Western Australian Bills Western Australian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Duties Legislation Amendment Bill 2013
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Royal Assent before
1 July 2013
Division 1 -- Duties Legislation Amendment
Act 2008 amended
3. Act amended 3
4. Section 2 amended 3
5. Part 2 Division 2 Subdivision 3 deleted 3
Division 2 -- Duties Act 2008 amended
6. Act amended 3
7. Schedule 3 Division 3 deleted 3
Part 3 -- Royal Assent on or after
1 July 2013
8. Act amended 4
9. Section 9 amended 4
10. Section 15 amended 4
11. Section 17 amended 5
12. Chapter 2 Part 5 Division 5 inserted 5
Division 5 -- Western Australian business assets
79. Terms used 5
80. Some transactions involving business
licences to be taken to be agreements to
transfer WA business assets 9
81. Transactions for particular WA business
assets that are not dutiable transactions 9
82. Dutiable value of dutiable transactions for
business asset 10
10--1 page i
Duties Legislation Amendment Bill 2013
Contents
83. Dutiable value of certain business licences
required by Commonwealth law: s. 82(a) 11
84. Dutiable value of business licences
required by WA law: s. 82(b) 11
85. Dutiable value of business asset where
principal place of business is in WA:
s. 82(c) 12
86. Dutiable value of business asset where
principal place of business is out of WA:
s. 82(c) 13
13. Section 136 inserted 14
136. Business licences held under Fish
Resources Management Act 1994 14
14. Chapter 2 Part 6 Division 4 inserted 14
Division 4 -- Residential or business concessions
147. Concessional rates for transactions
referred to in Stamp Act 1921 s. 75AE 14
15. Section 277 inserted 15
277. Business licences not to be registered etc.
unless duty endorsed or instrument
lodged 15
16. Schedule 2 Division 2 amended 16
17. Schedule 3 Division 3 amended 17
18. Schedule 3 Division 6 inserted 17
Division 6 -- Provisions for Duties Legislation
Amendment Act 2013 Part 3
36. Transactions on or after 1 July 2013 and
before commencement day 17
page ii
Western Australia
LEGISLATIVE ASSEMBLY
Duties Legislation Amendment Bill 2013
A Bill for
An Act to amend --
• the Duties Act 2008; and
• in certain circumstance, the Duties Legislation Amendment
Act 2008.
The Parliament of Western Australia enacts as follows:
page 1
Duties Legislation Amendment Bill 2013
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Duties Legislation Amendment Act 2013.
4 2. Commencement
5 (1) This Act comes into operation as follows --
6 (a) Part 1 -- on the day on which this Act receives the
7 Royal Assent (assent day);
8 (b) Part 2, except to the extent to which it does not operate
9 because of subsection (2) -- on assent day;
10 (c) Part 3, except to the extent to which it does not operate
11 because of subsection (2) -- on the day after assent day.
12 (2) Part 2 does not operate if assent day is 1 July 2013 or later and
13 Part 3 does not operate if assent day is before 1 July 2013.
page 2
Duties Legislation Amendment Bill 2013
Royal Assent before 1 July 2013 Part 2
Duties Legislation Amendment Act 2008 amended Division 1
s. 3
1 Part 2 -- Royal Assent before 1 July 2013
2 Division 1 -- Duties Legislation Amendment Act 2008 amended
3 3. Act amended
4 This Division amends the Duties Legislation Amendment
5 Act 2008.
6 4. Section 2 amended
7 Delete section 2(c).
8 5. Part 2 Division 2 Subdivision 3 deleted
9 Delete Part 2 Division 2 Subdivision 3.
10 Division 2 -- Duties Act 2008 amended
11 6. Act amended
12 This Division amends the Duties Act 2008.
13 7. Schedule 3 Division 3 deleted
14 Delete Schedule 3 Division 3.
page 3
Duties Legislation Amendment Bill 2013
Part 3 Royal Assent on or after 1 July 2013
s. 8
1 Part 3 -- Royal Assent on or after 1 July 2013
2 8. Act amended
3 This Part amends the Duties Act 2008.
4 9. Section 9 amended
5 (1) In section 9 insert in alphabetical order:
6
7 Western Australian business has the meaning given in
8 section 79;
9 Western Australian business asset has the meaning
10 given in section 79.
11
12 (2) In section 9 in the definition of unencumbered value delete
13 "36." and insert:
14
15 36;
16
17 10. Section 15 amended
18 In section 15:
19 (a) in paragraph (c) delete "Australia." and insert:
20
21 Australia;
22
23 (b) after paragraph (c) insert:
24
25 (d) a Western Australian business asset.
26
page 4
Duties Legislation Amendment Bill 2013
Royal Assent on or after 1 July 2013 Part 3
s. 11
1 11. Section 17 amended
2 In section 17(1):
3 (a) in paragraph (b)(iii) delete "subsection." and insert:
4
5 subsection;
6
7 (b) after paragraph (b) insert:
8
9 (c) in section 81(4) and (5), the following Western
10 Australian business assets --
11 (i) intellectual property;
12 (ii) a restraint of trade arrangement;
13 (iii) a business identity.
14
15 12. Chapter 2 Part 5 Division 5 inserted
16 After Chapter 2 Part 5 Division 4 insert:
17
18 Division 5 -- Western Australian business assets
19 Subdivision 1 -- Terms used
20 79. Terms used
21 In this Division --
22 business asset means any of the following --
23 (a) goodwill of a business;
24 (b) a restraint of trade arrangement for a business;
25 (c) a business identity;
26 (d) a business licence;
27 (e) a right of a business under an uncompleted
28 agreement to supply commodities or provide
29 services;
page 5
Duties Legislation Amendment Bill 2013
Part 3 Royal Assent on or after 1 July 2013
s. 12
1 (f) intellectual property of a business;
2 (g) things that a business has that are in the nature
3 of rent rolls and client lists,
4 but does not include a trade debt;
5 business identity means a business name, trading name
6 or internet domain name, or a right to use a business
7 name, trading name or internet domain name;
8 business licence means a licence, permit or authority
9 which is issued, granted or given under --
10 (a) a written law and which is required by a written
11 law to be held by a person carrying out an
12 activity for gain or reward; or
13 (b) a law of the Commonwealth and which is
14 required by a law of the Commonwealth to be
15 held by a person carrying out an activity in
16 Western Australia for gain or reward;
17 circuit layout right means an exclusive right under the
18 Circuit Layouts Act 1989 (Commonwealth) for an
19 eligible layout under that Act;
20 commodities includes land, money, credit and goods
21 and any interest in them;
22 franchise arrangement means an agreement or other
23 arrangement under which a person (the franchisor) that
24 carries on a business authorises or permits another
25 person (the franchisee) --
26 (a) to engage in the business of producing,
27 supplying or providing commodities or
28 services, or both, at a place other than the place
29 of business of the franchisor as long as the
30 franchisee does so under --
31 (i) a stated marketing, business or technical
32 plan or system; and
33 (ii) a common format or common
34 procedure, or both;
page 6
Duties Legislation Amendment Bill 2013
Royal Assent on or after 1 July 2013 Part 3
s. 12
1 and
2 (b) to use a mark or common trade name in such a
3 way that the business carried on by the
4 franchisee is or is capable of being identified by
5 the public as being substantially associated with
6 the mark or name identifying, commonly
7 connected with or controlled by the franchisor
8 or a person that is a related person to the
9 franchisor;
10 intellectual property means --
11 (a) a patent, trademark, industrial design,
12 copyright, registered design, plant breeder right
13 or circuit layout right; or
14 (b) anything else that has the following
15 characteristics --
16 (i) it is in the nature of a strategy, process,
17 procedure, mode of operation or way of
18 working that enables a commodity or
19 service to be produced, supplied or
20 provided or that enhances the
21 production, supply, provision or quality
22 of a commodity or service;
23 (ii) it was created, devised or developed to
24 be used for business purposes or, having
25 been created, devised or developed for
26 other purposes, has been applied,
27 adapted or modified for use for business
28 purposes;
29 or
30 (c) a right to use or exploit --
31 (i) anything mentioned in paragraph (a)
32 or (b); or
page 7
Duties Legislation Amendment Bill 2013
Part 3 Royal Assent on or after 1 July 2013
s. 12
1 (ii) an adaptation or modification of
2 anything mentioned in paragraph (a)
3 or (b);
4 plant breeder right means --
5 (a) a plant breeder's right under the Plant
6 Breeder's Rights Act 1994 (Commonwealth); or
7 (b) a plant breeder's right corresponding to a right
8 mentioned in paragraph (a);
9 related person has the meaning given in section 162;
10 restraint of trade arrangement, for a business, means a
11 restraint of trade arrangement which, in the opinion of
12 the Commissioner, enhances or is likely to enhance the
13 value of the business;
14 Western Australian business, in relation to a dutiable
15 transaction, means --
16 (a) a business that, in the year preceding the
17 transaction has --
18 (i) been carried on in or from Western
19 Australia; or
20 (ii) supplied commodities or provided
21 services to customers in Western
22 Australia;
23 or
24 (b) carrying out an activity for gain or reward
25 under a licence referred to in paragraph (a) of
26 the definition of business licence; or
27 (c) carrying out an activity in Western Australia for
28 gain or reward under a licence referred to in
29 paragraph (b) of the definition of business
30 licence;
31 Western Australian business asset means a business
32 asset of a Western Australian business.
page 8
Duties Legislation Amendment Bill 2013
Royal Assent on or after 1 July 2013 Part 3
s. 12
1 Subdivision 2 -- Particular transactions involving business
2 assets
3 80. Some transactions involving business licences to be
4 taken to be agreements to transfer WA business
5 assets
6 When a person agrees to relinquish a business licence
7 held by that person, or agrees not to apply for a
8 renewal of such a business licence, so that it, or another
9 business licence in respect of the same kind of activity,
10 can be issued, granted or given to another person that
11 agreement is taken to be an agreement to transfer a
12 Western Australian business asset and is liable to duty
13 accordingly.
14 81. Transactions for particular WA business assets that
15 are not dutiable transactions
16 (1) The transfer, or an agreement for the transfer, of a
17 Western Australian business asset from a franchisor in
18 accordance with a franchise arrangement, is not a
19 dutiable transaction unless another person has
20 relinquished, or agreed not to extend, that business
21 asset or a business asset of the same kind so that the
22 franchisee could acquire that business asset.
23 (2) A transaction is not a dutiable transaction if the only
24 dutiable property the subject of the transaction is
25 intellectual property of a business.
26 (3) A transaction referred to in subsection (2) is a dutiable
27 transaction if, under section 37, it is aggregated with a
28 transaction that is a dutiable transaction for a Western
29 Australian business asset and the transactions are
30 treated as a single dutiable transaction.
31 (4) For the purposes of section 11(1)(f), new dutiable
32 property that is a Western Australian business asset
page 9
Duties Legislation Amendment Bill 2013
Part 3 Royal Assent on or after 1 July 2013
s. 12
1 referred to in section 17(1)(c) is not acquired unless
2 subsection (5) applies.
3 (5) If a person --
4 (a) carries on, or has carried on, a business (the
5 first business); and
6 (b) creates intellectual property, a restraint of trade
7 arrangement or a business identity related to the
8 first business for the purpose of the carrying on
9 of the first business or another business by
10 another person,
11 then, subject to subsections (2) and (3), the creation of
12 the intellectual property, restraint of trade arrangement
13 or business identity is the acquisition by that other
14 person of a Western Australian business asset of the
15 first business.
16 Subdivision 3 -- Dutiable value of dutiable transactions for
17 business assets
18 82. Dutiable value of dutiable transactions for business
19 asset
20 The dutiable value of a dutiable transaction for a
21 business asset is to be determined --
22 (a) under section 83 if --
23 (i) the business asset is a business licence
24 referred to in paragraph (b) of the
25 definition of that term in section 79; and
26 (ii) the asset is of a Western Australian
27 business referred to in paragraph (c) of
28 the definition of that term in section 79;
29 or
30 (b) under section 84 if the business asset is a
31 business licence referred to in paragraph (a) of
32 the definition of that term in section 79; or
page 10
Duties Legislation Amendment Bill 2013
Royal Assent on or after 1 July 2013 Part 3
s. 12
1 (c) under section 85 or 86, as is relevant; or
2 (d) if the Commissioner decides that it is not
3 appropriate to determine the dutiable value of a
4 dutiable transaction for business assets under
5 any of those sections, on such other basis as the
6 Commissioner decides is appropriate.
7 83. Dutiable value of certain business licences required
8 by Commonwealth law: s. 82(a)
9 The dutiable value of a dutiable transaction referred to
10 in section 82(a) is the greater of the following --
11 (a) the value of the business licence so far as it
12 authorises the carrying out of an activity in
13 Western Australia;
14 (b) the portion of the consideration for the
15 transaction that relates to the carrying out of an
16 activity in Western Australia under the
17 authority of the business licence.
18 84. Dutiable value of business licences required by
19 WA law: s. 82(b)
20 The dutiable value of a dutiable transaction referred to
21 in section 82(b) is --
22 (a) the consideration for the dutiable transaction; or
23 (b) the unencumbered value of the business licence
24 the subject of the transaction at the time when
25 liability for duty on the transaction arises if --
26 (i) there is no consideration for the
27 transaction; or
28 (ii) the consideration cannot be ascertained
29 when liability for duty on the
30 transaction arises; or
31 (iii) the unencumbered value is greater than
32 the consideration for the transaction.
page 11
Duties Legislation Amendment Bill 2013
Part 3 Royal Assent on or after 1 July 2013
s. 12
1 85. Dutiable value of business asset where principal
2 place of business is in WA: s. 82(c)
3 The dutiable value of a dutiable transaction for a
4 business asset where the principal place of business or
5 head office of the Western Australian business is in
6 Western Australia is to be determined using the
7 following formula --
CUV × TS − IS
DV =
TS
8 where --
9 DV is the dutiable value;
10 CUV is --
11 (a) the consideration for the transaction; or
12 (b) the unencumbered value of the business asset
13 the subject of the transaction if --
14 (i) there is no consideration for the
15 transaction; or
16 (ii) the consideration cannot be ascertained
17 when liability for duty on the
18 transaction arises; or
19 (iii) the unencumbered value is greater than
20 the consideration for the transaction;
21 TS is the gross amount (in Australian dollars) of all the
22 commodities supplied and services provided by the
23 business in the last 3 completed financial years
24 preceding the transaction;
25 IS is the gross amount (in Australian dollars) of the
26 commodities supplied and services provided by the
27 business to customers elsewhere in Australia in the
28 last 3 completed financial years preceding the
29 transaction.
page 12
Duties Legislation Amendment Bill 2013
Royal Assent on or after 1 July 2013 Part 3
s. 12
1 86. Dutiable value of business asset where principal
2 place of business is out of WA: s. 82(c)
3 The dutiable value of a dutiable transaction for a
4 business asset where neither the principal place of
5 business nor the head office of the Western Australian
6 business is in Western Australia is to be determined
7 using the following formula --
CUV × WAS
DV =
TS
8 where --
9 DV is the dutiable value;
10 CUV is --
11 (a) the consideration for the transaction; or
12 (b) the unencumbered value of the business asset
13 the subject of the transaction if --
14 (i) there is no consideration for the
15 transaction; or
16 (ii) the consideration cannot be ascertained
17 when liability for duty on the
18 transaction arises; or
19 (iii) the unencumbered value is greater than
20 the consideration for the transaction;
21 TS is the gross amount (in Australian dollars) of all the
22 commodities supplied and services provided by the
23 business in the last 3 completed financial years
24 preceding the transaction;
25 WAS is the gross amount (in Australian dollars) of the
26 commodities delivered and services provided by the
27 business to customers in Western Australia in the last
28 3 completed financial years preceding the transaction.
29
page 13
Duties Legislation Amendment Bill 2013
Part 3 Royal Assent on or after 1 July 2013
s. 13
1 13. Section 136 inserted
2 After section 135 insert:
3
4 136. Business licences held under Fish Resources
5 Management Act 1994
6 Nominal duty is chargeable on a dutiable transaction,
7 the subject of which is a business licence (within the
8 meaning given in section 79) held under the Fish
9 Resources Management Act 1994 if the Commissioner
10 is satisfied that the transaction has not, and will not,
11 result in the passing of a beneficial interest in the
12 business licence.
13
14 14. Chapter 2 Part 6 Division 4 inserted
15 At the end of Chapter 2 Part 6 insert:
16
17 Division 4 -- Residential or business concessions
18 147. Concessional rates for transactions referred to in
19 Stamp Act 1921 s. 75AE
20 (1) A dutiable transaction is a concessional transaction for
21 the purposes of this section if the instrument effecting
22 or evidencing it would have been chargeable with duty
23 under the Stamp Act 1921 Second Schedule item 4(5),
24 if it had been first executed before 1 July 2008.
25 (2) Duty is chargeable on a concessional transaction at the
26 applicable concessional rate of duty.
27 (3) If a dutiable transaction is, or is treated as, a
28 concessional transaction for the purposes of this section
29 and for the purposes of Division 4A, the taxpayer may
30 choose whether this Division or Division 4A is to apply
page 14
Duties Legislation Amendment Bill 2013
Royal Assent on or after 1 July 2013 Part 3
s. 15
1 and the Commissioner, with the consent or at the
2 request of the taxpayer, may --
3 (a) treat an application for assessment or
4 reassessment under this Division as an
5 application for assessment or reassessment
6 under Division 4A, in which case this Division
7 no longer applies; or
8 (b) treat an application for assessment or
9 reassessment under Division 4A as an
10 application for assessment or reassessment
11 under this Division, in which case Division 4A
12 no longer applies.
13
14 15. Section 277 inserted
15 After section 276 insert:
16
17 277. Business licences not to be registered etc. unless
18 duty endorsed or instrument lodged
19 (1) In this section --
20 business licence has the meaning given in section 79.
21 (2) If a business licence is the subject of a dutiable
22 transaction, a person must not --
23 (a) give effect to, receive, accept, approve or
24 recognise the dutiable transaction under a
25 written law; or
26 (b) register or record --
27 (i) the dutiable transaction; or
page 15
Duties Legislation Amendment Bill 2013
Part 3 Royal Assent on or after 1 July 2013
s. 16
1 (ii)a transaction record for the dutiable
2 transaction,
3 in any register of business licences,
4 unless the dutiable transaction is duty endorsed or an
5 instrument that effects the dutiable transaction has been
6 lodged for duty endorsement in accordance with
7 section 23.
8 Penalty: a fine of $20 000.
9 (3) It is a defence to a charge of an offence under
10 subsection (2) to prove that the accused person did not
11 know and could not reasonably have been expected to
12 have known that --
13 (a) the business licence was the subject of a
14 dutiable transaction; or
15 (b) the transaction was not duty endorsed; or
16 (c) an instrument that effects the transaction had
17 not been lodged for duty endorsement.
18
19 16. Schedule 2 Division 2 amended
20 In Schedule 2 Division 2 after the item relating to section 147E
21 insert:
22
s. 147
Residential or business $0 -- $100 000 $1.50 per $100.00 or
property part of $100.00
$100 001 -- $200 000 $1 500 + $4.39 per
$100.00 or part of
$100.00 above
$100 000
23
page 16
Duties Legislation Amendment Bill 2013
Royal Assent on or after 1 July 2013 Part 3
s. 17
1 17. Schedule 3 Division 3 amended
2 Delete Schedule 3 Division 3 clause 30(3).
3 18. Schedule 3 Division 6 inserted
4 At the end of Schedule 3 insert:
5
6 Division 6 -- Provisions for Duties Legislation Amendment
7 Act 2013 Part 3
8 36. Transactions on or after 1 July 2013 and before
9 commencement day
10 (1) In this clause --
11 amending provisions means the provisions of the Duties
12 Legislation Amendment Act 2008 Part 2 Division 2
13 Subdivision 3;
14 commencement day means the day on which the Duties
15 Legislation Amendment Act 2013 section 18 comes into
16 operation.
17 (2) This clause applies to a transaction that --
18 (a) occurs on or after 1 July 2013 and before
19 commencement day; and
20 (b) relates to a Western Australian business asset.
21 (3) If the transaction is a dutiable transaction, the person liable
22 for duty on the transaction is liable for duty on the
23 transaction as if the amending provisions had not come into
24 operation.
25 (4) If the transaction would have been a dutiable transaction had
26 the amending provisions not come into operation, the person
27 who would have been liable for duty on the transaction is
28 liable for duty on the transaction as if the amending
29 provisions had not come into operation.
page 17
Duties Legislation Amendment Bill 2013
Part 3 Royal Assent on or after 1 July 2013
s. 18
1 (5) A liability for duty under this clause arises on
2 commencement day.
3
4
[Index] [Search] [Download] [Related Items] [Help]