Stamp Amendment Act (No. 3) 2000 (WA)

Western Australia

Stamp Amendment Act (No. 3) 2000

Western Australia

Stamp Amendment Act (No. 3) 2000

CONTENTS

1.	Short title	1
2.	Commencement	2
3.	The Act amended	2
4.	Section 76 amended	2
5.	Section 76A amended	7
6.	Section 76AB amended	8
7.	Section 76AG amended	8
8.	Section 76AH amended	11
9.	Section 76AI amended	11
10.	Sections 76AJ and 76AK replaced	15

76AJ.	Meaning of “relevant acquisition”	15
76AK.	Meaning of acquiring an interest, majority
interest or further interest	17

11.	Section 76AL amended	18
12.	Section 76AM amended	18
13.	Section 76AN amended	19
14.	Section 76AO amended	21
15.	Section 76AP amended	22
16.	Sections 76AQ and 76AR replaced	27

76AQ.	Meaning of “relevant acquisition”	27
76AR.	Meaning of acquiring an interest, majority
interest or further interest	29

17.	Section 76AS amended	31
18.	Section 76AT amended	32
19.	Part IIIBA Division 4 inserted	32
Division 4 — Reassessment of liability for duty

76AU.	Definitions and operation	32
76AV.	Request for reassessment of liability for
duty	33

Stamp Amendment Act (No. 3) 2000

Contents

76AW.	Reassessment	33
76AX.	Effect of reassessment	34
76AY.	Refund of duty or payment of reassessed
amount	35

20.	Consequential amendments	36
21.	Transitional	37

Western Australia

Stamp Amendment Act (No. 3) 2000

No. 60 of 2000

An Act to amend the Stamp Act 1921 and for related purposes.

[Assented to 4 December 2000]

The Parliament of Western Australia enacts as follows:

1. Short title

This Act may be cited as the Stamp Amendment Act

(No. 3) 2000.

Stamp Amendment Act (No. 3) 2000

s. 2

2. Commencement

This Act is deemed to have come into operation on

10 August 2000.

3. The Act amended

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

[* Reprinted as at 22 October 1999.

For subsequent amendments see 1999 Index to Legislation of

Western Australia, Table 1, pp. 236-7, and Acts Nos. 6, 28

and 29 of 2000.]

4. Section 76 amended

(1)	Section 76(1) is amended as follows:

(a)	by deleting the definition of “acquire” and inserting the following definition instead —

“

“acquire”, in relation to an interest in a WA company or a corporation, means to acquire beneficially in any manner or by any means and includes the

increasing of an existing interest, but does not

include an acquisition —

(a)	that is chargeable with duty under section 73E(4);
(b)	that occurs solely as the result of —

(i) the appointment of a receiver or trustee in bankruptcy;

(ii) the appointment of a liquidator; or

Stamp Amendment Act (No. 3) 2000

s. 4

(iii) the making of a compromise or arrangement under Part 5.1 of the Corporations Law —

(I)

which has been made with the

corporation’s creditors or a

class of them;

(II)

which has been approved by the

court;

(III)

which does not involve a

cancellation of shares, or a

variation, abrogation or

alteration of the rights of shares,

to which section 112HA applies

or a conversion of shares to

which section 112HB applies;

and

(IV)

in respect of which the

Commissioner is satisfied that it

is not an arrangement having as

its purpose, or one of its

purposes, the defeat of the

object of this Part;

(iv)	deceased person, including an

the distribution of the estate of a of —

(I)

a will, a codicil or an order of a court varying or modifying the provisions of a will or codicil; or

(II)

an intestacy or an order of a

court varying or modifying the

application, in relation to the

estate of a deceased person, of

Stamp Amendment Act (No. 3) 2000

s. 4

the provisions of a law relating to the distribution of the assets of persons who die intestate;

(c)	that is effected or evidenced by an instrument on which duty is declared by this Act to be chargeable under item 6 of the Second Schedule;

”;

(b)	in the definition of “entitled” by inserting after “beneficially entitled” —

“

, and “entitlement” has a corresponding meaning

”;

(c)	in the definition of “mining tenement” —

(i) after paragraph (a) by deleting “and”;

(ii) after paragraph (b) by inserting —

“
and
(c)	a tenement, right or interest that is —

(i) similar to a tenement or right referred to in paragraph (a) or (b); and

(ii) held under the law of another State, a Territory, the Commonwealth or another jurisdiction;

”.

(2)	In section 76(1) the following definitions are inserted in their appropriate alphabetical positions — “

“distributable property” has the meaning given by

subsection (4a);

Stamp Amendment Act (No. 3) 2000

s. 4

“minerals” means naturally occurring substances

obtained or obtainable from the Earth;

“primary products” has a meaning corresponding with the definition of “primary production” in section 75D(1) except that in relation to plants the

term extends to plants that have not been grown or

reared and to parts of them and their produce;

“rules” of a corporation means one or more of the

following —

(a)	the corporation’s constitution;
(b)	replaceable rules applying to the corporation under the Corporations Law;
(c)	internal management rules applying to the corporation under the Corporations Law;

”.

(3)

Section 76(1) is amended by deleting the definition of

“interest”.

(4)

After section 76(1) the following subsection is inserted —

“

(1a)	For the purpose of this Division a reference to the acquisition of an interest includes a reference to the acquisition of a majority interest or a further interest within the meaning of section 76AK or 76AR.

”.

(5)	Section 76(4) is amended by deleting paragraph (c) and inserting the following paragraph instead —

“

(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

Stamp Amendment Act (No. 3) 2000

s. 4

Corporations Law even if the reference in that definition to 5% were a reference to 50%.

”.

(6)	After section 76(4) the following subsection is inserted —

“

(4a)

For the purposes of this Part, a reference to entitlement to property of a corporation or trust, or to participate in a distribution of property of a corporation or trust, is a reference to entitlement otherwise than as a creditor or other person to whom the corporation or trust is liable, and a reference to distributable property is a reference to property distributable to persons otherwise than as creditors or other persons to whom the corporation or trust is liable.

”.

(7)	Section 76(5) is repealed and the following subsections are inserted instead —

“

(5)	For the purposes of this Part, the entitlement that a person would have at a particular time to participate in the distribution of the property of a corporation on a winding up of the corporation is an entitlement to an amount calculated —

(a)	as if the winding up were carried out at that time in accordance with the rules of the corporation and any law relevant to the winding up, as the rules and law then exist; or
(b)	as if the person had, immediately prior to the winding up, exercised all powers and discretions exercisable by the person by reason of having acquired an interest in the corporation —

(i) to effect or compel an alteration to the rules;

Stamp Amendment Act (No. 3) 2000

s. 5

(ii) to vary the rights conferred by shares in the corporation; or

(iii) to effect or compel the substitution or replacement of shares in the corporation with other shares in the corporation,

in such manner as to maximise that amount,

whichever of the amounts under paragraph (a) or (b)

results in the greater amount, unless the Commissioner

determines, after consideration of the circumstances of

the case, and where the calculation under paragraph (b)

results in the greater amount, that the amount of the

entitlement should be calculated under paragraph (a).

(5a)	If the extent of a person’s entitlement to participate in a distribution of the property of a corporation is unascertainable or uncertain, that entitlement shall be determined for the purposes of this Part as being the greatest entitlement that the person could derive from the distribution.

”.

(8)	Section 76(7) is amended after “76AI(4)” by inserting —
“ , 76AP(4) ”.

5. Section 76A amended

Section 76A(1) is amended as follows:

(a)	after “company” by deleting “to which Division 2 applies”;
(b)	after “corporation” by deleting “to which Division 3 applies”.

Stamp Amendment Act (No. 3) 2000

s. 6

6. Section 76AB amended

Section 76AB(2)(a) is amended by deleting “acquiring the total

shareholding of the corporation or such lesser shareholding as

he” and inserting instead —

“

having an entitlement referred to in

section 76AR(1) to such an extent as the

Commissioner

”.

7. Section 76AG amended

(1)	Section 76AG(1) is repealed and the following subsection is inserted instead —

“

(1)	Where by a relevant acquisition a person acquires a majority interest or a further interest in —

(a)	a WA company to which this Division applies; or
(b)	a WA company to which this Division would apply if the reference to the value of land in section 76AI(2)(b) were a reference to the value of land, goods, wares and merchandise,

the person shall prepare and lodge with the Commissioner a statement in respect of that acquisition.

”.

(2)	Section 76AG(4) is amended as follows:

(a)	after paragraph (db) by deleting “and”;

Stamp Amendment Act (No. 3) 2000

s. 7

(b)

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

; and

(f)	subsection (1)(b), a notation to that effect and such information relating to the goods, wares and merchandise referred to in

if the statement is lodged because of acquisition, as the approved form requires to be provided.

”.

(3)	Section 76AG(5) is repealed and the following subsections are inserted instead —

“

(5)	For the purposes of this Act —

(a)	a statement lodged because of subsection (1)(a); and
(b)	subject to subsection (5c), a statement lodged because of subsection (1)(b),

is to be regarded as an instrument executed on the day

on which the relevant acquisition occurs.

(5a)

If, in the case of a statement lodged because of

subsection (1)(b), the Commissioner is satisfied that

the entitlement to, and valuation of, the goods, wares

and merchandise referred to in subsection (1)(b) were

not part of an arrangement or scheme having as its

purpose, or one of its purposes, the defeat of the object

of this Division, the Commissioner may determine that

subsection (5) does not apply to the statement.

Stamp Amendment Act (No. 3) 2000

s. 7

(5b)	In deciding whether or not to make a determination under subsection (5a) the Commissioner may have regard to —

(a)	the source of the goods, wares and merchandise and the source of funding for their acquisition;
(b)	their nature and their relevance to any business carried on by the WA company or subsidiary;
(c)	the period for which they have been and are likely to remain the property of the WA company or subsidiary; and
(d)	any other matter that the Commissioner considers relevant.

(5c)	A determination made under subsection (5a) has effect according to its terms and the Commissioner is to give written notice of it to the person who lodged the
statement.
(5d)	If the person who lodged the statement requests the Commissioner, in writing, to give reasons why the Commissioner has not made a determination under subsection (5a), the Commissioner is to give written
reasons to the person.
(5e)	A person who —

(a)	is required to lodge a statement because of subsection (1)(b); and
(b)	fails to do so within the period set out in subsection (3),

commits an offence against this Act.

”.

Stamp Amendment Act (No. 3) 2000

s. 8

8. Section 76AH amended

(1)

Section 76AH(1) is amended by deleting “statement lodged

under section 76AG” and inserting instead —

“ statement to which section 76AG(5) applies ”.

(2)

After subsection (2) the following subsection is inserted —

“

(2a)	Subsection (2) does not apply unless —

(a)

the acquisition referred to in may be, consists of the acquisition of a shareholding in a corporation; and

(b)

the shareholding acquired confers an entitlement to participate in a distribution of the property of the corporation (if the corporation were to be wound up) that bears the same relationship to the value of the distributable property as the shareholding acquired bears to the total shareholding in the corporation.

”.

(3)

Section 76AH(4) is amended by deleting “statement lodged

under section 76AG” and inserting instead —

“ statement to which section 76AG(5) applies ”.

9. Section 76AI amended

(1)	Section 76AI(2) is amended at the end of paragraph (b) by deleting “excluded by subsection (3).” and inserting instead —

“

excluded by subsection (3),

or if the Commissioner determines that paragraphs (a) and (b) would have applied to the WA company at the time of the relevant acquisition but for a transaction, or

Stamp Amendment Act (No. 3) 2000

s. 9

series of transactions, which in the Commissioner’s

opinion had as its purpose, or one of its purposes, the

defeat of the object of this Division.

”.

(2)	After section 76AI(2) the following subsections are inserted —

“

(2a)	If the Commissioner makes a determination under subsection (2), the Commissioner is to give written notice of it to the person who made the relevant
acquisition.
(2b)	The notice is to contain written reasons for the determination.
(2c)	For the purposes of section 76AG(3) the relevant acquisition is to be regarded as having occurred when the notice is given.

”.

(3)	Section 76AI(3) is amended as follows:

(a)	after paragraph (b) by inserting —

“

(ba)	property consisting of rights or interests under a sales contract (including a forward sales contract) relating to minerals, primary products or other commodities;

”;

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

“

(ea)	a licence or patent or other intellectual property (including knowledge or information that has a commercial value) relating to any process,
technique, method, design or apparatus to —

(i) locate, extract, process, transport or market minerals; or

Stamp Amendment Act (No. 3) 2000

s. 9

(ii) grow, rear, breed, maintain, produce, harvest, collect, process, transport or market primary products;

(eb)

stores, stockpiles or holdings of minerals or

primary products (whether processed or

unprocessed) produced by the WA company or

a related person;

(ec)

future tax benefits (whether in the nature of tax

losses, capital losses, foreign losses or foreign

tax credits) under the Income Tax Assessment

Act 1997 or Income Tax Assessment Act 1936

of the Commonwealth or similar benefits under

the laws of another jurisdiction;

(ed)

any property prescribed for the purposes of this

subsection; and

”;

(c)

in paragraph (f) by deleting “the WA company’s “

ownership by the WA company or the

subsidiary within the meaning in subsection (4)

”.

(4)	After section 76AI(3) the following subsection is inserted —

“

(3a)	In forming an opinion for the purposes of subsection (3)(f) the Commissioner may have regard to —

(a)	the source of the property and the source of funding for its acquisition;
(b)	its nature and its relevance to any business carried on by the WA company or the subsidiary;
(c)	the period for which it has been and is likely to remain the property of the WA company or the subsidiary; and

Stamp Amendment Act (No. 3) 2000

s. 9

(d)	any other matter that the Commissioner considers relevant.

”.

(5)	Section 76AI(4) is amended as follows:

(a)

in paragraph (a) by deleting “Law;” and inserting “

Law, or any other corporation where the WA company would be entitled if the corporation were to be wound up, after the time of the

relevant acquisition, to participate in a

distribution of the property of the corporation to

an extent greater than 50% of the value of the

distributable property;

”;

(b)

in paragraph (c) by deleting “participate (otherwise than as a creditor or other person to whom the corporation is liable) in a distribution of the property of the corporation

to an extent greater than 50% of the value of the

property distributable to all of the holders of shares in

the corporation;” and inserting instead —

“

participate in a distribution of the property of

the corporation to an extent greater than 50% of

the value of the distributable property;

”.

(6)	After section 76AI(4) the following subsections are inserted —

“

(5)	In determining the entitlement of an entity to land for the purposes of this section or section 76AL —

(a)	if the entity has contracted or agreed to acquire an interest in land, that contract or agreement is to be regarded as having been completed even

if it has not yet been completed; and

Stamp Amendment Act (No. 3) 2000

s. 10

(b)	if the entity has contracted or agreed to dispose of an interest in land but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.

(6)	In determining the entitlement of an entity to property other than land for the purposes of this section —

(a)

if the entity has contracted or agreed to dispose of an interest in such property, that contract or agreement is to be regarded as having been

completed even if it has not yet been

completed; and

(b)

if the entity has contracted or agreed to acquire an interest in such property but that contract or agreement has not yet been completed, that

contract or agreement is to be disregarded.

”.

10. Sections 76AJ and 76AK replaced

Sections 76AJ and 76AK are repealed and the following

sections are inserted instead —

“

76AJ.

Meaning of “relevant acquisition”

(1)	An acquisition is a relevant acquisition for the purposes of this Division —

(a)	if by that acquisition a person acquires a majority interest in a WA company by acquiring an interest —

(i) that is itself a majority interest in the WA company; or

(ii) that is, when taken with each previous acquisition of an interest in the WA company made by the person on or after

Stamp Amendment Act (No. 3) 2000

s. 10

the relevant day for that acquisition, a majority interest in the WA company;

(b)	if by that acquisition a person acquires a further interest in the WA company.

(2)

If subsection (1)(b) applies to an acquisition,

subsection (1)(a)(ii) does not apply to it.

(3)

For the purposes of subsection (1)(a)(ii), if a person acquires an interest in a WA company (the “earlier acquisition”) and, after that acquisition, that person acquires another interest in the WA company (the

“later acquisition”) because of an arrangement that

was entered into during the relevant period, the earlier

acquisition is to be regarded as having been made on or

after the relevant day for the later acquisition even if it

was not so made.

(4) In this section —

“relevant day” for an acquisition means —

(a)

if the acquisition was or is made on or after 11 August 2002 — 10 August 1999; or

(b)

if the acquisition is made on or after before the day of the acquisition.

(5) In subsection (3) —

“relevant period” means —

(a)

if the earlier acquisition was made before the day that is one year before the day of that acquisition and ending on the day that is one year after the day of that acquisition;

Stamp Amendment Act (No. 3) 2000

s. 10

(b)	10 August 1999 but before 10 August 2000 — the period beginning on the day that is one year before the day of that

if the earlier acquisition was made on or after 3 years after the day of that acquisition; or

(c)

if the earlier acquisition was or is made on or beginning on the relevant day for that acquisition and ending on the day that is 3 years after the day of that acquisition.

(6)	Subsection (3) does not apply in relation to an arrangement entered into before 10 August 2000 unless, because of the arrangement, the person referred to in that subsection had the right to acquire the other interest referred to in that subsection.

76AK.

Meaning of acquiring an interest, majority interest

or further interest

(1)

For the purposes of this Division, a person acquires an interest in a WA company if the person acquires, or the person and any related person acquire, an entitlement

such that the person, or the person and any related

person, would be entitled if the WA company were to

be wound up to participate in a distribution of the

property of the WA company.

(2)

For the purposes of this Division, a person acquires a

majority interest in a WA company if the person

acquires, or the person and any related person acquire,

an interest in the WA company such that having

acquired that interest the person, or the person and any

related person, would be entitled if the WA company

were to be wound up to participate in a distribution of

the property of the WA company to an extent greater

than 50% of the value of the distributable property and,

Stamp Amendment Act (No. 3) 2000

s. 11

in section 76AJ(1)(a)(i) and (ii) and subsection (3), “majority interest” has a corresponding meaning.

(3)	For the purposes of this Division, a person acquires a further interest in a WA company if —

(a)	the person has, or the person and any related person have, a majority interest in the WA company;
(b)	the acquisition of that majority interest gave rise to a liability for duty under this Part; and
(c)	the person acquires, or the person and any related person acquire, an interest in the WA company such that having acquired that interest the person, or the person and any related person, would be entitled if the WA company were to be wound up to participate further in a distribution of the property of the WA company.

”.

11. Section 76AL amended

(1)	Section 76AL(3)(a) is amended as follows:

(a)	by inserting a comma after “of section 76AH(1)(b)(i)”;
(b)	by deleting “further acquisition;” and inserting instead —

“ acquisition of the further interest; ”.

(2)	Section 76AL(5) is amended by deleting “(otherwise than as a creditor or other person to whom the WA company is liable)”.

12. Section 76AM amended

(1)	Section 76AM(1) is amended after “is liable” by inserting —
“ , if section 76AG(5) applies to the statement, ”.

Stamp Amendment Act (No. 3) 2000

s. 13

(2)

Section 76AM(2) is amended by deleting “a shareholding” and

inserting instead —

“ an interest ”.

13. Section 76AN amended

(1)	Section 76AN(1) is repealed and the following subsection is inserted instead —

“

(1)	Where by a relevant acquisition a person acquires a majority interest or a further interest in —

(a)	a corporation to which this Division applies; or
(b)	a corporation to which this Division would apply if the reference to the value of land in section 76AP(2)(b) were a reference to the

value of land, goods, wares and merchandise,

the corporation shall prepare and lodge with the

Commissioner a statement in respect of that

acquisition.

”.

(2)	Section 76AN(3) is amended as follows:

(a)	in paragraph (d) before “the unencumbered” by inserting —

“ the corporation’s estimate of ”;

(b)	by deleting paragraphs (db) and (e) and “and” after paragraph (db) and inserting —

“

(db)	the corporation’s estimate of the unencumbered value of those chattels;

(e)	the corporation’s estimate of the unencumbered value of the assets of the corporation as at that date; and

Stamp Amendment Act (No. 3) 2000

s. 13

(f)	subsection (1)(b), a notation to that effect and such information relating to the goods, wares and merchandise referred to in

if the statement is lodged because of acquisition, as the approved form requires to be provided.

”.

(3)	Section 76AN(4) is repealed and the following subsections are inserted instead —

“

(4)	For the purposes of this Act —

(a)	a statement lodged because of subsection (1)(a); and
(b)	subject to subsection (4c), a statement lodged because of subsection (1)(b),

is to be regarded as an instrument executed on the day

on which the relevant acquisition occurs.

(4a)

If, in the case of a statement lodged because of

subsection (1)(b), the Commissioner is satisfied that

the entitlement to, and valuation of, the goods, wares

and merchandise referred to in subsection (1)(b) were

not part of an arrangement or scheme having as its

purpose, or one of its purposes, the defeat of the object

of this Division, the Commissioner may determine that

subsection (4) does not apply to the statement.

(4b)

In deciding whether or not to make a determination under subsection (4a) the Commissioner may have regard to —

(a)	the source of the goods, wares and merchandise and the source of funding for their acquisition;
(b)	their nature and their relevance to any business carried on by the corporation, trustee or related corporation;

Stamp Amendment Act (No. 3) 2000

s. 14

(c)	the period for which they have been and are likely to remain the property of the corporation, trustee or related corporation; and
(d)	any other matter that the Commissioner considers relevant.

(4c)

A determination made under subsection (4a) has effect according to its terms and the Commissioner is to give written notice of it to the corporation.

(4d)

If the corporation requests the Commissioner, in

writing, to give reasons why the Commissioner has not

made a determination under subsection (4a), the

Commissioner is to give written reasons to the

corporation.

(4e)

A corporation that —

(a)	is required to lodge a statement because of subsection (1)(b); and
(b)	fails to do so within the period set out in subsection (2),

commits an offence against this Act.

”.

(4)

Section 76AN(5) is amended by deleting “person who” and

inserting —

“ corporation that ”.

14. Section 76AO amended

(1)

Section 76AO(1) is amended by deleting “lodged under

section 76AN” and inserting instead —

“ to which section 76AN(4) applies ”.

Stamp Amendment Act (No. 3) 2000

s. 15

(2)	After section 76AO(2) the following subsection is inserted —

“

(2a)	Subsection (2) does not apply unless —

(a)

the acquisition referred to in may be, consists of the acquisition of a shareholding in a corporation; and

(b)

”.

(3)

Section 76AO(4) is amended by deleting “lodged under

section 76AN” and inserting instead —

“ to which section 76AN(4) applies ”.

15. Section 76AP amended

(1)	Section 76AP(2) is amended at the end of paragraph (b) by deleting “excluded by subsection (3).” and inserting instead —

“

excluded by subsection (3),

or if the Commissioner determines that paragraphs (a)

and (b) would have applied to the corporation at the

time of the relevant acquisition but for a transaction, or

series of transactions, which in the Commissioner’s

opinion had as its purpose, or one of its purposes, the

defeat of the object of this Division.

”.

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s. 15

(2)	After section 76AP(2) the following subsections are inserted —

“

(2a)

If the Commissioner makes a determination under subsection (2), the Commissioner is to give written notice of it to the corporation.

(2b)

The notice is to contain written reasons for the

determination.

(2c)

For the purposes of section 76AN(2) the relevant

acquisition is to be regarded as having occurred when

the notice is given.

”.

(3)	Section 76AP(3) is amended as follows:

(a)	by deleting “or a related” and inserting instead —

“ or another ”;

(b)	after paragraph (b) by inserting —

“

(ba)	property consisting of rights or interests under a sales contract (including a forward sales contract) relating to minerals, primary products or other commodities;

”;

(c)	in paragraph (d) by deleting “a related” and inserting instead —

“ another ”;

(d)	after paragraph (d) by deleting “and” and inserting —

“

(da)	a licence or patent or other intellectual property (including knowledge or information that has a commercial value) relating to any process,
technique, method, design or apparatus to —

(i) locate, extract, process, transport or market minerals; or

Stamp Amendment Act (No. 3) 2000

s. 15

(ii) grow, rear, breed, maintain, produce, harvest, collect, process, transport or market primary products;

(db)

stores, stockpiles or holdings of minerals or

primary products (whether processed or

unprocessed) produced by the corporation or a

related person;

(dc)

future tax benefits (whether in the nature of tax

losses, capital losses, foreign losses or foreign

tax credits) under the Income Tax Assessment

Act 1997 or Income Tax Assessment Act 1936

of the Commonwealth or similar benefits under

the laws of another jurisdiction;

(dd)

any property prescribed for the purposes of this

subsection; and

”;

(e)

in paragraph (e) by deleting “the corporation’s “

ownership by the corporation or the trustee or other corporation referred to in subsection (4)

”.

(4)	After section 76AP(3) the following subsection is inserted —

“

(3a)	In forming an opinion for the purposes of subsection (3)(e) the Commissioner may have regard to —

(a)	the source of the property and the source of funding for its acquisition;
(b)	its nature and its relevance to any business carried on by the corporation or the trustee or other corporation;

Stamp Amendment Act (No. 3) 2000

s. 15

(c)	the period for which it has been and is likely to remain the property of the corporation or the trustee or other corporation; and
(d)	any other matter that the Commissioner considers relevant.

”.

(5)	Section 76AP(4) is amended by deleting paragraph (b) and inserting —

“

(b)	in a case where the entitlement to participate referred to in section 76AR(2) or (3), (whichever is applicable to the relevant acquisition) relates to the corporation itself, any of the following corporations is entitled to that land or property —

(i) a corporation that is a subsidiary (as defined in the Corporations Law) of the corporation;

(ii)	corporation would be entitled if the

any other corporation where the after the time of the relevant acquisition, to participate in a distribution of the property of the other corporation to an extent greater than 50% of the value of the distributable property;

(c)	in a case where the entitlement to participate referred to in section 76AR(2) or (3), (whichever is applicable to the relevant acquisition) relates to a holding corporation (as defined in section 76AR(4)(a)) of the

Stamp Amendment Act (No. 3) 2000

s. 15

corporation, any of the following corporations

is entitled to that land or property —

(i) a corporation that is a subsidiary (as defined in the Corporations Law) of the holding corporation;

(ii)	corporation would be entitled if the

any other corporation where the holding after the time of the relevant acquisition, to participate in a distribution of the property of the other corporation to an extent greater than 50% of the value of the distributable property.

”.

(6)	After section 76AP(4) the following subsections are inserted —

“

(5)	In determining the entitlement of an entity to land for the purposes of this section or section 76AS —

(a)	if the entity has contracted or agreed to acquire an interest in land, that contract or agreement is to be regarded as having been completed even

if it has not yet been completed; and

(b)	if the entity has contracted or agreed to dispose of an interest in land but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.

(6)	In determining the entitlement of an entity to property other than land for the purposes of this section —

(a)

if the entity has contracted or agreed to dispose of an interest in such property, that contract or agreement is to be regarded as having been

completed even if it has not yet been

completed; and

Stamp Amendment Act (No. 3) 2000

s. 16

(b)	if the entity has contracted or agreed to acquire an interest in such property but that contract or agreement has not yet been completed, that

contract or agreement is to be disregarded.

”.

16. Sections 76AQ and 76AR replaced

Sections 76AQ and 76AR are repealed and the following

sections are inserted instead —

“

76AQ.

Meaning of “relevant acquisition”

(1)	An acquisition is a relevant acquisition for the purposes of this Division —

(a)	if by that acquisition a person acquires a majority interest in a corporation by acquiring an interest —

(i) that is itself a majority interest in the corporation; or

(ii) that is, when taken with each previous acquisition of an interest in the corporation made by the person on or after the relevant day for that acquisition, a majority interest in the corporation;

(b)	if by that acquisition a person acquires a further interest in the corporation.

(2)

If subsection (1)(b) applies to an acquisition,

subsection (1)(a)(ii) does not apply to it.

(3)

For the purposes of subsection (1)(a)(ii), if a person

acquires an interest in a corporation (the “earlier

acquisition”) and, after that acquisition, that person

acquires another interest in the corporation (the “later

Stamp Amendment Act (No. 3) 2000

s. 16

acquisition”) because of an arrangement that was entered into during the relevant period, the earlier acquisition is to be regarded as having been made on or

after the relevant day for the later acquisition even if it

was not so made.

(4) In this section —

“relevant day” for an acquisition means —

(a)

if the acquisition was or is made on or after 11 August 2002 — 10 August 1999; or

(b)

if the acquisition is made on or after before the day of the acquisition.

(5) In subsection (3) —

“relevant period” means —

(a)

if the earlier acquisition was made before the day that is one year before the day of that acquisition and ending on the day that is one year after the day of that acquisition;

(b)	10 August 1999 but before 10 August 2000 — the period beginning on the day that is one year before the day of that

if the earlier acquisition was made on or after 3 years after the day of that acquisition; or

(c)

if the earlier acquisition was or is made on or beginning on the relevant day for that acquisition and ending on the day that is 3 years after the day of that acquisition.

Stamp Amendment Act (No. 3) 2000

s. 16

(6)	Subsection (3) does not apply in relation to an arrangement entered into before 10 August 2000 unless, because of the arrangement, the person referred to in that subsection had the right to acquire the other interest referred to in that subsection.

76AR.

Meaning of acquiring an interest, majority interest

or further interest

(1)

For the purposes of this Division, a person acquires an

interest in a corporation if the person acquires, or the

person and any related person acquire, an entitlement

such that the person, or the person and any related

person, would be entitled if the property of the

corporation or the holding corporation were to be

distributed (in the case of a corporation on the basis of

a winding up) to participate in a distribution of the

property of the corporation or holding corporation.

(2)

For the purposes of this Division, a person acquires a

majority interest in a corporation if the person acquires,

or the person and any related person acquire, an

interest in the corporation such that having acquired

that interest the person, or the person and any related

person, would be entitled if the property of the

corporation or a holding corporation were to be

distributed (in the case of a corporation on the basis of

a winding up) to participate in a distribution of the

property of the corporation or holding corporation to an

extent greater than 50% of the value of the distributable

property and, in section 76AQ(1)(a)(i) and (ii) and

subsection (3), “majority interest” has a

corresponding meaning.

(3)

For the purposes of this Division, a person acquires a

further interest in a corporation if —

(a)	the person has, or the person and any related person have, a majority interest in the corporation;

Stamp Amendment Act (No. 3) 2000

s. 16

(b)

the acquisition of that majority interest gave rise to a liability for duty under this Part; and

(c)

related person acquire, an interest in the

corporation such that having acquired that

interest the person, or the person and any

related person, would be entitled if the property

the person acquires, or the person and any were to be distributed (in the case of a corporation on the basis of a winding up) to participate further in a distribution of the property of the corporation or holding corporation.

(4)	In this section “holding corporation” in relation to a corporation —

(a)	means a corporation —

(i) that is an ultimate holding company as defined in section 9 of the Corporations Law; or

(ii) of which a body corporate is a subsidiary by virtue of Division 6 of Part 1.2 of the Corporations Law;

and

(b)	is deemed to include —

(i) any trust if the trustee of the trust would be entitled if the corporation or a holding corporation (as defined in paragraph (a)) were to be wound up to participate in a distribution of the property of the corporation or holding corporation to an extent greater than 50% of the value of the distributable property;

Stamp Amendment Act (No. 3) 2000

s. 17

(ii) a corporation, if in respect of any trust referred to in subparagraph (i) that corporation —

(I)

is entitled to a share or interest

in the trust whether vested or

contingent; or

(II)

in the case of a discretionary

trust, may benefit from that

trust;

and

(iii) any other corporation, or the trustee of any other trust that would by an application of this subsection be a holding corporation of a corporation that is a holding corporation of the corporation.

”.

17. Section 76AS amended

(1)	Section 76AS(3)(a) is amended as follows:

(a)	after “of section 76AO(1)(b)(i)” by inserting a comma;
(b)	by deleting “further acquisition;” and inserting instead —

“ acquisition of the further interest; ”.

(2)	Section 76AS(5) is amended by deleting “(otherwise than as a creditor or other person to whom the corporation or a holding corporation is liable)”.

Stamp Amendment Act (No. 3) 2000

s. 18

18. Section 76AT amended

Section 76AT is amended by deleting “to pay the duty

chargeable under sections 76AO and 76AS.” and inserting

instead —

“

, if section 76AN(4) applies to the statement, to pay the

duty chargeable under this Division.

”.

19. Part IIIBA Division 4 inserted

After Part IIIBA Division 3 the following Division is

inserted —

“

Division 4 — Reassessment of liability for duty

76AU. Definitions and operation

(1) In this Division —

“assessment” means the assessment of duty issued in

relation to the statement;

“duty” means duty chargeable under Division 2 or 3,

whichever is applicable;

“statement” means the statement that was charged

with duty;

“taxpayer” means —

(a)	a person liable under section 76AM to pay duty; or
(b)	a corporation liable under section 76AT to pay duty.

(2)	This Division is in addition to the provisions of Part III relating to the reassessment of duty and does not affect the operation of those provisions.

Stamp Amendment Act (No. 3) 2000

s. 19

76AV.

Request for reassessment of liability for duty

(1)	A taxpayer may request the Commissioner to reassess the taxpayer’s liability to pay duty if —

(a)	the taxpayer considers that the duty would not have been chargeable, or that the amount of the duty would have been less, but for the operation of section 76AI(5)(a) or (6)(a) or 76AP(5)(a) or (6)(a) in relation to a contract or agreement mentioned in the request; and
(b)	that contract or agreement has been rescinded, annulled or otherwise terminated without being completed.

(2)	A taxpayer may request the Commissioner to reassess the taxpayer’s liability to pay duty if —

(a)	the taxpayer considers that the duty would not have been chargeable, or that the amount of the duty would have been less, but for the operation of section 76AI(5)(b) or (6)(b) or 76AP(5)(b) or (6)(b) in relation to a contract or agreement mentioned in the request; and
(b)	that contract or agreement has been completed.

(3)	A request for reassessment must be made in writing and can only be made within 5 years after the date on which the assessment was issued.

76AW. Reassessment

(1)

If the Commissioner is satisfied that the contract or

agreement mentioned in a request under

section 76AV(1) has been rescinded, annulled or

otherwise terminated without being completed, the

Commissioner is to consider whether or not duty would

have been chargeable and, if so, the amount of duty

that would have been chargeable, but for the operation

Stamp Amendment Act (No. 3) 2000

s. 19

of section 76AI(5)(a) or (6)(a) or 76AP(5)(a) or (6)(a),

as the case may be.

(2)

If the Commissioner is satisfied that the contract or

agreement mentioned in a request under

section 76AV(2) has been completed, the

Commissioner is to consider whether duty would have

been chargeable and, if so, the amount of duty that

would have been chargeable, but for the operation of

section 76AI(5)(b) or (6)(b) or 76AP(5)(b) or (6)(b), as

the case may be.

(3)

If after consideration under subsection (1) or (2) the

Commissioner is of the opinion that a reassessment of

duty is appropriate, the Commissioner is to —

(a) issue the reassessment; and

(b) endorse on the statement —

(i) a notation that this Part no longer applies to it and that it is not chargeable with duty; or

(ii) the reduced amount of duty with which it is chargeable,

as the case requires.

(4)

Without limiting subsection (3), if after consideration under subsection (1) the Commissioner is not satisfied that the rescission, annulment or other termination of

the contract or agreement was not part of a scheme or arrangement under which the object of the contract or agreement has been or may be achieved in another

way, the Commissioner is not obliged to issue a

reassessment.

76AX.

Effect of reassessment

(1)	A reassessment supersedes the assessment.

Stamp Amendment Act (No. 3) 2000

s. 19

(2)

A reassessment that results in the statement being

endorsed under section 76AW(3)(b)(ii) does not

invalidate proceedings for the recovery of duty but an

appropriate adjustment may be made to the amount to

be recovered in the proceedings to accord with the

reassessment.

(3)

If an objection to the assessment is lodged and, before

determination of the proceedings on the objection, a

reassessment that results in the statement being

endorsed under section 76AW(3)(b)(ii) is issued, the

proceedings may be continued against the reassessment

to the extent that it is liable to the same objection or to

an objection that is the same or similar in substance.

76AY.

Refund of duty or payment of reassessed amount

(1)

If a reassessment results in the statement being

endorsed under section 76AW(3)(b)(i), the

Commissioner is to refund the amount of any duty

which may have been paid in accordance with the

assessment and the amount of any fine charged under

section 20 or 31AC.

(2)

If a reassessment results in the statement being

endorsed under section 76AW(3)(b)(ii), the

Commissioner is to refund the amount of any excess of

duty which may have been paid in accordance with the

assessment and the amount of any excess of any fine

charged under section 20 or 31AC.

(3)

If no duty or less than the reassessed amount of duty

has been paid in accordance with the assessment,

section 31AC(1), (7) and (8) apply.

”.

Stamp Amendment Act (No. 3) 2000

s. 20

20. Consequential amendments

(1)	Section 32(6) is amended by inserting after “31AA” —
“ or 76AW ”.
(2)	Section 73DA(3)(b) is amended as follows:

(a)	by deleting “has a shareholding in the company that would entitle him” and inserting instead —

“ would be entitled ”;

(b)

by deleting “to all the holders of shares in the company” “

otherwise than to creditors, or other persons to

whom the company is liable

”.

(3)	Section 75HA(6)(b) and section 75I(1)(b) are amended by deleting “under Division 2 of Part IIIBA” and inserting instead —
“ to which section 76AG(5) applies ”.
(4)	Section 75HA(7)(b) is amended by deleting “statement under Division 2 of Part IIIBA” and inserting instead —
“ statement to which section 76AG(5) applies ”.
(5)	Section 75HA(7)(b)(ii) is amended by deleting “lodged under Division 2 of Part IIIBA” and inserting instead —
“ to which section 76AG(5) applies ”.
(6)	Section 75J(1) is amended in the definition of “Part IIIBA statement” by deleting “under Part IIIBA” and inserting instead —
“ to which section 76AG(5) or 76AN(4) applies ”.

Stamp Amendment Act (No. 3) 2000

s. 21

21. Transitional

(1)	In this section —
“amended provisions” means the provisions of Part IIIBA and

sections 32, 73DA, 75HA, 75I and 75J of the Stamp

Act 1921 as enacted after the coming into operation of this

Act;

“existing provisions” means the provisions of Part IIIBA and

this Act.

sections 32, 73DA, 75HA, 75I and 75J of the Stamp

(2)

Subject to subsection (3), the existing provisions continue to

apply to and in relation to an acquisition of an interest in a

corporation that occurred before 10 August 2000 and the

amended provisions do not apply to it.

(3)

Subsection (2) does not affect the operation of the amended

provisions in relation to an acquisition of an interest that

occurred before 10 August 2000 in so far as those provisions

have effect for the purpose of determining whether an

acquisition that occurred on or after 10 August 2000 is a

relevant acquisition for the purposes of those provisions.

(4)

If —

(a)	a legally enforceable agreement in writing was executed before 10 August 2000;
(b)	that agreement created before 10 August 2000 an entitlement to an interest in a corporation; and
(c)

the acquisition of that interest is to be regarded for the purposes

of subsections (2) and (3) as having occurred before

10 August 2000.

that entitlement resulted or results in that interest being 1 January 2001,

Stamp Amendment Act (No. 3) 2000

s. 21

(5)	Despite section 76AG(3) or 76AN(2), as the case may be, of the amended provisions, if —

(a)	an acquisition of an interest in a corporation occurred on or after 10 August 2000 but before this Act receives the Royal Assent;
(b)	a statement has to be lodged under section 76AG or 76AN in respect of that acquisition because of the operation of the amended provisions; and
(c)	the existing provisions would not have required such a statement to be lodged,

the statement may be lodged at any time before the end of the

period of 3 months after the day on which this Act receives the

Royal Assent.