Victorian Numbered Acts Victorian Numbered ActsAfter section 3 of the Duties Act 2000 insert —
(1) For the purposes of the definition of foreign corporation in section 3(1), a person has a controlling interest in the foreign corporation if the person—
(a) is in a position to control more than 50% of the voting power in the corporation; or
(b) is in a position to control more than 50% of the potential voting power in the corporation; or
(c) has an interest in more than 50% of the issued shares in the corporation; or
(d) is a person in respect of whom the Commissioner has made a determination under section 3C.
(2) Subsection (1) applies whether or not the person has the controlling interest alone or together with an associated person.
(3) For the purposes of this section, a reference to control of the voting power in a foreign corporation is a reference to control that is direct or indirect, including control that is exercisable as a result or by means of arrangements or practices, whether or not having legal or equitable force, and whether or not based on legal or equitable rights.
(4) For the purposes of this section, to determine how much potential voting power a person is in a position to control at a particular time, section 14(3) of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth is to be applied.
(1) For the purposes of the definition of foreign trust in section 3(1), a person has a substantial interest in the trust estate if—
(a) the person has a beneficial interest of more than 50% of the capital of the estate of the foreign trust; or
(b) the Commissioner has made a determination under section 3D in respect of the person.
(2) If, under the terms of a foreign trust, a trustee has a power or discretion as to the distribution of the capital of the trust estate to a person or a member of a class of person, any such person is taken to have a beneficial interest in the maximum percentage of the capital of the foreign trust estate that the trustee is empowered to distribute to that person.
(3) Subsection (1) applies whether or not the person has the substantial interest alone or together with an associated person.
(1) For the purposes of section 3A(1)(d), the Commissioner may determine that a person has a controlling interest in a corporation if, in the Commissioner's opinion, the person has the capacity to determine or influence, directly or indirectly, the outcome of decisions about the corporation's financial and operating policies, taking into account—
(a) the practical influence the person can exert in addition to any rights the person can enforce; and
(b) any practice or behaviour affecting the corporation's financial or operating polices (even if that practice or pattern of behaviour involves the breach of an agreement or a breach of trust).
(2) This section applies regardless of any interests that any other person has in the corporation.
(1) For the purposes of section 3B(1)(b), the Commissioner may determine that a person has a substantial interest in a trust estate if, in the Commissioner's opinion, the person has the capacity to determine or influence the outcome of decisions about the administration and conduct of the trust, taking into account—
(a) the practical influence the person can exert in addition to any rights the person can enforce; and
(b) any practice or behaviour affecting the trustee's administration and conduct of the trust (even if that practice or pattern of behaviour involves the breach of an agreement or a breach of trust).
(2) This section applies regardless of any interests that any other person has in the trust estate.
(1) Despite sections 3A, 3B, 3C and 3D, a person is taken not to have a controlling interest in a foreign corporation, or a substantial interest in the trust estate of a foreign trust, if the person has an exemption under subsection (2).
(2) The Treasurer, for the purposes of subsection (1), may, in writing, exempt a person who has a controlling interest in a foreign corporation, or a substantial interest in the trust estate of a foreign trust, if the Treasurer is satisfied that, having regard to any one or more of the following matters, the person should not be taken to have that interest—
(a) in the case of a person who has a controlling interest in a foreign corporation—
(i) the nature and degree of ownership and control the person has in the corporation;
(ii) the practical influence the person exerts or any rights the person enforces to determine or influence, directly or indirectly, the outcome of decisions about the corporation's financial and operating policies;
(iii) any practice or behaviour of the person affecting the corporation's financial or operating policies;
(iv) any other relevant circumstances;
(b) in the case of a person who has a substantial interest in the trust estate of a foreign trust—
(i) the nature and degree of the person's beneficial interest in the capital of the estate of the trust;
(ii) the practical influence the person exerts or any rights the person enforces to determine or influence, directly or indirectly, the outcome of decisions about the administration and conduct of the trust;
(iii) any practice or behaviour of the person affecting the trustee's administration and conduct of the trust;
(iv) any other relevant circumstances.
(3) At least once every 6 months the Treasurer must cause to be laid before each House of Parliament, and publish on an appropriate government website, a report setting out—
(a) in respect of the exemptions (if any) granted by the Treasurer under subsection (2) during the period covered by the report—
(i) the number of exemptions; and
(ii) the name of each foreign corporation or foreign trust in relation to which an exemption was granted; and
(iii) the value of each exemption, being the amount of duty foregone, or likely to be foregone, by the State because of the exemption; and
(b) in respect of the exemptions (if any) granted by the Commissioner or a member of staff of the State Revenue Office during the period covered by the report under a delegation under section 3F—
(i) the number of exemptions; and
(ii) the total value of the exemptions, being the total amount of duty foregone, or likely to be foregone, by the State because of the exemptions.
(4) The Treasurer must issue guidelines for the exercise of the power of exemption under subsection (2).
(5) The Treasurer must cause guidelines issued under subsection (4) to be published in the Government Gazette.
(6) Guidelines issued under subsection (4) are not a legislative instrument within the meaning of the Subordinate Legislation Act 1994 .
(1) The Treasurer may delegate, by instrument, to the Commissioner—
(a) the power of the Treasurer to exempt a person under section 3E(2);
(b) the power to delegate the power delegated under paragraph (a).
(2) If power has been delegated under subsection (1)(b), the Commissioner may, subject to the terms of the instrument of delegation, sub-delegate, by instrument, to a member of staff of the State Revenue Office the power that is the subject of the delegation, other than the power of sub-delegation.
(3) Subject to subsection (4), sections 42 and 42A of the Interpretation of Legislation Act 1984 apply in relation to a sub-delegation in the same manner as they apply in relation to a delegation.
(4) Despite section 42A(1)(a) of the Interpretation of Legislation Act 1984 , the Treasurer cannot exercise the power to exempt a person under section 3E(2) while a delegation under subsection (1)(a) is in effect.
(5) In this section—
"member of staff of the State Revenue Office" means—
(a) an employee referred to in section 67 of the Taxation Administration Act 1997 ; or
(b) a consultant or contractor engaged under section 68 of that Act.".