Business Tax Review (Assessment) Act (No. 2) 2003 (WA)

Western Australia

Business Tax Review (Assessment) Act (No. 2)

2003

Western Australia

Business Tax Review (Assessment) Act (No. 2)

2003

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
Part 2 — Stamp duty changes
Division 1 — *Stamp Act 1921* amended
3.	The Act amended	3
4.	Section 4 amended	3
5.	Section 4A amended	4
6.	Section 17 amended	4
7.	Section 17B amended	5
8.	Section 17C amended	5
9.	Section 27 amended	5
10.	Section 28 amended	7
11.	Section 29 amended	7
12.	Section 30 amended	8
13.	Section 31B replaced	8

31B.

Payment of duty on statements in absence

of dutiable instrument

14.	Section 31C amended	13
15.	Sections 39 and 40 inserted	13

39. Determining whether securities are

situated in Western Australia

40. Valuing a marketable security or right in

respect of shares

16.

Part IIIA (s. 49-50D) repealed and transitional

Business Tax Review (Assessment) Act (No. 2) 2003

Contents

17.	Section 63 amended	15
18.	Section 63AA amended	20
19.	Section 63AB amended	22
20.	Section 63AC amended	26
21.	Section 63AD amended	28
22.	Sections 63ADA and 63ADB inserted	31

63ADA.

Registration of private unit trust scheme

as provisional public trust

63ADB.

Cancellation of registration of provisional

public trust

23.	Section 63AE amended	34
24.	Section 63AF amended and transitional	35
25.	Sections 63AG to 63AJ inserted and transitional	36

63AG.

When unit trust scheme becomes private

unit trust scheme

63AH.

Liability for duty on aggregated

dispositions

63AI.

Interstate security duty

63AJ.

Dutiable statement to be lodged

26.	Section 63A amended	41
27.	Section 69 amended and transitional	41
28.	Section 70 amended	41
29.	Section 72 amended	43
30.	Section 73AB inserted	43

73AB.

Duty on conveyance to correct error

31.	Section 73D amended	44
32.	Section 73DAA inserted	46

73DAA.

Dutiable statement required if transfer or

instrument not lodged

33.

Sections 73DB to 73DE inserted

73DB.

Interpretation for sections 73DC, 73DD

and 73DE

73DC.

Acquisition of majority interest or further

interest in pooled investment trust

73DD.

Meaning of majority interest and further

interest

73DE.

Dutiable statement to be lodged

34.

Section 73G inserted

73G.

Farm-in agreements relating to mining

tenements

35.	Section 74 amended	56
36.	Section 74A amended	61
37.	Sections 74B and 74C inserted	62

74B.

Transactions involving a call option and a

put option

Business Tax Review (Assessment) Act (No. 2) 2003

Contents

74C.

Acquisition of certain business assets

38.	Section 75 amended	74
39.	Section 75AD amended	74
40.	Section 75AG amended and transitional	74
41.	Section 75CA inserted	75

75CA.

Refund where contingent consideration is

not paid

42.	Section 75D amended	76
43.	Section 75E amended	76
44.	Section 75G amended	78
45.	Section 75H amended	78
46.	Section 75HA amended	78
47.	Section 75I amended	80
48.	Section 75J amended	81
49.	Section 75JA amended	81
50.	Section 75JB amended and transitional	82
51.	Section 75JBA amended	87
52.	Section 75JC amended	87
53.	Section 75JD amended	87
54.	Section 75JDA amended	88
55.	Section 75JE amended	88
56.	Section 75JF amended	90
57.	Section 76 amended	90
58.	Section 76A amended	91
59.	Section 76AA amended	91
60.	Section 76AB inserted	91

76AB.

Request that Commissioner determine

whether dutiable statement is required to

be lodged

61.	Section 76AG amended	93
62.	Section 76AH amended	94
63.	Section 76AI amended	94
64.	Section 76AJ amended	94
65.	Section 76AM amended	95
66.	Section 76AN amended	95
67.	Section 76AO amended	95
68.	Section 76AP amended	96
69.	Section 76AQ amended	96
70.	Section 76B amended	97
71.	Section 76D amended	98
72.	Section 76G amended	99
73.	Section 76H amended	99

Business Tax Review (Assessment) Act (No. 2) 2003

Contents

74.	Section 76I amended	99
75.	Section 77 amended	99
76.	Section 77A inserted	100

77A.

Offer to lease

100

77.	Section 79 amended	102
78.	Section 80 repealed	102
79.	Part IIIE (s. 81-90A) replaced	102
Part IIIE — Mortgage duty
Division 1 — Interpretation for this Part

81.	Definitions	102
82.	Mortgages	103
83.	Advances	104
84.	Loans	105
85.	Home mortgages	105

Division 2 — Liability for Mortgage Duty

86.	Assessing mortgage duty	106
87.	Liability dates	106
88.	Stamping before advance	107

Division 3 — Amount secured by a mortgage

89.	The secured amount	107
90.	Contingent liabilities	108
91.	Mortgage over property partly outside WA	109
91A.	Mortgage packages	110
91B.	Collateral mortgages	111
91C.	Extent to which mortgage can be enforced	112
91D.	Use of stamped and collateral mortgages
as security	112
91E.	Multi-jurisdictional statement	112
91F.	Exemptions for charitable or public
purposes	113

80.	Section 92 amended	113
81.	Section 92A amended	115
82.	Section 92B amended	115
83.	Section 96 amended	115
84.	Parts IV (s. 100-107) and IVAC (s. 112H-112HA)
repealed	115
85.	Part IVB (s. 112I-112P) replaced	116
Part IVB — Hire of goods
Division 1 — Interpretation in Part IVB

112I.	Commercial hire business	116
112IA.	Goods	116
112IB.	Hire of goods	116
112IC.	State hire of goods	118

Business Tax Review (Assessment) Act (No. 2) 2003

Contents

112ID.	Equipment financing arrangements	119
112IE.	Hiring charges	119
112IF.	Terms used in this Part	121

Division 2 — Registration of commercial hire

businesses

112J.

Commercial hire businesses to be

registered

122

112JA.

Registration of commercial hire

businesses

122

112JB.

Cancelling registration of commercial hire

businesses

122

Division 3 — Connection to the State

112K.

Connection to the State — hire of goods

and persons to which this Part applies

123

Division 4 — Commercial hire businesses

112L.	Lodging returns and paying duty	124
112LA.	Calculating the assessable amount for a
return period	125
112LB.	Calculating the amount of duty payable on
a return	126
112LC.	Return period for a commercial hire
business	126
112LD.	Annual reconciliation	126

Division 5 — Persons other than commercial

hire businesses

112M.	Statement of transaction	128
112MA.	Lodging statements and paying duty	129
112MB.	Method of calculating total hiring charges
if they are not readily ascertainable	130

Division 6 — General provisions

112N.

Credit for duty paid in another Australian

jurisdiction

131

112NA.

Splitting or redirecting hiring charges —

anti-avoidance provision

131

112NB.

Ascertainment and disclosure of place of

use of goods

131

112NC.

Records

133

86.	Section 119 amended	133
87.	Second Schedule amended	133
88.	Third Schedule amended	134
Division 2 — Transitional provisions
89.	Registered pooled investment trusts	136
90.	Determinations under section 75JBA or 75JC	137
91.	Agreements for lease	138
92.	Mortgages	138

Business Tax Review (Assessment) Act (No. 2) 2003

Contents

93.	Life insurance	138
94.	Hire of goods	139
Division 3 — Amendments to other Acts
95.	Taxation Administration Act 2003 amended	140

18A.

Withdrawal of assessment

140

96. Totalisator Agency Board Betting Act 1960

amended

141

Part 3 — Stamp duty on workers

compensation insurance policies

97.	The Act amended	142
98.	Section 92 amended and transitional	142
99.	Second Schedule amended	143
100.	Taxation Administration Act 2003 amended and
transitional	143
Part 4 — *Debits Tax Assessment*

Act 2002 amended

101.	The Act amended	144
102.	Section 5 amended	144
103.	Section 9 amended	144
104.	Section 10 amended	144
105.	Section 12 amended	144
106.	Section 14 amended	145
Part 5 — Minor amendments
107.	Stamp Act 1921 amended	146
108.	Taxation Administration Act 2003 amended	147
109.	Land Tax Assessment Act 2002 amended	148

Western Australia

Business Tax Review (Assessment)

Act (No. 2) 2003

No. 66 of 2003

An Act to amend the —

	*Stamp Act 1921*;
	*Taxation Administration Act 2003*;
	**Debits Tax Assessment Act 2002; and**
	*Land Tax Assessment Act 2002*,

to make consequential amendments and transitional arrangements

and for related purposes.

[Assented to 5 December 2003]

The Parliament of Western Australia enacts as follows:

Business Tax Review (Assessment) Act (No. 2) 2003

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This Act may be cited as the Business Tax Review (Assessment)

Act (No. 2) 2003.

2. Commencement

(1)	This Act, except Parts 3, 4 and 5, comes into operation on a day fixed by proclamation.
(2)	Different days may be fixed under subsection (1) for different provisions.
(3)	Part 3 comes into operation on 1 July 2004.
(4)	Part 4 comes into operation on the day on which this Act receives the Royal Assent.
(5)	Part 5 is deemed to have come into operation immediately after the Taxation Administration Act 2003 came into operation.

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Part 2 — Stamp duty changes

Division 1 — Stamp Act 1921 amended

3. The Act amended

The amendments in this Division are to the Stamp Act 1921*.

[* Reprinted as at 3 August 2001.

For subsequent amendments see Western Australian

Legislation Information Tables for 2002, Table 1, p. 368 and

Act No. 21 of 2003.]

4. Section 4 amended

(1)	The amendments in this section are to section 4(1).
(2)	The definition of “dutiable statement” is deleted and the
following definition is inserted instead —
“

“dutiable statement” means a statement required to be

lodged under section 31B, 31C, 63AE, 63AJ,

73DAA(1), 73DE, 75HA, 76AG, 76AN, 77A, or

92A;

”.

(3)	The definition of “marketable security” is amended in
paragraph (c) as follows:

(a)	by deleting “or subunit”;
(b)	in subparagraph (ii) after “section 63AC(2)” by inserting —

“

or registered as a provisional public

trust under section 63ADA(2)

”.

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(4)	The definitions of “section 76AG statement” and “section 76AN statement” are amended by deleting “prepared” and inserting
instead —
“ lodged ”.
(5)	The definition of “WA company” is amended by inserting after
“taken” —
“ , for the purposes of the Corporations Act, ”.
(6)	The following definitions are inserted in the appropriate
alphabetical positions —
“

“GST” has the same meaning as it has in the

Commonwealth A New Tax System (Goods and defined in that Act;

Services Tax) Act 1999 except that it includes

notional GST of the kind for which payments may

be made under the State Entities (Payments)

“supply”, in relation to an amount of GST, has the

same meaning as it has in the Commonwealth

A New Tax System (Goods and Services Tax)

Act 1999;

”.

5. Section 4A amended

Section 4A(3) and (4) are repealed.

6. Section 17 amended

Section 17(1) is amended as follows:

(a)	by deleting “on which duty is payable”;

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(b)	by deleting paragraph (c) and “or” after it and inserting instead —

“

(c)

if the instrument is a dutiable statement — the

person required to lodge the dutiable statement;

”.

7. Section 17B amended

Section 17B(1) is repealed and the following subsection is

inserted instead —

“

(1)

A person who is, or may be, liable to pay duty on an

instrument must lodge the instrument with the

Commissioner within 2 months after the date on which

the instrument was first executed.

Penalty: $5 000.

”.

8. Section 17C amended

After section 17C(3) the following subsection is inserted —

“

(3a)	An instrument is taken to be endorsed in accordance with subsection (1) if the Commissioner endorses it under section 31B(15), 63A(2), 72(4), 74(4), 77(2) or
77A(11).

”.

9. Section 27 amended

(1)	Section 27(2) is amended as follows:

(a)	by deleting paragraph (a) and “and” after it and inserting instead —

“

(a)	affords any evidence of —

(i) an acquisition to which section 31B applies;

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(ii) a transfer to which section 31C applies;

(iii)

a disposition to which

section 73DAA(1) applies; or

(iv) a transaction referred to in section 77A(1);

and

”;

(b)	by deleting paragraph (b)(i) and “but” after it and inserting instead —

“

(i)

relating to an acquisition, transaction, statement is required to be lodged under section 31B, 31C, 73DAA(1) or 77A; but

”;

(c)	by deleting “prepared under section 31B(1) or 31C(1)”

and inserting instead —

“

lodged under section 31B, 31C, 73DAA(1)

or 77A

”;

(d)	by deleting “the transaction” and inserting instead —

“ the acquisition, transaction, disposition ”.

(2)	Section 27(3) is amended as follows:

(a)	by deleting “a transaction” and inserting instead —

“ an acquisition, transaction ”;

(b)	by deleting “prepared under section 31B or 31C” and

inserting instead —

“

lodged under section 31B, 31C or 77A, and this section does not apply to an instrument or a document relating to a disposition for which a dutiable statement is

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required to be lodged under section 73DAA(1), where

the instrument or document is

”.

10. Section 28 amended

Section 28(1)(b) is amended as follows:

(a)

by deleting “prepared under section 31B(1) or 31C(1)”

and inserting instead —

“

lodged under section 31B, 31C, 73DAA(1)

or 77A

”;

(b)	by deleting “transaction” and inserting instead —

“ acquisition, transaction, disposition ”.

11. Section 29 amended

(1)	Section 29(1) is amended as follows:

(a)	after “section 27(2)” by inserting —

“

(other than a document relating to a disposition to

which section 73DAA(1) applies)

”;

(b)	by deleting “or 31C(1)” in the first place where it occurs

and inserting instead —

“ , 31C(1) or 77A(1) ”;

(c)	by deleting “prepared under section 31B(1) or 31C(1)”

and inserting instead —

“ lodged under section 31B, 31C or 77A ”;

(d)	by deleting “transaction” in both places where it occurs

and inserting instead —

“ acquisition, transaction ”.

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(2)	Section 29(2a) is amended as follows:

(a)	by deleting “a transaction” and inserting instead —

“ an acquisition, transaction ”;

(b)	by deleting “prepared under section 31B(1) or 31C(1)”

and inserting instead —

“ lodged under section 31B, 31C or 77A ”;

(c)	by deleting “has not been prepared” and inserting instead —

“ has not been lodged ”.

12. Section 30 amended

Section 30(1)(b) is amended as follows:

(a)	after “section 27(2)” by inserting —

“

(other than a document relating to a disposition

to which section 73DAA(1) applies)

”;

(b)	by deleting “prepared under section 31B or 31C(1)” and

inserting instead —

“ lodged under section 31B, 31C or 77A ”.

13. Section 31B replaced

Section 31B is repealed and the following section is inserted

instead —

“

31B.

Payment of duty on statements in absence of

dutiable instrument

(1)

A person who acquires an interest by way of an

acquisition to which this section applies shall, within

2 months after the acquisition, lodge a statement with

the Commissioner in respect of the acquisition.

Penalty: $20 000.

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(2)

A dutiable statement must be prepared in an approved

form.

(3)

Subject to subsection (8), this section applies to any of

the following —

(a)	the acquisition of beneficial ownership of an

estate or interest in —

(i) freehold land, whether or not registered under the Transfer of Land Act 1893;

(ii) a Crown lease registered under the Transfer of Land Act 1893; or

(iii) a mining tenement registered under the Mining Act 1978,

or any buildings on, or fixtures annexed to, or

to buildings on, any such land, lease or

tenement if the land, lease or tenement is

situated in Western Australia;

(b)	the acquisition of beneficial ownership of chattels (as defined in section 70) and other property (as defined in section 70);
(c)	the acquisition of beneficial ownership of chattels (as defined in section 70) acquired as part of a series of acquisitions or transactions relating to chattels and to other property (as defined in section 70) at least one of which changes, or is or includes an agreement to change, the beneficial ownership of the other property;
(d)	the acquisition of a business asset (as defined in section 74C) of a business in circumstances in which section 74C applies.

(4)

A merger of a corporation (“Company A”) with and into

another corporation (“Company B”) in circumstances

where neither subsection (5) nor subsection (6) applies is

taken to effect an acquisition by Company B of the

Business Tax Review (Assessment) Act (No. 2) 2003

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s. 13
beneficial ownership of the property of Company A, and this section applies to that acquisition.

(5)	A merger of corporations (the “merging corporations”) in circumstances where another corporation (“Company C”) results as a consequence of the merger is taken to
effect an acquisition by Company C of the beneficial ownership of the property of the merging corporations, and this section applies to that acquisition.
(6)	A merger of corporations (the “merging corporations”)
with and into each other in circumstances where each of the merging corporations continues in existence is taken to effect an acquisition by the merging corporations,
jointly, of the beneficial ownership of 50% (in value) of the property of the merging corporations, and this section applies to that acquisition.

(7) Where —

(a)	section 73F applies to a transaction relating to a business licence; and
(b)	the business licence is of a kind prescribed for the purposes of this section,

the transaction is taken to be an acquisition to which

this section applies.

(8)	This section does not apply to —

(a)	an acquisition effected by an instrument that

is —

(i) chargeable with duty under item 4 or 6 of the Second Schedule; or

(ii) exempt from duty;

(b)	an acquisition evidenced by an instrument if the instrument is chargeable with duty under item 4 of the Second Schedule;

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(c)	an acquisition evidenced by an instrument which, if the acquisition were effected by that instrument (irrespective of whether it is practicable or possible to do so), would be an

acquisition effected by an instrument that is —

(i) exempt from duty; or

(ii) chargeable with duty under item 6 of the Second Schedule;

(d)	an acquisition which, if it were effected by an instrument (irrespective of whether it is practicable or possible to do so), would be

effected by an instrument that is —

(i) exempt from duty; or

(ii) chargeable with duty under item 6 of the Second Schedule;

(e)

an acquisition relating to chattels and other property as referred to in subsection (3)(b) unless this section would have applied to the

acquisition if it had only related to the other

property; or

(f)

a transaction relating to chattels as referred to in subsection (3)(c) unless at least one of the transactions in the series relates to other

property (as defined in section 70) and is —

(i) dutiable (as defined in section 70); or

(ii) a transaction to which subsection (1) applies.

(9)	A dutiable statement lodged under subsection (1) is taken to be an instrument of conveyance of property and is chargeable with duty accordingly.

(10)	Each person from whom another person has made an acquisition to which this section applies shall, within 2 months after the acquisition is made, notify the

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Commissioner in an approved form that the acquisition has been made.
Penalty: $20 000.

(11)	Nothing in this section prevents the joint making of a notification under subsection (10) in respect of an acquisition by any 2 or more parties to the acquisition who are required to make the notification.
(12)	The requirement to lodge a dutiable statement under subsection (1) or give notification under subsection (10) ceases to apply if an instrument that evidences the acquisition and is chargeable with ad valorem duty is executed at any time after the acquisition was made, but nothing in this subsection affects the liability of a person for an offence against subsection (1) or (10) committed before the instrument was executed.
(13)	Where subsection (12) has effect, the instrument referred to in that subsection is to be regarded, for the purposes of section 17A, as having been first executed on the day on which the acquisition was made.
(14)	If an instrument is executed as referred to in subsection (12) after a dutiable statement has been lodged under subsection (1), subsection (9) ceases to apply to the dutiable statement unless duty has already been paid in respect of it.
(15)	If duty has already been paid as mentioned in subsection (14), the instrument is not chargeable with ad valorem duty but the Commissioner, on being requested to do so, is to endorse on the instrument the duty paid.

”.

Business Tax Review (Assessment) Act (No. 2) 2003

Stamp duty changes Stamp Act 1921 amended

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s. 14

14. Section 31C amended

(1)

Section 31C(1) is amended by deleting “must prepare a dutiable

statement” and inserting instead —

“

must, within 2 months after the transfer, lodge a

statement with the Commissioner

”.

(2)	Section 31C(2) is amended by inserting after “must be” —
“ prepared ”.
(3)	Section 31C(2a) is amended by deleting “prepared” and inserting instead —
“ lodged ”.

15. Sections 39 and 40 inserted

After section 38 the following sections are inserted in Part III —

“

39. Determining whether securities are situated in Western Australia

(1)

A marketable security or right in respect of shares of a

WA company is, for the purposes of a stamp Act, taken

to be situated in Western Australia, irrespective of

where the register on which it is registered by the

company is situated and despite section 1070A(4) of

the Corporations Act or any other law.

(2)

A marketable security or right in respect of shares of a

foreign company is, for the purposes of a stamp Act,

taken to be situated in Western Australia if it is

registered on a register kept by the company in

Western Australia.

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(3)	A unit in a unit trust scheme is, for the purposes of a stamp Act, taken to be situated in Western Australia
if —

(a)	the scheme’s principal register is kept in

Western Australia; or

(b)	where the scheme’s principal register is not

kept in Western Australia, the scheme’s

manager, or if the scheme does not have a

manager, the trustee, is —

(i) an individual, resident in Western Australia;

(ii) a WA company; or

(iii) a foreign company with a registered office under the Corporations Act in Western Australia.

(4)

A marketable security or right in respect of shares of a company that is taken under the Corporations Act to be registered in another State or Territory is, for the

purposes of a stamp Act, taken not to be situated in in Western Australia.

(5)

Subsection (1) is declared to be a Corporations

legislation displacement provision for the purposes of

section 5G of the Corporations Act in relation to

section 1070A(4) of that Act.

40. Valuing a marketable security or right in respect of shares

(1)	The value of a marketable security or right in respect of
shares is to be determined —

(a)	as if the constitution or governing rules of the issuer satisfied any requirements of the Australian Stock Exchange Limited that must be satisfied before the security or right could be

Business Tax Review (Assessment) Act (No. 2) 2003

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quoted on the Australian Stock Exchange

Limited; and

(b)	disregarding any provision in the constitution or governing rules of the issuer providing for the valuation of the security or right.

(2)	Despite subsection (1), the Commissioner may determine the value of a marketable security or right in respect of shares to be the amount the Commissioner considers would be received by the holder of the security or right if the issuer were to be voluntarily wound up on the day of the transfer.

”.

16. Part IIIA (s. 49-50D) repealed and transitional

(1)

Part IIIA is repealed.

(2)

The amendments effected by this section and

sections 87(2), 88(2) and 88(4) do not apply in relation to a

blank cheque provided by a financial institution to the holder of

a cheque account before this section came into operation

regardless of when the cheque is drawn.

17. Section 63 amended

(1)	Section 63(1) is amended as follows:

(a)	by inserting in the appropriate alphabetical positions the

following definitions —

“

“custodian trustee” has the same meaning as it has in

section 15 of the Trustees Act 1962;

“disposition”, in relation to a unit, includes —

(a)	a transfer or other disposition of the unit;
(b)	the allotment or issue of the unit;
(c)	the redemption, surrender or cancellation of the unit;

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(d)	the variation, abrogation or alteration of a right pertaining to the unit with respect to the capital of the unit trust scheme; and
(e)	any means by which a unit is disposed of or the rights of its holder are diminished;

“provisional public trust” means a unit trust scheme

that is registered under section 63ADA(2);

“start up period” means —

(a)	in relation to a unit trust scheme except a provisional public trust to which

paragraph (b) applies — the period of one

year beginning on the day on which the first

units under the scheme are issued; or

(b)

in relation to a provisional public trust for which the prospectus or information memorandum has been, or is to be, lodged with the Australian Securities and

Investments Commission — the period of one year beginning on —

(i) the day on which the first units under the scheme are issued; or

(ii) the day of lodgement,

whichever period is the later to expire;

“transfer”, in relation to a unit, means a conveyance,

transfer, or instrument chargeable as a

conveyance;

“unit” means any right or interest, whether described

as a unit or otherwise, of a beneficiary under a unit

trust scheme and includes an interest in a unit;

”;

(b)	in the definitions of “trustee” and “unit trust scheme”

after “means” by inserting —

“ , unless the contrary intention appears, ”.

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(2)	After section 63(1) the following subsection is inserted —

“

(1aa)

For the purposes of sections 63AA(2a)(a) and

63AB(2)(g), the Commissioner may treat 2 or more

parcels of land as a single parcel of land if the

Commissioner is satisfied that it is appropriate to do so

having regard to —

(a)	the ownership of the parcels of land;
(b)	the proximity of the parcels of land;
(c)	the use of the parcels of land; and
(d)	any other matter the Commissioner considers to be relevant.

”.

(3)	Section 63(1a) and (1b) are repealed.
(4)	Section 63(2) is amended by deleting “disposition of a unit or sub-unit — ” and inserting instead —
“ other disposition of a unit — ”.
(5)	Section 63(4) is repealed and the following subsections are
inserted instead —

“

(4)	For the purposes of subsection (2)(a) and (b)(ii) —

(a)	each partner in a partnership that holds units under a unit trust scheme is to be treated as beneficially entitled to the same proportion of the units as the proportion of the partnership assets to which the partner would be entitled on the dissolution of the partnership and after all the debts and liabilities of the partnership had been discharged; and
(b)	a person is to be treated as beneficially entitled to a unit held by the person or by a related person.

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(5)	For the purposes of subsection (4), 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 a trustee of another trust if —

(i) there is any beneficiary common to the trusts, whether the beneficiary has a vested share or is contingently entitled or may benefit from a discretionary trust; and

(ii) the beneficiary’s share or interest in

each trust constitutes more than 50% of the trust property or of the issued units in the unit trust scheme;

(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 —

(i) the individual is a beneficiary under the trust, whether the individual has a vested share or is contingently entitled or may benefit from a discretionary trust; and

(ii) the individual’s share or interest in the

trust constitutes more than 50% of the trust property or of the issued units in the unit trust scheme;

(f)	a corporation and a trustee if —

(i) the corporation or a majority shareholder, director or secretary of the corporation is a beneficiary of the trust; or

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(ii) a related corporation to the corporation is a beneficiary of the trust,

and that beneficiary’s share or interest in the

trust constitutes more than 50% of the trust

property or of the issued units in the unit trust

scheme.

(6)	For the purposes of subsection (5) —

(a)	an illegitimate person is to 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;

(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%; and

(d)

a “trustee” includes a discretionary trustee and

a unit trustee.

(7)

For the purposes of subsection (5), the share or interest of a person in a trust is to be determined as the greatest share or interest 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 a

discretionary trust is to be deemed to be entitled to —

(a)	the property subject to the discretionary trust, unless the Commissioner determines otherwise; or
(b)	such part of that property as the Commissioner determines.

”.

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18. Section 63AA amended

(1)	Section 63AA(1) is repealed and the following subsections are
inserted instead —

“

(1)	In this section —
“land” has the same meaning as in section 76;
“scheme land” means land held by a unit trustee in the

unit trustee’s capacity as trustee of a unit trust

scheme.

(1a)

A unit trustee may apply to the Commissioner in an

approved form for registration of a unit trust scheme.

(1b)

An application may be made whether or not the unit

trust scheme has previously been registered under

subsection (2).

(1c)

An application for registration of a unit trust scheme as

a pooled investment trust is to be accompanied by a

statement by the unit trustee in an approved form of the

unencumbered value of the interests in scheme land

referred to in section 63AB(2)(f) and, if applicable,

(g)(i).

”.

(2)	Section 63AA(2) is amended as follows:

(a)	by deleting “the Commissioner is satisfied that”;
(b)	in paragraph (a) before “the unit” by inserting —

“ the Commissioner is satisfied that ”;

(c)	after paragraph (a) by deleting “and” and inserting —

“

(ab)

in the case of an application for registration of a

unit trust scheme as a pooled investment

trust — the unit trust scheme is not to be treated

as a sub-trust under subsection (2a); and

”;

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(d)	in paragraph (b) before “registration” by inserting —

“ the Commissioner is satisfied that ”.

(3)	After section 63AA(2) the following subsection is inserted —

“

(2a)

For the purposes of subsection (2)(ab) and

sections 63AC(2)(ab) and 63AD(8), a unit trust scheme

is to be treated as a sub-trust if —

(a)	the scheme land comprises only one parcel of land;
(b)	a unit holder in the scheme participated directly or indirectly (otherwise than by means of the unit

holder’s subscription under the scheme) in the

unit trustee’s acquisition of the scheme land;

(c)	a unit holder in the scheme states in a financial report, or other document, provided to its members that the unit holder has an interest in the scheme land;
(d)	a unit holder in the scheme beneficially owns an interest in any land otherwise than as a unit holder in a unit trust scheme; or
(e)	a unit holder in the scheme makes an offer to the public for subscriptions principally by reference to the scheme land and not to units in a unit trust scheme,

unless the Commissioner is satisfied that in the

circumstances of a particular case it is not reasonable to

treat the scheme as a sub-trust.

”.

(4)	After section 63AA(3) the following subsection is inserted —

“

(3a)	Subject to this Part, registration of a unit trust scheme under subsection (2) has effect for a period of 3 years.

”.

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(5)	After section 63AA(4) the following subsection is inserted —

“

(4a)	Subject to section 17 of the Taxation Administration Act 2003, if the Commissioner registers a unit trust scheme as a pooled investment trust or an equity trust the Commissioner shall make any reassessment necessary to give effect to that registration.

”.

19. Section 63AB amended

(1)	Section 63AB(2) is repealed and the following subsections are
inserted instead —

“

(1a)

For the purposes of this section, a person and another

person are related if they are related as provided in

section 63(5).

(2)

For the purposes of section 63AA(2), a unit trust

scheme is eligible for registration as a pooled

investment trust if it meets all of the following

criteria —

(a)	funds manager solely or principally for the investment and management of subscriptions

the scheme is established and managed by a paragraph (c) and is not established or managed for a particular person;

(b)	at least 2 persons who are not related are unit holders in the scheme;
(c)	each unit holder in the scheme —

(i) holds the unit in the unit holder’s

capacity as a trustee of a complying

superannuation fund within the meaning

of the Superannuation Guarantee

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(Administration) Act 1992 of the

Commonwealth;

(ii) holds the unit in the unit holder’s

capacity as a trustee of a complying

approved deposit fund within the

meaning of the Superannuation

Guarantee (Administration) Act 1992 of

the Commonwealth;

(iii) holds the unit in the unit holder’s

capacity as a trustee or manager of a

fund that is part of a public sector

superannuation scheme within the

meaning of the Superannuation Industry

(Supervision) Act 1993 of the

Commonwealth;

(iv) is a life company that holds the unit solely for the purpose of an investment of its statutory funds maintained by it under the Life Insurance Act 1995 of the Commonwealth;

(v) holds the unit in the unit holder’s

capacity as a trustee of a unit trust that

is not a unit trust scheme;

(vi) holds the unit in the unit holder’s

capacity as a trustee of a master trust,

being a trust by means of which the

public may invest in managed funds;

(vii) holds the unit in the unit holder’s

capacity as a trustee of a unit trust

scheme registered under

section 63AA(2) as a pooled investment

trust;

(viii)

holds the unit in the unit holder’s

capacity as a trustee of a unit trust

scheme each unit holder in which is of a

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kind described in another subparagraph

of this paragraph;

(ix) holds the unit in the unit holder’s

capacity as a trustee or manager of a

fund or trust that the Commissioner is

satisfied corresponds to a fund or trust

referred to in subparagraph (i), (ii), (iii),

(v) or (vi) under the law of an external

Territory or a country other than

Australia;

(x) is a body corporate that the

Commissioner is satisfied —

(I)

corresponds to a company

referred to in subparagraph (iv)

under the law of an external

Territory or a country other

than Australia; and

(II)

holds the unit for a purpose that

corresponds to the purpose

referred to in that

subparagraph;

(xi) holds not more than 5% of the total issued units under the scheme; or

(xii) is a person who, the Commissioner is satisfied, is, or is in a class of persons that is, prescribed for the purposes of this paragraph;

(d)	if paragraph (c)(xi) applies to 2 or more unit holders in the scheme to which no other subparagraph of paragraph (c) applies, those unit holders do not together hold more than 10% of the total issued units under the scheme;
(e)	at least 2 unit holders in the scheme who are not related each have a subscription under the scheme of not less than $3 000 000;

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(f)

the unit trustee, in the unit trustee’s capacity as

trustee of the scheme, holds interests in land

(whether or not situated in Western Australia)

that together have an unencumbered value of

not less than $50 000 000;

(g) either —

(i) the interests in land referred to in paragraph (f) include interests in at least 3 parcels of land, and at least 2 of those interests each have an unencumbered value of not less than $10 000 000; or

(ii) at least 6 unit holders who are not related each have a subscription under the scheme of not less than $3 000 000;

(h)	the scheme provides for offers of initial subscriptions only to persons to whom an offer of securities does not need disclosure under section 708(8) or (11) of the Corporations Act.

(2a)	In subsection (2)(a) —
“funds manager” means —

(a)	a body corporate that, as its principal business, provides funds management and investment services to persons of the kind

described in subsection (2)(c) if —

(i)

that business is not conducted to particular persons; and

(ii) the body corporate manages funds invested with it of not less than $500 000 000;

(b)	a body corporate that is a member of a group

of related corporations that, as the group’s

principal business, provides funds

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management and investment services to

persons of the kind described in

subsection (2)(c) if —

(i)

that business is not conducted to particular persons; and

(ii) the body corporate or the group manages funds invested with it of not less than $500 000 000.

(2b)

For the purposes of subsection (2)(c), a unit held by a

unit holder in the unit holder’s capacity as a custodian

trustee is taken to be held by each of the persons on

whose behalf the custodian trustee holds the unit.

”.

(2)	Section 63AB(4) is amended as follows:

(a)	by deleting “(2)(b) and (c) and”;
(b)	by deleting all of the subsection after “person and” and

inserting instead —

“

all units held by another person if those persons are

related as provided in section 63(5).

”.

(3)	Section 63AB(5), (6), (7) and (8) are repealed.

20. Section 63AC amended

(1)	Section 63AC(1) is amended by deleting “not later than one
year after the day on which the first units under the scheme are
issued.” and inserting instead —
“

if the application is made before the end of the start up

period.

”.

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(2)	Section 63AC(2) is amended as follows:

(a)	by deleting “a period of one year beginning on the day

on which the first units under the scheme are issued (the

“start up period”)” and inserting instead —

“ the start up period ”;

(b)	by deleting paragraph (a) and “and” after it and inserting instead —

“

(a)	the Commissioner is satisfied that, subject to subsection (2a), the scheme satisfies the criteria for registration set out in section 63AB(2)(a), (c) (other than subparagraph (xi)) and (h) or (3)(a), as the case requires;

(ab)

in the case of an application for interim

registration of a unit trust scheme as a pooled

investment trust — the scheme is not to be

treated as a sub-trust under section 63AA(2a);

and

”;

(c)	in paragraph (b) by deleting “section 63AB(2)(a), (b), (c) and (d)” and inserting instead —

“ section 63AB(2)(b), (c), (d), (e), (f) and (g) ”.

(3)	After section 63AC(2) the following subsection is inserted —

“

(2a) If —

(a)	at the beginning of the start up period the body corporate that established and manages a unit trust scheme is not a funds manager (as defined in section 63AB(2a)); and
(b)	the Commissioner is satisfied that —

(i)

the scheme otherwise satisfies the subsection (2)(a); and

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(ii) the body corporate will be a funds manager by the end of the start up period,

the Commissioner may grant the scheme interim

registration as a pooled investment trust under

subsection (2).

”.

(4)	After section 63AC(3) the following subsection is inserted —

“

(3a)	Subject to section 17 of the Taxation Administration Act 2003, if the Commissioner grants a unit trust scheme interim registration as a pooled investment trust or an equity trust, then the Commissioner shall make any reassessment necessary to give effect to that registration.

”.

21. Section 63AD amended

(1)	Section 63AD(1) is repealed and the following subsection is
inserted instead —

“

(1)	For the purposes of this section and section 63AE, a
disqualifying event occurs —

(a)	in the case of a unit trust scheme that has been

registered under section 63AA(2) — if the

scheme ceases to comply with a criterion that is

applicable to it referred to in section 63AB(2)

or (3);

(b)

in the case of a unit trust scheme that has been

granted interim registration — if, during the

start up period, the scheme ceases to comply

with a criterion that is applicable to it referred

to in section 63AB(2)(a), (c) (other than

subparagraph (xi)) or (h), or (3)(a);

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(c)	in the case of a unit trust scheme that has been

granted interim registration — if, on the last

day of the start up period, the scheme does not comply with a criterion that is applicable to it referred to in section 63AB(2)(b), (c), (d), (e), (f) or (g), or (3)(b) or (c); or

(d)	in the case of a unit trust scheme that was established and is managed by a body corporate and that has been granted interim registration as a pooled investment trust by virtue of

section 63AC(2a) — if, on the last day of the

start up period, the body corporate is not a

funds manager (as defined in

section 63AB(2a)).

”.

(2)	Section 63AD(2) is amended by deleting “event.” and inserting instead — “

event, unless it is taken to have occurred under

subsection (4) or (6).

”.

(3)

Section 63AD(3)(b) is amended by deleting “first units under

the scheme were issued.” and inserting instead —

“ start up period. ”.

(4)

Section 63AD(4) is amended as follows:

(a)	after “has occurred,” by inserting —

“

a disqualifying event is taken to have occurred and

”;

(b)	by deleting paragraph (c) and inserting the following

paragraph instead —

“

(c)	notify the unit trustee of —

(i) the cancellation;

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(ii) from when the cancellation takes effect;

(iii) the reasons for the cancellation; and

(iv) when the Commissioner is satisfied that the disqualifying event occurred.

”.

(5)

Section 63AD(5)(b) is amended by deleting “first units under

the scheme were issued.” and inserting instead —

“ start up period. ”.

(6)

Section 63AD(6) is amended as follows:

(a)	after “payable” by inserting —

“

, a disqualifying event is taken to have occurred and

”;

(b)	by deleting paragraph (b) and inserting the following

paragraph instead —

“

(b)	notify the unit trustee of the matters referred to in subsection (4)(c).

”.

(7)	After section 63AD(7) the following subsection is inserted —

“

(8)

If a unit trust scheme registered under section 63AA(2)

or granted interim registration under section 63AC(2)

is to be treated as a sub-trust under section 63AA(2a), a

disqualifying event is taken to have occurred and the

Commissioner shall —

(a)	cancel the registration or interim registration; and
(b)	notify the unit trustee of the matters referred to in subsection (4)(c).

”.

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22. Sections 63ADA and 63ADB inserted

After section 63AD the following sections are inserted —

“

63ADA. Registration of private unit trust scheme as

provisional public trust

(1)

A unit trustee may apply to the Commissioner in an

approved form for registration of a unit trust scheme as

a provisional public trust if the application is made

before the end of the start up period.

(2)

The Commissioner may register the unit trust scheme

as a provisional public trust for the start up period if

satisfied that —

(a)	it is intended that, by the end of the start up period, the unit trust scheme will no longer be a private unit trust scheme within the meaning in section 63(2); and
(b)

registration is not being used and is not likely to with the collateral purpose of avoiding or reducing the duty that otherwise would be or might become payable on the conveyance or transfer of trust property.

(3)	For the purpose of being satisfied as to a matter referred to in subsection (2)(b), the Commissioner may take into account any matter that the Commissioner considers to be relevant.

(4) The Commissioner —

(a)	must advise the unit trustee as to whether or not the Commissioner has registered the unit trust scheme as a provisional public trust; and
(b)	if the Commissioner decides not to register a unit trust scheme as a provisional public trust,

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must give the unit trustee reasons for that

decision.

(5)

Subject to section 17 of the Taxation Administration

Act 2003, if the Commissioner registers a unit trust

scheme as a provisional public trust, then the

Commissioner must make any reassessment necessary

to give effect to that registration.

(6)

If the Commissioner decides not to register a unit trust

scheme as a provisional public trust, the unit trustee

may challenge the validity or correctness of that

decision in accordance with Part 4 of the Taxation

Administration Act 2003 as if the unit trustee were a

taxpayer and the decision were a decision affecting the

trustee’s liability to pay duty.

63ADB. Cancellation of registration of provisional public

trust

(1)	For the purposes of this section and section 63AE a disqualifying event occurs in relation to a unit trust scheme that has been registered as a provisional public
trust —

(a)	if, on the last day of the start up period, the scheme is a private unit trust scheme within the meaning in section 63(2); or
(b)	without limiting paragraph (a), if —

(i) the start up period begins on the day on which the prospectus or information memorandum for the scheme is lodged with the Australian Securities and Investments Commission; and

(ii) during the start up period, there is a disposition of a unit that was held in the scheme on the first day of that period.

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(2)

A disposition referred to in subsection (1)(b)(ii) is to be

disregarded if the Commissioner is satisfied that in the

circumstances of a particular case it is reasonable to do

so.

(3)

If a disqualifying event occurs —

(a)	the Commissioner must cancel the registration of the unit trust scheme as a provisional public trust;
(b)	the cancellation is taken to have had effect on and from immediately before the start up period; and
(c)	the unit trustee must, within 14 days after the day on which the disqualifying event occurs, give the Commissioner notice about the
disqualifying event, unless it is taken to have occurred under subsection (4) or (5).

(4)

If the Commissioner has not been notified of the

occurrence of a disqualifying event but is satisfied that

a disqualifying event has occurred —

(a)	a disqualifying event is taken to have occurred and subsection (3)(a) and (b) apply; and
(b)	the Commissioner must notify the unit trustee

of —

(i) the cancellation under subsection (3)(a) of the registration of the unit trust scheme as a provisional public trust;

(ii) the reasons for the cancellation; and

(iii) when the Commissioner is satisfied that the disqualifying event occurred.

(5)	If the Commissioner is satisfied that a provisional public trust is being used as part of a scheme or arrangement with the collateral purpose of avoiding or reducing the duty that otherwise would be or might

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become payable on the conveyance or transfer of trust
property —

(a)	a disqualifying event is taken to have occurred and subsection (3)(a) and (b) apply; and
(b)	the Commissioner must notify the unit trustee of the matters referred to in subsection (4)(b).

(6)

For the purposes of subsection (5), if a conveyance or

transfer of the trust property of a provisional public

trust —

(a)	is taken to be made for the purposes of section 73D(4); and
(b)	results solely from the allotment or issue of units in the provisional public trust during the start up period,

the conveyance or transfer is to be disregarded in

relation to a unit held in the provisional public trust on

the first day of the start up period.

(7)	For the purpose of being satisfied as to a matter referred to in subsection (5), the Commissioner may take into account any matter that the Commissioner considers to be relevant.

”.

23. Section 63AE amended

(1)

Section 63AE(1) is amended by deleting “prepare a dutiable

statement.” and inserting instead —

“

within 2 months after the day on which the

disqualifying event occurred lodge a statement with the

Commissioner in relation to the event.

”.

(2)	Section 63AE(2) is amended as follows:

(a)	in paragraph (a) by inserting after “be” —

“ prepared ”;

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(b)	in paragraph (c) after “registration” by inserting —

“ under section 63AA(2) ”;

(c)	after paragraph (c) by deleting “and”;
(d)	in paragraph (d) by deleting “first units under the scheme were issued” and inserting instead —

“ start up period ”;

(e)	after paragraph (d) by deleting the full stop and

inserting —

“

; and

(e)

in the case of the cancellation of the registration of a unit trust scheme as a provisional public trust, contain details of transfers and dispositions in relation to the scheme that occurred in the period commencing immediately before the start up period and ending on the day on which the Commissioner is given notice of the event or the day on which the Commissioner is satisfied that the event occurred and which would have been chargeable with duty under section 73D had the scheme not been registered as a provisional public trust.

”.

24. Section 63AF amended and transitional

(1)	Section 63AF(1) is amended as follows:

(a)	by deleting “prepared” and inserting instead —

“ lodged ”;

(b)	by deleting “or (d)” and inserting instead —

“ , (d) or (e) ”.

(2)

Section 63AF(2) is repealed.

(3)

However, section 63AF(2) of the Stamp Act 1921 continues to

apply in relation to an instrument of conveyance or transfer

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disclosed in a dutiable statement if the instrument was executed before this section came into operation, and in any such case the reference in section 63AF(2) to item 4A is to be read as a

reference to that item as in force from time to time prior to its

repeal by this Act.

25. Sections 63AG to 63AJ inserted and transitional

(1)	After section 63AF the following sections are inserted —

“

63AG.

When unit trust scheme becomes private unit trust

scheme

(1)	In this section and sections 63AH, 63AI and 63AJ —
“aggregated dispositions” means dispositions that —

(a)

include a disposition referred to in

subsection (3)(a) (the “transitional

disposition”); and

(b)

under this section together form substantially one disposition;

“private unit trust scheme” has the meaning given in

section 63(2).

(2)	Subject to subsection (3), if, as a result of the disposition of a unit, a unit trust scheme becomes a private unit trust scheme, the unit trust scheme is taken to have become a private unit trust scheme immediately before that disposition.

(3) If —

(a)	as a result of the disposition of a unit, a unit trust scheme becomes a private unit trust scheme; and

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(b)	that disposition is one of 2 or more dispositions of units in the unit trust scheme that together form substantially one disposition,

the unit trust scheme is taken to have become a private unit trust scheme immediately before the first of those dispositions.

(4)

For the purposes of subsection (3), dispositions of units

in a unit trust scheme are together taken to form

substantially one disposition if those dispositions are

made in response to —

(a)	one offer made or one arrangement entered into; or
(b)	offers made or arrangements entered into within 12 months of each other by a person or by a person and a related person.

(5)	For the purposes of subsection (4), a person and another person are related if they are related as provided in section 63(5).

(6) If —

(a)	the aggregated dispositions are made in response to 2 or more offers made or arrangements entered into; and
(b)	the Commissioner is satisfied that a disposition that would otherwise form part of the aggregated dispositions is not made for a common purpose,

the Commissioner is to treat that disposition as not

forming part of the aggregated dispositions.

(7)

Subject to subsection (10), duty is chargeable under

section 73D in respect of the dispositions that

comprise —

(a) the transitional disposition; and

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(b)	any of the aggregated dispositions made before the transitional disposition is made,

as if those dispositions together formed one disposition

made at the time the transitional disposition is made.

(8)

If any disposition forming part of the aggregated

dispositions is made after the transitional disposition is

made, duty is chargeable under section 73D in respect

of all the aggregated dispositions as if they together

formed one disposition made at the time the last of the

aggregated dispositions is made.

(9)

The amount of duty payable under subsection (8) is to

be reduced by the amount of any duty paid under

subsection (7).

(10)

A unit trustee liable to pay duty under both

subsections (7) and (8) may elect to pay duty solely

under subsection (8) by lodging with the Commissioner

a notice, in an approved form, within 2 months after

the transitional disposition is made.

(11)

For the purposes of this section, if the disposition of a

unit is not made within the period of 3 months after the

unit holder ceases to be the beneficial owner of the

unit, the disposition of the unit is taken to have been

made on the expiry of that period, and the

Commissioner may create a memorandum of the

disposition for the purposes of section 20 of the

Taxation Administration Act 2003.

63AH.

Liability for duty on aggregated dispositions

(1)	Despite section 73D(7), the unit trustee is liable to pay the duty that is chargeable under section 73D because of section 63AG in respect of the aggregated dispositions.

(2) If —

(a)	a person other than the unit trustee has paid duty under section 73D in respect of a

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disposition that forms part of the aggregated

dispositions; and

(b)	the unit trustee has paid the duty referred to in subsection (1) in respect of those dispositions,

the person referred to in paragraph (a) is entitled to a

refund of the amount of duty paid by that person.

(3)	Subject to section 17 of the Taxation Administration Act 2003, the Commissioner must make any reassessment necessary to give effect to this section.

63AI.

Interstate security duty

(1)

If interstate security duty has been paid in respect of

any disposition forming part of the aggregated

dispositions, the amount of the aggregated duty that is

attributable to that disposition is to be reduced by the

same proportion of the interstate security duty as the

value of the trust property situated in Western Australia

bears to the aggregate value of all the trust property.

(2)

In subsection (1) —

“aggregated duty” means the duty that is chargeable

under section 73D because of section 63AG in

respect of the aggregated dispositions;

“interstate security duty” means duty chargeable in

another State or a Territory on a conveyance or

transfer of any marketable security or right in

respect of shares.

63AJ.

Dutiable statement to be lodged

(1)

If duty is chargeable under section 73D because of

section 63AG in respect of the aggregated dispositions,

the unit trustee of the unit trust scheme concerned must

lodge with the Commissioner —

(a)	if no election is made under

section 63AG(10) — within 2 months after the

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transitional disposition is made, a statement in respect of that disposition and any disposition forming part of the aggregated dispositions that

is made before the transitional disposition is

made; and

(b)	if any disposition forming part of the aggregated dispositions is made after the

transitional disposition is made — within

2 months after the last of the aggregated

dispositions is made, a statement in respect of

all the aggregated dispositions.

Penalty: $20 000.

(2)

A dutiable statement must be prepared in an approved

form.

(3)

A dutiable statement lodged under subsection (1) is

taken to be an instrument evidencing the dispositions in

respect of which it is lodged and is chargeable with

duty to the extent that duty chargeable on those

dispositions under section 73D because of

section 63AG has not been paid.

(4)

The amount of duty payable in respect of a dutiable

statement lodged under paragraph (b) of subsection (1)

is to be reduced by the amount of any duty paid in

respect of a dutiable statement lodged under

paragraph (a) of that subsection.

”.

(2)

Section 63AG of the Stamp Act 1921, as inserted by

subsection (1), does not apply to or in relation to a disposition

referred to in that section —

(a)	made before the day on which this section comes into operation; or
(b)	made in response to an offer made or arrangement entered into before that day.

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26. Section 63A amended

Section 63A(2) is amended by deleting “liable to duty.” and

inserting instead —

“

chargeable with duty but the Commissioner, on being requested to do so, is to endorse on the conveyance or transfer the duty paid.

”.

27. Section 69 amended and transitional

(1)

Section 69(2) is amended by deleting “or 4A(1)”.

(2)

However, section 69(2) as in force before this section came into

operation continues to apply in relation to an instrument of

conveyance or transfer to an intermediary executed before this

section came into operation and in any such case the reference

in section 69(2) to item 4A is to be read as a reference to that

item as in force from time to time prior to its repeal by this Act.

28. Section 70 amended

(1)	The amendments in subsections (2) to (5) are to section 70(1).
(2)	The definition of “chargeable with duty” is amended by deleting
“ “chargeable with duty” ” and inserting instead —
“ “dutiable” ”,
and by moving that definition to the appropriate alphabetical position.
(3)	The definition of “exempt chattels” is amended as follows:

(a)	in paragraph (a) by deleting “chattels” and inserting instead —

“ goods, wares or merchandise ”;

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(b)	after paragraph (a) by deleting “or” and inserting —

“

(aa)	goods, wares or merchandise used solely or principally in connection with the business of primary production (as defined in
section 75D); or

”.

(4)	The definitions of “estate or interest in land”, “farming land”
and “land” are deleted.
(5)	The following definition is inserted in the appropriate
alphabetical position —
“

“other property” means property other than goods,

wares or merchandise, and includes an estate or

interest in such property;

”.

(6)	After section 70(1) the following subsection is inserted —

“

(1a)	For the purposes of this section a mining tenement (as defined in section 76) is an estate or interest in property.

”.

(7)	Section 70(2) and (3) are each amended by deleting “land” wherever it occurs and inserting instead —
“ other property ”.
(8)	Section 70(2)(b) and (3)(b) are each amended by deleting
“chargeable with duty” and inserting instead —
“ dutiable ”.

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29. Section 72 amended

Section 72(4) is amended by deleting “duty.” and inserting

instead —

“

duty, but the Commissioner, on being requested to do

so, is to endorse the duty on the instrument.

”.

30. Section 73AB inserted

After section 73AA the following section is inserted —

“

73AB.	Duty on conveyance to correct error
If the Commissioner is satisfied that —

(a)	a conveyance or transfer of property (the

“correcting transfer”) is solely for the

purpose of correcting the effect of an error in

respect of —

(i) the contract or agreement for the sale of that property; or

(ii) a previous conveyance or transfer of that or other property;

(b)	no additional consideration is paid or payable in respect of the correcting transfer; and
(c)	the correcting transfer passes an interest in the property only to the extent necessary to correct the effect of the error,

the correcting transfer shall be charged with duty in

accordance with item 6 of the Second Schedule.

”.

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31. Section 73D amended

(1)	Section 73D(1) is amended as follows:

(a)	by deleting the definition of “disposition”;
(b)	at the end of the definition of “land” by deleting the

semicolon and inserting instead a full stop;

(c)	by deleting the definitions of “transfer” and “unit”.

(2)	After section 73D(1) the following subsection is inserted —

“

(1a)

This section applies to a disposition in relation to a unit

in a unit trust scheme if the trust property of the

scheme comprises or includes —

(a)	property situated, or taken to be situated, in Western Australia; or
(b)	any interest, including any beneficial interest, in such property.

”.

(3)	Section 73D(2) is amended as follows:

(a)	by deleting “make, accept,”;
(b)	by deleting paragraphs (a) and (b) and “and” between them and inserting instead —

“

(a)

a transfer or an instrument effecting or evidencing the disposition is executed and (unless the person executed the transfer or the instrument) delivered to the person and the duty with which the transfer or the instrument is chargeable has been paid; or

(b)

the person is satisfied that a dutiable statement has been lodged under section 63AJ or 73DAA in respect of the disposition and that the duty

with which the dutiable statement is chargeable

has been paid.

”.

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(4)	Section 73D(7) is amended by deleting “Each” and inserting instead —
“ Subject to sections 63AH and 73DC(6), each ”.
(5)	Section 73D(10) is amended by deleting “made, accepted, gave effect to,” and inserting instead —
“ gave effect to ”.
(6)	Section 73D(11) is amended as follows:

(a)	after “subsection (12)” by inserting —

“ and section 73DC ”;

(b)	after paragraph (a) by deleting “or”;
(c)	after paragraph (b) by deleting the full stop and

inserting —

“

; or

(c)	registered as a provisional public trust under section 63ADA(2).

”.

(7)

Section 73D(12) is amended by deleting “If the registration or

interim registration of a unit trust scheme is cancelled,” and

inserting instead —

“

If —

(a)	the registration or interim registration of a unit trust scheme; or
(b)	the registration of a unit trust scheme as a provisional public trust,

is cancelled,

”.

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32. Section 73DAA inserted

After section 73D the following section is inserted —

“

73DAA. Dutiable statement required if transfer or

instrument not lodged

(1)	Subject to subsection (3) if, for a disposition in relation
to a unit —

(a) a transfer; or

(b)	an instrument effecting or evidencing the disposition,

is not lodged with the Commissioner, each liable

person must, within 2 months after the disposition is

made, lodge a statement with the Commissioner in

respect of the disposition.

Penalty: $20 000.

(2)	In subsection (1) —
“liable person” means —

(a)	if a transfer or instrument has been

executed — a person who is liable to pay

duty in respect of the disposition; or

(b)	if a transfer or instrument has not been

executed — a person who would be liable to

pay duty in respect of the disposition if a

transfer or instrument were executed.

(3)

Subsection (1) does not apply in relation to a

disposition that is included in a dutiable statement

under section 63AJ.

(4)

A dutiable statement must be prepared in an approved

form.

(5)

A dutiable statement lodged under subsection (1) is

taken to be an instrument evidencing the disposition in

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respect of which it is lodged and is chargeable with

duty accordingly.

(6)

The requirement to lodge a dutiable statement under

subsection (1) in respect of a disposition ceases to

apply if a transfer or an instrument effecting or

evidencing the disposition is lodged with the

Commissioner at any time after the disposition was

made, but nothing in this subsection affects the liability

of a person for an offence against subsection (1)

committed before the transfer or the instrument is

lodged.

(7)

If subsection (6) has effect, the transfer or instrument referred to in that subsection is to be regarded, for the purposes of section 17A, as having been first executed on the day on which the disposition was made.

(8)

Section 31B does not apply to, or in relation to, a

disposition referred to in subsection (1).

”.

33. Sections 73DB to 73DE inserted

After section 73DA the following sections are inserted —

“

73DB.

Interpretation for sections 73DC, 73DD and 73DE

(1)	In sections 73DC, 73DD and 73DE —
“acquire”, in relation to an interest in a registered unit

trust scheme, means acquire beneficially in any

manner or by any means and includes the

increasing of an existing interest;

“registered unit trust scheme” means a unit trust

scheme registered as a pooled investment trust

under section 63AA(2).

(2)	For the purposes of sections 73DC, 73DD and 73DE, an interest acquired or held by a custodian trustee on

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behalf of a person is taken to have been acquired, or to be held, by the person.

(3)	For the purposes of section 73DC, 73DD and 73DE, a
person and another person are related if —

(a)	they are related as provided in section 63(5); or
(b)	they acquire interests in a registered unit trust scheme by virtue of acquisitions that together form or arise from substantially one transaction

or one series of transactions.

73DC.

Acquisition of majority interest or further interest

in pooled investment trust

(1)	Despite section 73D(11) and subject to this section, duty is chargeable under section 73D in respect of a disposition of a unit in a registered unit trust scheme if,
as a result of the disposition, a person acquires, or a person and a related person acquire, a majority interest or a further interest in the scheme.
(2)	If paragraph (b) of section 73DD(1) applies in relation to the acquisition of a majority interest in a registered unit trust scheme, duty is chargeable under section 73D
in respect of the dispositions of units in the scheme (the
“aggregated dispositions”) that result in a person, or a
person and a related person, acquiring the interests referred to in that paragraph as if the aggregated dispositions formed one disposition made at the time the majority interest was acquired.
(3)	If the aggregated dispositions include one or more
dispositions (“relevant aggregated dispositions”)
made when the unit trust scheme was not —

(a)	registered under section 63AA(2); or

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(b) granted interim registration under

section 63AC(2),

duty chargeable under section 73D, as referred to in

subsection (2), is to be reduced by the amount of duty

that would be chargeable under that section in respect

of the relevant aggregated dispositions if those

dispositions together formed one disposition made

immediately before the majority interest was acquired.

(4)	Duty is chargeable under section 73D in respect of a disposition of a unit in a registered unit trust scheme that results in a person, or a person and a related
person, acquiring a further interest in the scheme as
if — (a) that disposition; and

(b)	each of the dispositions that resulted in the person, or the person and the related person, acquiring an interest in the scheme held by the person, or by the person and the related person, immediately before the further interest was acquired,

together formed one disposition made at the time the

further interest was acquired.

(5)

Duty chargeable under section 73D, as referred to in

subsection (4), is to be reduced by the amount of duty

that would be chargeable under that section in respect

of the dispositions referred to in subsection (4)(b) if

those dispositions together formed one disposition

made immediately before the further interest was

acquired.

(6)

Despite section 73D(7), the person liable to pay the

duty chargeable under section 73D because of this

section in respect of a disposition is the person who

acquires the majority interest or further interest in the

registered unit trust scheme.

(a)	payments for damage waiver or for damage excess;

(b) late return fees;

(c)	an amount paid to the person who hires out the goods for giving the hirer information about, or rights relating to, the use of the goods for the

purposes of the hire of goods.

(3)	The following charges are not included as hiring
charges —

(a)

payments for delivery, repositioning, erection, goods;

(b)	refundable deposits or bonds (unless retained as hiring charges);
(c)	in the case of hire purchase agreements —

deposits or other consideration paid or given to the person who hires out the goods at or before the time the agreement is made;

(d)	insurance premiums payable by the hirer;
(e)	an amount equivalent to duty paid or payable under this Act or interstate duty;
(f)	payments for the sale of goods (such as fuel, replacement parts or theft replacement);
(g)	an amount equivalent to any GST payable on the supply to which the hire of goods relates;
(h)	a payment by the hirer under a hire of goods if title to the goods passes to the hirer as a consequence of the payment;

(i) any payment of a type prescribed by the regulations.

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112IF.	Terms used in this Part
In this Part —
“annual duty-free threshold” has the meaning given

by section 112LB(2);

“commercial hire business” has the meaning given by

section 112I;

“duty-free threshold”, for a return period, is worked

out in accordance with section 112LB(2);

“equipment financing arrangement” has the

meaning given by section 112ID(1);

“goods” has the meaning given by section 112IA;

“hire of goods” has the meaning given by

section 112IB;

“hire purchase agreement” has the meaning given by

section 112ID(2);

“hirer” means a person who hires goods from a person

who hires out goods under a hire of goods;

“hiring charges” has the meaning given by

section 112IE;

“ordinary hiring arrangement” means a hire of

goods that is not an equipment financing

arrangement (see section 112IB(2));

“registered commercial hire business” means a

commercial hire business that is registered under

section 112JA;

“return period” has the meaning given by

section 112LC;

“State hire of goods” has the meaning given by

section 112IC.

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Division 2 — Registration of commercial hire businesses

112J.

Commercial hire businesses to be registered

(1)

A commercial hire business that is not registered under

section 112JA must apply to be registered under that

section if, in a month, the total amount of the hiring

charges received by the commercial hire business in

the month exceeds $4 167.

(2)

An application for registration must be made in an

approved form on or before the 21

day after the end of

the month referred to in subsection (1).

Penalty: $20 000.

112JA.

Registration of commercial hire businesses

(1)

The Commissioner must register a commercial hire

business that applies for registration.

(2)

The Commissioner must register a commercial hire

business that has not applied for registration if satisfied

that the commercial hire business ought to be

registered for the purposes of this Part.

(3)

The Commissioner must give notice to a commercial

hire business of its registration.

112JB.

Cancelling registration of commercial hire

businesses

(1)	The Commissioner may cancel the registration of a commercial hire business on his or her own initiative or at the request of the business.
(2)	The Commissioner is not to cancel a commercial hire
business’s registration unless satisfied that registration
of the commercial hire business is no longer necessary for the purposes of this Part.

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(3)	A cancellation has effect on and from the day specified in the notice of cancellation of registration, which may be a day that is earlier than the day on which the notice is issued.

Division 3 — Connection to the State

112K.	Connection to the State — hire of goods and
persons to which this Part applies

(1)	Duty under Division 4 is payable in relation to a hire of goods in a return period if the goods are used solely or predominantly in Western Australia during the return
period.
(2)	Duty under Division 5 is payable in relation to a hire of goods if the goods are used solely or predominantly in Western Australia during the course of the hire.
(3)	For the purposes of deciding whether goods are used
solely or predominantly in Western Australia —

(a)	if a motor vehicle that is registered under the law of a State or Territory is the subject of an

equipment financing arrangement — the

vehicle is taken to be used solely in that State

or Territory;

(b)

if a motor vehicle that is registered under the law of a State or Territory is the subject of an

ordinary hiring arrangement — the vehicle is

taken to be used solely in the State or Territory

in which it is initially delivered under the

arrangement;

(c)

in any other case — goods are used

predominantly in Western Australia if they are

used more in Western Australia than in any

other single State or Territory; and

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(d)	if goods are not used solely or predominantly in

any particular State or Territory — they are

taken to be used predominantly in the State or Territory in which they are initially delivered under the hire of goods.

Division 4 — Commercial hire businesses

112L.

Lodging returns and paying duty

(1)	A registered commercial hire business must —

(a)	lodge a return in an approved form for each return period of the commercial hire business; and
(b)	pay the duty payable on the return (if any),

on or before the 21	day after the end of the return
period.
Penalty: $5 000.

(2)

The commercial hire business must lodge the return

even if no duty is payable on the return.

(3)

A commercial hire business that is not registered under

section 112JA must —

(a)	lodge a return in an approved form for a month if the total amount of hiring charges received by the commercial hire business in that month exceeds $4 167; and
(b)	pay the duty payable on the return (if any),

on or before the 21	day after the end of the month.
Penalty: $5 000.

(4)	The month referred to in subsection (3) is to be treated as a return period for the purposes of this Part.

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112LA. Calculating the assessable amount for a return

period

(1)	The assessable amount for a return period of a
commercial hire business is —

(a)	the sum of all hiring charges received by the commercial hire business in the return period; or
(b)	if the Commissioner has, under subsection (2), approved another basis for calculating the assessable amount for the commercial hire

business — the amount calculated for the return

period on that basis.

(2)	The Commissioner may by notice approve a basis for calculating an assessable amount for a return period for a commercial hire business if the Commissioner is satisfied that the amount of duty payable on that basis will, over a period of time, approximate the amount of duty otherwise payable using assessable amounts calculated in accordance with subsection (1)(a).
(3)	An approval may be revoked by the Commissioner at any time by notice to the commercial hire business.
(4)	A registered commercial hire business may, with the
Commissioner’s consent, change the basis for
calculating the assessable amount from return period to return period but it must not change the basis within a return period.
(5)	On the change of basis, the Commissioner may assess or reassess the duty payable in any return period prior to the change of basis to include any hiring charges that
would not be accounted for, or to exclude any hiring charges that would otherwise be accounted for twice, because of the change of basis.

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112LB.

Calculating the amount of duty payable on a return

(1)	The amount of duty payable on the return for a return
period is the amount equal to the sum of —

(a)

0.75% of that part of the assessable amount for the return period that is attributable to equipment financing arrangements; and

(b)

1.5% of the amount by which that part of the assessable amount for the return period that is attributable to ordinary hiring arrangements

exceeds the duty-free threshold for the return

period.

(2)	The duty-free threshold for a return period is —

annual

number of whole months in

duty-free



the return period

threshold

where —

“annual duty-free threshold” is $50 000.

112LC. Return period for a commercial hire business

The return period of a registered commercial hire

business is —

(a)	one month, if a special tax return arrangement is not in force; or
(b)	the return period provided in a special tax return arrangement in force under section 49 of the Taxation Administration Act 2003.

112LD. Annual reconciliation

(1)	If the sum of all assessable amounts of a registered commercial hire business in a financial year does not exceed the annual duty-free threshold, the commercial hire business is entitled to a refund or rebate of all duty paid or payable in respect of those assessable amounts.

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(2) If —

(a)	the sum of all assessable amounts of a registered commercial hire business in a financial year exceeds the annual duty-free threshold;
(b)	the assessable amount for one or more return periods of the commercial hire business in the year consists of or includes an amount of hiring charges attributable to ordinary hiring

arrangements (an “attributable amount”); and

(c)	the sum of all attributable amounts in the year does not exceed the annual duty-free threshold,

the commercial hire business is entitled to a refund or

rebate of all duty paid or payable in respect of the

attributable amounts.

(3) If —

(a)	the sum of all assessable amounts of a registered commercial hire business in a financial year exceeds the annual duty-free threshold;
(b)	the assessable amount for one or more return periods of the commercial hire business in the year consists of or includes an amount of hiring charges attributable to ordinary hiring

arrangements (an “attributable amount”);

(c)	the sum of all attributable amounts of the year exceeds the annual duty-free threshold; and
(d)	the sum of the amounts of duty paid by the commercial hire business in respect of the attributable amounts in the financial year exceeds 1.5% of the dutiable amount,

then the commercial hire business is entitled to a rebate

equal to the difference between the total amount of

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duty paid in respect of the attributable amounts and 1.5% of the dutiable amount.

(4)	In subsection (3)(d) —
“dutiable amount” means the amount by which the

sum of the attributable amounts in the financial

year exceeds the annual duty-free threshold for the

financial year.

(5)

If a commercial hire business is registered for a part of

a financial year, then, in applying subsection (1), (2)

or (3), the annual duty-free threshold for the

commercial hire business is reduced as follows —

annual

number of days in the year the commercial

duty-free		hire business was registered
threshold	number of days in the year

(6)	Subject to section 17(4) of the Taxation Administration Act 2003, the Commissioner must make any assessment necessary to give effect to this section.

Division 5 — Persons other than commercial

hire businesses

112M. Statement of transaction

(1)

If a hirer hires goods under a hire of goods from a

person who is not a commercial hire business and the

total amount of hiring charges paid or payable for the

hire of the goods is at least $1 000, the hirer must

prepare a statement that includes particulars of the

following —

(a)	the name and address of each party to the hire;
(b)	a description of the goods;
(c)	the commencement date and the term of the hire;

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(d)	the total of the hiring charges paid or payable over the term of the hire;
(e)	the intervals at which the hiring charges are paid or payable.

(2)	The statement must be prepared at or before the earlier
of —

(a)	the time that the hirer makes the first (or only) payment of hiring charges; or
(b)	the time that the hiring charges become payable.

Penalty applicable to subsections (1) and (2): $5 000.

(3)

This section does not require a separate statement to be prepared if the hire is already evidenced in a document that otherwise complies with this section, in which

case, the document is taken to be the statement.

(4)

The hirer need not prepare a statement under

subsection (1) if the hire of goods is wholly for private

or domestic purposes.

112MA. Lodging statements and paying duty

(1)	Within 3 months after the statement is required to be
prepared, the hirer must —

(a)	lodge the statement with the Commissioner; and
(b)	pay the duty payable on the statement.

Penalty: $5 000.

(2)	Duty payable on a statement is —

(a)	0.75% of the total amount of hiring charges if the hire of goods is an equipment financing arrangement; or

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(b)	1.5% of the total amount of hiring charges if the hire of goods is an ordinary hiring arrangement.

112MB. Method of calculating total hiring charges if they are not readily ascertainable

(1)	If the Commissioner is satisfied that it is not reasonably practicable to calculate the total of the hiring charges payable over the term of the hire by the time a statement is required to be lodged under section 112MA, the Commissioner may, in a notice given to the hirer, require the hirer to prepare one or more statements, at the time or times specified in the notice, to take the place of the statement required by section 112M.
(2)	To the extent possible, the statement or statements must include the same information as is specified in section 112M.
(3)	Within 3 months after a statement is required to be
prepared, the hirer must —

(a)	lodge the statement with the Commissioner; and
(b)	pay duty on the statement calculated in accordance with section 112MA(2) to the extent that the total hiring charges are ascertainable at the time the statement is prepared.

Penalty: $5 000.

(4)	The amount of duty paid on a prior statement relating to the same hire of goods is to be deducted from the duty payable on any subsequent statement.

Business Tax Review (Assessment) Act (No. 2) 2003

Stamp duty changes Stamp Act 1921 amended

Part 2

Division 1

s. 85

Division 6 — General provisions

112N.

Credit for duty paid in another Australian

jurisdiction

The duty otherwise payable under this Part in respect

of a hire of goods is reduced by the amount of

interstate duty paid in respect of the hire.

112NA. Splitting or redirecting hiring charges —

anti-avoidance provision

(1)

The Commissioner may include in an assessment or

reassessment, as part of an amount received as hiring

charges, any of the following —

(a)	hire of goods that is not a hiring charge, including a charge referred to in

a payment, or a portion of the payment, under a satisfied has been made or included in the payment for the purpose of minimising duty under this Part;

(b)	a payment that would be a hiring charge except for the fact that it is paid to a person other than the person who hires out the goods.

(2)	The Commissioner may include in an assessment or reassessment penalty tax of an amount equal to the amount included in the assessment or reassessment under subsection (1).

112NB. Ascertainment and disclosure of place of use of

goods

(1)	A commercial hire business may, in determining the
commercial hire business’s liability to duty, rely on a
statement of the hirer as to —

(a)	where the goods will be solely or predominantly used in the course of the hire; or

Business Tax Review (Assessment) Act (No. 2) 2003

Part 2

Stamp duty changes

Division 1

Stamp Act 1921 amended

s. 85

(b)	in the case of an unregistered motor vehicle, where the motor vehicle will be registered during the course of the hire,

unless the commercial hire business knows that the

statement is false.

(2)	A commercial hire business is not bound to inquire as to any change in the place of use of the goods or, in the case of a motor vehicle, the place of its registration, but cannot continue to rely upon a statement referred to in subsection (1) if the commercial hire business becomes aware of a change in the place of use or registration.
(3)	If goods are solely or predominantly used in a place other than the place advised by the hirer in a statement referred to in subsection (1), the Commissioner may assess or reassess the duty payable according to the actual place of sole or predominant use of the goods.
(4)	If a motor vehicle is registered in a place other than the place advised by the hirer in a statement referred to in subsection (1), the Commissioner may assess or reassess the duty payable according to the place of its registration.
(5)	A person who fails to pay duty on a hire of goods in reliance on a statement referred to in subsection (1) does not contravene a taxation Act for the purposes of
the Taxation Administration Act 2003 and the person is not liable to penalty tax unless the duty is not paid within one month after the issue of a notice of assessment of the duty.
(6)	A hirer who knowingly falsely makes a statement referred to in subsection (1) (whether it is relied upon or not) is guilty of an offence.
Penalty applicable to subsection (6): $20 000.

Business Tax Review (Assessment) Act (No. 2) 2003

Stamp duty changes Stamp Act 1921 amended

Part 2

Division 1

s. 86

112NC. Records

A commercial hire business and a hirer who must

prepare a statement under Division 5 must keep —

(a)	the records that are prescribed in the regulations for the purposes of this section (if any); and
(b)	any other records necessary to enable the

Commissioner to determine the person’s

liability to duty under this Part.

Penalty: $20 000.

”.

86. Section 119 amended

(1)	Section 119(4) and (5) are each amended by deleting “or 4A”.
(2)	Section 119(9) is repealed.

87. Second Schedule amended

(1)	The amendments in this section are to the Second Schedule.
(2)	Item 2 is deleted.
(3)	Item 4 is amended by deleting “(except any marketable security
or right in respect of shares)”.
(4)	Item 4A is deleted.
(5)	Item 6 is amended as follows:

(a)	in the second column, under the heading “Nature of

instrument” —

(i) after paragraph (b) by inserting —

“ or ”;

(ii) at the end of paragraph (c) by deleting the

semicolon and “or” after it and inserting instead

a fullstop; and

(iii) by deleting paragraph (d);

Business Tax Review (Assessment) Act (No. 2) 2003

Part 2	Stamp duty changes
Division 1	Stamp Act 1921 amended
s. 88

(b)	in the third column, under the heading “Duty payable”,

by deleting “or 4A (as the case may be)”.

(6)	Item 12 is amended as follows:

(a)	subitem (2) is deleted;
(b)	subitem (3) is amended by deleting “combined” and “and the duty payable on a lease or agreement for a lease

for the rent under subitem (2)”;

(c)	subitems (4) and (5) are deleted.

(7)	Item 14(2) is amended by inserting before “registered” —
“ licensed or ”.
(8)	Item 14A is amended by deleting “or 4A, as the case requires”
in both places where it occurs.
(9)	Item 16 is amended as follows:

(a)	subitems (1) and (2) are each amended by deleting “, other than life insurance”;
(b)	subitem (3) is deleted.

(10)	Item 17 is amended by deleting “or 4A(1), as the case requires”.
(11)	Item 19 is amended as follows:

(a)	by deleting “or 4A(1), as the case requires”;
(b)	by deleting “items 4 and 4A(1)” and inserting instead —

“ item 4 ”.

88. Third Schedule amended

(1)	The amendments in this section are to the Third Schedule.
(2)	Item 1 is deleted.

Business Tax Review (Assessment) Act (No. 2) 2003

Stamp duty changes Stamp Act 1921 amended

Part 2

Division 1

s. 88

(3)	Item 2 is amended as follows:

(a)	by deleting subitem (1) and inserting the following

subitem instead —

“

(1)	A conveyance or transfer of a marketable security or right in respect of shares or an agreement under which an option is given or taken to purchase or sell a marketable security or right in respect of shares.

”;

(b)	in subitem (7c) by deleting “and 31B(1)(ca) and (cb)” and inserting instead —

“ and referred to in section 31B(3)(b) or (c) ”;

(c)	by deleting subitems (8) and (9);
(d)	in subitem (11) —

(i) at the end of paragraph (e) by deleting “; or” and

inserting a full stop; and

(ii) by deleting paragraph (f).

(4)	After item 3(5) the following subitems are inserted —

“

(6)

Draft or order drawn by any financial institution in Western

Australia on any other financial institution in Western

Australia not payable to bearer or order, and used solely for

the purpose of settling or clearing any account between

those financial institutions.

(7)

Letter written by a financial institution in Western Australia

to any other financial institution in Western Australia

directing the payment of any sum of money, the same not

being payable to bearer or to order, and that letter not being

sent or delivered to the person to whom payment is to be

made or to any person on his behalf.

(8)

Letter of credit granted in Western Australia authorising

drafts payable in Western Australia to be drawn out of

Western Australia.

”.

Business Tax Review (Assessment) Act (No. 2) 2003

Part 2	Stamp duty changes
Division 2	Transitional provisions
s. 89

(5)	Item 6(2) is deleted.
(6)	Item 7 is amended as follows:

(a)	by deleting the heading and inserting instead —

“ MORTGAGES (INCLUDING HOME MORTGAGES) ”;

(b)	in subitem (3) by deleting “or bond”;
(c)	by deleting subitems (1), (2), (4), (5), (6), (7), (8), (9) and (10).

(7)	Item 9 is amended as follows:

(a)	in subitem (2) by inserting after “licensed” in each place where it occurs —

“ or registered ”;

(b)	in subitem (4)(b) by inserting after “licence” —

“ or registration ”;

(c)	in subitem (5)(a) and (b) by inserting after “licensed” in each place where it occurs —

“ or registered ”.

Division 2 — Transitional provisions

89. Registered pooled investment trusts

(1)	In this section —
“commencement day” means the day on which this section

came into operation;

“former provisions” means the Stamp Act 1921, as in force

immediately before the commencement day;

“new provisions” means the Stamp Act 1921, as in force on the

commencement day;

“start up period” has the same meaning as it has in

section 63AC(2) of the former provisions and refers to a

period that ends on or after the commencement day.

Business Tax Review (Assessment) Act (No. 2) 2003

Stamp duty changes

Part 2

Transitional provisions

Division 2

s. 90

(2)

Without limiting sections 63AD and 63AE of the new

provisions, a disqualifying event occurs for the purposes of

those sections if —

(a)	on the commencement day, a pooled investment trust registered under section 63AA(2) of the former provisions; or
(b)	on the day on which the start up period ends, a pooled investment trust granted interim registration under section 63AC(2) of the former provisions,

does not comply with section 63AB(2) of the new provisions.

(3)

Subject to subsection (2) and to the new provisions other than

section 63AA(3a), if the registration of a pooled investment

trust under section 63AA(2) of the former provisions has effect

immediately before the commencement day, that registration

continues to have effect for the period of 3 years from that day.

90. Determinations under section 75JBA or 75JC

(1)	In this section —
“commencement day” means the day on which this section

came into operation.

(2)	If, before the commencement day, the Commissioner made a
determination —

(a)	under section 75JBA that a controlling body would be approved and the claw-back waived; or
(b)	under section 75JC that an exemption would be granted,

the determination is as binding on the Commissioner after the

commencement day as it was before that day, even if any of the

relevant provisions of the Stamp Act 1921 have been amended

or repealed by this Act.

Business Tax Review (Assessment) Act (No. 2) 2003

Part 2	Stamp duty changes
Division 2	Transitional provisions
s. 91

91. Agreements for lease

The amendments effected by sections 5, 77, 78 and 87(6) do not

apply in relation to —

(a)	an agreement for lease executed before this section came into operation regardless of when any lease entered into in accordance with the agreement is executed; or
(b)	any such lease, regardless of when it is executed.

92. Mortgages

(1)	In this section —
“amended Act” means the Stamp Act 1921 as amended by

this Act and the Business Tax Review (Taxing)

Act (No. 2) 2003;

“commencement day” means the day on which section 79

came into operation;

“former Act” means the Stamp Act 1921 as in force from time

to time before the commencement day.

(2)

The amended Act does not apply to a mortgage or other security

on which duty was payable under Part IIIE of the former Act if

the amount secured by the mortgage does not increase on or

after the commencement day.

(3)

However, a mortgage that was liable to duty under Part IIIE of the former Act is liable to duty under Part IIIE of the amended Act as if the mortgage had first been executed after the

commencement day if an advance as defined in Part IIIE of the

amended Act is made under the mortgage after the

commencement day.

93. Life insurance

The amendments effected by sections 80, 81, 82, 83 and 87(9) do not apply in relation to a policy of life insurance where the period for which the insurance is effected commenced before this section came into operation.

Business Tax Review (Assessment) Act (No. 2) 2003

Stamp duty changes

Part 2

Transitional provisions

Division 2

s. 94

94. Hire of goods

(1)	In this section —
“commencement” means the time at which section 85 came

into operation;

“new Part IVB” means Part IVB of the Stamp Act 1921 as in

force after commencement and, for the purposes of this

section, is taken to include item 18 of the Second Schedule

as in force after commencement;

“old Part IVB” means Part IVB of the Stamp Act 1921 as in

force immediately before commencement and, for the commencement.

purposes of this section, is taken to include item 18 of the

(2)	An expression used in this section that is given a meaning in the Stamp Act 1921 (including old Part IVB and new Part IVB) has the meaning so given unless the contrary intention appears.
(3)	On commencement, a person who was registered under old Part IVB immediately before commencement is taken, for all purposes, to have been registered under section 112JA of new Part IVB.
(4)	For the purposes of the ongoing application of old Part IVB under subsection (7), the registration of a person who was registered under old Part IVB immediately before commencement is taken to continue under old Part IVB, unless
the person’s registration is cancelled under new Part IVB.
(5)	On commencement, a designation made by the Minister under section 112N(1)(fa)(ii) of old Part IVB and in force immediately before commencement is taken, for all purposes, to have been made under section 112IC(2) of new Part IVB.
(6)	New Part IVB applies to hiring charges received under a hire of goods entered into after commencement.

Business Tax Review (Assessment) Act (No. 2) 2003

Part 2	Stamp duty changes
Division 3	Amendments to other Acts
s. 95

(7)	Despite the repeal of old Part IVB, it continues to apply —

(a)	in relation to the conduct of a rental business before commencement; and
(b)	in relation to the conduct of a rental business after commencement to the extent that the conduct of the rental business relates to rights, granted before commencement, to which old Part IVB applied before commencement.

(8)	To the extent that section 112O of old Part IVB has effect after commencement in relation to the conduct of a rental business, it has effect subject to the Taxation Administration Act 2003.

Division 3 — Amendments to other Acts

95. Taxation Administration Act 2003 amended

(1)

The amendments in this section are to the Taxation

Administration Act 2003*.

[* Act No. 1 of 2003.]

(2)

After section 18 the following section is inserted —

“

18A.

Withdrawal of assessment

(1)	The Commissioner may, within 5 years after the issue of a notice of assessment, withdraw the assessment.
(2)	An assessment may not be withdrawn if any amount of tax has been paid on the assessment.
(3)	The Commissioner must give a written notice of withdrawal to the taxpayer.
(4)	If an assessment in respect of an event or transaction is withdrawn, the assessment is taken never to have been made and, subject to this Act, the Commissioner may make an assessment in respect of the event or

Business Tax Review (Assessment) Act (No. 2) 2003

Stamp duty changes Amendments to other Acts

Part 2

Division 3

s. 96

transaction at any time after the first-mentioned

assessment is withdrawn.

”.

(3)	Section 20(3) is amended as follows:

(a)	by deleting “prepared and”;
(b)	by deleting “prepared or, if prepared, has not been”;
(c)	by deleting “treat it as if the memorandum were the instrument” and inserting instead —

“

for the purposes of the taxation Act and this Act the

memorandum is taken to be the instrument lodged by

the person required to lodge it under the taxation Act

”.

(4)	Section 26(1)(a) is deleted.
(5)	The Glossary is amended as follows:

(a)	in the definition of “instrument”, in paragraph (a), by

deleting “bill of exchange, promissory note,”;

(b)	in the definition of “penalty tax”, in paragraph (c), by

deleting “or 76J(2)(b)” and inserting instead —

“ , 76J(2)(b) or 112NA(2) ”.

96. Totalisator Agency Board Betting Act 1960 amended

(1)

The amendment in this section is to the Totalisator Agency

Board Betting Act 1960*.

[* Reprinted as at 8 November 2002.]

(2)

Section 29 is amended by deleting “or cheque drawn”.

Business Tax Review (Assessment) Act (No. 2) 2003

Part 3	Stamp duty on workers compensation insurance policies
s. 97

Part 3 — Stamp duty on workers compensation

insurance policies

97. The Act amended

The amendments in sections 98 and 99 are to the Stamp

Act 1921*.

[* Reprinted as at 3 August 2001.

For subsequent amendments see Western Australian

Legislation Information Tables for 2002, Table 1, p. 368 and

Act No. 21 of 2003.]

98. Section 92 amended and transitional

(1)	Section 92 is amended in the definition of “policy of insurance” by deleting all of the definition after “against” and inserting instead —

“

accident, but does not include —

(a)	any policy of life insurance where the period for which the insurance is effected commences on or after the day on which section 80 of the Business Tax Review (Assessment) Act (No. 2) 2003 came into operation; or
(b)	any policy of insurance against an

employer’s liability to pay compensation

under the Workers’ Compensation and

Rehabilitation Act 1981 where the period for which the insurance is effected commences on or after 30 June 2004;

”.

(2)	The amendments effected by this section and section 99 do not
apply in relation to a policy of insurance against an employer’s
liability to pay compensation under the Workers’ Compensation

Business Tax Review (Assessment) Act (No. 2) 2003

Stamp duty on workers compensation insurance policies	Part 3
s. 99

and Rehabilitation Act 1981 where the period for which the

insurance was effected commenced on or before 29 June 2004.

99. Second Schedule amended

The Second Schedule, item 16(1)(a) and (1a) are deleted.

100. Taxation Administration Act 2003 amended and transitional

(1)	The amendment in this section is to the Taxation Administration Act 2003*.
[* Act No. 1 of 2003.]
(2)	Section 114(3)(f) is deleted.
(3)	The amendment effected by this section does not apply in relation to a policy of insurance of the kind described in that section 114(3)(f) if the period for which the insurance is effected commenced on or before 29 June 2004.

Business Tax Review (Assessment) Act (No. 2) 2003

Part 4

Debits Tax Assessment Act 2002 amended

101

Part 4 — Debits Tax Assessment Act 2002 amended

101. The Act amended

The amendments in this Part are to the Debits Tax Assessment

Act 2002*.

[* Act No. 50 of 2002.]

102. Section 5 amended

Section 5(4) is amended by inserting the following paragraph

before paragraph (a) —

“

(aa)	a debit made on or after 1 July 2005;

”.

103. Section 9 amended

After section 9(4) the following subsection is inserted —

“

(5)	A financial institution is not required to lodge a monthly return under subsection (1) or (2) for a month commencing on or after 1 July 2005.

”.

104. Section 10 amended

Section 10(1) is amended by inserting after “all debits” —

“ made, or to be made, before 1 July 2005 ”.

105. Section 12 amended

(1)

Section 12(1) is amended by inserting after “certificated

account” —

“ before 1 July 2005 ”.

Business Tax Review (Assessment) Act (No. 2) 2003

Debits Tax Assessment Act 2002 amended	Part 4
s. 106

(2)	Section 12(2) is amended by inserting after “30 days” —
“ and before 1 July 2005 ”.

106. Section 14 amended

After section 14(2) the following subsection is inserted —

“

(3)	A financial institution is not required to lodge an annual statement under subsection (1) for the year 2006 or any subsequent year.

”.

Business Tax Review (Assessment) Act (No. 2) 2003

Part 5	Minor amendments
s. 107
Part 5 — Minor amendments

107. Stamp Act 1921 amended

(1)	The amendments in this section are to the Stamp Act 1921*.
[* Reprinted as at 3 August 2001.

For subsequent amendments see Western Australian

Legislation Information Tables for 2002, Table 1, p. 368 and

Act No. 21 of 2003.]

(2)	Section 4(1) is amended by inserting the following definition in
the appropriate alphabetical position —
“

“unencumbered value” has a meaning affected by

section 33;

”.

(3)	Section 35(1) and (2) are each amended by deleting “Stamp Act” and inserting instead —
“ stamp Act ”.
(4)	Section 75HA(7)(b)(ii) is amended by deleting “section 76AN” and inserting instead —
“ section 76AG ”.
(5)	Section 76(2)(b)(iv) is amended by deleting “person” and inserting instead —
“ individual ”.
(6)	Section 88A is amended by deleting the subsection
designation “(1)”.
(7)	In the Second Schedule item 4A is amended by inserting before
“Conveyance” the subitem designation “(1)”.

Business Tax Review (Assessment) Act (No. 2) 2003

Minor amendments	Part 5
s. 108

108. Taxation Administration Act 2003 amended

(1)

The amendments in this section are to the Taxation

Administration Act 2003*.

[* Act No. 1 of 2003.]

(2)

Section 23(2) is amended as follows:

(a)	by deleting “if the Commissioner”;
(b)	in paragraph (a) by inserting before “makes a reassessment” —

“ if the Commissioner ”;

(c)	after paragraph (a) by deleting “or”;
(d)	in paragraph (b) by inserting before “assesses the amount” —

“ if the Commissioner ”;

(e)	after paragraph (b) by deleting the full stop and

inserting —

“

; or

(c)	if no tax is payable under an exemption (however expressed) provided under the Land Tax Assessment Act 2002.

”.

(3)	The Glossary is amended as follows:

(a)	by inserting the following definition in the appropriate

alphabetical position —

“

“approved” means approved by the Commissioner;

”;

(b)	in the definition of “instrument”, in paragraph (a), by

deleting “insurance policy” and inserting instead —

“ policy of insurance ”.

Business Tax Review (Assessment) Act (No. 2) 2003

Part 5	Minor amendments
s. 109

109. Land Tax Assessment Act 2002 amended

(1)	The amendments in this section are to the Land Tax Assessment Act 2002*.
[* Act No. 52 of 2002.]
(2)	Section 29(4) is amended by deleting “rural zone” and inserting instead —
“ non-rural zone ”.