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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Stamp Amendment Bill (No. 3) 2000
CONTENTS
1. Short title 1
2. Commencement 2
3. The Act amended 2
4. Section 76 amended 2
5. Section 76A amended 7
6. Section 76AB amended 8
7. Section 76AG amended 8
8. Section 76AH amended 10
9. Section 76AI amended 11
10. Sections 76AJ and 76AK replaced 15
11. Section 76AL amended 18
12. Section 76AM amended 18
13. Section 76AN amended 19
14. Section 76AO amended 21
15. Section 76AP amended 22
16. Sections 76AQ and 76AR replaced 27
17. Section 76AS amended 31
18. Section 76AT amended 32
19. Part IIIBA Division 4 inserted 32
20. Consequential amendments 36
21. Transitional 37
page i
43--1
Western Australia
LEGISLATIVE ASSEMBLY
Stamp Amendment Bill (No. 3) 2000
A Bill for
An Act to amend the Stamp Act 1921 and for related purposes.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Stamp Amendment Act
(No. 3) 2000.
page 1
Stamp Amendment Bill (No. 3) 2000
s. 2
2. Commencement
This Act is deemed to have come into operation on
10 August 2000.
3. The Act amended
5 The amendments in this Act are to the Stamp Act 1921*.
[* Reprinted as at 22 October 1999.
For subsequent amendments see 1999 Index to Legislation of
Western Australia, Table 1, pp. 236-7, and Acts Nos. 6, 28
and 29 of 2000.]
10 4. Section 76 amended
(1) Section 76(1) is amended as follows:
(a) by deleting the definition of "acquire" and inserting the
following definition instead --
"
15 "acquire", in relation to an interest in a WA company
or a corporation, means to acquire beneficially in
any manner or by any means and includes the
increasing of an existing interest, but does not
include an acquisition --
20 (a) that is chargeable with duty under
section 73E(4);
(b) that occurs solely as the result of --
(i) the appointment of a receiver or trustee
in bankruptcy;
25 (ii) the appointment of a liquidator; or
page 2
Stamp Amendment Bill (No. 3) 2000
s. 4
(iii) the making of a compromise or
arrangement under Part 5.1 of the
Corporations Law --
(I) which has been made with the
5 corporation's creditors or a
class of them;
(II) which has been approved by the
court;
(III) which does not involve a
10 cancellation of shares, or a
variation, abrogation or
alteration of the rights of shares,
to which section 112HA applies
or a conversion of shares to
15 which section 112HB applies;
and
(IV) in respect of which the
Commissioner is satisfied that it
is not an arrangement having as
20 its purpose, or one of its
purposes, the defeat of the
object of this Part;
(iv) the distribution of the estate of a
deceased person, including an
25 acquisition that occurs as the result
of --
(I) a will, a codicil or an order of a
court varying or modifying the
provisions of a will or codicil;
30 or
(II) an intestacy or an order of a
court varying or modifying the
application, in relation to the
estate of a deceased person, of
page 3
Stamp Amendment Bill (No. 3) 2000
s. 4
the provisions of a law relating
to the distribution of the assets
of persons who die intestate;
or
5 (c) that is effected or evidenced by an
instrument on which duty is declared by this
Act to be chargeable under item 6 of the
Second Schedule;
";
10 (b) in the definition of "entitled" by inserting after
"beneficially entitled" --
"
, and "entitlement" has a corresponding meaning
";
15 (c) in the definition of "mining tenement" --
(i) after paragraph (a) by deleting "and";
(ii) after paragraph (b) by inserting --
"
and
20 (c) a tenement, right or interest that is --
(i) similar to a tenement or right referred to
in paragraph (a) or (b); and
(ii) held under the law of another State, a
Territory, the Commonwealth or
25 another jurisdiction;
".
(2) In section 76(1) the following definitions are inserted in their
appropriate alphabetical positions --
"
30 "distributable property" has the meaning given by
subsection (4a);
page 4
Stamp Amendment Bill (No. 3) 2000
s. 4
"minerals" means naturally occurring substances
obtained or obtainable from the Earth;
"primary products" has a meaning corresponding
with the definition of "primary production" in
5 section 75D(1) except that in relation to plants the
term extends to plants that have not been grown or
reared and to parts of them and their produce;
"rules" of a corporation means one or more of the
following --
10 (a) the corporation's constitution;
(b) replaceable rules applying to the corporation
under the Corporations Law;
(c) internal management rules applying to the
corporation under the Corporations Law;
15 ".
(3) Section 76(1) is amended by deleting the definition of
"interest".
(4) After section 76(1) the following subsection is inserted --
"
20 (1a) For the purpose of this Division a reference to the
acquisition of an interest includes a reference to the
acquisition of a majority interest or a further interest
within the meaning of section 76AK or 76AR.
".
25 (5) Section 76(4) is amended by deleting paragraph (c) and
inserting the following paragraph instead --
"
(c) a majority shareholder in relation to a corporation
is a person who would have a substantial holding
30 in the corporation under the definition of
"substantial holding" in section 9 of the
page 5
Stamp Amendment Bill (No. 3) 2000
s. 4
Corporations Law even if the reference in that
definition to 5% were a reference to 50%.
".
(6) After section 76(4) the following subsection is inserted --
5 "
(4a) For the purposes of this Part, a reference to entitlement
to property of a corporation or trust, or to participate in
a distribution of property of a corporation or trust, is a
reference to entitlement otherwise than as a creditor or
10 other person to whom the corporation or trust is liable,
and a reference to distributable property is a reference
to property distributable to persons otherwise than as
creditors or other persons to whom the corporation or
trust is liable.
15 ".
(7) Section 76(5) is repealed and the following subsections are
inserted instead --
"
(5) For the purposes of this Part, the entitlement that a
20 person would have at a particular time to participate in
the distribution of the property of a corporation on a
winding up of the corporation is an entitlement to an
amount calculated --
(a) as if the winding up were carried out at that
25 time in accordance with the rules of the
corporation and any law relevant to the winding
up, as the rules and law then exist; or
(b) as if the person had, immediately prior to the
winding up, exercised all powers and
30 discretions exercisable by the person by reason
of having acquired an interest in the
corporation --
(i) to effect or compel an alteration to the
rules;
page 6
Stamp Amendment Bill (No. 3) 2000
s. 5
(ii) to vary the rights conferred by shares in
the corporation; or
(iii) to effect or compel the substitution or
replacement of shares in the corporation
5 with other shares in the corporation,
in such manner as to maximise that amount,
whichever of the amounts under paragraph (a) or (b)
results in the greater amount, unless the Commissioner
determines, after consideration of the circumstances of
10 the case, and where the calculation under paragraph (b)
results in the greater amount, that the amount of the
entitlement should be calculated under paragraph (a).
(5a) If the extent of a person's entitlement to participate in a
distribution of the property of a corporation is
15 unascertainable or uncertain, that entitlement shall be
determined for the purposes of this Part as being the
greatest entitlement that the person could derive from
the distribution.
".
20 (8) Section 76(7) is amended after "76AI(4)" by inserting --
" , 76AP(4) ".
5. Section 76A amended
Section 76A(1) is amended as follows:
(a) after "company" by deleting "to which Division 2
25 applies";
(b) after "corporation" by deleting "to which Division 3
applies".
page 7
Stamp Amendment Bill (No. 3) 2000
s. 6
6. Section 76AB amended
Section 76AB(2)(a) is amended by deleting "acquiring the total
shareholding of the corporation or such lesser shareholding as
he" and inserting instead --
5 "
having an entitlement referred to in
section 76AR(1) to such an extent as the
Commissioner
".
10 7. Section 76AG amended
(1) Section 76AG(1) is repealed and the following subsection is
inserted instead --
"
(1) Where by a relevant acquisition a person acquires a
15 majority interest or a further interest in --
(a) a WA company to which this Division applies;
or
(b) a WA company to which this Division would
apply if the reference to the value of land in
20 section 76AI(2)(b) were a reference to the value
of land, goods, wares and merchandise,
the person shall prepare and lodge with the
Commissioner a statement in respect of that
acquisition.
25 ".
(2) Section 76AG(4) is amended as follows:
(a) after paragraph (db) by deleting "and";
(b) after paragraph (e) by deleting the full stop and
inserting --
page 8
Stamp Amendment Bill (No. 3) 2000
s. 7
"
; and
(f) if the statement is lodged because of
subsection (1)(b), a notation to that effect and
5 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
provided.
10 ".
(3) Section 76AG(5) is repealed and the following subsections are
inserted instead --
"
(5) For the purposes of this Act --
15 (a) a statement lodged because of
subsection (1)(a); and
(b) subject to subsection (5c), a statement lodged
because of subsection (1)(b),
is to be regarded as an instrument executed on the day
20 on which the relevant acquisition occurs.
(5a) If, in the case of a statement lodged because of
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
25 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 (5) does not apply to the statement.
(5b) In deciding whether or not to make a determination
30 under subsection (5a) the Commissioner may have
regard to --
(a) the source of the goods, wares and merchandise
and the source of funding for their acquisition;
page 9
Stamp Amendment Bill (No. 3) 2000
s. 8
(b) their nature and their relevance to any business
carried on by the WA company or subsidiary;
(c) the period for which they have been and are
likely to remain the property of the WA
5 company or subsidiary; and
(d) any other matter that the Commissioner
considers relevant.
(5c) A determination made under subsection (5a) has effect
according to its terms and the Commissioner is to give
10 written notice of it to the person who lodged the
statement.
(5d) If the person who lodged the statement requests the
Commissioner, in writing, to give reasons why the
Commissioner has not made a determination under
15 subsection (5a), the Commissioner is to give written
reasons to the person.
(5e) A person who --
(a) is required to lodge a statement because of
subsection (1)(b); and
20 (b) fails to do so within the period set out in
subsection (3),
commits an offence against this Act.
".
8. Section 76AH amended
25 (1) Section 76AH(1) is amended by deleting "statement lodged
under section 76AG" and inserting instead --
" statement to which section 76AG(5) applies ".
page 10
Stamp Amendment Bill (No. 3) 2000
s. 9
(2) After subsection (2) the following subsection is inserted --
"
(2a) Subsection (2) does not apply unless --
(a) the acquisition referred to in
5 section 76AJ(1)(a)(i) or (ii) or (b), as the case
may be, consists of the acquisition of a
shareholding in a corporation; and
(b) the shareholding acquired confers an
entitlement to participate in a distribution of the
10 property of the corporation (if the corporation
were to be wound up) that bears the same
relationship to the value of the distributable
property as the shareholding acquired bears to
the total shareholding in the corporation.
15 ".
(3) Section 76AH(4) is amended by deleting "statement lodged
under section 76AG" and inserting instead --
" statement to which section 76AG(5) applies ".
9. Section 76AI amended
20 (1) Section 76AI(2) is amended at the end of paragraph (b) by
deleting "excluded by subsection (3)." and inserting instead --
"
excluded by subsection (3),
or if the Commissioner determines that paragraphs (a)
25 and (b) would have applied to the WA company at the
time of the relevant acquisition 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.
30 ".
page 11
Stamp Amendment Bill (No. 3) 2000
s. 9
(2) After section 76AI(2) the following subsections are inserted --
"
(2a) If the Commissioner makes a determination under
subsection (2), the Commissioner is to give written
5 notice of it to the person who made the relevant
acquisition.
(2b) The notice is to contain written reasons for the
determination.
(2c) For the purposes of section 76AG(3) the relevant
10 acquisition is to be regarded as having occurred when
the notice is given.
".
(3) Section 76AI(3) is amended as follows:
(a) after paragraph (b) by inserting --
15 "
(ba) property consisting of rights or interests under a
sales contract (including a forward sales
contract) relating to minerals, primary products
or other commodities;
20 ";
(b) after paragraph (e) by deleting "and" and inserting --
"
(ea) a licence or patent or other intellectual property
(including knowledge or information that has a
25 commercial value) relating to any process,
technique, method, design or apparatus to --
(i) locate, extract, process, transport or
market minerals; or
(ii) grow, rear, breed, maintain, produce,
30 harvest, collect, process, transport or
market primary products;
page 12
Stamp Amendment Bill (No. 3) 2000
s. 9
(eb) stores, stockpiles or holdings of minerals or
primary products (whether processed or
unprocessed) produced by the WA company or
a related person;
5 (ec) 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;
(ed) any property prescribed for the purposes of this
subsection; and
";
(c) in paragraph (f) by deleting "the WA company's
15 ownership" and inserting instead --
"
ownership by the WA company or the
subsidiary within the meaning in subsection (4)
".
20 (4) After section 76AI(3) the following subsection is inserted --
"
(3a) In forming an opinion for the purposes of
subsection (3)(f) the Commissioner may have regard
to --
25 (a) the source of the property and the source of
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
30 remain the property of the WA company or the
subsidiary; and
(d) any other matter that the Commissioner
considers relevant.
".
page 13
Stamp Amendment Bill (No. 3) 2000
s. 9
(5) Section 76AI(4) is amended as follows:
(a) in paragraph (a) by deleting "Law;" and inserting
instead --
"
5 Law, or any other corporation where the WA
company would be entitled if the corporation
were to be wound up, after the time of the
relevant acquisition, to participate in a
distribution of the property of the corporation to
10 an extent greater than 50% of the value of the
distributable property;
";
(b) in paragraph (c) by deleting "participate (otherwise than
as a creditor or other person to whom the corporation is
15 liable) in a distribution of the property of the corporation
to an extent greater than 50% of the value of the
property distributable to all of the holders of shares in
the corporation;" and inserting instead --
"
20 participate in a distribution of the property of
the corporation to an extent greater than 50% of
the value of the distributable property;
".
(6) After section 76AI(4) the following subsections are inserted --
25 "
(5) In determining the entitlement of an entity to land for
the purposes of this section or section 76AL --
(a) if the entity has contracted or agreed to acquire
an interest in land, that contract or agreement is
30 to be regarded as having been completed even
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
page 14
Stamp Amendment Bill (No. 3) 2000
s. 10
agreement has not yet been completed, that
contract or agreement is to be disregarded.
(6) In determining the entitlement of an entity to property
other than land for the purposes of this section --
5 (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
completed even if it has not yet been
completed; and
10 (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
contract or agreement is to be disregarded.
".
15 10. Sections 76AJ and 76AK replaced
Sections 76AJ and 76AK are repealed and the following
sections are inserted instead --
"
76AJ. Meaning of "relevant acquisition"
20 (1) An acquisition is a relevant acquisition for the purposes
of this Division --
(a) if by that acquisition a person acquires a
majority interest in a WA company by
acquiring an interest --
25 (i) that is itself a majority interest in the
WA company; or
(ii) that is, when taken with each previous
acquisition of an interest in the WA
company made by the person on or after
30 the relevant day for that acquisition, a
majority interest in the WA company;
or
page 15
Stamp Amendment Bill (No. 3) 2000
s. 10
(b) if by that acquisition a person acquires a further
interest in the WA company.
(2) If subsection (1)(b) applies to an acquisition,
subsection (1)(a)(ii) does not apply to it.
5 (3) For the purposes of subsection (1)(a)(ii), if a person
acquires an interest in a WA company (the "earlier
acquisition") and, after that acquisition, that person
acquires another interest in the WA company (the
"later acquisition") because of an arrangement that
10 was entered into during the relevant period, the earlier
acquisition is to be regarded as having been made on or
after the relevant day for the later acquisition even if it
was not so made.
(4) In this section --
15 "relevant day" for an acquisition means --
(a) if the acquisition was or is made on or after
10 August 2000 but before
11 August 2002 -- 10 August 1999; or
(b) if the acquisition is made on or after
20 11 August 2002 -- the day that is 3 years
before the day of the acquisition.
(5) In subsection (3) --
"relevant period" means --
(a) if the earlier acquisition was made before
25 10 August 1999 -- the period beginning on
the day that is one year before the day of that
acquisition and ending on the day that is one
year after the day of that acquisition;
(b) if the earlier acquisition was made on or after
30 10 August 1999 but before
10 August 2000 -- the period beginning on
the day that is one year before the day of that
page 16
Stamp Amendment Bill (No. 3) 2000
s. 10
acquisition and ending on the day that is
3 years after the day of that acquisition; or
(c) if the earlier acquisition was or is made on or
after 10 August 2000 -- the period
5 beginning on the relevant day for that
acquisition and ending on the day that is
3 years after the day of that acquisition.
(6) Subsection (3) does not apply in relation to an
arrangement entered into before 10 August 2000
10 unless, because of the arrangement, the person referred
to in that subsection had the right to acquire the other
interest referred to in that subsection.
76AK. Meaning of acquiring an interest, majority interest
or further interest
15 (1) For the purposes of this Division, a person acquires an
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
20 be wound up to participate in a distribution of the
property of the WA company.
(2) For the purposes of this Division, a person acquires a
majority interest in a WA company if the person
acquires, or the person and any related person acquire,
25 an interest in the WA company such that having
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 greater
30 than 50% of the value of the distributable property and,
in section 76AJ(1)(a)(i) and (ii) and subsection (3),
"majority interest" has a corresponding meaning.
page 17
Stamp Amendment Bill (No. 3) 2000
s. 11
(3) For the purposes of this Division, a person acquires a
further interest in a WA company if --
(a) the person has, or the person and any related
person have, a majority interest in the WA
5 company;
(b) the acquisition of that majority interest gave
rise to a liability for duty under this Part; and
(c) the person acquires, or the person and any
related person acquire, an interest in the WA
10 company such that having 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 further in a
distribution of the property of the WA
15 company.
".
11. Section 76AL amended
(1) Section 76AL(3)(a) is amended as follows:
(a) by inserting a comma after "of section 76AH(1)(b)(i)";
20 (b) by deleting "further acquisition;" and inserting
instead --
" acquisition of the further interest; ".
(2) Section 76AL(5) is amended by deleting "(otherwise than as a
creditor or other person to whom the WA company is liable)".
25 12. Section 76AM amended
(1) Section 76AM(1) is amended after "is liable" by inserting --
" , if section 76AG(5) applies to the statement, ".
(2) Section 76AM(2) is amended by deleting "a shareholding" and
inserting instead --
30 " an interest ".
page 18
Stamp Amendment Bill (No. 3) 2000
s. 13
13. Section 76AN amended
(1) Section 76AN(1) is repealed and the following subsection is
inserted instead --
"
5 (1) Where by a relevant acquisition a person acquires a
majority interest or a further interest in --
(a) a corporation to which this Division applies; or
(b) a corporation to which this Division would
apply if the reference to the value of land in
10 section 76AP(2)(b) were a reference to the
value of land, goods, wares and merchandise,
the corporation shall prepare and lodge with the
Commissioner a statement in respect of that
acquisition.
15 ".
(2) Section 76AN(3) is amended as follows:
(a) in paragraph (d) before "the unencumbered" by
inserting --
" the corporation's estimate of ";
20 (b) by deleting paragraphs (db) and (e) and "and" after
paragraph (db) and inserting --
"
(db) the corporation's estimate of the unencumbered
value of those chattels;
25 (e) the corporation's estimate of the unencumbered
value of the assets of the corporation as at that
date; and
(f) if the statement is lodged because of
subsection (1)(b), a notation to that effect and
30 such information relating to the goods, wares
and merchandise referred to in
subsection (1)(b), and their ownership and
page 19
Stamp Amendment Bill (No. 3) 2000
s. 13
acquisition, as the approved form requires to be
provided.
".
(3) Section 76AN(4) is repealed and the following subsections are
5 inserted instead --
"
(4) For the purposes of this Act --
(a) a statement lodged because of
subsection (1)(a); and
10 (b) subject to subsection (4c), a statement lodged
because of subsection (1)(b),
is to be regarded as an instrument executed on the day
on which the relevant acquisition occurs.
(4a) If, in the case of a statement lodged because of
15 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
20 of this Division, the Commissioner may determine that
subsection (4) does not apply to the statement.
(4b) In deciding whether or not to make a determination
under subsection (4a) the Commissioner may have
regard to --
25 (a) the source of the goods, wares and merchandise
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;
30 (c) the period for which they have been and are
likely to remain the property of the corporation,
trustee or related corporation; and
page 20
Stamp Amendment Bill (No. 3) 2000
s. 14
(d) any other matter that the Commissioner
considers relevant.
(4c) A determination made under subsection (4a) has effect
according to its terms and the Commissioner is to give
5 written notice of it to the corporation.
(4d) If the corporation requests the Commissioner, in
writing, to give reasons why the Commissioner has not
made a determination under subsection (4a), the
Commissioner is to give written reasons to the
10 corporation.
(4e) A corporation that --
(a) is required to lodge a statement because of
subsection (1)(b); and
(b) fails to do so within the period set out in
15 subsection (2),
commits an offence against this Act.
".
(4) Section 76AN(5) is amended by deleting "person who" and
inserting --
20 " corporation that ".
14. Section 76AO amended
(1) Section 76AO(1) is amended by deleting "lodged under
section 76AN" and inserting instead --
" to which section 76AN(4) applies ".
25 (2) After section 76AO(2) the following subsection is inserted --
"
(2a) Subsection (2) does not apply unless --
(a) the acquisition referred to in
section 76AQ(1)(a)(i) or (ii) or (b), as the case
page 21
Stamp Amendment Bill (No. 3) 2000
s. 15
may be, consists of the acquisition of a
shareholding in a corporation; and
(b) the shareholding acquired confers an
entitlement to participate in a distribution of the
5 property of the corporation (if the corporation
were to be wound up) that bears the same
relationship to the value of the distributable
property as the shareholding acquired bears to
the total shareholding in the corporation.
10 ".
(3) Section 76AO(4) is amended by deleting "lodged under
section 76AN" and inserting instead --
" to which section 76AN(4) applies ".
15. Section 76AP amended
15 (1) Section 76AP(2) is amended at the end of paragraph (b) by
deleting "excluded by subsection (3)." and inserting instead --
"
excluded by subsection (3),
or if the Commissioner determines that paragraphs (a)
20 and (b) would have applied to the corporation at the
time of the relevant acquisition 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.
25 ".
(2) After section 76AP(2) the following subsections are inserted --
"
(2a) If the Commissioner makes a determination under
subsection (2), the Commissioner is to give written
30 notice of it to the corporation.
page 22
Stamp Amendment Bill (No. 3) 2000
s. 15
(2b) The notice is to contain written reasons for the
determination.
(2c) For the purposes of section 76AN(2) the relevant
acquisition is to be regarded as having occurred when
5 the notice is given.
".
(3) Section 76AP(3) is amended as follows:
(a) by deleting "or a related" and inserting instead --
" or another ";
10 (b) after paragraph (b) by inserting --
"
(ba) property consisting of rights or interests under a
sales contract (including a forward sales
contract) relating to minerals, primary products
15 or other commodities;
";
(c) in paragraph (d) by deleting "a related" and inserting
instead --
" another ";
20 (d) after paragraph (d) by deleting "and" and inserting --
"
(da) a licence or patent or other intellectual property
(including knowledge or information that has a
commercial value) relating to any process,
25 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
30 market primary products;
page 23
Stamp Amendment Bill (No. 3) 2000
s. 15
(db) stores, stockpiles or holdings of minerals or
primary products (whether processed or
unprocessed) produced by the corporation or a
related person;
5 (dc) 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;
(dd) any property prescribed for the purposes of this
subsection; and
";
(e) in paragraph (e) by deleting "the corporation's
15 ownership" and inserting instead --
"
ownership by the corporation or the trustee or
other corporation referred to in subsection (4)
".
20 (4) After section 76AP(3) the following subsection is inserted --
"
(3a) In forming an opinion for the purposes of
subsection (3)(e) the Commissioner may have regard
to --
25 (a) the source of the property and the source of
funding for its acquisition;
(b) its nature and its relevance to any business
carried on by the corporation or the trustee or
other corporation;
30 (c) the period for which it has been and is likely to
remain the property of the corporation or the
trustee or other corporation; and
page 24
Stamp Amendment Bill (No. 3) 2000
s. 15
(d) any other matter that the Commissioner
considers relevant.
".
(5) Section 76AP(4) is amended by deleting paragraph (b) and
5 inserting --
"
(b) in a case where the entitlement to participate
referred to in section 76AR(2) or (3),
(whichever is applicable to the relevant
10 acquisition) relates to the corporation itself, any
of the following corporations is entitled to that
land or property --
(i) a corporation that is a subsidiary (as
defined in the Corporations Law) of the
15 corporation;
(ii) any other corporation where the
corporation would be entitled if the
other corporation were to be wound up,
after the time of the relevant acquisition,
20 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;
or
25 (c) in a case where the entitlement to participate
referred to in section 76AR(2) or (3),
(whichever is applicable to the relevant
acquisition) relates to a holding corporation (as
defined in section 76AR(4)(a)) of the
30 corporation, any of the following corporations
is entitled to that land or property --
(i) a corporation that is a subsidiary (as
defined in the Corporations Law) of the
holding corporation;
page 25
Stamp Amendment Bill (No. 3) 2000
s. 15
(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 relevant acquisition,
5 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.
".
10 (6) After section 76AP(4) the following subsections are inserted --
"
(5) In determining the entitlement of an entity to land for
the purposes of this section or section 76AS --
(a) if the entity has contracted or agreed to acquire
15 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
(b) if the entity has contracted or agreed to dispose
of an interest in land but that contract or
20 agreement has not yet been completed, that
contract or agreement is to be disregarded.
(6) 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
25 of an interest in such property, that contract or
agreement is to be regarded as having been
completed even if it has not yet been
completed; and
(b) if the entity has contracted or agreed to acquire
30 an interest in such property but that contract or
agreement has not yet been completed, that
contract or agreement is to be disregarded.
".
page 26
Stamp Amendment Bill (No. 3) 2000
s. 16
16. Sections 76AQ and 76AR replaced
Sections 76AQ and 76AR are repealed and the following
sections are inserted instead --
"
5 76AQ. 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
majority interest in a corporation by acquiring
10 an interest --
(i) that is itself a majority interest in the
corporation; or
(ii) that is, when taken with each previous
acquisition of an interest in the
15 corporation made by the person on or
after the relevant day for that
acquisition, a majority interest in the
corporation;
or
20 (b) if by that acquisition a person acquires a further
interest in the corporation.
(2) If subsection (1)(b) applies to an acquisition,
subsection (1)(a)(ii) does not apply to it.
(3) For the purposes of subsection (1)(a)(ii), if a person
25 acquires an interest in a corporation (the "earlier
acquisition") and, after that acquisition, that person
acquires another interest in the corporation (the "later
acquisition") because of an arrangement that was
entered into during the relevant period, the earlier
30 acquisition is to be regarded as having been made on or
after the relevant day for the later acquisition even if it
was not so made.
page 27
Stamp Amendment Bill (No. 3) 2000
s. 16
(4) In this section --
"relevant day" for an acquisition means --
(a) if the acquisition was or is made on or after
10 August 2000 but before
5 11 August 2002 -- 10 August 1999; or
(b) if the acquisition is made on or after
11 August 2002 -- the day that is 3 years
before the day of the acquisition.
(5) In subsection (3) --
10 "relevant period" means --
(a) if the earlier acquisition was made before
10 August 1999 -- the period beginning on
the day that is one year before the day of that
acquisition and ending on the day that is one
15 year after the day of that acquisition;
(b) if the earlier acquisition was made on or after
10 August 1999 but before
10 August 2000 -- the period beginning on
the day that is one year before the day of that
20 acquisition and ending on the day that is
3 years after the day of that acquisition; or
(c) if the earlier acquisition was or is made on or
after 10 August 2000 -- the period
beginning on the relevant day for that
25 acquisition and ending on the day that is
3 years after the day of that acquisition.
(6) Subsection (3) does not apply in relation to an
arrangement entered into before 10 August 2000
unless, because of the arrangement, the person referred
30 to in that subsection had the right to acquire the other
interest referred to in that subsection.
page 28
Stamp Amendment Bill (No. 3) 2000
s. 16
76AR. Meaning of acquiring an interest, majority interest
or further interest
(1) For the purposes of this Division, a person acquires an
interest in a corporation if the person acquires, or the
5 person and any related person acquire, an entitlement
such that the person, or the person and any 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
10 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
majority interest in a corporation if the person acquires,
or the person and any related person acquire, an
15 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
distributed (in the case of a corporation on the basis of
20 a winding 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
property and, in section 76AQ(1)(a)(i) and (ii) and
subsection (3), "majority interest" has a
25 corresponding meaning.
(3) For the purposes of this Division, a person acquires a
further interest in a corporation if --
(a) the person has, or the person and any related
person have, a majority interest in the
30 corporation;
(b) the acquisition of that majority interest gave
rise to a liability for duty under this Part; and
(c) the person acquires, or the person and any
related person acquire, an interest in the
page 29
Stamp Amendment Bill (No. 3) 2000
s. 16
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
5 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.
10 (4) In this section "holding corporation" in relation to a
corporation --
(a) means a corporation --
(i) that is an ultimate holding company as
defined in section 9 of the Corporations
15 Law; or
(ii) of which a body corporate is a
subsidiary by virtue of Division 6 of
Part 1.2 of the Corporations Law;
and
20 (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
paragraph (a)) were to be wound up to
25 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
property;
page 30
Stamp Amendment Bill (No. 3) 2000
s. 17
(ii) a corporation, if in respect of any trust
referred to in subparagraph (i) that
corporation --
(I) is entitled to a share or interest
5 in the trust whether vested or
contingent; or
(II) in the case of a discretionary
trust, may benefit from that
trust;
10 and
(iii) any other corporation, or the trustee of
any other trust that would by an
application of this subsection be a
holding corporation of a corporation
15 that is a holding corporation of the
corporation.
".
17. Section 76AS amended
(1) Section 76AS(3)(a) is amended as follows:
20 (a) after "of section 76AO(1)(b)(i)" by inserting a comma;
(b) by deleting "further acquisition;" and inserting
instead --
" acquisition of the further interest; ".
(2) Section 76AS(5) is amended by deleting "(otherwise than as a
25 creditor or other person to whom the corporation or a holding
corporation is liable)".
page 31
Stamp Amendment Bill (No. 3) 2000
s. 18
18. Section 76AT amended
Section 76AT is amended by deleting "to pay the duty
chargeable under sections 76AO and 76AS." and inserting
instead --
5 "
, if section 76AN(4) applies to the statement, to pay the
duty chargeable under this Division.
".
19. Part IIIBA Division 4 inserted
10 After Part IIIBA Division 3 the following Division is
inserted --
"
Division 4 -- Reassessment of liability for duty
76AU. Definitions and operation
15 (1) In this Division --
"assessment" means the assessment of duty issued in
relation to the statement;
"duty" means duty chargeable under Division 2 or 3,
whichever is applicable;
20 "statement" means the statement that was charged
with duty;
"taxpayer" means --
(a) a person liable under section 76AM to pay
duty; or
25 (b) a corporation liable under section 76AT to
pay duty.
(2) This Division is in addition to the provisions of Part III
relating to the reassessment of duty and does not affect
the operation of those provisions.
page 32
Stamp Amendment Bill (No. 3) 2000
s. 19
76AV. Request for reassessment of liability for duty
(1) A taxpayer may request the Commissioner to reassess
the taxpayer's liability to pay duty if --
(a) the taxpayer considers that the duty would not
5 have been chargeable, or that the amount of the
duty would have been less, but for the operation
of section 76AI(5)(a) or (6)(a) or 76AP(5)(a) or
(6)(a) in relation to a contract or agreement
mentioned in the request; and
10 (b) that contract or agreement has been rescinded,
annulled or otherwise terminated without being
completed.
(2) A taxpayer may request the Commissioner to reassess
the taxpayer's liability to pay duty if --
15 (a) the taxpayer considers that the duty would not
have been chargeable, or that the amount of the
duty would have been less, but for the operation
of section 76AI(5)(b) or (6)(b) or 76AP(5)(b) or
(6)(b) in relation to a contract or agreement
20 mentioned in the request; and
(b) that contract or agreement has been completed.
(3) A request for reassessment must be made in writing
and can only be made within 5 years after the date on
which the assessment was issued.
25 76AW. Reassessment
(1) If the Commissioner is satisfied that the contract or
agreement mentioned in a request under
section 76AV(1) has been rescinded, annulled or
otherwise terminated without being completed, the
30 Commissioner is to consider whether or not duty would
have been chargeable and, if so, the amount of duty
that would have been chargeable, but for the operation
page 33
Stamp Amendment Bill (No. 3) 2000
s. 19
of section 76AI(5)(a) or (6)(a) or 76AP(5)(a) or (6)(a),
as the case may be.
(2) If the Commissioner is satisfied that the contract or
agreement mentioned in a request under
5 section 76AV(2) has been completed, the
Commissioner is to consider whether duty would have
been chargeable and, if so, the amount of duty that
would have been chargeable, but for the operation of
section 76AI(5)(b) or (6)(b) or 76AP(5)(b) or (6)(b), as
10 the case may be.
(3) If after consideration under subsection (1) or (2) the
Commissioner is of the opinion that a reassessment of
duty is appropriate, the Commissioner is to --
(a) issue the reassessment; and
15 (b) endorse on the statement --
(i) a notation that this Part no longer
applies to it and that it is not chargeable
with duty; or
(ii) the reduced amount of duty with which
20 it is chargeable,
as the case requires.
(4) Without limiting subsection (3), if after consideration
under subsection (1) the Commissioner is not satisfied
that the rescission, annulment or other termination of
25 the contract or agreement was not part of a scheme or
arrangement under which the object of the contract or
agreement has been or may be achieved in another
way, the Commissioner is not obliged to issue a
reassessment.
30 76AX. Effect of reassessment
(1) A reassessment supersedes the assessment.
page 34
Stamp Amendment Bill (No. 3) 2000
s. 19
(2) A reassessment that results in the statement being
endorsed under section 76AW(3)(b)(ii) does not
invalidate proceedings for the recovery of duty but an
appropriate adjustment may be made to the amount to
5 be recovered in the proceedings to accord with the
reassessment.
(3) If an objection to the assessment is lodged and, before
determination of the proceedings on the objection, a
reassessment that results in the statement being
10 endorsed under section 76AW(3)(b)(ii) is issued, the
proceedings may be continued against the reassessment
to the extent that it is liable to the same objection or to
an objection that is the same or similar in substance.
76AY. Refund of duty or payment of reassessed amount
15 (1) If a reassessment results in the statement being
endorsed under section 76AW(3)(b)(i), the
Commissioner is to refund the amount of any duty
which may have been paid in accordance with the
assessment and the amount of any fine charged under
20 section 20 or 31AC.
(2) If a reassessment results in the statement being
endorsed under section 76AW(3)(b)(ii), the
Commissioner is to refund the amount of any excess of
duty which may have been paid in accordance with the
25 assessment and the amount of any excess of any fine
charged under section 20 or 31AC.
(3) If no duty or less than the reassessed amount of duty
has been paid in accordance with the assessment,
section 31AC(1), (7) and (8) apply.
30 ".
page 35
Stamp Amendment Bill (No. 3) 2000
s. 20
20. Consequential amendments
(1) Section 32(6) is amended by inserting after "31AA" --
" or 76AW ".
(2) Section 73DA(3)(b) is amended as follows:
5 (a) by deleting "has a shareholding in the company that
would entitle him" and inserting instead --
" would be entitled ";
(b) by deleting "to all the holders of shares in the company"
and inserting instead --
10 "
otherwise than to creditors, or other persons to
whom the company is liable
".
(3) Section 75HA(6)(b) and section 75I(1)(b) are amended by
15 deleting "under Division 2 of Part IIIBA" and inserting
instead --
" to which section 76AG(5) applies ".
(4) Section 75HA(7)(b) is amended by deleting "statement under
Division 2 of Part IIIBA" and inserting instead --
20 " statement to which section 76AG(5) applies ".
(5) Section 75HA(7)(b)(ii) is amended by deleting "lodged under
Division 2 of Part IIIBA" and inserting instead --
" to which section 76AG(5) applies ".
(6) Section 75J(1) is amended in the definition of "Part IIIBA
25 statement" by deleting "under Part IIIBA" and inserting
instead --
" to which section 76AG(5) or 76AN(4) applies ".
page 36
Stamp Amendment Bill (No. 3) 2000
s. 21
21. Transitional
(1) In this section --
"amended provisions" means the provisions of Part IIIBA and
sections 32, 73DA, 75HA, 75I and 75J of the Stamp
5 Act 1921 as enacted after the coming into operation of this
Act;
"existing provisions" means the provisions of Part IIIBA and
sections 32, 73DA, 75HA, 75I and 75J of the Stamp
Act 1921 as enacted before the coming into operation of
10 this Act.
(2) Subject to subsection (3), the existing provisions continue to
apply to and in relation to an acquisition of an interest in a
corporation that occurred before 10 August 2000 and the
amended provisions do not apply to it.
15 (3) Subsection (2) does not affect the operation of the amended
provisions in relation to an acquisition of an interest that
occurred before 10 August 2000 in so far as those provisions
have effect for the purpose of determining whether an
acquisition that occurred on or after 10 August 2000 is a
20 relevant acquisition for the purposes of those provisions.
(4) If --
(a) a legally enforceable agreement in writing was executed
before 10 August 2000;
(b) that agreement created before 10 August 2000 an
25 entitlement to an interest in a corporation; and
(c) that entitlement resulted or results in that interest being
acquired on or after 10 August 2000 but before
1 January 2001,
the acquisition of that interest is to be regarded for the purposes
30 of subsections (2) and (3) as having occurred before
10 August 2000.
page 37
Stamp Amendment Bill (No. 3) 2000
s. 21
(5) Despite section 76AG(3) or 76AN(2), as the case may be, of the
amended provisions, if --
(a) an acquisition of an interest in a corporation occurred on
or after 10 August 2000 but before this Act receives the
5 Royal Assent;
(b) a statement has to be lodged under section 76AG or
76AN in respect of that acquisition because of the
operation of the amended provisions; and
(c) the existing provisions would not have required such a
10 statement to be lodged,
the statement may be lodged at any time before the end of the
period of 3 months after the day on which this Act receives the
Royal Assent.
page 38
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