Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this Part,
unless the contrary intention appears —
acquire , in relation to an interest in a WA
company or a corporation, means to acquire beneficially in any manner or by
any means and includes the increasing of an existing interest, but does not
include an acquisition —
(a) that
is chargeable with duty under section 73E(4);
(b) that
occurs solely as the result of —
(i)
the appointment of a receiver or trustee in bankruptcy;
(ii)
the appointment of a liquidator;
(iii)
the making of a compromise or arrangement under
Part 5.1 of the Corporations Act —
(I) which has been made with the
corporation’s creditors or a class of them;
(II) which has been
approved by the court; and
[(III) deleted]
(IV) in respect of
which the Commissioner is satisfied that it is not an arrangement having as
its purpose, or one of its purposes, the defeat of the object of this Part;
or
(iv)
the distribution of the estate of a deceased person,
including an acquisition that occurs as the result of —
(I) a will, a codicil or an order of a
court varying or modifying the provisions of a will or codicil; or
(II) an intestacy or
an order of a court varying or modifying the application, in relation to the
estate of a deceased person, of the provisions of a law relating to the
distribution of the assets of persons who die intestate;
or
(c) that
is effected or evidenced by an instrument on which duty is chargeable under
item 6 of the Second Schedule;
chattels means goods, wares or merchandise other
than —
(a)
goods, wares or merchandise referred to in item 2(7), (7a) or (7b) of the
Third Schedule;
(b) a
vehicle the transfer of the licence of which is exempt under item 9 of
the Third Schedule; or
(c)
goods, wares or merchandise used solely or principally in connection with the
business of primary production (as defined in section 75D(1)),
and includes an estate or interest in them;
discretionary trust means —
(a) a
trust under which the vesting of the whole or any part of the capital of the
trust property, or the whole or any part of the income from that capital, or
both —
(i)
is required to be determined by a person either in
respect of the identity of the beneficiaries, or the quantum of interest to be
taken, or both; or
(ii)
will occur in the event that a discretion conferred under
the trust is not exercised;
or
(b) a
trust which is, by regulation, declared to be a discretionary trust for the
purposes of this Part,
but does not include —
(c) a
trust that is solely a charitable trust; or
(d) a
trust that is, by regulation, declared not to be a discretionary trust for the
purposes of this Part;
distributable property has the meaning given by
subsection (4a);
entitled means beneficially entitled, and
entitlement has a corresponding meaning;
land includes a mining tenement, and also
includes —
(a) any
estate or interest in land; and
(b)
anything fixed to the land including anything that is, or purports to be, the
subject of an entitlement separate from the ownership of the land;
minerals means naturally occurring substances
obtained or obtainable from the earth;
mining tenement means —
(a) a
mining tenement held under the Mining Act 1978 being a mining tenement
within the meaning of that Act or the Mining Act 1904 2 ;
(b) a
mining tenement or right of occupancy continued in force by section 5 of
the Mining Act 1978 ; and
(c) a
tenement, right or interest that is —
(i)
similar to a tenement or right referred to in
paragraph (a) or (b); and
(ii)
held under the law of another State, a Territory, the
Commonwealth or another jurisdiction;
primary products has a meaning corresponding with
the definition of “primary production” in section 75D(1)
except that in relation to plants the term extends to plants that have not
been grown or reared and to parts of them and their produce;
rules of a corporation means one or more of the
following —
(a) the
corporation’s constitution;
(b)
replaceable rules applying to the corporation under the Corporations Act ;
(c)
internal management rules applying to the corporation under the
Corporations Act;
share means a share or stock of a corporation and
includes an interest in a share, and shareholding has a corresponding meaning;
trust includes a unit trust scheme, but, except in
section 76A, does not include a unit trust scheme referred to in
paragraph (c) of the definition of “marketable security” in
section 4(1).
(1a) For the purpose
of this Division a reference to the acquisition of an interest includes a
reference to the acquisition of a majority interest or a further interest
within the meaning of section 76AK or 76AR or the acquisition of a
controlling interest or an additional interest within the meaning of
section 76ATD or 76ATK.
(1b) In the definition
of “acquire” in subsection (1) a reference to the increase of
an interest includes a reference to an increase that occurs by the
cancellation of any shares or the variation of the rights of any shares.
(2) For the purposes
of sections 76AI(3)(c), 76AP(3)(c), 76ATB(4)(d) and 76ATI(4)(d) the
following —
(a) are
associated persons in relation to a corporation —
(i)
a related corporation;
(ii)
a related person within the meaning in
subsection (3)(a) to (g);
(iii)
a director or secretary of the corporation or a related
corporation;
(iv)
a person who is entitled to any shareholding in the
corporation or a related corporation;
(v)
a relative of any individual referred to in
subparagraph (ii), (iii), or (iv);
(vi)
a corporation in which the corporation or any person
referred to in subparagraph (iii), (iv) or (v) is entitled to any
shareholding;
(b) are
relatives of an individual for the purposes of
paragraph (a)(v) —
(i)
a child or remoter lineal descendant of the individual or
his spouse or de facto partner;
(ii)
a parent or remoter lineal ancestor of the individual or
his spouse or de facto partner;
(iii)
a brother or a sister of the individual or his spouse or
de facto partner;
(iv)
the spouse or de facto partner of the individual;
(v)
the spouse or de facto partner of an individual referred
to in subparagraph (i), (ii), or (iii).
(3) For the purposes
of this Part the following persons are related —
(a)
individuals who are spouses, or de facto partners, of each other or between
whom the relationship is that of parent and child;
(b)
related corporations;
(c) a
trustee and another trustee if there is any beneficiary common to the trusts
of which they are trustees, whether the beneficiary has a vested share or is
contingently entitled or may benefit from a discretionary trust;
(d) an
individual and a corporation if the individual is a majority shareholder,
director or secretary of the corporation or a related corporation;
(e) an
individual and a trustee if the individual is a beneficiary under the trust of
which the trustee is a trustee, whether the person has a vested share or is
contingently entitled or may benefit from a discretionary trust;
(f) a
corporation and a trustee if —
(i)
the corporation, a majority shareholder, director or
secretary of the corporation is a beneficiary of the trust of which the
trustee is a trustee; or
(ii)
a related corporation to the corporation is a beneficiary
of the trust of which the trustee is a trustee,
whether any such
beneficiary has a vested share or is contingently entitled or may benefit from
a discretionary trust;
(g)
persons who acquire interests in a corporation by virtue of acquisitions that
together form or arise from substantially one transaction or one series of
transactions;
(h)
persons who acquire interests in a corporation by virtue of acquisitions that
arise from those persons acting in concert with each other.
(4) For the purposes
of subsections (2) and (3) —
(a) an
illegitimate person shall be treated as the legitimate child of that
person’s parents;
(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;
and
(c) a
majority shareholder in relation to a corporation is a person who would have a
substantial holding in the corporation under the definition of
“substantial holding” in section 9 of the Corporations Act
even if the reference in that definition to 5% were a reference to 50%.
(4a) For the purposes
of this Part, a reference to entitlement to property of a corporation or
trust, or to participate in a distribution of property of a corporation or
trust, is a reference to entitlement otherwise than as a creditor or other
person to whom the corporation or trust is liable, and a reference to
distributable property is a reference to property distributable to persons
otherwise than as creditors or other persons to whom the corporation or trust
is liable.
(5) For the purposes
of this Part, the entitlement that a person would have at a particular time to
participate in the distribution of the property of a corporation on a winding
up of the corporation is an entitlement to an amount calculated —
(a) as
if the winding up were carried out at that time in accordance with the rules
of the corporation and any law relevant to the winding up, as the rules and
law then exist; or
(b) as
if the person had, immediately prior to the winding up, exercised all powers
and discretions exercisable by the person by reason of having acquired an
interest in the corporation —
(i)
to effect or compel an alteration to the rules;
(ii)
to vary the rights conferred by shares in the
corporation; or
(iii)
to effect or compel the substitution or replacement of
shares in the corporation with other shares in the corporation,
in such manner as to
maximise that amount,
whichever of the
amounts under paragraph (a) or (b) results in the greater amount, unless
the Commissioner determines, after consideration of the circumstances of the
case, and where the calculation under paragraph (b) results in the
greater amount, that the amount of the entitlement should be calculated under
paragraph (a).
(5a) If the extent of
a person’s entitlement to participate in a distribution of the property
of a corporation is unascertainable or uncertain, that entitlement shall be
determined for the purposes of this Part as being the greatest entitlement
that the person could derive from the distribution.
(6) For the purposes
of this Part, the entitlement of a person on the distribution of a trust shall
be determined as the greatest entitlement that the person could derive at any
time from the trust whether by the fulfilment of any condition, the outcome of
any contingency or the exercise of any power or discretion or otherwise, and
in particular a person that may benefit from, or the trust property of another
trust that may comprise or be augmented by a benefit from, a discretionary
trust shall be deemed to be entitled to or comprise or be augmented
by —
(a) the
property subject to the discretionary trust unless the Commissioner determines
otherwise; or
(b) such
part of that property as the Commissioner determines.
(7A) In determining
the entitlement of an entity to land for the purposes of section 76AI,
76AL, 76AP, 76AS, 76ATB, 76ATE, 76ATI or 76ATL, if —
(a) the
entity has an entitlement to something that is part of land as a fixture; and
(b) that
entitlement is, or purports to be, separate from the ownership of the rest of
the land,
the entity is to be
regarded as having an entitlement to land to the extent of its entitlement to
the fixture.
(7) For the purposes
of sections 76AI(4), 76AP(4), 76AR(4), 76ATB(6), 76ATI(6) and 76ATK(4)
reference to a trust includes any other trust if the property of the
first-mentioned trust —
(a)
includes a share or interest, whether vested or contingent, or direct or
indirect, in that other trust; or
(b) in
the case of a discretionary trust, may comprise or be augmented by a benefit
from that other trust.
[Section 76 4 inserted by No. 33
of 1987 s. 22; amended by No. 39 of 1994 s. 21; No. 57 of
1996 s. 7; No. 13 of 1997 s. 32 and 42; No. 22 of 1998
s. 36; No. 60 of 2000 s. 4; No. 10 of 2001 s. 174;
No. 2 of 2003 s. 85; No. 28 of 2003 s. 192; No. 66 of 2003
s. 57; No. 11 of 2004 s. 17; No. 30 of 2008 s. 31.]