STAMP ACT 1921 - SECT 76ATI
STAMP ACT 1921 - SECT 76ATI
76ATI . Meaning of “listed land-holder corporation”
(1) In this Division a
corporation is a listed land-holder corporation if —
(a) it
is —
(i)
a body corporate that is taken to be registered outside
Western Australia (for the purposes of the Corporations Act) or that is
otherwise formed or incorporated outside Western Australia, not being a body
corporate that is —
(I) within paragraphs (a) to (d) of section
66A(4) of the Corporations Law; or
(II) a subsidiary,
within the meaning in section 76ATB(6), of a WA company to which Division 3a
applies;
or
(ii)
a WA company that would be a subsidiary, within the
meaning in section 76ATB(6), of a body corporate referred to in subparagraph
(i) if that body corporate were a WA company;
and
(b) it
is a land-holder within the meaning in subsection (2) and is listed on a
recognised financial market.
(2) A corporation is a
land-holder for the purposes of this Division if at the time of an acquisition
of a controlling interest —
(a) it
is entitled to land situated in Western Australia and the unencumbered value
of the land is not less than $1 000 000, or it is entitled to land situated in
Western Australia as a co-owner of the freehold or of a lesser estate in the
land and the value of the whole of the freehold or lesser estate is not less
than $1 000 000; and
(b) the
value of all land to which the corporation is entitled, whether situated in
Western Australia or elsewhere, is 60% or more of the value of all property to
which it is entitled, other than property directed to be excluded by
subsection (4),
or if the Commissioner
determines that paragraphs (a) and (b) would have applied to the corporation
at the time of the acquisition of the controlling interest but for a
transaction, or series of transactions, which in the Commissioner’s
opinion had as its purpose, or one of its purposes, the defeat of the object
of this Division.
(3) If the
Commissioner makes a determination under subsection (2) —
(a) the
Commissioner is to give notice of it to the corporation;
(b) the
notice is to contain reasons for the determination;
(c) for
the purposes of section 76ATG(1) the acquisition of the controlling interest
is taken to have occurred when the notice is given; and
(d) a
reference in another provision of this Division to land and chattels situated
in Western Australia to which the corporation is entitled includes a reference
to property so situated to which it would have been entitled but for the
transaction, or series of transactions, to which the determination relates.
(4) The following
property of a corporation, or of a trustee or another corporation referred to
in subsection (6), shall not be included for the purpose of calculating the
value of property under subsection (2)(b) —
(a) cash
or money in an account at call;
(b)
negotiable instruments, and money on deposit with any person;
(c)
property consisting of rights or interests under a sales contract (including a
forward sales contract) relating to minerals, primary products or other
commodities;
(ca) an
amount paid or payable to the corporation or the trustee or other corporation
referred to in subsection (6) under a contract or agreement referred to in
subsection (7)(b);
(d)
money lent by the corporation or a trustee or a related corporation referred
to in subsection (6) to —
(i)
any person who in relation to the corporation is an
associated person; or
(ii)
any person at call or in terms that require or allow full
repayment to the corporation within 12 months after the money is lent;
(e) in
the case of the corporation, property consisting of a shareholding in another
corporation referred to in subsection (6) or of a share or interest or
entitlement under a trust referred to in that subsection;
(f) a
licence or patent or other intellectual property (including knowledge or
information that has a commercial value) relating to any process, technique,
method, design or apparatus to —
(i)
locate, extract, process, transport or market minerals;
or
(ii)
grow, rear, breed, maintain, produce, harvest, collect,
process, transport or market primary products;
(g)
stores, stockpiles or holdings of minerals or primary products (whether
processed or unprocessed) produced by the corporation or a related person;
(h)
future tax benefits (whether in the nature of tax losses, capital losses,
foreign losses or foreign tax credits) under the Income Tax Assessment Act
1997 or Income Tax Assessment Act 1936 of the Commonwealth or similar benefits
under the laws of another jurisdiction;
(i)
any property prescribed for the purposes of this
subsection; and
(j) any
other property, whether of the same nature as or a different nature from the
foregoing, in respect of which it is not shown to the Commissioner’s
satisfaction that a reason for ownership by the corporation or the trustee or
other corporation referred to in subsection (6) is not for the purpose of
defeating the object of this Division.
(5) In forming an
opinion for the purposes of subsection (4)(j) the Commissioner may have regard
to —
(a) the
source of the property and the source of funding for its acquisition;
(b) its
nature and its relevance to any business carried on by the corporation or the
trustee or other corporation;
(c) the
period for which it has been and is likely to remain the property of the
corporation or the trustee or other corporation; and
(d) any
other matter that the Commissioner considers relevant.
(6) Without limiting
the meaning of “entitled”, a corporation is deemed to be entitled
to land or property where —
(a) the
trustee of a trust is entitled to that land or property and the corporation
—
(i)
has a share or interest in the trust whether vested or
contingent; or
(ii)
in the case of a discretionary trust, may benefit from
that trust,
but an entitlement
under subparagraph (i) is limited to the extent of that share or interest;
(b) in a
case where the entitlement to participate referred to in section 76ATK(2)
relates to the corporation itself, any of the following corporations is
entitled to that land or property —
(i)
a corporation that is a subsidiary (as defined in the
Corporations Act ) of the corporation, or that would be a subsidiary (as so
defined) of the corporation if “more” in section 46(a)(ii) and
(iii) of the Corporations Act were deleted and “not less” were
inserted instead;
(ii)
any other corporation where the corporation would be
entitled if the other corporation were to be wound up, after the time of the
acquisition of the controlling interest, to participate in a distribution of
the property of the other corporation to an extent not less than 50% of the
value of the distributable property;
or
(c) in a
case where the entitlement to participate referred to in section 76ATK(2)
relates to a holding corporation (as defined in section 76ATK(4)(a)) of the
corporation, any of the following corporations is entitled to that land or
property —
(i)
a corporation that is a subsidiary (as defined in the
Corporations Act ) of the holding corporation, or that would be a subsidiary
(as so defined) of the holding corporation if “more” in
section 46(a)(ii) and (iii) of the Corporations Act were deleted and
“not less” were inserted instead;
(ii)
any other corporation where the holding corporation would
be entitled if the other corporation were to be wound up, after the time of
the acquisition of the controlling interest, to participate in a distribution
of the property of the other corporation to an extent not less than 50% of the
value of the distributable property.
(7) In determining the
entitlement of an entity to land for the purposes of this section or
section 76ATL —
(a) if
the entity has contracted or agreed to acquire an interest in land, that
contract or agreement is to be regarded as having been completed even if it
has not yet been completed; and
(b) if
the entity has contracted or agreed to dispose of an interest in land but that
contract or agreement has not yet been completed, that contract or agreement
is to be disregarded.
(8) In determining the
entitlement of an entity to property other than land for the purposes of this
section —
(a) if
the entity has contracted or agreed to dispose of an interest in such
property, that contract or agreement is to be regarded as having been
completed even if it has not yet been completed; and
(b) if
the entity has contracted or agreed to acquire an interest in such property
but that contract or agreement has not yet been completed, that contract or
agreement is to be disregarded.
[Section 76ATI inserted: No. 11 of 2004 s. 29;
amended: No. 11 of 2005 s. 18, 20 and 25.]