Western Australian Consolidated Acts

STAMP ACT 1921 - SECT 73E

73E .         Disposition of shares in discretionary trustee companies

        (1)         In this section —

        company means a corporation which is a discretionary trustee;

        disposition , in relation to a share, includes —

            (a)         a transfer or other disposition of the share;

            (b)         the allotment or issue of the share;

            (c)         the redemption, surrender or cancellation of the share; and

            (d)         the variation, abrogation or alteration of a right pertaining to the share with respect to voting, whether at meetings of the company or the directors or otherwise,

        but does not include a disposition by which the personal representative of a deceased person disposes of a share to a beneficiary in the administration of the estate of the deceased;

        officer , in relation to a corporation, has the same definition as in section 9 of the Corporations Act;

        share means a share or stock of a company that is not listed on a recognised financial market and includes an interest in a share.

        (2)         A company which is resident or domiciled in Western Australia or which carries on business in Western Australia as a discretionary trustee and an officer of such a company shall not make, accept, give effect to, recognise, or register, record or enter in the books or records of the company a disposition in relation to a share unless —

            (a)         a transfer or an instrument effecting or evidencing the disposition is executed and delivered to the company; and

            (b)         the transfer or the instrument, as the case may be, is stamped.

        Penalty: $20 000.

        [(3)         deleted]

        (4)         Subject to section 73CA and subsections (5) and (6), a transfer of a share and an instrument effecting or evidencing a disposition in relation to a share shall each be chargeable with duty as if it were a conveyance free of encumbrances of an undivided share, equivalent to the proportion of the total issued capital of the company represented by the share, in the property held by the discretionary trustee as trustee of the discretionary trust.

        (5)         Subsection (4) shall not apply to a transfer or instrument if the Commissioner is satisfied that it is not made in contemplation of the passing of a beneficial interest in any property held by the company as discretionary trustee and is not part of, or made pursuant to, a scheme whereby any beneficial interest, vested or contingent, in any property held by the company as discretionary trustee has passed or will or may pass to any person.

        (6)         Subject to section 73CA, where —

            (a)         a disposition in relation to a share involves a variation, abrogation or alteration of a right or rights pertaining to the share; and

            (b)         the Commissioner is satisfied, having regard to the rights pertaining to the other issued shares in the capital of the company, that the disposition does not significantly affect the right or rights pertaining to the share,

                the instrument effecting or evidencing the disposition shall be chargeable with duty under item 6 of the Second Schedule.

        (7)         The Commissioner shall, where it is necessary to determine, for the purposes of subsection (4), the proportion of the total issued capital of a company represented by a share, take into account, in such manner as he considers appropriate, the respective rights and obligations pertaining to the share and the other shares in the capital of the company.

        (8)         Each of the holders of a share in a company is liable to pay the duty with which a transfer of the share or an instrument effecting or evidencing a disposition in relation to the share is chargeable.

        (9)         A company shall, where a transfer of a share or an instrument effecting or evidencing a disposition in relation to a share has been delivered to it, retain the transfer or instrument, as the case may be, in accordance with section 87 of the Taxation Administration Act 2003 .

        [(10)         deleted]

        (11)         A right or obligation arising out of a disposition in relation to a share shall not be invalidated by reason only that the company or an officer of the company made, accepted, gave effect to or recognised the disposition or registered, recorded or entered the disposition in the books or records of the company in contravention of subsection (2).

        [Section 73E inserted by No. 112 of 1982 s. 8; amended by No. 39 of 1994 s. 21; No. 53 of 1999 s. 20; No. 10 of 2001 s. 168; No. 2 of 2003 s. 56; No. 21 of 2003 s. 26; No. 12 of 2008 s. 12.]