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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Revenue Laws Amendment Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- The Land Tax Act 2002
amended
3. The Act amended 3
4. Section 5 amended 3
Part 3 -- Stamp Act 1921 amended and
transitional provision
Division 1 -- Preliminary
5. The Act amended 4
Division 2 -- Conveyances
6. Second Schedule amended -- rate changes 4
7. Second Schedule amended -- first home owner rates 5
8. Transitional provision 6
Division 3 -- Land holding companies and
corporations
9. Section 4 amended 7
10. Section 33 amended 8
11. Section 63AB amended 8
12. Section 73DA amended 8
13. Section 75JA amended 9
14. Section 75JB amended 9
15. Section 75JF amended 9
16. Part IIIBA Division 1 heading amended 9
294--2 page i
Revenue Laws Amendment Bill 2004
Contents
17. Section 76 amended 10
18. Section 76A amended 11
19. Section 76AA amended 12
20. Section 76AB amended 12
21. Section 76AH amended 13
22. Section 76AI amended 13
23. Section 76AJ amended 13
24. Section 76AL amended 14
25. Section 76AO amended 15
26. Section 76AP amended 16
27. Section 76AQ amended 16
28. Section 76AS amended 16
29. Part IIIBA Divisions 3a and 3b inserted 18
30. Section 76AU amended 57
31. Part IIIBA Division 5 inserted 58
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Revenue Laws Amendment Bill 2004
A Bill for
An Act to amend --
· the Land Tax Act 2002;
· the Stamp Act 1921,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Revenue Laws Amendment Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Revenue Laws Amendment Act
2004.
5 2. Commencement
(1) Subject to this section, this Act comes into operation on the day
on which it receives the Royal Assent.
(2) If this Act receives the Royal Assent before or on 1 July 2004,
Parts 2 and 3 come into operation on 1 July 2004.
10 (3) If this Act receives the Royal Assent after 1 July 2004, Parts 2
and 3 are deemed to have come into operation on 1 July 2004.
page 2
Revenue Laws Amendment Bill 2004
The Land Tax Act 2002 amended Part 2
s. 3
Part 2 -- The Land Tax Act 2002 amended
3. The Act amended
The amendments in this Part are to the Land Tax Act 2002*.
[* Act No. 51 of 2002.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 208.]
4. Section 5 amended
Section 5 is amended as follows --
(a) by deleting from the heading to Table 2 "and subsequent
10 financial years";
(b) by inserting after Table 2 the following table --
Table 3: Land tax rates for 2004/05 and subsequent
financial years
Unimproved value of
the land
Exceeding Not Rate of land tax
($) exceeding
($)
0 100 000 Nil
100 000 220 000 $150.00 + 0.15 cent for each $1
in excess of $100 000
220 000 570 000 $330.00 + 0.45 cent for each $1
in excess of $220 000
570 000 2 000 000 $1 905.00 + 1.76 cents for each
$1 in excess of $570 000
2 000 000 5 000 000 $27 073.00 + 2.30 cents for each
$1 in excess of $2 000 000
5 000 000 $96 073.00 + 2.50 cents for each
$1 in excess of $5 000 000
page 3
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 1 Preliminary
s. 5
Part 3 -- Stamp Act 1921 amended and transitional
provision
Division 1 -- Preliminary
5. The Act amended
5 The amendments in this Part are to the Stamp Act 1921*.
[* Reprint 14 as at 12 Sep 2003.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 365 and
Act No. 56 of 2003 .]
10 Division 2 -- Conveyances
6. Second Schedule amended -- rate changes
(1) The amendments in this section are to the Second Schedule.
(2) Item 4(1)(a) is amended by deleting "$2.30" and inserting
instead --
15 " $2.20 ".
(3) Item 4(1)(b) is amended by deleting "$1 840 and $3.45" and
inserting instead --
" $1 760 and $3.30 ".
(4) Item 4(1)(c) is amended by deleting "$2 530 and $4.75" and
20 inserting instead --
" $2 420 and $4.50 ".
(5) Item 4(1)(d) is amended by deleting "$9 655 and $5.90" and
inserting instead --
" $9 170 and $5.60 ".
page 4
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Conveyances Division 2
s. 7
(6) Item 4(1)(e) is amended by deleting "$24 405 and $6.30" and
inserting instead --
" $23 170 and $6.00 ".
(7) Item 4(5)(b) is amended by deleting "$5.50" and inserting
5 instead --
" $5.42 ".
7. Second Schedule amended -- first home owner rates
After the Second Schedule Item 4(1) the following item is
inserted --
Item Nature of instrument Duty payable Person liable
to pay duty
(2) Transfer under the Transfer of the transferee
Land Act 1893 of land that as defined in
includes a home within the section 75AG
meaning of section 75AG,
where duty on the instrument of
transfer becomes chargeable
under that section
Where the amount or value of
the consideration --
(a) does not exceed $220 000 nil
(b) exceeds $220 000 but does $14.96 for every
not exceed $300 000 ......... $100 and any
fractional part of
$100 by which the
amount or value of
the consideration
exceeds $220 000
page 5
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 2 Conveyances
s. 8
Item Nature of instrument Duty payable Person liable
to pay duty
(3) Transfer under the Transfer of the transferee
Land Act 1893 of vacant land, as defined in
where duty on the instrument of section 75AG
transfer becomes chargeable
under section 75AG
Where the amount or value of
the consideration --
(a) does not exceed $100 000 nil
(b) exceeds $100 000 but does $9.34 for every
not exceed $150 000 $100 and for any
fractional part of
$100 by which the
amount or value of
the consideration
exceeds $100 000
8. Transitional provision
Despite the amendments made by this Division, the Stamp
Act 1921 as in force immediately before the commencement of
this Division applies to and in relation to --
5 (a) an instrument that was first executed before 1 July 2004;
(b) an instrument of conveyance or transfer that replaces
another instrument for the conveyance or transfer of the
same property where the replaced instrument was first
executed before 1 July 2004;
10 (c) an instrument of conveyance or transfer of property
where --
(i) the person to whom the property is conveyed or
transferred (the transferee) had an option to purchase
the property, or the person who conveys or transfers
15 the property had an option to require the transferee to
purchase the property; and
page 6
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Land holding companies and corporations Division 3
s. 9
(ii) in either case, the option was granted on or
after 6 May 2004 but before 1 July 2004;
and
(d) an instrument of conveyance or transfer where --
5 (i) the conveyance or transfer of property is made in
accordance with an arrangement made on or after
6 May 2004; and
(ii) the sole or principal purpose of the arrangement was
to defer the conveyance or transfer of the property
10 until 1 July 2004 or later so that the rates of duty
applicable on or after 1 July 2004 would apply to the
instrument.
Division 3 -- Land holding companies and corporations
9. Section 4 amended
15 Section 4(1) is amended as follows:
(a) in the definition of "dutiable statement" by inserting
before "77A" --
" 76AT, 76ATG, ";
(b) in the definition of "Part IIIBA statement" by deleting
20 "or" after paragraph (a) and inserting after
paragraph (b) --
"
(c) a section 76AT statement; or
(d) a section 76ATG statement;
25 ";
(c) by inserting in the appropriate alphabetical position the
following definitions --
"
"section 76AT statement" means a dutiable statement
30 lodged under section 76AT in relation to which the
Commissioner has not made a determination under
section 76AT(12);
page 7
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 3 Land holding companies and corporations
s. 10
"section 76ATG statement" means a dutiable
statement lodged under section 76ATG in relation
to which the Commissioner has not made a
determination under section 76ATG(11);
5 ".
10. Section 33 amended
Section 33(3)(b) is amended as follows --
(a) after subparagraph (iii) by deleting "or" and inserting --
"
10 (iiia) in the case of a relevant acquisition to
which Division 3b of Part IIIBA
applies -- the person who acquired the
controlling interest or additional
interest; or
15 ";
(b) in subparagraph (iv) by deleting "or (iii)" and inserting
instead --
" (iii) or (iiia) ".
11. Section 63AB amended
20 Section 63AB(3)(a)(i) is amended as follows:
(a) by inserting after "76AI" --
" or 76ATB ";
(b) by inserting after "76AP" --
" or 76ATI ".
25 12. Section 73DA amended
Section 73DA(3)(a) is amended as follows:
(a) by inserting after "2" --
" or 3a ";
page 8
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Land holding companies and corporations Division 3
s. 13
(b) by inserting after "3" --
" or 3b ".
13. Section 75JA amended
Section 75JA(2) is amended by inserting after "acquisition
5 under" --
" Division 2 or 3 of ".
14. Section 75JB amended
Section 75JB(3)(b) is amended by deleting "or 76AO." and
inserting instead --
10 " , 76AO, 76ATA or 76ATH. ".
15. Section 75JF amended
Section 75JF(d) is amended as follows:
(a) in subparagraph (i) by inserting after "statement" --
" or section 76AT statement ";
15 (b) in subparagraph (ii) by inserting after "statement" in
both places where it occurs --
" or section 76ATG statement ".
16. Part IIIBA Division 1 heading amended
The heading to Part IIIBA Division 1 is amended by deleting
20 "Divisions 2 and 3" and inserting instead --
" this Part ".
page 9
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 3 Land holding companies and corporations
s. 17
17. Section 76 amended
(1) Section 76(1a) is amended by deleting "76AR." and inserting
instead --
"
5 76AR or the acquisition of a controlling interest or an
additional interest within the meaning of
section 76ATD or 76ATK.
".
(2) After section 76(1a) the following subsection is inserted --
10 "
(1b) In the definition of "acquire" in subsection (1) a
reference to the increase of an interest includes a
reference to an increase that occurs by the cancellation
of any shares or the variation of the rights of any
15 shares.
".
(3) Section 76(2) is amended as follows:
(a) by deleting "and 76AP(3)(c)" and inserting instead --
" , 76AP(3)(c), 76ATB(4)(d) and 76ATI(4)(d) ";
20 (b) in paragraph (a)(ii) by inserting after "(3)" --
" (a) to (g) ".
(4) Section 76(3) is amended as follows:
(a) after paragraph (f) by deleting "and";
(b) after paragraph (g) by deleting the full stop and
25 inserting --
"
;
(h) persons who acquire interests in a corporation
by virtue of acquisitions that arise from those
30 persons acting in concert with each other.
".
page 10
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Land holding companies and corporations Division 3
s. 18
(5) Section 76(7) is amended by deleting "and 76AR(4)" and
inserting instead --
" , 76AR(4), 76ATB(6), 76ATI(6) and 76ATK(4) ".
18. Section 76A amended
5 (1) Section 76A(1) is amended by deleting "or a further interest"
and inserting instead --
"
, a further interest, a controlling interest or an
additional interest
10 ".
(2) Section 76A(2)(b) and (c) are amended by deleting "or
section 76AN" and inserting instead --
"
, section 76AN statement, section 76AT statement or
15 section 76ATG
".
(3) Section 76A(3) is amended as follows:
(a) by inserting after the definition of "beneficiary" --
"
20 "interest", "controlling interest" and "additional
interest" --
(a) in relation to a section 76AT statement, have
the meanings given by section 76ATD; and
(b) in relation to a section 76ATG statement,
25 have the meanings given by section 76ATK;
";
(b) in the definition of "relevant acquisition" by deleting "or
76AQ" and inserting instead --
" , 76AQ, 76ATC or 76ATJ ".
page 11
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 3 Land holding companies and corporations
s. 19
19. Section 76AA amended
Section 76AA is amended as follows:
(a) by inserting after "76AN" --
" or 76ATG ";
5 (b) in paragraph (a) by inserting after "3" --
" or 3b ";
(c) in paragraph (c) by inserting after "76AR(1)" --
" or 76ATK(1) ".
20. Section 76AB amended
10 (1) Section 76AB(1), (3)(b), (5)(b), (6) and (7) are amended by
deleting "or 76AN" and inserting instead --
" , 76AN, 76AT or 76ATG ".
(2) Section 76AB(2) is repealed and the following subsection is
inserted instead --
15 "
(2) A request under subsection (1) must be made in an
approved form and must include --
(a) the information that would be required under --
(i) section 76AG(4)(a) to (f);
20 (ii) section 76AN(3)(a) to (f);
(iii) section 76AT(8)(a) to (h), (9)(a) to (c)
or (10)(a) to (c); or
(iv) section 76ATG(7)(a) to (h), (8)(a) to (c)
or (9)(a) to (c),
25 if the request were a dutiable statement; and
(b) any prescribed information.
".
page 12
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Land holding companies and corporations Division 3
s. 21
21. Section 76AH amended
(1) Section 76AH(1) is amended as follows:
(a) in paragraph (a) by inserting after "76AJ(1)(a)" --
" (i) ";
5 (b) after paragraph (a) by deleting "and" and inserting --
"
(aa) where the section 76AG statement relates
to a relevant acquisition within
section 76AJ(1)(a)(ii), the duty --
10 (i) shall be calculated on the dutiable value
determined under section 76AL(2a)(a);
but
(ii) shall be reduced by the amount of duty
determined on the dutiable value
15 calculated under section 76AL(2a)(b);
and
".
(2) Section 76AH(2) is amended by inserting after "where
paragraph" --
20 " (aa) or ".
22. Section 76AI amended
Section 76AI(2a)(c) is amended by deleting "(5)(b)" and
inserting instead --
" (1) ".
25 23. Section 76AJ amended
(1) After section 76AJ(2a) the following subsection is inserted --
"
(2b) Subject to subsection (2a), a previous acquisition of an
interest in the WA company is to be taken into
30 consideration under subsection (1)(a)(ii) even if, at the
page 13
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 3 Land holding companies and corporations
s. 24
time of that acquisition, this Division did not apply to
the WA company because of section 76AI(1)(a)
and (b).
".
5 (2) Section 76AJ(3) is amended by inserting after "(1)(a)(ii)" --
" and section 76AL(2a)(b) ".
24. Section 76AL amended
(1) After section 76AL(1) the following subsection is inserted --
"
10 (1a) The method of determining the dutiable value depends
on the nature of a relevant acquisition by which a
person acquires an interest in a WA company.
".
(2) Section 76AL(2) is amended by deleting "by a relevant
15 acquisition, a person acquires a majority interest in a WA
company" and inserting instead --
" the relevant acquisition is within section 76AJ(1)(a)(i) ".
(3) After section 76AL(2) the following subsection is inserted --
"
20 (2a) Where the relevant acquisition is within
section 76AJ(1)(a)(ii) the dutiable value --
(a) for the purposes of section 76AH(1)(aa)(i), is
the same proportion of the value of the land and
chattels situated in Western Australia to which
25 the WA company is entitled, as provided by
subsection (4), at the time of the acquisition, as
the proportion of the property of the WA
company to which the person, or the person and
a related person, would be entitled, as provided
30 in subsection (5), after the acquisition of the
majority interest;
page 14
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Land holding companies and corporations Division 3
s. 25
(b) for the purposes of section 76AH(1)(aa)(ii), is
the same proportion of the value of the land and
chattels situated in Western Australia to which
the WA company is entitled, as provided by
5 subsection (4), at the time of the acquisition, as
the proportion of the property of the WA
company to which the person, or the person and
a related person, would have been entitled, as
provided in subsection (5), before the relevant
10 day as defined in section 76AJ(4).
".
(4) Section 76AL(4) and (5) are amended by inserting after "(2)" --
" , (2a) ".
25. Section 76AO amended
15 (1) Section 76AO(1) is amended as follows:
(a) in paragraph (a) by inserting after "76AQ(1)(a)" --
" (i) ";
(b) after paragraph (a) by deleting "and" and inserting --
"
20 (aa) where the section 76AN statement relates
to a relevant acquisition within
section 76AQ(1)(a)(ii), the duty --
(i) shall be calculated on the dutiable value
determined under section 76AS(2a)(a);
25 but
(ii) shall be reduced by the amount of duty
determined on the dutiable value
calculated under section 76AS(2a)(b);
and
30 ".
page 15
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 3 Land holding companies and corporations
s. 26
(2) Section 76AO(2) is amended by inserting after "where
paragraph" --
" (aa) or ".
26. Section 76AP amended
5 Section 76AP(2a)(c) is amended by deleting "(4)(b)" and
inserting instead --
" (1) ".
27. Section 76AQ amended
(1) After section 76AQ(2a) the following subsection is inserted --
10 "
(2b) Subject to subsection (2a), a previous acquisition of an
interest in the corporation is to be taken into
consideration under subsection (1)(a)(ii) even if, at the
time of that acquisition, this Division did not apply to
15 the corporation because of section 76AP(1)(d) and (e).
".
(2) Section 76AQ(3) is amended by inserting after "(1)(a)(ii)" --
" and section 76AS(2a)(b) ".
28. Section 76AS amended
20 (1) After section 76AS(1) the following subsection is inserted --
"
(1a) The method of determining the dutiable value depends
on the nature of a relevant acquisition by which a
person acquires an interest in a corporation.
25 ".
(2) Section 76AS(2) is amended by deleting "by a relevant
acquisition, a person acquires a majority interest in a
corporation" and inserting instead --
" the relevant acquisition is within section 76AQ(1)(a)(i) ".
page 16
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Land holding companies and corporations Division 3
s. 28
(3) After section 76AS(2) the following subsection is inserted --
"
(2a) Where the relevant acquisition is within
section 76AQ(1)(a)(ii) the dutiable value --
5 (a) for the purposes of section 76AO(1)(aa)(i), is
the same proportion of the value of the land and
chattels situated in Western Australia to which
the corporation is entitled, as provided by
subsection (4), at the time of the acquisition, as
10 the proportion of the property of the
corporation to which the person, or the person
and a related person, would be entitled, as
provided in subsection (5), after the acquisition
of the majority interest;
15 (b) for the purposes of section 76AO(1)(aa)(ii), is
the same proportion of the value of the land and
chattels situated in Western Australia to which
the corporation is entitled, as provided by
subsection (4), at the time of the acquisition, as
20 the proportion of the property of the
corporation to which the person, or the person
and a related person, would have been entitled,
as provided in subsection (5), before the
relevant day as defined in section 76AQ(4).
25 ".
(4) Section 76AS(4) and (5) are amended by inserting after "(2)" --
" , (2a) ".
page 17
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 3 Land holding companies and corporations
s. 29
29. Part IIIBA Divisions 3a and 3b inserted
After section 76AS the following Divisions are inserted --
"
Division 3a -- Listed companies taken to be registered
5 in Western Australia
76AT. Preparation of dutiable statement
(1) Where by a relevant acquisition a person acquires a
controlling interest in --
(a) a listed land holder WA company; or
10 (b) a WA company that would be a listed land
holder WA company if the reference to the
value of land in section 76ATB(2)(b) were a
reference to the value of land, goods, wares and
merchandise,
15 the person shall, within 2 months after the acquisition,
lodge a statement with the Commissioner in respect of
that acquisition.
(2) Subject to subsections (4)(d) and (5)(c), where by a
relevant acquisition a person acquires an additional
20 interest in a WA company the person shall, within
2 months after the acquisition, lodge a statement with
the Commissioner in respect of that acquisition.
(3) Within 2 months after a relevant acquisition referred to
in subsection (2) ("acquisition A") the person referred
25 to in subsection (2) may apply to the Commissioner in
an approved form for approval to lodge periodical
statements for the purposes of this section in respect of
periods approved by the Commissioner (each of which
is referred to in this Division as a "relevant period").
page 18
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Land holding companies and corporations Division 3
s. 29
(4) If the Commissioner approves the application --
(a) the Commissioner is to notify the person
accordingly specifying --
(i) the day on which each relevant period
5 ends; and
(ii) any conditions to which the approval is
subject;
(b) the first relevant period is taken to have begun
on the day of acquisition A and a subsequent
10 relevant period begins on the day after the day
on which the immediately preceding relevant
period ends;
(c) the person shall --
(i) within 14 days after the first relevant
15 period ends, lodge a statement with the
Commissioner in respect of acquisition
A and any other relevant acquisitions by
which the person acquired additional
interests in the WA company during that
20 relevant period; and
(ii) within 14 days after each subsequent
relevant period ends, lodge a statement
with the Commissioner in respect of any
relevant acquisitions by which the
25 person acquired additional interests in
the WA company during that relevant
period;
and
(d) subsection (2) does not apply to acquisition A
30 or any other relevant acquisition referred to in
paragraph (c).
page 19
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 3 Land holding companies and corporations
s. 29
(5) If the Commissioner does not approve the
application --
(a) the Commissioner is to notify the person
accordingly giving reasons for the decision;
5 (b) the person shall, within 2 months after the
notification is given, lodge statements with the
Commissioner in respect of acquisition A and
each other relevant acquisition (if any) by
which the person acquired an additional interest
10 in the WA company after acquisition A and
before the notification is given; and
(c) subsection (2) does not apply to acquisition A
or any other relevant acquisition referred to in
paragraph (b).
15 (6) If a requirement under this section arises in
circumstances where a person acquires a controlling
interest or an additional interest by reason of
acquisitions by the person and a related person or
related persons being aggregated, one of such persons
20 shall comply with this section on behalf of all such
persons by including all the acquisitions in a dutiable
statement lodged under this section.
(7) A dutiable statement must be prepared in an approved
form.
25 (8) A dutiable statement under subsection (1) shall include
the following information --
(a) the name and address of the person who has
acquired the controlling interest and of any
related person referred to in subsection (6);
30 (b) the date of the acquisition;
(c) particulars of the interest acquired and all
interests previously acquired by the person or a
related person in the WA company;
page 20
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Land holding companies and corporations Division 3
s. 29
(d) the person's estimate of the unencumbered
value of all land and chattels in Western
Australia to which the WA company is entitled
as at the date of the acquisition;
5 (e) particulars of any chattels, whether situated in
Western Australia or not, to which the WA
company was entitled in the 12 months
preceding the date of the acquisition and
acquired, directly or indirectly, by the person or
10 a related person in that period;
(f) the person's estimate of the unencumbered
value of those chattels;
(g) the person's estimate of the unencumbered
value of the property of the WA company as at
15 the date of the acquisition;
(h) if the dutiable statement is lodged because of
subsection (1)(b), a notation to that effect and
such information relating to the goods, wares
and merchandise referred to in
20 subsection (1)(b), and their ownership and
acquisition, as the approved form requires to be
provided.
(9) A dutiable statement under subsection (2) or (5)(b)
shall include the following information --
25 (a) the name and address of the person who has
acquired the additional interest and of any
related person referred to in subsection (6);
(b) the date of the acquisition;
(c) particulars of the interest acquired and all
30 interests previously acquired by the person or a
related person in the WA company.
page 21
Revenue Laws Amendment Bill 2004
Part 3 Stamp Act 1921 amended and transitional provision
Division 3 Land holding companies and corporations
s. 29
(10) A dutiable statement under subsection (4)(c) in respect
of a relevant period shall include the following
information --
(a) the name and address of the person who
5 acquired the additional interest or additional
interests during the relevant period and of any
related person referred to in subsection (6);
(b) in relation to each additional interest acquired
during the relevant period --
10 (i) the date of the acquisition; and
(ii) particulars of the interest;
(c) particulars of all interests acquired by the
person or a related person in the WA company
before the relevant period.
15 (11) A dutiable statement lodged under this section is taken
to be an instrument evidencing the relevant acquisition
or relevant acquisitions and is chargeable with duty
accordingly.
(12) If, in the case of a dutiable statement lodged because of
20 subsection (1)(b), the Commissioner is satisfied that
the entitlement to, and valuation of, the goods, wares
and merchandise referred to in subsection (1)(b) were
not part of an arrangement or scheme having as its
purpose, or one of its purposes, the defeat of the object
25 of this Division, the Commissioner may determine that
subsection (11) does not apply to the dutiable
statement.
(13) In deciding whether or not to make a determination
under subsection (12) the Commissioner may have
30 regard to --
(a) the source of the goods, wares and merchandise
and the source of funding for their acquisition;
page 22
Revenue Laws Amendment Bill 2004
Stamp Act 1921 amended and transitional provision Part 3
Land holding companies and corporations Division 3
s. 29
(b) their nature and their relevance to any business
carried on by the WA company or any
subsidiary;
(c) the period for which they have been and are
5 likely to remain the property of the WA
company or any subsidiary; and
(d) any other matter that the Commissioner
considers relevant.
(14) A determination made under subsection (12) has effect
10 according to its terms and the Commissioner is to give
notice of it to the person who lodged the dutiable
statement.
(15) If the person who lodged the dutiable statement
requests the Commissioner to give reasons why the
15 Commissioner has not made a determination under
subsection (12), the Commissioner is to give reasons to
the person.
(16) A person who fails to comply with subsection (1), (2),
(4)(c) or (5)(b) commits an offence.
20 Penalty: $20 000.
76ATA. Statement chargeable with duty
(1) A section 76AT statement is chargeable, in accordance
with section 76ATE, with duty at the rate provided for
in item 4(1) of the Second Schedule calculated as
25 follows --
(a) where the section 76AT statement relates to a
relevant acquisition within
section 76ATC(1)(a)(i), the duty shall be
calculated on the dutiable value determined
30 under section 76ATE(3);
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(b) where the section 76AT statement relates to a
relevant acquisition within
section 76ATC(1)(a)(ii), the duty --
(i) shall be calculated on the dutiable value
5 determined under section 76ATE(4)(a);
but
(ii) shall be reduced by the amount of duty
determined on the dutiable value
calculated under section 76ATE(4)(b);
10 (c) unless paragraph (d) applies, where the
section 76AT statement relates to a relevant
acquisition within section 76ATC(1)(b), the
duty --
(i) shall be calculated on the dutiable value
15 determined under section 76ATE(5)(a);
but
(ii) shall be reduced by the amount of duty
determined on the dutiable value
calculated under section 76ATE(5)(b);
20 (d) where approval has been granted under
section 76AT(4), the duty --
(i) shall be calculated on the dutiable value
determined under section 76ATE(6)(a);
but
25 (ii) shall be reduced by the amount of duty
determined on the dutiable value
calculated under section 76ATE(6)(b).
(2) Notwithstanding item 4(1) of the Second Schedule,
where the value of the land and chattels under
30 section 76ATE(7) does not exceed $1 500 000 the duty
chargeable under this section shall be calculated as
follows, and where paragraph (b), (c) or (d) of
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subsection (1) applies shall be so calculated in terms of
subparagraphs (i) and (ii) of that paragraph --
A - $1 000 000
×B
$500 000
where --
5 A is the value of the land and chattels situated in
Western Australia to which the WA company is
entitled as provided in section 76ATE(7); and
B is the duty calculated under item 4(1) of the
Second Schedule on the dutiable value
10 determined under section 76ATE.
(3) Subject to subsection (4), if a section 76AT statement
contains particulars of any chattels as required by
section 76AT(8)(e), then, in addition to the duty
chargeable under subsection (1), the section 76AT
15 statement is chargeable with duty at the rate provided
for in item 4(1) of the Second Schedule calculated on
the unencumbered value of the chattels, but duty shall
not be charged in respect of --
(a) any of the chattels in respect of which duty has
20 been paid under section 31B, 31C or 70 by the
person who made the relevant acquisition to
which the section 76AT statement relates or by
a related person;
(b) any of the chattels in respect of which ad
25 valorem duty has been paid by that person, or a
related person, in another jurisdiction; or
(c) any of the chattels that, in the opinion of the
Commissioner, are usually not situated in
Western Australia.
30 (4) The section 76AT statement is not chargeable with
duty under subsection (3) if the Commissioner is
satisfied that no transaction by means of which the
chattels were transferred from the WA company to the
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person who made the relevant acquisition, or a related
person, was effected for the collateral purpose of
reducing the duty that otherwise would be chargeable
in respect of the relevant acquisition.
5 (5) If --
(a) a section 76AT statement relates to a relevant
acquisition within section 76ATC(1)(a)(ii); and
(b) duty charged under Division 2 or 3 (the
"previous duty") has been paid in respect of a
10 previous acquisition of an interest in the WA
company that is taken into consideration under
section 76ATC(1)(a)(ii),
there shall be deducted from the duty payable on the
section 76AT statement the amount that the previous
15 duty would have been if the previous acquisition had
occurred immediately before the relevant acquisition
occurred.
76ATB. Meaning of "listed land holder WA company"
(1) In this Division a WA company is a "listed land
20 holder WA company" if it is a land holder within the
meaning in subsection (2) and is listed on a recognised
financial market.
(2) A WA company is a land holder for the purposes of
this Division if at the time of an acquisition of a
25 controlling interest --
(a) it is entitled to land situated in Western
Australia and the unencumbered value of the
land is not less than $1 000 000, or it is entitled
to land situated in Western Australia as a
30 co-owner of the freehold or of a lesser estate in
the land and the value of the whole of the
freehold or lesser estate is not less than
$1 000 000; and
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(b) the value of all land to which the WA company
is entitled, whether situated in Western
Australia or elsewhere, is 60% or more of the
value of all property to which it is entitled,
5 other than property directed to be excluded by
subsection (4),
or if the Commissioner determines that paragraphs (a)
and (b) would have applied to the WA company at the
time of the acquisition of the controlling interest but for
10 a transaction, or series of transactions, which in the
Commissioner's opinion had as its purpose, or one of
its purposes, the defeat of the object of this Division.
(3) If the Commissioner makes a determination under
subsection (2) --
15 (a) the Commissioner is to give notice of it to the
person who acquired the controlling interest;
(b) the notice is to contain reasons for the
determination; and
(c) for the purposes of section 76AT(1) the
20 acquisition of the controlling interest is taken to
have occurred when the notice is given.
(4) The following property of a WA company, or of any
subsidiary within the meaning in subsection (6), shall
not be included for the purpose of calculating the value
25 of property under subsection (2)(b) --
(a) cash or money in an account at call;
(b) negotiable instruments, and money on deposit
with any person;
(c) property consisting of rights or interests under a
30 sales contract (including a forward sales
contract) relating to minerals, primary products
or other commodities;
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(d) money lent by the WA company or a subsidiary
to --
(i) any person who in relation to the WA
company is an associated person; or
5 (ii) any person at call or in terms that
require or allow full repayment to the
WA company within 12 months after
the money is lent;
(e) where by virtue of Division 6 of Part 1.2 of the
10 Corporations Act a corporation is a subsidiary
of the WA company, the shareholding of that
WA company in the subsidiary corporation, but
without limiting subsection (6);
(f) in the case of the WA company, property
15 consisting of a share or interest in a trust
referred to in subsection (6);
(g) a licence or patent or other intellectual property
(including knowledge or information that has a
commercial value) relating to any process,
20 technique, method, design or apparatus to --
(i) locate, extract, process, transport or
market minerals; or
(ii) grow, rear, breed, maintain, produce,
harvest, collect, process, transport or
25 market primary products;
(h) stores, stockpiles or holdings of minerals or
primary products (whether processed or
unprocessed) produced by the WA company or
a related person;
30 (i) future tax benefits (whether in the nature of tax
losses, capital losses, foreign losses or foreign
tax credits) under the Income Tax Assessment
Act 1997 or Income Tax Assessment Act 1936
of the Commonwealth or similar benefits under
35 the laws of another jurisdiction;
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(j) any property prescribed for the purposes of this
subsection;
(k) any other property, whether of the same nature
as or a different nature from the foregoing, in
5 respect of which it is not shown to the
Commissioner's satisfaction that a reason for
ownership by the WA company or the
subsidiary within the meaning in subsection (6)
is not for the purpose of defeating the object of
10 this Division.
(5) In forming an opinion for the purposes of
subsection (4)(k) the Commissioner may have regard
to --
(a) the source of the property and the source of
15 funding for its acquisition;
(b) its nature and its relevance to any business
carried on by the WA company or the
subsidiary;
(c) the period for which it has been and is likely to
20 remain the property of the WA company or the
subsidiary; and
(d) any other matter that the Commissioner
considers relevant.
(6) Without limiting the meaning of "entitled", a WA
25 company is deemed to be entitled to land or property to
the extent that a subsidiary is entitled to that land or
property, and for the purposes of this subsection a
subsidiary is --
(a) a subsidiary corporation by virtue of Division 6
30 of Part 1.2 of the Corporations Act, or any other
corporation where the WA company would be
entitled if the corporation were to be wound up,
after the time of the acquisition of the
controlling interest, to participate in a
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distribution of the property of the corporation to
an extent greater than 50% of the value of the
distributable property;
(b) the trustee of any trust where the WA company
5 or a subsidiary corporation of the WA
company, as defined in paragraph (a) --
(i) is entitled to a share or interest in the
trust, whether vested or contingent; or
(ii) in the case of a discretionary trust, may
10 benefit from that trust;
(c) any corporation, where the trustee of a trust in
which the WA company or a subsidiary
corporation --
(i) is entitled to a share or interest, whether
15 vested or contingent; or
(ii) in the case of a discretionary trust, may
benefit from that trust,
would be entitled if the corporation were to be
wound up, after the time of the acquisition of
20 the controlling interest, to participate in a
distribution of the property of the corporation to
an extent greater than 50% of the value of the
distributable property; or
(d) any other corporation or the trustee of any other
25 trust that would by an application of this
subsection be a subsidiary of a corporation that
is a subsidiary of the WA company.
(7) In determining the entitlement of an entity to land for
the purposes of this section or section 76ATE --
30 (a) if the entity has contracted or agreed to acquire
an interest in land, that contract or agreement is
to be regarded as having been completed even
if it has not yet been completed; and
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(b) if the entity has contracted or agreed to dispose
of an interest in land but that contract or
agreement has not yet been completed, that
contract or agreement is to be disregarded.
5 (8) In determining the entitlement of an entity to property
other than land for the purposes of this section --
(a) if the entity has contracted or agreed to dispose
of an interest in such property, that contract or
agreement is to be regarded as having been
10 completed even if it has not yet been
completed; and
(b) if the entity has contracted or agreed to acquire
an interest in such property but that contract or
agreement has not yet been completed, that
15 contract or agreement is to be disregarded.
76ATC. Meaning of "relevant acquisition"
(1) An acquisition is a "relevant acquisition" for the
purposes of this Division --
(a) if by that acquisition a person acquires a
20 controlling interest in a WA company by
acquiring an interest --
(i) that is itself a controlling interest in the
WA company; or
(ii) that is, when taken with each previous
25 acquisition of an interest in the WA
company made by the person, a
controlling interest in the WA company;
or
(b) if by that acquisition a person acquires an
30 additional interest in the WA company.
(2) If subsection (1)(b) applies to an acquisition,
subsection (1)(a)(ii) does not apply to it.
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(3) A previous acquisition of an interest in the WA
company is to be taken into consideration under
subsection (1)(a)(ii) even if, at the time of that
acquisition, the WA company was not a land holder
5 within the meaning in section 76ATB(2) or was not
listed on a recognised financial market.
76ATD. Meaning of "interest", "controlling interest" or
"additional interest"
(1) For the purposes of this Division, a person acquires an
10 "interest" in a WA company if the person acquires, or
the person and any related person acquire, an
entitlement such that the person, or the person and any
related person, would be entitled if the WA company
were to be wound up to participate in a distribution of
15 the property of the WA company.
(2) For the purposes of this Division, a person acquires a
controlling interest in a WA company if the person
acquires, or the person and any related person acquire,
an interest in the WA company such that having
20 acquired that interest the person, or the person and any
related person, would be entitled if the WA company
were to be wound up to participate in a distribution of
the property of the WA company to an extent not less
than 90% of the value of the distributable property and,
25 in section 76ATC(1)(a)(i) and (ii) and subsection (3),
"controlling interest" has a corresponding meaning.
(3) For the purposes of this Division, a person acquires an
"additional interest" in a WA company if --
(a) the person has, or the person and any related
30 person have, a controlling interest in the WA
company;
(b) the acquisition of that controlling interest gave
rise to a liability for duty under this Part; and
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(c) the person acquires, or the person and any
related person acquire, an interest in the WA
company such that having acquired that interest
the person, or the person and any related
5 person, would be entitled if the WA company
were to be wound up to participate further in a
distribution of the property of the WA
company.
76ATE. How dutiable value is determined
10 (1) Where section 76ATA(1) applies, duty is chargeable in
accordance with this section on the basis of the value
free of encumbrances (the "dutiable value") of the
land and chattels situated in Western Australia to
which the WA company is entitled.
15 (2) The method of determining the dutiable value depends
on the nature of a relevant acquisition by which a
person acquires an interest in a WA company.
(3) Where the relevant acquisition is within
section 76ATC(1)(a)(i) the dutiable value is the same
20 proportion of the value of the land and chattels situated
in Western Australia to which the WA company is
entitled, as provided by subsection (7), at the time of
the acquisition, as the proportion of the property of the
WA company to which the person, or the person and
25 any related person, would be entitled, as provided in
subsection (8), after the acquisition.
(4) Where the relevant acquisition is within
section 76ATC(1)(a)(ii) the dutiable value --
(a) for the purposes of section 76ATA(1)(b)(i), is
30 the same proportion of the value of the land and
chattels situated in Western Australia to which
the WA company is entitled, as provided by
subsection (7), at the time of the acquisition, as
the proportion of the property of the WA
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company to which the person, or the person and
a related person, would be entitled, as provided
in subsection (8), after the acquisition of the
controlling interest;
5 (b) for the purposes of section 76ATA(1)(b)(ii), is
the same proportion of the value of the land and
chattels situated in Western Australia to which
the WA company is entitled, as provided by
subsection (7), at the time of the acquisition, as
10 the proportion of the property of the WA
company to which the person, or the person and
a related person, would have been entitled, as
provided in subsection (8), before the day that
is 3 years before the day of the acquisition of
15 the controlling interest.
(5) Unless subsection (6) applies, where the relevant
acquisition is within section 76ATC(1)(b) the dutiable
value --
(a) for the purposes of section 76ATA(1)(c)(i), is
20 the same proportion of the value of the land and
chattels situated in Western Australia to which
the WA company was entitled, as provided by
subsection (7), at the time the controlling
interest was acquired, as the proportion of the
25 property of the WA company to which the
person, or the person and a related person,
would be entitled, as provided in subsection (8),
after the acquisition of the additional interest;
(b) for the purposes of section 76ATA(1)(c)(ii), is
30 the same proportion of the value of the land and
chattels situated in Western Australia to which
the WA company was entitled, as provided by
subsection (7), at the time the controlling
interest was acquired, as the proportion of the
35 property of the WA company to which the
person, or the person and a related person,
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would have been entitled, as provided in
subsection (8), at the time of the immediately
preceding relevant acquisition by that person,
or a related person.
5 (6) Where approval has been granted under
section 76AT(4) the dutiable value --
(a) for the purposes of section 76ATA(1)(d)(i), is
the same proportion of the value of the land and
chattels situated in Western Australia to which
10 the WA company was entitled, as provided by
subsection (7), at the time the controlling
interest was acquired, as the proportion of the
property of the WA company to which the
person, or the person and a related person,
15 would be entitled, as provided in subsection (8),
at the end of the relevant period to which the
section 76AT statement relates;
(b) for the purposes of section 76ATA(1)(d)(ii), is
the same proportion of the value of the land and
20 chattels situated in Western Australia to which
the WA company was entitled, as provided by
subsection (7), at the time the controlling
interest was acquired, as the proportion of the
property of the WA company to which the
25 person, or the person and a related person,
would have been entitled, as provided in
subsection (8), before the beginning of the
relevant period to which the section 76AT
statement relates.
30 (7) For the purposes of subsections (3), (4), (5) and (6), the
unencumbered value of the land and chattels to which a
WA company is entitled at any time is the sum of --
(a) in the case of land and chattels to which the
WA company is entitled without reference to
35 subsection (6) of section 76ATB, the
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unencumbered value of the land and chattels at
that time; and
(b) in the case of land and chattels to which a
subsidiary is entitled as mentioned in that
5 subsection, the amount to which, if the property
of a subsidiary or of all subsidiaries in the chain
of relationships were to be distributed at that
time (in the case of a corporation, on the basis
of a winding up), without having regard to any
10 liabilities of the same, the WA company would
be entitled in respect of the unencumbered
value at that time of land and chattels to which
the subsidiary is, or all subsidiaries are,
entitled.
15 (8) For the purposes of subsections (3), (4), (5) and (6), the
property of a WA company to which a person, or the
person and any related person, would be entitled is the
property to which the person, or the person and any
related person, would be entitled if the WA company
20 were to be wound up after the acquisition.
(9) If the day of the acquisition of the controlling interest
is 30 June 2007 or earlier, the reference in
subsection (4)(b) to the day that is 3 years before the
day of the acquisition of the controlling interest is
25 taken to be a reference to 1 July 2004.
76ATF. Liability for duty
Without limiting section 17(1)(c), where an acquisition
is a relevant acquisition by virtue of a person and any
related person acquiring an interest in a WA company
30 all such persons are jointly and severally liable for the
duty chargeable under this Division on the
section 76AT statement lodged in relation to the
acquisition.
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Division 3b -- Listed corporations incorporated, or
taken to be registered, outside Western Australia, and
certain other companies not within Division 3a
76ATG. Preparation of dutiable statement
5 (1) Where by a relevant acquisition a person acquires a
controlling interest in --
(a) a listed land holder corporation; or
(b) a corporation that would be a listed land holder
corporation if the reference to the value of land
10 in section 76ATI(2)(b) were a reference to the
value of land, goods, wares and merchandise,
the corporation shall, within 2 months after the
acquisition, lodge a statement with the Commissioner
in respect of that acquisition.
15 (2) Subject to subsections (4)(d) and (5)(c), where by a
relevant acquisition a person acquires an additional
interest in a corporation the corporation shall, within
2 months after the acquisition, lodge a statement with
the Commissioner in respect of that acquisition.
20 (3) Within 2 months after a relevant acquisition referred to
in subsection (2) ("acquisition A") the corporation
may apply to the Commissioner in an approved form
for approval to lodge periodical statements for the
purposes of this section in respect of the person
25 referred to in subsection (2) (the "bidder") in respect
of periods approved by the Commissioner (each of
which is referred to in this Division as a "relevant
period").
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(4) If the Commissioner approves the application --
(a)the Commissioner is to notify the corporation
accordingly specifying --
(i) the day on which each relevant period
5 ends; and
(ii) any conditions to which the approval is
subject;
(b) the first relevant period is taken to have begun
on the day of acquisition A and a subsequent
10 relevant period begins on the day after the day
on which the immediately preceding relevant
period ends;
(c) the corporation shall --
(i) within 14 days after the first relevant
15 period ends, lodge a statement with the
Commissioner in respect of
acquisition A and any other relevant
acquisitions by which the bidder
acquired additional interests in the
20 corporation during that relevant period;
and
(ii) within 14 days after each subsequent
relevant period ends, lodge a statement
with the Commissioner in respect of any
25 relevant acquisitions by which the
bidder acquired additional interests in
the corporation during that relevant
period;
and
30 (d) subsection (2) does not apply to acquisition A
or any other relevant acquisition referred to in
paragraph (c).
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(5) If the Commissioner does not approve the
application --
(a) the Commissioner is to notify the corporation
accordingly giving reasons for the decision;
5 (b) the corporation shall, within 2 months after the
notification is given, lodge statements with the
Commissioner in respect of acquisition A and
each other relevant acquisition (if any) by
which the bidder acquired an additional interest
10 in the corporation after acquisition A and
before the notification is given; and
(c) subsection (2) does not apply to acquisition A
or any other relevant acquisition referred to in
paragraph (b).
15 (6) A dutiable statement must be prepared in an approved
form.
(7) A dutiable statement under subsection (1) shall include
the following information --
(a) the name and address of the person who has
20 acquired the controlling interest, and of any
related person if the acquisition is required to
be aggregated with an acquisition by such
person;
(b) the date of the acquisition;
25 (c) particulars of the interest acquired and all
interests previously acquired by the person or a
related person in the corporation;
(d) the corporation's estimate of the unencumbered
value of all land and chattels in Western
30 Australia to which the corporation is entitled as
at the date of the acquisition;
(e) particulars of any chattels, whether situated in
Western Australia or not, to which the
corporation was entitled in the 12 months
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preceding the date of the acquisition and
acquired, directly or indirectly, by the person or
a related person in that period;
(f) the corporation's estimate of the unencumbered
5 value of those chattels;
(g) the corporation's estimate of the unencumbered
value of the property of the corporation as at
the date of the acquisition; and
(h) if the dutiable statement is lodged because of
10 subsection (1)(b), a notation to that effect and
such information relating to the goods, wares
and merchandise referred to in
subsection (1)(b), and their ownership and
acquisition, as the approved form requires to be
15 provided.
(8) A dutiable statement under subsection (2) or (5)(b)
shall include the following information --
(a) the name and address of the person who has
acquired the additional interest, and of any
20 related person if the acquisition is required to
be aggregated with an acquisition by such
person;
(b) the date of the acquisition;
(c) particulars of the interest acquired and all
25 interests previously acquired by the person or a
related person in the corporation.
(9) A dutiable statement under subsection (4)(c) in respect
of a relevant period shall include the following
information --
30 (a) the name and address of the bidder, and of any
related person if any acquisition is required to
be aggregated with an acquisition by such
person;
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(b) in relation to each additional interest acquired
during the relevant period --
(i) the date of the acquisition; and
(ii) particulars of the interest;
5 (c) particulars of all interests acquired by the
bidder or a related person in the corporation
before the relevant period.
(10) A dutiable statement lodged under this section is taken
to be an instrument evidencing the relevant acquisition
10 or relevant acquisitions and is chargeable with duty
accordingly.
(11) If, in the case of a dutiable statement lodged because of
subsection (1)(b), the Commissioner is satisfied that
the entitlement to, and valuation of, the goods, wares
15 and merchandise referred to in subsection (1)(b) were
not part of an arrangement or scheme having as its
purpose, or one of its purposes, the defeat of the object
of this Division, the Commissioner may determine that
subsection (10) does not apply to the dutiable
20 statement.
(12) In deciding whether or not to make a determination
under subsection (11) the Commissioner may have
regard to --
(a) the source of the goods, wares and merchandise
25 and the source of funding for their acquisition;
(b) their nature and their relevance to any business
carried on by the corporation, trustee or related
corporation;
(c) the period for which they have been and are
30 likely to remain the property of the corporation,
trustee or related corporation; and
(d) any other matter that the Commissioner
considers relevant.
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(13) A determination made under subsection (11) has effect
according to its terms and the Commissioner is to give
notice of it to the corporation.
(14) If the corporation requests the Commissioner to give
5 reasons why the Commissioner has not made a
determination under subsection (11), the Commissioner
is to give reasons to the corporation.
(15) A person who fails to comply with subsection (1), (2),
(4)(c) or (5)(b) commits an offence.
10 Penalty: $20 000.
76ATH. Statement chargeable with duty
(1) A section 76ATG statement is chargeable, in
accordance with section 76ATL, with duty at the rate
provided for in item 4(1) of the Second Schedule
15 calculated as follows --
(a) where the section 76ATG statement relates to a
relevant acquisition within
section 76ATJ(1)(a)(i), the duty shall be
calculated on the dutiable value determined
20 under section 76ATL(3);
(b) where the section 76ATG statement relates to a
relevant acquisition within
section 76ATJ(1)(a)(ii), the duty --
(i) shall be calculated on the dutiable value
25 determined under section 76ATL(4)(a);
but
(ii) shall be reduced by the amount of duty
determined on the dutiable value
calculated under section 76ATL(4)(b);
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(c) unless paragraph (d) applies, where the
section 76ATG statement relates to a relevant
acquisition within section 76ATJ(1)(b), the
duty --
5 (i) shall be calculated on the dutiable value
determined under section 76ATL(5)(a);
but
(ii) shall be reduced by the amount of duty
determined on the dutiable value
10 calculated under section 76ATL(5)(b);
(d) where approval has been granted under
section 76ATG(4) the duty --
(i) shall be calculated on the dutiable value
determined under section 76ATL(6)(a);
15 but
(ii) shall be reduced by the amount of duty
determined on the dutiable value
calculated under section 76ATL(6)(b).
(2) Notwithstanding item 4(1) of the Second Schedule,
20 where the value of the land and chattels under
section 76ATL(7) does not exceed $1 500 000 the duty
chargeable under this section shall be calculated as
follows, and where paragraph (b), (c) or (d) of
subsection (1) applies, shall be so calculated in terms
25 of subparagraphs (i) and (ii) of that paragraph --
A - $1 000 000
xB
$500 000
where --
A is the value of the land and chattels situated in
Western Australia to which the corporation is
30 entitled as provided in section 76ATL(7); and
B is the duty calculated under item 4(1) of the
Second Schedule on the dutiable value
determined under section 76ATL.
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(3) Subject to subsection (4), if a section 76ATG statement
contains particulars of any chattels as required by
section 76ATG(7)(e), then, in addition to the duty
chargeable under subsection (1), the section 76ATG
5 statement is chargeable with duty at the rate provided
for in item 4(1) of the Second Schedule calculated on
the unencumbered value of the chattels, but duty shall
not be charged in respect of --
(a) any of the chattels in respect of which duty has
10 been paid under section 31B, 31C or 70 by the
person who made the relevant acquisition to
which the section 76ATG statement relates or
by a related person;
(b) any of the chattels in respect of which ad
15 valorem duty has been paid by that person, or a
related person, in another jurisdiction; or
(c) any of the chattels that, in the opinion of the
Commissioner, are usually not situated in
Western Australia.
20 (4) The section 76ATG statement is not chargeable with
duty under subsection (3) if the Commissioner is
satisfied that no transaction by means of which the
chattels were transferred from the corporation to the
person who made the relevant acquisition, or a related
25 person, was effected for the collateral purpose of
reducing the duty that otherwise would be chargeable
in respect of the relevant acquisition.
(5) If --
(a) a section 76ATG statement relates to a relevant
30 acquisition within section 76ATJ(1)(a)(ii); and
(b) duty charged under Division 2 or 3 (the
"previous duty") has been paid in respect of a
previous acquisition of an interest in the
corporation that is taken into consideration
35 under section 76ATJ(1)(a)(ii),
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there shall be deducted from the duty payable on the
section 76ATG statement the amount that the previous
duty would have been if the previous acquisition had
occurred immediately before the relevant acquisition
5 occurred.
76ATI. Meaning of "listed land holder corporation"
(1) In this Division a corporation is a "listed land holder
corporation" if --
(a) it is --
10 (i) a body corporate that is taken to be
registered outside Western Australia
(for the purposes of the Corporations
Act) or that is otherwise formed or
incorporated outside Western Australia,
15 not being a body corporate that is --
(I) within paragraphs (a) to (d) of
section 66A(4) of the
Corporations Law; or
(II) a subsidiary, within the
20 meaning in section 76ATB(6),
of a WA company to which
Division 3a applies;
or
(ii) a WA company that would be a
25 subsidiary, within the meaning in
section 76ATB(6), of a body corporate
referred to in subparagraph (i) if that
body corporate were a WA company;
and
30 (b) it is a land holder within the meaning in
subsection (2) and is listed on a recognised
financial market.
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(2) A corporation is a land holder for the purposes of this
Division if at the time of an acquisition of a controlling
interest --
(a) it is entitled to land situated in Western
5 Australia and the unencumbered value of the
land is not less than $1 000 000, or it is entitled
to land situated in Western Australia as a
co-owner of the freehold or of a lesser estate in
the land and the value of the whole of the
10 freehold or lesser estate is not less than
$1 000 000; and
(b) the value of all land to which the corporation is
entitled, whether situated in Western Australia
or elsewhere, is 60% or more of the value of all
15 property to which it is entitled, other than
property directed to be excluded by
subsection (4),
or if the Commissioner determines that paragraphs (a)
and (b) would have applied to the corporation at the
20 time of the acquisition of the controlling interest but for
a transaction, or series of transactions, which in the
Commissioner's opinion had as its purpose, or one of
its purposes, the defeat of the object of this Division.
(3) If the Commissioner makes a determination under
25 subsection (2) --
(a) the Commissioner is to give notice of it to the
corporation;
(b) the notice is to contain reasons for the
determination; and
30 (c) for the purposes of section 76ATG(1) the
acquisition of the controlling interest is taken to
have occurred when the notice is given.
(4) The following property of a corporation, or of a trustee
or another corporation referred to in subsection (6),
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shall not be included for the purpose of calculating the
value of property under subsection (2)(b) --
(a) cash or money in an account at call;
(b) negotiable instruments, and money on deposit
5 with any person;
(c) property consisting of rights or interests under a
sales contract (including a forward sales
contract) relating to minerals, primary products
or other commodities;
10 (d) money lent by the corporation or a trustee or a
related corporation referred to in subsection (6)
to --
(i) any person who in relation to the
corporation is an associated person; or
15 (ii) any person at call or in terms that
require or allow full repayment to the
corporation within 12 months after the
money is lent;
(e) in the case of the corporation, property
20 consisting of a shareholding in another
corporation referred to in subsection (6) or of a
share or interest or entitlement under a trust
referred to in that subsection;
(f) a licence or patent or other intellectual property
25 (including knowledge or information that has a
commercial value) relating to any process,
technique, method, design or apparatus to --
(i) locate, extract, process, transport or
market minerals; or
30 (ii) grow, rear, breed, maintain, produce,
harvest, collect, process, transport or
market primary products;
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(g) stores, stockpiles or holdings of minerals or
primary products (whether processed or
unprocessed) produced by the corporation or a
related person;
5 (h) future tax benefits (whether in the nature of tax
losses, capital losses, foreign losses or foreign
tax credits) under the Income Tax Assessment
Act 1997 or Income Tax Assessment Act 1936
of the Commonwealth or similar benefits under
10 the laws of another jurisdiction;
(i) any property prescribed for the purposes of this
subsection; and
(j) any other property, whether of the same nature
as or a different nature from the foregoing, in
15 respect of which it is not shown to the
Commissioner's satisfaction that a reason for
ownership by the corporation or the trustee or
other corporation referred to in subsection (6) is
not for the purpose of defeating the object of
20 this Division.
(5) In forming an opinion for the purposes of
subsection (4)(j) the Commissioner may have regard
to --
(a) the source of the property and the source of
25 funding for its acquisition;
(b) its nature and its relevance to any business
carried on by the corporation or the trustee or
other corporation;
(c) the period for which it has been and is likely to
30 remain the property of the corporation or the
trustee or other corporation; and
(d) any other matter that the Commissioner
considers relevant.
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(6) Without limiting the meaning of "entitled", a
corporation is deemed to be entitled to land or property
where --
(a) the trustee of a trust is entitled to that land or
5 property and the corporation --
(i) has a share or interest in the trust
whether vested or contingent; or
(ii) in the case of a discretionary trust, may
benefit from that trust,
10 but an entitlement under subparagraph (i) is
limited to the extent of that share or interest;
(b) in a case where the entitlement to participate
referred to in section 76ATK(2) relates to the
corporation itself, any of the following
15 corporations is entitled to that land or
property --
(i) a corporation that is a subsidiary (as
defined in the Corporations Act) of the
corporation;
20 (ii) any other corporation where the
corporation would be entitled if the
other corporation were to be wound up,
after the time of the acquisition of the
controlling interest, to participate in a
25 distribution of the property of the other
corporation to an extent greater than
50% of the value of the distributable
property;
or
30 (c) in a case where the entitlement to participate
referred to in section 76ATK(2) relates to a
holding corporation (as defined in
section 76ATK(4)(a)) of the corporation, any
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of the following corporations is entitled to that
land or property --
(i) a corporation that is a subsidiary (as
defined in the Corporations Act) of the
5 holding corporation;
(ii) any other corporation where the holding
corporation would be entitled if the
other corporation were to be wound up,
after the time of the acquisition of the
10 controlling interest, to participate in a
distribution of the property of the other
corporation to an extent greater than
50% of the value of the distributable
property.
15 (7) In determining the entitlement of an entity to land for
the purposes of this section or section 76ATL --
(a) if the entity has contracted or agreed to acquire
an interest in land, that contract or agreement is
to be regarded as having been completed even
20 if it has not yet been completed; and
(b) if the entity has contracted or agreed to dispose
of an interest in land but that contract or
agreement has not yet been completed, that
contract or agreement is to be disregarded.
25 (8) In determining the entitlement of an entity to property
other than land for the purposes of this section --
(a) if the entity has contracted or agreed to dispose
of an interest in such property, that contract or
agreement is to be regarded as having been
30 completed even if it has not yet been
completed; and
(b) if the entity has contracted or agreed to acquire
an interest in such property but that contract or
agreement has not yet been completed, that
35 contract or agreement is to be disregarded.
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76ATJ. Meaning of "relevant acquisition"
(1) An acquisition is a "relevant acquisition" for the
purposes of this Division --
(a) if by that acquisition a person acquires a
5 controlling interest in a corporation by
acquiring an interest --
(i) that is itself a controlling interest in the
corporation; or
(ii) that is, when taken with each previous
10 acquisition of an interest in the
corporation made by the person, a
controlling interest in the corporation;
or
(b) if by that acquisition a person acquires an
15 additional interest in the corporation.
(2) If subsection (1)(b) applies to an acquisition,
subsection (1)(a)(ii) does not apply to it.
(3) A previous acquisition of an interest in the corporation
is to be taken into consideration under
20 subsection (1)(a)(ii) even if, at the time of that
acquisition, the corporation was not a land holder
within the meaning in section 76ATI(2) or was not
listed on a recognised financial market.
76ATK. Meaning of "interest", "controlling interest" or
25 "additional interest"
(1) For the purposes of this Division, a person acquires an
"interest" in a corporation if the person acquires, or
the person and any related person acquire, an
entitlement such that the person, or the person and any
30 related person, would be entitled if the property of the
corporation or the holding corporation were to be
distributed (in the case of a corporation on the basis of
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a winding up) to participate in a distribution of the
property of the corporation or holding corporation.
(2) For the purposes of this Division, a person acquires a
controlling interest in a corporation if the person
5 acquires, or the person and any related person acquire,
an interest in the corporation such that having acquired
that interest the person, or the person and any related
person, would be entitled if the property of the
corporation or a holding corporation were to be
10 distributed (in the case of a corporation on the basis of
a winding up) to participate in a distribution of the
property of the corporation or holding corporation to an
extent not less than 90% of the value of the
distributable property and, in section 76ATJ(1)(a)(i)
15 and (ii) and subsection (3), "controlling interest" has
a corresponding meaning.
(3) For the purposes of this Division, a person acquires an
"additional interest" in a corporation if --
(a) the person has, or the person and any related
20 person have, a controlling interest in the
corporation;
(b) the acquisition of that controlling interest gave
rise to a liability for duty under this Part; and
(c) the person acquires, or the person and any
25 related person acquire, an interest in the
corporation such that having acquired that
interest the person, or the person and any
related person, would be entitled if the property
of the corporation or a holding corporation
30 were to be distributed (in the case of a
corporation on the basis of a winding up) to
participate further in a distribution of the
property of the corporation or holding
corporation.
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(4) In this section --
"holding corporation" in relation to a corporation --
(a) means a corporation --
(i) that is an ultimate holding company as
5 defined in section 9 of the Corporations
Act; or
(ii) of which a body corporate is a
subsidiary by virtue of Division 6 of
Part 1.2 of the Corporations Act;
10 and
(b) is deemed to include --
(i) any trust if the trustee of the trust would
be entitled if the corporation or a
holding corporation (as defined in
15 paragraph (a)) were to be wound up to
participate in a distribution of the
property of the corporation or holding
corporation to an extent greater than
50% of the value of the distributable
20 property;
(ii) a corporation, if in respect of any trust
referred to in subparagraph (i) that
corporation --
(I) is entitled to a share or interest
25 in the trust whether vested or
contingent; or
(II) in the case of a discretionary
trust, may benefit from that
trust;
30 and
(iii) any other corporation, or the trustee of
any other trust that would by an
application of this subsection be a
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holding corporation of a corporation
that is a holding corporation of the
corporation.
76ATL. How dutiable value is determined
5 (1) Where section 76ATH(1) applies, duty is chargeable in
accordance with this section on the basis of the value
free of encumbrances (the "dutiable value") of the
land and chattels situated in Western Australia to
which the corporation is entitled.
10 (2) The method of determining the dutiable value depends
on the nature of a relevant acquisition by which a
person acquires an interest in a corporation.
(3) Where the relevant acquisition is within
section 76ATJ(1)(a)(i) the dutiable value is the same
15 proportion of the value of the land and chattels situated
in Western Australia to which the corporation is
entitled, as provided by subsection (7), at the time of
the acquisition, as the proportion of the property of the
corporation to which the person, or the person and any
20 related person, would be entitled, as provided in
subsection (8), after the acquisition.
(4) Where the relevant acquisition is within
section 76ATJ(1)(a)(ii) the dutiable value --
(a) for the purposes of section 76ATH(1)(b)(i), is
25 the same proportion of the value of the land and
chattels situated in Western Australia to which
the corporation is entitled, as provided by
subsection (7), at the time of the acquisition, as
the proportion of the property of the
30 corporation to which the person, or the person
and a related person, would be entitled, as
provided in subsection (8), after the acquisition
of the controlling interest;
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(b) for the purposes of section 76ATH(1)(b)(ii), is
the same proportion of the value of the land and
chattels situated in Western Australia to which
the corporation is entitled, as provided by
5 subsection (7), at the time of the acquisition, as
the proportion of the property of the
corporation to which the person, or the person
and a related person, would have been entitled,
as provided in subsection (8), before the day
10 that is 3 years before the day of the acquisition
of the controlling interest.
(5) Unless subsection (6) applies, where the relevant
acquisition is within section 76ATJ(1)(b) the dutiable
value --
15 (a) for the purposes of section 76ATH(1)(c)(i), is
the same proportion of the value of the land and
chattels situated in Western Australia to which
the corporation was entitled, as provided by
subsection (7), at the time the controlling
20 interest was acquired, as the proportion of the
property of the corporation to which the person,
or the person and a related person, would be
entitled, as provided in subsection (8), after the
acquisition of the additional interest;
25 (b) for the purposes of section 76ATH(1)(c)(ii), is
the same proportion of the value of the land and
chattels situated in Western Australia to which
the corporation was entitled, as provided by
subsection (7), at the time the controlling
30 interest was acquired, as the proportion of the
property of the corporation to which the person,
or the person and a related person, would have
been entitled, as provided in subsection (8), at
the time of the immediately preceding relevant
35 acquisition by that person, or a related person.
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(6) Where approval has been granted under
section 76ATG(4) the dutiable value --
(a) for the purposes of section 76ATH(1)(d)(i), is
the same proportion of the value of the land and
5 chattels situated in Western Australia to which
the corporation was entitled, as provided by
subsection (7), at the time the controlling
interest was acquired, as the proportion of the
property of the corporation to which the person,
10 or the person and a related person, would be
entitled, as provided in subsection (8), at the
end of the relevant period to which the
section 76ATG statement relates;
(b) for the purposes of section 76ATH(1)(d)(ii), is
15 the same proportion of the value of the land and
chattels situated in Western Australia to which
the corporation was entitled, as provided by
subsection (7), at the time the controlling
interest was acquired, as the proportion of the
20 property of the corporation to which the person,
or the person and a related person, would have
been entitled, as provided in subsection (8),
before the beginning of the relevant period to
which the section 76ATG statement relates.
25 (7) For the purposes of subsections (3), (4), (5) and (6) the
unencumbered value of the land and chattels to which a
corporation is entitled at any time is the sum of --
(a) in the case of land and chattels to which the
corporation is entitled without reference to
30 subsection (6) of section 76ATI, the
unencumbered value of the land and chattels at
that time; and
(b) in the case of land and chattels to which a
trustee or a corporation is entitled as mentioned
35 in that subsection, the amount to which, if the
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s. 30
property of a trust or corporation referred to in
that subsection or all such trusts and
corporations in the chain of relationships were
to be distributed at that time (in the case of a
5 corporation, on the basis of a winding up),
without having regard to any liabilities of the
same, the corporation would be entitled in
respect of the unencumbered value at that time
of land and chattels to which all such trusts and
10 corporations are entitled.
(8) For the purposes of subsections (3), (4), (5) and (6), the
property of a corporation to which a person, or the
person and any related person, would be entitled is the
property to which the person, or the person and any
15 related person, would be entitled if the property of the
corporation and all holding corporations, as defined in
section 76ATK(4), in the chain of relationships were to
be distributed after the acquisition (in the case of a
corporation, on the basis of a winding up), without
20 having regard to any liabilities of the same.
(9) If the day of the acquisition of the controlling interest
is 30 June 2007 or earlier, the reference in
subsection (4)(b) to the day that is 3 years before the
day of the acquisition of the controlling interest is
25 taken to be a reference to 1 July 2004.
".
30. Section 76AU amended
Section 76AU(4) is amended as follows:
(a) in the definition of "deeming-in provision" by deleting
30 "or 76AP(6)(a);" and inserting instead --
"
, 76AP(6)(a), 76ATB(7)(a), 76ATB(8)(a),
76ATI(7)(a) or 76ATI(8)(a);
";
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(b) in the definition of "deeming-out provision" by deleting
"or 76AP(6)(b);" and inserting instead --
"
, 76AP(6)(b), 76ATB(7)(b), 76ATB(8)(b),
5 76ATI(7)(b) or 76ATI(8)(b);
".
31. Part IIIBA Division 5 inserted
After section 76AU the following Division is inserted --
"
10 Division 5 -- Avoidance of duty
76AV. Commissioner may determine that an obligation to
lodge a statement has been avoided
(1) This Division applies to an arrangement or scheme (the
"scheme") if the Commissioner determines that, but
15 for the scheme --
(a) a relevant acquisition within the meaning given
by section 76AJ would have occurred on or
after 1 July 2004 by reason of which a person
would have been required to lodge a
20 section 76AG statement;
(b) a relevant acquisition within the meaning given
by section 76AQ would have occurred on or
after 1 July 2004 by reason of which a
corporation would have been required to lodge
25 a section 76AN statement;
(c) a relevant acquisition within the meaning given
by section 76ATC would have occurred by
reason of which a person would have been
required to lodge a section 76AT statement; or
30 (d) a relevant acquisition within the meaning given
by section 76ATJ would have occurred by
reason of which a corporation would have been
required to lodge a section 76ATG statement.
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(2) The Commissioner can only make a determination
under subsection (1) if the Commissioner is of the
opinion that the scheme is or was one having as its
purpose, or one of its purposes, the defeat of the object
5 of Division 2, 3, 3a or 3b, as the case may be.
(3) For the purposes of subsection (2) the Commissioner
may have regard to --
(a) the way in which the scheme was entered into
and carried out;
10 (b) the form and substance of the scheme,
including the legal rights and obligations
involved in the scheme and the economic and
commercial substance of the scheme;
(c) when the scheme was entered into and the
15 length of the period during which the scheme
was carried out;
(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
20 from the scheme's having been entered into and
carried out;
(e) the circumstances surrounding the scheme; and
(f) any other matter that the Commissioner
considers relevant.
25 76AW. Liability to pay duty that has been avoided
If this Division applies to an arrangement or scheme,
the person or corporation mentioned in paragraph (a),
(b), (c) or (d) of section 76AV(1) is liable to pay the
duty that would have been payable if the statement
30 mentioned in that paragraph had been lodged.
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76AX. Reasons for determination that duty has been
avoided
The assessment notice served under section 23(3) of
the Taxation Administration Act 2003 in respect of the
5 duty under section 76AW is to contain or be
accompanied by the Commissioner's reasons for
making the determination under section 76AV(1)
including the reasons for forming the opinion required
by section 76AV(2).
10 ".
page 60
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