Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this
section —
land has the same meaning as in section 76;
scheme land means land held by a unit trustee in
the unit trustee’s capacity as trustee of a unit trust scheme.
(1a) A unit trustee
may apply to the Commissioner in an approved form for registration of a unit
trust scheme.
(1b) An application
may be made whether or not the unit trust scheme has previously been
registered under subsection (2).
(1c) An application
for registration of a unit trust scheme as a pooled investment trust is to be
accompanied by a statement by the unit trustee in an approved form of the
unencumbered value of the interests in scheme land referred to in
section 63AB(2)(f) and, if applicable, (g)(i).
(2) The Commissioner
may register the unit trust scheme as a pooled investment trust or an equity
trust with effect from the date of the application if —
(a) the
Commissioner is satisfied that the unit trust scheme is eligible for
registration under section 63AB(2) as a pooled investment trust or
section 63AB(3) as an equity trust;
(ab) in
the case of an application for registration of a unit trust scheme as a pooled
investment trust — the unit trust scheme is not to be treated as a
sub-trust under subsection (2a); and
(b) the
Commissioner is satisfied that registration is not being used and is not
likely to be used as part of a scheme or arrangement with the collateral
purpose of avoiding or reducing the duty that otherwise would be or might
become payable.
(2a) For the purposes
of subsection (2)(ab) and sections 63AC(2)(ab) and 63AD(8), a unit
trust scheme is to be treated as a sub-trust if —
(a) the
scheme land comprises only one parcel of land;
(b) a
unit holder in the scheme participated directly or indirectly (otherwise than
by means of the unit holder’s subscription under the scheme) in the unit
trustee’s acquisition of the scheme land;
(c) a
unit holder in the scheme states in a financial report, or other document,
provided to its members that the unit holder has an interest in the scheme
land;
(d) a
unit holder in the scheme beneficially owns an interest in any land otherwise
than as a unit holder in a unit trust scheme; or
(e) a
unit holder in the scheme makes an offer to the public for subscriptions
principally by reference to the scheme land and not to units in a unit trust
scheme,
unless the
Commissioner is satisfied that in the circumstances of a particular case it is
not reasonable to treat the scheme as a sub-trust.
(3) For the purpose of
being satisfied as to a matter referred to in subsection (2)(b), the
Commissioner may take into account any matter that the Commissioner considers
to be relevant.
(3a) Subject to this
Part, registration of a unit trust scheme under subsection (2) has effect
for a period of 3 years.
(4) The Commissioner
shall advise the unit trustee whether or not he has registered the unit trust
scheme as a pooled investment trust or an equity trust.
(4a) Subject to
section 17 of the Taxation Administration Act 2003 , if the
Commissioner registers a unit trust scheme as a pooled investment trust or an
equity trust the Commissioner shall make any reassessment necessary to give
effect to that registration.
(5) If the
Commissioner decides not to register a unit trust scheme as a pooled
investment trust or an equity trust he must give the unit trustee reasons for
his decision.
(6) If the
Commissioner decides not to register a unit trust scheme as a pooled
investment trust or an equity trust, the unit trustee may challenge the
validity or correctness of that decision in accordance with Part 4 of the
Taxation Administration Act 2003 as if the unit trustee were a taxpayer
and the decision were a decision affecting the trustee’s liability to
pay duty.
[Section 63AA inserted by No. 36 of 2001
s. 27; amended by No. 2 of 2003 s. 33; No. 66 of 2003
s. 18.]