration although the beneficial owner
of the property, or the person entitled to appoint the
property, may not have joined in or assented to the
declaration;
"disposition", in relation to a share, has the meaning given in
25 section 63;
"dutiable value" has the meaning given in Part 4 Division 5;
"duty" means duty under this Chapter;
"entity" has the meaning given in section 152;
"exempt transaction" means a dutiable transaction on which
30 duty is not chargeable;
"exploration amount" has the meaning given in section 13;
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Duties Bill 2007
Transfer duty Chapter 2
Preliminary Part 1
s. 9
"Family Court Act" means the Family Court Act 1997;
"farm-in agreement" has the meaning given in section 13;
"farming land conditional agreement" has the meaning given
in section 88;
5 "general conditional agreement" means any conditional
agreement other than the following --
(a) a farming land conditional agreement;
(b) a mining tenement conditional agreement;
(c) an off-the-plan conditional agreement;
10 (d) a subdivision conditional agreement;
"interest in a discretionary trust" has the meaning given in
section 60;
"managed investment scheme" has the meaning given in the
Corporations Act section 9;
15 "mining tenement conditional agreement" has the meaning
given in section 89;
"new dutiable property" has the meaning given in section 17;
"off-the-plan conditional agreement" has the meaning given
in section 90;
20 "partnership acquisition" has the meaning given in section 72;
"partnership interest" has the meaning given in section 74;
"person liable to pay duty", in respect of a dutiable
transaction, has the meaning given in section 20;
"right" has the meaning given in section 16;
25 "scheme property", in relation to a managed investment
scheme, has the meaning given to that term in the
Corporations Act in relation to a registered scheme;
"simultaneous put and call option" has the meaning given in
section 44;
30 "special dutiable property" has the meaning given in
section 18;
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Chapter 2 Transfer duty
Part 2 Imposition of transfer duty
s. 10
"subdivision conditional agreement" has the meaning given in
section 91;
"surrender" includes the following --
(a) abandonment;
5 (b) abrogation;
(c) cancellation;
(d) extinguishment;
(e) forfeiture;
(f) redemption;
10 (g) relinquishment;
"taker in default" has the meaning given in section 54;
"terminated on relevant grounds", in relation to a conditional
agreement, has the meaning given in section 87(3);
"transfer" includes assignment and exchange;
15 "trust acquisition" has the meaning given in section 55;
"trust surrender" has the meaning given in section 56;
"unconditional", in relation to a conditional agreement, has the
meaning given in section 87(4);
"unencumbered value" has the meaning given in section 36;
20 "Western Australian business" has the meaning given in
section 79;
"Western Australian business asset" has the meaning given in
section 79.
Part 2 -- Imposition of transfer duty
25 10. Transfer duty imposed
Duty is imposed on dutiable transactions.
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Duties Bill 2007
Transfer duty Chapter 2
Dutiable transactions and dutiable property Part 3
s. 11
Part 3 -- Dutiable transactions and dutiable property
Division 1 -- Dutiable transactions
11. The term "dutiable transaction"
(1) Subject to subsection (2), any of the following is a "dutiable
5 transaction" --
(a) a transfer of dutiable property;
(b) an agreement for the transfer of dutiable property,
whether conditional or not;
(c) a declaration of trust over dutiable property;
10 (d) a vesting of dutiable property --
(i) by, or expressly authorised by, statute law of this
or another jurisdiction, whether inside or outside
Australia; or
(ii) by, or as a consequence of, a court order of this
15 or another jurisdiction, whether inside or outside
Australia;
(e) a foreclosure of a mortgage over dutiable property;
(f) an acquisition of new dutiable property, on its creation,
grant or issue;
20 (g) a surrender of special dutiable property;
(h) a trust acquisition or trust surrender;
(i) a partnership acquisition;
(j) a farm-in agreement.
(2) The following transactions are not "dutiable transactions" --
25 (a) a transaction the subject of which is a right if no
consideration is paid, or agreed to be paid, for the
transaction;
(b) a transfer of, or an agreement for the transfer of, a lease
if no consideration is paid, or agreed to be paid, for the
30 transfer or agreement;
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Chapter 2 Transfer duty
Part 3 Dutiable transactions and dutiable property
s. 12
(c) a transfer of, or an agreement for the transfer of, a
security interest, if the consideration for the transfer, or
agreement, is equal to or greater than the market value
of the security interest;
5 (d) a transaction the subject of which is a unit in a unit trust
scheme;
(e) a transaction prescribed as an excluded transaction for
the purposes of this section.
12. Vesting of property in Western Australia by statute law --
10 section 11(1)(d)(i)
(1) Without limiting section 11(1)(d)(i), property is vested under
statute law if the law vests the property in an entity that the law
states is the successor in law of, continuation of or same entity
as, the entity in which the property was previously vested.
15 (2) However, property is not vested under statute law on the
registration of a company under the Corporations Act
Chapter 5B Part 5B.
(3) The merger of a corporation ("company A") with and into
another corporation ("company B") in circumstances where
20 neither subsection (4) nor subsection (5) applies is taken to be a
vesting of the property in Western Australia of company A in
company B by statute law.
(4) A merger of corporations (the "merging corporations") in
circumstances where another corporation ("company C")
25 results as a consequence of the merger is taken to be a vesting of
the property in Western Australia of the merging corporations in
company C by statute law.
(5) A merger of corporations (the "merging corporations") with
and into each other in circumstances where each of the merging
30 corporations continues in existence is taken to be a vesting in
the merging corporations, jointly, of 50% (in value) of the
property in Western Australia of the merging corporations by
statute law.
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Transfer duty Chapter 2
Dutiable transactions and dutiable property Part 3
s. 13
13. The term "farm-in agreement" -- section 11(1)(j)
(1) A reference to a farm-in agreement is to an agreement
between --
(a) an owner of a mining tenement, or a person who holds a
5 right to exploit a mining tenement; and
(b) another person,
to the effect that, after the other person expends the exploration
amount specified in the agreement --
(c) that other person will have --
10 (i) a right to acquire an interest, or an entitlement to
an interest, in the mining tenement that is
specified in the agreement; or
(ii) a right to acquire a right to exploit, or an
entitlement to a right to exploit, the mining
15 tenement that is specified in the agreement;
and
(d) the mining tenement, or the right to exploit the mining
tenement, will be held with the person referred to in
paragraph (a).
20 (2) A reference to an exploration amount in relation to a farm-in
agreement means an amount to be expended, after the
agreement is made, on exploration or development of the
mining tenement carried out after the agreement is made.
14. Transactions for chattels alone not usually dutiable
25 transactions
(1) Subject to subsection (2), a transaction is not a dutiable
transaction if the only dutiable property the subject of the
transaction is a chattel in Western Australia.
(2) A transaction referred to in subsection (1) is a dutiable
30 transaction if, under section 37, it is aggregated with a
transaction that is a dutiable transaction and the transactions are
treated as a single dutiable transaction.
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Chapter 2 Transfer duty
Part 3 Dutiable transactions and dutiable property
s. 15
Division 2 -- Dutiable property
15. The term "dutiable property"
Any of the following is "dutiable property" --
(a) land in Western Australia;
5 (b) a right;
(c) a chattel in Western Australia;
(d) a Western Australian business asset.
16. The term "right"
(1) A reference to a right is to any of the following --
10 (a) an option to acquire dutiable property, unless the option
is part of a simultaneous put and call option over
dutiable property;
(b) a right of pre-emption for dutiable property;
(c) a right to acquire dutiable property;
15 (d) a right under a joint venture relating to dutiable property
of the joint venture;
(e) a right to exploit dutiable property;
(f) a right to income from dutiable property;
(g) a right to the capital growth of dutiable property.
20 (2) A right exists in relation to dutiable property only if the transfer
of the property would be a dutiable transaction.
(3) Without limiting subsection (1), a right includes the
following --
(a) a right under an application under the Mining Act 1978
25 for a mining tenement;
(b) a licence, or a water entitlement under a licence, under
the Rights in Water and Irrigation Act 1914 section 5C;
(c) any other thing prescribed for the purposes of this
section.
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Transfer duty Chapter 2
Dutiable transactions and dutiable property Part 3
s. 17
17. The term "new dutiable property"
(1) Any of the following is "new dutiable property" --
(a) land in Western Australia;
(b) the following rights --
5 (i) an option to acquire dutiable property, unless the
option is part of a simultaneous put and call
option over dutiable property;
(ii) a right to acquire dutiable property;
(iii) any other right prescribed for the purposes of this
10 subsection;
(c) in section 81(4) and (5), the following Western
Australian business assets --
(i) intellectual property;
(ii) a restraint of trade arrangement;
15 (iii) a business identity.
(2) The following are not "new dutiable property" --
(a) a security interest in dutiable property;
(b) a partner's interest in a partnership;
(c) a lease if no consideration is paid, or agreed to be paid,
20 for the grant of the lease;
(d) a mining tenement;
(e) a licence under the Petroleum Pipelines Act 1969;
(f) a licence, or a water entitlement under a licence, under
the Rights in Water and Irrigation Act 1914 section 5C;
25 (g) a profit à prendre created under a timber sharefarming
agreement under the Conservation and Land
Management Act 1984 or the Forest Products Act 2000,
unless a profit à prendre had been previously created in
respect of a crop of trees to which the agreement
30 applies;
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Chapter 2 Transfer duty
Part 4 Collection of transfer duty
s. 18
(h) a plantation interest, created under an agreement under
the Tree Plantation Agreements Act 2003, unless the
interest had been previously created in respect of a
plantation to which the agreement applies;
5 (i) any other dutiable property prescribed as excluded
property for the purposes of this section.
18. The term "special dutiable property"
Any of the following is "special dutiable property" --
(a) a life interest in land;
10 (b) a remainder interest in land;
(c) a lease, if consideration is paid, or agreed to be paid, by
the lessor for the surrender of the lease;
(d) an easement;
(e) a right of way;
15 (f) a mining tenement in whole or in part, if the surrender is
made in contemplation of, or as part of an agreement
that, the tenement, or the part of the tenement, be
granted to, or acquired by, another person;
(g) a right under an application under the Mining Act 1978
20 for a mining tenement;
(h) any other dutiable property prescribed for the purposes
of this section.
Part 4 -- Collection of transfer duty
Division 1 -- Liability for transfer duty
25 19. When liability for duty arises
(1) Subject to subsection (2), liability for duty chargeable on a
dutiable transaction described in Schedule 1 column 2, arises at
the earlier of --
(a) the time referred to opposite the transaction in column 3;
30 or
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Duties Bill 2007
Transfer duty Chapter 2
Collection of transfer duty Part 4
s. 20
(b) if the transaction is, or will be, effected by an
instrument, when the instrument is executed.
(2) If a general conditional agreement is terminated on relevant
grounds before a transaction record for it is required to be
5 lodged under section 23 then liability for duty does not arise in
respect of the general conditional agreement.
20. Person liable to pay duty
The person liable to pay duty chargeable on a dutiable
transaction described in Schedule 1 column 2 is the person
10 described opposite that transaction in Schedule 1 column 4,
unless another person is required under this Chapter to pay the
duty.
21. Joint tenants to be treated as tenants in common in equal
shares
15 For the purpose of charging duty, joint tenants of dutiable
property are taken to hold the dutiable property as tenants in
common in equal shares.
Division 2 -- Lodging transaction records
22. Transfer duty statement to be made if no instrument
20 The person liable to pay duty on a dutiable transaction must
make a transfer duty statement in the approved form within the
time provided under section 23 for lodging the statement unless
the transaction is effected, or evidenced, by an instrument in
hard copy form.
25 Penalty: a fine of $20 000.
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Chapter 2 Transfer duty
Part 4 Collection of transfer duty
s. 23
23. Lodging instrument or statement
(1) Subject to subsection (2), the person liable to pay duty on a
dutiable transaction must lodge --
(a) if the transaction is effected by an instrument in hard
5 copy form -- that instrument and if there is more than
one such instrument, each of them; or
(b) if the transaction is not effected by an instrument in hard
copy form -- an instrument in hard copy form that
evidences the transaction and if there is more than one
10 instrument, each of them, or a transfer duty statement
for the transaction,
within --
(c) 2 months after the day on which liability for duty on the
transaction arises; or
15 (d) in accordance with subsection (3), in respect of an
instrument in hard copy form that effects or evidences a
general conditional agreement.
Penalty: a fine of $5 000.
(2) A person is not required to lodge an instrument in respect of a
20 general conditional agreement in respect of which liability for
duty does not arise under section 19(2).
(3) For the purposes of subsection (1), a person liable to pay duty
on a general conditional agreement must lodge the instrument,
or instruments, in hard copy form that effect or evidence the
25 agreement within --
(a) 2 months after the day on which liability for duty on the
agreement arose if --
(i) the agreement became unconditional within one
month after the day on which liability for duty on
30 the agreement arose; or
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Duties Bill 2007
Transfer duty Chapter 2
Collection of transfer duty Part 4
s. 24
(ii) a vendor under the agreement is related (within
the meaning given in section 87(5)) to a
purchaser under the agreement;
or
5 (b) otherwise, whichever is the earlier of --
(i) 12 months after the day on which liability for
duty on the agreement arose; or
(ii) 2 months after the day on which the agreement
became unconditional.
10 24. Form of a dutiable transaction
It does not matter whether a dutiable transaction --
(a) is effected by an instrument or another way; or
(b) involves one party, or more than one party.
Division 3 -- Payment of transfer duty
15 25. Payment of duty
(1) A person liable to pay duty on a dutiable transaction is to pay
the duty within one month after the date of the assessment
notice in relation to the dutiable transaction or, if it is later in
time --
20 (a) within 12 months after the day on which liability for
duty arose, in relation to --
(i) a farming land conditional agreement; or
(ii) a mining tenement conditional agreement; or
(iii) an agreement for the transfer of dutiable property
25 if --
(I) the subject of the agreement is, solely or
dominantly, farming land within the
meaning of section 99(1); and
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Duties Bill 2007
Chapter 2 Transfer duty
Part 4 Collection of transfer duty
s. 26
(II) the completion of the agreement is
affected by or subject to an activity that
constitutes primary production;
or
5 (b) subject to subsection (2), within 2 years after the day on
which liability for duty arose, in relation to --
(i) an off-the-plan conditional agreement; or
(ii) a subdivision conditional agreement.
(2) Subsection (1)(b) does not apply in respect of a conditional
10 agreement referred to in that paragraph (the "original
agreement") if, before that agreement is duty endorsed, the
person liable to pay duty under that agreement enters into a
further dutiable transaction (the "new transaction") in respect
of the dutiable property, or part of the dutiable property, the
15 subject of the original agreement.
(3) A person liable to pay duty under an original agreement must
notify the Commissioner of a new transaction in the approved
form within 2 months of entering into that transaction.
Penalty: a fine of $20 000.
20 Division 4 -- Rate of transfer duty
26. Rate of transfer duty
(1) Unless otherwise provided in this Chapter, duty is chargeable --
(a) by reference to the dutiable value of a dutiable
transaction; and
25 (b) at the general rate of duty.
(2) The general rate of duty, concessional rates of duty and the
amount of nominal duty are set out in Schedule 2.
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Transfer duty Chapter 2
Collection of transfer duty Part 4
s. 27
Division 5 -- Dutiable value
Subdivision 1 -- Dutiable value
27. Dutiable value of dutiable transactions, unless otherwise
provided
5 Unless otherwise provided in this Chapter, the dutiable value of
a dutiable transaction is --
(a) the consideration for the dutiable transaction; or
(b) the unencumbered value of the dutiable property the
subject of the transaction when liability for duty on the
10 transaction arises if --
(i) there is no consideration for the transaction; or
(ii) the consideration cannot be ascertained when
liability for duty on the transaction arises; or
(iii) the unencumbered value is greater than the
15 consideration for the transaction.
28. Dutiable value of certain dutiable transactions
(1) If the value of a dutiable transaction referred to in
section 11(1)(d)(ii) or (e) is stated in a court order the value
stated in the order is the dutiable value of the transaction.
20 (2) Subject to subsection (1), the dutiable value of a dutiable
transaction that is the foreclosure of a mortgage over dutiable
property is the unencumbered value of the dutiable property and
not the value of the debt secured by the mortgaged property.
(3) The dutiable value of a dutiable transaction that is the surrender
25 of a lease is the consideration for the surrender of the lease paid
or payable by the lessor.
(4) The dutiable value of a dutiable transaction that is the grant of a
lease is the total of the following amounts --
(a) the amount of any consideration for the grant of the
30 lease;
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Chapter 2 Transfer duty
Part 4 Collection of transfer duty
s. 29
(b) any amount paid or payable under the lease as rent
that --
(i) is in excess of a fair market rent for the leased
property; and
5 (ii) represents an amount paid or payable for the
grant of the lease.
(5) The dutiable value of a dutiable transaction under a
discretionary trust that would be a transaction described in
section 114(1) or 115 except that --
10 (a) consideration is paid or payable for the transaction; and
(b) that consideration is consideration referred to in
section 30(1)(a),
is that consideration.
(6) The dutiable value of a dutiable transaction that is a transfer of,
15 or an agreement for the transfer of, dutiable property from the
trustee of a superannuation fund on which nominal duty would
be chargeable under section 127 but for section 127(b), is the
amount by which the unencumbered value of the dutiable
property transferred exceeds the value of the member's interest
20 in the superannuation fund.
29. Dutiable value of certain dutiable transactions relating to
corporation or unit trust scheme property on winding up
(1) A reference in this section to a transfer of corporation or unit
trust scheme property is to a transfer, or agreement for the
25 transfer, of property (some or all of which is dutiable property)
by --
(a) the liquidator of the corporation to any of its
shareholders in the course of a distribution of its assets
as a consequence of the winding up of the corporation;
30 or
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Transfer duty Chapter 2
Collection of transfer duty Part 4
s. 29
(b) the trustee of a unit trust scheme to any unit holder in
the scheme in the course of the winding up of the unit
trust scheme.
(2) The dutiable value of a dutiable transaction that is a transfer of
5 corporation or unit trust scheme property is --
(a) in relation to a corporation -- determined in accordance
with the following formula --
X
DV = A x
Y
where --
10 DV is the dutiable value;
A is the greater of the following amounts --
(i) the amount (if any) by which the value, when the
winding up begins, of all the assets distributed,
or to be distributed, to the shareholder exceeds
15 the value, at that time, of the shareholder's
entitlement to the net assets of the corporation; or
(ii) the amount that is the total of --
(I) the amount (if any) owing to the
shareholder that the shareholder has
20 released the corporation from paying in
the relevant period; and
(II) the amount (if any) of any liability that
the shareholder has assumed or
discharged on behalf of the corporation
25 in the relevant period;
X is the unencumbered value of all dutiable property the
subject of the transfer;
Y is the unencumbered value of all property the subject
of the transfer;
30 and
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Duties Bill 2007
Chapter 2 Transfer duty
Part 4 Collection of transfer duty
s. 29
(b) in relation to a unit trust scheme -- determined in
accordance with the following formula --
X
DV = A x
Y
where --
5 DV is the dutiable value;
A is the greater of the following amounts --
(i) the amount (if any) by which the value, when the
winding up begins, of all the assets distributed,
or to be distributed, to the unit holder exceeds the
10 value, at that time, of the unit holder's
entitlement to the net assets held by the trustee of
the unit trust scheme as trustee of that trust; or
(ii) the amount that is the total of --
(I) the amount (if any) owing to the unit
15 holder that the unit holder has released
the trustee of the unit trust scheme from
paying in the relevant period; and
(II) the amount (if any) of any liability that
the unit holder has assumed or
20 discharged on behalf of the trustee of
the unit trust scheme in the relevant
period;
X is the unencumbered value of all dutiable property the
subject of the transfer;
25 Y is the unencumbered value of all property the subject
of the transfer.
Note: For example, Company X has 2 equal shareholders A and B. The
company has total assets of $800 000, total liabilities of $100 000 and
net assets of $700 000. The shareholder entitlement of each of A and
30 B is $350 000.
There are no liquid assets to satisfy the liability and the liquidator
distributes the assets subject to the liability. A receives assets of
$450 000 ($100 000 in excess of A's entitlement) comprising $400 000
of dutiable property and $50 000 non-dutiable property and assumes
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Duties Bill 2007
Transfer duty Chapter 2
Collection of transfer duty Part 4
s. 29
the whole mortgage. B receives assets comprising dutiable property of
$350 000.
A's duty assessment:
$100 000 (excess entitlement) x $400 000 (value of dutiable property)
5 $450 000 (value of all property received)
Transfer duty is charged on $88 888.
B's duty assessment:
Nominal duty is charged, as B has received a distribution of assets
equal to the shareholder entitlement.
10 (3) In subsection (2) --
"relevant period" means the period beginning on the day that
is 12 months before the day on which the winding up
begins and ending on the day that the property is
transferred.
15 (4) Subject to subsection (2), nominal duty is chargeable on a
dutiable transaction that is a transfer of corporation or unit trust
scheme property if --
(a) in relation to a transfer of corporation property -- the
total value of the transaction to the shareholder, when
20 the winding up begins, is equal to or less than the value
of the shareholder's entitlement to the net assets of the
corporation at that time; or
(b) in relation to a transfer of unit trust scheme property --
the total value of the transaction to the unit holder, when
25 the winding up begins, is equal to or less than the value
of the unit holder's entitlement to the net assets held in
the unit trust scheme at that time.
(5) This section does not apply to a transfer of corporation or unit
trust scheme property if the Commissioner is satisfied that the
30 corporation or unit trust scheme is being wound up as a scheme
or arrangement, or part of a scheme or arrangement, for which a
dominant purpose of any party was the reduction of the duty
otherwise chargeable on the transaction.
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Chapter 2 Transfer duty
Part 4 Collection of transfer duty
s. 29
(6) In considering whether or not the Commissioner is satisfied for
the purposes of subsection (5), the Commissioner may have
regard to any of the following in relation to a corporation --
(a) the duration of the shareholder's shareholding in the
5 corporation;
(b) whether or not the shareholder held shares in a related
corporation of the corporation that owned the property
before it was owned by the corporation;
(c) the period for which the property has been owned by the
10 corporation or a related corporation of the corporation;
(d) any dealing in shares of the corporation or a related
corporation of the corporation by any one or more of the
following --
(i) the shareholder;
15 (ii) a previous owner of the property;
(e) whether there is any commercial efficacy to a scheme or
arrangement of transactions involving any one or more
of the following --
(i) the corporation;
20 (ii) the shareholder;
(iii) a related corporation of the corporation;
(iv) a person that has a substantial holding (within the
meaning given in the Corporations Act) in a
person referred to in subparagraph (i), (ii) or (iii),
25 in relation to the winding up, other than to reduce the
duty otherwise chargeable on the transfer;
(f) whether the transfer is pursuant to a right, attaching to
any of the shares in the corporation, to select or receive
any particular property of the corporation;
30 (g) any other matters the Commissioner considers relevant.
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Collection of transfer duty Part 4
s. 29
(7) In considering whether or not the Commissioner is satisfied for
the purposes of subsection (5), the Commissioner may have
regard to any of the following in relation to a unit trust
scheme --
5 (a) the duration of the unit holder's unit holding in the unit
trust scheme;
(b) whether or not the unit holder held units in a related unit
trust scheme that owned the property before it was
owned by the trustee of the unit trust scheme;
10 (c) the period for which the property has been owned by the
trustee of the unit trust scheme or a related unit trust
scheme of the unit trust scheme;
(d) any dealing in units of the unit trust scheme or a related
unit trust scheme of the unit trust scheme by any one or
15 more of the following --
(i) the unit holder;
(ii) a previous owner of the property;
(e) whether there is any commercial efficacy to a scheme or
arrangement of transactions involving any one or more
20 of the following --
(i) the trustee of the unit trust scheme;
(ii) the unit holder;
(iii) a related unit trust scheme,
in relation to the winding up, other than to reduce the
25 duty otherwise chargeable on the transfer;
(f) whether the transfer is pursuant to a right, attaching to
any of the units in the unit trust scheme, to select or
receive any particular property held by the trustee of the
unit trust scheme as trustee of that trust;
30 (g) any other matters the Commissioner considers relevant.
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(8) For the purposes of subsection (7), unit trust schemes are related
if a unit trust holder in one unit trust scheme holds units that
provides the holder to an entitlement to the capital of another
unit trust scheme if it were to be wound up.
5 Subdivision 2 -- Consideration
30. Consideration for a dutiable transaction
(1) The consideration for a dutiable transaction includes --
(a) the amount of any liabilities assumed under the
transaction, including an obligation, whether contingent
10 or otherwise, to pay any unpaid purchase money payable
under an agreement for the transfer of dutiable property;
and
(b) the amount or value of any debt to the extent it is
released or extinguished under the transaction.
15 (2) If the consideration, or any part of the consideration, for a
dutiable transaction on which duty is chargeable consists of an
amount payable periodically and the total amount to be paid can
be ascertained, the consideration or part of the consideration is
the total amount.
20 (3) It does not matter whether the consideration for a transaction on
which duty is chargeable is paid or given or is required to be
paid or given.
31. Assessment or reassessment if consideration is altered
(1) If after an agreement for the transfer of dutiable property is
25 entered into and before the property is transferred --
(a) the consideration under the agreement is reduced and the
reduced consideration is not less than the unencumbered
value of the dutiable property when the consideration
was reduced; or
30 (b) the consideration under the agreement is reduced
because the parties have agreed not to transfer some of
the dutiable property previously agreed to be transferred
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and the reduced consideration is not less than the
unencumbered value of the dutiable property that
remained to be transferred when the consideration was
reduced,
5 the Commissioner is to assess or, on the application of the
taxpayer, reassess the liability to duty of the agreement in
accordance with the reduced consideration.
(2) Subsection (1) does not apply in respect of an agreement to
which section 32 applies.
10 (3) If after an agreement for the transfer of dutiable property is
entered into and before the property is transferred --
(a) the consideration under the agreement is reduced and the
reduced consideration is less than the unencumbered
value of the dutiable property when the consideration
15 was reduced; or
(b) the consideration under the agreement is reduced
because the parties have agreed not to transfer some of
the dutiable property previously agreed to be transferred
and the reduced consideration is less than the
20 unencumbered value of the dutiable property that
remained to be transferred when the consideration was
reduced,
the Commissioner is to assess or, on the application of the
taxpayer, reassess the liability to duty of the agreement in
25 accordance with the dutiable value of the agreement being the
unencumbered value when the consideration was reduced.
(4) If after an agreement for the transfer of dutiable property is
entered into and before the property is transferred --
(a) the consideration under the agreement is increased; and
30 (b) the increased consideration is not less than the
unencumbered value of the dutiable property when the
agreement was entered into,
the Commissioner is to assess or reassess the liability to duty of
the agreement in accordance with the increased consideration.
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(5) If after a dutiable transaction is duty endorsed the consideration
under the transaction is increased as referred to in
subsection (4), the person liable to pay duty must lodge --
(a) if the increase in consideration is effected by an
5 instrument in hard copy form -- that instrument and if
there is more than one such instrument, each of them; or
(b) if the increase in consideration is not effected by an
instrument in hard copy form -- an instrument in hard
copy form that evidences the increase in consideration
10 and if there is more than one such instrument each of
them, or a transfer duty statement for the transaction that
shows the increase in consideration,
within 2 months after the day on which consideration under the
transaction is increased.
15 Penalty: a fine of $20 000.
(6) Duty is chargeable on a reassessment under this section in
relation to a transaction at the same rate and using the same
thresholds that applied when liability for duty on the transaction
initially arose.
20 32. Reassessment if contingent consideration is not paid
(1) If an agreement for the transfer of dutiable property is duty
endorsed and any part of the consideration under the agreement
was dependent on the happening of a future event (the
"contingent consideration") and --
25 (a) the contingent consideration has not been paid; and
(b) the event did not happen, or did not happen within the
time specified for the happening of the event, in an
instrument effecting or evidencing the agreement; and
(c) either --
30 (i) the event cannot happen in the future; or
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(ii) the time specified for the happening of the event
in an instrument effecting or evidencing the
agreement has passed or expired;
and
5 (d) the taxpayer makes an application for a reassessment
under this section in the approved form,
the Commissioner is to reassess the liability to duty of the
agreement in accordance with the consideration not including
the contingent consideration.
10 (2) For the purposes of this section, the Taxation Administration
Act section 17 applies as if the original assessment had been
made when liability to duty on the agreement arose.
(3) In this section, a reference to the happening of an event includes
a reference to an event not happening.
15 33. Reassessment if agreement determined with consideration
only partly paid
(1) In this section --
"agreement by instalments" means an agreement for the
transfer of dutiable property --
20 (a) wholly or partly in consideration of the making
of 2 or more payments at intervals specified in an
instrument effecting or evidencing the agreement;
and
(b) which is subject to the right of the purchaser or
25 transferee to determine the agreement at any time
before the property is transferred on making such of
the payments as are due and payable at the time of
the determination.
(2) If, after an agreement by instalments has been duty endorsed,
30 the agreement is determined before the final payment had
become due and payable under the agreement, the
Commissioner, on the application of the taxpayer, is to reassess
the liability to duty of the agreement in accordance with the
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consideration paid, or due and payable, when the agreement is
determined.
(3) For the purposes of this section, the Taxation Administration
Act section 17 applies as if the original assessment had been
5 made when the determination was made.
34. Reassessment if option exercised or not renewed
(1) If --
(a) after a dutiable transaction that --
(i) confers on a person the right of an option to
10 acquire dutiable property; and
(ii) provides for the renewal of that right on one, or
more than one, occasion specified in an
instrument effecting or evidencing the
transaction,
15 is duty endorsed based on the consideration for the
transaction which includes the sum of the amounts paid
by way of consideration for the right of the option and
the amount or amounts, as the case may be, payable for
the renewal or renewals of the option; and
20 (b) the person on whom the right of the option was
conferred under the transaction, before the occurrence of
the final occasion specified in an instrument effecting or
evidencing the transaction --
(i) exercised the option; or
25 (ii) failed to renew the right of option,
the Commissioner, on the application of the taxpayer, is to
reassess the liability to duty of the transaction as if the
consideration was an amount equal to the amount paid or
payable in respect of any occasion or occasions specified in an
30 instrument effecting or evidencing the transaction that have
occurred before the person exercised the option, or failed to
renew the right of option.
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(2) For the purposes of this section, the Taxation Administration
Act section 17 applies as if the original assessment had been
made when the person exercised the option, or failed to renew
the right of option.
5 35. Credit for duty already paid on option to acquire dutiable
property
If --
(a) a transaction record for the grant or renewal of an option
to acquire dutiable property is duty endorsed; and
10 (b) the consideration for the grant or renewal will form part
of the consideration for the transaction if the option is
exercised; and
(c) the option is exercised,
the amount of duty payable on the transfer of, or the agreement
15 for the transfer of, dutiable property is to be reduced by the
amount of duty paid on the grant or renewal of the option to
acquire the property.
Note: For example, consideration is paid for the grant of an option to acquire
dutiable property. The transaction provides for the renewal of the right
20 for further consideration.
The transaction also provides that the consideration paid for the grant
and renewal of the option forms part of the consideration for the
property if the option is exercised.
Duty of $200 is charged on the total consideration for the grant and
25 renewal of the option (the "first dutiable transaction").
The option is exercised after the renewal of the option and an
agreement for the transfer of dutiable property is entered into for
consideration (the "second dutiable transaction").
The amount of duty payable on the second dutiable transaction is
30 reduced by the amount of duty paid on the first dutiable transaction.
If the duty payable on the second dutiable transaction would be
$2 000, it is reduced by the duty of $200 paid on the first dutiable
transaction. The duty payable on the agreement to transfer the
property is therefore $1 800.
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Subdivision 3 -- Unencumbered value
36. Unencumbered value of property
(1) The "unencumbered value" of property is the value of the
property determined without regard to --
5 (a) any encumbrance to which the property is subject,
whether contingently or otherwise; or
(b) any overriding power of revocation or reconveyance; or
(c) any scheme or arrangement --
(i) that results in the reduction of the value of the
10 property; and
(ii) for which a dominant purpose of any party to the
scheme or arrangement was, in the opinion of the
Commissioner, the reduction of the value of the
property.
15 Note: Example for paragraph (c) --
A owns land that B wishes to purchase. The land is valued at $1m.
Before the purchase, A grants B a 50 year lease of the land. B is not
required to pay any rent under the lease. A and B then enter into an
agreement for the transfer of the land for $50 000, being the value of
20 A's interest in the land taking into account that it is subject to the lease
to B.
The unencumbered value of the land is determined without regard to
the grant of the lease if the Commissioner is of the opinion there is a
scheme or arrangement under which A or B's purpose in entering into
25 it was to reduce the value of the land.
(2) Subsection (1)(c) does not apply to or in respect of a scheme or
arrangement that was entered into before 27 December 1996.
(3) For the purposes of subsection (1)(c), the Commissioner may
have regard to --
30 (a) the duration of the scheme or arrangement before the
dutiable transaction or the relevant transaction
concerning the property; and
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(b) whether the scheme or arrangement has been entered
into with a related person within the meaning given in
section 162; and
(c) whether there is any commercial efficacy to the making
5 of the scheme or arrangement other than to reduce duty;
and
(d) any other matters the Commissioner considers relevant.
(4) When determining the unencumbered value of property --
(a) the unencumbered value of an undivided share in the
10 property, whether held jointly or in common, is to be
ascertained by multiplying the total unencumbered value
of the property by the share expressed as a fraction; and
(b) in applying the ordinary principles of valuation --
(i) it is to be assumed that a hypothetical purchaser
15 would, when negotiating the price of property,
have knowledge of all existing information
relating to the property; and
(ii) no account is to be taken of any amount that a
hypothetical purchaser would have to expend to
20 reproduce, or otherwise acquire a permanent
right of access to and use of, existing information
relating to property;
and
(c) that is land --
25 (i) if the land is the subject of an agreement to
transfer, any improvement made to the land at
the expense of the purchaser or transferee before
the date liability to duty arises on the agreement
is to be taken not to have been made to the land;
30 and
(ii) if the land is the subject of a transfer, any
improvement made to the land at the expense of
the transferee before the land is transferred is to
be taken not to have been made to the land; and
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(iii) having regard to the use of the land that would
best enhance its commercial value; and
(iv) having regard to commercial advantages (such as
goodwill) that --
5 (I) attach to the location or other aspects of
the land; and
(II) would affect the price that a reasonable
purchaser would be willing to pay for
the land.
10 Subdivision 4 -- Miscellaneous
37. Aggregation of dutiable transactions
(1) Dutiable transactions relating to separate items of dutiable
property that together form, evidence, give effect to or arise
from what is, substantially one arrangement are to be
15 aggregated and treated as a single dutiable transaction.
(2) Without limiting subsection (1), unless the Commissioner is
satisfied to the contrary, dutiable transactions relating to
separate items of dutiable property together form, evidence,
give effect to or arise from what is, substantially one
20 arrangement if --
(a) the transactions have taken place within 12 months; and
(b) in respect of each of the transactions, the person liable to
pay duty is the same person (whether that person is the
only person liable to pay duty or is liable to pay duty
25 with the same or different persons).
(3) Dutiable transactions relating to separate items of dutiable
property are not to be aggregated under this section unless the
transactions to be aggregated --
(a) are all chargeable at the same rate of duty; or
30 (b) are all chargeable with nominal duty; or
(c) are all exempt transactions.
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(4) If dutiable transactions are aggregated, then they are to be
treated as a single dutiable transaction that took place at the time
that the last of the aggregated transactions took place.
(5) This section does not apply to a dutiable transaction to the
5 extent that it relates to the grant of an option to acquire dutiable
property, other than as required under section 34.
(6) Duty chargeable on the dutiable transaction aggregated under
this section is to be --
(a) assessed on the total of the dutiable values for each of
10 the transactions (calculated as if each transaction was a
dutiable transaction) at the time when liability for duty
on each transaction arose; and
(b) apportioned between the transactions as decided by the
Commissioner.
15 (7) The amount of duty payable in accordance with this section is to
be reduced by the amount of any duty paid on a previous
dutiable transaction that is, or previous dutiable transactions that
are, aggregated under this section.
(8) Transactions aggregated and treated as a single dutiable
20 transaction under this section may include a transaction that
would not otherwise be a dutiable transaction, and where such a
transaction is included, that transaction is taken to be a dutiable
transaction and is liable to duty accordingly.
38. Apportionment
25 If a dutiable transaction relates to dutiable property and property
that is not dutiable property, duty is chargeable only to the
extent that the transaction relates to dutiable property.
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39. Partitions
(1) For the purposes of this section, a partition occurs when
property (some or all of which is dutiable property) that is held
by persons jointly (as joint tenants or tenants in common) and
5 beneficially is transferred or agreed to be transferred to one or
more of those persons.
(2) The dutiable value of a partition is to be determined in
accordance with the following formula --
X
DV = A x
Y
10 where --
DV is the dutiable value;
A is the greater of the following amounts --
(i) the sum of the amounts by which the unencumbered
value of the property transferred or agreed to be
15 transferred to a person exceeds the unencumbered value
of the interest held by the person in all of the property
immediately before the partition; or
(ii) the sum of any consideration for the partition paid by
any of the parties;
20 X is the unencumbered value of all dutiable property the subject
of the partition;
Y is the unencumbered value of all property the subject of the
partition.
(3) The minimum amount of duty payable on a transaction that
25 effects a partition is the amount of nominal duty.
Note: For example, A and B own lot 1 which has an unencumbered value of
$400 000 and a boat that has an unencumbered value of $300 000.
The total value of the property being partitioned is $700 000 and A and
B are each entitled to $350 000.
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A is taking lot 1 by way of partition and the value of that lot exceeds A's
entitlement by $50 000.
A's duty assessment:
$50 000 (excess entitlement) x $400 000 (value of dutiable property)
5 $700 000 (value of all property)
The dutiable value for the transfer of land to A is $28 571.
40. Exchanges
Duty is chargeable on any dutiable transactions effecting an
exchange of dutiable property for any other dutiable property as
10 if the exchange involved --
(a) the transfer of the first-mentioned property for
consideration equal to the unencumbered value of that
property; and
(b) the transfer of the second-mentioned property for
15 consideration equal to the unencumbered value of that
property.
Division 6 -- No double duty
41. No double duty -- general
(1) If a transaction for property constitutes more than one dutiable
20 transaction for the property and the charging of duty on all of
the dutiable transactions for the property would result in duty
being imposed more than once on the transaction, the
Commissioner is to decide the dutiable transaction on which
duty is imposed and duty is not chargeable on the other dutiable
25 transaction, or dutiable transactions.
(2) For the purposes of subsection (1), the Commissioner is to
decide the dutiable transaction for the property that is the most
applicable dutiable transaction having regard to this Chapter and
the sole or dominant purpose of the transaction.
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42. No double duty -- particular dutiable transactions
(1) Duty is not chargeable on the transfer of dutiable property to a
transferee in conformity with an agreement for the transfer of
dutiable property if that agreement is duty endorsed.
5 (2) Duty is not chargeable on the transfer of dutiable property to a
transferee under an agreement for the transfer of dutiable
property if --
(a) when liability for duty on the agreement arises, the
transferee and the purchaser of the property under the
10 agreement are related as referred to in section 43; and
(b) the agreement is duty endorsed.
(3) If an agreement for the transfer of dutiable property is duty
endorsed and either, or both, of the following applies --
(a) there is a difference in the parties liable to duty under
15 the agreement and the transferees under the transfer, and
subsection (2)(a) does not apply;
(b) there is a difference between the division of the property
between the transferees under the transfer and the
division of the property between the parties liable to
20 duty under the agreement, and subsection (2)(a) does not
apply,
duty is not chargeable on the transfer of the property except to
the extent of the change between the agreement and the transfer.
Note: Example for subsection (3) --
25 On 1 July, under an agreement for the transfer of dutiable property, A
agrees to sell land in Western Australia to B and C as tenants in
common in the undivided shares of 90/100 to B and 10/100 to C for
$100 000.
At settlement, under the transfer, B and a new party, D are tenants in
30 common in equal shares.
Transfer duty is chargeable on the transfer of the property only to the
extent of the change in the interests in the property between the
agreement and the transfer.
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Transfer duty would be chargeable on the transfer of the property on
50/100 X $100 000, which is $50 000 i.e. 10/100 from C to D and
40/100 from B to D.
(4) If an agreement for the transfer of dutiable property is duty
5 endorsed, duty is not chargeable on the subsequent transfer of
the property if, when liability for duty on the agreement arose,
the person named in the instrument effecting, or evidencing, the
agreement as the purchaser was acting as the agent of the
transferee of the subsequent transfer.
10 (5) If --
(a) an agreement for the transfer of dutiable property is duty
endorsed; and
(b) the person named in the agreement as the purchaser
entered into the agreement with the intention that the
15 property would be transferred to --
(i) a corporation that the person intended to be
incorporated; or
(ii) a dormant corporation, the shares in which the
person intended to be acquired,
20 and that property will not be held by the corporation as
trustee of a trust; and
(c) when liability for duty on the agreement arose, action
was being taken to --
(i) incorporate the corporation referred to in
25 paragraph (b)(i); or
(ii) acquire the shares in the corporation referred to
in paragraph (b)(ii),
duty is not chargeable on the subsequent transfer of the property
to the corporation referred to in paragraph (b)(i) or (ii).
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(6) In subsection (5) --
"dormant corporation" means a corporation that, since it was
incorporated --
(a) has not had any assets or liabilities other than share
5 capital for subscriber shares or shares issued to
replace subscriber shares of the same value on their
redemption; and
(b) has not been party to an agreement or a beneficiary or
trustee of a trust; and
10 (c) has not issued or sold any shares or rights relating to
shares other than subscriber shares, rights relating to
subscriber shares or shares issued to replace
subscriber shares of the same value on their
redemption.
15 (7) Duty is not chargeable on a transfer of dutiable property by the
vendor under an agreement for the transfer of the property that
results in the property becoming scheme property for a managed
investment scheme if --
(a) the Commissioner is satisfied that a managed investment
20 scheme has been, or is to be, established by means of an
offer to subscribe to the scheme made to the public; and
(b) the Commissioner is satisfied that before the
establishment of the scheme --
(i) the person named as purchaser in an agreement
25 for the transfer of dutiable property entered into
that agreement; or
(ii) the person promoting the scheme arranged for
that agreement to be entered into by the person
named in the agreement,
30 with the intention that the property concerned would
become scheme property; and
(c) the agreement provides to the effect that, if the scheme
is not established, the agreement is terminated; and
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(d) the agreement is duty endorsed.
(8) If --
(a) there is an agreement for the transfer of dutiable
property (the "first agreement"); and
5 (b) after the first agreement takes place, one or more
dutiable transactions over all or part of the dutiable
property the subject of the first agreement takes place
(the "intervening transactions"); and
(c) to give effect to the first agreement and the intervening
10 transactions, one or more transfers of dutiable property
(the "transfers") are effected by one or more parties to
the first agreement and the intervening transactions; and
(d) the first agreement and the intervening transactions are
duty endorsed,
15 duty is not chargeable on the transfers.
Note: Example for subsection (8) --
On 1 July, under an agreement for the transfer of dutiable property, A
agrees to sell land in Western Australia to B for $100 000. Settlement
is to take place on 31 July. On 7 July, under an agreement for transfer,
20 B agrees to sell the land to C for $120 000. Again, settlement is to take
place on 31 July. Before 31 July, B directs A, that at settlement, A
transfer the land to C.
The agreement between A and B is the first agreement. The
agreement between B and C is the intervening transaction. Transfer
25 duty is not chargeable on the transfer from A to C if the first agreement
and intervening transactions are duty endorsed.
(9) Duty is not chargeable on a transfer to a trustee of dutiable
property subject to a declaration of trust in respect of the same
dutiable property if the declaration of trust is duty endorsed, or
30 under subsection (11) duty is not chargeable on the declaration
of trust.
(10) Duty is not chargeable on a declaration of trust that declares the
same trusts as those upon and subject to which the same
dutiable property was transferred, or agreed to be transferred, to
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the person declaring the trust if the transfer, or agreement, is
duty endorsed.
(11) Duty is not chargeable on a declaration of trust if --
(a) the declaration of trust supersedes another declaration of
5 trust which is duty endorsed and declares the same trusts
as were declared under the superseded declaration of
trust; and
(b) the beneficiary under the declaration of trust is the same
as under the superseded declaration of trust; and
10 (c) the dutiable property subject to the declaration of
trust --
(i) is wholly or substantially the same as the
property that was the subject of the superseded
declaration of trust at the time of the declaration
15 of the superseded declaration of trust; or
(ii) represents the proceeds of re-investment of
property that was the subject of the superseded
declaration of trust at the time of the declaration
of the superseded declaration of trust; or
20 (iii) is property to which both subparagraphs (i)
and (ii) apply.
(12) Duty is not chargeable on a transfer of dutiable property
resulting from a dutiable transaction referred to in
section 11(1)(d) if the vesting of the dutiable property is duty
25 endorsed.
(13) Duty is not chargeable on a transfer of dutiable property in
accordance with a foreclosure order if the foreclosure order is
duty endorsed.
(14) Duty is not chargeable on a transfer of dutiable property in
30 accordance with a partnership acquisition if the partnership
acquisition is duty endorsed.
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(15) Duty is not chargeable on a transfer of, or an agreement for the
transfer of, an interest in a mining tenement under a farm-in
agreement if --
(a) the farm-in agreement is duty endorsed; and
5 (b) the exploration amount under the agreement has been
expended.
(16) Duty is not chargeable in respect of a dutiable transaction
prescribed, on such condition and under such circumstances as
are prescribed, if the dutiable transaction is one of 2 dutiable
10 transactions that relate to the same transaction for the same
dutiable property.
43. Purchaser and transferee related for the purpose of
section 42(2)(a)
(1) For the purposes of section 42(2)(a), the following persons are
15 related to a purchaser who is an individual --
(a) the purchaser's spouse or de facto partner;
(b) a parent or remoter lineal ancestor of --
(i) the purchaser; or
(ii) the purchaser's spouse or de facto partner;
20 (c) a child or remoter lineal descendant of --
(i) the purchaser; or
(ii) the purchaser's spouse or de facto partner;
(d) a sibling of --
(i) the purchaser; or
25 (ii) the purchaser's spouse or de facto partner;
(e) a spouse or de facto partner of a sibling mentioned in
paragraph (d);
(f) a corporation if --
(i) the purchaser is the sole shareholder of the
30 corporation; or
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(ii) the purchaser is a shareholder of the corporation
and is related (within the meaning of this section)
to each of the other shareholders;
(g) a trustee of a unit trust scheme in the trustee's capacity
5 as trustee of the unit trust scheme if --
(i) the purchaser is the sole unit holder in the unit
trust; or
(ii) the purchaser is a unit holder in the unit trust and
is related (within the meaning of this section) to
10 each of the other unit holders.
(2) For the purposes of section 42(2)(a), a person is related to a
purchaser that is a corporation if --
(a) the person is the sole shareholder of the corporation; or
(b) the person is a shareholder of the purchaser and, if the
15 person were a purchaser, would be related (within the
meaning of this section) to each of the other
shareholders.
(3) For the purposes of section 42(2)(a), a person is related to a
purchaser that is the trustee of a unit trust scheme if --
20 (a) the person is the sole unit holder in the unit trust
scheme; or
(b) the person is a unit holder in the unit trust scheme and, if
the person were a purchaser, would be related (within
the meaning of this section) to each of the other unit
25 holders.
(4) However, persons referred to in subsection (1), (2) or (3) are not
related for the purpose of section 42(2)(a) if the dutiable
property the subject of the transaction is to be held by a person
on behalf of another person (the "beneficiary") --
30 (a) as the trustee of a discretionary trust; or
(b) as a trustee of a unit trust scheme, other than as referred
to in subsection (1)(g); or
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(c) as a trustee other than a trustee referred to in
paragraph (a) or (b), unless the beneficiary and the
trustee are also related.
Part 5 -- Application of this Chapter to
5 certain transactions
Division 1 -- Simultaneous put and call options
Subdivision 1 -- Terms used in this Division
44. Terms used in this Division
(1) In this Division --
10 "call option" means the right referred to in subsection (2)(a);
"option property" means --
(a) the dutiable property to which the call option applies;
or
(b) if the put option applies only to a part of the dutiable
15 property to which the call option applies, that part of
the dutiable property;
"put option" means the right referred to in subsection (2)(b).
(2) Subject to subsection (3), a put option and a call option
constitute a simultaneous put and call option if, at the same
20 time --
(a) a person ("A") has a right to require another person
("B") to sell dutiable property to A, or to a person that
has an agreement, arrangement or understanding with A
relating to the dutiable property; and
25 (b) B has a right to require A, or a person referred to in
paragraph (a), to purchase --
(i) the dutiable property; or
(ii) a part of the dutiable property; or
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(iii) property that includes the dutiable property,
from B.
(3) For the purposes of subsection (2), it is irrelevant when the call
option or the put option is exercisable.
5 Subdivision 2 -- Simultaneous put and call options
45. Call option of simultaneous put and call option to be taken
to be an agreement for the transfer of the option property
(1) When a simultaneous put and call option comes into existence,
the call option is taken to be an agreement for the transfer of the
10 option property to A and is liable to duty accordingly, unless --
(a) the call option and the put option are only for the
purpose of obtaining finance or making other financial
arrangements; or
(b) the call option and the put option form part of a scheme
15 of call options and put options given by the proprietors
of a business that --
(i) are only for the purpose of facilitating the
continuation of the business by one or some of
the proprietors (the "continuing proprietor or
20 proprietors"); and
(ii) are not exercisable except on the occurrence of
an event specified in them that would cause the
continuing proprietor or proprietors to seek to
acquire the interest of another of the proprietors.
25 (2) In subsection (1)(b) --
"proprietor" means --
(a) in the case of a partnership -- a partner; or
(b) in the case of a company -- a shareholder; or
(c) in the case of a unit trust scheme -- a unit holder; or
30 (d) in any other case -- a person the Commissioner
determines to be a proprietor of the business.
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(3) For the purposes of subsection (1), it is irrelevant whether or not
the call option is assigned as referred to in section 49.
46. Dutiable value of simultaneous put and call option
The dutiable value of a dutiable transaction referred to in
5 section 45 is --
(a) the sum of --
(i) the amount paid by way of consideration for the
granting of the call option in respect of the
option property; and
10 (ii) the amount payable in the event of the call option
being exercised in respect of the option property;
or
(b) the unencumbered value of the option property at the
time when liability for duty on the transaction arises,
15 if --
(i) there are no amounts paid or payable under
paragraph (a); or
(ii) the amounts paid or payable under paragraph (a)
cannot be ascertained when liability for duty on
20 the transaction arises; or
(iii) the unencumbered value is greater than the sum
of the amounts paid or payable under
paragraph (a).
47. Credit if duty paid on a dutiable transaction referred to in
25 section 45
If --
(a) a transaction record for a dutiable transaction referred to
in section 45 for option property is duty endorsed (the
"first dutiable transaction"); and
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(b) as a result of the call option or the put option being
exercised either, or both, of the following occur (the
"second dutiable transaction") --
(i) an agreement for the transfer of the option
5 property is executed;
(ii) the option property is transferred,
the amount of duty payable on the second dutiable transaction is
to be reduced by the amount of duty paid on the first dutiable
transaction.
10 48. Assessment or reassessment if simultaneous put and call
option not exercised or assigned
(1) If, in relation to a call option of a simultaneous put and call
option taken to be an agreement for the transfer of option
property under section 45 --
15 (a) the call option and the put option of the simultaneous
put and call option --
(i) both expire without being exercised; or
(ii) are rescinded or cancelled by agreement, or
either is rescinded or cancelled and the other
20 expires without being exercised;
and
(b) the call option has not been assigned as referred to in
section 49,
this Division does not apply and the Commissioner, on the
25 application of the taxpayer, is to assess or reassess the liability
to duty of the call option.
(2) For the purposes of this section, the Taxation Administration
Act section 17 applies as if the original assessment had been
made when the call option and the put option had both expired
30 or were rescinded or cancelled.
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Subdivision 3 -- Assignment of call option
49. Assignment of call option to be taken to be an agreement for
the transfer of the option property
(1) If, in respect of a simultaneous put and call option --
5 (a) A has assigned the call option to another person ("C")
so that C has a right to require B to sell the option
property to C, or to a person that has an agreement,
arrangement or understanding with C relating to the
property; and
10 (b) B has a right to require C, or a person referred to in
paragraph (a), to purchase the option property from B,
the assignment of the call option is taken to be an agreement for
the transfer of the option property to C and is liable to duty
accordingly.
15 (2) If subsection (1) applies, section 45 does not apply in relation to
the rights of C and B referred to in subsection (1).
50. Dutiable value of assignment of call option
The dutiable value of a dutiable transaction referred to in
section 49 is --
20 (a) the sum of --
(i) the amount paid by way of consideration for the
assignment of the call option in respect of the
option property; and
(ii) the amount payable in the event of the exercise
25 of the call option in respect of the option
property;
or
(b) the unencumbered value of the option property at the
time when liability for duty on the transaction arises,
30 if --
(i) there are no amounts paid or payable under
paragraph (a); or
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(ii) the amounts paid or payable under paragraph (a)
cannot be ascertained when liability for duty on
the transaction arises; or
(iii) the unencumbered value is greater than the sum
5 of the amounts paid or payable under
paragraph (a).
51. Credit if duty paid on a dutiable transaction referred to in
section 49
If --
10 (a) a transaction record for a dutiable transaction referred to
in section 49 for option property is duty endorsed (the
"first dutiable transaction"); and
(b) as a result of the put option, or the assigned call option,
being exercised either, or both, of the following occur
15 (the "second dutiable transaction") --
(i) an agreement for the transfer of the option
property is executed;
(ii) the option property is transferred,
the amount of duty payable on the second dutiable transaction is
20 to be reduced by the amount of duty paid on the first dutiable
transaction.
52. Assessment or reassessment if assigned call option not
exercised or further assigned
(1) If, in relation to an assignment of a call option taken to be an
25 agreement for the transfer of the option property under
section 49 --
(a) the call option and the put option of the simultaneous
put and call option --
(i) both expire without being exercised; or
30 (ii) are rescinded or cancelled by agreement, or
either is rescinded or cancelled and the other
expires without being exercised;
and
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(b) the call option has not been further assigned as referred
to in section 49,
this Division does not apply and the Commissioner, on the
application of the taxpayer, is to assess or reassess the liability
5 to duty of the assignment of the call option.
(2) For the purposes of this section, the Taxation Administration
Act section 17 applies as if the original assessment had been
when the call option and the put option had both expired or
were rescinded or cancelled.
10 Division 2 -- Discretionary trust acquisitions and surrenders
Subdivision 1 -- Terms used in this Division
53. Property held by a partnership or trust
A reference to a partnership or trust holding property is a
reference to the holding of the property by the partners for the
15 partnership or the trustees under the trust.
54. The term "taker in default"
A reference to a taker in default is to a beneficiary of a
discretionary trust that has an interest in the discretionary trust
in default of an appointment by the trustee, or trustees, of the
20 discretionary trust.
55. The term "trust acquisition"
A reference to a trust acquisition is to the acquisition by a taker
in default of an interest in a discretionary trust that holds --
(a) dutiable property; or
25 (b) an indirect interest in dutiable property.
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56. The term "trust surrender"
A reference to a trust surrender is to the surrender by a taker in
default of an interest in a discretionary trust that holds --
(a) dutiable property; or
5 (b) an indirect interest in dutiable property.
57. When a discretionary trust holds an indirect interest in
dutiable property
(1) A discretionary trust holds an indirect interest in dutiable
property if an entity linked to the trustee of the discretionary
10 trust is entitled to dutiable property.
(2) Section 156 applies where it is necessary to determine whether
an entity is linked to a trustee of a discretionary trust for the
purposes of subsection (1) or section 59(a)(ii) or 61(b).
(3) In applying section 156, the trustee of the discretionary trust is
15 the main entity, despite section 152(2).
Subdivision 2 -- Trust acquisitions and trust surrenders
58. Acquiring an interest in a discretionary trust
A person acquires an interest in a discretionary trust if the
person --
20 (a) becomes a taker in default of the discretionary trust --
(i) on creation of the discretionary trust; or
(ii) otherwise, other than because of the surrender of
another person's interest in the discretionary trust
for which duty has been paid or in respect of
25 which duty was not chargeable;
or
(b) is a taker in default of the discretionary trust whose
interest increases, other than because of the surrender of
another person's interest in the discretionary trust for
30 which duty has been paid or in respect of which duty
was not chargeable.
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59. Dutiable value of a trust acquisition or trust surrender
The dutiable value of a trust acquisition or trust surrender is --
(a) the consideration for the acquisition or surrender so far
as the consideration relates to dutiable property --
5 (i) held by the discretionary trust; or
(ii) to which an entity linked to the trustee of the
discretionary trust is entitled;
or
(b) the value of the taker in default's interest in the
10 discretionary trust at the time when liability for duty on
the transaction arises if --
(i) there is no consideration for the acquisition or
surrender; or
(ii) the consideration cannot be ascertained when
15 liability for duty on the transaction arises; or
(iii) the value of the taker in default's interest is
greater than the consideration for the acquisition
or surrender.
60. Interest in a discretionary trust of a taker in default
20 (1) A reference to an interest in a discretionary trust of a taker in
default in the discretionary trust is --
(a) the percentage of --
(i) the trust income; or
(ii) the trust property,
25 that the taker in default would receive in default of
appointment by the trustee; or
(b) if the taker in default would receive both trust income
and trust property in default of appointment by the
trustee, the percentage of either the trust income or the
30 trust property that the taker in default would receive that
is the greater.
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(2) Despite subsection (1), if the Commissioner considers it
appropriate to do so, an interest in a discretionary trust of a taker
in default is to be determined by the Commissioner taking into
account the rights or entitlements of the taker in default under
5 the trust.
61. Value of a taker in default's interest in a discretionary trust
For the purposes of section 59(b), the value of the taker in
default's interest in a discretionary trust is the total of the
following amounts --
10 (a) in respect of the dutiable property held by the
discretionary trust -- an amount determined by applying
the interest in the discretionary trust of the taker in
default to the unencumbered value, when liability for
duty on the transaction arises, of the dutiable property;
15 (b) in respect of the dutiable property to which an entity
linked to the trustee of the discretionary trust is
entitled -- an amount determined by applying the
interest in the discretionary trust of the taker in default
to an amount determined by applying section 157 as if a
20 reference in that section --
(i) to land were a reference to dutiable property; and
(ii) to the main entity were a reference to the trustee
of the discretionary trust.
Note: For example, if the taker in default had a 50% interest in the trust and
25 the trust held dutiable property of $1 000 000, the value of the taker in
default's interest would be $500 000.
62. When a trust acquisition or trust surrender is not a dutiable
transaction
(1) Duty is not chargeable on a trust acquisition or trust surrender if
30 the trust acquisition or trust surrender is a result of --
(a) a person becoming or ceasing to be a member of a class
of beneficiaries of the discretionary trust because of the
birth or death of the person; or
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(b) a person becoming or ceasing to be a member of a class
of beneficiaries of the discretionary trust because of the
marriage or divorce of the person, or the beginning or
ending of a de facto relationship of the person.
5 (2) In subsection (1)(b) --
"de facto relationship" means a de facto relationship that
comes within the Family Court Act section 205Z(1)(a), (b)
or (c).
Division 3 -- Corporate trustees
10 Subdivision 1 -- Terms used in this Division
63. Terms used in this Division
In this Division --
"authorised trustee corporation" means a corporation
declared under the Corporations Act to be an authorised
15 trustee corporation for any provision of that Act;
"disposition", in relation to a share, includes --
(a) a transfer or other disposition of the share; and
(b) the allotment or issue of the share; and
(c) the redemption, surrender or cancellation of the
20 share; and
(d) the variation, abrogation or alteration of a right
pertaining to the share with respect to the capital of
the corporate trustee; and
(e) any means by which a share is disposed of or the
25 rights of its holder are diminished;
"share" means --
(a) a share or stock of an unlisted corporation; or
(b) an interest in such a share or stock;
"unlisted corporation" means a corporation not listed on an
30 official list of a prescribed financial market.
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64. Reference to property held by trustees
A reference to a trustee of a discretionary trust holding property
is a reference to the holding of the property by the trustee under
the trust.
5 65. The term "corporate trustee"
A reference to a corporate trustee is to the trustee of a
discretionary trust if that trustee --
(a) is an unlisted corporation, other than an authorised
trustee corporation; and
10 (b) holds --
(i) dutiable property; or
(ii) an indirect interest in dutiable property.
66. When a corporate trustee holds an indirect interest in
dutiable property
15 (1) A corporate trustee holds an indirect interest in dutiable
property if an entity linked to the trustee is entitled to dutiable
property.
(2) Section 156 applies where it is necessary to determine whether
an entity is linked to a corporate trustee for the purposes of
20 subsection (1).
(3) In applying section 156, the corporate trustee is the main entity,
despite section 152(2).
Subdivision 2 -- Disposition of shares in a corporate trustee
67. Share disposition taken to be an agreement for the transfer
25 of trust property
(1) A disposition of a share in a corporate trustee is taken to be an
agreement for the transfer of dutiable property and is liable to
duty accordingly if it is a transaction, or part of a transaction,
that is a scheme or arrangement, or part of a scheme or
30 arrangement, that results in a change in the beneficial ownership
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of dutiable property held directly or indirectly by the corporate
trustee of a discretionary trust.
(2) Subsection (1) does not apply to the disposition of a share by
which the personal representative of a deceased person disposes
5 of a share to a beneficiary in the administration of the estate of
the deceased.
68. Dutiable value of a transaction referred to in section 67
(1) The dutiable value of a transaction referred to in section 67 is
the proportion of the dutiable value of the dutiable property
10 held, directly or indirectly, by the corporate trustee at the time
of the share disposition that is equivalent to the proportion of
the total issued capital of the corporate trustee represented by
the share.
(2) The dutiable value of the dutiable property held indirectly by a
15 corporate trustee is an amount determined by applying
section 157 as if a reference in that section --
(a) to land were a reference to dutiable property; and
(b) to the main entity were a reference to the corporate
trustee.
20 (3) In determining the proportion of the total issued capital of a
corporate trustee represented by a share for the purposes of
subsection (1), the respective rights and obligations pertaining
to the share and the other shares in the capital of the corporate
trustee are to be taken into account.
25 69. Person liable to pay duty on a disposition of a share
The person liable to pay duty on a disposition of a share in a
corporate trustee referred to in section 67 is each person that
holds a share in the corporate trustee.
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Division 4 -- Partnerships
Subdivision 1 -- Terms used in this Division
70. The term "dutiable property"
In this Division --
5 "dutiable property" means each of the following --
(a) land in Western Australia;
(b) a chattel in Western Australia.
71. References to property held by a partnership or trust
A reference to a partnership or trust holding property is a
10 reference to the holding of the property by the partners for the
partnership or the trustees under the trust.
72. The term "partnership acquisition"
A reference to a partnership acquisition is to a person acquiring
a partnership interest in a partnership that, immediately before
15 the acquisition holds --
(a) land in Western Australia; or
(b) an indirect interest in land in Western Australia.
73. When a partnership holds an indirect interest in land in
Western Australia
20 (1) A partnership holds an indirect interest in land in Western
Australia if an entity linked to the partnership is entitled to land
in Western Australia.
(2) Section 156 applies where it is necessary to determine whether
an entity is linked to a partnership for the purposes of
25 subsection (1) or section 76(a)(ii) or 77(1)(b).
(3) In applying section 156, the partnership is the main entity,
despite section 152(2).
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74. Partner's partnership interest
A reference to a partner's partnership interest is to the greater
of --
(a) the percentage of the capital of the partnership the
5 partner has contributed or is obliged to contribute; or
(b) the percentage of the losses of the partnership the
partner is required to bear.
Subdivision 2 -- Acquiring partnership interests
75. Acquiring a partnership interest
10 (1) A person acquires a partnership interest if a partnership is
formed or the person's partnership interest increases.
(2) Without limiting subsection (1) --
(a) a partnership may be formed on --
(i) a change in the membership of a partnership; or
15 (ii) the merger of 2 or more partnerships;
or
(b) a person's partnership interest may increase --
(i) under the terms of a partnership agreement; or
(ii) on the retirement of a partner from a partnership;
20 or
(iii) on a change in the terms of a partnership
agreement effecting a change in the interests of
the partners.
76. Dutiable value of a partnership acquisition
25 The dutiable value of a partnership acquisition is --
(a) the consideration for the acquisition so far as the
consideration relates to dutiable property --
(i) held by the partnership; or
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(ii) to which an entity linked to the partnership is
entitled;
or
(b) the value of the partnership interest the subject of the
5 acquisition at the time when liability for duty on the
transaction arises if --
(i) there is no consideration for the acquisition; or
(ii) the consideration cannot be ascertained when
liability for duty on the transaction arises; or
10 (iii) the value of the partnership interest is greater
than the consideration for the acquisition.
77. Value of a partnership interest
(1) For the purpose of section 76(b), the value of a partnership
interest the subject of a partnership acquisition is the total of the
15 following amounts --
(a) in respect of the dutiable property held by the
partnership -- an amount determined by applying the
partner's partnership interest to the unencumbered
value, when liability for duty on the transaction arises,
20 of the dutiable property;
(b) in respect of the dutiable property to which an entity
linked to the partnership is entitled -- an amount
determined by applying the partner's partnership interest
to an amount determined by applying section 157 as if a
25 reference in that section --
(i) to land were a reference to dutiable property; and
(ii) to the main entity were a reference to the
partnership.
(2) In determining the value of a partnership interest the subject of a
30 new partner's partnership acquisition on formation of a
partnership, the value of any dutiable property the partner
contributed to the partnership on its formation is to be
disregarded.
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(3) For the purposes of subsection (2), a person is a new partner
only if --
(a) the person was not in partnership with any partners of
the partnership immediately before its formation; or
5 (b) on the person's partnership acquisition, the person
becomes a partner in an additional partnership to a
partnership in which the person is a partner with any
partners of the additional partnership immediately
before its formation.
10 (4) However, subsection (3)(b) does not apply to a person that
makes a partnership acquisition in a partnership that was formed
because of a change in the membership of the partners of
another partnership (the "old partnership") if the person had a
partnership interest in the old partnership.
15 (5) In determining the value of a partner's partnership interest the
subject of an acquisition that is an increase in the partner's
partnership interest, the partner's partnership interest is taken to
be the increase in the partner's partnership interest.
78. Dutiable value of a transaction reduced for transfer of
20 dutiable property to a partner on retirement or dissolution
(1) This section applies if, on a person (the "retiring partner")
ceasing to be a partner in a partnership because of the retiring
partner's retirement from the partnership or its dissolution,
dutiable property of the partnership is transferred or agreed to
25 be transferred to the retiring partner.
(2) The dutiable value of a transfer of, or an agreement for the
transfer of, dutiable property to the retiring partner must be
reduced by an amount calculated by applying the retiring
partner's partnership interest in the partnership to the
30 unencumbered value of the dutiable property immediately
before the retirement or dissolution.
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Note: Example for subsection (2) --
A, B and C are in partnership in equal shares. B had a one-third
partnership interest immediately before retiring. On B ceasing to be a
partner, A and C transfer land to B. The dutiable value of the land
5 acquired by B will be reduced by one-third.
Division 5 -- Western Australian business assets
Subdivision 1 -- Terms used in this Division
79. Terms used in this Division
In this Division --
10 "business asset" means any of the following --
(a) goodwill of a business;
(b) a restraint of trade arrangement for a business;
(c) a business identity;
(d) a business licence;
15 (e) a right of a business under an uncompleted agreement
to supply commodities or provide services;
(f) intellectual property of a business;
(g) things that a business has that are in the nature of rent
rolls and client lists,
20 but does not include a trade debt;
"business identity" means a business name, trading name or
internet domain name, or a right to use a business name,
trading name or internet domain name;
"business licence" means a licence, permit or authority which
25 is issued, granted or given under --
(a) a written law and which is required by a written law
to be held by a person carrying out an activity for
gain or reward; or
(b) a law of the Commonwealth and which is required by
30 a law of the Commonwealth to be held by a person
carrying out an activity in Western Australia for gain
or reward;
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"circuit layout right" means an exclusive right under the
Circuit Layouts Act 1989 (Commonwealth) for an eligible
layout under that Act;
"commodities" includes land, money, credit and goods and any
5 interest in them;
"franchise arrangement" means an agreement or other
arrangement under which a person (the "franchisor") that
carries on a business authorises or permits another person
(the "franchisee") --
10 (a) to engage in the business of producing, supplying or
providing commodities or services, or both, at a place
other than the place of business of the franchisor as
long as the franchisee does so under --
(i) a stated marketing, business or technical plan
15 or system; and
(ii) a common format or common procedure, or
both;
and
(b) to use a mark or common trade name in such a way
20 that the business carried on by the franchisee is or is
capable of being identified by the public as being
substantially associated with the mark or name
identifying, commonly connected with or controlled
by the franchisor or a person that is a related person
25 to the franchisor;
"intellectual property" means --
(a) a patent, trademark, industrial design, copyright,
registered design, plant breeder right or circuit layout
right; or
30 (b) anything else that has the following characteristics --
(i) it is in the nature of a strategy, process,
procedure, mode of operation or way of
working that enables a commodity or service
to be produced, supplied or provided or that
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enhances the production, supply, provision or
quality of a commodity or service;
(ii) it was created, devised or developed to be
used for business purposes or, having been
5 created, devised or developed for other
purposes, has been applied, adapted or
modified for use for business purposes;
or
(c) a right to use or exploit --
10 (i) anything mentioned in paragraph (a) or (b); or
(ii) an adaptation or modification of anything
mentioned in paragraph (a) or (b);
"plant breeder right" means --
(a) a plant breeder's right under the Plant Breeder's
15 Rights Act 1994 (Commonwealth); or
(b) a plant breeder's right corresponding to a right
mentioned in paragraph (a);
"related person" has the meaning given in section 162;
"restraint of trade arrangement" for a business means a
20 restraint of trade arrangement which, in the opinion of the
Commissioner, enhances or is likely to enhance the value
of the business;
"Western Australian business", in relation to a dutiable
transaction, means --
25 (a) a business that, in the year preceding the transaction
has --
(i) been carried on in or from Western Australia;
or
(ii) supplied commodities or provided services to
30 customers in Western Australia;
or
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(b) carrying out an activity for gain or reward under a
licence referred to in paragraph (a) of the definition
of "business licence"; or
(c) carrying out an activity in Western Australia for gain
5 or reward under a licence referred to in paragraph (b)
of the definition of "business licence";
"Western Australian business asset" means a business asset
of a Western Australian business.
Subdivision 2 -- Particular transactions involving business assets
10 80. Transactions involving business licences that are to be taken
to be an agreement to transfer a Western Australian
business asset
When a person agrees to relinquish a business licence held by
that person, or agrees not to apply for a renewal of such a
15 business licence, so that it, or another business licence in respect
of the same kind of activity, can be issued, granted or given to
another person that agreement is taken to be an agreement to
transfer a Western Australian business asset and is liable to duty
accordingly.
20 81. Transactions for particular Western Australian business
assets that are not dutiable transactions
(1) The transfer, or an agreement for the transfer, of a Western
Australian business asset from a franchisor in accordance with a
franchise arrangement, is not a dutiable transaction unless
25 another person has relinquished, or agreed not to extend, that
business asset or a business asset of the same kind so that the
franchisee could acquire that business asset.
(2) A transaction is not a dutiable transaction if the only dutiable
property the subject of the transaction is intellectual property of
30 a business.
(3) A transaction referred to in subsection (2) is a dutiable
transaction if, under section 37, it is aggregated with a
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transaction that is a dutiable transaction for a Western
Australian business asset and the transactions are treated as a
single dutiable transaction.
(4) For the purposes of section 11(1)(f), new dutiable property that
5 is a Western Australian business asset referred to in
section 17(1)(c) is not acquired unless subsection (5) applies.
(5) If a person --
(a) carries on, or has carried on, a business (the "first
business"); and
10 (b) creates intellectual property, a restraint of trade
arrangement or a business identity related to the first
business for the purpose of the carrying on of the first
business or another business by another person,
then, subject to subsections (2) and (3), the creation of the
15 intellectual property, restraint of trade arrangement or business
identity is the acquisition by that other person of a Western
Australian business asset of the first business.
Subdivision 3 -- Dutiable value of dutiable transactions for
business assets
20 82. Dutiable value of dutiable transactions for business assets
The dutiable value of a dutiable transaction for a business asset
is to be determined --
(a) under section 83 if --
(i) the business asset is a business licence referred to
25 in paragraph (b) of the definition of that term in
section 79; and
(ii) the asset is of a Western Australian business
referred to in paragraph (c) of the definition of
that term in section 79;
30 or
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(b) under section 84 if the business asset is a business
licence referred to in paragraph (a) of the definition of
that term in section 79; or
(c) under section 85 or 86, as is relevant; or
5 (d) if the Commissioner decides that it is not appropriate to
determine the dutiable value of a dutiable transaction for
business assets under any of those sections, on such
other basis as the Commissioner decides is appropriate.
83. Dutiable value of certain business licences required by a law
10 of the Commonwealth
The dutiable value of a dutiable transaction referred to in
section 82(a) is the greater of the following --
(a) the value of the business licence so far as it authorises
the carrying out of an activity in Western Australia; or
15 (b) the portion of the consideration for the transaction that
relates to the carrying out of an activity in Western
Australia under the authority of the business licence.
84. Dutiable value of business licences required by a law of
Western Australia
20 The dutiable value of a dutiable transaction referred to in
section 82(b) is --
(a) the consideration for the dutiable transaction; or
(b) the unencumbered value of the business licence the
subject of the transaction at the time when liability for
25 duty on the transaction arises if --
(i) there is no consideration for the transaction; or
(ii) the consideration cannot be ascertained when
liability for duty on the transaction arises; or
(iii) the unencumbered value is greater than the
30 consideration for the transaction.
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85. Head office or principal place of business in Western
Australia
The dutiable value of a dutiable transaction for a business asset
where the principal place of business or head office of the
5 Western Australian business is in Western Australia is to be
determined using the following formula --
CUV × (TS - IS )
DV =
TS
where --
DV is the dutiable value;
10 CUV is --
(a) the consideration for the transaction; or
(b) the unencumbered value of the business asset the subject
of the transaction if --
(i) there is no consideration for the transaction; or
15 (ii) the consideration cannot be ascertained when
liability for duty on the transaction arises; or
(iii) the unencumbered value is greater than the
consideration for the transaction;
TS is the gross amount (in Australian dollars) of all the
20 commodities supplied and services provided by the business in
the last 3 completed financial years preceding the transaction;
IS is the gross amount (in Australian dollars) of the
commodities supplied and services provided by the business to
customers elsewhere in Australia in the last 3 completed
25 financial years preceding the transaction.
86. Head office or principal place of business in another State
The dutiable value of a dutiable transaction for a business asset
where neither the principal place of business nor the head office
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of the Western Australian business is in Western Australia is to
be determined using the following formula --
CUV × WAS
DV =
TS
where --
5 DV is the dutiable value;
CUV is --
(a) the consideration for the transaction; or
(b) the unencumbered value of the business asset the subject
of the transaction if --
10 (i) there is no consideration for the transaction; or
(ii) the consideration cannot be ascertained when
liability for duty on the transaction arises; or
(iii) the unencumbered value is greater than the
consideration for the transaction;
15 TS is the gross amount (in Australian dollars) of all the
commodities supplied and services provided by the business in
the last 3 completed financial years preceding the transaction;
WAS is the gross amount (in Australian dollars) of the
commodities delivered and services provided by the business to
20 customers in Western Australia in the last 3 completed financial
years preceding the transaction.
Division 6 -- Conditional agreements
87. Conditional agreements
(1) A reference to a conditional agreement is to an agreement for
25 the transfer of dutiable property where --
(a) completion of the agreement is conditional on the
happening of one or more of the events described in
subsection (2) and specified in an instrument effecting
or evidencing the agreement; and
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(b) the parties to the agreement do not have control over the
happening of the event, except to the extent that they are
required under the agreement to use their best
endeavours to secure the happening of the event; and
5 (c) a person related to a party to the agreement does not
have control over the happening of the event,
unless --
(d) it is a call option of a simultaneous put and call option
taken to be an agreement for the transfer of option
10 property under section 45; or
(e) it is an agreement that is subject to a condition which, in
the opinion of the Commissioner, constitutes a scheme
or arrangement, or part of a scheme or arrangement, the
sole or dominant purpose of which is to defer the
15 payment of duty.
(2) The following events are specified for the purposes of
subsection (1)(a) --
(a) the obtaining by a purchaser under the agreement of a
satisfactory private taxation ruling by the Commissioner
20 of Taxation of the Commonwealth as to the
consequences of the agreement with respect to taxation
under a law of the Commonwealth;
(b) the obtaining, to the satisfaction of a purchaser under the
agreement, of funds or of approval to obtain funds to
25 finance the purchase;
(c) the obtaining by a purchaser under the agreement of a
satisfactory building inspection, geotechnical or
environmental report from a third party in relation to the
property the subject of the agreement;
30 (d) the obtaining by a vendor under the agreement of the
consent of the Minister responsible for administering the
Land Administration Act 1997 to transfer a lease of
leasehold land to a purchaser under the agreement;
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(e) the authorisation of the payment to a purchaser under
the agreement of a first home owner grant under the
First Home Owner Grant Act 2000 in relation to a
property the subject of the agreement;
5 (f) the obtaining by a purchaser under the agreement of a
licence to trade or the grant of a franchise;
(g) where the subject of the agreement is a commercial
property, the obtaining by a vendor under the agreement
of the renewal of an existing lease of the property;
10 (h) the obtaining from the landlord of a leasehold business
by a vendor of the business the subject of the agreement,
of a new lease, or of an assignment of the current lease
to a purchaser under the agreement;
(i) the sale of another property by a purchaser under the
15 agreement;
(j) the obtaining by a vendor under the agreement of --
(i) the approval under the Planning and
Development Act 2005 section 135 for the
subdivision of the land, or part of the land, the
20 subject of the agreement; or
(ii) the registration of a strata/survey-strata plan
under the Strata Titles Act 1985;
(k) the obtaining by a purchaser under the agreement of
approval from a regulatory body;
25 (l) the results of the making of due diligence inquiries by a
purchaser under the agreement where the results are to
be measured against objective criteria set out in an
instrument that effects or evidences the agreement;
(m) the issue of a certificate of title (however described) for
30 the property the subject of the agreement;
(n) the obtaining by a purchaser of consent required under
the Mining Act 1978 for the transfer of a mining
tenement the subject of the agreement;
(o) a prescribed event.
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(3) A conditional agreement is terminated on relevant grounds if --
(a) it is not carried into effect because the condition to
which it is or was subject cannot be fulfilled for reasons
that are not within the control of a party to the
5 agreement, or a person that is related to a party to the
agreement; and
(b) duty is not chargeable on the agreement under
section 107 because it is a cancelled transaction.
(4) A conditional agreement becomes unconditional when the
10 condition to which its completion was subject is fulfilled.
(5) For the purposes of subsections (1)(c) and (3)(a), the following
persons are related persons --
(a) joint owners of property;
(b) individuals who are in partnership with each other;
15 (c) participants in the same joint venture;
(d) family members;
(e) related corporations;
(f) a trustee and another trustee if there is any beneficiary
common to the trusts of which they are trustees, whether
20 the beneficiary has a vested share or is contingently
entitled or may benefit from a discretionary trust;
(g) an individual and a corporation, if the individual is a
majority shareholder, director or secretary of the
corporation or a related corporation;
25 (h) an individual and a trustee, if the individual is a
beneficiary under the trust of which the trustee is a
trustee, whether the beneficiary has a vested share or is
contingently entitled or is a potential beneficiary under a
discretionary trust;
30 (i) a corporation and a trustee if --
(i) the corporation or a majority shareholder,
director or secretary of the corporation is a
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beneficiary under the trust of which the trustee is
a trustee; or
(ii) a related corporation to the corporation is a
beneficiary under the trust of which the trustee is
5 a trustee,
whether the beneficiary has a vested share or is
contingently entitled or is a potential beneficiary under a
discretionary trust.
(6) A reference in subsection (5)(d) to a family member of a person
10 is to --
(a) a child or remoter lineal descendant of the person; or
(b) a parent or remoter lineal ancestor of the person; or
(c) a brother or sister of the person or remoter lineal
descendant of a brother or sister of the person; or
15 (d) an aunt or uncle of the person; or
(e) the spouse, former spouse, de facto partner or former
de facto partner of the person; or
(f) a family member referred to in paragraph (a), (b), (c)
or (d) of a person referred to in paragraph (e); or
20 (g) the spouse or de facto partner of a person mentioned in
paragraph (a), (b), (c) or (d),
or more than one of them.
88. The term "farming land conditional agreement"
A reference to a farming land conditional agreement is to a
25 conditional agreement the subject of which is solely or
dominantly farming land within the meaning of section 99(1).
89. The term "mining tenement conditional agreement"
A reference to a mining tenement conditional agreement is to a
conditional agreement the subject of which is a mining
30 tenement.
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90. The term "off-the-plan conditional agreement"
A reference to an off-the-plan conditional agreement is to a
conditional agreement that includes provision --
(a) for the sale of a strata lot; and
5 (b) for the construction on the strata lot, after liability for
duty on the agreement arises, of a building for
commercial, residential or mixed use purposes.
91. The term "subdivision conditional agreement"
A reference to a subdivision conditional agreement is to a
10 conditional agreement for the sale of land conditional on the
obtaining by a purchaser under the agreement of approval from
the relevant authorities to the subdivision of the land, or part of
the land, the subject of the agreement.
Part 6 -- Exemptions, nominal duty and concessions
15 Division 1 -- Exemptions
Subdivision 1 -- Exemptions for public and governmental purposes
92. Declaration of public authorities as exempt bodies
(1) The Minister may declare a public authority to be an exempt
body for the purposes of this Subdivision.
20 Note: There are other exempt bodies. See the definition of "exempt body" in
section 3.
(2) The Minister may withdraw a declaration made under
subsection (1).
(3) The Minister is to publish notice of the making or withdrawal of
25 a declaration in the Gazette.
93. No duty if an exempt body would be solely liable
Duty is not chargeable on a dutiable transaction to which an
exempt body is a party if the exempt body is the only party that
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would be liable to pay duty that would, but for this section, be
chargeable on the transaction.
94. Duty reduction and liability if an exempt body and another
party would be liable
5 (1) This section applies to a dutiable transaction to which an
exempt body is a party if --
(a) the exempt body would, apart from subsection (2), be
liable to pay duty chargeable on the transaction; and
(b) at least one other party to the transaction is liable to pay
10 duty chargeable on the transaction and is not an exempt
body.
(2) The exempt body is not liable to pay duty on the transaction.
(3) The amount of duty payable on the transaction (AD) is the
amount determined under the formula --
15 AD = TD - (TD × EI )
where --
TD is the amount of duty that would be payable on the
transaction if this section did not apply to it;
EI is --
20 (a) if the interest in the dutiable property that the exempt
body has under the transaction is of a kind that enables
the proportion which that interest bears to the whole of
the dutiable property to be ascertained -- that proportion
expressed as a percentage; or
25 (b) in any other case -- a percentage determined by the
Commissioner to represent the proportion which the
interest in the dutiable property that the exempt body
has under the transaction bears to the whole of the
dutiable property.
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(4) The amount of duty payable by any party referred to in
subsection (1)(b) is the amount AD determined under
subsection (3).
Note: For example, an exempt body and another party acquire dutiable
5 property as tenants in common. The exempt body acquires 40 of 100
undivided shares and the other party acquires 60 of 100 undivided
shares. But for this section the transfer duty chargeable on the
transaction would be $3 000. Under the operation of this section the
amount of duty payable on the transaction is calculated as follows:
10 40
$3000 - $3000× = $3000 - $1200 = $1800
100
This amount (i.e. $1 800) is the amount of transfer duty payable by the
other party.
95. Transactions for charitable or similar public purposes are
exempt transactions
15 Duty is not chargeable on a dutiable transaction that has been
entered into or occurred for charitable or similar public
purposes.
Subdivision 2 -- Certain transactions between spouses or
de facto partners
20 96. Terms used in this Subdivision
In this Subdivision --
"lot" means either of the following --
(a) a lot within the meaning given in the Land Tax
Assessment Act 2002 Glossary clause 2;
25 (b) 2 or more such lots in the same ownership --
(i) on which is constructed a residence, parts of
which stand on each of the lots; and
(ii) which have common boundaries and which in
the opinion of the Commissioner should be
30 treated as a single lot for the purpose of this
Subdivision;
"residence" includes flat, apartment or other residential unit.
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97. Transactions between spouses or de facto partners that are
exempt transactions
Duty is not chargeable on a transfer of, or an agreement for the
transfer of, dutiable property where --
5 (a) the person from whom, and the person to whom, the
dutiable property is transferred, or agreed to be
transferred, are married to each other or are de facto
partners of 2 years; and
(b) the dutiable property is a lot on which a residence is
10 erected which, when liability for duty on the transaction
arises, was used solely or dominantly as the ordinary
place of residence of the persons referred to in
paragraph (a); and
(c) the lot on which the residence is erected is used solely or
15 dominantly for residential purposes associated with that
residence; and
(d) the person from whom the dutiable property is
transferred, or agreed to be transferred, is the sole owner
of the property; and
20 (e) the result of the transaction is or will be that the dutiable
property is owned solely by the persons referred to in
paragraph (a) as joint tenants or tenants in common in
equal shares.
98. Application for exemption under this Subdivision
25 An application for assessment or reassessment under this
Subdivision must be --
(a) made in the approved form by the persons referred to in
section 97(a); and
(b) accompanied by such transaction record for the
30 transaction as is required to be lodged under section 23.
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Subdivision 3 -- Family farm transactions
99. Terms used in this Subdivision
(1) In this Subdivision --
"exempt family farm transaction" has the meaning given in
5 section 102;
"family member" has the meaning given in section 100;
"farming land" means land in Western Australia that is used
solely or dominantly for the purpose of primary production;
"farming property" means --
10 (a) farming land; or
(b) other dutiable property that is used solely or
dominantly in connection with the business of
primary production;
"transferee" has the meaning given in section 101;
15 "transferor", in respect of a dutiable transaction the subject of
which is farming property, means --
(a) an individual (other than a trustee) from whom the
property is, or is to be, acquired; or
(b) if the property was held by a trustee (other than a
20 trustee of a unit trust scheme or a discretionary trust)
immediately before the transaction took place, an
individual on whose behalf, and at whose direction,
the trustee carried out the transaction.
(2) For the purposes of this Subdivision, a person controls a
25 discretionary trust if --
(a) the person is in a position to influence, either directly or
indirectly, the vesting of the whole or any part of the
capital of the trust property, or of the whole or any part
of the income from the trust property; or
30 (b) in a case where a corporation is in a position to
influence, either directly or indirectly, the vesting of the
whole or any part of the capital of the trust property, or
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of the whole or any part of the income from that trust
property, the person is beneficially entitled to a share in
that corporation or a related corporation or to act as a
director or secretary of that corporation or related
5 corporation.
(3) For the purposes of this Subdivision, farming property is the
subject of a dutiable transaction that is a partnership acquisition,
if the land referred to in section 72 is farming land.
100. The term "family member"
10 A reference in this Subdivision to a family member of a person
is to --
(a) a child or remoter lineal descendant of the person; or
(b) a parent or remoter lineal ancestor of the person; or
(c) a brother or sister of the person or remoter lineal
15 descendant of a brother or sister of the person; or
(d) an aunt or uncle of the person; or
(e) the spouse, former spouse, de facto partner of 2 years or
former de facto partner of 2 years of the person; or
(f) the spouse or de facto partner of 2 years of a person
20 mentioned in paragraph (a), (b), (c) or (d),
or more than one of them.
101. The term "transferee"
A reference in this Subdivision to a transferee in respect of a
dutiable transaction the subject of which is farming property is
25 to a person described in Schedule 1 column 4 opposite the
description of the transaction, that is --
(a) a family member of the transferor, if the family member
does not intend to hold the farming property as agent,
trustee or otherwise on behalf of any other person; or
30 (b) a trustee of a trust, other than a unit trust scheme or a
discretionary trust, if the beneficial owner of the trust
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property under the trust is a family member of the
transferor; or
(c) a trustee of a discretionary trust, if --
(i) all the persons who have a share or interest in the
5 trust property, whether vested or contingent, or
who may benefit from the discretionary trust are
family members of the transferor; and
(ii) the transferor does not control the discretionary
trust.
10 102. Transactions between family members for farming property
that are exempt family farm transactions
(1) A reference in this Subdivision to an exempt family farm
transaction is to a dutiable transaction to the extent to which the
subject of the transaction is farming property which, as a result
15 of the transaction is, or is to be, acquired by a transferee or
transferees.
(2) A transaction is an exempt family farm transaction only if --
(a) each transferor was using the farming property in the
business of primary production immediately before the
20 transaction took place; and
(b) when liability to duty on the transaction arose, each
transferee intends to continue to use the farming
property in the business of primary production.
(3) It is irrelevant for the purposes of subsection (2) whether a
25 transferor was using, or a transferee intends to continue to use,
the farming property in the business of primary production --
(a) personally; or
(b) through a trust, corporation or partnership (an "entity")
to which the transferor or transferee, as is relevant, is
30 related; or
(c) through a combination of entities to which the transferor
or transferee, as is relevant, is related.
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(4) In subsection (3), a transferor is related to an entity if --
(a) the transferor is a beneficiary of a trust --
(i) other than a unit trust scheme or a discretionary
trust; and
5 (ii) in which every other beneficiary is a family
member of the transferor;
or
(b) the transferor has a share or interest in trust property,
whether vested or contingent, held by the trustee of a
10 discretionary trust and every other person who holds
such a share or interest in that property, or who may
benefit from that trust, is a family member of the
transferor; or
(c) the transferor holds units in a unit trust scheme and
15 every other person who holds a unit in that unit trust
scheme is a family member of the transferor; or
(d) the transferor is a shareholder in a corporation in which
every other shareholder is a family member of the
transferor; or
20 (e) the transferor is a partner in a partnership in which every
other partner is a family member of the transferor.
(5) In subsection (3), a transferee is related to an entity if --
(a) the transferee is a beneficiary of a trust --
(i) other than a unit trust scheme or a discretionary
25 trust; and
(ii) in which every other beneficiary is a family
member of the transferor;
or
(b) the transferee has a share or interest in trust property,
30 whether vested or contingent, held by the trustee of a
discretionary trust and --
(i) every other person who holds such a share or
interest in that property, or who may benefit
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from that trust, is a family member of the
transferor; and
(ii) the transferor does not control the trust;
or
5 (c) the transferee holds units in a unit trust scheme and
every other person who holds a unit in that unit trust
scheme is a family member of the transferor; or
(d) the transferee is a shareholder in a corporation in which
every other shareholder is a family member of the
10 transferor; or
(e) the transferee is a partner in a partnership in which every
other partner is a family member of the transferor.
(6) For the purposes of subsection (2), a farming property is being
used in the business of primary production even if --
15 (a) some, but not all, of the farming land of that property is
leased to another person; and
(b) under the lease, the lessee is using the leased land solely
or dominantly for the purposes of silviculture or
reafforestation.
20 103. No duty on exempt family farm transactions
Duty is not chargeable on an exempt family farm transaction.
104. No exemption for subsequent transactions for the same
farming property within 5 years
Despite section 103, duty is chargeable on a transaction (a
25 "subsequent transaction") that would otherwise be an exempt
family farm transaction if --
(a) duty was not charged on an exempt family farm
transaction (the "first transaction"); and
(b) liability to duty on the subsequent transaction arose --
30 (i) within 5 years of the first transaction; and
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(ii) the transaction relates, in the opinion of the
Commissioner, to the same farming property that
was the subject of the first transaction.
105. Subsequent liability to duty in certain circumstances
5 (1) If, after an exempt family farm transaction as a result of which
farming property was acquired by a transferee referred to in
section 101(c) has taken place, any of the following events take
place, the event is taken to be a transfer of farming property --
(a) during the lifetime of the transferor, a person that is not
10 a family member of the transferor --
(i) becomes entitled to a share or interest in the trust
property, whether that share or interest is vested
or contingent; or
(ii) otherwise benefits from the trust;
15 (b) the transferor gains control of the trust,
unless --
(c) when the event took place, the trust did not hold any
farming property that was the subject of an exempt
family farm transaction; or
20 (d) an event taken to be a transfer of the farming property is
already duty endorsed under this section.
(2) The trustee of the trust is to lodge a transfer duty statement not
later than 2 months after the day on which an event referred to
in subsection (1) takes place.
25 Penalty: a fine of $20 000.
(3) The person liable to pay the duty is the trustee.
(4) The dutiable value of an event subsequent to an exempt family
farm transaction, taken to be a transfer under subsection (1), is
the unencumbered value of the farming property that was the
30 subject of the exempt family farm transaction held by the trust
when the event took place.
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106. Application for an exemption under this Subdivision
(1) An application for assessment or reassessment under this
Subdivision must be --
(a) made in the approved form jointly by all of the
5 transferees; and
(b) accompanied by such transaction record for the
transaction as is required to be lodged under section 23.
(2) For the purposes of this Subdivision, the Taxation
Administration Act section 17 applies as if --
10 (a) despite subsection (1) of that section, a person is not
entitled to apply for a reassessment more than
12 months after the day on which the transaction was
duty endorsed; and
(b) despite subsection (4) of that section, the Commissioner
15 may make a reassessment on an application only if the
application was made within that time.
Subdivision 4 -- Other exempt transactions
107. Cancelled transactions
(1) In this section --
20 "cancelled transaction" has the meaning given in
subsection (2);
"replacement transaction", in relation to a cancelled
transaction, means another dutiable transaction that --
(a) is between all of the same parties as the parties to the
25 cancelled transaction; and
(b) is substantially similar in effect to the cancelled
transaction; and
(c) in the opinion of the Commissioner, is a scheme or
arrangement, or part of a scheme or arrangement, for
30 which the sole or dominant purpose of any party is to
avoid, reduce or defer the payment of duty;
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"subsale transaction", in relation to a cancelled transaction,
means another dutiable transaction which results in a
beneficial interest in the dutiable property the subject of the
cancelled transaction being held by --
5 (a) a person who is not a party to the cancelled
transaction, a result which is contemplated or
provided for under the cancelled transaction; or
(b) a person who is not a party to the cancelled
transaction, a result which is substantially similar in
10 effect to the effect of the cancelled transaction; or
(c) another person, as a result of an agreement,
arrangement or understanding between a person
liable to pay duty on the cancelled transaction and
any other party to the transaction (including any other
15 person liable to pay duty on the cancelled
transaction).
(2) A reference to a cancelled transaction is to a dutiable transaction
that has not, and will not, be carried into effect but the following
transactions are not cancelled transactions --
20 (a) a call option of a simultaneous put and call option taken
to be an agreement for the transfer of the option property
under section 45;
(b) an assignment of a call option taken to be an agreement
for the transfer of the option property under section 49;
25 (c) a terms contract (within the meaning given in the Sale of
Land Act 1970) if the person liable to pay duty on the
transaction has under the contract, obtained exclusive
use or control of the dutiable property, whether or not
that contract is not fully carried into effect for any
30 reason.
(3) Subject to subsection (4), duty is not chargeable on a cancelled
transaction.
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(4) Duty is chargeable on a cancelled transaction if the transaction
has been cancelled so that a replacement transaction or a subsale
transaction can be entered into.
(5) The Commissioner, on the application of a taxpayer, is to
5 reassess the liability to duty of a dutiable transaction that is not
liable to duty because of this section.
(6) An application for assessment or reassessment under this
section in relation to a cancelled transaction must be --
(a) in the approved form; and
10 (b) accompanied by such transaction record for the
transaction as is required to be lodged under section 23.
108. Bankruptcy transactions
(1) In this section --
"bankruptcy trustee" means --
15 (a) the Official Trustee in Bankruptcy; or
(b) a registered trustee,
under the Bankruptcy Act 1966 (Commonwealth).
(2) Duty is not chargeable on a dutiable transaction --
(a) that is a vesting of dutiable property in a bankruptcy
20 trustee; or
(b) that is the transfer, or agreement for the transfer, of
dutiable property for no consideration to a former
bankrupt from the estate of the former bankrupt.
109. Transactions involving representatives of another country
25 Duty is not chargeable on a transfer of, or an agreement for the
transfer of, dutiable property to a representative in Australia of
the Government of another country, a foreign consul, or a trade
commissioner of another country, if that property is intended for
official use.
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110. Financial Sector (Transfers of Business) Act 1999 Part 4
transactions
Duty is not chargeable on a vesting of dutiable property by, or
expressly authorised by, statute law (as referred to in
5 section 11(1)(d)(i)) that is a compulsory transfer of dutiable
property under the Financial Sector (Transfers of Business)
Act 1999 (Commonwealth) Part 4.
111. Special disability trust transactions
Duty is not chargeable on a transfer of, or an agreement for the
10 transfer of, dutiable property --
(a) to a special disability trust, within the meaning given in
the Social Security Act 1991 (Commonwealth)
section 1209L; and
(b) if there is no consideration for the transfer.
15 112. Transactions under other Acts
(1) Duty is not chargeable on a transfer of, or an agreement for the
transfer of, the fee simple in Crown land under the Land
Administration Act 1997 section 87 to complete a land exchange
under section 11(1)(b) of that Act.
20 (2) Duty is not chargeable on a transfer of, or an agreement for the
transfer of, the fee simple in Crown land by way of exchange
where the decision to exchange the land is given effect under
the Land Administration Act 1997 Schedule 2 clause 4.
(3) Duty is not chargeable on a transfer of, or an agreement for the
25 transfer of, the fee simple in --
(a) Crown land the subject of a licence referred to in the
Land Administration Act 1997 Schedule 2 clause 21; or
(b) Crown land the subject of a lease referred to in the Land
Administration Act 1997 Schedule 2 clause 22; or
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(c) Crown land the subject of a conditional purchase lease
referred to in the Land Administration Act 1997
Schedule 2 clause 26; or
(d) Crown land the subject of a conditional purchase lease
5 referred to in the Land Administration Act 1997
Schedule 2 clause 27; or
(e) war service land referred to in the Land Administration
Act 1997 Schedule 2 clause 30; or
(f) Crown land referred to in the Land Administration
10 Act 1997 Schedule 2 clause 32.
(4) Duty is not chargeable on a transfer of, or an agreement for the
transfer of, or the grant of the fee simple or other less estate in
Crown land pursuant to --
(a) a request under the Land Administration Act 1997
15 section 212; or
(b) an agreement under the Land Administration Act 1997
section 255; or
(c) an award under the Land Administration Act 1997
section 256; or
20 (d) the Land Administration Act 1997 section 257.
(5) Duty is not chargeable on a transfer of the fee simple in Crown
land --
(a) pursuant to a request under the Public Works Act 1902
section 45A; or
25 (b) granted under the Public Works Act 1902 section 80,
as in force immediately before the commencement of the Acts
Amendment (Land Administration) Act 1997.
(6) Duty is not chargeable on a transaction --
(a) that is the passing of any property that occurs by
30 operation of the Strata Titles Act 1985 section 21I or
21M or an order under section 103P of that Act; or
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(b) to give effect to a notice of resolution referred to in the
Strata Titles Act 1985 section 21V or 31H; or
(c) that occurs by operation of the Strata Titles Act 1985
section 21W, 21Y, 31G or 31J or an order under
5 section 103P of that Act; or
(d) under, or to give effect to, the Strata Titles Act 1985
Part II Division 2A or Part III Division 3,
to the extent that the consideration for the transaction is an
interest in common property, within the meaning of that term in
10 that Act.
113. Transactions effected by a matrimonial instrument or a
de facto relationship instrument
Duty is not chargeable on a dutiable transaction to the extent
that it is effected by a matrimonial instrument mentioned in
15 section 129(b) or (c) or a de facto relationship instrument
mentioned in section 130(a).
Division 2 -- Nominal duty
Subdivision 1 -- Certain trust transactions
114. Certain dutiable transactions on vesting or termination of
20 discretionary trust
(1) This section applies to a transfer of, or an agreement for the
transfer of, dutiable property to a taker in default on the vesting
or termination of the discretionary trust.
(2) Nominal duty is chargeable on a transaction to which this
25 section applies if there is, or will be, no consideration for the
transaction.
115. Certain dutiable transactions on exercise of power of
appointment by trustee of discretionary trust
Nominal duty is chargeable on a transfer of, or an agreement for
30 the transfer of, dutiable property to a beneficiary of a
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discretionary trust in the exercise by the trustee of a power of
appointment over the property if --
(a) there is, or will be, no consideration for the transfer or
agreement; and
5 (b) the beneficiary is an individual who does not intend to
hold the property as agent, trustee or otherwise on behalf
of any other person; and
(c) at the time when the trustee acquired the property the
beneficiary was named or described in the instrument
10 which created the power of appointment as a beneficiary
or as a member of a class of beneficiaries in favour of
which the trustee was empowered by that instrument to
appoint the property; and
(d) evidence of the acquisition by the trustee, as trustee, of
15 the property is produced to the Commissioner.
116. Transfer of, or agreement for the transfer of, dutiable
property to a beneficiary
(1) Nominal duty is chargeable on a transfer of, or an agreement for
the transfer of, dutiable property by the trustee of a trust, other
20 than a unit trust scheme or a discretionary trust, to a beneficiary
of the trust if --
(a) there is no consideration for the transfer or agreement;
and
(b) the transfer, or agreement, is under and in conformity
25 with the trusts contained in the declaration of trust.
(2) Subsection (1) applies only if the property the subject of the
agreement or transfer is --
(a) wholly or substantially the same as the property the
subject of the declaration of trust and the declaration of
30 trust is --
(i) duty endorsed; or
(ii) an exempt transaction;
or
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(b) dutiable property representing the proceeds of
re-investment of property referred to in paragraph (a); or
(c) property to which both paragraphs (a) and (b) apply.
117. Property vested in an apparent purchaser
5 (1) Nominal duty is chargeable on --
(a) a declaration of trust made by an apparent purchaser in
respect of identified dutiable property --
(i) vested in the apparent purchaser upon trust for
the real purchaser that provided the money for
10 the purchase of the dutiable property; or
(ii) to be vested in the apparent purchaser upon trust
for the real purchaser if the Commissioner is
satisfied that when liability for duty arose in
respect of the transfer, or agreement for the
15 transfer of, the dutiable property, the money for
the purchase of the dutiable property was or was
to be provided by the real purchaser;
or
(b) a transfer of dutiable property from an apparent
20 purchaser to the real purchaser if --
(i) the dutiable property is property, or part of
property, vested in the apparent purchaser upon
trust for the real purchaser; and
(ii) the Commissioner is satisfied that, when liability
25 for duty on the transaction arose, the money for
the purchase of the dutiable property and for any
improvements made to the dutiable property after
the purchase has been or will be provided by the
real purchaser.
30 (2) For the purposes of subsection (1), money provided by a person
other than the real purchaser is taken to have been provided by
the real purchaser if the Commissioner is satisfied that the
money was provided as a loan and has been or will be repaid by
the real purchaser.
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(3) This section applies whether or not there has been a change in
the legal description of the dutiable property between the
purchase of the property by the apparent purchaser and the
transfer to the real purchaser.
5 Note: For example, a change in the legal description of dutiable property in
the issuing of a new certificate of title following a subdivision of land.
118. Transfer to and from a trustee
(1) In this section --
"trustee" includes a trustee appointed in substitution for a
10 trustee or a trustee appointed in addition to a trustee or
trustees.
(2) Nominal duty is chargeable on a transfer of dutiable property
that is --
(a) made by a transferor to a trustee to be held solely as
15 trustee for the transferor without any change in the
beneficial ownership of the dutiable property; or
(b) made by way of re-transfer to the transferor, if no other
person has had a beneficial interest in the property
between the transfer to the trustee and the re-transfer.
20 (3) This section applies whether or not there has been a change in
the legal description of the dutiable property.
Note: For example, a change in the legal description of dutiable property in
the issuing of a new certificate of title following a subdivision of land.
119. Dutiable transactions related to changes in trustees and
25 managed investment schemes
(1) In this section --
"new trustee" means a trustee appointed in substitution for a
trustee or a trustee appointed in addition to a trustee or
trustees;
30 "old public unit trust" means an undertaking, together with the
prescribed interests to which it relates and the trustee or
representative and the management company in relation to
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those interests, to which the Corporations Law Chapter 11
Part 11.2 Division 11 (sections 1451 to 1465) applied by
reason of section 1452 of that Law;
"responsible entity" has the meaning given in the Corporations
5 Act section 9.
(2) A reference in this section to an old public unit trust that has
become a managed investment scheme is a reference to an old
public trust that has become, in accordance with the
Corporations Law Chapter 11 Part 11.2 Division 11
10 (sections 1451 to 1465), a managed investment scheme that is a
registered scheme.
(3) Nominal duty is chargeable on a transfer, or agreement for the
transfer, of dutiable property --
(a) to a trustee as a consequence of the retirement of a
15 trustee or the appointment of a new trustee if the transfer
is not a scheme or arrangement, or part of a scheme or
arrangement, for conferring an interest, in relation to the
trust property, on a new trustee or any other person,
whether as a beneficiary or otherwise, to the detriment
20 of the beneficial interest or potential beneficial interest
of any person; or
(b) as a consequence of the retirement of a responsible
entity of a managed investment scheme or the
appointment of a new responsible entity of a managed
25 investment scheme if the only beneficial interest
acquired by a person in relation to the property as a
result of the transfer is a beneficial interest acquired by
the replacement or new responsible entity solely because
of its appointment as responsible entity for the scheme;
30 or
(c) as a consequence of an old public unit trust that has
become a managed investment scheme if, after the
transfer takes place, the members of the managed
investment scheme have the same beneficial interests in
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the scheme's property as they had in the old public unit
trust's property before the instrument was executed.
(4) Nominal duty is chargeable on a declaration of trust --
(a) made by a trustee in respect of dutiable property that,
5 immediately before the trust is declared, is held by the
trustee as trustee of an old public unit trust that has
become a managed investment scheme the members of
which have the same beneficial interests in the property
as they had in the old public unit trust property before
10 the trust was declared; and
(b) to hold the dutiable property on trust for the responsible
entity of the managed investment scheme.
(5) Nominal duty is chargeable on a transfer, or agreement for the
transfer, of dutiable property --
15 (a) from a responsible entity of a managed investment
scheme to a custodian or agent of the responsible entity
as custodian or agent of the scheme in which the
transferor held the dutiable property; or
(b) from a custodian of the responsible entity of a managed
20 investment scheme as custodian or agent of the scheme
to the responsible entity of the managed investment
scheme in which the transferor held the property.
(6) Nominal duty is chargeable on a vesting of dutiable property by,
or expressly authorised by, statute law (as referred to in
25 section 11(1)(d)(i)) in a trustee or responsible entity if
subsection (3)(a) or (b) or (5)(b) would apply in respect of the
dutiable transaction if it were a transfer of dutiable property.
120. Transfer by way of security
(1) Nominal duty is chargeable on a transfer of dutiable
30 property if --
(a) there has been a dutiable transaction that is a transfer of
the dutiable property by way of security (the "original
transfer"); and
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(b) the original transfer is duty endorsed; and
(c) the property is transferred back to the person that
transferred it by way of security or is transferred to a
person to whom the property has been transmitted by
5 death or bankruptcy.
(2) If nominal duty is chargeable on a transfer under subsection (1),
nominal duty is also chargeable on the original transfer.
(3) The Commissioner, on the application of the taxpayer, is to
reassess the liability to duty of the original transfer under
10 subsection (2).
(4) The limitations as to time in the Taxation Administration Act
section 17 do not apply in respect of a reassessment under
subsection (3).
Subdivision 2 -- Certain superannuation transactions
15 121. Terms used in this Subdivision
In this Subdivision --
"Commonwealth Act" means the Superannuation Industry
(Supervision) Act 1993 (Commonwealth);
"complying approved deposit fund" means an entity that is a
20 complying approved deposit fund in accordance with the
Commonwealth Act section 43;
"complying superannuation fund" means an entity that is --
(a) a complying superannuation fund in accordance with
the Commonwealth Act section 42 or 42A; or
25 (b) an exempt public sector superannuation scheme
within the meaning given to that term in the
Commonwealth Act section 10(1);
"eligible rollover fund" means an entity that is an eligible
rollover fund in accordance with the Commonwealth Act
30 section 242 and includes an entity the trustee of which is
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satisfied will be an eligible rollover fund within 12 months
after the day on which a liability to duty arises;
"pooled superannuation trust" means an entity that is a
pooled superannuation trust in accordance with the
5 Commonwealth Act section 44;
"superannuation fund" means a complying approved deposit
fund, a complying superannuation fund, an eligible rollover
fund or a pooled superannuation trust.
122. Transfer of, or agreement for the transfer of, dutiable
10 property to a superannuation fund for consideration
(1) Nominal duty is chargeable on a transfer of, or an agreement for
the transfer of, dutiable property by a person (the "transferor")
to the trustee of a superannuation fund (the "trustee") where --
(a) there is, or will be, consideration for the transfer or
15 agreement; and
(b) either of the following applies --
(i) only the transferor can be a member of the
superannuation fund;
(ii) the property can only be held in the
20 superannuation fund specifically for the
transferor so that the property cannot be pooled
with the contributions or other assets of another
member and no other member can obtain an
interest in the property;
25 and
(c) the property can only be held in the superannuation fund
to be provided to the transferor as a retirement benefit.
(2) In subsection (1) --
"property" means the dutiable property referred to in
30 subsection (1) or, if the property is sold so that the proceeds
can be provided to the transferor as a retirement benefit,
those proceeds.
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(3) An application for assessment or reassessment under this
section must be made in the approved form.
123. Subsequent liability in certain circumstances
(1) If --
5 (a) after a transaction is duty endorsed under section 122;
and
(b) while the dutiable property referred to in that section, or
part of it, is still held in the superannuation fund,
an event takes place the effect of which is that a restriction
10 described in section 122(1)(b)(i) or (ii) or (c) that applied to the
superannuation fund when liability to duty on the transaction
arose ceases to apply, the event is taken to be a transfer of that
dutiable property and is liable to duty accordingly.
(2) Not later than 2 months after the day on which an event referred
15 to in subsection (1) takes place the trustee of the superannuation
fund is to lodge a transfer duty statement for the event.
Penalty: a fine of $20 000.
(3) The person liable to pay the duty is the trustee of the
superannuation fund.
20 124. Transfer of, or agreement for the transfer of, dutiable
property to a superannuation fund without consideration
(1) Nominal duty is chargeable on a transfer of, or an agreement for
the transfer of, dutiable property by a person to the trustee of a
superannuation fund that is an employer-sponsored fund within
25 the meaning given by the Commonwealth Act section 16(3)
where --
(a) there is, or will be, no consideration for the transfer; and
(b) the transfer is not a transaction to which section 126
applies.
30 (2) An application for assessment or reassessment under this
section must be made in the approved form.
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125. Transfer from one superannuation fund to another
(1) In this section --
"relevant transfer" means --
(a) a transfer of dutiable property from a trustee of an
5 entity, or a custodian of a trustee of an entity, to the
trustee of another entity, or to a custodian of a trustee
of another entity; or
(b) a transfer of dutiable property from a trustee of an
entity to a custodian of a trustee of the entity, or from
10 a custodian of a trustee of an entity to a trustee of the
entity;
"superannuation fund" does not include a pooled
superannuation trust.
(2) Nominal duty is chargeable on a relevant transfer that occurs in
15 connection with a person --
(a) ceasing to be a member of, or otherwise ceasing to be
entitled to benefits in respect of, a superannuation fund
or an entity that was a superannuation fund within the
period of 12 months before the day the property is
20 transferred; and
(b) becoming a member of, or otherwise becoming entitled
to benefits in respect of, another entity (the "chosen
entity") that is also a superannuation fund or that, in the
opinion of the trustees of both entities concerned, will be
25 a superannuation fund before the end of the period of
12 months after the day on which the property is
transferred,
and for which there is no consideration.
(3) An application for assessment or reassessment under this
30 section --
(a) must be made in the approved form; and
(b) if the chosen entity is not a superannuation fund when
liability to duty arises -- is to be accompanied by a
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statutory declaration from a trustee (or a director of a
trustee that is a corporation) of each of the entities
concerned stating that, in the opinion of the trustee (or
director), the chosen entity will be a superannuation
5 fund before the end of the period of 12 months after the
day on which the property is transferred.
126. Transfer of, or agreement for the transfer of, dutiable
property between trustees and custodians of superannuation
funds
10 (1) In this section --
"relevant entity", in relation a transfer of, or an agreement for
the transfer of, dutiable property, means --
(a) a superannuation fund; or
(b) an entity that, in the opinion of its trustee, will be a
15 superannuation fund before the end of the period of
12 months after the day on which the property is
transferred.
(2) Nominal duty is chargeable on a transfer of, or an agreement for
the transfer of, dutiable property from --
20 (a) a trustee of a relevant entity to a custodian of the trustee
of the relevant entity; or
(b) a custodian of a trustee of a relevant entity to a trustee of
the relevant entity; or
(c) a custodian of a trustee of a relevant entity to another
25 custodian of the trustee of the relevant entity,
if there is no change in the beneficial ownership of the property.
(3) An application for assessment or reassessment under this
section --
(a) must be made in the approved form; and
30 (b) if the relevant entity is not a superannuation fund when
liability to duty arises -- is to be accompanied by a
statutory declaration from a trustee (or a director of a
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trustee that is a corporation) of the relevant entity stating
that, in the opinion of the trustee (or director), the
relevant entity will be a superannuation fund before the
end of the period of 12 months after the day on which
5 the property is transferred.
127. Transfer of, or agreement for the transfer of, dutiable
property from superannuation fund to member
Nominal duty is chargeable in respect of a transfer of, or an
agreement for the transfer of, dutiable property from the trustee
10 of a superannuation fund to a member of the fund if --
(a) the member was a member when the property first
became part of the fund; and
(b) the unencumbered value of the property transferred does
not exceed the value of the member's interest in the
15 fund.
Subdivision 3 -- Transactions related to the break-up of a marriage
or de facto relationship
Note: Section 113 provides for an exemption from duty to the extent that a
dutiable transaction is effected by a matrimonial instrument or a de
20 facto relationship instrument.
128. Terms used in this Subdivision
(1) In this Subdivision --
"child" means a person who is under 18 years of age;
"de facto relationship" means a de facto relationship that
25 comes within the Family Court Act section 205Z(1)(a), (b)
or (c);
"de facto relationship instrument" has the meaning given in
section 130;
"de facto relationship property" of a de facto relationship,
30 means property of the de facto partners to the relationship
or of either of them;
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"Family Law Act" means the Family Law Act 1975
(Commonwealth);
"flag lifting agreement" has the meaning given in the Family
Law Act section 90MN;
5 "matrimonial instrument" has the meaning given in
section 129;
"matrimonial property" of a marriage, means property of the
parties to the marriage or of either of them and includes a
superannuation interest;
10 "splitting agreement" means --
(a) a superannuation agreement; or
(b) a flag lifting agreement,
that has effect under the Family Law Act Part VIIIB;
"superannuation agreement" has the meaning given in the
15 Family Law Act section 90MH;
"superannuation fund" has the meaning given in section 121;
"superannuation interest" has the meaning given in the
Family Law Act section 90MD.
(2) A reference in this Subdivision to persons who are married to
20 each other or have been married to each other includes persons
who are married to each other or who have been married to each
other by a marriage that is void under the Family Law Act.
129. The term "matrimonial instrument"
A reference to a matrimonial instrument is to any of the
25 following instruments to the extent that it deals with
matrimonial property --
(a) a maintenance agreement registered under the Family
Law Act section 86 or approved under the Family Law
Act section 87;
30 (b) a financial agreement made under the Family Law Act
section 90B, 90C or 90D;
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(c) a splitting agreement;
(d) an order of a court under the Family Law Act.
130. The term "de facto relationship instrument"
A reference to a de facto relationship instrument is to any of the
5 following instruments to the extent it deals with de facto
relationship property --
(a) a financial agreement or a former financial agreement,
within the meaning of those terms in the Family Court
Act section 205T;
10 (b) an order of a court under --
(i) the Family Court Act Part 5A; or
(ii) a law of the Commonwealth or another State or
Territory that substantially corresponds to the
Family Court Act Part 5A.
15 131. Transactions effected by or in accordance with a
matrimonial instrument or a de facto relationship
instrument
(1) Nominal duty is chargeable on a dutiable transaction to the
extent that it is --
20 (a) effected by a matrimonial instrument referred to in
section 129(a) or (d); or
(b) in accordance with a matrimonial instrument referred to
in section 129(b) or (c),
if --
25 (c) the parties to the marriage are separated or divorced
from each other or the marriage has irretrievably broken
down; and
(d) under the transaction, the matrimonial property is, or is
to be, transferred to --
30 (i) either, or both, of the parties to the marriage; or
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(ii) a child, or children, of either of the parties to the
marriage, or a trustee of such a child or children;
or
(iii) a trustee of a superannuation fund.
5 (2) Nominal duty is chargeable on a dutiable transaction to the
extent that it is --
(a) effected by a de facto relationship instrument referred to
in section 130(b); or
(b) in accordance with a de facto relationship instrument
10 referred to in section 130(a),
if --
(c) the de facto relationship between the de facto partners
has ended; and
(d) under the transaction, the de facto relationship property
15 is, or is to be, transferred to --
(i) either, or both, of the de facto partners to the
relationship; or
(ii) a child, or children, of either of the de facto
partners to the relationship, or a trustee of such a
20 child or children.
132. Reassessment on application
(1) If a dutiable transaction --
(a) is chargeable with duty other than under section 131 and
is duty endorsed; and
25 (b) the transaction was effected by, or is in accordance
with --
(i) a matrimonial instrument or a de facto
relationship instrument that came into existence;
or
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(ii) an instrument that became a matrimonial
instrument or de facto relationship instrument,
within the period of 12 months after the day on which
liability to duty on the transaction arose,
5 the Commissioner, on the application of the taxpayer, is to
reassess the liability to duty of the transaction under
section 131.
(2) For the purposes of this section, the Taxation Administration
Act section 17 applies as if the original assessment had been
10 made when the instrument became a matrimonial instrument or
a de facto relationship instrument.
133. Evidence as to marriage or de facto relationship
(1) For the purposes of this Subdivision, the Commissioner is to
have regard to any statutory declaration made by a party to the
15 marriage to the effect that --
(a) the party intends to apply for dissolution or annulment
of the marriage; or
(b) the parties to the marriage have separated, and there is
no reasonable likelihood of cohabitation being resumed.
20 (2) For the purposes of this Subdivision, the Commissioner is to
have regard to any statutory declaration made by a de facto
partner to the de facto relationship to the effect that the
relationship has ended.
Subdivision 4 -- Other transactions
25 134. Transfer of, or agreement for the transfer of, certain lots
under a planning scheme
(1) Nominal duty is chargeable on a transfer of, or an agreement for
the transfer of, a lot under a planning scheme by the responsible
authority for a planning scheme to a person that, when the
30 scheme came into operation, was the owner of --
(a) the land comprised in the lot; or
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(b) land comprised in the scheme and to whom the lot is
transferred, or agreed to be transferred, in substitution or
exchange for that land or part thereof,
where the lot is comprised in the scheme and a transfer of, or an
5 agreement for the transfer of, the lot is made in order to carry
out or facilitate the carrying out of the scheme.
(2) If a term is given a meaning in the Planning and Development
Act 2005, it has the same meaning in this section.
135. Farm-in agreements
10 (1) Nominal duty is chargeable on a farm-in agreement if no
consideration is paid, or agreed to be paid, for the agreement.
(2) The dutiable value for a dutiable transaction that is a farm-in
agreement is the consideration for the transaction.
(3) In subsections (1) and (2) --
15 "consideration" does not include the exploration amount.
136. Business licences held under the Fish Resources
Management Act 1994
Nominal duty is chargeable on a dutiable transaction, the
subject of which is a business licence (within the meaning given
20 in section 79) held under the Fish Resources Management
Act 1994 if the Commissioner is satisfied that the transaction
has not, and will not, result in the passing of a beneficial interest
in the business licence.
137. Change of tenure
25 Nominal duty is chargeable on a transfer, or an agreement for a
transfer, that effects a change in the ownership of property from
joint tenants to tenants in common or vice versa, if the value of
the co-owners' interests at the time of the transaction is not
changed.
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138. Correction of clerical errors in previous dutiable
transactions
(1) Nominal duty is chargeable on a dutiable transaction to correct a
clerical error in a previous dutiable transaction about the same
5 property if --
(a) no additional consideration is paid or payable; and
(b) the beneficial interests in the property change only to the
extent necessary to correct the error.
(2) To remove any doubt, it is declared that an error by a party
10 about the appropriateness of a transaction to achieve a particular
intended legal result is not a clerical error in the transaction.
139. Deceased estates
(1) In this section --
"distribution" means a distribution under a will or on an
15 intestacy.
(2) Nominal duty is chargeable on the following dutiable
transactions --
(a) a transfer, or agreement for the transfer, of dutiable
property to the extent that --
20 (i) the transfer gives effect to a distribution in the
estate of a deceased person; and
(ii) there is no consideration for the agreement or
transfer;
(b) a declaration of trust over dutiable property to the extent
25 that it gives effect to a distribution in the estate of a
deceased person;
(c) a vesting of dutiable property by, or as a consequence
of, a court order made --
(i) under the Inheritance (Family and Dependants
30 Provision) Act 1972; or
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s. 140
(ii) under the Trustees Act 1962 section 65 on an
application under the Inheritance (Family and
Dependants Provision) Act 1972.
140. Other dutiable transactions prescribed
5 (1) Nominal duty is chargeable on such dutiable transactions as are
prescribed, or are of a class prescribed, for the purposes of this
section.
(2) Despite subsection (1), nominal duty is not chargeable in
respect of a dutiable transaction that passes, or is part of a
10 scheme or arrangement that passes, a beneficial interest in
dutiable property.
Division 3 -- First home owner concessions
141. Terms used in this Division
(1) In this Division --
15 "FHOG Act" means the First Home Owner Grant Act 2000;
"FHOG concessional transaction" has the meaning given in
section 142(1);
"first FHOG concessional transaction" has the meaning given
in section 142(2);
20 "further FHOG concessional transaction" has the meaning
given in section 142(2);
"transferee", in respect of a transaction, means a person to
whom the property the subject of the transaction --
(a) is transferred; or
25 (b) is agreed to be transferred,
other than --
(c) a person who, under the FHOG Act, would not be
required to join in making an application for a first
home owner grant; or
30 (d) a prescribed person.
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(2) If a term is given a meaning in the FHOG Act, it has the same
meaning in this Division.
142. Transactions by first home owners that are concessional
transactions
5 (1) A reference in this Division to a FHOG concessional transaction
is to a transfer of, or an agreement for the transfer of, dutiable
property where --
(a) the transferee or, if there are more than one, each
transferee --
10 (i) is paid a first home owner grant in relation to the
property or becomes a person to whom a first
home owner grant is or will be payable, in
relation to the property; or
(ii) becomes a person to whom a first home owner
15 grant would be, or would have been, payable in
relation to the property if consideration had been
given for the transfer of the property;
and
(b) the unencumbered value of the land, or the land and
20 home, the subject of the eligible transaction to which the
first home owner grant relates, does not exceed --
(i) if there is no home on the land -- $400 000; or
(ii) otherwise -- $600 000.
(2) A reference in this Division to a further FHOG concessional
25 transaction is to a transfer of, or an agreement for the transfer
of, a further interest in the dutiable property the subject of a
FHOG concessional transaction (the "first FHOG concessional
transaction") --
(a) from a person excluded from the operation of the
30 FHOG Act section 16(1); and
(b) where an instrument that effects the further FHOG
concessional transaction is executed within 10 years of
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s. 143
an instrument that effected the first FHOG concessional
transaction; and
(c) where each transferee in respect of the further FHOG
concessional transaction is a transferee in relation to the
5 first FHOG concessional transaction.
143. Concessions for first home owners
(1) Duty is chargeable on a FHOG concessional transaction at the
applicable concessional rate of duty.
(2) Duty is chargeable on a further FHOG concessional transaction
10 at the same rate and using the same thresholds that applied when
duty became chargeable on the first FHOG concessional
transaction.
(3) The dutiable value of a further FHOG concessional transaction
is the greater of the following amounts --
15 (a) the consideration for the first FHOG concessional
transaction;
(b) the unencumbered value of the whole of the dutiable
property the subject of the first FHOG concessional
transaction at the time when liability for duty on the first
20 FHOG concessional transaction arose.
(4) When subsection (2) applies --
(a) the liability of the transferee to pay duty on the further
FHOG concessional transaction is to bear the same
proportion to the whole of the amount of duty payable as
25 the interest in the dutiable property held by the
transferee after the further FHOG concessional
transaction bears to the whole of the dutiable property;
and
(b) the amount of duty payable is to be reduced by the
30 amount of the duty paid by the transferee on the first
FHOG concessional transaction and any other further
FHOG concessional transactions on which duty has
been paid; and
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(c) there is no liability to pay any remaining portion of the
duty that would, but for this paragraph be payable.
144. Application for concession under this Division
(1) An application for assessment or reassessment under this
5 Division must be --
(a) made in the approved form by the transferee or, if there
is more than one, each transferee; and
(b) accompanied by such transaction record for the
transaction as is required to be lodged under section 23.
10 (2) For the purposes of this Division, the Taxation Administration
Act section 17 applies as if --
(a) in respect of a FHOG concessional transaction --
(i) despite subsection (1) of that section, a person is
not entitled to apply for a reassessment other
15 than within the period beginning on the
commencement date of the FHOG concessional
transaction to which the application relates and
ending whichever is the later of the day that is --
(I) 12 months after the day on which the
20 FHOG concessional transaction was
completed; or
(II) if an application for a first home owner
grant has been made, 3 months after the
day on which the grant is paid;
25 and
(ii) despite subsection (4) of that section, the
Commissioner is to make a reassessment on an
application in respect of a FHOG concessional
transaction made within that time;
30 and
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s. 145
(b) in respect of a further FHOG concessional
transaction --
(i) despite subsection (1) of that section, a person is
not entitled to apply for a reassessment more
5 than 12 months after whichever is the later of the
day on which an instrument effecting the
transaction was executed or the day on which the
transaction was effected; and
(ii) despite subsection (4) of that section, the
10 Commissioner is to make a reassessment on an
application in respect of a FHOG concessional
transaction made within that time.
145. Subsequent liability in certain circumstances
(1) Despite section 143, duty is not chargeable on a transaction
15 referred to in section 142 at a concessional rate of duty if a
transferee is required to repay an amount under the FHOG Act
section 21 or 51, or would be required to repay an amount if a
first home owner grant had been paid to the transferee.
(2) The previous assessment of a transaction referred to in
20 subsection (1) is taken to be incorrect for the purposes of the
Taxation Administration Act section 16(2)(a).
146. Other provisions about first home owner concessions
For the purposes of this Division and for the purposes of
applying the Taxation Administration Act in relation to the
25 operation of this Division --
(a) the FHOG Act is to be treated as if it were a taxation
Act; and
(b) the FHOG Act applies to and in relation to an
application under this Division, to the extent that it can
30 be applied for those purposes, as if a reference in the
FHOG Act to an application or an applicant were a
reference to the application or applicant under this
Division; and
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(c) this Act and the Taxation Administration Act apply in
relation to any information given to the Commissioner
for the purposes of the FHOG Act by a person who is an
applicant under this Division as if the information had
5 been given to the Commissioner for the purposes of this
Division.
Division 4 -- Residential or business concessions
147. Concessional rates for transactions referred to in Stamp
Act 1921 section 75AE
10 (1) A dutiable transaction is a "concessional transaction" for the
purposes of this section if the instrument effecting or evidencing
it would have been chargeable with duty under the Stamp
Act 1921 Second Schedule item 4(5), if it had been first
executed before 1 July 2008.
15 (2) Duty is chargeable on a concessional transaction at the
applicable concessional rate of duty.
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Preliminary Part 1
s. 148
Chapter 3 -- Landholder Duty
Part 1 -- Preliminary
148. Terms used in this Chapter
In this Chapter, unless the contrary intention appears --
5 "duty" means duty under this Chapter;
"entity" has the meaning given in section 152;
"interest" has the meaning given in section 153;
"land" does not include a security interest in land;
"landholder" means an entity that is a landholder under
10 section 155;
"linked entity" means an entity that is a linked entity under
section 156(2) in respect of a main entity as defined in
section 156(1);
"listed corporation" means a corporation that is on the official
15 list of a prescribed financial market;
"listed landholder" means --
(a) a listed corporation; or
(b) a listed unit trust scheme,
that is a landholder;
20 "listed unit trust scheme" means a unit trust scheme that is on
the official list of a prescribed financial market;
"relevant acquisition" has the meaning given in sections 163
and 164;
"surplus property", in relation to a landholder or other entity,
25 means property remaining after satisfaction of --
(a) any right attached to a share or unit that entitles the
holder, if the landholder or other entity is wound up,
to receive a fixed amount of its capital; and
(b) the debts and liabilities of the landholder or other
30 entity; and
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s. 149
(c) the costs, charges and expenses of winding it up;
"unencumbered value" has the meaning given in section 36 as
applied by section 150.
149. Entitlement to land: effect of uncompleted agreements;
5 fixtures
(1) In determining the entitlement of a landholder or other entity to
land for the purposes of this Chapter --
(a) if the landholder or other entity has entered into an
agreement to acquire an interest in land, the agreement
10 is to be regarded as having been completed even if it has
not yet been completed; and
(b) if the landholder or other entity has entered into an
agreement to dispose of an interest in land but the
agreement has not yet been completed, the agreement is
15 to be disregarded.
(2) If a landholder or other entity has an entitlement to land,
anything that is part of the land as a fixture is to be taken into
account in determining the extent of the entitlement of the
landholder or other entity to the land for the purposes of this
20 Chapter even if the fixture is, or purports to be, the subject of an
entitlement separate from the ownership of the rest of the land.
(3) If --
(a) a landholder or other entity has an entitlement to
something that is part of land as a fixture; and
25 (b) that entitlement is, or purports to be, separate from the
ownership of the rest of the land,
the landholder or other entity is to be regarded as having an
entitlement to land for the purposes of this Chapter to the extent
of its entitlement to the fixture.
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Imposition of landholder duty Part 2
s. 150
150. Meaning of "unencumbered value" of land or chattels
Section 36 applies, with any appropriate modifications, where it
is necessary to determine the unencumbered value of land or
chattels for the purposes of section 155(5)(a), 157(2) or 186.
5 Part 2 -- Imposition of landholder duty
151. Landholder duty imposed
Duty is imposed in respect of any relevant acquisition under
Part 5 of an interest in an entity that under Part 4 is a landholder
for the purposes of this Chapter.
10 Part 3 -- Certain key concepts defined and
related provisions
152. The term "entity"
(1) A reference in this Chapter to an entity is to --
(a) a corporation; and
15 (b) a unit trust scheme.
(2) Each of the following --
(a) the trustee of a discretionary trust;
(b) a partnership,
is also an entity to this extent, namely that the trustee of a
20 discretionary trust or a partnership may be a linked entity under
section 156, but not otherwise.
153. Meaning of "interest" in a landholder or other entity
(1) A reference in this Chapter to an interest in a landholder or
other entity is to an entitlement to the surplus property of the
25 landholder or other entity if it were to be wound up.
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s. 154
(2) A reference in this Chapter to an interest in a landholder or
other entity together with --
(a) a reference to a percentage; or
(b) a reference to a percentage determined by the
5 Commissioner,
is to an entitlement to receive that percentage, or the percentage
so determined, of the surplus property of the landholder or other
entity if it were to be wound up.
(3) This section has effect subject to section 159.
10 154. Determination of interests
(1) In this section --
"person" includes an entity.
(2) This section applies where it is necessary for the purposes of
this Chapter to calculate the interest of a person (the "relevant
15 person") in a landholder or other entity.
(3) This section does not apply where section 158 or 159 applies.
(4) The interest is to be first calculated as if the landholder or other
entity were wound up without regard to the notional exercise of
the powers and discretions referred to in subsection (5).
20 (5) The interest is to be then calculated as if the landholder or other
entity were wound up and as if each interested person had
exercised all powers and discretions exercisable by the
person --
(a) to effect or compel an alteration to the constitution of
25 the landholder or other entity; and
(b) to vary the rights attached to units or shares in the
landholder or other entity; and
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s. 154
(c) to effect or compel the substitution or replacement of
units or shares in the landholder or other entity with
other units or shares in it,
in such a manner as would maximise the value of the relevant
5 person's interest.
(6) The reference in subsection (5) to an interested person is --
(a) to the relevant person; and
(b) if the relevant person is a unit trust scheme, to the
trustee of the scheme; and
10 (c) to any person that the relevant person or a person
referred to in paragraph (b) has power to direct with
respect to a distribution; and
(d) where the calculation is required in order to determine
the extent of a relevant person's interest for the purposes
15 of section 163 or 164, to a related person under
section 162 in respect of the relevant person or a person
referred to in paragraph (b).
(7) The relevant person's interest is the greater of the interest
calculated under subsection (4) and the interest calculated under
20 subsection (5).
(8) If the calculation under subsection (5) results in the greater
interest the Commissioner may, after considering the
circumstances of the case, determine that --
(a) the application of subsection (7) would be inequitable;
25 and
(b) the relevant person's interest is that calculated under
subsection (4).
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Part 4 Landholders to which this Chapter applies
s. 155
Part 4 -- Landholders to which this Chapter applies
155. Entities that are landholders
(1) This section applies where it is necessary to determine in
relation to an acquisition of an interest in an entity whether the
5 entity is a landholder for the purposes of section 163 or 164.
(2) A corporation is a landholder if immediately before the
acquisition --
(a) it is entitled to land in Western Australia or an entity
linked to the corporation is so entitled; and
10 (b) the total value of all such entitlements is $2 000 000 or
more.
(3) A unit trust scheme is a landholder if immediately before the
acquisition --
(a) the trustee of the scheme is entitled to land in Western
15 Australia or an entity linked to the unit trust scheme is
so entitled; and
(b) the total value of all such entitlements is $2 000 000 or
more.
(4) For the purposes of subsections (2)(a) and (3)(a) --
20 (a) a partnership, as a linked entity, is entitled to land in
Western Australia if the partnership property is or
includes such land; and
(b) a unit trust scheme, as a linked entity, is entitled to land
in Western Australia if the trustee of the scheme is so
25 entitled.
(5) For the purposes of this section --
(a) land to which a corporation or the trustee of a unit trust
scheme is entitled is to be valued at its unencumbered
value; and
30 (b) the value of a linked entity's entitlement to land is to be
determined under section 157.
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Landholders to which this Chapter applies Part 4
s. 156
156. Entities that are linked
(1) This section applies where it is necessary to determine in
relation to an acquisition of an interest in an entity (the "main
entity") whether there is any other entity that is linked to the
5 entity for the purposes of section 155(2)(a) or (3)(a).
(2) Each entity (a "linked entity") below the main entity in an
ownership chain that exists immediately before the acquisition
is linked to the main entity.
(3) An ownership chain exists if a series of entities starting with the
10 main entity are successively linked to one another.
(4) Except where subsection (5) or (6) applies, an entity is linked to
another entity if --
(a) where the other entity is a listed corporation or a listed
unit trust scheme -- it has a 90% interest, or a greater
15 interest, in the entity; or
(b) in any other case -- it has a 50% interest, or a greater
interest, in the entity.
(5) An entity is linked to the trustee of a discretionary trust if it is a
potential beneficiary under the trust.
20 (6) An entity is linked to a partnership if it is a partner in the
partnership, or in the case of a unit trust scheme the trustee, as
trustee of the scheme, is a partner, and --
(a) has contributed or is required to contribute 50%, or a
greater percentage, of the capital of the partnership; or
25 (b) is required to bear 50%, or a greater percentage, of the
losses of the partnership.
(7) A series of entities under subsection (3) may consist of the main
entity and one other entity to which it is linked as mentioned in
subsection (4), (5) or (6).
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Part 4 Landholders to which this Chapter applies
s. 157
157. Value of land of linked entity
(1) This section applies where a linked entity is entitled to land in
Western Australia and it is necessary to determine the value of
that entitlement for the purposes of section 155.
5 (2) The value of the entitlement is an amount equal to the same
percentage of the unencumbered value of the land as the
percentage of the main entity's interest in the linked entity.
(3) In the case of a linked entity other than one that is immediately
below the main entity in the ownership chain, the percentage of
10 the main entity's interest in the linked entity is determined by
multiplying the percentage of the main entity's interest in the
entity immediately below it in the ownership chain by the
percentage of the interest that each entity in the ownership chain
between the main entity and the linked entity concerned has in
15 the entity immediately below it in the ownership chain.
(4) In this section, a reference to an interest in an entity is, if the
entity is the trustee of a discretionary trust, a reference to being
a potential beneficiary under the trust.
158. Extent of interest in discretionary trust
20 For the purposes of section 157, if the trustee of a discretionary
trust is a linked entity, a potential beneficiary under the trust is
taken to have --
(a) a 100% interest in the trust; or
(b) if the Commissioner decides in a particular case that the
25 operation of paragraph (a) would be inequitable,
either --
(i) an interest in the trust of some other percentage;
or
(ii) no interest in the trust,
30 as determined by the Commissioner.
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Acquisitions .to which this Chapter applies Part 5
s. 159
159. Extent of interest in partnership
For the purposes of section 157, if a partnership is a linked
entity in respect of another entity, the percentage of the interest
in the partnership of that entity is the percentage --
5 (a) of the capital of the partnership that the entity has
contributed or is required to contribute; or
(b) of the losses of the partnership that the entity is required
to bear,
whichever is the greater or, if the percentage is the same in each
10 case, that percentage.
Part 5 -- Acquisitions .to which this Chapter applies
Division 1 -- Means by which interest acquired
160. Acquisition of an interest in an entity
(1) A person acquires an interest in an entity if --
15 (a) the person obtains an interest in the entity; or
(b) the person's interest in the entity increases,
regardless of how it is obtained or increased.
(2) Without limiting subsection (1), a person may acquire an
interest in a corporation or a unit trust scheme in the following
20 ways --
(a) by the purchase, gift, allotment or issue of a share or
unit;
(b) by the cancellation, redemption or surrender of a share
or unit;
25 (c) by the abrogation or alteration of any right in respect of
a share or unit;
(d) by the payment of an amount owing for a share or unit.
(3) To remove any doubt, it is declared that an interest in a
corporation or a unit trust scheme may be acquired without the
30 acquisition of shares in the corporation or units in the scheme.
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Part 5 Acquisitions .to which this Chapter applies
s. 161
Division 2 -- Relevant acquisitions of interests in landholders
Subdivision 1 -- Definitions
161. Terms used in this Division
In this Division --
5 "related person" has the meaning given in section 162;
"significant interest" means --
(a) a 90% interest or a greater interest, in the case of a
landholder that is a listed landholder; and
(b) a 50% interest or a greater interest, in the case of any
10 other landholder.
162. Persons that are related
(1) For the purposes of sections 163 and 164 the following persons
or entities are related persons --
(a) individuals who are spouses, or de facto partners, of
15 each other;
(b) individuals between whom the relationship is that of
parent and child;
(c) related corporations;
(d) a trustee and another trustee if there is any beneficiary
20 common to the trusts of which they are trustees, whether
the beneficiary has a vested share or is contingently
entitled or is a potential beneficiary under a
discretionary trust;
(e) an individual and a corporation if the individual is a
25 majority shareholder, director or secretary of the
corporation or a related corporation;
(f) an individual and a trustee if the individual is a
beneficiary under the trust of which the trustee is a
trustee, whether the person has a vested share or is
30 contingently entitled or is a potential beneficiary under a
discretionary trust;
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s. 162
(g) a corporation and a trustee if --
(i) the corporation or a majority shareholder,
director or secretary of the corporation is a
beneficiary under the trust of which the trustee is
5 a trustee; or
(ii) a related corporation to the corporation is a
beneficiary under the trust of which the trustee is
a trustee,
whether the beneficiary has a vested share or is
10 contingently entitled or is a potential beneficiary under a
discretionary trust;
(h) persons or entities that acquire interests in a landholder
by virtue of acquisitions that together form or arise from
substantially one transaction or one series of
15 transactions;
(i) persons or entities that acquire interests in a landholder
by virtue of acquisitions that arise from those persons or
entities acting in concert with each other.
(2) If the Commissioner is satisfied, in the case of a particular
20 acquisition of an interest in an entity, that subsection (3) applies
to persons, other than related corporations, that would otherwise
be related persons under subsection (1), the Commissioner may
determine that, despite that subsection, the persons are not
related persons for the purposes of sections 163 and 164.
25 (3) This subsection applies to persons if --
(a) they are not acting in concert with each other in respect
of the acquisition; and
(b) their interests in the entity --
(i) were acquired independently and are, and will
30 be, employed independently; and
(ii) were not acquired for a common purpose and are
not, and will not be, employed for a common
purpose.
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Chapter 3 Landholder Duty
Part 5 Acquisitions .to which this Chapter applies
s. 163
Subdivision 2 -- Relevant acquisitions
163. Acquisition of significant interest in a landholder
An acquisition by a person of an interest in an entity is a
"relevant acquisition" if --
5 (a) immediately before the acquisition the entity was a
landholder in which the interest (if any) of the person
and the interest (if any) of any related person did not
amount to a significant interest; and
(b) after the acquisition the entity is a landholder in
10 which --
(i) the interest of the person is a significant interest;
or
(ii) the interest of the person when aggregated with
any interest of a related person amounts to a
15 significant interest.
164. Acquisition of further interest by holder of significant
interest
An acquisition by a person of an interest in an entity is also a
"relevant acquisition" if --
20 (a) immediately before the acquisition the entity is a
landholder in which --
(i) the interest of the person is a significant interest;
or
(ii) the interest of the person when aggregated with
25 any interest of a related person amounts to a
significant interest;
and
(b) by the acquisition the person or any related person
acquires, or the person and any related person acquire, a
30 further interest in the landholder.
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Subdivision 3 -- Exempt acquisitions
165. Meaning of "acquisition" in this Subdivision
In this Subdivision --
"acquisition" means an acquisition by a person of an interest in
5 a landholder.
166. Effect of acquisition being exempt
An acquisition that is exempt under this Subdivision --
(a) is not a relevant acquisition for the purposes of this
Chapter, other than Part 6 Division 7; and
10 (b) the interest acquired by the acquisition is not to be taken
into account for the purposes of section 188(1)
or (3), 189(2), 190(2) or 191(2) and is not an excluded
interest under section 190(1) or 192.
167. Exemption if nominal duty would be chargeable on transfer
15 An acquisition is exempt if it would have resulted in nominal
duty being chargeable if the acquisition had instead been a
transfer to the person concerned of land --
(a) of the landholder; or
(b) of a linked entity in respect of the landholder.
20 168. Exemption if transfer duty would not be chargeable
(1) An acquisition is exempt if it would not have resulted in transfer
duty being chargeable, other than under Chapter 6, if the
acquisition had instead been a transfer to the person concerned
of land --
25 (a) of the landholder; or
(b) of a linked entity in respect of the landholder.
(2) This section does not apply to an acquisition to which
section 171 applies.
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169. Exemption if acquisition is dutiable under section 67
An acquisition is exempt if the landholder concerned is a
corporation and the acquisition is taken, by operation of
section 67, to be an agreement for the transfer of dutiable
5 property.
170. Exemption relating to approved arrangements with
creditors under the Corporations Act
An acquisition is exempt if it occurs solely as the result of the
making of a compromise or arrangement with creditors of the
10 landholder under the Corporations Act Part 5.1 that has been
approved by the court.
171. Exemption of acquisition by family member of interest in
corporation engaged in primary production
(1) In this section --
15 "corporation" means a corporation that is a landholder.
(2) An acquisition by a person (the "acquirer") is exempt if it is an
acquisition from another person of an interest in a corporation
which, or a linked entity in respect of which, uses land solely or
dominantly in the business of primary production and --
20 (a) it would have been an exempt transaction under
section 102(1) if --
(i) it had been a transfer, from that other person to
the acquirer, of land to which the corporation or
a linked entity in respect of the corporation is
25 entitled; and
(ii) section 102(2), (3), (5) and (6) had not been
enacted;
and
(b) immediately after the acquisition the corporation, or a
30 linked entity in respect of the corporation, intends to
continue to use the land solely or dominantly in the
business of primary production.
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(3) For the purposes of subsection (2), land is being used in the
business of primary production even if --
(a) some, but not all, of the land is leased to another person;
and
5 (b) under the lease, the lessee is using the leased land solely
or dominantly for the purposes of silviculture or
reafforestation.
(4) This section has effect subject to Subdivision 4.
Subdivision 4 -- Further provisions in respect of exemptions
10 under section 171
172. Calculation of duty where some land of corporation not used
for primary production
(1) This section applies to an acquisition referred to in section 171
if immediately before the acquisition the corporation concerned,
15 or a linked entity in respect of the corporation, is entitled to --
(a) land in Western Australia that is used solely or
dominantly in the business of primary production; and
(b) land in Western Australia that is not so used.
(2) The following provisions apply to the acquisition (the
20 "partially exempt acquisition") --
(a) section 166 is not applicable to or in relation to the
partially exempt acquisition;
(b) despite Part 6 Division 5, the amount of duty payable in
respect of the partially exempt acquisition is an amount
25 that bears to the amount of duty calculated under that
Division in respect of the acquisition the same
proportion as the value of the land referred to in
subsection (1)(b) bears to the value of the corporation
concerned, as determined under section 186.
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173. Reversal of exemption where certain changes made to
discretionary trust
(1) This section applies if --
(a) an acquisition from a person (the "transferor") of an
5 interest in a corporation by the trustee of a discretionary
trust was --
(i) exempt under section 171; or
(ii) a partially exempt acquisition under section 172;
and
10 (b) after the acquisition occurs there is a material alteration
to the operation of the discretionary trust; and
(c) at the time of the material alteration --
(i) the corporation is a landholder; and
(ii) the corporation or a linked entity in respect of the
15 corporation, is using solely or dominantly in the
business of primary production any of the land to
which it was entitled when the acquisition
occurred.
(2) There is a material alteration to the operation of the
20 discretionary trust, as mentioned in subsection (1)(b), if --
(a) during the lifetime of the transferor, a person that is not
a family member of the transferor --
(i) becomes entitled to a share or interest in the
trust, whether that share or interest is vested or
25 contingent; or
(ii) otherwise benefits from the trust;
or
(b) the transferor gains control of the trust.
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(3) For the purposes of subsection (2) --
(a) the reference to a family member is to a person who is a
family member within the meaning given in section 100;
and
5 (b) the matter in paragraph (b) is to be determined in
accordance with section 99(2).
(4) On the occurrence of a material alteration to the operation of the
discretionary trust --
(a) an acquisition of an interest in the corporation by the
10 trustee of the trust is taken to have occurred; and
(b) that interest is taken to be an interest of the same
percentage as that mentioned in subsection (1)(a); and
(c) the acquisition is taken to have occurred at the time
when the material alteration occurred.
15 (5) If the acquisition mentioned in subsection (1)(a) was a partially
exempt acquisition under section 172 the amount of duty
payable in respect of the acquisition that is taken to have
occurred under subsection (4) is to be reduced by the amount of
the duty paid in respect of the partially exempt acquisition.
20 174. No exemption where interest transferred within 5 years
(1) This section applies if --
(a) an acquisition of an interest in a corporation (the "first
acquisition") was exempt under section 171; and
(b) a further acquisition of an interest in the corporation
25 occurs within 5 years after the day on which the first
acquisition occurred; and
(c) at the time when the further acquisition occurs the
corporation, or a linked entity in respect of the
corporation, is using solely or dominantly in the
30 business of primary production any of the land to which
it was entitled when the first acquisition occurred; and
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(d) in the opinion of the Commissioner the further
acquisition is by way of a transfer of an interest, or part
of an interest, in the corporation that was acquired under
the first acquisition.
5 (2) The further acquisition is not exempt under section 171 even if
it comes within the provisions of that section.
Part 6 -- Collection of landholder duty
Division 1 -- Preliminary
175. The term "acquirer"
10 In this Part --
"acquirer" means a person that acquires an interest in a
landholder by a relevant acquisition and, if there is more
than one, each of them.
176. When an acquisition occurs
15 (1) For the purposes of this Chapter, but subject to
section 173(4)(c), the time when an acquisition of an interest in
a landholder occurs is to be determined under this section.
(2) If there is an agreement for the making of the acquisition,
whether conditional or not, and subsection (3) does not apply,
20 the acquisition occurs when the agreement is made.
Note: Section 196 provides for the reassessment of duty if an agreement
referred to in this subsection is not completed.
(3) If there is an agreement for the making of the acquisition,
whether conditional or not, and the entity concerned is not a
25 landholder when the agreement is made but is a landholder
when the agreement is completed, the acquisition occurs when
the agreement is completed.
(4) If subsections (2) and (3) do not apply, the acquisition occurs
when the interest to which it relates is acquired.
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177. Certain transactions to be treated as agreements
(1) In this section and in section 178 --
"call option", "put option" and "simultaneous put and call
option" have the meanings those terms would have under
5 section 44 if references in that section to dutiable property
were references to a relevant interest;
"relevant interest" means an interest in a landholder or other
entity.
(2) For the purposes of section 176, where a simultaneous put and
10 call option that applies to a relevant interest comes into
existence --
(a) subject to section 178, the call option is taken to be an
agreement for the making of an acquisition of the
relevant interest by the holder of the call option rights;
15 and
(b) paragraph (a) applies even if the call option is assigned
as mentioned in subsection (3).
(3) If, in respect of a simultaneous put and call option that applies
to a relevant interest --
20 (a) the call option has been assigned to another person so
that the other person has a right to require the sale of the
relevant interest --
(i) to the other person; or
(ii) to a person that has an agreement, arrangement
25 or understanding with the other person relating to
the interest;
and
(b) the put option obligations have passed to any person
referred to in paragraph (a),
30 the assignment of the call option to the other person is taken, for
the purposes of section 176, to be an agreement for the
acquisition of the relevant interest by that person.
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(4) If subsection (3) applies, subsection (2) does not apply to the
right referred to in subsection (3)(a) or the rights under the put
option referred to in subsection (3)(b).
Note: Section 196 provides for the reassessment of duty if a deemed
5 agreement is not completed.
178. Exceptions to section 177
(1) In this section --
"proprietor of a business" means a person that has an interest
in a landholder or other entity that carries on a business.
10 (2) It is an exception to section 177(2) if the call option and the put
option are for, and only for, the purpose of obtaining finance or
making other financial arrangements.
(3) It is also an exception to section 177(2) if the call option and the
put option form part of a scheme of call options and put options
15 given by the proprietors of a business that --
(a) are for, and only for, the purpose of facilitating the
continuation of the business by one or some of those
proprietors (the "continuing proprietor or
proprietors"); and
20 (b) are not exercisable except on the occurrence of an event
specified in them that would cause the continuing
proprietor or proprietors to seek to acquire the interest of
another of the proprietors.
Division 2 -- Liability
25 179. Person liable to pay duty
(1) The duty chargeable in respect of a relevant acquisition is
payable by the person or persons determined under
subsection (2) in relation to the acquisition.
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(2) The following persons are jointly and severally liable to pay
duty chargeable in respect of a relevant acquisition of an interest
in a landholder --
(a) in every case, the acquirer;
5 (b) if the landholder is a corporation, the corporation;
(c) if the landholder is a unit trust scheme, the trustee of the
scheme;
(d) any person taken into account under section 163 or 164
as being related to the acquirer for the purposes of the
10 acquisition, other than a person whose interest in the
landholder is, for the purpose of calculating the duty, an
excluded interest under section 190(1) or 192.
(3) To the extent that a person referred to in subsection (2)(b), (c)
or (d) has paid the duty chargeable in respect of a relevant
15 acquisition the person may recover the amount of duty paid
from the acquirer concerned, or if there is more than one from
any of them, as a debt due to the person.
180. Application to Commissioner for determination of liability
(1) A person mentioned in subsection (2) may, within 2 months
20 after the day on which an acquisition of an interest in an entity
occurs, apply to the Commissioner for a determination whether
any liability has arisen under this Chapter in respect of the
acquisition.
(2) The persons that may apply are --
25 (a) any person that by the acquisition acquires an interest in
the entity; or
(b) any person that may be taken into account under
section 163 or 164 as being related for the purposes of
the acquisition to a person referred to in paragraph (a);
30 or
(c) if the entity is a corporation, the corporation; or
(d) if the entity is a unit trust scheme, the trustee of the
scheme.
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(3) An application under subsection (1) must be made in the
approved form.
(4) Where an application is made under subsection (1) --
(a) the Commissioner is to make the requested
5 determination; and
(b) any liability of a person under section 200 in respect of
the acquisition ceases unless it is revived under
section 182(5),
but the obligation imposed by paragraph (a) is qualified so far as
10 it is inconsistent with the exercise of a power conferred on the
Commissioner by section 182(1) or (4).
181. Determination of application
(1) If, on an application under section 180, the Commissioner
determines that liability has not arisen under section 151 in
15 respect of the acquisition in question, the Commissioner is to
give notice of that determination to the applicant.
(2) If, on an application under section 180, the Commissioner
determines that liability has arisen under section 151 in respect
of the acquisition in question, the Commissioner is to issue an
20 assessment notice under the Taxation Administration Act
section 23 in respect of the acquisition.
182. Powers of Commissioner where further information
required for determination of application
(1) If on an application under section 180 further information or
25 evidence is necessary for the making of a determination, the
Commissioner may --
(a) defer the making of a determination; and
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(b) by written notice require the applicant to provide further
information or evidence to the Commissioner within a
specified period,
and the Commissioner may exercise those powers as often as
5 the Commissioner thinks fit until all necessary information and
evidence have been provided.
(2) The Commissioner may at any time extend the period specified
in a notice under subsection (1)(b).
(3) The powers of the Commissioner under subsection (1) are in
10 addition to, and do not limit, the powers that the Commissioner
has under the Taxation Administration Act to obtain
information or carry out an investigation.
(4) If --
(a) the Commissioner has under subsection (1) required the
15 applicant to provide further information or evidence;
and
(b) the Commissioner considers that the applicant has not
within the required period provided the information or
evidence,
20 the Commissioner is to give the applicant written notice of that
opinion and of the effect of subsection (5).
(5) If the Commissioner gives notice under subsection (4) --
(a) section 180(4)(a) does not apply; and
(b) any liability that ceased under section 180(4)(b) is
25 revived as if the application under section 180(1) had
never been made.
Division 3 -- Payment of landholder duty
183. Payment of landholder duty
(1) Liability to pay the duty chargeable in respect of a relevant
30 acquisition arises when the relevant acquisition occurs.
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(2) The duty is due for payment within one month after the date of
an assessment notice issued in relation to an assessment of the
duty.
Division 4 -- Rates of landholder duty
5 184. Rates of landholder duty
(1) Duty is chargeable at the general rate of duty set out in
Schedule 2.
(2) For the purposes of subsection (1) the value referred to in
section 188(1), 189(2) or 191(2), as the case may require, is
10 taken to be the dutiable value.
Division 5 -- Calculation of landholder duty
185. The term "interest of the acquirer"
A reference in this Division to the interest of the acquirer in a
landholder after a relevant acquisition is to the aggregated
15 interests of --
(a) the acquirer; and
(b) any related person that is to be taken into account in
relation to the acquisition for the purposes of
section 163 or 164.
20 186. Value of landholder
(1) For the purposes of calculating duty in respect of a relevant
acquisition the value of a landholder is taken to be the sum of --
(a) the unencumbered value of the land and chattels in
Western Australia to which the landholder is entitled;
25 and
(b) the same percentage of the unencumbered value of the
land and chattels in Western Australia to which any
linked entity in respect of the landholder is entitled as
the percentage of the landholder's interest in the linked
30 entity taken into account under section 157.
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(2) Except where section 187 applies, the entitlements referred to in
subsection (1) are to be those that exist immediately after the
relevant acquisition.
187. Time of determination of the value of further interests for
5 calculation of duty
(1) This section applies where --
(a) it is necessary to determine the value of an interest of an
acquirer in a landholder for the purposes of
section 188(3) or 191(3); and
10 (b) the relevant acquisition concerned is of a further interest
in either --
(i) a listed landholder; or
(ii) a landholder that is not listed but was previously
listed and in which, at a time when it was listed,
15 the interest of the acquirer was not less than a
90% interest.
(2) The value is to be determined --
(a) as if the further interest was acquired at the same time as
the interest of the acquirer became not less than a 90%
20 interest in the landholder concerned; and
(b) on the basis of the value of the landholder at that time.
188. Calculation of duty
(1) To calculate the amount of duty payable in respect of a relevant
acquisition an amount is first calculated by applying the
25 appropriate rate of duty under section 184(1) to the value of the
interest of the acquirer in the landholder immediately after the
relevant acquisition and then, if applicable, a deduction is made
under section 189 or 191.
(2) The resulting amount is the duty payable in respect of the
30 relevant acquisition.
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(3) The value of the interest referred to in subsection (1) is the same
percentage of the value of the landholder as the percentage of
the interest of the acquirer in the landholder after the relevant
acquisition.
5 189. Reduction where significant interest acquired in a
landholder
(1) This section applies to the calculation of duty in respect of a
relevant acquisition described in section 163.
(2) The amount calculated under section 188(1) is to be reduced by
10 an amount determined by applying the appropriate rate of duty
under section 184(1) to the value of any excluded interest as
determined under subsection (3).
(3) The value of an excluded interest is the same percentage of the
value of the landholder concerned as the percentage of all
15 interests in the landholder that is represented by the excluded
interest.
190. Meaning of "excluded interest" for section 189
(1) The reference in section 189 to an excluded interest is to an
interest in the landholder concerned that is part of the interest of
20 the acquirer, being --
(a) an interest, other than one to which subsection (2)
applies, that was held by the person or a related person,
or by the person and a related person, before the day that
is 3 years before the day on which the relevant
25 acquisition occurred; or
(b) an interest in the landholder concerned acquired by an
acquisition if immediately before the acquisition neither
the landholder nor a linked entity in respect of the
landholder was entitled to land in Western Australia.
30 Note: The operation of subsection (1) is modified if the day paragraph (a)
refers to is before 1 July 2008: see Schedule 3 clause 13(1).
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(2) This subsection applies to an interest in the landholder acquired
by an acquisition (the "earlier acquisition") if the relevant
acquisition in respect of which duty is to be calculated under
section 188(1) was made pursuant to an arrangement entered
5 into during the prescribed period in respect of the earlier
acquisition.
(3) The reference in subsection (2) to the prescribed period in
respect of the earlier acquisition is to the period beginning on
the day that is 3 years before the day on which the earlier
10 acquisition occurred and ending on the day that is 3 years after
that day.
191. Reduction where further interest acquired in a landholder
(1) This section applies to the calculation of duty in respect of a
relevant acquisition described in section 164.
15 (2) The amount calculated under section 188(1) is to be reduced by
an amount determined by applying the appropriate rate of duty
under section 184(1) to the value of any excluded interest as
determined under subsection (3).
(3) The value of an excluded interest is the same percentage of the
20 value of the landholder concerned as the percentage of all
interests in the landholder that is represented by the excluded
interest.
192. Meaning of "excluded interest" for section 191
The reference in section 191 to an excluded interest is to an
25 interest in the landholder concerned that is part of the interest of
the acquirer, being --
(a) an interest that was held by the person or a related
person, or by the person and a related person, before the
day that is 3 years before the day on which the relevant
30 acquisition occurred; or
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(b) an interest acquired by a relevant acquisition that
occurred on or after the day referred to in paragraph (a)
if duty was chargeable in respect of that acquisition; or
(c) an interest referred to in section 190(1)(b).
5 Note: The operation of this section is modified if the day paragraph (a) refers
to is before 1 July 2008: see Schedule 3 clause 13(2).
193. Calculation of duty where statement lodged under
section 201
(1) This section applies to the calculation of duty if a statement is
10 lodged under section 201(6) in respect of a relevant acquisition
referred to in section 164 that occurred during a period (a
"relevant period") provided for by an approval under
section 201(2).
(2) The Commissioner is not required to make a separate
15 calculation under this Division of duty in respect of each
relevant acquisition that occurred during the relevant period.
(3) Instead, the Commissioner may calculate the duty under this
Division in respect of all relevant acquisitions that occurred
during the relevant period as if all such acquisitions had been
20 made by a single relevant acquisition that occurred at the end of
the relevant period.
194. Calculation of duty in respect of certain acquisitions on
winding up of corporation or unit trust scheme
(1) Despite anything else in this Division, duty is to be calculated
25 under this section in respect of a relevant acquisition by a
person of an interest in a landholder if the acquisition --
(a) occurs in the circumstances referred to in subsection (2);
and
(b) is not exempt under section 167 because the effect of the
30 acquisition is that the person receives a benefit in excess
of the person's entitlement.
Note: The combined operation of sections 29(4) and 167 will make the
acquisition exempt if the value of the person's benefit is not in excess
of the person's entitlement.
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(2) The circumstances referred to are that --
(a) the relevant acquisition occurs as a result of a transfer of
shares in a corporation or units in a unit trust scheme
by --
5 (i) the liquidator of a corporation in the course of a
distribution of its assets as a consequence of the
winding up of the corporation; or
(ii) the trustee of a unit trust scheme in the course of
the winding up of the scheme;
10 and
(b) the person concerned is --
(i) a shareholder in the corporation; or
(ii) a unit holder in the unit trust scheme,
that is being wound up; and
15 (c) the Commissioner is satisfied that the winding up is not
a scheme or arrangement, or part of a scheme or
arrangement, for which a dominant purpose of any party
is the reduction of the duty otherwise payable.
(3) The amount of duty payable in respect of the relevant
20 acquisition is an amount that bears to the amount of duty that
would otherwise be calculated under this Division in respect of
the acquisition the same proportion as the value of the benefit
received by the person in excess of the person's entitlement
bears to the value of all the assets distributed or to be distributed
25 to the person as a consequence of the winding up.
(4) For the purposes of this section --
(a) a shareholder in a corporation receives a benefit in
excess of the shareholder's entitlement if the value,
when the winding up begins, of all the assets distributed
30 or to be distributed to the shareholder (the "distributed
value") exceeds the value at that time of the
shareholder's entitlement to the net assets of the
corporation (the "entitlement value"); and
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(b) a unit holder in a unit trust scheme receives a benefit in
excess of the unit holder's entitlement if the value, when
the winding up begins, of all the assets distributed or to
be distributed to the unit holder (also the "distributed
5 value") exceeds the value at that time of the unit
holder's entitlement to the net assets held by the trustee
of the unit trust scheme as trustee of that trust (also the
"entitlement value").
(5) For the purpose of calculating duty under subsection (3), the
10 value of a benefit received by a shareholder or unit holder in
excess of the person's entitlement is the greater of --
(a) the amount by which the distributed value exceeds the
entitlement value in relation to the person; and
(b) the amount that is the total of --
15 (i) any amount owing to the shareholder or unit
holder that the shareholder or unit holder has, in
the relevant period, released the corporation or
the trustee of the unit trust scheme from paying;
and
20 (ii) the amount of any liability that the shareholder or
unit holder has, in the relevant period, assumed
or discharged on behalf of the corporation or the
trustee of the unit trust scheme.
(6) In subsection (5)(b) --
25 "relevant period" means the period beginning on the day that
is 12 months before the day on which the winding up
begins and ending on the day on which the relevant
acquisition occurs.
(7) Section 29(6), (7) and (8) apply for the purposes of
30 subsection (2)(c) as if --
(a) a reference to the property were a reference to the shares
or the units, as the case may require; and
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(b) a reference to the duty chargeable were a reference to
the duty payable in respect of the relevant acquisition.
Division 6 -- Reassessment of liability for landholder duty
195. Reassessment of duty where section 149 was applied
5 (1) A reassessment of duty in respect of a relevant acquisition is
required if --
(a) for the purposes of an assessment, an agreement to
acquire an interest in land has, under section 149(1)(a),
been regarded as having been completed; and
10 (b) since that determination the agreement has been
rescinded, annulled or otherwise terminated without
being completed; and
(c) had the agreement not been regarded as having been
completed --
15 (i) the liability for duty in respect of the relevant
acquisition would not have arisen; or
(ii) the amount of the duty payable would have been
less.
(2) A reassessment of duty in respect of a relevant acquisition is
20 also required if --
(a) for the purposes of an assessment, an agreement to
dispose of an interest in land has, under
section 149(1)(b), been disregarded; and
(b) since that determination the agreement has been
25 completed; and
(c) had the agreement not been disregarded --
(i) the liability for duty in respect of the relevant
acquisition would not have arisen; or
(ii) the amount of the duty payable would have been
30 less.
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Part 6 Collection of landholder duty
s. 196
(3) On application made by a person that has paid or is liable to pay
the duty, the Commissioner is to make a reassessment of the
duty --
(a) if subsection (1) applies -- disregarding the agreement
5 referred to in that subsection; or
(b) if subsection (2) applies -- having regard to the
agreement referred to in that subsection.
196. Reassessment of duty where section 176(2) was applied
(1) A reassessment of duty in respect of a relevant acquisition is
10 required if --
(a) for the purposes of an assessment, the acquisition was
treated as having been made under an agreement of the
kind referred to in section 176(2); and
(b) since that assessment --
15 (i) the agreement has been rescinded, annulled or
otherwise terminated without being completed;
or
(ii) subsection (2) has become applicable to the
agreement;
20 and
(c) had the acquisition not been treated as mentioned in
paragraph (a) the liability for duty in respect of the
relevant acquisition would not have arisen.
(2) This subsection has become applicable to an agreement that is
25 taken to exist under section 177(2) or (3) if --
(a) the call option and the put option of the simultaneous
put and call option referred to in section 177(2) or (3) --
(i) both expire without being exercised; or
(ii) are rescinded or cancelled by agreement, or
30 either is rescinded or cancelled and the other
expires without being exercised;
and
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s. 197
(b) the call option has not been assigned or further assigned
as referred to in section 177(3).
(3) On application made by a person that has paid or is liable to pay
the duty, if subsection (1) applies, the Commissioner is to make
5 a reassessment of the duty disregarding the agreement referred
to in subsection (1)(a).
(4) If a reassessment is required under subsection (1)(b)(ii), the
Taxation Administration Act section 17 applies as if the original
assessment had been made as soon as subsection (2) became
10 applicable to the agreement that was taken to exist under
section 177(2) or (3).
197. Further matter to be considered by the Commissioner
Despite section 195(3)(a) or 196(3), the Commissioner is not to
make a reassessment of the duty under that provision unless the
15 Commissioner is also satisfied that the rescission, annulment or
other termination of the agreement was not part of a scheme or
arrangement under which the object of the agreement has been
or may be achieved in another way.
198. Taxation Administration Act not affected
20 Sections 195 and 196 are in addition to the provisions of the
Taxation Administration Act relating to the reassessment of
duty and do not affect the operation of those provisions.
Division 7 -- Lodgment of statements
199. The term "acquisition statement"
25 In this Division --
"acquisition statement" means a statement required to be
lodged under section 200(2), 201(6) or 202(2).
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200. Acquisition statement to be lodged
(1) This section applies where by a relevant acquisition a person --
(a) acquires an interest in a landholder; or
(b) is taken by section 173(4) to have acquired such an
5 interest.
(2) A statement in respect of the acquisition must be lodged
unless --
(a) section 180(4)(b) applies in relation to the acquisition;
or
10 (b) it is covered by an approval under section 201.
(3) An acquisition statement under subsection (2) must be lodged
not later than 2 months after the day on which the relevant
acquisition occurred or is taken to have occurred or within such
further time as is allowed under subsection (4).
15 (4) The Commissioner may from time to time, on application by a
person or entity referred to in section 204, extend the time
allowed for the lodgment of an acquisition statement under this
section, and may do so on such conditions as the Commissioner
thinks fit.
20 (5) An application under subsection (4) in respect of an acquisition
statement must be made --
(a) before the expiry of the allowed time applicable to the
statement; and
(b) in the approved form.
25 201. Acquisition of further interests in landholder: lodgment of
periodical statements may be approved
(1) This section applies where --
(a) by a relevant acquisition referred to in section 164 a
person has acquired a further interest in a landholder;
30 and
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s. 201
(b) it is contemplated that the acquirer or a person that
under section 162 is related to the acquirer (a "related
person") will acquire more of such interests in the
landholder.
5 (2) The Commissioner may, on application made by a person
mentioned in subsection (3), approve the lodgment of periodical
statements in respect of particular approved periods (a
"relevant period").
(3) The persons that may apply are --
10 (a) the acquirer; or
(b) a related person; or
(c) if the landholder is a corporation, the corporation; or
(d) if the landholder is a unit trust scheme, the trustee of the
scheme.
15 (4) An application under subsection (2) must be made --
(a) within 2 months after the day on which the relevant
acquisition occurred; and
(b) in the approved form.
(5) The first relevant period is to begin with the day on which the
20 relevant acquisition occurred and a subsequent relevant period
is to begin with the day after the day on which the immediately
preceding relevant period ends.
(6) While an approval under subsection (2) is in force --
(a) a statement must be lodged within 14 days after the first
25 relevant period ends in respect of --
(i) the relevant acquisition referred to in
subsection (1)(a); and
(ii) any other relevant acquisition by which the
acquirer or a related person acquired any further
30 interest in the landholder during that period;
and
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(b) within 14 days after each subsequent relevant period
ends, a statement must be lodged in respect of any
relevant acquisition by which the acquirer or a related
person acquired any further interest in the landholder
5 during that period.
202. Lodgment obligations where application under section 201
refused
(1) If the Commissioner decides not to grant an approval under
section 201, the Commissioner is to give written notice of the
10 decision and of the reasons for it to --
(a) the applicant; and
(b) every other person that appears to the Commissioner to
be a person that would be liable under section 204 if a
statement is not lodged under subsection (2) in respect
15 of an acquisition mentioned in that subsection.
(2) Within 2 months after the day on which a notice is given under
subsection (1), statements must be lodged in respect of --
(a) the relevant acquisition referred to in section 201(1)(a);
and
20 (b) any relevant acquisition by which the acquirer or a
person that under section 162 is related to the acquirer
acquired any further interest in the landholder after the
relevant acquisition referred to in section 201(1)(a) and
before the notice was given,
25 and section 200 does not apply to those acquisitions.
203. Form and content of acquisition statements
(1) An acquisition statement must --
(a) be in the approved form; and
(b) contain such information and particulars as are
30 prescribed.
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s. 204
(2) The Commissioner may approve different forms of acquisition
statements for different circumstances or for different provisions
of this Chapter.
204. Failure to lodge acquisition statement
5 If an acquisition statement is not lodged in accordance with
section 200(2), 201(6) or 202(2), the following persons commit
an offence --
(a) in every case, the acquirer;
(b) if the landholder concerned is a corporation, the
10 corporation;
(c) if the landholder concerned is a unit trust scheme, the
trustee of the scheme;
(d) any person taken into account under section 163 or 164
as being related to the acquirer for the purposes of the
15 acquisition, other than a person whose interest in the
landholder is, for the purpose of calculating the duty, an
excluded interest under section 190(1) or 192.
Penalty: a fine of $20 000.
Division 8 -- Information to be provided to Parliament
20 205. Minister to inform Parliament of amounts of duty assessed
and duty paid during 3 years following commencement of
this Chapter
As soon as is practicable after the expiration of the period of
3 years from the commencement of this Chapter, the Minister is
25 to --
(a) cause a statement to be prepared showing --
(i) the total amount of all assessments of duty
payable under this Chapter made during that
period in respect of relevant acquisitions; and
30 (ii) an estimate of the total amount of duty that
would have been assessed under the Stamp
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s. 205
Act 1921 if that Act had applied to those
acquisitions instead of this Chapter;
and
(b) cause the statement to be laid before each House of
5 Parliament.
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Duties Bill 2007
Insurance duty Chapter 4
Preliminary Part 1
s. 206
Chapter 4 -- Insurance duty
Part 1 -- Preliminary
206. Terms used in this Chapter
In this Chapter, unless the contrary intention appears --
5 "accident insurance" means insurance for any payment agreed
to be made --
(a) on the death of any person only from accident or
violence or otherwise than from a natural cause; or
(b) as compensation for personal injury;
10 "contract of insurance" has the meaning given in section 208;
"duty" means duty under this Chapter;
"financial services licensee" has the meaning given in the
Corporations Act section 761A;
"general insurance" has the meaning given in section 209;
15 "general insurer" has the meaning given in section 214;
"insurer" means a person that writes general insurance
otherwise than as an intermediary of an insurer;
"intermediary", of an insurer, means --
(a) a representative of the insurer; or
20 (b) a financial services licensee, that is not otherwise a
representative of the insurer, that arranges or effects
insurance for or with the insurer;
"interstate duty" means duty chargeable in another State or a
Territory that is of a similar nature to duty under this
25 Chapter;
"life insurance" means insurance provided under or in
accordance with a policy of insurance or assurance on any
life or lives or on any event or contingency relating to or
depending on any life or lives, other than a policy of
30 accident insurance;
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Part 2 Imposition of insurance duty
s. 207
"offshore risk insurance" means any kind of insurance that is
applicable to --
(a) property outside Australia; or
(b) a risk, contingency or event concerning an act or
5 omission that, in the normal course of events, occurs
outside Australia;
"premium" has the meaning given in section 211;
"registered insurer" means a general insurer that is registered
under section 218;
10 "representative" has the meaning given in the Corporations
Act section 910A.
Part 2 -- Imposition of insurance duty
207. Insurance duty imposed
Duty is imposed on the premium paid in relation to a contract of
15 insurance.
208. Contracts of insurance
A "contract of insurance" is a contract that effects general
insurance (whether or not it also effects other kinds of
insurance).
20 209. General insurance and connection to the State
(1) "General insurance" is any kind of insurance that is applicable
to --
(a) property in Western Australia; or
(b) a risk, contingency or event concerning an act or
25 omission that, in the normal course of events, may occur
within, or partly within, Western Australia,
or both.
(2) "General insurance" does not include any of the following --
(a) life insurance;
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Imposition of insurance duty Part 2
s. 210
(b) insurance against an employer's liability to pay
compensation under the Workers' Compensation and
Injury Management Act 1981;
(c) reinsurance (that is, the indemnification of one party by
5 another against liability or payment arising under a
contract or contracts of insurance or reinsurance);
(d) insurance in respect of goods in the course of being
transported, whether by rail, road, air or sea, and
whether within Western Australia or elsewhere;
10 (e) insurance in respect of a marine hull used primarily for
commercial purposes;
(f) insurance effected by an exempt body;
(g) insurance issued by a private health insurer (as defined
in the Private Health Insurance Act 2007
15 (Commonwealth) Schedule 1) in the course of its health
insurance business (as defined in section 121-1 of that
Act);
(h) insurance under the Defence Service Homes Insurance
Scheme (as defined in the Defence Service Homes
20 Act 1918 (Commonwealth) section 38);
(i) offshore risk insurance;
(j) insurance of a prescribed class.
210. Additional insurance -- life riders
(1) This section does not apply to a policy of life insurance unless
25 the insured person's place of residence is in Western Australia.
(2) If --
(a) a policy of life insurance, in addition to providing life
insurance, also provides for the payment of a benefit on
the happening of a contingency or event that does not
30 relate to or depend on a life or lives (the "additional
insurance"); and
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Part 2 Imposition of insurance duty
s. 211
(b) an identifiable part of the premium payable in respect of
the policy is attributable to the additional insurance,
the additional insurance provided under or in accordance with
the policy is taken to be general insurance and not life insurance
5 for the purposes of this Chapter.
(3) Subsection (2) applies --
(a) whether or not the life insurance and the additional
insurance are distinct matters; and
(b) whether or not payment of a benefit under the additional
10 insurance component of the policy --
(i) will or may reduce the benefit payable under the
life insurance component of the policy; or
(ii) will or may terminate the policy.
211. The term "premium"
15 A "premium" is the total consideration paid to an insurer by or
on behalf of an insured person to effect insurance, without
deductions for any amounts paid or payable, or allowed or
allowable, by way of commission or discount to an intermediary
of the insurer, other than --
20 (a) an amount paid to an intermediary of the insurer by the
insured person as a fee if the amount can be identified as
a fee; or
(b) an amount paid to take account of duty or interstate
duty.
25 212. When a premium is paid
For the purposes of this Chapter, a premium or an instalment of
a premium is paid when the first of the following events
occurs --
(a) the premium or the instalment is received by or on
30 behalf of the insurer;
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Collection of insurance duty Part 3
s. 213
(b) an account of the insurer is credited with the amount of
the premium or the instalment.
Part 3 -- Collection of insurance duty
Division 1 -- Liability
5 213. Person liable to pay duty
Duty chargeable on the premium paid in relation to a contract of
insurance is payable by --
(a) the insurer -- if the insurer is a general insurer; or
(b) the insured person -- if the insurer is not a general
10 insurer.
214. The term "general insurer"
Any of the following insurers is a "general insurer" --
(a) an insurer that is either --
(i) authorised under the Insurance Act 1973
15 (Commonwealth); or
(ii) registered under the Life Insurance Act 1995
(Commonwealth);
(b) the Insurance Commission of Western Australia and any
similar body of another State or a Territory that is
20 prescribed for the purposes of this definition.
Division 2 -- Amount of insurance duty
215. Amount of duty payable
The amount of duty payable on a premium, or an instalment of a
premium, is 10% of the amount of the premium, or instalment,
25 that is attributable to general insurance.
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Part 3 Collection of insurance duty
s. 216
216. Apportionment of premiums and instalments
(1) This section applies to a contract of insurance that effects both
general insurance and one or more other kinds of insurance.
(2) The proportion of the premium that is attributable to general
5 insurance is to be determined in accordance with the
Apportionment Schedule or Schedules published by the
Commissioner from time to time.
(3) The Commissioner must give notice in the Gazette of the
publication of an Apportionment Schedule and include details
10 of how a copy of the Schedule may be obtained.
(4) The Apportionment Schedule or Schedules are to provide the
means for apportioning premiums having regard to --
(a) the principle that duty is chargeable on a premium paid
in relation to a contract of insurance to the extent to
15 which the contract of insurance is for general insurance;
and
(b) avoiding payment of multiple duty as between
Australian jurisdictions; and
(c) giving Australian jurisdictions their appropriate share of
20 duty by means of the apportionment.
(5) A method of apportionment in an Apportionment Schedule may,
for a particular class of contract of insurance, have the effect
that the proportion of the premium that is attributable to general
insurance is zero.
25 (6) If a premium has not been, or cannot be, appropriately
apportioned under subsection (2), the Commissioner may --
(a) determine the appropriate proportions; and
(b) if necessary -- reassess the amount of duty payable in
relation to the contract of insurance.
30 (7) The extent to which an instalment of a premium is attributable
to general insurance is the same as the extent to which the
premium is attributable to general insurance.
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Collection of insurance duty Part 3
s. 217
Division 3 -- Insurers
217. Insurers to be registered
(1) On becoming a general insurer, the insurer must apply to be
registered under section 218.
5 (2) An application for registration must be made in the approved
form on or before the 21st day after the end of the month in
which the insurer became a general insurer.
Penalty: a fine of $20 000.
218. Registration of insurers
10 (1) The Commissioner must register a general insurer that applies
for registration.
(2) The Commissioner must register a general insurer that has not
applied for registration if satisfied that the insurer ought to be
registered for the purposes of this Chapter.
15 (3) The Commissioner must give notice to a general insurer of its
registration.
219. Return period of an insurer
The return period of a registered insurer is --
(a) if a special tax return arrangement is not in force -- one
20 month; or
(b) the return period provided in a special tax return
arrangement in force under the Taxation Administration
Act section 49.
220. Insurers to lodge returns
25 (1) A registered insurer must lodge a return in the approved form
for each return period of the insurer on or before the 21st day
after the end of the return period.
(2) On becoming a general insurer, the insurer must --
(a) for the month in which the insurer became a general
30 insurer; and
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Part 3 Collection of insurance duty
s. 221
(b) for each subsequent month until the month in which the
insurer becomes a registered insurer or ceases to be a
general insurer,
lodge a return in the approved form for the month on or before
5 the 21st day after the end of the month.
(3) The month referred to in subsection (2) is to be treated as a
return period for the purposes of this Chapter.
(4) A registered insurer that does not lodge a statement in
accordance with subsection (1) commits an offence.
10 Penalty: a fine of $5 000.
(5) A general insurer that does not lodge a statement in accordance
with subsection (2) commits an offence.
Penalty: a fine of $5 000.
(6) The requirement to lodge a return applies even if no duty is
15 chargeable in the return period.
221. Time for payment of duty by insurers
The duty on a premium, or instalment of a premium, paid to a
general insurer in a return period is due for payment on the last
day for lodging the return under section 220(1) or (2) for that
20 return period.
222. Cancelling registration of insurers
(1) The Commissioner may cancel the registration of a general
insurer on his or her own initiative or at the request of the
insurer.
25 (2) The Commissioner is not to cancel a general insurer's
registration unless registration of the insurer is no longer
necessary for the purposes of this Chapter.
(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
30 earlier than the day on which the notice is issued.
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Insurance duty Chapter 4
General provisions as to insurance duty Part 4
s. 223
Division 4 -- Insured persons
223. Insured persons to lodge statements
(1) A person liable to pay duty on a premium under section 213(b)
(an "insured person") must lodge a statement in the approved
5 form on or before the 21st day after the end of the month, or
each month, in which the person paid the premium, or an
instalment of the premium.
(2) A person that does not lodge a statement in accordance with
subsection (1) commits an offence.
10 Penalty: a fine of $5 000.
(3) If a document contains all the information required in a
statement referred to in subsection (1), the document may be
lodged instead of the statement and, if it is, the person does not
commit an offence under subsection (2).
15 224. Time for payment of duty by insured persons
The duty on a premium, or instalment of a premium, paid by an
insured person in a month is due for payment on the last day for
lodging the statement under section 223(1) for that month.
Part 4 -- General provisions as to insurance duty
20 225. Insurer and intermediary to notify Commissioner of
contracts of insurance
(1) An insurer that is not a general insurer must, for each month in
which the insurer is paid a premium or an instalment of a
premium in respect of a contract of insurance entered into by or
25 on behalf of the insurer, notify the Commissioner in the
approved form of --
(a) each such contract of insurance for which the insurer has
been paid a premium or an instalment of a premium in
that month; and
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Part 4 General provisions as to insurance duty
s. 226
(b) the amounts of those premiums or instalments,
on or before the 21st day after the end of the month.
Penalty: a fine of $5 000.
(2) An intermediary of an insurer that is not a general insurer must,
5 for each month in which the intermediary receives a premium or
an instalment of a premium in respect of a contract of insurance
on behalf of the insurer, notify the Commissioner in the
approved form of --
(a) each such contract of insurance for which the
10 intermediary has received a premium or an instalment of
a premium on behalf of the insurer; and
(b) the amounts of those premiums or instalments,
on or before the 21st day after the end of the month.
Penalty: a fine of $5 000.
15 (3) The Commissioner may make a special tax return arrangement
under the Taxation Administration Act section 49 with a person
referred to in subsection (1) or (2) that modifies the
requirements in subsection (1) or (2) and the arrangement has
effect accordingly.
20 (4) If a person complies with a requirement (including a modified
requirement) in subsection (1) or (2) in respect of a contract of
insurance then the requirement in the other subsection is taken
to have been complied with in respect of that contract.
226. Refunds
25 (1) If --
(a) a general insurer has paid duty in respect of a contract of
insurance; and
(b) the insurer has refunded some or all of the premium for
the contract,
30 the insurer is entitled to a refund of the duty paid to the extent to
which the premium was refunded.
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General provisions as to insurance duty Part 4
s. 227
(2) If --
(a) a person has paid duty in respect of a contract of
insurance; and
(b) the insurer has refunded some or all of the premium for
5 the contract,
the person is entitled to a refund of the duty paid to the extent to
which the premium was refunded.
(3) For the purposes of this section, an insurer refunds an amount of
a premium if the insurer or an intermediary of the insurer --
10 (a) repays the amount to the insured person; or
(b) otherwise provides a benefit to the insured person to the
value of the amount refunded.
227. Records
(1) A person that is liable to pay duty must keep --
15 (a) the records that are prescribed 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 pay duty.
Penalty: a fine of $20 000.
20 (2) A person referred to in section 225(1) or (2) must keep the
records necessary to enable the Commissioner to verify the
information in any notice.
Penalty: a fine of $20 000.
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Duties Bill 2007
Chapter 5 Vehicle licence duty
Part 1 Preliminary
s. 228
Chapter 5 -- Vehicle licence duty
Part 1 -- Preliminary
228. Terms used in this Chapter
In this Chapter, unless the contrary intention appears --
5 "caravan" means a trailer (including a camper trailer)
permanently fitted for human habitation in the course of a
journey;
"charitable organisation" means a charitable institution or
public benevolent institution endorsed by the
10 Commissioner of Taxation of the Commonwealth under the
Income Tax Assessment Act 1997 (Commonwealth) as a
deductible gift recipient or as exempt from income tax;
"corresponding State law" means a law of another State or a
Territory that corresponds to the Road Traffic Act;
15 "dealer" means any of the following --
(a) a person that carries on the business of selling new
vehicles;
(b) a person that is the holder of a dealer's licence under
the Motor Vehicle Dealers Act 1973;
20 (c) a person that carries on the business of acquiring new
or used vehicles for resale or disposal under hire
purchase or leasing agreements;
(d) a person that, in the course of the person's business,
takes possession of and resells vehicles that are the
25 subject of mortgages, charges or hire purchase or
leasing agreements;
"Director General" means the chief executive officer of the
department of the Public Service principally assisting in the
administration of the provisions that the Road Traffic Act
30 section 5 defines as the "licensing provisions of this Act";
"duty" means duty under this Chapter;
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Imposition of vehicle licence duty Part 2
s. 229
"grant", in respect of a licence for a vehicle, does not include
renew;
"heavy vehicle" means a vehicle with a gross vehicle mass of
more than 4.5 tonnes;
5 "licence" has the meaning given in section 230(2) and (3);
"motor vehicle" has the meaning given in the Road Traffic Act
section 5, but does not include a trailer, semi-trailer or
caravan;
"new vehicle" means --
10 (a) a vehicle that has not been used; or
(b) a vehicle that has only been used for a purpose
referred to in section 246(1) or 247(1), other than a
vehicle that has been used for a purpose referred to in
section 246(1)(a)(ii) or 247(1) for a period of more
15 than 2 months;
"Road Traffic Act" means the Road Traffic Act 1974;
"trailer" means a vehicle designed to be drawn by another
vehicle;
"vehicle" has the meaning given in section 230(1).
20 Part 2 -- Imposition of vehicle licence duty
229. Vehicle licence duty imposed
Duty is imposed on the grant or transfer of a licence for a
vehicle.
230. Vehicles and their licences
25 (1) A "vehicle" is a vehicle that is required to be licensed under the
Road Traffic Act, other than a caravan.
(2) A "licence", in respect of a vehicle, is a licence for the vehicle
granted under the Road Traffic Act Part III.
(3) A duplicate licence or a certified copy of the licence granted
30 under the Road Traffic Act is not a "licence".
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Chapter 5 Vehicle licence duty
Part 3 Collection of vehicle licence duty
s. 231
Part 3 -- Collection of vehicle licence duty
Division 1 -- Preliminary
231. Terms used in this Part
In this Part --
5 "dutiable value", of a vehicle, means the dutiable value worked
out in respect of the vehicle under Division 5;
"optional feature", of a vehicle, means a feature of any of the
following types that is not a standard feature of a vehicle of
that make and model --
10 (a) any particular kind of transmission in a vehicle;
(b) any particular kind of engine in a vehicle;
(c) any other prescribed feature in or of a vehicle;
"purchase price", in respect of a vehicle, includes any of the
following --
15 (a) an amount allowed by the seller on a trade-in or an
exchange of any article;
(b) an amount paid to the seller for anything included
with or incorporated into the vehicle;
(c) an amount paid to the seller for the preparation of the
20 vehicle for delivery to the purchaser;
"specialised equipment" means any of the following --
(a) a crane;
(b) an excavator, road roller, road grader, bulldozer,
mechanical shovel, plough, rotary hoe or similar
25 plant;
(c) hoisting equipment for lifting, partially lifting or
towing other vehicles;
(d) bitumen spraying equipment;
(e) a cement agitator;
30 (f) garbage collection equipment;
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Collection of vehicle licence duty Part 3
s. 232
(g) road sweeping equipment;
(h) a refrigeration unit;
(i) a stock crate;
(j) a tank for transporting liquids;
5 (k) equipment to make the vehicle habitable by a person
in the course of a journey;
(l) any similar plant or equipment;
"specialised vehicle" means a motor vehicle that --
(a) is constructed or designed, or has been modified, to
10 include or have specialised equipment permanently
attached to it; and
(b) is designed to be driven or controlled by a person
carried in or on the vehicle.
Division 2 -- Liability
15 232. Person liable to pay duty
(1) Duty chargeable on the grant or transfer of a licence for a
vehicle is payable by the person in whose name the licence for
the vehicle is granted, or the transferee.
(2) A person that ceases to be the owner of a vehicle, or a dealer
20 that sells a new vehicle, is also liable to pay the duty chargeable
on the grant or transfer of the licence for the vehicle in the
circumstances and to the extent set out in section 252.
Division 3 -- Assessment and payment of vehicle licence duty
233. Assessment of duty
25 (1) When an application is made for the grant or transfer of a
licence for a vehicle the Director General must assess the
amount of duty payable on the grant or transfer.
(2) The assessment is to be based on the dutiable value of the
vehicle at the time of the grant or transfer of the licence unless a
30 provision of this Chapter otherwise provides.
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(3) An assessment made under subsection (1) is taken to be an
official assessment for the purposes of the Taxation
Administration Act.
234. Applicant's statement of value in application
5 (1) A person that applies for the grant or transfer of a licence for a
vehicle must include in the application a statement signed by the
applicant setting out --
(a) the applicant's estimate of the dutiable value of the
vehicle at the time of the application; and
10 (b) if the applicant is a purchaser of the vehicle -- the
purchase price of the vehicle.
Penalty: a fine of $20 000.
(2) For the purpose of determining the dutiable value of the vehicle
the Director General may, by notice given to the applicant,
15 require the applicant to give the Director General evidence of
the dutiable value of the vehicle.
(3) The applicant must comply with the requirement in
subsection (2) within the period stated in the notice.
Penalty: a fine of $20 000.
20 (4) This section does not apply to, or in respect of, a person if --
(a) under Part 4 Division 1 or 2 -- duty is not chargeable on
the grant or transfer of a licence for the vehicle; or
(b) under Part 4 Division 3 -- nominal duty is chargeable
on the grant or transfer of a licence for the vehicle.
25 235. Payment of duty
Duty chargeable on the grant or transfer of a licence for a
vehicle and any penalty tax is payable --
(a) to the Director General in accordance with the Road
Traffic Act; or
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s. 236
(b) if an assessment is made by the Commissioner -- in
accordance with the Taxation Administration Act.
Division 4 -- Amount of vehicle licence duty
236. Amount of duty payable
5 (1) The amount of duty payable on the grant or transfer of a licence
for a vehicle is worked out under this section (rounded down to
the nearest 5 cents) unless section 250 applies to the grant or
transfer of the licence.
(2) For the grant or transfer of a licence for a vehicle that is not a
10 heavy vehicle, the amount of duty is --
(a) if the dutiable value of the vehicle does not exceed
$20 000 -- 2.75% of the dutiable value; or
(b) if the dutiable value of the vehicle exceeds $20 000 but
does not exceed $45 000 -- R% of the dutiable value,
15 where R is determined in accordance with the following
formula --
DV - 20000
R = 2.75 +
6666.66
(rounded to 2 decimal places);
where --
20 DV is the dutiable value;
or
(c) if the dutiable value of the vehicle exceeds $45 000 --
6.5% of the dutiable value.
(3) For the grant or transfer of a licence for a heavy vehicle, the
25 amount of duty is the lesser of --
(a) 3% of the dutiable value; and
(b) $12 000.
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Division 5 -- Dutiable value of a vehicle
237. Dutiable value of certain new vehicles
(1) The dutiable value of a vehicle --
(a) that is a new vehicle; and
5 (b) that is of a class prescribed for the purposes of this
section; and
(c) 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
10 model,
is the sum of --
(d) the price fixed as described in paragraph (c); and
(e) for each optional feature in or of the vehicle -- the
additional amount fixed by the manufacturer, importer
15 or principal distributor for the retail sale in Western
Australia of the optional feature.
(2) This section has effect subject to section 239.
238. Dutiable value of certain other vehicles
(1) The dutiable value of a vehicle that is not a vehicle to which
20 section 237 applies is the amount for which the vehicle might
reasonably be sold, free of encumbrances, in the open market.
(2) This section has effect subject to section 239.
239. Dutiable value of specialised vehicles
(1) Section 237 or 238 (whichever is relevant) applies in respect of
25 a vehicle that is a specialised vehicle ("vehicle B"), as if the
specialised equipment attached to it at the time of the
application for the grant or transfer of the licence for the vehicle
were not attached to it, if --
(a) the applicant holds, or previously held, the licence for
30 another specialised vehicle ("vehicle A"); and
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s. 239
(b) the applicant is the last person to hold a licence for
vehicle A; and
(c) the duty paid by the applicant on the grant or transfer of
the licence for vehicle A was assessed on the dutiable
5 value of vehicle A including the value of the specialised
equipment that was then attached to it; and
(d) the specialised equipment referred to in paragraph (c)
has been removed from vehicle A and attached to
vehicle B; and
10 (e) the application for the grant or transfer of the licence for
vehicle B is accompanied by, or includes, a declaration
in the approved form to the effect that, in the applicant's
opinion, the circumstances in paragraphs (a) to (d) apply
and that the applicant understands the effect of
15 subsections (2) and (3).
(2) If --
(a) duty on the grant or transfer of a licence for a
specialised vehicle to a person was assessed on a
dutiable value worked out under subsection (1); and
20 (b) while that person holds the licence for that vehicle it is
used with specialised equipment other than the
equipment that was attached to it at the time the
application for the grant or transfer of the licence was
made (the "original equipment"),
25 the person must not attach the original equipment to any other
vehicle for which the licensee intends to become the licence
holder.
Penalty: a fine of $20 000.
(3) If a person contravenes subsection (2) --
30 (a) subsection (1) is taken not to have applied in respect of
the vehicle at the time of the grant or transfer of the
licence for the vehicle; and
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(b) penalty tax is imposed on the grant or transfer of the
licence of an amount equal to the difference between --
(i) the amount of duty that was originally payable
on the grant or transfer; and
5 (ii) the amount of duty payable because of
paragraph (a);
and
(c) the penalty tax and the unpaid amount of the duty
payable because of paragraph (a) is due for payment
10 within one month after the date of an assessment notice
issued in relation to an assessment of the duty and
penalty tax.
Part 4 -- Exemptions and nominal duty
Division 1 -- Exemptions -- general
15 240. If no vehicle licence fee payable under Road Traffic Act
(1) Duty is not chargeable on the grant of a licence for a vehicle if
no fee is payable under the Road Traffic Act section 19(3).
(2) Duty is not chargeable on the transfer of a licence for a vehicle
if no fee would have been payable under the Road Traffic Act
20 section 19(3) for the grant of a licence to the transferee for the
vehicle on the day of the transfer.
241. Reconstruction exemption
Duty is not chargeable on the transfer of a licence for a vehicle
if an exemption certificate issued under section 263(3)(a) in
25 respect of the transfer is given to the Director General.
242. Previous licence or registration
(1) Duty is not chargeable on the grant of a licence for a vehicle to
a person if the vehicle was, before the grant of that licence, last
licensed or registered in that person's name under --
30 (a) the Road Traffic Act; or
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s. 243
(b) a corresponding State law; or
(c) a law of a country other than Australia that corresponds
to the Road Traffic Act.
(2) Subsection (1) does not apply to the grant of a licence to a
5 person for a heavy vehicle that was, before the grant of that
licence, last licensed or registered in the person's name under a
corresponding State law if the vehicle was registered in that
person's name under the Interstate Road Transport Act 1985
(Commonwealth) on or after 16 January 1997.
10 (3) Subsection (1) does not apply to the grant of a licence for a
vehicle, or is taken not to have applied to the grant of a licence
for a vehicle at the time of the grant, if the Commissioner is
satisfied, or becomes satisfied after the grant of the licence, that
the vehicle was licensed or registered outside of Western
15 Australia as part of a course of action or conduct having the sole
or dominant purpose of avoiding or reducing duty.
(4) The duty chargeable because of subsection (3) is due for
payment within one month after the date of an assessment
notice issued in relation to an assessment of that duty.
20 (5) In this section, a reference to a vehicle includes a reference to a
vehicle that was modified or that was part of a vehicle that was
modified, whether or not the vehicle that resulted from the
modification needed to meet a standard or requirement before it
could be licensed that was different to the one that the original
25 vehicle had to meet.
243. Certain heavy vehicles
Duty is not chargeable on the grant of a licence for a heavy
vehicle to a person if --
(a) the vehicle was, immediately before 16 January 1997,
30 registered in that person's name under the Interstate
Road Transport Act 1985 (Commonwealth); and
(b) since 16 January 1997, no licence or registration has
been granted under the Road Traffic Act or a
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s. 244
corresponding State law for the vehicle in any other
person's name.
244. Prescribed class of person or vehicle or prescribed purpose
Duty is not chargeable on the grant of a licence for a vehicle to
5 a person if --
(a) the vehicle is in a prescribed class of vehicle; and
(b) the person is in a prescribed class of person; and
(c) the vehicle is used, or to be used, for a prescribed
purpose.
10 Division 2 -- Exemptions -- motor vehicle dealers
245. Minor incidental purposes
A reference in this Division to the use of a vehicle for a purpose
referred to in section 246(1) or (2) or 247(1) includes a
reference to its use for that purpose and for minor incidental
15 purposes.
246. Exempt use of a vehicle -- trading stock
(1) Duty is not chargeable on the grant of a licence for a vehicle to
a dealer if --
(a) the dealer acquired the vehicle solely for the purpose
20 of --
(i) selling it to another person in the ordinary course
of the dealer's business; or
(ii) demonstrating it to prospective purchasers;
and
25 (b) the application for the grant of the licence is
accompanied by, or includes, a declaration in the
approved form to the effect that --
(i) while the dealer holds the licence the vehicle will
not be used for any purpose other than a purpose
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s. 247
referred to in paragraph (a) or section 247(1)(a);
and
(ii) the dealer understands the effect of sections 248
and 249.
5 (2) Duty is not chargeable on the transfer of a licence for a vehicle
to a dealer, if --
(a) the dealer has acquired the vehicle solely for the purpose
of reselling it to another person in the ordinary course of
the dealer's business; and
10 (b) the application for the transfer of the licence is
accompanied by, or includes, a declaration in the
approved form to the effect that --
(i) while the dealer holds the licence the vehicle will
not be used for any purpose other than a purpose
15 referred to in paragraph (a) or section 247(1)(a);
and
(ii) the dealer understands the effect of sections 248
and 249.
247. Exempt use of a vehicle -- charitable and other purposes
20 (1) Duty is not chargeable on the grant or transfer of a licence for a
vehicle to a dealer if --
(a) the vehicle is to be loaned by the dealer --
(i) to a charitable organisation to be used solely for
providing assistance to underprivileged or
25 disadvantaged persons; or
(ii) to a charitable organisation to be used solely for
providing emergency assistance; or
(iii) to a school (within the meaning given in the
School Education Act 1999) to be used solely for
30 student driver training; or
(iv) to an individual solely for a philanthropic
purpose approved by the Commissioner; or
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s. 248
(v) solely for a prescribed purpose;
and
(b) the application for the grant or transfer of the licence is
accompanied by, or includes, a declaration in the
5 approved form to the effect that --
(i) while the dealer holds the licence the vehicle will
not be used for any purpose other than a purpose
referred to in paragraph (a) or section 246(1)
or (2); and
10 (ii) the dealer understands the effect of sections 248
and 249.
(2) The Commissioner may approve a philanthropic purpose for the
purposes of subsection (1)(a)(iv) for a particular dealer or class
of dealer, and the approval may take effect from a day that is
15 earlier than the day on which the Commissioner grants the
approval.
(3) Subject to the Taxation Administration Act section 17, the
Commissioner must make any reassessment necessary to give
effect to subsection (2).
20 248. Change of exempt use of a vehicle
If, under section 246(1) or (2) or 247(1), no duty was chargeable
on the grant or transfer of a licence for a vehicle to a dealer and
the dealer uses, or allows another person to use, the vehicle for a
different purpose referred to in section 246(1) or (2) or 247(1),
25 the dealer must notify the Commissioner, in the approved form,
of the change in use within one month after the day on which
the use of the vehicle changed.
Penalty: a fine of $5 000.
249. Change to non-exempt use of a vehicle
30 (1) If, under section 246(1) or (2) or 247(1), no duty was chargeable
on the grant or transfer of a licence for a vehicle to a person that
is or was a dealer, then while the person remains the licensee of
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s. 249
the vehicle the person must not use, or allow any other person to
use, the vehicle for a purpose other than a purpose referred to in
section 246(1) or (2) or 247(1) unless the person notifies the
Commissioner, in the approved form, of the change in use
5 within one month after the day on which the use of the vehicle
changed.
Penalty: a fine of $20 000.
(2) If a person notifies the Commissioner as required under
subsection (1) --
10 (a) section 246 or 247 (whichever is relevant) is taken not to
have applied to the grant or transfer of the licence at the
time of the grant or transfer of the licence; and
(b) the duty chargeable on the grant or transfer of the
licence because of paragraph (a) is due for payment
15 within one month after the date of an assessment notice
issued in relation to an assessment of that duty.
(3) If duty is chargeable on the grant or transfer of the licence
because of subsection (2)(a), then, for the purposes of working
out the amount of duty payable, the dutiable value of the vehicle
20 is to be determined as at the time of the change in use.
(4) If a person contravenes subsection (1) --
(a) section 246 or 247 (whichever is relevant) is taken not to
have applied to the grant or transfer of the licence at the
time of the grant or transfer of the licence; and
25 (b) penalty tax is imposed on the grant or transfer of the
licence of an amount equal to the amount of duty
payable on the grant or transfer of the licence because of
paragraph (a); and
(c) the duty and penalty tax is due for payment within one
30 month after the date of an assessment notice issued in
relation to an assessment of the duty and penalty tax.
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Chapter 5 Vehicle licence duty
Part 4 Exemptions and nominal duty
s. 250
Division 3 -- Nominal duty
250. Transactions for which nominal duty is chargeable
(1) This section applies to the transfer of a licence for a vehicle that
is the result of a transfer of the vehicle within the meaning of
5 Chapter 2.
(2) If, on application, the Commissioner is satisfied that --
(a) if the transfer of the vehicle were to be treated as a
dutiable transaction -- section 29, 114, 115, 116 or 119
would apply to the transfer; and
10 (b) nominal duty would be chargeable under that section as
so applying,
nominal duty is chargeable on the transfer of the licence and the
Commissioner may issue a certificate under this section to that
effect.
15 (3) If, on application, the Commissioner is satisfied that --
(a) the transfer of the vehicle is of a class prescribed for the
purposes of this subsection; and
(b) the transfer does not pass, or is not part of a scheme or
arrangement that passes, a beneficial interest in the
20 vehicle,
nominal duty is chargeable on the transfer of the licence and the
Commissioner may issue a certificate under this section to that
effect.
(4) An application for a certificate must be in the approved form.
25 (5) If the transfer of the vehicle were to be treated as a dutiable
transaction and nominal duty would be chargeable on the
transfer under section 131 or 139, nominal duty is payable on
the transfer of the licence.
(6) If --
30 (a) the transfer of the licence was chargeable with duty
other than nominal duty; and
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s. 251
(b) the transfer of the vehicle was effected by or is in
accordance with --
(i) a matrimonial instrument or de facto relationship
instrument that came into existence; or
5 (ii) an instrument that became a matrimonial
instrument or de facto relationship instrument,
within the period of 12 months after the day on which
liability to duty arose,
the Commissioner, on the application of the taxpayer, is to
10 reassess the liability to duty of the transfer of the licence under
subsection (5) as if the transfer of the vehicle were treated as a
dutiable transaction.
(7) For the purposes of subsection (6), the Taxation Administration
Act section 17 applies as if references in subsections (1) and (4)
15 of that section to when the original assessment was made were
references to --
(a) the day on which the matrimonial instrument or de facto
relationship instrument came into existence; or
(b) the day on which the instrument became a matrimonial
20 instrument or de facto relationship instrument,
as the case may be.
(8) If this section uses a term that is used in Chapter 2, the term has
the same meaning in this section as it has in Chapter 2 unless
the contrary intention appears in this section.
25 Part 5 -- General provisions as to vehicle licence duty
251. Failure to apply for transfer of licence
(1) If a person fails to apply for the transfer of a licence for a
vehicle when required to do so by the Road Traffic Act then, for
the purposes of assessing duty --
30 (a) the transfer of the licence is taken to have occurred on
the day chosen by the Commissioner; and
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s. 252
(b) the failure is taken to be a contravention of a taxation
Act for the purposes of the Taxation Administration Act
section 26.
(2) In choosing a day under subsection (1)(a), the Commissioner is
5 to choose a day on which, in the ordinary course of events, the
transfer would have been likely to have occurred if the person
had complied with the person's obligations under the Road
Traffic Act and this Act.
252. Seller's obligation to notify purchase price
10 (1) A person that ceases to be the owner of a vehicle and is required
under the Road Traffic Act to notify the Director General of the
new owner must include in that notice a statement signed by the
person setting out --
(a) the purchase price (if any) of the vehicle; and
15 (b) the person's estimate of the dutiable value of the vehicle
at the time the person ceased to be the owner of it.
Penalty: a fine of $20 000.
(2) Subsection (1) does not apply to a person if --
(a) under Part 4 Division 1 or 2 -- duty is not chargeable on
20 the grant or transfer of a licence for the vehicle; or
(b) under Part 4 Division 3 -- nominal duty is chargeable
on the grant or transfer of a licence for the vehicle.
(3) A dealer that sells a new vehicle must, within 7 days after the
day of the sale, give to the Director General a statement signed
25 by the dealer setting out --
(a) the purchase price of the vehicle; and
(b) the dealer's estimate of the dutiable value of the vehicle
at the time the vehicle was sold.
Penalty: a fine of $20 000.
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s. 253
(4) If --
(a) a person understates, in a statement under this section,
the purchase price or estimated dutiable value of a
vehicle; and
5 (b) duty payable on the grant or transfer of the licence for
that vehicle is initially assessed on a value of the vehicle
that is less than the proper dutiable value,
the person is jointly and severally liable with the purchaser to
pay the difference between the amount of duty as initially
10 assessed and the amount of duty assessed on the vehicle's
proper dutiable value.
253. Functions of Director General and Commissioner
(1) For the purposes of this Chapter the Director General has the
functions of the Commissioner under the Taxation
15 Administration Act sections 26 and 29, which are modified to
the extent necessary to give effect to this subsection.
(2) For the purposes of the Taxation Administration Act anything
done by the Director General in the exercise of a function
conferred by subsection (1) is taken to have been done by the
20 Commissioner.
(3) The Commissioner has all of the functions of the Director
General under this Chapter, which is modified to the extent
necessary to give effect to this subsection.
254. Form of certain declarations
25 A declaration for the purposes of section 239(1)(e), 246(1)(b)
or (2)(b) or 247(1)(b) must be signed by the person making the
application for the grant or transfer of the licence.
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s. 255
255. Duty to be credited to Commissioner
The Director General must, in accordance with any agreement
between the Director General and the Commissioner --
(a) give to the Commissioner details of licences granted or
5 transferred and the duty and any penalty tax paid in
respect of them; and
(b) credit that duty and penalty tax to the Commissioner.
256. Records
A dealer must keep --
10 (a) the records that are prescribed for the purposes of this
Chapter (if any); and
(b) any other records necessary to enable the Commissioner
to determine the dealer's liability to pay duty.
Penalty: a fine of $20 000.
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Certain exemptions for connected entities Chapter 6
s. 257
Chapter 6 -- Certain exemptions for
connected entities
257. Terms used in this Chapter
(1) In this Chapter, unless the contrary intention appears --
5 "entity" means --
(a) a corporation; or
(b) a unit trust scheme;
"exemption" means an exemption granted under
section 263(1);
10 "family" has the meaning given in section 258;
"parent entity" has the meaning given in subsection (2);
"relevant consolidation transaction" has the meaning given in
section 259;
"relevant reconstruction transaction" has the meaning given
15 in section 260;
"relevant transaction" means --
(a) a relevant consolidation transaction; or
(b) a relevant reconstruction transaction;
"security", of an entity, means --
20 (a) if the entity is a corporation, an issued share of the
corporation; or
(b) if the entity is a unit trust scheme, a unit issued under
the scheme;
"subsidiary" has the meaning given in subsection (2);
25 "transaction group" for a relevant consolidation transaction
means the head entity and the affected entity;
"transaction group" for a relevant reconstruction transaction
means --
(a) those members of the family that are parties to the
30 transaction; and
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Chapter 6 Certain exemptions for connected entities
s. 258
(b) any other member of the family whose holdings of
securities and control of votes mean, under
subsection (2) --
(i) that the relationship between the parties to the
5 transaction is that of a parent entity and a
subsidiary; or
(ii) if the parties are not so related, that the parties
are subsidiaries of the same parent entity.
(2) If a corporation, or the trustee of a unit trust scheme as trustee,
10 ("A") directly or indirectly --
(a) holds at least 90% of the securities of another entity
("B"); and
(b) controls (either by being able to cast or to control the
casting of) at least 90% of the maximum number of
15 votes that may be cast at a general meeting of B,
then, for the purposes of this Chapter, A is the parent entity of B
and B is a subsidiary of A.
258. The term "family"
(1) A parent entity and its subsidiaries are members of a family.
20 (2) If all of the securities of an entity are stapled to the securities of
one or more other entities, all of the entities and their
subsidiaries are members of a family.
259. The term "relevant consolidation transaction"
(1) In this section --
25 "corporate consolidation" means the formation of a family by
the interposition of an entity (the "head entity") between
another entity (the "affected entity") and the holders of the
affected entity's securities.
(2) Subject to this section, a "relevant consolidation transaction"
30 is any acquisition on which landholder duty is chargeable that is
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Certain exemptions for connected entities Chapter 6
s. 260
made solely for the purposes of a corporate consolidation and
that is --
(a) an acquisition of securities of the affected entity by the
head entity for which the only consideration given by
5 the head entity is the issue or transfer of its securities to
the person from whom the affected entity's securities
were acquired; or
(b) an acquisition of securities of the head entity by a holder
of securities of the affected entity.
10 (3) An acquisition is not a "relevant consolidation transaction" if,
immediately before the acquisition, the head entity held dutiable
property or a vehicle or an interest in an entity.
(4) An acquisition is not a "relevant consolidation transaction"
unless, immediately after the issue or transfer of the head
15 entity's securities --
(a) each person that holds those securities (a "security
holder") is a person that held securities of the affected
entity immediately before the securities of the affected
entity were acquired by the head entity; and
20 (b) the proportion of those securities that each security
holder holds is the same proportion as that security
holder held of the securities of the affected entity.
260. The term "relevant reconstruction transaction"
(1) Subject to this section, any of the following is a "relevant
25 reconstruction transaction" --
(a) any of the following dutiable transactions, if transfer
duty is chargeable --
(i) an agreement, whether conditional or not, for the
transfer of dutiable property from one member of
30 a family to another member of the family;
(ii) a transfer of dutiable property from one member
of a family to another member of the family;
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s. 260
(iii) a declaration of trust over dutiable property
under which one member of a family holds the
property on trust for another member of the
family;
5 (iv) a vesting of dutiable property held by one
member of a family in another member of the
family;
(v) a surrender of special dutiable property, within
the meaning of section 18, if the special dutiable
10 property is surrendered by one member of a
family to another member of the family;
(b) a transfer of a licence for a vehicle from one member of
a family to another member of the family, if vehicle
licence duty is chargeable;
15 (c) an acquisition by one member of a family of an interest
in another member of the family, if landholder duty is
chargeable;
(d) an acquisition by one member of a family from another
member of the family of an interest in an entity, if
20 landholder duty is chargeable.
(2) A transaction referred to in subsection (1)(a) is not a "relevant
reconstruction transaction" if, immediately before the
transaction, the dutiable property is held, or the transaction
results in the property being held, subject to a discretionary
25 trust.
(3) A transfer referred to in subsection (1)(b) is not a "relevant
reconstruction transaction" if, immediately before or
immediately after the transfer, the vehicle is held subject to a
discretionary trust.
30 (4) An acquisition referred to in subsection (1)(c) or (d) is not a
"relevant reconstruction transaction" if, immediately before
the acquisition, the interest is held, or the acquisition results in
the interest being held, subject to a discretionary trust.
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s. 261
261. Pre-determining certain questions
(1) In this section --
"pre-transaction decision request" means a request made
under subsection (2), (3) or (4).
5 (2) A person proposing to enter into a relevant transaction may ask
the Commissioner to decide whether, if the transaction were
entered into, it would be exempted.
(3) A person proposing to enter into a relevant transaction may ask
the Commissioner to decide whether, if the transaction were
10 entered into and exempted, the Commissioner, under
section 265, would revoke the exemption.
(4) A person proposing to enter into a transaction may ask the
Commissioner to decide whether, if the transaction were entered
into, the Commissioner, under section 265, would revoke the
15 exemption granted for a relevant transaction.
(5) A pre-transaction decision request must be made in the
approved form.
(6) The Commissioner may, as often as the Commissioner thinks
fit, ask a person that has made a pre-transaction decision request
20 for any information the Commissioner needs to make the
decision requested.
(7) The Commissioner may refuse a pre-transaction decision
request if --
(a) the transaction to which the request relates has been
25 entered into; or
(b) the request does not differ materially from another
pre-transaction decision request that was made
previously; or
(c) a request made by the Commissioner under
30 subsection (6) is not satisfied.
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Chapter 6 Certain exemptions for connected entities
s. 262
(8) If the Commissioner is given the information needed to make
the decision requested in a pre-transaction decision request, the
Commissioner must make the decision and give written notice
of it to the person that made the request.
5 (9) In making a decision requested in a pre-transaction decision
request, the Commissioner may have regard to --
(a) information provided by the person that made the
request; and
(b) any other matter the Commissioner considers relevant.
10 (10) If the Commissioner makes a decision on a pre-transaction
decision request in relation to a transaction, and the transaction
is subsequently entered into, the Commissioner is bound by the
decision in respect of the transaction unless --
(a) the transaction, or any circumstance relating to it, differs
15 materially from the transaction or circumstances to
which the request related; or
(b) any information relevant to the transaction, or to any
circumstance relating to it, differs materially from the
information given to the Commissioner in relation to the
20 request; or
(c) the Commissioner considers that there was not a full and
true disclosure to the Commissioner of information in
relation to the request.
262. Application for exemption
25 (1) In this section --
"exemption application" means an application for an
exemption.
(2) An exemption application for a relevant transaction cannot be
made by applying under the Taxation Administration Act for a
30 reassessment for the transaction.
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Certain exemptions for connected entities Chapter 6
s. 263
(3) An exemption application for a relevant transaction must be
made --
(a) within 12 months after the date of the transaction; and
(b) by lodging an application in the approved form.
5 263. Grant of exemption
(1) If, on an exemption application made in accordance with
section 262, it is shown to the satisfaction of the Commissioner
that --
(a) there has been a relevant transaction; or
10 (b) a relevant reconstruction transaction referred to in
section 260(1)(b) will occur,
the Commissioner must exempt the transaction from the duty
that would otherwise be chargeable unless subsection (4)
applies.
15 (2) If an assessment for a relevant transaction was made before it is
exempted, the Commissioner must reassess the transaction.
(3) If an assessment for a relevant transaction was not made before
it is exempted, the Commissioner must --
(a) if the transaction is one referred to in
20 section 260(1)(b) -- issue a certificate of the exemption
to the applicant; or
(b) otherwise -- make an official assessment of the
transaction determining that it is exempt from duty.
(4) An exemption cannot be granted in relation to a relevant
25 transaction if any member of the family has an outstanding tax
liability.
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Chapter 6 Certain exemptions for connected entities
s. 264
264. Commissioner to be notified of certain events after an
exempt relevant transaction
(1) In this section --
"controlling entity", in relation to a relevant consolidation
5 transaction, means the head entity;
"controlling entity", in relation to a relevant reconstruction
transaction, means the member of the transaction group for
the transaction that is a parent entity of the group
immediately before or immediately after the transaction;
10 "major holder" of an entity, means a person that, directly or
indirectly, holds at least 90% of the securities of the entity;
"notifiable event" has the meaning given by subsections (2)
and (3);
"responsible person" means --
15 (a) for a notifiable event that occurs in relation to a
relevant transaction as described in
subsection (2)(a) --
(i) if the controlling entity is a corporation --
each person who is a director of the entity
20 when the winding up begins; or
(ii) if the controlling entity is a unit trust
scheme -- the trustee of the entity when the
winding up begins; or
(iii) if the controlling entity is a unit trust scheme
25 and the trustee of the entity, being a
corporation, is wound up -- each person who
is a director of the trustee when the winding
up begins;
or
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Certain exemptions for connected entities Chapter 6
s. 264
(b) for a notifiable event that occurs in relation to a
relevant transaction as described in
subsection (2)(b) --
(i) the controlling entity or, if the controlling
5 entity is wound up, the major holder (if any)
of the controlling entity when the winding up
begins; and
(ii) the member of the transaction group referred
to in subsection (2)(b);
10 or
(c) for a notifiable event that occurs in relation to a
relevant transaction as described in
subsection (2)(c) -- the entities whose securities
cease to be stapled.
15 (2) Subject to subsection (3), a "notifiable event" occurs in
relation to a relevant transaction if --
(a) the controlling entity is wound up and does not have a
major holder when the winding up begins; or
(b) the controlling entity or, if the controlling entity is
20 wound up and has a major holder when the winding up
begins, the major holder, ceases to directly or
indirectly --
(i) hold more than 50% of the securities of a
member of the transaction group; or
25 (ii) control (either by being able to cast or to control
the casting of) more than 50% of the maximum
number of votes that may be cast at a general
meeting of a member of the transaction group;
or
30 (c) in a case where entities are members of a family because
of section 258(2) -- securities of the first entity
mentioned in section 258(2) cease to be stapled to the
securities of another of the entities.
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Chapter 6 Certain exemptions for connected entities
s. 265
(3) A cessation referred to in subsection (2)(b) is not a "notifiable
event" if it results from --
(a) the winding up of a member of the transaction group,
other than the controlling entity; or
5 (b) a relevant transaction that is the subject of an application
made under section 262 for an exemption; or
(c) an acquisition that is the subject of --
(i) an application made under section 180; or
(ii) a statement lodged under section 200;
10 or
(d) a prescribed event.
(4) If a notifiable event occurs in relation to an exempt relevant
transaction within 3 years after the date of the transaction, the
responsible person for the event must lodge a notice of the event
15 in the approved form within 2 months after the date of the event.
Penalty: a fine of $20 000.
(5) It is a defence to a charge of an offence under subsection (4) to
prove that a notice of the event in the approved form was lodged
before the alleged date of the offence.
20 265. Revoking an exemption
If the Commissioner determines that an exempt relevant
transaction is part of a scheme or arrangement entered into, or
carried out, by a person --
(a) for a purpose of avoiding or reducing duty on a
25 transaction, transfer of licence or acquisition; or
(b) for the sole or dominant purpose of avoiding or reducing
tax other than duty,
the Commissioner may revoke the exemption for the
transaction.
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Certain exemptions for connected entities Chapter 6
s. 266
266. Liability for duty and tax if exemption revoked
(1) On revoking an exemption for a relevant transaction the
Commissioner must make an official assessment for the
transaction.
5 (2) The official assessment must --
(a) determine the amount of duty payable on the relevant
transaction as at the date of the transaction; and
(b) include penalty tax equal to the amount of that duty.
(3) The following persons are jointly and severally liable to pay the
10 duty chargeable on a relevant transaction and the penalty tax --
(a) each member of the transaction group;
(b) each person liable under subsection (4) or (5).
(4) If a corporation liable under subsection (3) is voluntarily wound
up before the duty and penalty tax are paid, each person who
15 was a director of the corporation immediately before it was
wound up is liable to pay the amount unless --
(a) the winding up was a creditors' voluntary winding up as
defined in the Corporations Act section 9; and
(b) no creditor was an associate, as defined in the
20 Corporations Act section 9, of the corporation.
(5) If a unit trust scheme liable under subsection (3) is wound up
before the duty and penalty tax are paid, the following persons
are liable to pay the amount --
(a) the trustee of the scheme;
25 (b) if the trustee of the scheme, being a corporation, is
wound up -- each person who was a director of the
trustee immediately before it was wound up.
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Chapter 7 General anti-avoidance provisions
s. 267
Chapter 7 -- General anti-avoidance provisions
267. Schemes affected by this Chapter
(1) In this Chapter --
"scheme" includes the whole or any part of --
5 (a) a trust, contract, agreement, arrangement,
understanding, promise or undertaking (including all
steps and transactions by which it is carried into
effect) --
(i) whether made or entered into orally or in
10 writing; and
(ii) whether express or implied; and
(iii) whether or not it is, or is intended to be,
enforceable;
and
15 (b) a plan, proposal, action, course of action or course of
conduct.
(2) This Chapter applies in relation to a scheme even if it is a
unilateral scheme.
268. The term "tax avoidance scheme"
20 (1) In this section --
"foreign tax" means a tax, duty or impost imposed under a law
of the Commonwealth, another State, a Territory or a
country other than Australia.
(2) For the purposes of this Chapter a "tax avoidance scheme" is a
25 scheme that a person enters into or carries out --
(a) for the sole or dominant purpose of enabling --
(i) an elimination or reduction in the liability of a
person for duty; or
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General anti-avoidance provisions Chapter 7
s. 269
(ii) a postponement in the liability of a person for
duty;
or
(b) when any purpose relating to the elimination, reduction
5 or postponement in the liability of a person for foreign
tax is disregarded, for the sole or dominant purpose of
enabling --
(i) an elimination or reduction in the liability of a
person for duty; or
10 (ii) a postponement in the liability of a person for
duty.
(3) It does not matter --
(a) whether the scheme is entered into or carried out in or
outside Western Australia or partly in Western Australia
15 and partly outside Western Australia; or
(b) whether a person that enters into or carries out the
scheme is a person that is liable to pay duty.
269. Tax avoidance scheme -- pre-determination of section 270
decision
20 (1) In this section --
"pre-section 270 decision request" means a request made
under subsection (2);
"section 270 decision" means a decision of the Commissioner
under section 270 that --
25 (a) a person has entered into or carried out a tax
avoidance scheme that is of a blatant, artificial or
contrived nature; and
(b) the scheme is to be disregarded.
(2) A person proposing to enter into or carry out a scheme which
30 will relate to a transaction or acquisition or a series of
transactions or acquisitions may ask the Commissioner to
decide whether the Commissioner would make a section 270
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Chapter 7 General anti-avoidance provisions
s. 269
decision in relation to the scheme if it were entered into or
carried out by that person.
(3) A pre-section 270 decision request must be made in the
approved form and must specify each transaction and
5 acquisition to which the scheme in respect of which the request
is made will relate.
(4) The Commissioner may, as often as the Commissioner thinks
fit, ask a person that has made a pre-section 270 decision
request for --
10 (a) any information the Commissioner needs to be fully
informed in relation to each transaction and acquisition
to which the scheme in respect of which the request is
made will relate; or
(b) any other information the Commissioner needs to make
15 the decision requested.
(5) The Commissioner may refuse a pre-section 270 decision
request if --
(a) the scheme to which the request relates has been entered
into or carried out; or
20 (b) the Commissioner has already made a decision on a
pre-section 270 decision request, or a section 270
decision, in relation to the same or a similar scheme or a
scheme relating to the same or similar transactions or
acquisitions; or
25 (c) the Commissioner has already refused a pre-section 270
decision request under this section made by the same
person in relation to the same or a similar scheme or a
scheme relating to the same or similar transactions or
acquisitions; or
30 (d) a request made by the Commissioner under
subsection (4) is not satisfied.
(6) If the Commissioner is given the information needed to make
the decision requested in a pre-section 270 decision request, the
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General anti-avoidance provisions Chapter 7
s. 270
Commissioner must make the decision and give written notice
of it to the person that made the request.
(7) In making a determination requested in a pre-section 270
decision request the Commissioner may have regard to --
5 (a) information provided by the person that made the
request; and
(b) any other matter the Commissioner considers relevant.
(8) If the Commissioner decides on a pre-section 270 decision
request that the Commissioner would not make a section 270
10 decision in relation to the scheme set out in the request, and the
scheme is subsequently entered into or carried out, the
Commissioner must not make a section 270 decision in relation
to the scheme unless --
(a) the scheme that is entered into or carried out, or any
15 circumstance relating to it, differs materially from the
scheme or circumstances to which the request related; or
(b) any information relevant to the scheme that is entered
into or carried out, or to any circumstance relating to it,
differs materially from the information given to the
20 Commissioner in relation to the request; or
(c) the Commissioner considers that there was not a full and
true disclosure to the Commissioner of information in
relation to the request.
270. Decision of Commissioner about tax avoidance scheme
25 (1) If the Commissioner decides that a person has entered into or
carried out a tax avoidance scheme that is of a blatant, artificial
or contrived nature, the Commissioner may disregard the
scheme.
(2) If a tax avoidance scheme is disregarded under subsection (1),
30 the Commissioner must --
(a) determine the duty which would have been payable, or
could reasonably have been expected to be payable, by
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Chapter 7 General anti-avoidance provisions
s. 271
any person that entered into or carried out the scheme,
or any other person, but for the scheme; and
(b) give effect to that determination by making --
(i) an official assessment under the Taxation
5 Administration Act section 15; and
(ii) any reassessment the Commissioner considers
necessary.
(3) The Commissioner must have regard to the following matters
when making a decision under subsection (1) --
10 (a) the way in which the scheme was entered into or carried
out;
(b) the form and substance of the scheme, including --
(i) the legal rights and obligations involved in the
scheme; and
15 (ii) the economic and commercial substance of the
scheme;
(c) when the scheme was entered into and the length of the
period during which the scheme was, or is to be, carried
out;
20 (d) any change to a person's financial position, or any other
consequence, that has resulted, will result or may
reasonably be expected to result from the scheme having
been entered into or carried out;
(e) the nature of the connection, whether of a business,
25 family or other nature, between the person that has
entered into or carried out the scheme and any person
mentioned in paragraph (d);
(f) the circumstances surrounding the scheme.
271. Statement in relation to determination
30 The assessment notice issued under the Taxation Administration
Act section 23 in respect of a determination made under
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General anti-avoidance provisions Chapter 7
s. 271
section 270(2)(a) must contain or be accompanied by a
statement of --
(a) the Commissioner's reasons for the relevant decision
under section 270(1); and
5 (b) the grounds on which the determination under
section 270(2)(a) is made.
page 201
Duties Bill 2007
Chapter 8 Other general provisions
Part 1 Duty endorsement
s. 272
Chapter 8 -- Other general provisions
Part 1 -- Duty endorsement
272. The term "duty endorsed"
(1) A dutiable transaction is "duty endorsed" if a transaction
5 record for it is duty endorsed.
(2) A transaction record for a dutiable transaction is "duty
endorsed" if it is --
(a) endorsed by the Commissioner under section 273(2), (3)
or (4) or 274(2); or
10 (b) endorsed or certified under a special tax return
arrangement to indicate that an amount of duty has been
paid or is payable or that duty is not chargeable.
(3) A duplicate of a transaction record for a dutiable transaction is
"duty endorsed" if it is endorsed under section 273(5).
15 (4) If the Commissioner has established procedures for the
electronic lodgment and recording of data on dutiable
transactions, a reference in this Act to a transaction record being
duty endorsed includes a reference to it being certified by the
Commissioner in accordance with those procedures to indicate
20 that an amount of duty is paid or payable or that duty is not
chargeable.
273. Endorsement of duty or exemption from duty
(1) In this section --
"duty" means transfer duty;
25 "required duty" means --
(a) the duty chargeable; and
(b) anything relating to the duty that constitutes tax under
the Taxation Administration Act section 62; and
(c) any penalty tax relating to the dutiable transaction or
30 the duty.
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Other general provisions Chapter 8
Duty endorsement Part 1
s. 273
(2) If a transaction record for a dutiable transaction is lodged for
duty endorsement, the Commissioner must --
(a) if duty is chargeable on the dutiable transaction and the
required duty is paid in full -- endorse the transaction
5 record to indicate the amount so paid; or
(b) if duty is not chargeable on the dutiable transaction
because of an exemption under this Act or another
written law -- endorse the transaction record to indicate
that duty is not chargeable because of the exemption; or
10 (c) if duty is not chargeable on the dutiable transaction
other than because of an exemption under this Act or
another written law -- endorse the transaction record to
indicate that duty is not chargeable.
(3) If a transaction record for a dutiable transaction is duty endorsed
15 and another transaction record for the dutiable transaction (the
"new record") is lodged for duty endorsement, the
Commissioner may endorse the new record to indicate the
amount of duty paid or that duty was not chargeable.
(4) If under a duties Act a transaction record for a dutiable
20 transaction is in the Commissioner's possession otherwise than
because of lodgment, the Commissioner may endorse the
transaction record as if it had been lodged for duty endorsement.
(5) A duplicate of a duty endorsed transaction record for a dutiable
transaction may be --
25 (a) endorsed by the Commissioner; or
(b) endorsed or certified under a special tax return
arrangement,
to indicate the amount of duty paid or payable or that duty was
not chargeable.
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Chapter 8 Other general provisions
Part 1 Duty endorsement
s. 274
274. Endorsement of duty that depends on duty paid on another
transaction
(1) This section applies if the amount of duty payable, or whether
duty is chargeable, on a dutiable transaction (the "dependent
5 transaction") depends in any way on the payment of duty
chargeable on another dutiable transaction (the "related
transaction").
(2) The transaction record for the dependent transaction may be --
(a) endorsed by the Commissioner; or
10 (b) endorsed or certified under a special tax return
arrangement,
to indicate the amount of duty paid or payable on the related
transaction.
Note: For example, duty of $20 700 is paid on an agreement for the transfer
15 of dutiable property (the "related transaction"). A transfer of the
dutiable property (the "dependent transaction") is lodged and is in
conformity with the agreement for transfer for the purposes of
section 42(1). The transfer will be endorsed to indicate:
· that no duty is chargeable on the transfer; and
20 · the duty of $20 700 paid on the agreement for transfer.
275. Duty endorsement as evidence
If a transaction record, or a duplicate of a transaction record, for
a dutiable transaction is duty endorsed --
(a) the duty endorsement is evidence of --
25 (i) the making of an assessment in relation to the
dutiable transaction; and
(ii) the amount of transfer duty (if any) paid; and
(iii) any other matter indicated in the duty
endorsement;
30 and
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Other general provisions Chapter 8
Enforcement Part 2
s. 276
(b) except in proceedings under the Taxation
Administration Act Part 4, the duty endorsement is
conclusive evidence that the assessment is correct.
Part 2 -- Enforcement
5 276. Registration or recording of dutiable transactions
(1) A registrar must not register or record --
(a) a dutiable transaction; or
(b) a transaction record for a dutiable transaction,
in a register of legal or beneficial interests in dutiable property
10 unless the transaction is duty endorsed.
Penalty: a fine of $20 000.
(2) In subsection (1) --
"registrar" means a person who has the function of
maintaining a register.
15 (3) If a disposition of a share in a corporate trustee is a dutiable
transaction because of section 67, a person must not register or
record --
(a) the dutiable transaction; or
(b) a transaction record for the dutiable transaction,
20 in the books or records of the corporation unless the dutiable
transaction is duty endorsed.
Penalty: a fine of $20 000.
(4) A contravention of subsection (3) does not invalidate any right
or obligation arising out of the disposition.
25 (5) It is a defence to a charge of an offence under subsection (1)
or (3) to prove that the accused person did not know and could
not reasonably have been expected to have known that --
(a) the transaction was a dutiable transaction; or
(b) the transaction was not duty endorsed.
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Chapter 8 Other general provisions
Part 2 Enforcement
s. 277
277. Functions as to business licences
(1) In this section --
"business licence" has the meaning given in section 79.
(2) If a business licence is the subject of a dutiable transaction, a
5 person must not --
(a) give effect to, receive, accept, approve or recognise the
dutiable transaction under a written law; or
(b) register or record --
(i) the dutiable transaction; or
10 (ii) a transaction record for the dutiable transaction,
in any register of business licences,
unless the dutiable transaction is duty endorsed or an instrument
that effects the dutiable transaction has been lodged for duty
endorsement in accordance with section 23.
15 Penalty: a fine of $20 000.
(3) It is a defence to a charge of an offence under subsection (2) to
prove that the accused person did not know and could not
reasonably have been expected to have known that --
(a) the business licence was the subject of a dutiable
20 transaction; or
(b) the transaction was not duty endorsed; or
(c) an instrument that effects the transaction had not been
lodged for duty endorsement.
278. Lodgment of certain caveats
25 (1) In this section --
"caveat" means a caveat lodged under --
(a) the Transfer of Land Act 1893 Part V; or
(b) the Mining Act 1978;
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Other general provisions Chapter 8
Enforcement Part 2
s. 279
"registrar" means the Registrar of Titles or a mining registrar
as defined in the Mining Act 1978 section 8(1) (as the case
requires).
(2) If a caveat relates to a dutiable transaction, the registrar must
5 reject the caveat unless the registrar is satisfied, on evidence
provided by the person lodging the caveat --
(a) that the transaction has been duty endorsed; or
(b) that a transaction record for the transaction has been
lodged for duty endorsement in accordance with
10 section 23.
Penalty: a fine of $20 000.
(3) It is a defence to a charge of an offence under subsection (2) to
prove that the accused person did not know and could not
reasonably have been expected to have known that the caveat
15 related to a dutiable transaction.
(4) If a caveat relates to a transaction that is not a dutiable
transaction, the registrar may reject the caveat unless when it is
lodged it is accompanied by a statutory declaration --
(a) stating that the transaction is not a dutiable transaction;
20 and
(b) setting out why the transaction is not a dutiable
transaction (including reference to any relevant
provisions of a duties Act).
279. Receipt of transaction records in evidence
25 (1) A transaction record for a dutiable transaction --
(a) is not available for use in law or equity for any purpose;
and
(b) cannot be presented in evidence in a court exercising
civil jurisdiction,
30 unless it is duty endorsed.
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Chapter 8 Other general provisions
Part 2 Enforcement
s. 280
(2) Despite subsection (1), a court may admit in evidence a
transaction record that is not duty endorsed --
(a) where the person that produces the transaction record is
the person liable to pay the duty --
5 (i) if the transaction record has been transmitted to
the Commissioner; or
(ii) if the court is satisfied that the transaction record
will, after its admission, be transmitted to the
Commissioner in accordance with arrangements
10 approved by the court;
or
(b) where the person that produces the transaction record is
not the person liable to pay the duty --
(i) if the name and address of the person so liable
15 and the transaction record have been transmitted
to the Commissioner; or
(ii) if the court is satisfied that the name and address
of the person so liable and the transaction record
will be transmitted to the Commissioner in
20 accordance with arrangements approved by the
court.
(3) A court may admit in evidence a duty endorsed duplicate of a
transaction record for a dutiable transaction.
(4) Despite subsection (1), a court may admit in evidence an
25 unexecuted copy of an instrument that effects a dutiable
transaction or an instrument that evidences a dutiable
transaction if the court is satisfied that a transaction record for
the dutiable transaction is duty endorsed.
280. Obligations relating to unlodged instruments
30 (1) This section applies to an instrument that --
(a) effects a dutiable transaction; and
(b) is not duty endorsed.
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Other general provisions Chapter 8
Miscellaneous Part 3
s. 281
(2) If, after the expiry of the time provided under section 23 within
which an instrument referred to in subsection (1) is to be lodged
for duty endorsement, a person who is not a party to the dutiable
transaction effected by the instrument --
5 (a) has possession or control of the instrument; or
(b) acts under the instrument,
that person must, as soon as practicable, lodge the instrument or
give notice of the instrument to the Commissioner.
Penalty: a fine of $20 000.
10 (3) It is a defence to a charge of an offence under subsection (2) to
prove that the accused person did not know and could not
reasonably have been expected to have known that --
(a) duty is chargeable on the transaction effected by the
instrument; or
15 (b) the instrument was not duty endorsed.
Part 3 -- Miscellaneous
281. Destruction of transaction records and relevant material
(1) If a transaction record is in the Commissioner's possession or
control, the Commissioner may destroy the record if --
20 (a) 6 years have elapsed since the original assessment of the
amount of duty payable on the dutiable transaction was
made; and
(b) any amount that remains unpaid under a duties Act on
the dutiable transaction has been written off under
25 the Taxation Administration Act.
(2) Subsection (1) also applies to relevant material relating to the
dutiable transaction.
282. Correction of errors
The Commissioner may, in a case in which the Commissioner
30 considers that the circumstances so require, permit a clerical
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Chapter 8 Other general provisions
Part 3 Miscellaneous
s. 283
error in an instrument that effects or evidences a dutiable
transaction to be corrected before the transaction is duty
endorsed.
Note: The following are examples of clerical errors in an instrument that
5 effects or evidences a dutiable transaction --
· an accidental misdescription of property;
· an accidental misdescription of a party to the transaction.
283. Amounts expressed in foreign currency
If an amount by reference to which duty has to be calculated is
10 expressed in a currency other than the currency of Australia, the
amount is the amount expressed in Australian currency
according to the buy rate of exchange reported by the Reserve
Bank of Australia and applicable in Australia on --
(a) the day on which liability for duty arose; or
15 (b) if the rate is not obtainable for Australia on that day --
the last earlier day on which the rate was obtainable for
Australia.
284. Application of Corporations Act section 1070A(1)(a) limited
The following matter is declared to be an excluded matter for
20 the purposes of the Corporations Act section 5F in relation to
the Corporations Act section 1070A(1)(a) -- interests in
registered schemes.
285. Regulations
(1) The Governor may make regulations prescribing all matters that
25 a duties Act requires or permits to be prescribed or are
necessary or convenient to be prescribed to give effect to a
duties Act.
(2) Without limiting subsection (1), regulations may be made in
relation to the records to be kept for the purposes of a
30 duties Act.
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Other general provisions Chapter 8
Miscellaneous Part 3
s. 286
(3) Regulations may create offences and provide, in respect of an
offence so created, for the imposition of a fine not exceeding
$5 000.
(4) Regulations may be expressed to apply to an instrument that
5 was executed before the day on which the regulations come into
operation, or to a transaction that took place before that day, if
the application of the regulations to the instrument or
transaction would not adversely affect a person that is or may
become liable to pay duty on the instrument or in relation to the
10 transaction, or adversely affect a party to the transaction.
286. Transitional provisions
Schedule 3 sets out transitional provisions.
page 211
Duties Bill 2007
Schedule 1 When liability for transfer duty on a dutiable transaction arises
and the person liable to pay it
Schedule 1 -- When liability for transfer duty on a
dutiable transaction arises and the person liable to pay it
[s. 19 and 20]
Column 1 Column 2 Column 3 Column 4
Provision of Dutiable When liability Person liable to
section 11 transaction for transfer duty pay transfer duty
arises
s. 11(1)(a) Transfer When the Transferee
property is
transferred
s. 11(1)(b) Agreement for When the Purchaser or
transfer agreement is transferee
made
s. 11(1)(c) Declaration of When the Person making the
trust declaration is declaration
made
s. 11(1)(d)(i) Vesting by When the vesting Person in whom the
statute law takes place property is vested
s. 11(1)(d)(ii) Vesting by court When the order is Person in whom the
order made property is vested
s. 11(1)(e) Foreclosure of When the Mortgagee
mortgage foreclosure order
is made
s. 11(1)(f) Acquisition of The earlier of the Person that
new dutiable following -- acquires the
property (a) when the property
property is
acquired; or
(b) if an
instrument
evidences the
acquisition,
when the
instrument is
executed
page 212
Duties Bill 2007
When liability for transfer duty on a dutiable transaction arises Schedule 1
and the person liable to pay it
Column 1 Column 2 Column 3 Column 4
Provision of Dutiable When liability Person liable to
section 11 transaction for transfer duty pay transfer duty
arises
s. 11(1)(g) Surrender of When the Person to whom the
special dutiable surrender takes interest is
property place surrendered;
or
in the case of a
surrender referred
to in section 18(f),
the person to whom
the mining
tenement is granted
in accordance with
the agreement; or
in the case of a
surrender referred
to in section 18(g),
the person that paid
the consideration
for the surrender
s. 11(1)(h) A trust When the interest Person that is the
acquisition or in the trust is trustee of the
trust surrender acquired or discretionary trust
surrendered
page 213
Duties Bill 2007
Schedule 1 When liability for transfer duty on a dutiable transaction arises
and the person liable to pay it
Column 1 Column 2 Column 3 Column 4
Provision of Dutiable When liability Person liable to
section 11 transaction for transfer duty pay transfer duty
arises
s. 11(1)(i) A partnership The earlier of the Person that
acquisition following -- acquires the
(a) when the partnership interest
partnership
interest is
acquired; or
(b) if the
acquisition is
evidenced by
an instrument,
when the
instrument is
executed
s. 11(1)(j) A farm-in When the Person referred to
agreement agreement is in section 13(1)(b)
made
page 214
Duties Bill 2007
Rates of transfer duty Schedule 2
General rate Division 1
Schedule 2 -- Rates of transfer duty
Division 1 -- General rate
[s. 26 and 184]
Dutiable value General rate of duty
$ 0 -- $80 000 $1.90 per $100.00 or part of $100.00
$80 001 -- $100 000 $1 520 + $2.85 per $100.00 or part of
$100.00 above $80 000
$100 001 -- $250 000 $2 090 + $3.80 per $100.00 or part of
$100.00 above $100 000
$250 001 -- $500 000 $7 790 + $4.75 per $100.00 or part of
$100.00 above $250 000
$500 001 and upwards $19 665 + $5.15 per $100.00 or part of
$100.00 above $500 000
Division 2 -- Concessional rates
5 [Chapter 2 Part 6 Divisions 3 and 4]
Concessional Dutiable value Concessional rate of
transaction duty
s. 143
First home owners
If the property $0 -- $500 000 Nil
includes a home $500 001 -- $600 000 $24.81 per $100.00 or
part of $100.00 above
$500 000
If the property $0 -- $300 000 Nil
does not include $300 001 -- $400 000 $14.91 per $100.00 or
a home part of $100.00 above
$300 000
page 215
Duties Bill 2007
Schedule 2 Rates of transfer duty
Division 3 Nominal duty
Concessional Dutiable value Concessional rate of
transaction duty
s. 147
Residential or $0 -- $100 000 $1.50 per $100.00 or
business property part of $100.00
$100 001 -- $200 000 $1 500 + $4.39 per
$100.00 or part of
$100.00 above
$100 000
Division 3 -- Nominal duty
The amount of nominal duty is $20.00.
page 216
Duties Bill 2007
Transitional provisions Schedule 3
Provisions for Duties Act 2007 Division 1
cl. 1
Schedule 3 -- Transitional provisions
[s. 286]
Division 1 -- Provisions for Duties Act 2007
Subdivision 1 -- Preliminary
5 1. Terms used in this Division
(1) In this Division --
"relevant acquisition" has the meaning given in sections 163
and 164.
(2) A reference in this Division to the time when a transaction takes or
10 took place is a reference to the time that --
(a) is applicable under section 19(1); or
(b) would have been applicable under section 19(1) if the
transaction had been chargeable with transfer duty.
Subdivision 2 -- Provisions for Chapter 2
15 2. When Chapter 2 starts to apply
Subject to this Subdivision, Chapter 2 applies in relation to the
imposition of transfer duty on a transaction only if that transaction
takes place on or after 1 July 2008.
3. No double duty
20 Without limiting Chapter 2 Part 4 Division 6, transfer duty is not
chargeable on a dutiable transaction for which there is a transaction
record chargeable with duty under the Stamp Act 1921.
4. Alteration of consideration (section 31)
Section 31(1) and (3) do not apply if the liability to duty is under the
25 Stamp Act 1921.
page 217
Duties Bill 2007
Schedule 3 Transitional provisions
Division 1 Provisions for Duties Act 2007
cl. 5
5. Aggregation (section 37)
(1) Two or more transactions are to be aggregated and treated as a single
dutiable transaction under section 37 as long as the last of the
transactions takes place on or after 1 July 2008.
5 (2) For the purposes of section 37(6)(a), the dutiable value of a
transaction that took place before 1 July 2008 is --
(a) the unencumbered value under the Stamp Act 1921 of the
property the subject of the transaction; or
(b) the consideration for the transaction,
10 whichever is greater.
(3) If --
(a) a previous dutiable transaction referred to in section 37(7)
took place before 1 July 2008; and
(b) duty under the Stamp Act 1921 ("stamp duty") was paid on
15 an instrument effecting or evidencing the transaction,
a reference in section 37(7) to duty paid on the transaction is a
reference to that stamp duty.
6. Exchanges (section 40)
Without limiting clause 2, if any of the dutiable transactions referred
20 to in section 40 took place before 1 July 2008, transfer duty is not
chargeable on that transaction.
7. Exempt bodies (section 92)
Any body declared to be an exempt body under the Stamp Act 1921
section 119 is taken to have been declared to be an exempt body
25 under section 92(1).
8. Family farm transactions (sections 104 and 105)
(1) Without limiting clause 25(1)(d), a reference to an exempt family
farm transaction in section 104(a) or 105(1) or (4) includes a
reference to a farming exemption as defined in the Stamp Act 1921
30 section 75HA(1).
page 218
Duties Bill 2007
Transitional provisions Schedule 3
Provisions for Duties Act 2007 Division 1
cl. 9
(2) The reference in section 105(1)(d) to an event already duty endorsed
under section 105 includes a reference to a taxable event referred to in
the Stamp Act 1921 section 75HA(2) if --
(a) a statement has been lodged under the Stamp Act 1921
5 section 75HA(3) in respect of that event; and
(b) duty under the Stamp Act 1921 has been paid in respect of
that statement.
9. Matrimonial and de facto relationship instruments
(sections 129, 130)
10 (1) Despite clause 25(1)(b), section 132 does not apply to an instrument
in respect of which duty under the Stamp Act 1921 has been paid
unless the liability to duty arose on or after 28 November 2007.
(2) In a case mentioned in subclause (1), section 132 applies even if the
day on which the instrument became --
15 (a) a matrimonial instrument as defined in section 129; or
(b) a de facto relationship instrument as defined in section 130,
was before 1 July 2008.
10. First home owners (Part 6 Division 3)
(1) In determining the meaning of the term "further FHOG concessional
20 transaction" for the purposes of Chapter 2 Part 6 Division 3, the
transaction referred to in section 142(2) as the first FHOG
concessional transaction can be a transaction evidenced by an
instrument (the "earlier instrument") that was --
(a) executed before 1 July 2008 (but not before 1 July 2004); and
25 (b) chargeable with duty under the Stamp Act 1921
section 75AG.
(2) If the first FHOG concessional transaction is a transaction referred to
in subclause (1), the rate and thresholds referred to in section 143(2)
are those that applied in relation to the earlier instrument under the
30 Stamp Act 1921 section 75AG.
page 219
Duties Bill 2007
Schedule 3 Transitional provisions
Division 1 Provisions for Duties Act 2007
cl. 11
Subdivision 3 -- Provisions for Chapter 3
11. When Chapter 3 starts to apply
Chapter 3 applies in relation to the imposition of landholder duty in
respect of a relevant acquisition only if that acquisition occurs on or
5 after 1 July 2008.
12. Acqui