Western Australian Consolidated Acts Western Australian Consolidated Acts (1aa) In this
section —
dormant has the meaning given by
section 75JAA;
dormant corporation means a corporation that has
been dormant from when it was incorporated;
interest , in relation to a managed investment
scheme, has the same meaning as it has in section 9 of the Corporations
Act;
managed investment scheme has the same meaning as
it has in section 9 of the Corporations Act;
member means a person who holds an interest in a
managed investment scheme;
scheme property , in relation to a managed
investment scheme, has the same meaning as it has in the Corporations Act in
relation to a managed investment scheme that is registered under
section 601EB of that Act.
(1) Every contract or
agreement, howsoever executed, for the sale of any estate or interest in any
property shall be charged with the same ad valorem duty to be paid by the
purchaser as if it were an actual conveyance on sale of the estate, interest
or property contracted or agreed to be sold.
(2) Subject to this
section, when the name of the purchaser as set out in a contract or agreement
referred to in subsection (1) differs from the name of the transferee as
set out in the subsequent conveyance or transfer, that conveyance or transfer
shall be deemed to be a separate and distinct transaction and shall be subject
to ad valorem duty.
(3) Notwithstanding
anything in subsection (2), if —
(a) the
Commissioner is satisfied that the person named in the contract or agreement
concerned as the purchaser was acting as the agent of the person named in the
subsequent conveyance or transfer as the transferee at the time when that
contract or agreement was executed;
(b) the
Commissioner endorses on the subsequent conveyance or transfer concerned that
the Commissioner is satisfied in relation to the matters referred to in
paragraph (a); and
(c) the
contract or agreement of sale concerned is stamped,
the same duty as is
payable under item 6 of the Second Schedule shall be payable on the
subsequent conveyance or transfer.
(3a) Notwithstanding
subsection (2), if —
(a) the
person named as purchaser in a contract or agreement referred to in
subsection (1) entered into the contract or agreement with the intention
that the property concerned would be transferred to —
(i)
a corporation that the person intended to be
incorporated; or
(ii)
a dormant corporation, the shares in which the person
intended to be acquired;
(b) at
the time the contract or agreement was entered into action was being taken to
incorporate the corporation or acquire the shares in the dormant corporation;
and
(c) duty
has been paid on the contract or agreement under subsection (1),
a conveyance or
transfer of the property by the vendor under the contract or agreement to the
corporation after it has been incorporated or after the shares in it have been
acquired, as the case requires, shall be charged with duty under item 6
of the Second Schedule.
(3b) Notwithstanding
subsection (2), if —
(a) the
Commissioner is satisfied that a managed investment scheme has been, or is to
be, established by means of an offer to subscribe to the scheme made to the
public;
(b) the
Commissioner is satisfied that before the establishment of the
scheme —
(i)
the person named as purchaser in a contract or agreement
referred to in subsection (1) entered into the contract or agreement; or
(ii)
the person promoting the scheme arranged for that
contract or agreement to be entered into,
with the intention
that the property concerned would become scheme property;
(c) the
contract or agreement provides to the effect that, if the scheme is not
established, the contract or agreement is terminated;
(d) the
Commissioner endorses on the subsequent conveyance or transfer that the
Commissioner is satisfied in relation to the matters referred to in
paragraphs (a) and (b); and
(e) duty
has been paid on the contract or agreement under subsection (1),
a conveyance or
transfer of the property by the vendor under the contract or agreement that
results in the property becoming scheme property shall be charged with duty
under item 6 of the Second Schedule.
(3c) Notwithstanding
subsection (2), if —
(a) a
contract or agreement referred to in subsection (1) is entered into; and
(b) duty
has been paid on the contract or agreement under subsection (1),
a conveyance or
transfer of the property concerned by the vendor under the contract or
agreement —
(c) to
the extent of the whole or any part of the interest that the purchaser would
have acquired in the property if the contract or agreement had been completed;
and
(d) to a
person who at the time the contract or agreement was entered into was related
to that purchaser,
shall be charged with
duty under item 6 of the Second Schedule.
(3d) For the purposes
of subsection (3c), the following persons are related to a purchaser who
is an individual —
(a) the
purchaser’s spouse or de facto partner;
(b) a
parent or remoter lineal ancestor of the purchaser or the purchaser’s
spouse or de facto partner;
(c) a
child or remoter lineal descendant of the purchaser or the purchaser’s
spouse or de facto partner;
(d) a
brother or sister of the purchaser or the purchaser’s spouse or de facto
partner;
(e) a
corporation if —
(i)
the purchaser is the sole shareholder of the corporation;
or
(ii)
the purchaser is a shareholder of the corporation and is
related (within the meaning of this section) to each of the other
shareholders;
(f) a
unit trustee in the unit trustee’s capacity as trustee of a unit trust
if —
(i)
the purchaser is the sole unit holder in the unit trust;
or
(ii)
the purchaser is a unit holder in the unit trust and is
related (within the meaning of this section) to each of the other unit
holders.
(3e) For the purposes
of subsection (3c), a person is related to a purchaser that is a
corporation if —
(a) the
person is the sole shareholder of the purchaser; or
(b) the
person is a shareholder of the purchaser and, if the person were a purchaser,
would be related (within the meaning of this section) to each of the other
shareholders.
(3f) For the purposes
of subsection (3c), a person is related to a purchaser that is a unit
trustee if —
(a) the
person is the sole unit holder in the unit trust; or
(b) the
person is a unit holder in the unit trust and, if the person were a purchaser,
would be related (within the meaning of this section) to each of the other
unit holders.
(3g) For the purposes
of subsections (3d), (3e) and (3f), a person cannot be related to a
purchaser in relation to the conveyance or transfer to the person of property
that the person intends to hold on behalf of another person (the beneficiary
) —
(a) as
the trustee of a discretionary trust (as defined in section 76);
(b)
subject to subsection (3d)(f), as a unit trustee; or
(c) as a
trustee other than a trustee referred to in paragraph (a) or (b), unless
the beneficiary is also related (within the meaning of this section) to the
purchaser.
(3h) For the purposes
of subsections (3d), (3e) and (3f) —
(a) an
illegitimate person is to be treated as the legitimate child of that
person’s parents; and
(b) it
is irrelevant whether a relationship is of the whole or half-blood, or whether
it is a natural relationship or a relationship established by a written law.
(4) When duty has
been paid in accordance with subsection (1), the conveyance or transfer
concerned made to the purchaser shall not be chargeable with duty but the
Commissioner, on being requested to do so, is to endorse on the conveyance or
transfer the duty paid.
[Section 74 inserted by No. 37 of 1979
s. 50; amended by No. 81 of 1984 s. 21; No. 2 of 2003
s. 58; No. 66 of 2003 s. 35.]