Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this
section —
chattels has the same definition as in
section 76;
land has the same definition as in
section 76.
(1a) This section
applies to a disposition in relation to a unit in a unit trust scheme if the
trust property of the scheme comprises or includes —
(a)
property situated, or taken to be situated, in Western Australia; or
(b) any
interest, including any beneficial interest, in such property.
(1b) For the purposes
of this section, if —
(a) the
unit trustee ( Trustee A ) of a unit trust scheme ( Trust A ) holds as trustee
of Trust A a unit in another unit trust scheme ( Trust B ); and
(b) the
unit trustee of Trust B holds as trustee of Trust B —
(i)
land and chattels situated in Western Australia; or
(ii)
any interest, including any beneficial interest and any
interest taken to be held by that trustee by the operation of this subsection,
in land and chattels situated in Western Australia,
Trustee A is taken to
hold as trustee of Trust A an undivided share, equivalent to the proportion of
the total issued units under Trust B represented by the unit in Trust B held
by Trustee A, in the land and chattels or in that interest in land and
chattels.
(1c)
Subsection (1b) —
(a)
applies for the purposes of a disposition made on or after
27 June 2006 in relation to a unit in a unit trust scheme; and
(b) has
effect despite anything to the contrary in any trust deed or other document.
(2) A person shall not
give effect to, recognise, or register, record, or enter in the books or
records of a unit trust scheme a disposition in relation to a unit
unless —
(a) a
transfer or an instrument effecting or evidencing the disposition is executed
and (unless the person executed the transfer or the instrument) delivered to
the person and the duty with which the transfer or the instrument is
chargeable has been paid; or
(b) the
person is satisfied that a dutiable statement has been lodged under
section 63AJ or 73DAA in respect of the disposition and that the duty
with which the dutiable statement is chargeable has been paid.
Penalty: $20 000.
(3) For the purposes
of assessing duty under this section, the exemption in item 2(1) of the
Third Schedule does not apply.
(4) Subject to
section 73CA and subsections (4a), (4b), (5), (5a) and (6), a
transfer of a unit and an instrument effecting or evidencing a disposition in
relation to a unit shall each be chargeable with duty as if it were
separately —
(a) a
conveyance or transfer free of encumbrances of an undivided share, equivalent
to the proportion of the total issued units under the unit trust scheme
represented by the unit, in land and chattels situated in Western Australia or
any interest, including any beneficial interest, in any such land and chattels
held by the unit trustee as trustee of the unit trust scheme; and
(b) a
conveyance of the unit.
(4a) The value of the
unit, for the purpose of assessing duty under subsection (4)(b), shall be
the value of the unit reduced by the value of the land and chattels or
interest in land and chattels (if any) determined for the purpose of assessing
duty under paragraph (a) of that subsection.
(4b) Subject to
subsections (5) and (5a), the duty chargeable on a transfer of a unit or
an instrument effecting or evidencing a disposition in relation to a unit
shall not in any event be less than the amount of duty determined under
item 4(1) of the Second Schedule on the amount or value of the
consideration for the transfer or the disposition.
(5) Where a
disposition does not significantly affect any right or rights pertaining to
any unit, having regard to the rights pertaining to the other issued units
under the unit trust scheme, the instrument effecting or evidencing the
disposition shall be chargeable with duty under item 6 of the Second
Schedule.
(5a) Where a
disposition, or a series of dispositions —
(a) has
effect in relation to the number of units held by all holders of units in
proportion to the number of units respectively held by them immediately prior
to the disposition or dispositions taking effect; and
(b) does
not have the effect of varying, abrogating or altering the rights of any
holder of units as against the rights of any other holder of units with
respect to the capital of the unit trust scheme,
the instrument
effecting or evidencing the disposition, and each instrument effecting or
evidencing a disposition in a series of dispositions, shall be chargeable with
duty under item 6 of the Second Schedule.
(6) The Commissioner
shall, where it is necessary to determine, for the purposes of
subsection (1b) or (4), the proportion of the total issued units under a
unit trust scheme represented by a unit, take into account, in such manner as
he considers appropriate, the respective rights and obligations pertaining to
the unit and the other units under the unit trust scheme.
(6a) Subject to
section 73CA and subsection (6c), in addition to the duty chargeable
on a transfer or an instrument under subsection (4), the transfer or
instrument shall each be chargeable with duty at the rate provided for in
item 4(1) of the Second Schedule calculated on the unencumbered value of
any ascribed chattels, but duty shall not be charged in respect
of —
(a) any
of the chattels in respect of which duty has been paid under section 31B
or 70 by a person liable under subsection (7) to pay the duty with which
the transfer or instrument is chargeable under subsection (4);
(b) any
of the chattels in respect of which interstate duty has been paid by such a
person; or
(c) any
of the chattels that, in the opinion of the Commissioner, are usually not
situated in Western Australia.
(6b) Chattels are
ascribed chattels for the purpose of subsection (6a) if, within the
12 months preceding the date of the disposition evidenced by the transfer
or instrument —
(a) the
unit trustee, as trustee of the unit trust scheme, held them or any interest
(including any beneficial interest) in them; and
(b) a
person liable under subsection (7) to pay the duty with which the
transfer or instrument is chargeable under subsection (4) acquired them,
directly or indirectly, from the unit trustee.
(6c) The transfer or
instrument is not chargeable with duty under subsection (6a) if the
Commissioner is satisfied that no transaction by means of which the ascribed
chattels were transferred from the unit trustee to the person referred to in
subsection (6b)(b) was effected for the collateral purpose of reducing
the duty that otherwise would be chargeable on the transfer or instrument.
(7) Subject to
sections 63AH and 73DC(6), each of the holders of a unit under a unit
trust scheme is liable to pay the duty with which a transfer of the unit or an
instrument effecting or evidencing a disposition in relation to the unit is
chargeable.
(8) A unit trustee
shall, where a transfer of a unit or an instrument effecting or evidencing a
disposition in relation to a unit has been delivered to him, retain the
transfer or instrument, as the case may be, in accordance with section 87
of the Taxation Administration Act 2003 .
[(9) deleted]
(10) A right or
obligation arising out of a disposition in relation to a unit shall not be
invalidated by reason only that the unit trustee gave effect to or recognised
the disposition or registered, recorded or entered the disposition in the
books or records of the unit trust scheme in contravention of
subsection (2).
(11) Subject to
subsection (12) and section 73DC, this section does not apply to a
disposition of a unit in a unit trust scheme during any period that the unit
trust scheme is —
(a)
registered under section 63AA(2);
(b)
granted interim registration under section 63AC(2); or
(c)
registered as a provisional public trust under section 63ADA(2).
(12) If —
(a) the
registration or interim registration of a unit trust scheme; or
(b) the
registration of a unit trust scheme as a provisional public trust,
is cancelled, this
section is taken to have applied to the unit trust scheme from the time the
cancellation was taken to have effect unless duty is chargeable under
section 63AF.
[Section 73D inserted by No. 112 of 1982
s. 8; amended by No. 81 of 1984 s. 20; No. 109 of 1984
s. 5; No. 33 of 1987 s. 19; No. 22 of 1998 s. 34;
No. 36 of 2001 s. 28; No. 2 of 2003 s. 54; No. 66 of
2003 s. 31; No. 11 of 2005 s. 8; No. 67 of 2006 s. 4;
No. 12 of 2008 s. 9.]