Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this
section —
call option means the right referred to in
subsection (2)(a);
option property means —
(a) the
property to which the call option applies; or
(b) if
the put option applies to only a part of the property to which the call option
applies, that part of the property;
property includes an estate or interest in
property;
put option means the right referred to in
subsection (2)(b).
(2) Subject to
subsection (4), this subsection applies if, at the same time —
(a) a
person ("A")" "has a right to require another person ("B") to sell property to
A, or to a person who has an agreement, arrangement or understanding with A
relating to the property; and
(b) B
has a right to require A, or a person referred to in paragraph (a), to
purchase —
(i)
the property;
(ii)
a part of the property; or
(iii)
property that includes the property,
from B.
(3)
Subsection (2) applies regardless of when the call option or the put
option is exercisable.
(4) The Commissioner
may determine that subsection (2) does not apply if the Commissioner is
satisfied —
(a) that
the call option and the put option are for, and only for, the purpose of
obtaining finance or making other financial arrangements; or
(b) that
the call option and the put option form part of a scheme of call options and
put options given by the proprietors of a business that —
(i)
are for, and only for, the purpose of facilitating the
continuation of the business by one or some of the proprietors (the continuing
proprietor or proprietors ); and
(ii)
are not exercisable except on the occurrence of an event
specified in them that would cause the continuing proprietor or proprietors to
seek to acquire the interest of another of the proprietors.
(5) In
subsection (4)(b) —
proprietor means —
(a) in
the case of a partnership, a partner;
(b) in
the case of a company, a shareholder;
(c) in
the case of a unit trust scheme, a unit holder; or
(d) in
any other case, a person the Commissioner determines to be a proprietor of the
business.
(6) From the time when
subsection (2) applies the call option is to be regarded as —
(a) a
contract for the sale of the option property to A for the purposes of
section 74(1); or
(b) an
acquisition by A of beneficial ownership of the option property for the
purposes of section 31B,
whichever is
applicable in the circumstances.
(7) The consideration
for the contract or acquisition mentioned in subsection (6) is taken to
be —
(a) the
sum of —
(i)
the amount paid by way of consideration for the granting
of the call option in respect of the option property; and
(ii)
the amount payable in the event of the call option being
exercised in respect of the option property;
or
(b) if
the unencumbered value of the option property is ascertainable and it is
greater than the sum mentioned in paragraph (a), that unencumbered value.
(8) If as a result of
the call option or the put option being exercised —
(a) a
contract or agreement for the sale of the option property is executed; or
(b)
there is an acquisition of beneficial ownership of the option property for the
purposes of section 31B,
the duty payable in
respect of the contract or agreement or because of the acquisition is to be
reduced by the amount of any duty paid because of subsections (6)
and (7).
(9) This subsection
applies if —
(a) A
has assigned the call option to another person ("C") so that C has a right to
require B to sell the option property to C, or to a person who has an
agreement, arrangement or understanding with C relating to the property; and
(b) B
has a right to require C, or a person referred to in paragraph (a), to
purchase the option property from B.
(10) If
subsection (9) applies, subsection (2) does not apply in relation to
the rights of C and B referred to in subsection (9)(a) and (b).
(11) From the time
when subsection (9) applies the assignment of the call option is to be
regarded as —
(a) a
contract for the sale of the option property to C for the purposes of
section 74(1); or
(b) an
acquisition by C of beneficial ownership of the option property for the
purposes of section 31B,
whichever is
applicable in the circumstances.
(12) The consideration
for the contract or acquisition mentioned in subsection (11) is taken to
be —
(a) the
sum of —
(i)
the amount paid by way of consideration for the
assignment of the right referred to in subsection (9)(a); and
(ii)
the amount payable in the event of the right referred to
in subsection (9)(a) being exercised;
or
(b) if
the unencumbered value of the option property is ascertainable and it is
greater than the sum mentioned in paragraph (a), that unencumbered value.
(13) If as a result of
the right referred to in subsection (9)(a) or the right referred to in
subsection (9)(b) being exercised —
(a) a
contract or agreement for the sale of the option property is executed; or
(b)
there is an acquisition of beneficial ownership of the option property for the
purposes of section 31B,
the duty payable in
respect of the contract or agreement or because of the acquisition is to be
reduced by the amount of any duty paid because of subsections (11)
and (12).
(14) If —
(a) the
call option and the put option both expire without being exercised; or
(b)
after either of those options is rescinded or cancelled by agreement, the
other expires without being exercised,
and
subsection (9) has never applied, the duty chargeable on the call option
is reduced to the amount of duty that would have been payable but for
subsections (6) and (7).
(15) If —
(a) the
rights referred to in subsection (9)(a) and (b) both expire without being
exercised; or
(b)
after either of those rights is rescinded, withdrawn, surrendered or cancelled
by agreement, the other expires without being exercised,
the duty chargeable on
the assignment of the call option is reduced to the amount of duty that would
have been payable but for subsections (11) and (12).
(16) Subject to
section 17 of the Taxation Administration Act 2003 , the
Commissioner must make any reassessment necessary to give effect to
subsection (14) or (15).
(17) For the purposes
of subsection (16), section 17 of the Taxation Administration
Act 2003 applies as if the original assessment had been made —
(a) in
the case of subsection (14), as soon as the call option and the put
option had both expired; or
(b) in
the case of subsection (15), as soon as the rights referred to in
subsection (9)(a) and (b) had both expired.
(18) In relation to
duty paid because of subsections (6) and (7) —
(a) the
matter is not carried into effect for the purposes of section 20(1)(a) or
(2)(a) if —
(i)
the call option and the put option are rescinded or
cancelled by agreement; or
(ii)
after either of those options expires without being
exercised, the other is rescinded or cancelled by agreement;
and
(b) if
section 20(1) or (2) applies, the amount of duty is not to be reduced to
less than the amount that would have been payable but for subsections (6)
and (7).
(19) In relation to
duty paid because of subsections (11) and (12) —
(a) the
matter is not carried into effect for the purposes of section 20(1)(a) or
(2)(a) if —
(i)
the rights referred to in subsection (9)(a) or (b)
are rescinded, withdrawn, surrendered or cancelled by agreement; or
(ii)
after either of those rights expires without being
exercised, the other is rescinded, withdrawn, surrendered or cancelled by
agreement;
and
(b) if
section 20(1) or (2) applies, the amount of duty is not to be reduced to
less than the amount that would have been payable but for
subsections (11) and (12).
[Section 74B inserted by No. 66 of 2003
s. 37.]