Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this
section —
business asset means —
(a)
goodwill of a business;
(b) a
restraint of trade arrangement for a business;
(c) a
business identity;
(d) a
business licence as defined in paragraph (b) of the definition of that
term in section 73F(1) if it authorises the carrying out of an activity
in Western Australia and elsewhere;
(e) a
right of a business under an uncompleted contract to supply commodities or
provide services;
(f)
intellectual property of a business; or
(g)
things that a business has that are in the nature of rent rolls and client
lists;
business identity means a business name, trading
name or Internet domain name, or a right to use a business name, trading name
or Internet domain name;
circuit layout right means an exclusive right
under the Circuit Layouts Act 1989 of the Commonwealth for an eligible
layout under that Act;
commodities includes land, money, credit and goods
and any interest in them;
franchise arrangement means an agreement or other
arrangement under which a person (the franchisor ) who carries on a business
authorises or permits another person (the franchisee ) —
(a) to
engage in the business of producing, supplying or providing commodities or
services, or both, at a place other than the place of business of the
franchisor as long as the franchisee does so under —
(i)
a stated marketing, business or technical plan or system;
and
(ii)
a common format or common procedure, or both;
and
(b) to
use a mark or common trade name in such a way that the business carried on by
the franchisee is or is capable of being identified by the public as being
substantially associated with the mark or name identifying, commonly connected
with or controlled by the franchisor or a person who would be related to the
franchisor for the purposes of Part IIIBA;
intellectual property means —
(a) a
patent, trademark, industrial design, copyright, registered design, plant
breeder right or circuit layout right;
(b)
anything else that has the following characteristics —
(i)
it is in the nature of a strategy, process, procedure,
mode of operation or way of working that enables a commodity or service to be
produced, supplied or provided or that enhances the production, supply,
provision or quality of a commodity or service;
(ii)
it was created, devised or developed to be used for
business purposes or, having been created, devised or developed for other
purposes, has been applied, adapted or modified for use for business purposes;
or
(c) a
right to use or exploit —
(i)
anything mentioned in paragraph (a) or (b); or
(ii)
an adaptation or modification of anything mentioned in
paragraph (a) or (b);
plant breeder right means —
(a) a
plant breeder’s right under the Plant Breeder’s Rights
Act 1994 of the Commonwealth; or
(b) a
plant breeder’s right corresponding to a right mentioned in
paragraph (a);
restraint of trade arrangement for a business
means a restraint of trade arrangement which, in the opinion of the
Commissioner, enhances or is likely to enhance the value of the business.
(2) This section
applies if a business asset of a business is acquired by a person and, at any
time in the year preceding the acquisition, the business has —
(a) been
carried on in or from Western Australia; or
(b)
supplied commodities or provided services to customers in Western Australia.
(3) This section does
not apply to the acquisition of a business asset by the franchisee from the
franchisor in accordance with a franchise arrangement unless another person
has relinquished, or agreed not to extend, that business asset or a business
asset of the same kind so that the franchisee could acquire that business
asset.
(4) This section does
not apply to the acquisition of intellectual property unless the acquisition
is the subject of an arrangement that includes the acquisition of a business
asset other than intellectual property.
(5) If a
person —
(a)
carries on, or has carried on, a business (the first business ); and
(b)
creates intellectual property, a restraint of trade arrangement or a business
identity related to the first business for the purpose of the carrying on of
the first business or another business by another person,
the creation of the
intellectual property, restraint of trade arrangement or business identity is
to be regarded for the purposes of this section as the acquisition by that
other person of a business asset of the first business.
(6) If this section
applies —
(a) the
business asset is to be regarded for the purposes of this Act as property; and
(b) the
acquisition of the business asset is to be regarded for the purposes of this
Act as a transaction that transfers property and is chargeable with duty,
whether or not the
business asset would otherwise be regarded under this Act as property and
despite item 2(7) of the Third Schedule.
(7) Subject to
subsection (10), duty on the acquisition of the business asset is to be
assessed in accordance with whichever of subsection (8) or (9) is
applicable.
(8) If the principal
place of business or head office of the business is in Western Australia, duty
is to be assessed on the amount determined using the following
formula —
where —
A is the dutiable
amount;
CUV is the
consideration for the acquisition of the business asset, or the unencumbered
value of the business asset, whichever is the greater;
TS is the gross amount
(in Australian dollars) of all the commodities supplied and services provided
by the business in the last 3 completed financial years preceding the
acquisition; and
IS is the gross amount
(in Australian dollars) of the commodities supplied and services provided by
the business to customers elsewhere in Australia in the last 3 completed
financial years preceding the acquisition.
(9) If neither the
principal place of business nor the head office of the business is in Western
Australia, duty is to be assessed on the amount determined using the following
formula —
where —
A is the dutiable
amount;
CUV is the
consideration for the acquisition of the business asset, or the unencumbered
value of the business asset, whichever is the greater;
TS is the gross amount
(in Australian dollars) of all the commodities supplied and services provided
by the business in the last 3 completed financial years preceding the
acquisition; and
WAS is the gross
amount (in Australian dollars) of the commodities delivered and services
provided by the business to customers in Western Australia in the last
3 completed financial years preceding the acquisition.
(10) Despite whichever
of subsection (8) or (9) is applicable, the Commissioner may determine
the dutiable amount on another basis if the Commissioner is satisfied that the
other basis would be more appropriate in the circumstances.
(11) If this section
applies to the acquisition of a business asset as defined in
paragraph (d) of the definition of that term in subsection (1),
section 73F does not apply to the acquisition.
(12) Section 74
applies to a contract or agreement for the acquisition of a business asset to
which this section would apply.
[Section 74C inserted by No. 66 of 2003
s. 37.]