Western Australian Consolidated Acts Western Australian Consolidated Acts (1) This section
applies if —
(a) an
instrument conveys, transfers or assigns a beneficial interest in property
from one body corporate ("A")" "to another body corporate ("B");
(b) the
instrument does not convey, transfer or assign any other interest or property
which if separately conveyed, transferred or assigned would not be exempt from
duty;
(c) A
and B are associated bodies corporate;
(d) at
the date of execution of the instrument, A and B have been associated bodies
corporate for at least the qualifying period unless —
(i)
A and B became associated in the circumstances of an
acquisition described in subsection (1) of section 75JA (B being
“the transferee” referred to in that subsection), a
Part IIIBA statement in respect of that acquisition was exempted under
section 75JA(2) and section 75JF has not become applicable to that
statement;
(ii)
A and B have been associated since A acquired at least
90% of the issued share capital —
(A) of B on its incorporation in Australia;
or
(B) of B as a body corporate incorporated
in Australia that had been dormant since it was incorporated,
and B has been dormant
from when A and B became associated until B resolved to acquire the
beneficial interest;
(iii)
A and B became associated because B acquired at least
90% of the issued share capital of A, a Part IIIBA statement was
lodged in respect of that acquisition, and ad valorem duty was paid on that
Part IIIBA statement; or
(iv)
A and B are associated in the circumstances described in
section 75J(2)(a)(ii), the third body corporate referred to in
section 75J(2)(a)(ii) ("C") has owned the issued share capital of B in
those circumstances since B was incorporated in Australia, B has been dormant
from when it was incorporated until it resolved to acquire the property from
A, and A has been associated with C for at least the qualifying period;
(e) B
does not hold the beneficial interest on trust for another person; and
(f) the
instrument was not made pursuant to or in connection with an arrangement under
which —
(i)
the consideration, or any part of it, for the conveyance,
transfer or assignment was to be provided or received, directly or indirectly,
by a person other than A or B or a body corporate that at the time the
instrument was executed was associated with either A or B; or
(ii)
A or B or a body corporate associated with either of them
is to be enabled to provide any of the consideration or is to dispose of any
of the consideration by or in consequence (wholly or partially) of the
carrying out of a transaction involving a payment or other disposition by a
person other than A or B or a body corporate associated with either of them at
the time the instrument was executed.
(1a) If, in relation
to an instrument executed on or after 18 May 2005 (other than one
executed in reliance on a determination made under section 75JC(4) before
that day), C’s ownership of the issued share capital of B referred to in
subparagraph (iv) of subsection (1)(d) is indirect, this section
does not apply by virtue of that subparagraph unless this section would have
applied if the beneficial interest had been conveyed, transferred or
assigned —
(a) from
A to C; and
(b) from
C to B.
(2) In
subsection (1)(d) the qualifying period is the shorter of 3 years
or —
(a) if
prior to A acquiring the beneficial interest, the interest was owned by bodies
corporate associated with A — the period while the interest
was continuously owned by A and those associated bodies corporate;
(b) if
the beneficial interest came into the ownership of A or of a body corporate
associated with A by means of an instrument on which ad valorem duty or
interstate duty has been paid — the period since that
instrument was executed; or
(c) in
any other case — the period since A acquired the beneficial
interest.
(2a) This section also
applies if —
(a) an
instrument executed on or after the day on which section 50 of the
Business Tax Review (Assessment) Act (No. 2) 2003 comes into operation 1
evidences an agreement to transfer or assign an interest in a vehicle and
includes the following information —
(i)
the make and model of the vehicle;
(ii)
the licence plate number of the vehicle;
(iii)
the market value of the vehicle;
(iv)
the purchase price (if applicable) of the vehicle;
and
(b)
subsection (1)(b) to (f) are met (with any necessary modifications).
(3) If on an
application under section 75JD in respect of an instrument to which
subsection (1)(a) refers it is shown to the satisfaction of the
Commissioner that this section applies, then —
(a) the
Commissioner shall exempt an instrument executed on or after
1 October 1996 to which this section applies from duty under
item 4, 13(3) or 19 of the Second Schedule; and
(b) if
the conveyance, transfer or assignment effected by an instrument to which this
section applies is a relevant acquisition under Part IIIBA that occurs on
or after 1 October 1996 — the Commissioner shall
exempt a Part IIIBA statement lodged in respect of the relevant acquisition
from duty chargeable under section 76AH, 76AO, 76ATA or 76ATH.
(3aa) In determining
whether this section applies for the purposes of subsection (3)(b), the
reference in subsection (1)(d) to the date of execution of the instrument
is taken to be a reference to the date of the relevant acquisition.
(3a) If, on an
application under section 75JD in respect of an instrument to which
subsection (2a) refers, it is shown to the satisfaction of the
Commissioner that this section applies, then the Commissioner shall issue to
the applicant an exemption certificate in the approved form.
(4) If —
(aa) an
instrument is exempted under subsection (3); or
(ab) an
exemption certificate is issued under subsection (3a) in relation to an
instrument,
and within
5 years after the execution of the instrument or the date of the relevant
acquisition —
(a) A
and B cease to be associated;
(b) B,
being a body corporate that became associated with A in the circumstances
described in section 75JA(1)(a) to (e), issues or cancels any shares
or varies the rights of any of its shares;
(ba)
section 75J(4) having applied to the issued share capital of A or B, a
change is made to the purpose for which that body corporate is carried on;
(c) the
beneficial interest in any share in B issued in the circumstances described in
section 75JA(1)(c) is transferred from the person to whom the share was
issued;
(ca) on
or after 18 May 2005 there is a transfer of A’s
beneficial interest in shares in B (the share transfer ) such that, if the
conveyance, transfer or assignment referred to in subsection (1)(a) had
occurred after the share transfer, this section would not have applied to the
instrument effecting the conveyance, transfer or assignment; or
(d)
B’s assets are distributed on a liquidation,
A and B, or A or B, or
the person (as the case requires) shall notify the Commissioner in an approved
form within one month after the relevant event.
(4a) If the event
referred to in subsection (4)(a), (b), (ba), (c), (ca) or (d) occurs on
or after 1 July 2008, subsection (4) does not apply if the
event is the subject of —
(a) an
application made under the Duties Act 2008 section 262 for an
exemption; or
(b) an
application made under the Duties Act 2008 section 180; or
(c) a
statement lodged under the Duties Act 2008 section 200.
(5) If —
(aa) an
instrument is exempted under subsection (3); or
(ab) an
exemption certificate is issued under subsection (3a) in relation to an
instrument,
and before
1 July 2008 and within 5 years after the execution of the
instrument or the date of the relevant acquisition A and B cease to be
associated then the claw-back applies.
(5a) The claw-back
under subsection (5) does not apply if A and B cease to be
associated in circumstances where A has no assets or no assets other than cash
or money in an account at call or on deposit with any person or a negotiable
instrument.
(5b) If A is
liquidated a reference in subsection (5a) to its assets is a reference to
them at the time of the appointment of the liquidator and at all subsequent
times until they are distributed to the shareholders.
(5c) In
subsections (5c) to (5j) —
controlling body means —
(a) in a
case to which subsection (5e)(a) applies, a body corporate which, at the
time of the execution of the instrument or the date of the relevant
acquisition, owned and controlled the parent body;
(b) in a
case to which subsection (5e)(b) applies, a body corporate which, at the
time the association referred to in subsection (5e)(b) arose, owned and
controlled the parent body;
own and control a body corporate means to
beneficially own (directly or indirectly) at least 90% of the issued share
capital of, and have control (within the meaning of section 75J(2)(b))
over, the body corporate;
parent body means the other body corporate
referred to in subsection (5d) or, if there is more than one of them,
whichever of them did not, at the relevant time or date mentioned in the
definition of “controlling body”, own and control any of the
others;
qualifying period has the same meaning as it has
in subsection (1)(d).
(5d) An association is
a prescribed relationship for the purposes of subsection (5e) if A and B
are associated because another body corporate owns and controls each of them.
(5e) For the purposes
of subsection (5f), the relevant circumstances have occurred
if —
(a) the
association between A and B which satisfied the requirement of
subsection (1)(c) was a prescribed relationship for the whole or a part
of the qualifying period; or
(b) the
association between A and B which prevents the claw-back under
subsection (5) from applying is a prescribed relationship.
(5f) If —
(aa) an
instrument is exempted under subsection (3) or an exemption certificate
is issued under subsection (3a) in relation to an instrument; and
(ab) the
relevant circumstances have occurred,
and within
5 years after the execution of the instrument or the date of the relevant
acquisition the parent body —
(a)
ceases to beneficially own (directly or indirectly) at least 90% of the
issued share capital of B; or
(b)
ceases to have voting control (within the meaning of section 75J(2)(b))
over B,
then —
(c) the
parent body and B shall notify the Commissioner in an approved form within one
month after the relevant event; and
(d) if
the relevant event occurred before 1 July 2008, the claw-back
applies.
(5fa) If the relevant
event occurs on or after 1 July 2008, subsection (5f)(c) does
not apply if the event is the subject of —
(a) an
application made under the Duties Act 2008 section 262 for an
exemption; or
(b) an
application made under the Duties Act 2008 section 180; or
(c) a
statement lodged under the Duties Act 2008 section 200.
(5g) Despite
subsection (5f)(d), the Commissioner may, on an application under this
subsection, waive the claw-back if —
(a) a
body corporate approved by the Commissioner (being a controlling body)
continues to own and control B; and
(b) the
Commissioner is satisfied that waiving the claw-back would not be inconsistent
with the objects of this section.
(5h) The application
shall be in an approved form.
[(5i) deleted]
(5j) If the claw-back
is waived under subsection (5g) —
(a)
subsection (5f) then applies as if references in it to the parent body
were references to the body corporate approved under subsection (5g); and
(b) a
reference in this Part to subsection (5f)(c) is to be read as a reference
to that provision as applied by paragraph (a).
(6) If —
(aa) an
instrument is exempted under subsection (3); or
(ab) an
exemption certificate is issued under subsection (3a) in relation to an
instrument,
and before
1 July 2008 and within 5 years after the execution of the
instrument or the date of the relevant acquisition B’s assets are
distributed to its shareholders on a liquidation, then the claw-back applies.
(7) If —
(aa) an
instrument is exempted under subsection (3); or
(ab) an
exemption certificate is issued under subsection (3a) in relation to an
instrument,
and A and B became
associated in the circumstances described in section 75JA(1)(a) to (e)
and before 1 July 2008 and within 5 years after the execution
of the instrument or the date of the relevant acquisition A and B cease to be
associated in circumstances where the claw-back does not apply under
subsection (5) and —
(a) B
issues or cancels any shares or varies the rights of any of its shares;
(b) the
beneficial interest in any share in B issued in the circumstances described in
section 75JA(1)(c) is transferred from the person to whom the share was
issued; or
(c)
B’s assets are distributed to its shareholders on a liquidation,
then the claw-back
applies unless, in a case where paragraph (b) applies, the Commissioner
is satisfied that the transfer is in connection with a scheme for the
reconstruction of a body corporate or the amalgamation of bodies corporate.
(8) If the claw-back
applies under subsection (7), A shall not be liable to pay any duty or
penalty tax under section 75JE or 75JF.
(9) Subject to
subsection (10), if —
(aa) an
instrument is exempted under subsection (3); or
(ab) an
exemption certificate is issued under subsection (3a) in relation to an
instrument,
and
section 75J(4) applied to the issued share capital of A or B, the
claw-back applies if the Commissioner is satisfied that before
1 July 2008 and within 5 years after the execution of the
instrument or the date of the relevant acquisition that body corporate has
been carried on for the purposes of profit or gain to its members.
(10) The claw-back
under subsection (9) does not apply if the constitution or governing
rules of the body corporate have been changed so that its issued share capital
carries the right to unlimited participation in the distribution of its income
and capital.
(11) If —
(aa) an
instrument is exempted under subsection (3); or
(ab) an
exemption certificate is issued under subsection (3a) in relation to an
instrument,
the claw-back applies
if there is a transfer of the kind referred to in subsection (4)(ca) on
or after 18 May 2005 but before 1 July 2008 and within
5 years after the execution of the instrument or the date of the relevant
acquisition.
[Section 75JB inserted by No. 48 of 1996
s. 42; amended by No. 51 of 1997 s. 7; No. 29 of 2000
s. 6(1); No. 3 of 2001 s. 19; No. 2 of 2003 s. 77;
No. 66 of 2003 s. 50; No. 11 of 2004 s. 14; No. 12 of
2004 s. 31; No. 11 of 2005 s. 13; No. 12 of 2008 s. 16.]