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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Revenue Laws Amendment Bill 2018 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Duties Act 2008 amended 3. Act amended 3 4. Section 3 amended 3 5. Section 3A inserted 4 3A. Term used: land 4 6. Section 6 amended 6 7. Section 11 amended 7 8. Section 13 amended 7 9. Section 14 amended 7 10. Section 16 amended 9 11. Section 17 amended 10 12. Section 18 amended 10 13. Section 18A inserted 11 18A. Things fixed to land that are to be permanently removed 11 14. Section 28 amended 13 15. Section 36 amended 13 16. Section 36A inserted 14 36A. Determining unencumbered value: fixtures and mining tenement fixtures 14 17. Section 39 amended 16 18. Section 42 amended 16 19. Section 43 amended 17 20. Section 57 amended 17 21. Section 61 amended 18 22. Section 66 amended 18 23. Section 67 amended 19 113--2 page i Revenue Laws Amendment Bill 2018 Contents 24. Section 68 amended 19 25. Section 70 amended 19 26. Section 72 amended 20 27. Section 73 amended 20 28. Section 77 amended 21 29. Section 78 replaced 22 78. Dutiable value of transfer of dutiable property to retiring partner 22 78A. Certain retained property taken to be transferred to retiring partner 24 30. Section 79 amended 25 31. Section 80 amended 26 32. Section 81 amended 26 33. Section 87 amended 26 34. Chapter 2 Part 5 Divisions 7 and 8 inserted 27 Division 7 -- Rights relating to fixed infrastructure 91A. Terms used 27 91B. Some transactions involving fixed infrastructure statutory licences to be taken to be agreements for transfer 28 91C. Which transactions as to fixed infrastructure access rights and fixed infrastructure statutory licences are dutiable 29 91D. Dutiable value of fixed infrastructure statutory licences 31 Division 8 -- Derivative mining rights 91E. Agreement for transfer of mining tenement conditional on grant of derivative mining right to transferor 32 91F. Agreement for transfer of mining tenement conditional on grant of derivative mining right to current right holder 32 91G. Transfer or agreement for transfer of mining tenement to holder of derivative mining right 33 91H. Acquisition of derivative mining right substantially the same as was held in relation to previous mining tenement 34 91I. Failure to grant, or surrender of, derivative mining right after transfer of mining tenement 35 35. Section 96B amended 36 36. Section 99 amended 37 37. Section 100 amended 37 38. Section 101 amended 38 page ii Revenue Laws Amendment Bill 2018 Contents 39. Section 102 amended 38 40. Section 102A inserted 40 102A. Related entities for s. 102 40 41. Section 105 amended 41 42. Section 107 amended 41 43. Section 113A inserted 42 113A. Certain incorporated association transactions 42 44. Section 116 amended 43 45. Section 118 replaced 43 118. Transfers to and from bare trustee 43 118A. Transfers to and from bare trustee: failure to lodge subsequent transfer 45 46. Chapter 2 Part 6 Division 2 Subdivision 1A inserted 46 120A. Transfers to facilitate subdivision of land 46 120B. Land retained by transferee following transfer to facilitate subdivision 47 120C. Transfers to facilitate subdivision: failure to lodge subsequent transfer within 5 years 48 120D. Subdivisions of land excluded from s. 120A and 120B 49 120E. References to transfer of land back to person 49 47. Section 139 amended 50 48. Section 139A inserted 50 139A. Some transfers and vestings under orders made under Guardianship and Administration Act 1990 50 49. Section 141 amended 52 50. Section 142A amended 52 51. Section 142 amended 52 52. Section 146 amended 53 53. Section 147A amended 54 54. Section 147D amended 54 55. Section 147F amended 55 56. Section 148 amended 55 57. Section 149 amended 56 58. Section 149A inserted 57 149A. Determining entitlement to land assets: fixtures and mining tenement fixtures 57 59. Section 150 amended 58 60. Section 152 amended 59 page iii Revenue Laws Amendment Bill 2018 Contents 61. Section 153 amended 59 62. Sections 153A and 153B inserted 60 153A. References to interest in, or held by, trustee of discretionary trust 60 153B. References to interest in, or held by, partnership 61 63. Section 154 amended 61 64. Sections 154A and 154B inserted 62 154A. Calculating total direct or indirect interest in entity 62 154B. Determining interest in entity: uncompleted agreements 63 65. Section 155 amended 64 66. Section 156 amended 66 67. Section 156A inserted 67 156A. Linked entities: acquisitions forming one arrangement 67 68. Section 157 amended 69 69. Sections 158 and 159 deleted 70 70. Section 160 amended 70 71. Section 160A inserted 70 160A. Acquisition of interest by merger of corporations 70 72. Section 161 amended 71 73. Section 162 amended 71 74. Sections 163 and 164 replaced 73 163. Relevant acquisitions 73 75. Sections 167 and 168 replaced 74 167. Exemption or reduction of duty if nominal duty would be chargeable on transfer 74 168. Exemption or reduction of duty if transfer duty would not be chargeable 76 76. Section 171 amended 77 77. Section 172 amended 79 78. Section 173 amended 80 79. Section 174 amended 81 80. Section 176 amended 81 81. Section 177 amended 82 82. Section 179 amended 83 83. Section 180 amended 83 84. Section 185 amended 83 85. Section 186 amended 84 86. Section 187 amended 84 87. Section 189 amended 84 page iv Revenue Laws Amendment Bill 2018 Contents 88. Section 193 amended 85 89. Section 195A amended 85 90. Chapter 3 Part 6 Division 6 heading replaced 86 Division 6 -- Assessment or reassessment of liability for landholder duty if uncompleted agreements terminated or completed 91. Sections 195B and 195C inserted 86 195B. Assessment of duty where s. 149(1) or 154B applied at acquisition time 86 195C. Assessment of duty where s. 176(2) applied at acquisition time 88 92. Section 195 amended 88 93. Section 196 replaced 89 196. Reassessment of duty where s. 176(2) applied 89 94. Section 197 amended 90 95. Section 197A inserted 90 197A. Expired put and call options taken to be terminated 90 96. Section 200 amended 91 97. Section 201 amended 93 98. Section 203 amended 93 99. Section 204 amended 93 100. Chapter 3 Part 7 inserted 94 Part 7 -- Application of this Chapter to certain acquisitions Division 1 -- Rights relating to fixed infrastructure 204A. When fixed infrastructure access rights are taken into account in determining entitlement to land assets 94 204B. When fixed infrastructure statutory licences are treated as land assets in calculating duty 95 204C. Unencumbered value of fixed infrastructure statutory licences treated as land assets 97 204D. Associated entities for s. 204A and 204B 97 Division 2 -- Derivative mining rights 204E. Unencumbered value of mining tenement subject to derivative mining right 98 Division 3 -- Acquisitions forming one arrangement 204F. Acquisitions in 2 or more entities forming one arrangement 99 page v Revenue Laws Amendment Bill 2018 Contents 204G. Modified application of s. 176 if entity becomes landholder because of acquisitions forming one arrangement 100 204H. Reassessment of landholder duty if amount of duty chargeable changes because of acquisitions forming one arrangement 101 101. Section 205A amended 102 102. Section 205E amended 102 103. Section 205P amended 103 104. Section 205RA inserted 103 205RA. Foreign transfer duty on deemed transaction under s. 120B(2) 103 105. Section 205S amended 103 106. Section 205W amended 104 107. Section 205ZB amended 104 108. Section 205ZD amended 105 109. Section 205ZE amended 106 110. Section 205ZG amended 108 111. Sections 205ZH and 205ZI replaced 108 205ZH. Foreign landholder acquisitions 108 112. Section 205ZKA inserted 110 205ZKA. Modified application of s. 176 if entity becomes residential landholder because of acquisitions forming one arrangement 110 113. Section 205ZM amended 111 114. Section 205ZP amended 113 115. Section 205ZS amended 114 116. Section 205ZT amended 114 117. Section 244A amended 115 118. Section 257 amended 116 119. Section 259 amended 117 120. Section 260 amended 118 121. Section 260A inserted 119 260A. Consideration provided as loan 119 122. Section 261 amended 119 123. Section 263 amended 120 124. Section 264 amended 120 125. Section 264A inserted 121 264A. Automatic revocation of exemption 121 126. Section 265 amended 123 127. Section 266 amended 123 128. Sections 266A to 266D inserted 124 page vi Revenue Laws Amendment Bill 2018 Contents 266A. Reduction of duty following automatic revocation or refusal of exemption 124 266B. Reduction of duty following automatic revocation or refusal of exemption resulting from relevant acquisition 126 266C. Property in relation to which landholder duty taken to be chargeable for s. 266B 128 266D. Application of s. 266B and 266C to foreign transfer duty and foreign landholder duty 129 129. Section 277 amended 130 130. Schedule 1 amended 131 131. Schedule 3 clause 1 amended 131 132. Schedule 3 Division 9 inserted 131 Division 9 -- Provisions for Revenue Laws Amendment Act 2018 46. Terms used 131 47. Application of amendments made by Revenue Laws Amendment Act 2018 132 48. Definition of land taken always to have included pastoral leases 133 49. Validation of administration agreements entered into before commencement day 134 50. Transfers of vehicle licences between spouses between 1 July 2014 and commencement day 134 51. Provisions relating to exemptions for connected entities 135 52. Provisions about validated assessments 136 53. Application of s. 195B and 195 to acquisitions before commencement day 137 Part 3 -- Land Tax Assessment Act 2002 amended Division 1 -- Act amended 133. Act amended 138 Division 2 -- Amendments commencing on day after Royal Assent 134. Section 18A inserted 138 18A. Taxable value of land subject to partial exemption 138 135. Section 26A amended 139 136. Section 29 amended 140 137. Section 46 amended 140 138. Schedule 1 Division 6 inserted 140 page vii Revenue Laws Amendment Bill 2018 Contents Division 6 -- Provisions for Revenue Laws Amendment Act 2018 20. Application of section 30D to land held in trust for assessment year 2019/20 140 Division 3 -- Amendments commencing on 1 July 2019 139. Part 3 Division 2 Subdivision 1 heading inserted 141 Subdivision 1 -- Exemptions and rebates for private residential property 140. Part 3 Division 2 Subdivision 2 inserted: 141 Subdivision 2 -- Application of private residential exemptions to subdivided land 28A. Terms used 141 28B. Application of certain private residential exemptions to property subdivided during exemption period 142 28C. Application of requirements relating to sale or disposal of subdivided property 144 28D. Application of 2-year private residential exemptions if property subdivided during first year 144 28E. Ownership of land during period when land subdivided but certificates of title not issued 145 141. Schedule 1 amended 146 21. Application of amendments relating to subdivision of land 146 142. Glossary clause 2 amended 146 Division 4 -- Amendment commencing when Community Titles Act 2018 s. 219(3) commences 143. Glossary clause 2 amended 147 Part 4 -- Pay-roll Tax Assessment Act 2002 amended 144. Act amended 148 145. Section 9FA amended 148 page viii Western Australia LEGISLATIVE ASSEMBLY (As amended during consideration in detail) Revenue Laws Amendment Bill 2018 A Bill for An Act to amend -- • the Duties Act 2008; and • the Land Tax Assessment Act 2002; and • the Pay-roll Tax Assessment Act 2002. The Parliament of Western Australia enacts as follows: page 1 Revenue Laws Amendment Bill 2018 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Revenue Laws Amendment Act 2018. 4 2. Commencement 5 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 -- 9 (i) if the Duties Amendment (Additional Duty for 10 Foreign Persons) Act 2018 section 3 comes into 11 operation on or before assent day -- on the day 12 after assent day; or 13 (ii) otherwise -- when that section comes into 14 operation; 15 (c) Part 3 Division 3 -- on 1 July 2019; 16 (d) Part 3 Division 4 -- 17 (i) if the Community Titles Act 2018 section 219(3) 18 comes into operation on or before 1 July 2019 -- 19 on 1 July 2019; or 20 (ii) otherwise -- when that section comes into 21 operation; 22 (e) the rest of the Act -- on the day after assent day. page 2 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 3 1 Part 2 -- Duties Act 2008 amended 2 3. Act amended 3 This Part amends the Duties Act 2008. 4 4. Section 3 amended 5 (1) In section 3 delete the definition of land. 6 (2) In section 3 insert in alphabetical order: 7 8 derivative mining right means an authorisation of a 9 kind described in the Mining Act 1978 section 118A 10 (whether or not the authorisation purports to be made 11 under that section); 12 fixed infrastructure has the meaning given in 13 section 91A; 14 fixed infrastructure access right has the meaning 15 given in section 91A; 16 fixed infrastructure control right has the meaning 17 given in section 91A; 18 fixed infrastructure statutory licence has the meaning 19 given in section 91A; 20 land has a meaning affected by section 3A; 21 pastoral lease has the meaning given in the Land 22 Administration Act 1997 section 3(1); 23 pastoral lessee has the meaning given in the Land 24 Administration Act 1997 section 3(1); 25 public float has the meaning given in section 257; 26 relocatable home means a relocatable home as defined 27 in the Residential Parks (Long stay Tenants) Act 2006 28 Glossary; page 3 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 5 1 residential park site means a site (as defined in the 2 Residential Parks (Long stay Tenants) Act 2006 3 Glossary) in a residential park (as defined in that 4 Glossary); 5 6 (3) In section 3 in the definition of chattel after paragraph (g) 7 insert: 8 9 (ga) a thing that is land to which section 3A(1)(f) 10 applies; 11 12 (4) In section 3 in the definition of discretionary trust after 13 paragraph (c) insert: 14 15 (ca) a unit trust scheme; or 16 17 5. Section 3A inserted 18 After section 3 insert: 19 20 3A. Term used: land 21 (1) In this Act, land includes the following -- 22 (a) an estate or interest in land; 23 (b) a mining tenement; 24 (c) an estate or interest in a mining tenement; 25 (d) a pastoral lease; 26 (e) an interest of a pastoral lessee under a pastoral 27 lease; 28 (f) anything fixed to land (including land the 29 subject of a mining tenement or pastoral lease), 30 whether or not the thing -- 31 (i) constitutes a fixture at law; or page 4 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 5 1 (ii) is owned separately from the land; or 2 (iii) is notionally severed or considered to be 3 legally separate from the land as a result 4 of the operation of any law of the State 5 or the Commonwealth; 6 (g) an estate or interest in a thing to which 7 subsection (1)(f) applies. 8 (2) In this Act, land does not include -- 9 (a) a carbon right or a carbon covenant registered 10 under the Carbon Rights Act 2003; or 11 (b) a derivative mining right. 12 (3) Without limiting subsection (1)(f), a thing is taken to 13 be fixed to land if it has a physical connection to the 14 land or is buried or partly buried under the surface of 15 the land. 16 (4) Subsection (1)(f) does not apply to the following -- 17 (a) a thing that is fixed to land on a temporary 18 basis and only for the purpose of being used in 19 construction works; 20 (b) a thing that does not constitute a fixture at law 21 and that is held or used in connection with the 22 business of primary production; 23 (c) a relocatable home fixed to a residential park 24 site, or an addition or structure fixed or attached 25 to the home or site for the use or enjoyment of 26 the occupier of the home, that does not 27 constitute a fixture at law; 28 (d) a thing of a kind prescribed for the purposes of 29 this paragraph. 30 (5) A paragraph of subsection (1) is not to be taken into 31 account in determining the meaning of land when used 32 in another paragraph of subsection (1). 33 page 5 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 6 1 6. Section 6 amended 2 (1) At the beginning of section 6 insert: 3 4 (1) In this section -- 5 step-child, of a person, means a child of a spouse or 6 de facto partner of the person. 7 8 (2) In section 6 delete "In determining whether" and insert: 9 10 (2) In determining whether 11 12 (3) At the end of section 6 insert: 13 14 (3) In determining for the purposes of section 43(1)(c) or 15 (ca), 87(6)(a), (c) or (h) or 100(1)(a) or (c) whether a 16 person is a child or remoter lineal descendant of 17 another person, a step-child of a person is to be treated 18 as a child. 19 (4) In determining for the purposes of section 162(1)(b) 20 whether the relationship between individuals is that of 21 parent and child, a step-child of a person is to be 22 treated as a child. 23 24 Note: The heading to amended section 6 is to read: 25 Determining family relationships page 6 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 7 1 7. Section 11 amended 2 After section 11(2) insert: 3 4 (3) Subsection (2)(a) does not apply to a right referred to 5 in section 16(1)(h), (i) or (j) or (3)(aa). 6 (4) Subsection (2)(b) does not apply to a pastoral lease. 7 8 8. Section 13 amended 9 In section 13(1): 10 (a) in paragraph (a) delete "right to exploit" and insert: 11 12 derivative mining right in relation to 13 14 (b) in paragraph (c)(ii) delete "a right to exploit, or an 15 entitlement to a right to exploit," and insert: 16 17 a derivative mining right, or an entitlement to a 18 derivative mining right, in relation to 19 20 (c) in paragraph (d) delete "right to exploit the mining 21 tenement," and insert: 22 23 derivative mining right, 24 25 9. Section 14 amended 26 (1) In section 14(1) delete "subsection (2)," and insert: 27 28 subsections (2) and (3), 29 page 7 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 9 1 (2) After section 14(2) insert: 2 3 (3) A transaction referred to in subsection (1) is a dutiable 4 transaction if -- 5 (a) there is a relevant acquisition for the purposes 6 of Chapter 3 or an agreement for the making of 7 such an acquisition; and 8 (b) the transaction and the acquisition or agreement 9 together form, evidence, give effect to or arise 10 from what is, substantially one arrangement. 11 (4) Without limiting subsection (3), unless the 12 Commissioner is satisfied to the contrary, a transaction 13 and an acquisition or agreement together form, 14 evidence, give effect to or arise from what is, 15 substantially one arrangement if -- 16 (a) the transaction has taken place, and the 17 acquisition or agreement has been made, within 18 12 months; and 19 (b) in respect of both the transaction and the 20 acquisition or agreement, the person liable to 21 pay duty is the same person (whether that 22 person is the only person liable to pay duty or is 23 liable to pay duty with the same or different 24 persons). 25 (5) A reference in subsection (4) to a person liable to pay 26 duty on the transaction is a reference to a person that 27 would be liable to pay duty if the transaction were a 28 dutiable transaction. 29 30 Note: The heading to amended section 14 is to read: 31 Transactions as to chattels alone not usually dutiable page 8 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 10 1 10. Section 16 amended 2 (1) In section 16(1): 3 (a) in paragraph (g) delete "property." and insert: 4 5 property; 6 7 (b) after paragraph (g) insert: 8 9 (h) a fixed infrastructure control right; 10 (i) a fixed infrastructure access right; 11 (j) a fixed infrastructure statutory licence. 12 13 (2) In section 16(2) after "right" insert: 14 15 referred to in subsection (1)(a) to (g) 16 17 (3) In section 16(3): 18 (a) after paragraph (a) insert: 19 20 (aa) a derivative mining right; 21 22 (b) after paragraph (b) insert: 23 24 (ba) a part of, or an interest in, a right referred to in 25 subsection (1) or this subsection; 26 27 (4) After section 16(3) insert: 28 29 (4) Subsection (1)(a) to (g) do not apply to a right to the 30 extent that the right is a fixed infrastructure control page 9 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 11 1 right, a fixed infrastructure access right or a fixed 2 infrastructure statutory licence. 3 4 11. Section 17 amended 5 (1) After section 17(1)(b)(ii) insert: 6 7 (iia) a fixed infrastructure control right; 8 (iib) a fixed infrastructure access right; 9 (iic) a derivative mining right; 10 11 (2) In section 17(2): 12 (a) in paragraph (c) delete "a lease" and insert: 13 14 a lease (other than a pastoral lease) 15 16 (b) after paragraph (c) insert: 17 18 (ca) a pastoral lease, or an interest of a pastoral 19 lessee under a pastoral lease, if the grant of the 20 lease under the Land Administration Act 1997 21 section 101 is not subject to the payment of a 22 sale price; 23 24 (c) delete paragraph (e). 25 12. Section 18 amended 26 In section 18: 27 (a) in paragraph (c) delete "lease," and insert: 28 29 lease (other than a pastoral lease), 30 page 10 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 13 1 (b) after paragraph (g) insert: 2 3 (ga) a fixed infrastructure control right, if 4 consideration is paid, or agreed to be paid, for 5 the surrender of the right; 6 (gb) a fixed infrastructure access right, if 7 consideration is paid, or agreed to be paid, for 8 the surrender of the right; 9 (gc) a derivative mining right, if consideration is 10 paid, or agreed to be paid, for the surrender of 11 the right; 12 13 13. Section 18A inserted 14 At the end of Chapter 2 Part 3 Division 2 insert: 15 16 18A. Things fixed to land that are to be permanently 17 removed 18 (1) Despite section 3A(1)(f) and (g), a thing fixed to land, 19 or an estate or interest in such a thing, is taken not to be 20 land in relation to a particular transaction if -- 21 (a) the transaction is the transfer, or an agreement 22 for the transfer, of the thing or the estate or 23 interest in the thing; and 24 (b) none of the following are transferred as part of 25 the transaction or another transaction that is 26 aggregated with the transaction under 27 section 37 -- 28 (i) the land, or an estate or interest in the 29 land, to which the thing is fixed; 30 (ii) if the land to which the thing is fixed is 31 land the subject of a mining 32 tenement -- the mining tenement, or an page 11 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 13 1 estate or interest in the mining 2 tenement; 3 and 4 (c) there is an agreement, arrangement or 5 understanding relating to the transaction under 6 which the thing is to be permanently removed 7 from the land. 8 (2) Subsection (1) applies whether or not the thing 9 constitutes a fixture at law. 10 (3) If subsection (1) applies to a thing fixed to land, or an 11 estate or interest in such a thing, the thing is taken to be 12 a chattel for the purposes of this Act. 13 (4) Subsection (1) ceases to apply to a thing fixed to land, 14 or an estate or interest in such a thing, if the thing is not 15 permanently removed from the land within -- 16 (a) the period of 90 days after the day on which the 17 transfer referred to in subsection (1)(a) occurs; 18 or 19 (b) any longer period allowed, on application 20 within the period referred to in paragraph (a), 21 by the Commissioner on any conditions the 22 Commissioner thinks fit. 23 (5) If a failure to remove a thing as referred to in 24 subsection (4) occurs, the transferee must lodge a 25 notice of the failure in the approved form within 26 2 months after the last day of the period that applies 27 under subsection (4)(a) or (b). 28 Penalty for this subsection: a fine of $20 000. 29 (6) Subject to the Taxation Administration Act section 17, 30 the Commissioner must make any reassessment 31 necessary as a result of the operation of subsection (4). 32 page 12 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 14 1 14. Section 28 amended 2 (1) In section 28(4) after "grant of a lease" insert: 3 4 (other than a pastoral lease) 5 6 (2) After section 28(4) insert: 7 8 (4A) The dutiable value of a dutiable transaction that is the 9 grant of a pastoral lease is the sale price subject to the 10 payment of which the lease is granted under the Land 11 Administration Act 1997 section 101. 12 13 15. Section 36 amended 14 (1) In section 36(4): 15 (a) in paragraph (ca)(ii) delete "ascribed;" and insert: 16 17 ascribed. 18 19 (b) after paragraph (ca) delete "and"; 20 (c) delete paragraph (c). 21 (2) After section 36(4) insert: 22 23 (5) When determining the unencumbered value of property 24 that is land -- 25 (a) if the land is the subject of an agreement for 26 transfer, any improvement made to the land at 27 the expense of the purchaser or transferee 28 before the date liability to duty arises on the 29 agreement is to be taken not to have been made 30 to the land; and page 13 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 16 1 (b) if the land is the subject of a transfer, any 2 improvement made to the land at the expense of 3 the transferee before the land is transferred is to 4 be taken not to have been made to the land; and 5 (c) the value is to be determined having regard to 6 the use of the land that would best enhance its 7 commercial value; and 8 (d) the value is to be determined having regard to 9 commercial advantages (such as goodwill) 10 that -- 11 (i) attach to the location or other aspects of 12 the land; and 13 (ii) would affect the price that a reasonable 14 purchaser would be willing to pay for 15 the land; 16 and 17 (e) if section 36A applies, the value is to be 18 determined having regard to that section. 19 20 Note: The heading to amended section 36 is to read: 21 Determining unencumbered value of property 22 16. Section 36A inserted 23 At the end of Chapter 2 Part 4 Division 5 Subdivision 3 insert: 24 25 36A. Determining unencumbered value: fixtures and 26 mining tenement fixtures 27 (1) In this section -- 28 mining tenement fixture, in relation to a mining 29 tenement, means a thing that -- 30 (a) under the authority (whether direct or indirect) 31 of the mining tenement, is fixed to land that is 32 the subject of the mining tenement; and page 14 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 16 1 (b) would be part of that land as a fixture if the 2 mining tenement were a freehold estate in the 3 land. 4 (2) In determining the unencumbered value of dutiable 5 property that is land, anything that is part of the land as 6 a fixture is to be taken into account even if the dutiable 7 transaction does not, or purports not to, apply to the 8 fixture as well as the land. 9 (3) Subsection (2) does not apply if the value of the fixture 10 would, apart from that subsection, be taken into 11 account separately in determining the dutiable value of 12 the dutiable transaction relating to the land or another 13 dutiable transaction that is aggregated with that 14 dutiable transaction under section 37. 15 (4) In determining the unencumbered value of dutiable 16 property that is a mining tenement or an estate or 17 interest in a mining tenement, anything that is a mining 18 tenement fixture in relation to the mining tenement is 19 to be taken into account even if the dutiable transaction 20 does not, or purports not to, apply to the mining 21 tenement fixture as well as the mining tenement or the 22 estate or interest in the mining tenement. 23 (5) Subsection (4) does not apply if the value of the mining 24 tenement fixture would, apart from that subsection, be 25 taken into account separately in determining the 26 dutiable value of the dutiable transaction relating to the 27 mining tenement or the estate or interest in the mining 28 tenement or another dutiable transaction that is 29 aggregated with that dutiable transaction under 30 section 37. 31 (6) In this section, a reference to land does not include 32 anything that is land under section 3A(1)(b), (c), (f) or 33 (g). 34 page 15 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 17 1 17. Section 39 amended 2 After section 39(3) insert: 3 4 (4) This section does not apply to a transaction if 5 section 78 or 78A applies to the transaction or if the 6 transaction is a subsequent transfer referred to in 7 section 120A. 8 9 18. Section 42 amended 10 (1) Delete section 42(4B) and insert: 11 12 (4B) If an agreement is for the transfer of dutiable property 13 to a purchaser acting in the purchaser's own capacity, 14 but the property is transferred to the purchaser acting in 15 a capacity as a trustee of a trust, subsection (1) does not 16 apply to the transfer of the property unless -- 17 (a) the purchaser is an individual and the trust is a 18 unit trust scheme in which the purchaser is the 19 sole unit holder; or 20 (b) the trust is a unit trust scheme in which the 21 purchaser is a unit holder and each of the other 22 unit holders are related, as referred to in 23 section 43(1)(a), (b), (c), (ca), (cb), (d) or (e), to 24 the purchaser; or 25 (c) the trust is not a discretionary trust or a unit 26 trust scheme and each beneficiary of the trust is 27 related, as referred to in section 43(1)(a), (b), 28 (c), (ca), (cb), (d) or (e), to the purchaser. page 16 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 19 1 (2) In section 42(4C) delete "whose interest in the scheme or trust is 2 a beneficial interest." and insert: 3 4 acting in their own capacity and not as agent, trustee or 5 otherwise on behalf of any other person. 6 7 19. Section 43 amended 8 (1) Delete section 43(1)(c) and insert: 9 10 (c) a child or remoter lineal descendant of the 11 purchaser; 12 (ca) a spouse or de facto partner of a child, or 13 remoter lineal descendant, of the purchaser; 14 (cb) a spouse or de facto partner of a parent, or 15 remoter lineal ancestor, of the purchaser; 16 17 (2) In section 43(4)(c)(i) and (ii) after "(c)," insert: 18 19 (ca), (cb), 20 21 20. Section 57 amended 22 (1) In section 57(2) delete "Section 156 applies" and insert: 23 24 Sections 156 and 156A apply 25 26 (2) In section 57(3) delete "section 156, the trustee of the 27 discretionary trust is the main entity, despite section 152(2)." 28 and insert: 29 30 sections 156 and 156A, the trustee of the discretionary trust is 31 the main entity, despite section 152(2) and (3). 32 page 17 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 21 1 21. Section 61 amended 2 Delete section 61(b)(i) and (ii) and insert: 3 4 (i) to land assets were a reference to 5 dutiable property; and 6 (ii) to the main entity's total direct or 7 indirect interest in the linked entity 8 calculated under section 154A were a 9 reference to the total direct or indirect 10 interest that the trustee of the 11 discretionary trust has in the linked 12 entity, calculated under section 154A(2) 13 to (5) as if the trustee of the 14 discretionary trust were a higher entity 15 referred to in that section. 16 17 22. Section 66 amended 18 (1) In section 66(2) delete "Section 156 applies" and insert: 19 20 Sections 156 and 156A apply 21 22 (2) In section 66(3) delete "section 156, the corporate trustee is the 23 main entity, despite section 152(2)." and insert: 24 25 sections 156 and 156A, the corporate trustee is the main entity, 26 despite section 152(2) and (3). 27 page 18 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 23 1 23. Section 67 amended 2 In section 67(1) delete "results in a change in the beneficial 3 ownership of" and insert: 4 5 results, or will or may result, in a change in any beneficial 6 interest, whether vested or contingent, in 7 8 24. Section 68 amended 9 Delete section 68(2)(a) and (b) and insert: 10 11 (a) to land assets were a reference to dutiable 12 property; and 13 (b) to the main entity's total direct or indirect 14 interest in the linked entity calculated under 15 section 154A were a reference to the total direct 16 or indirect interest that the corporate trustee has 17 in the linked entity, calculated under 18 section 154A(2) to (5) as if the corporate 19 trustee were a higher entity referred to in that 20 section. 21 22 25. Section 70 amended 23 In section 70 in the definition of dutiable property: 24 (a) in paragraph (b) delete "Australia." and insert: 25 26 Australia; 27 28 (b) after paragraph (b) insert: 29 30 (c) a fixed infrastructure control right; 31 (d) a fixed infrastructure access right; page 19 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 26 1 (e) a fixed infrastructure statutory licence; 2 (f) a derivative mining right. 3 4 26. Section 72 amended 5 Delete section 72(b) and insert: 6 7 (b) a fixed infrastructure control right; or 8 (c) a fixed infrastructure access right; or 9 (d) a derivative mining right; or 10 (e) an indirect interest in property referred to in 11 paragraph (a), (b), (c) or (d). 12 13 27. Section 73 amended 14 (1) Delete section 73(1) and insert: 15 16 (1) A partnership holds an indirect interest in property of a 17 kind referred to in section 72(a), (b), (c) or (d) if an 18 entity linked to the partnership is entitled to property of 19 that kind. 20 21 (2) In section 73(2) delete "Section 156 applies" and insert: 22 23 Sections 156 and 156A apply 24 25 (3) In section 73(3) delete "section 156, the partnership is the main 26 entity, despite section 152(2)." and insert: 27 28 sections 156 and 156A, the partnership is the main entity, 29 despite section 152(2) and (3). 30 31 Note: The heading to amended section 73 is to read: 32 When partnership holds indirect interest in property page 20 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 28 1 28. Section 77 amended 2 (1) Delete section 77(1)(b)(i) and (ii) and insert: 3 4 (i) to land assets were a reference to 5 dutiable property; and 6 (ii) to the main entity's total direct or 7 indirect interest in the linked entity 8 calculated under section 154A were a 9 reference to the total direct or indirect 10 interest that the partnership has in the 11 linked entity, calculated under 12 section 154A(2) to (5) as if the 13 partnership were a higher entity referred 14 to in that section. 15 16 (2) In section 77(2) after "on its formation" insert: 17 18 (other than any joint property) 19 20 (3) After section 77(2) insert: 21 22 (2A) In determining the value of a partnership interest the 23 subject of a new partner's partnership acquisition on 24 formation of a partnership, the value determined under 25 subsections (1) and (2) is to be reduced, for each 26 interest in joint property the new partner contributed to 27 the partnership on its formation, by -- 28 (a) the unencumbered value, when liability for duty 29 on the transaction arises, of that interest; or 30 (b) if the amount determined under paragraph (a) is 31 greater than the amount (the cap amount) 32 determined by applying the new partner's 33 partnership interest to the total unencumbered page 21 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 29 1 value, when liability for duty on the transaction 2 arises, of the joint property to which that 3 interest relates -- the cap amount. 4 (2B) For the purposes of subsections (2) and (2A), joint 5 property is property held by the new partner jointly 6 with 1 or more other partners. 7 8 (4) In section 77(3) delete "subsection (2)," and insert: 9 10 subsections (2) and (2A), 11 12 29. Section 78 replaced 13 Delete section 78 and insert: 14 15 78. Dutiable value of transfer of dutiable property to 16 retiring partner 17 (1) This section applies if -- 18 (a) a person (the retiring partner) ceases to be a 19 partner in a partnership because of the retiring 20 partner's retirement from the partnership or its 21 dissolution; and 22 (b) on the retirement or dissolution, dutiable 23 property (the transfer property) of the 24 partnership is transferred or agreed to be 25 transferred to the retiring partner; and 26 (c) the transfer property is, or is an interest in, a 27 particular item of dutiable property (the 28 relevant partnership property) held by the 29 partnership immediately before the retirement 30 or dissolution. page 22 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 29 1 (2) In determining the dutiable value of the dutiable 2 transaction that is the transfer or agreement referred to 3 in subsection (1)(b), the unencumbered value of the 4 transfer property is to be determined as follows -- 5 (a) first, the aggregate unencumbered value of the 6 following is to be determined -- 7 (i) the transfer property; 8 (ii) if the transfer property is an interest in 9 the relevant partnership property -- 10 relevant retained property (if any) in 11 relation to the transfer property; 12 (b) second, the value determined in accordance 13 with paragraph (a) is to be reduced by an 14 amount calculated by applying the retiring 15 partner's partnership interest in the partnership 16 to the unencumbered value, immediately before 17 the retirement or dissolution, of the relevant 18 partnership property. 19 (3) Property is relevant retained property in relation to the 20 transfer property for the purposes of 21 subsection (2)(a)(ii) if -- 22 (a) the property is also an interest in the relevant 23 partnership property; and 24 (b) immediately before the retirement or 25 dissolution, the retiring partner was the legal 26 owner of the property and held it for the 27 partnership; and 28 (c) immediately after the retirement or dissolution, 29 the retiring partner remains the legal owner of 30 the property but no longer holds it for the 31 partnership. 32 (4) This section does not apply to a transfer that is taken to 33 occur under section 78A(2). page 23 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 29 1 78A. Certain retained property taken to be transferred to 2 retiring partner 3 (1) This section applies if -- 4 (a) a person (a retiring partner) ceases to be a 5 partner in a partnership because of the retiring 6 partner's retirement from the partnership or its 7 dissolution; and 8 (b) immediately before the retirement or 9 dissolution, the retiring partner was the legal 10 owner of dutiable property (the retained 11 property) and held the property for the 12 partnership; and 13 (c) immediately after the retirement or dissolution, 14 the retiring partner remains the legal owner of 15 the retained property but no longer holds it for 16 the partnership; and 17 (d) the retained property is, or is an interest in, a 18 particular item of dutiable property (the 19 relevant partnership property) held by the 20 partnership immediately before the retirement 21 or dissolution; and 22 (e) the retained property is or includes property 23 referred to in section 72(a) to (d). 24 (2) When the retirement or dissolution occurs, there is 25 taken to be a dutiable transaction consisting of the 26 transfer of the retained property to the retiring partner. 27 (3) In determining the dutiable value of a dutiable 28 transaction under subsection (2) (a deemed 29 transaction), the unencumbered value of the retained 30 property is to be determined as follows -- 31 (a) first, the unencumbered value of the retained 32 property when liability for duty on the deemed 33 transaction arises is to be determined; page 24 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 30 1 (b) second, the value determined in accordance 2 with paragraph (a) is to be reduced by an 3 amount calculated by applying the retiring 4 partner's partnership interest in the partnership 5 to the unencumbered value, immediately before 6 the retirement or dissolution, of the relevant 7 partnership property. 8 (4) This section does not apply to retained property if the 9 unencumbered value of the retained property is to be 10 taken into account in determining the dutiable value of 11 a transaction to which section 78 applies. 12 13 30. Section 79 amended 14 In section 79 delete the definition of business licence and insert: 15 16 business licence -- 17 (a) means a licence, permit or authority which is 18 issued, granted or given under -- 19 (i) a written law and which is required by a 20 written law to be held by a person 21 carrying out an activity for gain or 22 reward; or 23 (ii) a law of the Commonwealth and which 24 is required by a law of the 25 Commonwealth to be held by a person 26 carrying out an activity in Western 27 Australia for gain or reward; 28 but 29 (b) does not include a fixed infrastructure access 30 right, a fixed infrastructure control right or a 31 fixed infrastructure statutory licence; 32 page 25 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 31 1 31. Section 80 amended 2 In section 80 delete "to transfer a Western Australian business 3 asset and is liable to duty accordingly." and insert: 4 5 for the transfer to the other person of the business licence that is 6 to be relinquished or is not to be renewed. 7 8 Note: The heading to amended section 80 is to read: 9 Some transactions involving business licences to be taken to be 10 agreements for transfer 11 32. Section 81 amended 12 In section 81(3) delete "business asset" and insert: 13 14 business asset, a fixed infrastructure control right, a fixed 15 infrastructure access right or a fixed infrastructure statutory 16 licence, 17 18 33. Section 87 amended 19 In section 87(6): 20 (a) in paragraph (c) after "brother or sister of the person or" 21 insert: 22 23 a child or 24 25 (b) in paragraph (f) delete "(a),"; 26 (c) in paragraph (g) delete "(d)," and insert: 27 28 (d); or 29 page 26 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 34 1 (d) after paragraph (g) insert: 2 3 (h) a child or remoter lineal descendant of a former 4 spouse or former de facto partner of a person, 5 6 34. Chapter 2 Part 5 Divisions 7 and 8 inserted 7 At the end of Chapter 2 Part 5 insert: 8 9 Division 7 -- Rights relating to fixed infrastructure 10 91A. Terms used 11 (1) In this Division -- 12 fixed infrastructure means dutiable property that is 13 land in Western Australia that is a thing to which 14 section 3A(1)(f) applies; 15 fixed infrastructure access right means a licence or 16 other right that authorises access to or use of any land 17 for -- 18 (a) a purpose related to the control, operation, use, 19 construction, inspection, testing, maintenance 20 or repair of fixed infrastructure or of things 21 used in conjunction with fixed infrastructure; or 22 (b) any other purpose associated with fixed 23 infrastructure; 24 fixed infrastructure control right -- 25 (a) means a lease, licence or other right that 26 enables the holder to have the day-to-day 27 control, and the operation or use, of fixed 28 infrastructure; but 29 (b) does not include -- 30 (i) a security interest; or 31 (ii) a fixed infrastructure statutory licence; page 27 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 34 1 fixed infrastructure statutory licence means a licence, 2 permit or authority that is issued, granted or given 3 under a written law or a law of the Commonwealth (the 4 issuing law) if -- 5 (a) the licence, permit or authority authorises the 6 ownership, control, operation or use of a thing 7 (the relevant activity); and 8 (b) the issuing law prohibits a person that does not 9 hold such a licence, permit or authority from 10 engaging in the relevant activity; and 11 (c) the thing referred to in paragraph (a) is fixed 12 infrastructure; 13 landholder has the meaning given in section 148(1); 14 linked entity has the meaning given in section 148(1). 15 (2) In the definition of fixed infrastructure access right in 16 subsection (1), a reference to land does not include 17 anything that is land under section 3A(1)(f) or (g). 18 (3) Despite subsection (1), anything that is land is not a 19 fixed infrastructure control right, fixed infrastructure 20 access right or fixed infrastructure statutory licence. 21 (4) The regulations may prescribe classes of right that, 22 despite subsection (1), are excluded from the definition 23 of fixed infrastructure access right, fixed 24 infrastructure control right or fixed infrastructure 25 statutory licence in that subsection. 26 91B. Some transactions involving fixed infrastructure 27 statutory licences to be taken to be agreements for 28 transfer 29 When a person agrees to relinquish a fixed 30 infrastructure statutory licence held by that person, or 31 agrees not to apply for a renewal of such a fixed 32 infrastructure statutory licence, so that it, or another, 33 can be issued, granted or given to another person, that page 28 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 34 1 agreement is taken to be an agreement for the transfer 2 to the other person of the fixed infrastructure statutory 3 licence that is to be relinquished or is not to be 4 renewed. 5 91C. Which transactions as to fixed infrastructure access 6 rights and fixed infrastructure statutory licences 7 are dutiable 8 (1) For the purposes of this section, a transaction (the fixed 9 infrastructure transaction) is not a dutiable transaction 10 to the extent that the fixed infrastructure transaction 11 relates to dutiable property that consists of a fixed 12 infrastructure access right or a fixed infrastructure 13 statutory licence unless subsection (2), (3) or (4) 14 applies. 15 (2) This subsection applies if the dutiable property to 16 which the fixed infrastructure transaction relates also 17 includes any of the following -- 18 (a) fixed infrastructure (relevant fixed 19 infrastructure) to which the fixed infrastructure 20 access right or fixed infrastructure statutory 21 licence relates; 22 (b) an estate or interest in relevant fixed 23 infrastructure; 24 (c) a fixed infrastructure control right that relates to 25 relevant fixed infrastructure. 26 (3) This subsection applies if -- 27 (a) there is another transaction that is a dutiable 28 transaction and that relates to any dutiable 29 property referred to in subsection (2)(a), (b) or 30 (c); and 31 (b) the fixed infrastructure transaction and the 32 other transaction together form, evidence, give page 29 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 34 1 effect to or arise from what is, substantially one 2 arrangement. 3 (4) This subsection applies if -- 4 (a) there is a relevant acquisition of an interest in a 5 landholder for the purposes of Chapter 3 or an 6 agreement for the making of such an 7 acquisition; and 8 (b) the landholder, or a linked entity in respect of 9 the landholder, is entitled to any property 10 referred to in subsection (2)(a), (b) or (c); and 11 (c) the fixed infrastructure transaction and the 12 acquisition or agreement together form, 13 evidence, give effect to or arise from what is, 14 substantially one arrangement. 15 (5) Section 37(2) applies in relation to transactions referred 16 to in subsection (3)(b) as if the fixed infrastructure 17 transaction were a dutiable transaction. 18 (6) Section 14(4) and (5) apply in relation to a fixed 19 infrastructure transaction and acquisition or agreement 20 referred to in subsection (4)(c) as if they were a 21 transaction and acquisition or agreement referred to in 22 section 14(3). 23 (7) For the purposes of the application of this section to a 24 transaction that is a partnership acquisition, the 25 partnership acquisition is taken to relate to the property 26 of a kind referred to in section 72(a) to (d) held by the 27 partnership or in which the partnership has an indirect 28 interest under section 73. page 30 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 34 1 91D. Dutiable value of fixed infrastructure statutory 2 licences 3 (1) The dutiable value of a dutiable transaction for a fixed 4 infrastructure statutory licence issued, granted or given 5 under a law of the Commonwealth is the greater of -- 6 (a) the value of the fixed infrastructure statutory 7 licence so far as it authorises the ownership, 8 control, operation or use of fixed infrastructure 9 (a fixed infrastructure activity); or 10 (b) the portion of the consideration for the 11 transaction that relates to the carrying out of a 12 fixed infrastructure activity under the authority 13 of the licence. 14 (2) The dutiable value of a dutiable transaction for a fixed 15 infrastructure statutory licence issued, granted or given 16 under a law of Western Australia is -- 17 (a) the consideration for the dutiable transaction; or 18 (b) the unencumbered value of the fixed 19 infrastructure statutory licence at the time when 20 liability for duty on the transaction arises if -- 21 (i) there is no consideration for the 22 transaction; or 23 (ii) the consideration cannot be ascertained 24 when liability for duty on the 25 transaction arises; or 26 (iii) the unencumbered value is greater than 27 the consideration for the transaction. page 31 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 34 1 Division 8 -- Derivative mining rights 2 91E. Agreement for transfer of mining tenement 3 conditional on grant of derivative mining right to 4 transferor 5 (1) This section applies if -- 6 (a) there is an agreement for the transfer of a 7 mining tenement from a person (person A) to 8 another person (person B); and 9 (b) it is a condition of the agreement for the 10 transfer that after the transfer person B is to 11 grant a derivative mining right (the prospective 12 right) in relation to the mining tenement to 13 person A. 14 (2) In determining the dutiable value of the agreement 15 referred to in subsection (1)(a), the unencumbered 16 value of the mining tenement is to be determined, 17 despite section 36(1), having regard to the effect of the 18 prospective right on the value of the mining tenement, 19 as if the prospective right were in force when liability 20 for duty on the agreement arose. 21 (3) If the agreement referred to in subsection (1)(a) is duty 22 endorsed, duty is not chargeable on the acquisition of 23 the prospective right on its grant by person B. 24 91F. Agreement for transfer of mining tenement 25 conditional on grant of derivative mining right to 26 current right holder 27 (1) This section applies if -- 28 (a) there is an agreement for the transfer of a 29 mining tenement to a person (person A); and 30 (b) it is a condition of the agreement for the 31 transfer that after the transfer person A is to 32 grant a derivative mining right (the prospective page 32 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 34 1 right) in relation to the mining tenement to 2 another person (person B) who -- 3 (i) when the agreement is made, holds a 4 derivative mining right (the previous 5 right) in relation to the mining tenement 6 that is substantially the same as the 7 prospective right; and 8 (ii) will hold the previous right until 9 immediately before the transfer of the 10 mining tenement. 11 (2) In determining the dutiable value of the agreement 12 referred to in subsection (1)(a), the unencumbered 13 value of the mining tenement is to be determined, 14 despite section 36(1), having regard to the effect of the 15 previous right on the value of the mining tenement 16 when liability for duty on the agreement arose. 17 (3) Duty is not chargeable on the acquisition of the 18 prospective right on its grant by person A if both of the 19 following are duty endorsed -- 20 (a) the agreement referred to in subsection (1)(a); 21 (b) the acquisition, on its grant, of the previous 22 right. 23 91G. Transfer or agreement for transfer of mining 24 tenement to holder of derivative mining right 25 (1) This section applies if -- 26 (a) a person (person A) holds a derivative mining 27 right (the previous right) in relation to a mining 28 tenement held by another person (person B); 29 and 30 (b) the acquisition of the previous right, on its 31 grant, is duty endorsed; and page 33 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 34 1 (c) there is a transfer, or agreement for the transfer, 2 of the mining tenement from person B to 3 person A; and 4 (d) person A holds, or will hold, the previous right 5 until immediately before the transfer of the 6 mining tenement. 7 (2) In determining the dutiable value of a transfer referred 8 to in subsection (1)(c), the unencumbered value of the 9 mining tenement is to be determined, despite 10 section 36(1), having regard to the effect of the 11 previous right on the value of the mining tenement, as 12 if the previous right were in force when liability for 13 duty on the transfer arose. 14 (3) In determining the dutiable value of an agreement 15 referred to in subsection (1)(c), the unencumbered 16 value of the mining tenement is to be determined, 17 despite section 36(1), having regard to the effect of the 18 previous right on the value of the mining tenement 19 when liability for duty on the agreement arose. 20 91H. Acquisition of derivative mining right substantially 21 the same as was held in relation to previous mining 22 tenement 23 (1) Duty is not chargeable on an acquisition of a derivative 24 mining right by a person (person A) on its grant by 25 another person (person B) if -- 26 (a) the derivative mining right relates to a mining 27 lease granted to person B; and 28 (b) before the grant of the mining lease, person B 29 held a prospecting licence or an exploration 30 licence in relation to land including the land the 31 subject of the mining lease; and 32 (c) person A held a derivative mining right in 33 relation to the prospecting licence or page 34 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 34 1 exploration licence that was substantially the 2 same as the derivative mining right in relation 3 to the mining lease; and 4 (d) the acquisition of the derivative mining right in 5 relation to the prospecting licence or 6 exploration licence, on its grant, is duty 7 endorsed. 8 (2) A reference in this section to a mining lease, 9 prospecting licence or exploration licence is to a 10 mining lease, prospecting licence or exploration licence 11 (as the case requires) granted or continued under the 12 Mining Act 1978. 13 91I. Failure to grant, or surrender of, derivative mining 14 right after transfer of mining tenement 15 (1) In this section -- 16 mining tenement valuation provision means 17 section 91E(2) or 91F(2); 18 prospective right, in relation to a mining tenement 19 valuation provision, means the prospective right 20 referred to in whichever of section 91E(1)(b) or 21 91F(1)(b) is relevant. 22 (2) A mining tenement valuation provision that applies to 23 an agreement for the transfer of a mining tenement 24 when liability for duty on the agreement arises ceases 25 to apply to the agreement if -- 26 (a) the prospective right is not granted within the 27 period that applies under subsection (3); or 28 (b) the prospective right is surrendered for no 29 consideration within 12 months after the day on 30 which the mining tenement is transferred. page 35 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 35 1 (3) For the purposes of subsection (2)(a), the period is -- 2 (a) the period of 90 days starting on the day on 3 which the mining tenement is transferred; or 4 (b) any longer period allowed, on application 5 within the period referred to in paragraph (a), 6 by the Commissioner on any conditions the 7 Commissioner thinks fit. 8 (4) If a failure to grant the prospective right referred to in 9 subsection (2)(a) occurs, the transferee in respect of the 10 agreement for transfer referred to in subsection (2) 11 must lodge a notice of the failure in the approved form 12 within 2 months after the last day of the period that 13 applies under subsection (3). 14 Penalty for this subsection: a fine of $20 000. 15 (5) If a surrender referred to in subsection (2)(b) occurs, 16 the person who surrenders the prospective right must 17 lodge a notice of the surrender in the approved form 18 within 2 months after the day on which the surrender 19 occurs. 20 Penalty for this subsection: a fine of $20 000. 21 (6) Subject to the Taxation Administration Act section 17, 22 the Commissioner must make any reassessment 23 necessary as a result of the operation of subsection (2). 24 25 35. Section 96B amended 26 In section 96B(1)(a)(ii) delete "section 168(1)" and insert: 27 28 section 168(3) 29 page 36 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 36 1 36. Section 99 amended 2 In section 99(3) delete "acquisition, if the land referred to in 3 section 72 is farming land." and insert: 4 5 acquisition to the extent that the property of a kind referred to in 6 section 72(a) to (d) held by the partnership, or in which the 7 partnership has an indirect interest under section 73, is farming 8 property. 9 10 37. Section 100 amended 11 (1) In section 100: 12 (a) delete "A reference" and insert: 13 14 (1) A reference 15 16 (b) in paragraph (c) after "brother or sister of the person or" 17 insert: 18 19 a child or 20 21 (c) in paragraph (f) delete "(d)," and insert: 22 23 (d); or 24 25 (d) after paragraph (f) insert: 26 27 (g) a brother or sister of the person's spouse or of 28 the person's de facto partner of 2 years; or 29 (h) the spouse or de facto partner of 2 years of a 30 brother or sister to whom paragraph (g) applies, 31 page 37 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 38 1 (2) At the end of section 100 insert: 2 3 (2) A reference in this Subdivision to a family member is 4 to a family member acting in their own capacity and 5 not as agent, trustee or otherwise on behalf of any other 6 person. 7 8 38. Section 101 amended 9 In section 101: 10 (a) delete paragraph (a) and insert: 11 12 (a) a family member of the transferor; or 13 14 (b) in paragraph (b) delete "the beneficial owner of the trust 15 property under the trust" and insert: 16 17 each beneficiary of the trust 18 19 (c) delete paragraph (c)(i) and insert: 20 21 (i) each beneficiary of the trust is the 22 transferor or a family member of the 23 transferor; and 24 (ia) the transferor is not the only beneficiary 25 of the trust; and 26 27 39. Section 102 amended 28 (1) Delete section 102(3)(a) to (c) and insert: 29 30 (a) personally or with others; or page 38 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 39 1 (b) through a trust or corporation (an entity) to 2 which the transferor or transferee, as is 3 relevant, is related under section 102A; or 4 (c) through a combination of entities to which the 5 transferor or transferee, as is relevant, is related 6 under section 102A. 7 8 (2) Delete section 102(4) and (5) and insert: 9 10 (4) The Commissioner may treat the requirement in 11 subsection (2)(a) as being satisfied, even though any of 12 the transferors was not using the farming property in 13 the business of primary production immediately before 14 the transaction took place, if the Commissioner is 15 satisfied that -- 16 (a) the relevant transferor had previously used the 17 farming property in the business of primary 18 production; and 19 (b) a family member of the relevant transferor, or 20 an entity to which a family member of the 21 relevant transferor is related under 22 section 102A, was using the farming property 23 in the business of primary production 24 immediately before the transaction took place. 25 26 (3) In section 102(6) delete "subsection (2)," and insert: 27 28 this section, 29 page 39 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 40 1 40. Section 102A inserted 2 After section 102 insert: 3 4 102A. Related entities for s. 102 5 (1) For the purposes of section 102(3), a transferor is 6 related to an entity that is -- 7 (a) a trust (other than a unit trust scheme) if the 8 transferor is a beneficiary of the trust and every 9 other beneficiary is a family member of the 10 transferor; or 11 (b) a unit trust scheme if the transferor holds a unit 12 in the unit trust scheme and every other person 13 who holds a unit in the unit trust scheme is a 14 family member of the transferor; or 15 (c) a corporation if the transferor is a shareholder 16 in the corporation and every other shareholder 17 is a family member of the transferor. 18 (2) For the purposes of section 102(3), a transferee is 19 related to an entity that is -- 20 (a) a trust (other than a unit trust scheme or a 21 discretionary trust) if the transferee is a 22 beneficiary of the trust and every other 23 beneficiary is the transferor or a family member 24 of the transferor; or 25 (b) a discretionary trust if -- 26 (i) the transferee is a beneficiary of the 27 trust; and 28 (ii) every other beneficiary is the transferor 29 or a family member of the transferor; 30 and 31 (iii) the transferor does not control the 32 discretionary trust; 33 or page 40 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 41 1 (c) a unit trust scheme if the transferee holds a unit 2 in the unit trust scheme and every other person 3 who holds a unit in the unit trust scheme is the 4 transferor or a family member of the transferor; 5 or 6 (d) a corporation if the transferee is a shareholder 7 in the corporation and every other shareholder 8 is the transferor or a family member of the 9 transferor. 10 (3) If a transferee is a trustee of a trust to which 11 section 101(b) applies, subsection (2) applies to the 12 transferee as if the references to the transferee in 13 subsection (2)(a), (b), (c) and (d) were references to 14 each beneficiary of that trust. 15 (4) For the purposes of section 102(4)(b), subsection (2) 16 applies in determining whether a family member of a 17 relevant transferor is related to an entity as if the family 18 member were a transferee referred to in that subsection. 19 20 41. Section 105 amended 21 In section 105(1)(a) after "person that is not" insert: 22 23 the transferor or 24 25 42. Section 107 amended 26 In section 107(1) in the definition of replacement transaction 27 paragraph (c) delete "duty;" and insert: 28 29 tax; 30 page 41 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 43 1 43. Section 113A inserted 2 At the end of Chapter 2 Part 6 Division 1 Subdivision 4 insert: 3 4 113A. Certain incorporated association transactions 5 (1) In this section -- 6 Commissioner has the meaning given in the 7 Associations Incorporation Act 2015 section 3; 8 prescribed body corporate has the meaning given in 9 the Associations Incorporation Act 2015 section 92; 10 surplus property has the meaning given in the 11 Associations Incorporation Act 2015 section 3; 12 surplus receiving body means a body described in the 13 Associations Incorporation Act 2015 section 24(1). 14 (2) Duty is not chargeable on the following transactions -- 15 (a) a vesting of dutiable property by, or expressly 16 authorised by, statute law (as referred to in 17 section 11(1)(d)(i)) in an incorporated 18 association (that is an amalgamation of 2 or 19 more former associations) on the incorporation 20 of the association under the Associations 21 Incorporation Act 2015 Part 7; 22 (b) a transfer of, or an agreement for the transfer 23 of, dutiable property from an incorporated 24 association to a prescribed body corporate on 25 the transfer of incorporation by the association 26 under the Associations Incorporation Act 2015 27 Part 6; 28 (c) a transfer of, or an agreement for the transfer 29 of, dutiable property that is surplus property to 30 a surplus receiving body -- 31 (i) from an incorporated association on the 32 winding up of the association under the page 42 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 44 1 Associations Incorporation Act 2015 2 Part 9; or 3 (ii) from an incorporated association under 4 a distribution plan approved under the 5 Associations Incorporation Act 2015 6 Part 10 Division 1; or 7 (iii) where the property is vested in the State 8 under the Associations Incorporation 9 Act 2015 section 148(1)(a), from the 10 Commissioner, acting under 11 subsection (1)(b) of that section. 12 13 44. Section 116 amended 14 After section 116(2) insert: 15 16 (3) Subsection (1) does not apply to a subsequent transfer 17 to which section 118(1) applies. 18 19 45. Section 118 replaced 20 Delete section 118 and insert: 21 22 118. Transfers to and from bare trustee 23 (1) Nominal duty is chargeable on a transfer (the 24 subsequent transfer) if -- 25 (a) there has been a dutiable transaction (the 26 original transfer) that is a transfer of dutiable 27 property from a person (the transferor) to 28 another person who is to hold the property 29 solely as a bare trustee for the transferor; and 30 (b) any of the following transactions (the endorsed 31 transaction) is duty endorsed -- 32 (i) the original transfer; page 43 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 45 1 (ii) the agreement for the original transfer; 2 (iii) the declaration of trust; 3 and 4 (c) the subsequent transfer is a transfer of the 5 dutiable property back to the transferor or to a 6 person to whom the transferor's beneficial 7 interest in the property has been transmitted by 8 death or bankruptcy; and 9 (d) the Commissioner is satisfied that, between the 10 original transfer and the subsequent transfer, no 11 person other than the transferor has held a 12 beneficial interest in the dutiable property 13 (other than the trustee's right of indemnity). 14 (2) In subsection (1) -- 15 bare trustee -- 16 (a) means a trustee of a trust, other than a unit trust 17 scheme or a discretionary trust, if the trustee 18 has no active duties or powers in relation to the 19 trust other than conveying the dutiable property 20 to the transferor or as directed by the transferor; 21 and 22 (b) includes a trustee appointed in substitution for a 23 trustee or a trustee appointed in addition to a 24 trustee or trustees. 25 (3) If nominal duty is chargeable on a subsequent transfer 26 under subsection (1), nominal duty is also chargeable 27 on the endorsed transaction. 28 (4) The Commissioner, on the application of the taxpayer, 29 is to reassess the liability to duty of the endorsed 30 transaction in accordance with subsection (3). 31 (5) The limitations as to time in the Taxation 32 Administration Act section 17 do not apply in respect 33 of a reassessment under subsection (4). page 44 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 45 1 118A. Transfers to and from bare trustee: failure to lodge 2 subsequent transfer 3 (1) This section applies if -- 4 (a) under section 118, nominal duty is chargeable 5 on a subsequent transfer and an endorsed 6 transaction referred to in that section; and 7 (b) the subsequent transfer is required to be lodged 8 for registration under -- 9 (i) the Transfer of Land Act 1893; or 10 (ii) the Registration of Deeds Act 1856; or 11 (iii) the Mining Act 1978; 12 and 13 (c) the liability to duty of the subsequent transfer is 14 assessed in accordance with section 118(1) on 15 the basis that nominal duty is chargeable; and 16 (d) the liability to duty of the endorsed transaction 17 is reassessed in accordance with section 118(3) 18 on the basis that nominal duty is chargeable; 19 and 20 (e) the subsequent transfer is not lodged for 21 registration under the Transfer of Land 22 Act 1893, the Registration of Deeds Act 1856 or 23 the Mining Act 1978 (whichever is relevant) 24 within 60 days after it is duty endorsed. 25 (2) Despite section 118(1) and (3), nominal duty is not 26 chargeable on the subsequent transfer or the endorsed 27 transaction. 28 (3) The Commissioner must make any reassessment 29 necessary as a result of the operation of subsection (2). 30 (4) The limitations as to time in the Taxation 31 Administration Act section 17 do not apply in respect 32 of a reassessment under subsection (3). 33 page 45 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 46 1 46. Chapter 2 Part 6 Division 2 Subdivision 1A inserted 2 After Chapter 2 Part 6 Division 2 Subdivision 1 insert: 3 4 Subdivision 1A -- Transfers to facilitate subdivision of land 5 120A. Transfers to facilitate subdivision of land 6 (1) Nominal duty is chargeable on a dutiable transaction 7 (the original transfer) if -- 8 (a) the transaction is a transfer, or agreement for 9 the transfer, of land in Western Australia from a 10 person (the original transferor) to another 11 person; and 12 (b) the Commissioner is satisfied that -- 13 (i) the transfer is for the sole purpose of 14 facilitating a subdivision of the land; 15 and 16 (ii) after the subdivision there is to be a 17 transfer back to the original transferor of 18 the land or part of the land. 19 (2) If nominal duty is chargeable on an original transfer 20 under subsection (1), nominal duty is also chargeable 21 on a transfer (the subsequent transfer) of the land, or 22 part of the land, back to the original transferor after the 23 subdivision. 24 (3) If the land the subject of the subsequent transfer 25 includes land that was not the subject of the original 26 transfer, then despite subsection (2) nominal duty is 27 chargeable on the subsequent transfer only to the extent 28 that it relates to land that is also the subject of the 29 original transfer. page 46 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 46 1 120B. Land retained by transferee following transfer to 2 facilitate subdivision 3 (1) This section applies if -- 4 (a) nominal duty is chargeable under 5 section 120A(1) on an original transfer of land 6 from a person (the original transferor) to 7 another person (the original transferee) for the 8 purpose of facilitating a subdivision of the land; 9 and 10 (b) after the subdivision, there is a transfer (the 11 subsequent transfer) of the land, or part of the 12 land, back to the original transferor; and 13 (c) either or both of the following applies -- 14 (i) the land the subject of the subsequent 15 transfer is only a part of the land the 16 subject of the original transfer and the 17 remainder of that land is retained by the 18 original transferee after the subsequent 19 transfer; 20 (ii) after the subsequent transfer, the land 21 the subject of the subsequent transfer, or 22 part of that land, is held jointly by the 23 original transferor with the original 24 transferee. 25 (2) When the subsequent transfer is made, there is taken to 26 be a dutiable transaction consisting of the transfer to 27 the original transferee of the following -- 28 (a) any land the subject of the original transfer that 29 is not also the subject of the subsequent 30 transfer; 31 (b) the original transferee's interest in any land 32 held jointly with the original transferor as 33 referred to in subsection (1)(c)(ii). page 47 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 46 1 (3) In determining the dutiable value of a dutiable 2 transaction under subsection (2) (a deemed 3 transaction), the unencumbered value of the dutiable 4 property the subject of the deemed transaction is the 5 unencumbered value of that property when liability for 6 duty arose on the original transfer. 7 (4) Subsection (1)(c)(i) does not apply if the original 8 transferee is to transfer the remainder of the land to 9 another person for the purposes of the subdivision. 10 120C. Transfers to facilitate subdivision: failure to lodge 11 subsequent transfer within 5 years 12 (1) If a subsequent transfer referred to in section 120A is 13 not lodged for registration under the Transfer of Land 14 Act 1893 within the period of 5 years after the day on 15 which the original transfer referred to in that section 16 was registered under the Transfer of Land Act 1893, 17 then, despite that section, nominal duty is not 18 chargeable on the original transfer or the subsequent 19 transfer. 20 (2) The Commissioner may on application extend the 21 period of 5 years referred to in subsection (1) and may 22 do so on any conditions the Commissioner thinks fit. 23 (3) The Commissioner must make any reassessment 24 necessary as a result of the operation of subsection (1). 25 (4) The limitations as to time in the Taxation 26 Administration Act section 17 do not apply in respect 27 of a reassessment under subsection (3). page 48 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 46 1 120D. Subdivisions of land excluded from s. 120A and 2 120B 3 Sections 120A and 120B do not apply in relation to -- 4 (a) a subdivision under -- 5 (i) before the coming into operation of the 6 Strata Titles Amendment Act 2018 7 section 7 -- a strata plan registered 8 under the Strata Titles Act 1985 (other 9 than under a strata plan for a single tier 10 strata scheme as defined in the Strata 11 Titles Act 1985 section 3(1)); or 12 (ii) after the coming into operation of the 13 Strata Titles Amendment Act 2018 14 section 7 -- a strata scheme as defined 15 in the Strata Titles Act 1985 section 3(1) 16 (other than a single tier strata scheme as 17 defined in the Strata Titles Act 1985 18 Schedule 2A clause 3); 19 or 20 (b) a subdivision of land in circumstances 21 prescribed by the regulations. 22 120E. References to transfer of land back to person 23 For the purposes of sections 120A and 120B, land that 24 is transferred by a person for the purposes of a 25 subdivision of the land is to be treated as being 26 transferred back to the person after the subdivision -- 27 (a) even though there will be a change in the legal 28 description of the land between the transfers; 29 and 30 (b) whether or not, after the transfer back to the 31 person, the land is to be held jointly with 1 or 32 more other persons. 33 page 49 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 47 1 47. Section 139 amended 2 In section 139(2): 3 (a) in paragraph (c)(ii) delete "1972." and insert: 4 5 1972; 6 7 (b) after paragraph (c) insert: 8 9 (d) a partnership acquisition, to the extent that -- 10 (i) the partnership acquisition gives effect 11 to a distribution in the estate of a 12 deceased person; and 13 (ii) there is no consideration for the 14 partnership acquisition. 15 16 48. Section 139A inserted 17 After section 139 insert: 18 19 139A. Some transfers and vestings under orders made 20 under Guardianship and Administration Act 1990 21 (1) In this section -- 22 administration order means -- 23 (a) an administration order (as defined in the 24 Guardianship and Administration Act 1990 25 section 3(1)); or 26 (b) an order or instrument referred to in 27 paragraph (b) or (c) of the definition of 28 administrator in this subsection; page 50 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 48 1 administrator means -- 2 (a) an administrator (as defined in the 3 Guardianship and Administration Act 1990 4 section 3(1)); or 5 (b) a person acting under the authority of an order 6 made under the Guardianship and 7 Administration Act 1990 section 66; or 8 (c) the Public Trustee acting under the authority of 9 an instrument referred to in the Guardianship 10 and Administration Act 1990 section 83B. 11 (2) Nominal duty applies to a dutiable transaction that 12 is -- 13 (a) a transfer to an administrator of dutiable 14 property of the person to whom the 15 administration order relates (the represented 16 person) made under the authority of the 17 administration order; or 18 (b) a vesting in an administrator of dutiable 19 property of a person to whom the 20 administration order relates (the represented 21 person) by, or as a consequence of, an order of 22 the State Administrative Tribunal under the 23 Guardianship and Administration Act 1990. 24 (3) If nominal duty is chargeable on a transfer or vesting of 25 dutiable property under subsection (2), nominal duty is 26 also chargeable on -- 27 (a) any transfer of the dutiable property back from 28 an administrator to the represented person; or 29 (b) any subsequent vesting in the represented 30 person of the dutiable property by, or as a 31 consequence of, an order of the State 32 Administrative Tribunal under the 33 Guardianship and Administration Act 1990. 34 page 51 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 49 1 49. Section 141 amended 2 After section 141(2) insert: 3 4 (3) For the purposes of this Division, a person is a 5 substituted transferee in relation to a dutiable 6 transaction if -- 7 (a) the dutiable transaction is an agreement for the 8 transfer of dutiable property referred to in 9 section 11(1)(b); and 10 (b) due to the operation of section 42(2) or (4), 11 duty is not chargeable on the transfer to the 12 person of the dutiable property under the 13 agreement. 14 15 50. Section 142A amended 16 In section 142A(3)(b) delete "section 14AA(2)(a)(ii)" and 17 insert: 18 19 section 14AA(2)(a) 20 21 51. Section 142 amended 22 (1) Delete section 142(1) and insert: 23 24 (1) A reference in this Division to a first home owner 25 concessional transaction is to a transfer of, or an 26 agreement for the transfer of, dutiable property 27 where -- 28 (a) either -- 29 (i) each transferee is a concessional first 30 home owner; or page 52 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 52 1 (ii) if the transaction is an agreement for 2 transfer in relation to which there are 3 1 or more substituted transferees -- 4 each substituted transferee is a 5 concessional first home owner; 6 and 7 (b) the unencumbered value of the land, or the land 8 and home, the subject of the transaction does 9 not exceed -- 10 (i) if there is no home on the land -- 11 $400 000; or 12 (ii) otherwise -- $530 000. 13 14 (2) In section 142(2): 15 (a) in paragraph (c) delete "transaction," and insert: 16 17 transaction. 18 19 (b) delete the passage that begins with "and includes" and 20 ends with "subject of the transaction." 21 52. Section 146 amended 22 Delete section 146(b) and insert: 23 24 (b) the FHOG Act applies to and in relation to an 25 application under this Division, to the extent 26 that it can be applied for those purposes, as 27 if -- 28 (i) a reference in the FHOG Act to an 29 application or an applicant were a 30 reference to the application or applicant 31 under this Division; and page 53 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 53 1 (ii) the reference in the FHOG Act 2 section 37(1)(a) to functions of the 3 Commissioner were a reference to 4 functions of the Commissioner related 5 to an application under this Division; 6 and 7 8 53. Section 147A amended 9 After section 147A(2) insert: 10 11 (3) For the purposes of this Division, a person is a 12 substituted transferee in relation to an eligible 13 transaction if -- 14 (a) the eligible transaction is of a kind referred to 15 in section 147B(b); and 16 (b) due to the operation of section 42(2), (4) or (5), 17 duty is not chargeable on the transfer to the 18 person of the dutiable property under the 19 agreement. 20 21 54. Section 147D amended 22 In section 147D: 23 (a) after "Land" insert: 24 25 that is the subject of an eligible transaction 26 27 (b) in paragraphs (b) to (d) delete "taxpayer" (each 28 occurrence) and insert: 29 30 taxpayer, or a substituted transferee in relation to the 31 eligible transaction, 32 page 54 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 55 1 55. Section 147F amended 2 (1) In section 147F(2) delete "taxpayer --" and insert: 3 4 taxpayer or a substituted transferee in relation to the eligible 5 transaction -- 6 7 (2) In section 147F(4) delete "taxpayer --" and insert: 8 9 taxpayer, or a substituted transferee in relation to the eligible 10 transaction for the land -- 11 12 56. Section 148 amended 13 (1) In section 148 delete "In this Chapter," and insert: 14 15 (1) In this Chapter, 16 17 (2) In section 148 insert in alphabetical order: 18 19 further interest means an interest in a landholder 20 acquired by a relevant acquisition to which 21 section 163(1)(c) or (d) applies; 22 land asset means any of the following -- 23 (a) land; 24 (b) a fixed infrastructure control right; 25 (c) a derivative mining right; 26 (d) subject to section 204A, a fixed infrastructure 27 access right; 28 page 55 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 57 1 (3) In section 148 in the definition of relevant acquisition delete 2 "sections 163 and 164;" and insert: 3 4 section 163(1); 5 6 (4) In section 148 in the definition of unencumbered value delete 7 "section 36 as applied by section 150." and insert: 8 9 sections 36 and 36A as applied by sections 150 and 204C. 10 11 (5) At the end of section 148 insert: 12 13 (2) For the purposes of this Chapter, a land asset referred 14 to in paragraph (b), (c) or (d) of the definition of land 15 asset in subsection (1) is taken to be a land asset in 16 Western Australia. 17 18 57. Section 149 amended 19 (1) In section 149(1): 20 (a) delete "to land" and insert: 21 22 to land assets, chattels, or land assets and chattels, 23 24 (b) in paragraph (a) delete "land," and insert: 25 26 land assets, chattels, or land assets and chattels, 27 28 (c) in paragraph (b) delete "land" and insert: 29 30 land assets, chattels, or land assets and chattels, 31 page 56 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 58 1 (2) Delete section 149(2A) to (4) and insert: 2 3 (2) In determining the entitlement of an entity to land 4 assets, chattels, or land assets and chattels, for the 5 purposes of this Chapter -- 6 (a) an entity that is a partnership is taken to be 7 entitled to land assets or chattels if the 8 partnership property is or includes those land 9 assets or chattels; and 10 (b) an entity that is a unit trust scheme or the 11 trustee of a discretionary trust is taken to be 12 entitled to land assets or chattels if the trust 13 property is or includes those land assets or 14 chattels. 15 16 Note: The heading to amended section 149 is to read: 17 Determining entitlement to land assets and chattels 18 58. Section 149A inserted 19 After section 149 insert: 20 21 149A. Determining entitlement to land assets: fixtures and 22 mining tenement fixtures 23 (1) In this section -- 24 mining tenement fixture, in relation to a mining 25 tenement, means a thing that -- 26 (a) under the authority (whether direct or indirect) 27 of the mining tenement, is fixed to land that is 28 the subject of the mining tenement; and 29 (b) would be part of that land as a fixture if the 30 mining tenement were a freehold estate in the 31 subject land. page 57 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 59 1 (2) In determining the entitlement of an entity to a land 2 asset that is land, anything that is part of the land as a 3 fixture is to be taken into account even if the fixture is, 4 or purports to be, the subject of an entitlement separate 5 from the ownership of the rest of the land. 6 (3) In determining the entitlement of an entity to a land 7 asset that is a mining tenement or an estate or interest 8 in a mining tenement (a mining tenement land asset), 9 anything that is a mining tenement fixture in relation to 10 the mining tenement is to be taken into account even if 11 the mining tenement fixture is, or purports to be, the 12 subject of an entitlement separate from the ownership 13 of the rest of the mining tenement land asset. 14 (4) Subsection (2) or (3) (whichever is relevant) does not 15 apply for the purposes of determining the land assets to 16 which an entity is entitled in relation to an acquisition 17 if the fixture or the mining tenement fixture would, 18 apart from that subsection, be taken into account 19 separately in relation to that acquisition in determining 20 the land assets to which that entity or another entity is 21 entitled. 22 (5) In this section, a reference to land does not include 23 anything that is land under section 3A(1)(b), (c), (f) or 24 (g). 25 26 59. Section 150 amended 27 In section 150: 28 (a) delete "Section 36 applies," and insert: 29 30 Sections 36 and 36A apply, 31 page 58 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 60 1 (b) after "land" insert: 2 3 assets 4 5 Note: The heading to amended section 150 is to read: 6 Unencumbered value of land assets or chattels 7 60. Section 152 amended 8 (1) In section 152(2) delete "this extent, namely that the trustee of a 9 discretionary trust or a partnership may be a linked entity under 10 section 156," and insert: 11 12 the extent set out in subsection (3), 13 14 (2) After section 152(2) insert: 15 16 (3) The trustee of a discretionary trust or a partnership may 17 be -- 18 (a) an entity in an ownership chain referred to in 19 section 154A (other than the main entity 20 referred to in that section); or 21 (b) an entity referred to in section 154B; or 22 (c) a linked entity under section 156; or 23 (d) a relevant entity referred to in 24 section 156A(1)(b)(i). 25 26 61. Section 153 amended 27 (1) In section 153(1) after "an interest" insert: 28 29 (other than a reference to an indirect interest) 30 page 59 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 62 1 (2) In section 153(3) delete "section 159." and insert: 2 3 sections 153A and 153B. 4 5 62. Sections 153A and 153B inserted 6 After section 153 insert: 7 8 153A. References to interest in, or held by, trustee of 9 discretionary trust 10 For the purposes of section 154A, if a trustee of a 11 discretionary trust is an entity in an ownership chain 12 referred to in that section -- 13 (a) an entity has an interest in the trustee of the 14 discretionary trust if the entity is a potential 15 beneficiary under the trust; and 16 (b) the trustee of the discretionary trust has an 17 interest in an entity if the trust property is or 18 includes the interest; and 19 (c) the percentage of the interest that the entity 20 immediately above the trustee of the 21 discretionary trust in the ownership chain has in 22 the trustee of the discretionary trust is taken to 23 be -- 24 (i) a 100% interest; or 25 (ii) if the Commissioner decides in a 26 particular case that the operation of 27 subparagraph (i) would be 28 inequitable -- an interest of some other 29 percentage, or no interest, as determined 30 by the Commissioner. page 60 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 63 1 153B. References to interest in, or held by, partnership 2 For the purposes of section 154A, if a partnership is an 3 entity in an ownership chain referred to in that 4 section -- 5 (a) an entity has an interest in the partnership if the 6 entity is a partner in the partnership or, in the 7 case of a unit trust scheme, the trustee, as 8 trustee of the scheme, is a partner in the 9 partnership; and 10 (b) the partnership has an interest in an entity if the 11 partnership property is or includes the interest; 12 and 13 (c) the percentage of the interest that the entity 14 immediately above the partnership in the 15 ownership chain has in the partnership is taken 16 to be the greater of the following -- 17 (i) the percentage of the capital of the 18 partnership that the entity has 19 contributed or is required to contribute; 20 (ii) the percentage of the losses of the 21 partnership that the entity is required to 22 bear. 23 24 63. Section 154 amended 25 (1) In section 154(3) delete "section 158 or 159" and insert: 26 27 section 153A(c) or 153B(c) 28 29 (2) In section 154(6)(d) delete "section 163 or 164," and insert: 30 31 section 163, 32 page 61 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 64 1 Note: The heading to amended section 154 is to read: 2 Calculating interest in entity 3 64. Sections 154A and 154B inserted 4 At the end of Chapter 3 Part 3 insert: 5 6 154A. Calculating total direct or indirect interest in entity 7 (1) This section applies where it is necessary in relation to 8 an acquisition of an interest in an entity (the main 9 entity) to calculate the total direct or indirect interest 10 that one entity (a higher entity) has in another entity (a 11 lower entity). 12 (2) A higher entity has a direct or indirect interest in a 13 lower entity if there are 1 or more ownership chains 14 between the higher entity and the lower entity. 15 (3) An ownership chain exists if -- 16 (a) the higher entity has an interest as defined in 17 whichever of section 153, 153A or 153B is 18 applicable (a direct interest) in the lower entity; 19 or 20 (b) there is a series of at least 3 entities, starting 21 with the higher entity and ending with the 22 lower entity, each of which successively has a 23 direct interest in the next. 24 (4) The percentage of the interest that a higher entity has in 25 a lower entity through a particular ownership chain 26 is -- 27 (a) for an ownership chain referred to in 28 subsection (3)(a) -- the percentage of the 29 higher entity's direct interest in the lower entity 30 calculated under whichever of section 153A(c), 31 153B(c) or 154 is applicable; or page 62 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 64 1 (b) for an ownership chain referred to in 2 subsection (3)(b) -- the percentage calculated 3 by multiplying the percentage of the higher 4 entity's direct interest in the entity immediately 5 below it in the ownership chain by the 6 percentage of the direct interest that each entity 7 in the ownership chain between the higher 8 entity and the lower entity has in the entity 9 immediately below it in the ownership chain. 10 (5) The percentage of the total direct or indirect interest 11 that a higher entity has in a lower entity is the 12 aggregate of the percentage interests calculated under 13 subsection (4) for each ownership chain between the 14 higher entity and the lower entity. 15 154B. Determining interest in entity: uncompleted 16 agreements 17 In determining the interest that an entity has in another 18 entity for the purposes of section 154A, 156, or 19 156A -- 20 (a) if the entity has entered into an agreement to 21 acquire an interest in the other entity, the 22 agreement is to be regarded as having been 23 completed even if it has not yet been 24 completed; and 25 (b) if the entity has entered into an agreement to 26 dispose of an interest in the other entity but the 27 agreement has not yet been completed, the 28 agreement is to be disregarded. 29 page 63 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 65 1 65. Section 155 amended 2 (1) In section 155(1) delete "section 163 or 164." and insert: 3 4 section 163. 5 6 (2) In section 155(2): 7 (a) delete "A corporation" and insert: 8 9 An entity 10 11 (b) in paragraph (a) delete "land in Western Australia or an 12 entity linked to the corporation" and insert: 13 14 land assets in Western Australia or an entity linked to 15 the entity 16 17 (3) Delete section 155(3) and (4) and insert: 18 19 (3) An entity to which subsection (2) does not apply is a 20 landholder if -- 21 (a) immediately before the acquisition, it is entitled 22 to land assets, chattels, or land assets and 23 chattels, in Western Australia or an entity 24 linked to the entity is so entitled; and 25 (b) the acquisition is part of a relevant arrangement 26 under subsection (4). 27 (4) An acquisition of an interest in an entity (the relevant 28 entity) is part of a relevant arrangement for the 29 purposes of subsection (3)(b) if -- 30 (a) there are 1 or more acquisitions of interests in 31 1 or more other entities (the other entities), page 64 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 65 1 which may occur before or after the acquisition 2 of the interest in the relevant entity; and 3 (b) the acquisition of the interest in the relevant 4 entity and the acquisitions of the interests in the 5 other entities together form, evidence, give 6 effect to or arise from what is, substantially one 7 arrangement; and 8 (c) either or both of the following applies -- 9 (i) at least 1 of the other entities is, at the 10 time the acquisition of the interest in 11 that entity occurs, a landholder to which 12 subsection (2) applies; 13 (ii) the total value of all of the entitlements 14 to land assets in Western Australia 15 referred to in subsection (4A) is 16 $2 000 000 or more. 17 (4A) For the purposes of subsection (4)(c)(ii), the total value 18 of the following entitlements is to be determined -- 19 (a) the entitlements to land assets in Western 20 Australia, immediately before the acquisition of 21 the interest in the relevant entity, of the relevant 22 entity and each entity linked to the relevant 23 entity; 24 (b) for each of the other entities -- the entitlements 25 to land assets in Western Australia, 26 immediately before the acquisition of the 27 interest in that other entity, of that other entity 28 and each entity linked to that other entity. 29 page 65 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 66 1 (4) In section 155(5): 2 (a) delete paragraph (a) and insert: 3 4 (a) land assets to which an entity is entitled are to 5 be valued at their unencumbered value; and 6 7 (b) in paragraph (b) after "land" insert: 8 9 assets 10 11 (5) After section 155(5) insert: 12 13 (6) An entity that, under subsection (3), is a landholder in 14 relation to an acquisition is taken to be a landholder in 15 relation to that acquisition even if the acquisition does 16 not become part of a relevant arrangement referred to 17 in subsection (4) until after the acquisition occurs. 18 19 66. Section 156 amended 20 (1) In section 156(1) delete "section 155(2)(a) or (3)(a)." and insert: 21 22 section 155. 23 24 (2) In section 156(2) delete "an ownership chain" and insert: 25 26 a linkage chain 27 28 (3) In section 156(3) delete "An ownership chain" and insert: 29 30 A linkage chain 31 page 66 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 67 1 (4) Delete section 156(4) to (6) and insert: 2 3 (4) An entity is linked to another entity if -- 4 (a) where the other entity is a listed corporation or 5 a listed unit trust scheme -- it has an interest in 6 the other entity of at least 90%; or 7 (b) in any other case -- it has a total direct or 8 indirect interest in the other entity, calculated 9 under section 154A, of at least 50%. 10 11 (5) In section 156(7) delete "subsection (4), (5) or (6)." and insert: 12 13 subsection (4). 14 15 (6) Delete section 156(8). 16 67. Section 156A inserted 17 After section 156 insert: 18 19 156A. Linked entities: acquisitions forming one 20 arrangement 21 (1) Subsection (3) applies if -- 22 (a) there are acquisitions (the related acquisitions) 23 of interests in 2 or more entities (the main 24 entities) that together form, evidence, give 25 effect to or arise from what is, substantially one 26 arrangement; and 27 (b) either -- 28 (i) each of the main entities has a direct or 29 indirect interest (as referred to in 30 section 154A(2)) in an entity (the 31 relevant entity) that is not a listed page 67 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 67 1 corporation or listed unit trust scheme; 2 or 3 (ii) one of the main entities (the relevant 4 entity) is an entity that is not a listed 5 corporation or listed unit trust scheme 6 and each of the other main entities has a 7 direct or indirect interest (as referred to 8 in section 154A(2)) in the relevant 9 entity; 10 and 11 (c) there is at least 1 main entity that has a total 12 direct or indirect interest in the relevant entity, 13 calculated under section 154A, that is less than 14 50%; and 15 (d) the aggregated direct or indirect interest in the 16 relevant entity determined under subsection (2) 17 is at least 50%. 18 (2) The aggregated direct or indirect interest for the 19 purposes of subsection (1)(d) is -- 20 (a) if subsection (1)(b)(i) applies, the aggregate of 21 the total direct or indirect interests, calculated 22 under section 154A, that each of the main 23 entities has in the relevant entity; or 24 (b) if subsection (1)(b)(ii) applies, the aggregate 25 of -- 26 (i) the interests in the relevant entity 27 acquired by each related acquisition that 28 is an acquisition of an interest in the 29 relevant entity; and 30 (ii) the total direct or indirect interests, 31 calculated under section 154A, that each 32 of the main entities (other than the 33 relevant entity) has in the relevant 34 entity. page 68 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 68 1 (3) The relevant entity is taken, in relation to a related 2 acquisition of an interest in a main entity to which 3 subsection (1)(c) applies, to be linked to that main 4 entity under section 156(2). 5 (4) A relevant entity that is linked to a main entity for the 6 purposes of an acquisition because of subsection (3) is 7 taken to be linked in relation to that acquisition even if 8 that subsection does not become applicable in relation 9 to the acquisition until after the acquisition occurs. 10 (5) For the purposes of this section, the direct or indirect 11 interest, or total direct or indirect interest, that a main 12 entity has in the relevant entity is to be determined 13 immediately after the related acquisition of an interest 14 in that main entity. 15 16 68. Section 157 amended 17 (1) In section 157(1) after "land" insert: 18 19 assets 20 21 (2) In section 157(2): 22 (a) after "land" insert: 23 24 assets 25 26 (b) delete "interest in the linked entity." and insert: 27 28 total direct or indirect interest in the linked entity 29 calculated under section 154A. 30 page 69 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 69 1 (3) Delete section 157(3) and (4). 2 Note: The heading to amended section 157 is to read: 3 Value of land assets of linked entity for s. 155 4 69. Sections 158 and 159 deleted 5 Delete sections 158 and 159. 6 70. Section 160 amended 7 After section 160(3) insert: 8 9 (4) This section is subject to section 160A. 10 11 Note: The heading to amended section 160 is to read: 12 How person acquires interest in entity 13 71. Section 160A inserted 14 At the end of Chapter 3 Part 5 Division 1 insert: 15 16 160A. Acquisition of interest by merger of corporations 17 (1) If a corporation (company A) has an interest in an 18 entity and there is a merger of company A with and 19 into another corporation (company B) in circumstances 20 where neither subsection (2) nor subsection (3) applies, 21 company B is taken to acquire that interest. 22 (2) If 2 or more corporations (the merging corporations) 23 merge in circumstances where another corporation 24 (company C) results as a consequence of the merger, 25 and any of the merging corporations has an interest in 26 an entity, company C is taken to acquire that interest. 27 (3) If 2 or more corporations (the merging corporations) 28 merge with and into each other in circumstances where 29 each of the merging corporations continues in page 70 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 72 1 existence, and any of the merging corporations has an 2 interest in an entity, the merging corporations are taken 3 to acquire, jointly, 50% of that interest. 4 5 72. Section 161 amended 6 In section 161 delete the definition of significant interest and 7 insert: 8 9 significant interest, in a landholder, means -- 10 (a) if the landholder is a listed landholder -- an 11 interest of at least 90%; or 12 (b) otherwise -- an interest of at least 50%. 13 14 73. Section 162 amended 15 (1) In section 162(1): 16 (a) delete "sections 163 and 164" and insert: 17 18 section 163 19 20 (b) in paragraph (h) delete "form or arise from substantially 21 one transaction or one series of transactions;" and insert: 22 23 form, evidence, give effect to or arise from what is, 24 substantially one arrangement; 25 26 (2) After section 162(1) insert: 27 28 (1A) Subsection (1)(h) and (i) do not apply -- 29 (a) in circumstances where the acquisitions result 30 from a public float; or page 71 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 73 1 (b) in prescribed circumstances. 2 3 (3) In section 162(2): 4 (a) delete "persons, other than related corporations," and 5 insert: 6 7 persons 8 9 (b) delete "sections 163 and 164." and insert: 10 11 section 163. 12 13 (4) Delete section 162(3) and insert: 14 15 (2A) The Commissioner cannot make a determination under 16 subsection (2) in relation to persons or entities that are 17 related persons under subsection (1)(c), (h) or (i). 18 (3) This subsection applies to persons if their interests in 19 the entity -- 20 (a) were acquired independently and are, and will 21 be, employed independently; and 22 (b) were not acquired for a common purpose and 23 are not, and will not be, employed for a 24 common purpose. 25 26 Note: The heading to amended 162 is to read: 27 Related persons for s. 163 page 72 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 74 1 74. Sections 163 and 164 replaced 2 Delete sections 163 and 164 and insert: 3 4 163. Relevant acquisitions 5 (1) An acquisition by a person (the acquirer) of an interest 6 in an entity that is a landholder in relation to the 7 acquisition is a relevant acquisition in any of the 8 following circumstances -- 9 (a) if -- 10 (i) immediately before the acquisition, the 11 acquirer does not have a significant 12 interest in the landholder; and 13 (ii) immediately after the acquisition, the 14 acquirer has a significant interest in the 15 landholder; 16 (b) if -- 17 (i) immediately before the acquisition, the 18 aggregated group interest in the 19 landholder does not amount to a 20 significant interest; and 21 (ii) immediately after the acquisition, the 22 aggregated group interest in the 23 landholder amounts to a significant 24 interest; 25 (c) if -- 26 (i) immediately before the acquisition, the 27 acquirer has a significant interest in the 28 landholder; and 29 (ii) as a result of the acquisition, the 30 acquirer's interest in the landholder 31 increases; page 73 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 75 1 (d) if -- 2 (i) immediately before the acquisition, the 3 aggregated group interest in the 4 landholder amounts to a significant 5 interest; and 6 (ii) as a result of the acquisition, the 7 aggregated group interest in the 8 landholder increases. 9 (2) In subsection (1) -- 10 aggregated group interest means the aggregate of -- 11 (a) the interest (if any) that the acquirer has in the 12 landholder; and 13 (b) if 1 or more related persons have an interest in 14 the landholder -- all of those interests. 15 16 75. Sections 167 and 168 replaced 17 Delete sections 167 and 168 and insert: 18 19 167. Exemption or reduction of duty if nominal duty 20 would be chargeable on transfer 21 (1) In this section -- 22 acquiring person, in relation to an acquisition, means 23 the person making the acquisition; 24 notional transfer, in relation to an acquisition, means a 25 notional transaction consisting of the transfer, at the 26 time of the acquisition, by the relinquishing person to 27 the acquiring person of the relevant land assets, as if 28 the relevant land assets were those of the relinquishing 29 person; 30 relevant land assets, in relation to an acquisition of an 31 interest in a landholder, means the land assets to which page 74 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 75 1 the landholder, and each linked entity in respect of the 2 landholder, are entitled; 3 relinquishing person, in relation to an acquisition, 4 means the person from whom the interest in the 5 landholder was acquired. 6 (2) This section applies to an acquisition of an interest in a 7 landholder if nominal duty would be chargeable, to any 8 extent, on the notional transfer in relation to the 9 acquisition. 10 (3) If only nominal duty would be chargeable on the 11 notional transfer, the acquisition is exempt. 12 (4) If nominal duty would be chargeable on the notional 13 transfer only to a particular extent, then despite Part 6 14 Division 5, the amount of duty chargeable in respect of 15 the acquisition is the amount of duty calculated under 16 that Division in respect of the acquisition reduced by 17 the same proportion as the proportion of the notional 18 transfer on which nominal duty would be chargeable. 19 (5) If the acquiring person did not acquire the interest in 20 the landholder from another person, the reference to the 21 relinquishing person in the definition of notional 22 transfer in subsection (1) is to be read (according to 23 what is relevant) as a reference to the or a person -- 24 (a) whose interest in the landholder is decreased 25 because of the acquisition; or 26 (b) whose interest in the landholder decreased 27 resulting in the acquisition. 28 Note for this subsection: 29 An acquiring person may acquire an interest in a company 30 by the company issuing shares to the person, or buying 31 back shares of another person. page 75 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 75 1 168. Exemption or reduction of duty if transfer duty 2 would not be chargeable 3 (1) In this section -- 4 acquiring person, in relation to an acquisition, means 5 the person making the acquisition; 6 notional transfer, in relation to an acquisition, means a 7 notional transaction consisting of the transfer, at the 8 time of the acquisition, by the relinquishing person to 9 the acquiring person of the relevant land assets, as if 10 the relevant land assets were those of the relinquishing 11 person; 12 relevant land assets, in relation to an acquisition of an 13 interest in a landholder, means the land assets to which 14 the landholder, and each linked entity in respect of the 15 landholder, are entitled; 16 relinquishing person, in relation to an acquisition, 17 means the person from whom the interest in the 18 landholder was acquired. 19 (2) This section applies to an acquisition of an interest in a 20 landholder if no transfer duty would be chargeable, or 21 transfer duty would be chargeable only to a particular 22 extent, on the notional transfer in relation to the 23 acquisition. 24 (3) If no transfer duty would be chargeable on the notional 25 transfer, the acquisition is exempt. 26 (4) If transfer duty would be chargeable on the notional 27 transfer only to a particular extent, then despite Part 6 28 Division 5, the amount of duty chargeable in respect of 29 the acquisition is the amount of duty calculated under 30 that Division in respect of the acquisition reduced by 31 the same proportion as the proportion of the notional 32 transfer on which no transfer duty would be 33 chargeable. page 76 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 76 1 (5) If the acquiring person did not acquire the interest in 2 the landholder from another person, the reference to the 3 relinquishing person in the definition of notional 4 transfer in subsection (1) is to be read (according to 5 what is relevant) as a reference to the or a person -- 6 (a) whose interest in the landholder is decreased 7 because of the acquisition; or 8 (b) whose interest in the landholder decreased 9 resulting in the acquisition. 10 Note for this subsection: 11 An acquiring person may acquire an interest in a company 12 by the company issuing shares to the person, or buying 13 back shares of another person. 14 (6) This section does not apply if -- 15 (a) no transfer duty would be chargeable, or 16 transfer duty would be chargeable only to a 17 particular extent, on the notional transfer 18 because of an exemption or reduction under 19 Chapter 6; or 20 (b) section 171 or 194 applies to the acquisition. 21 22 76. Section 171 amended 23 (1) Delete section 171(1). 24 (2) In section 171(2): 25 (a) delete "in a corporation" and insert: 26 27 in a landholder 28 29 (b) after "uses land" insert: 30 31 assets 32 page 77 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 76 1 (c) in paragraph (a)(i) delete "land to which the corporation 2 or a linked entity in respect of the corporation" and 3 insert: 4 5 land assets to which the landholder or a linked entity in 6 respect of the landholder 7 8 (d) in paragraph (a)(ii) delete "section 102(2), (3), (5) 9 and (6)" and insert: 10 11 section 102(2) 12 13 (e) in paragraph (b) delete "corporation, or a linked entity in 14 respect of the corporation, intends to continue to use the 15 land" and insert: 16 17 landholder, or a linked entity in respect of the 18 landholder, intends to continue to use the land assets 19 20 (3) After section 171(2) insert: 21 22 (2A) If the acquirer did not acquire the interest in the 23 landholder from another person, the reference in 24 subsection (2) to the person from whom the interest in 25 the landholder was acquired is to be read (according to 26 what is relevant) as a reference to the or a person -- 27 (a) whose interest in the landholder is decreased 28 because of the acquisition; or 29 (b) whose interest in the landholder decreased 30 resulting in the acquisition. 31 Note for this subsection: 32 An acquirer may acquire an interest in a company by the 33 company issuing shares to the person, or buying back 34 shares of another person. 35 page 78 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 77 1 (4) In section 171(3) after "subsection (2)," insert: 2 3 a land asset that is 4 5 Note: The heading to amended section 171 is to read: 6 Exemption of acquisition by family member of interest in 7 landholder engaged in primary production 8 77. Section 172 amended 9 (1) In section 172(1): 10 (a) delete "the corporation concerned, or a linked entity in 11 respect of the corporation," and insert: 12 13 the landholder concerned, or a linked entity in respect of 14 the landholder, 15 16 (b) in paragraphs (a) and (b) delete "land in Western 17 Australia that is" and insert: 18 19 land assets in Western Australia that are 20 21 (2) In section 172(2)(b) delete "land referred to in subsection (1)(b) 22 bears to the value of the corporation" and insert: 23 24 land assets referred to in subsection (1)(b) bears to the value of 25 the landholder 26 27 Note: The heading to amended 172 is to read: 28 Calculation of duty where some land assets of landholder not 29 used for primary production page 79 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 78 1 78. Section 173 amended 2 (1) In section 173(1): 3 (a) in paragraph (a) delete "a corporation" and insert: 4 5 an entity that is a landholder 6 7 (b) in paragraph (c)(i) delete "corporation" and insert: 8 9 entity 10 11 (c) in paragraph (c)(ii) delete "corporation or a linked entity 12 in respect of the corporation, is using solely or 13 dominantly in the business of primary production any of 14 the land" and insert: 15 16 entity, or a linked entity in respect of the entity, is using 17 solely or dominantly in the business of primary 18 production any of the land assets 19 20 (2) In section 173(2)(a) after "that is not" insert: 21 22 the transferor or 23 24 (3) In section 173(4)(a) delete "corporation" and insert: 25 26 entity 27 page 80 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 79 1 79. Section 174 amended 2 In section 174(1): 3 (a) in paragraphs (a) and (b) delete "corporation" and insert: 4 5 landholder 6 7 (b) in paragraph (c) delete "corporation, or a linked entity in 8 respect of the corporation, is using solely or dominantly 9 in the business of primary production any of the land" 10 and insert: 11 12 landholder, or a linked entity in respect of the 13 landholder, is using solely or dominantly in the business 14 of primary production any of the land assets 15 16 (c) in paragraph (d) delete "corporation" and insert: 17 18 landholder 19 20 80. Section 176 amended 21 (1) Delete section 176(1) and (2) and insert: 22 23 (1) In making an assessment of duty in relation to an 24 acquisition of an interest in an entity, the time when 25 that acquisition occurs is, for the purposes of this 26 Chapter but subject to section 173(4)(c) and 204G, to 27 be determined under this section. 28 (2) If an agreement is made for the making of the 29 acquisition, whether conditional or not, and 30 subsection (3) does not apply to the agreement -- 31 (a) the acquisition is taken to occur when the 32 agreement is made; and page 81 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 81 1 (b) until the agreement is completed, the interests 2 of persons in the entity are to be determined for 3 the purposes of this Chapter as if the agreement 4 had been completed. 5 Notes for this subsection: 6 1. Section 195C provides for the assessment of duty if an 7 agreement referred to in this subsection is terminated 8 before the assessment is made. 9 2. Section 196 provides for the reassessment of duty if an 10 agreement referred to in this subsection is terminated after 11 an assessment of duty is made. 12 13 (2) After section 176(3) insert: 14 15 (3A) If the acquisition results from a merger of corporations 16 in accordance with section 160A, the acquisition 17 occurs when the merger is completed. 18 19 (3) In section 176(4) delete "subsections (2) and (3)" and insert: 20 21 subsections (2), (3) and (3A) 22 23 81. Section 177 amended 24 In section 177(2) delete "section 176," and insert: 25 26 sections 154B and 176, 27 28 Note: The notes at the end of section 177 are to read: 29 1. Sections 195B and 195C provide for the assessment of 30 duty if a deemed agreement is not completed. 31 2. Sections 195 and 196 provide for the reassessment of duty 32 if a deemed agreement is not completed. page 82 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 82 1 82. Section 179 amended 2 In section 179(2)(d) delete "any person taken into account under 3 section 163 or 164 as being related to the acquirer for the 4 purposes of the acquisition," and insert: 5 6 any person that is a related person in respect of the acquirer and 7 has an interest in the landholder immediately after the relevant 8 acquisition, 9 10 83. Section 180 amended 11 Delete section 180(2)(b) and insert: 12 13 (b) any person that is a related person in respect of 14 a person referred to in paragraph (a) and has an 15 interest in the entity immediately after the 16 acquisition; or 17 18 84. Section 185 amended 19 In section 185: 20 (a) delete "interests" and insert: 21 22 interests, immediately after the relevant acquisition, 23 24 (b) delete paragraph (b) and insert: 25 26 (b) each person that is a related person in respect of 27 the acquirer and has an interest in the 28 landholder. 29 page 83 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 85 1 85. Section 186 amended 2 (1) Delete section 186(1)(a) and (b) and insert: 3 4 (a) the unencumbered value of the land assets, 5 chattels, or land assets and chattels, in Western 6 Australia (whichever is relevant) to which the 7 landholder is entitled; and 8 (b) the same percentage of the unencumbered value 9 of the land assets, chattels, or land assets and 10 chattels, in Western Australia (whichever is 11 relevant) to which any linked entity in respect 12 of the landholder is entitled as the percentage of 13 the landholder's total direct or indirect interest 14 in the linked entity calculated under 15 section 154A. 16 17 (2) Delete section 186(2A). 18 86. Section 187 amended 19 In section 187(1)(a) after "a landholder" insert: 20 21 after a relevant acquisition 22 23 87. Section 189 amended 24 (1) In section 189(2): 25 (a) after "landholder concerned" insert: 26 27 after the relevant acquisition referred to in section 188, 28 other than the interest acquired by that relevant 29 acquisition, 30 31 (b) in paragraph (b) delete "acquisition, but only to the 32 extent to which the interest is held immediately before page 84 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 88 1 the relevant acquisition referred to in section 188; or" 2 and insert: 3 4 acquisition; or 5 6 (c) in paragraph (c) after "land" insert: 7 8 assets 9 10 (2) In section 189(4)(a) delete "section 163; and" and insert: 11 12 section 163(1)(a) or (b); and 13 14 88. Section 193 amended 15 In section 193(1) delete "section 164" and insert: 16 17 section 163(1)(c) or (d) 18 19 89. Section 195A amended 20 (1) In section 195A(1) and (2) after "statement" (each occurrence) 21 insert: 22 23 or agreement 24 25 (2) In section 195A(5)(a) and (b) after "land" insert: 26 27 assets 28 page 85 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 90 1 90. Chapter 3 Part 6 Division 6 heading replaced 2 Delete the heading to Chapter 3 Part 6 Division 6 and insert: 3 4 Division 6 -- Assessment or reassessment of liability for 5 landholder duty if uncompleted agreements terminated 6 or completed 7 8 91. Sections 195B and 195C inserted 9 At the beginning of Chapter 3 Part 6 Division 6 insert: 10 11 195B. Assessment of duty where s. 149(1) or 154B applied 12 at acquisition time 13 (1) Subsection (2) applies if -- 14 (a) at the time an acquisition (the main 15 acquisition) of an interest in an entity (the 16 main entity) occurs -- 17 (i) there is an agreement to which 18 section 149(1)(a) applies in determining 19 the entitlement to land assets, chattels, 20 or land assets and chattels, of the main 21 entity or a linked entity in respect of the 22 main entity; or 23 (ii) there is an agreement to which 24 section 154B(a) applies in determining 25 the interest that the main entity, or a 26 linked entity in respect of the main 27 entity, has in another entity; 28 and 29 (b) after the main acquisition occurs but before an 30 assessment is made in relation to the main 31 acquisition, the agreement has been rescinded, page 86 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 91 1 annulled or otherwise terminated without being 2 completed. 3 (2) Section 149(1)(a) or 154B(a) (whichever is relevant) 4 applies to the agreement for the purposes of making an 5 assessment in relation to the main acquisition despite 6 the rescission, annulment or other termination of the 7 agreement, unless the Commissioner is satisfied that 8 the rescission, annulment or other termination of the 9 agreement was not part of a scheme or arrangement 10 under which the object of the agreement has been or 11 may be achieved in another way. 12 (3) Subsection (4) applies if -- 13 (a) at the time an acquisition (the main 14 acquisition) of an interest in an entity (the 15 main entity) occurs -- 16 (i) there is an agreement to which 17 section 149(1)(b) applies in determining 18 the entitlement to land assets, chattels, 19 or land assets and chattels, of the main 20 entity or a linked entity in respect of the 21 main entity; or 22 (ii) there is an agreement to which 23 section 154B(b) applies in determining 24 the interest that the main entity, or a 25 linked entity in respect of the main 26 entity, has in another entity; 27 and 28 (b) after the main acquisition occurs but before an 29 assessment is made in relation to the main 30 acquisition, the agreement is completed. 31 (4) Despite section 149(1)(b) or 154B(b) (whichever is 32 relevant), the agreement is not to be disregarded for the 33 purposes of making an assessment in relation to the 34 main acquisition. page 87 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 92 1 195C. Assessment of duty where s. 176(2) applied at 2 acquisition time 3 (1) This section applies if -- 4 (a) under section 176(2), an acquisition is taken to 5 occur when the agreement for the acquisition is 6 made; and 7 (b) after the agreement is made but before an 8 assessment is made in relation to the 9 acquisition, the agreement has been rescinded, 10 annulled or otherwise terminated without being 11 completed. 12 (2) Section 176(2) applies to the terminated agreement, 13 despite the rescission, annulment or other termination 14 of the agreement, unless the Commissioner is satisfied 15 that the rescission, annulment or other termination of 16 the agreement was not part of a scheme or arrangement 17 under which the object of the agreement has been or 18 may be achieved in another way. 19 (3) If the Commissioner is satisfied as described in 20 subsection (2), section 176(2) ceases to apply to the 21 terminated agreement. 22 23 92. Section 195 amended 24 (1) In section 195(1): 25 (a) in paragraph (a)(i) delete "land" and insert: 26 27 land assets, chattels, or land assets and chattels 28 29 (b) in paragraph (a)(ii) delete "section 156(8)(a)," and 30 insert: 31 32 section 154B(a), 33 page 88 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 93 1 (2) In section 195(2): 2 (a) in paragraph (a)(i) delete "land" and insert: 3 4 land assets, chattels, or land assets and chattels 5 6 (b) in paragraph (a)(ii) delete "section 156(8)(b)," and 7 insert: 8 9 section 154B(b), 10 11 Note: The heading to amended section 195 is to read: 12 Reassessment of duty where s. 149(1) or 154B applied 13 93. Section 196 replaced 14 Delete section 196 and insert: 15 16 196. Reassessment of duty where s. 176(2) applied 17 (1) A reassessment of duty in respect of a relevant 18 acquisition is required if -- 19 (a) an assessment of duty is made on an acquisition 20 that, under section 176(2), is taken to have 21 occurred when the agreement for the 22 acquisition was made; and 23 (b) since that assessment, the agreement has been 24 rescinded, annulled or otherwise terminated 25 without being completed; and 26 (c) had the acquisition not been taken to have 27 occurred when the agreement for the 28 acquisition was made as mentioned in 29 paragraph (a), the liability for duty in respect of 30 the relevant acquisition would not have arisen. page 89 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 94 1 (2) On application made by a person that has paid or is 2 liable to pay the duty, if subsection (1) applies, the 3 Commissioner is to make a reassessment of the duty 4 disregarding that terminated agreement. 5 (3) Section 176(2) does not apply to a terminated 6 agreement for the purposes of a reassessment required 7 under subsection (1). 8 9 94. Section 197 amended 10 In section 197 delete "196(3)," and insert: 11 12 196(2), 13 14 95. Section 197A inserted 15 After section 197 insert: 16 17 197A. Expired put and call options taken to be terminated 18 (1) In this section -- 19 call option means the call option of a simultaneous put 20 and call option referred to in section 177(2) or (3); 21 put option means the put option of a simultaneous put 22 and call option referred to in section 177(2) or (3). 23 (2) For the purposes of this Division and section 200, an 24 agreement that is taken to exist under section 177(2) 25 or (3) is taken to be terminated without being 26 completed if -- 27 (a) the call option and the put option both expire 28 without being exercised; or 29 (b) the call option and the put option are both 30 rescinded or cancelled by agreement; or page 90 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 96 1 (c) either the call option or the put option is 2 rescinded or cancelled by agreement and the 3 other expires without being exercised. 4 (3) Subsection (2) does not apply if the call option has 5 been assigned or further assigned as referred to in 6 section 177(3). 7 (4) If a reassessment is required under section 195 or 196 8 as a result of an agreement that was taken to exist 9 under section 177(2) or (3) being taken to be 10 terminated under subsection (2) of this section, the 11 Taxation Administration Act section 17 applies as if 12 the original assessment had been made as soon as 13 subsection (2) of this section became applicable. 14 15 96. Section 200 amended 16 (1) In section 200(2): 17 (a) in paragraph (b) delete "section 201." and insert: 18 19 section 201; or 20 21 (b) after paragraph (b) insert: 22 23 (c) the agreement for the making of the acquisition 24 has been lodged in accordance with 25 subsection (2A). 26 27 (2) After section 200(2) insert: 28 29 (2A) If there is an agreement for the making of the 30 acquisition, the agreement may be lodged instead of an 31 acquisition statement. 32 page 91 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 96 1 (3) In section 200(3) after "subsection (2)" insert: 2 3 or agreement under subsection (2A) 4 5 (4) In section 200(4) after "acquisition statement" insert: 6 7 or agreement 8 9 (5) In section 200(5): 10 (a) after "acquisition statement" insert: 11 12 or agreement 13 14 (b) in paragraph (a) delete "statement; and" and insert: 15 16 statement or agreement; and 17 18 (6) After section 200(5) insert: 19 20 (6) The obligation to lodge an acquisition statement under 21 subsection (2) or agreement under subsection (2A) 22 applies in relation to an acquisition even if the 23 agreement for the making of the acquisition has been 24 rescinded, annulled or otherwise terminated without 25 being completed, whether that rescission, annulment or 26 termination occurs before or after the expiry of the 27 allowed time applicable to the statement or agreement. 28 29 Note: The heading to amended section 200 is to read: 30 Acquisition statement or agreement to be lodged page 92 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 97 1 97. Section 201 amended 2 In section 201(1)(a) delete "section 164" and insert: 3 4 section 163(1)(c) or (d) 5 6 98. Section 203 amended 7 Delete section 203(1) and insert: 8 9 (1) An acquisition statement must be in the approved form. 10 11 Note: The heading to amended section 203 is to read: 12 Form of acquisition statements 13 99. Section 204 amended 14 In section 204: 15 (a) delete "If an acquisition statement is not lodged in 16 accordance with section 200(2), 201(6) or 202(2), the 17 following persons commit an offence --" and insert: 18 19 The following persons commit an offence if there is a 20 contravention of section 200(2), 201(6) or 202(2) in 21 relation to an acquisition -- 22 23 (b) in paragraph (d) delete "taken into account under 24 section 163 or 164 as being related to the acquirer for 25 the purposes of the acquisition," and insert: 26 27 that is a related person in respect of the acquirer and has 28 an interest in the landholder concerned immediately 29 after the acquisition, 30 page 93 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 100 1 100. Chapter 3 Part 7 inserted 2 At the end of Chapter 3 insert: 3 4 Part 7 -- Application of this Chapter to certain 5 acquisitions 6 Division 1 -- Rights relating to fixed infrastructure 7 204A. When fixed infrastructure access rights are taken 8 into account in determining entitlement to land 9 assets 10 (1) In determining, in relation to an acquisition of an 11 interest in an entity (the main entity), the entitlement to 12 land assets of the main entity, or a linked entity in 13 respect of the main entity, the value of any fixed 14 infrastructure access right to which the main entity or 15 linked entity is entitled is not to be taken into account 16 unless subsection (2) applies to the fixed infrastructure 17 access right. 18 (2) This subsection applies to the fixed infrastructure 19 access right if the main entity, or an entity that is 20 associated with the main entity under section 204D, is 21 entitled to any of the following -- 22 (a) fixed infrastructure (relevant fixed 23 infrastructure) to which the fixed infrastructure 24 access right relates; 25 (b) an estate or interest in relevant fixed 26 infrastructure; 27 (c) a fixed infrastructure control right that relates to 28 relevant fixed infrastructure. page 94 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 100 1 (3) The entitlement referred to in subsection (2) is to be 2 determined -- 3 (a) for the main entity or an associated entity 4 referred to in section 204D(2)(a), (b) or (c) -- 5 when the acquisition referred to in 6 subsection (1) of this section occurs; or 7 (b) for an associated entity referred to in 8 section 204D(2)(d) or (e) -- when the 9 acquisition referred to in section 204D(2)(d)(i) 10 occurs. 11 (4) The value of a fixed infrastructure access right that is 12 to be taken into account for the purposes of an 13 acquisition because subsection (2) applies is to be 14 taken into account in relation to that acquisition even if 15 that subsection does not become applicable until after 16 the acquisition occurs. 17 204B. When fixed infrastructure statutory licences are 18 treated as land assets in calculating duty 19 (1) A fixed infrastructure statutory licence is to be treated 20 as if it were a land asset for the purposes of calculating 21 duty in respect of a relevant acquisition under 22 section 186 if -- 23 (a) the landholder, or a linked entity in respect of 24 the landholder, is entitled to the fixed 25 infrastructure statutory licence; and 26 (b) the landholder, or an entity that is associated 27 with the landholder under section 204D, is 28 entitled to any of the following -- 29 (i) fixed infrastructure (relevant fixed 30 infrastructure) to which the fixed 31 infrastructure statutory licence relates; 32 (ii) an estate or interest in relevant fixed 33 infrastructure; page 95 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 100 1 (iii) a fixed infrastructure control right that 2 relates to relevant fixed infrastructure. 3 (2) For the purposes of subsection (1)(a), a landholder or 4 linked entity is taken to be entitled to the fixed 5 infrastructure statutory licence if -- 6 (a) the landholder or linked entity held the fixed 7 infrastructure statutory licence immediately 8 before the relevant acquisition; and 9 (b) as a result of the relevant acquisition, the fixed 10 infrastructure statutory licence is cancelled or 11 surrendered by operation of law; and 12 (c) there is an agreement, arrangement or 13 understanding relating to the acquisition under 14 which, after the acquisition, the fixed 15 infrastructure statutory licence, or another fixed 16 infrastructure statutory licence of that kind, will 17 be issued, granted or given to the landholder or 18 an entity that is associated with the landholder 19 under section 204D. 20 (3) The entitlement referred to in subsection (1)(b) is to be 21 determined -- 22 (a) for the landholder or an associated entity 23 referred to in section 204D(2)(a), (b) or (c) -- 24 when the relevant acquisition referred to in 25 subsection (1) of this section occurs; or 26 (b) for an associated entity referred to in 27 section 204D(2)(d) or (e) -- when the 28 acquisition referred to in section 204D(2)(d)(i) 29 occurs. 30 (4) A fixed infrastructure statutory licence that under 31 subsection (1) is to be treated as a land asset for the 32 purposes of section 186 in relation to an acquisition is 33 to be so treated even if subsection (1) does not become 34 applicable until after the acquisition occurs. page 96 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 100 1 (5) A fixed infrastructure statutory licence to which 2 subsection (1) applies is also to be treated as a land 3 asset in relation to the relevant acquisition referred to 4 in that subsection for the purposes of sections 167, 168, 5 195A(5), 266B and 266C. 6 204C. Unencumbered value of fixed infrastructure 7 statutory licences treated as land assets 8 (1) Section 36 applies, with any appropriate modifications, 9 where it is necessary to determine the unencumbered 10 value of a fixed infrastructure statutory licence that 11 under section 204B(1) is to be treated as if it were a 12 land asset for the purposes of calculating duty in 13 respect of a relevant acquisition under section 186. 14 (2) The unencumbered value to be determined under 15 section 36 (as applied by subsection (1)) for a fixed 16 infrastructure statutory licence issued, granted or given 17 under a law of the Commonwealth is the 18 unencumbered value of that licence so far as it 19 authorises the ownership, control, operation or use of 20 fixed infrastructure. 21 204D. Associated entities for s. 204A and 204B 22 (1) This section applies where it is necessary to determine 23 for the purposes of section 204A(2) or 204B(1) or (2), 24 in relation to an acquisition, which entities are 25 associated with the main entity referred to in 26 section 204A(2), or the landholder referred to in 27 section 204B(1) or (2), as the case requires. 28 (2) The associated entities are as follows -- 29 (a) a linked entity in respect of the main entity or 30 landholder; 31 (b) an entity (a higher entity) in respect of which 32 the main entity or landholder is a linked entity; page 97 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 100 1 (c) another linked entity in respect of a higher 2 entity to which paragraph (b) applies; 3 (d) another entity if -- 4 (i) there is an acquisition of an interest in 5 the entity, which may occur before or 6 after the acquisition referred to in 7 subsection (1); and 8 (ii) the acquisition referred to in 9 subsection (1) and the acquisition 10 referred to in subparagraph (i) together 11 form, evidence, give effect to, or arise 12 from what is, substantially one 13 arrangement; 14 (e) an entity that is a linked entity in respect of an 15 entity to which paragraph (d) applies in relation 16 to the acquisition referred to in paragraph (d)(i). 17 (3) A reference in subsection (2)(b) or (c) to a linked entity 18 is a reference to an entity that would be a linked entity 19 if, at the time of the acquisition referred to in 20 subsection (1), the higher entity referred to in 21 subsection (2)(b) or (c) were a main entity referred to 22 in section 156(1). 23 Division 2 -- Derivative mining rights 24 204E. Unencumbered value of mining tenement subject to 25 derivative mining right 26 (1) This section applies where it is necessary to determine, 27 in relation to an acquisition of an interest in an entity, 28 the unencumbered value of a land asset that is a mining 29 tenement in relation to which a derivative mining right 30 is in force. 31 (2) If the acquisition of the derivative mining right, on its 32 grant, is duty endorsed, the unencumbered value of the 33 mining tenement is to be determined, despite page 98 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 100 1 section 36(1) as applied by section 150, having regard 2 to the effect of the derivative mining right on the value 3 of the mining tenement. 4 (3) Subsection (2) ceases to apply in relation to an 5 acquisition of an interest in an entity if, within 6 12 months after the acquisition, the derivative mining 7 right is surrendered for no consideration. 8 (4) If a surrender referred to in subsection (3) occurs, each 9 of the following persons must lodge a notice of the 10 surrender in the approved form within 2 months after 11 the day on which the surrender occurs -- 12 (a) the entity referred to in subsection (1); 13 (b) the person that acquired the interest referred to 14 in subsection (1). 15 Penalty for this subsection: a fine of $20 000. 16 (5) Subject to the Taxation Administration Act section 17, 17 the Commissioner must make any reassessment 18 necessary as a result of the operation of subsection (3). 19 Division 3 -- Acquisitions forming one arrangement 20 204F. Acquisitions in 2 or more entities forming one 21 arrangement 22 (1) For the purposes of sections 155(4)(b), 156A(1)(a) and 23 204D(2)(d), unless the Commissioner is satisfied to the 24 contrary, acquisitions of interests in 2 or more entities 25 together form, evidence, give effect to or arise from 26 what is, substantially one arrangement if -- 27 (a) the acquisitions have occurred within 28 12 months; and 29 (b) in respect of each of the acquisitions, the person 30 that acquires the interest is the same person 31 (whether the person is the only person that page 99 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 100 1 acquires the interest or acquires the interest 2 with the same or different persons). 3 (2) Subsection (1) does not limit section 155(4)(b), 4 156A(1)(a) or 204D(2)(d). 5 204G. Modified application of s. 176 if entity becomes 6 landholder because of acquisitions forming one 7 arrangement 8 (1) This section modifies the application of section 176 in 9 relation to an acquisition (the main acquisition) of an 10 interest in an entity (the main entity) if -- 11 (a) at the time the agreement for the main 12 acquisition is made, the main entity is not a 13 landholder in relation to the main acquisition; 14 and 15 (b) after the agreement is made and either before or 16 after it is completed, 1 or more other 17 acquisitions of interests in entities occur; and 18 (c) as a result of the occurrence of the acquisition 19 or acquisitions referred to in paragraph (b), the 20 main entity becomes a landholder in relation to 21 the main acquisition because any of the 22 following occurs -- 23 (i) section 155(3) becomes applicable to 24 the main entity in relation to the main 25 acquisition; 26 (ii) an entity becomes a linked entity in 27 respect of the main entity in relation to 28 the main acquisition under 29 section 156A(3); 30 (iii) section 204A(2) becomes applicable, in 31 relation to the main acquisition, to a 32 fixed infrastructure access right to page 100 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 100 1 which the main entity or a linked entity 2 in respect of the main entity is entitled. 3 (2) From the time at which section 155(3), 156A(3) or 4 204A(2) (whichever is relevant) becomes applicable, 5 the application of section 176 in relation to the main 6 acquisition is modified as follows -- 7 (a) section 176(2) applies in relation to the 8 acquisition subject to subsection (3) of this 9 section; 10 (b) section 176(3) does not apply in relation to the 11 acquisition. 12 (3) For the purposes of the following provisions, the main 13 acquisition is taken to occur at the time at which 14 section 155(3), 156A(3) or 204A(2) (whichever is 15 relevant) becomes applicable -- 16 (a) section 180(1); 17 (b) section 183; 18 (c) section 200(3); 19 (d) section 201(5). 20 204H. Reassessment of landholder duty if amount of duty 21 chargeable changes because of acquisitions forming 22 one arrangement 23 (1) This section applies if -- 24 (a) an assessment of duty is made in relation to a 25 relevant acquisition (the main acquisition) of 26 an interest in a landholder; and 27 (b) after the assessment is made, 1 or more other 28 acquisitions of interests in entities occur; and 29 (c) as a result of the occurrence of the acquisition 30 or acquisitions referred to in paragraph (b), 31 there is a change in the amount of duty page 101 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 101 1 chargeable in relation to the main acquisition 2 because any of the following occurs -- 3 (i) an entity becomes a linked entity in 4 respect of the landholder in relation to 5 the main acquisition under 6 section 156A(3); 7 (ii) section 204A(2) becomes applicable, in 8 relation to the main acquisition, to a 9 fixed infrastructure access right to 10 which the landholder or a linked entity 11 in respect of the landholder is entitled; 12 (iii) section 204B(1) becomes applicable, in 13 relation to the main acquisition, to a 14 fixed infrastructure statutory licence to 15 which the landholder or a linked entity 16 in respect of the landholder is entitled. 17 (2) Subject to the Taxation Administration Act section 17, 18 the Commissioner must make any reassessment 19 necessary as a result of the change in amount of duty 20 chargeable referred to in subsection (1)(c). 21 22 101. Section 205A amended 23 In section 205A(3) delete "section 148" and insert: 24 25 section 148(1) 26 27 102. Section 205E amended 28 (1) Delete section 205E(1)(c)(ii) and insert: 29 30 (ii) anything to which section 3A(1)(f) 31 applies that is fixed to the land or an 32 estate or interest in such a thing. 33 page 102 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 103 1 (2) After section 205E(3)(f) insert: 2 3 (fa) anything to which section 18A(1) applies; 4 (fb) a mining tenement or an estate or interest in a 5 mining tenement; 6 (fc) a pastoral lease or an interest of a pastoral 7 lessee under a pastoral lease; 8 (fd) a derivative mining right; 9 10 103. Section 205P amended 11 In section 205P(1) delete "sections 31(5)," and insert: 12 13 sections 28(4A), 31(5), 36A(1), (4) and (5), 14 15 104. Section 205RA inserted 16 At the end of Chapter 3A Part 2 Division 4 insert: 17 18 205RA. Foreign transfer duty on deemed transaction under 19 s. 120B(2) 20 Foreign transfer duty is chargeable on a transaction that 21 is taken to occur under section 120B(2) if the 22 transaction is a foreign dutiable transaction. 23 24 105. Section 205S amended 25 (1) In section 205S(1) delete "Divisions 5 and 6" and insert: 26 27 Divisions 5 to 8 28 page 103 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 106 1 (2) In section 205S(2): 2 (a) in paragraph (h) delete "a reference in section 73 to land 3 in Western Australia" and insert: 4 5 the reference in section 73 to property of a kind referred 6 to in section 72(a), (b), (c) or (d) 7 8 (b) after paragraph (i) insert: 9 10 (ia) a reference in section 78(1)(a) or 78A(1)(a) to a 11 person ceasing to be a partner in a partnership 12 were a reference to a foreign person ceasing to 13 be a partner in a partnership; and 14 15 106. Section 205W amended 16 In section 205W(1): 17 (a) in paragraph (b) delete "results" and insert: 18 19 results, or will or may result, 20 21 (b) in paragraph (b)(i) and (ii) delete "interest" and insert: 22 23 interest, whether vested or contingent, 24 25 107. Section 205ZB amended 26 In section 205ZB(2)(b) delete "parcel of" (second occurrence). 27 page 104 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 108 1 108. Section 205ZD amended 2 (1) In section 205ZD(1) delete the definition of foreign acquirer 3 and insert: 4 5 foreign acquirer means -- 6 (a) in relation to a foreign landholder acquisition to 7 which section 205ZH(1)(a)(i) applies -- 8 (i) a foreign person that acquires an interest 9 in a residential landholder by the 10 acquisition; and 11 (ii) if there is more than 1 person referred to 12 in subparagraph (i), each of them; 13 or 14 (b) in relation to a foreign landholder acquisition to 15 which section 205ZH(1)(a)(ii) applies -- 16 (i) a foreign person that is a related person 17 in respect of the acquirer of the interest 18 in the residential landholder and has an 19 interest in the residential landholder 20 immediately after the acquisition; and 21 (ii) if there is more than 1 person referred to 22 in subparagraph (i), each of them. 23 24 (2) In section 205ZD(1) in the definition of foreign landholder 25 acquisition delete "sections 205ZH and 205ZI;" and insert: 26 27 section 205ZH; 28 29 (3) In section 205ZD(2) delete "A reference" and insert: 30 31 Unless the contrary intention appears, a reference 32 page 105 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 109 1 109. Section 205ZE amended 2 (1) In section 205ZE(1) delete the Table and insert: 3 4 Table s. 148(2) s. 149A(1) and (3) Part 2 s. 155 s. 157 Part 5 Division 2 Subdivision 2 s. 167 s. 168 s. 171 Part 5 Division 2 Subdivision 4 s. 175 Part 6 Division 4 s. 193 Part 6 Division 6A Part 6 Division 7 Part 7 Divisions 1 and 2 s. 204G 5 6 (2) In section 205ZE(2): 7 (a) in paragraph (b) after "an acquirer" insert: 8 9 (other than in section 179) 10 11 (b) in paragraph (e) delete "land, land in Western Australia" 12 and insert: 13 14 land assets, land assets in Western Australia 15 page 106 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 109 1 (c) delete paragraph (g) and insert: 2 3 (g) the definition of land asset in section 148(1) 4 were deleted; 5 6 (d) delete paragraph (j) and insert: 7 8 (j) the reference in section 179(2)(a) to the 9 acquirer were a reference to a foreign acquirer, 10 other than a person whose interest in the 11 residential landholder is, for the purpose of 12 calculating the duty, an excluded interest under 13 section 189; and 14 (ja) the reference in section 179(2)(d) or 185(b) to a 15 related person in respect of the acquirer were a 16 reference to a foreign person that is a related 17 person in respect of a foreign acquirer (as 18 defined in paragraph (a) of the definition of 19 foreign acquirer in section 205ZD(1)); and 20 (jb) a reference in section 189(2)(a) or (6) -- 21 (i) to the person were a reference to the 22 foreign acquirer; and 23 (ii) to a related person were a reference to a 24 foreign person that is a related person in 25 respect of a foreign acquirer (as defined 26 in paragraph (a) of the definition of 27 foreign acquirer in section 205ZD(1)); 28 and 29 30 (e) in paragraph (m) in the Table delete the row relating to 31 section 164; page 107 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 110 1 (f) in paragraph (m) in the Table after the row relating to 2 section 200 insert: 3 s. 204G s. 205ZKA 4 5 110. Section 205ZG amended 6 (1) In section 205ZG(1) delete "section 205ZH or 205ZI." and 7 insert: 8 9 section 205ZH. 10 11 (2) Delete section 205ZG(2) to (4) and insert: 12 13 (2) An entity is a residential landholder if -- 14 (a) immediately before the acquisition, it is entitled 15 to residential property or an entity linked to the 16 entity is so entitled; and 17 (b) it is a landholder in relation to the acquisition. 18 19 111. Sections 205ZH and 205ZI replaced 20 Delete sections 205ZH and 205ZI and insert: 21 22 205ZH. Foreign landholder acquisitions 23 (1) An acquisition by a person (the acquirer) of an interest 24 in an entity that is a residential landholder in relation to 25 the acquisition is a foreign landholder acquisition 26 if -- 27 (a) either -- 28 (i) the acquirer is a foreign person; or page 108 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 111 1 (ii) the acquirer is not a foreign person but, 2 immediately after the acquisition, there 3 is at least 1 related person in respect of 4 the acquirer that is a foreign person and 5 has an interest in the residential 6 landholder; 7 and 8 (b) subsection (2) applies to the acquisition. 9 (2) This subsection applies to an acquisition in any of the 10 following circumstances -- 11 (a) if -- 12 (i) immediately before the acquisition, the 13 acquirer does not have a significant 14 interest in the residential landholder; 15 and 16 (ii) immediately after the acquisition, the 17 acquirer has a significant interest in the 18 residential landholder; 19 (b) if -- 20 (i) immediately before the acquisition, the 21 aggregated group interest in the 22 residential landholder does not amount 23 to a significant interest; and 24 (ii) immediately after the acquisition, the 25 aggregated group interest in the 26 residential landholder amounts to a 27 significant interest; 28 (c) if -- 29 (i) immediately before the acquisition, the 30 acquirer has a significant interest in the 31 residential landholder; and page 109 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 112 1 (ii) as a result of the acquisition, the 2 acquirer's interest in the residential 3 landholder increases; 4 (d) if -- 5 (i) immediately before the acquisition, the 6 aggregated group interest in the 7 residential landholder amounts to a 8 significant interest; and 9 (ii) as a result of the acquisition, the 10 aggregated group interest in the 11 residential landholder increases. 12 (3) In subsection (2) -- 13 aggregated group interest means the aggregate of -- 14 (a) the interest (if any) that the acquirer has in the 15 residential landholder; and 16 (b) if 1 or more related persons have an interest in 17 the residential landholder -- all of those 18 interests. 19 20 112. Section 205ZKA inserted 21 At the end of Chapter 3A Part 3 Division 6 insert: 22 23 205ZKA. Modified application of s. 176 if entity becomes 24 residential landholder because of acquisitions 25 forming one arrangement 26 (1) This section modifies the application of section 176 in 27 relation to an acquisition (the main acquisition) of an 28 interest in an entity (the main entity) if -- 29 (a) at the time the agreement for the main 30 acquisition is made, the main entity is not a 31 residential landholder in relation to the main 32 acquisition; and page 110 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 113 1 (b) after the agreement is made and either before or 2 after it is completed, 1 or more other 3 acquisitions of interests in entities occur; and 4 (c) as a result of the occurrence of the acquisition 5 or acquisitions referred to in paragraph (b) -- 6 (i) the main entity becomes a landholder in 7 relation to the main acquisition because 8 section 155(3) or 156A(3) becomes 9 applicable; and 10 (ii) the main entity becomes a residential 11 landholder in relation to the main 12 acquisition because 13 section 205ZG(2)(b) becomes 14 applicable. 15 (2) From the time at which section 205ZG(2)(b) becomes 16 applicable, the application of section 176 in relation to 17 the main acquisition is modified as follows -- 18 (a) section 176(2) applies in relation to the main 19 acquisition subject to subsection (3) of this 20 section; 21 (b) section 176(3) does not apply in relation to the 22 main acquisition. 23 (3) For the purposes of sections 180(1) and 183, the main 24 acquisition is taken to occur at the time at which 25 section 205ZG(2)(b) becomes applicable. 26 27 113. Section 205ZM amended 28 (1) In section 205ZM(1) insert in alphabetical order: 29 30 notional transfer, in relation to an acquisition, means a 31 notional transaction consisting of the transfer, at the 32 time of the acquisition, by the relinquishing person to 33 the acquiring person of the relevant residential page 111 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 113 1 property, as if the relevant residential property were 2 property of the relinquishing person; 3 relevant residential property, in relation to an 4 acquisition of an interest in a residential landholder, 5 means the residential property in Western Australia to 6 which the landholder, and each linked entity in respect 7 of the landholder, is entitled; 8 9 (2) In section 205ZM(1) in the definition of relinquishing person 10 after "in the" insert: 11 12 residential 13 14 (3) Delete section 205ZM(2) and insert: 15 16 (2) This section applies to an acquisition of an interest in a 17 residential landholder if no foreign transfer duty would 18 be chargeable, or foreign transfer duty would be 19 chargeable only to a particular extent, on the notional 20 transfer in relation to the acquisition. 21 (2A) If no foreign transfer duty would be chargeable on the 22 notional transfer, the acquisition is exempt. 23 (2B) If foreign transfer duty would be chargeable on the 24 notional transfer only to a particular extent, then 25 despite Chapter 3 Part 6 Division 5, the amount of 26 foreign landholder duty chargeable in respect of the 27 acquisition is the amount of foreign landholder duty 28 calculated under that Division in respect of the 29 acquisition reduced by the same proportion as the 30 proportion of the notional transfer on which no foreign 31 transfer duty would be chargeable. 32 page 112 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 114 1 (4) In section 205ZM(3): 2 (a) delete "subsection (2)," and insert: 3 4 this section, 5 6 (b) delete "described in section 205ZH(2) or 205ZI(2)" and 7 insert: 8 9 to which section 205ZH(1)(a)(ii) applies 10 11 (5) In section 205ZM(4) after "relinquishing person" insert: 12 13 in the definition of notional transfer in subsection (1) 14 15 (6) After section 205ZM(4) insert: 16 17 (5) This section does not apply if -- 18 (a) no foreign transfer duty would be chargeable, 19 or foreign transfer duty would be chargeable 20 only to a particular extent, on the notional 21 transfer because of an exemption or reduction 22 under Chapter 6; or 23 (b) section 194 applies to the acquisition. 24 25 Note: The heading to amended section 205ZM is to read: 26 Exemption or reduction of foreign landholder duty if foreign 27 transfer duty would not be chargeable 28 114. Section 205ZP amended 29 In section 205ZP(1)(b) delete "parcel of" (second occurrence). page 113 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 115 1 115. Section 205ZS amended 2 In section 205ZS(2) delete "the acquisition statement is required 3 to be lodged under section 200(3)," and insert: 4 5 an acquisition statement or agreement is required to be lodged 6 under section 200, 7 8 116. Section 205ZT amended 9 In section 205ZT: 10 (a) in paragraph (a) delete "acquirer;" and insert: 11 12 acquirer, other than a person whose interest in the 13 residential landholder is, for the purposes of calculating 14 the duty, an excluded interest under section 189; 15 16 (b) in paragraphs (b) and (c) before "landholder" insert: 17 18 residential 19 20 (c) in paragraph (d) delete "any person taken into account 21 under section 205ZH or 205ZI as being related to the 22 foreign acquirer for the purposes of the acquisition," and 23 insert: 24 25 a foreign person that is a related person in respect of a 26 foreign acquirer (as defined in paragraph (a) of the 27 definition of foreign acquirer in section 205ZD(1)) and 28 has an interest in the residential landholder immediately 29 after the foreign landholder acquisition, 30 page 114 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 117 1 117. Section 244A amended 2 (1) Delete section 244A(1) and insert: 3 4 (1) In this section -- 5 car or bus means a motor vehicle, other than a motor 6 cycle, or a motorised wheelchair, built mainly to carry 7 people and includes the type of vehicle known as a 8 utility; 9 de facto partners of 2 years has the meaning given in 10 section 9; 11 goods vehicle means a motor vehicle built or modified 12 to be used primarily to carry goods or materials used in 13 any trade, business or industry; 14 motor cycle means a motor vehicle, other than a 15 motorised wheelchair or a goods vehicle, that is not 16 equipped with a permanent cab and cab roof and 17 that -- 18 (a) is designed to travel on 2 wheels or, with a 19 sidecar attached, 3 wheels; or 20 (b) has 3 wheels arranged so that the axis of 21 rotation of 2 wheels lies on the same straight 22 line and each of those 2 wheels is equidistant 23 from the third; 24 motorised wheelchair means a chair-type vehicle 25 that -- 26 (a) is fitted with 3 or more wheels; and 27 (b) is fitted and designed only for the use of 28 persons with a physical disability. 29 page 115 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 118 1 (2) Delete section 244A(5) and insert: 2 3 (5) This subsection applies if the vehicle is a car or bus or 4 a goods vehicle -- 5 (a) with an unloaded mass that does not exceed 6 3 000 kg; and 7 (b) that is not a heavy vehicle; and 8 (c) that is to be used exclusively for social, 9 domestic or pleasure purposes and is not to be 10 used in any trade, business or industry or for 11 the carrying of passengers, or goods, for hire or 12 reward. 13 14 118. Section 257 amended 15 (1) In section 257(1) delete the definition of security. 16 (2) In section 257(1) insert in alphabetical order: 17 18 notifiable event has the meaning given by 19 section 264(2) and (3); 20 public float means -- 21 (a) the securities of an entity being offered for sale 22 or issue to the public for the purpose of listing 23 the entity on a prescribed financial market; or 24 (b) the securities of an entity being listed on a 25 prescribed financial market within 12 months 26 after being offered to the public as referred to in 27 paragraph (a); 28 security -- 29 (a) in relation to an entity that is a corporation -- 30 (i) means an issued share of the 31 corporation; and page 116 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 119 1 (ii) if the corporation is a hybrid 2 company -- includes an interest that the 3 Commissioner considers is analogous to 4 an issued share of the corporation; 5 or 6 (b) in relation to an entity that is a unit trust 7 scheme -- means a unit issued under the 8 scheme; 9 10 (3) After section 257(2) insert: 11 12 (3) A reference in section 260 or 264A to residential 13 property includes a reference to a chattel in Western 14 Australia to which section 205E(2) applies. 15 16 119. Section 259 amended 17 After section 259(4) insert: 18 19 (5) An acquisition is not a relevant consolidation 20 transaction if any part of the consideration for the 21 acquisition, or an associated acquisition, has been or is 22 to be provided by a person that is not a member of the 23 family formed by the corporate consolidation referred 24 to in subsection (2). 25 (6) For the purposes of subsection (5) -- 26 (a) if the acquisition concerned is an acquisition of 27 securities of the affected entity by the head 28 entity as referred to in subsection (2)(a) -- an 29 acquisition of securities of the head entity by a 30 holder of securities of the affected entity that is 31 made for the purposes of the same corporate 32 consolidation is an associated acquisition; or page 117 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 120 1 (b) if the acquisition concerned is an acquisition of 2 securities of the head entity by a holder of 3 securities of the affected entity as referred to in 4 subsection (2)(b) -- an acquisition of securities 5 of the affected entity by the head entity that is 6 made for the purposes of the same corporate 7 consolidation is an associated acquisition. 8 (7) Subsection (5) does not apply in relation to 9 consideration provided for an acquisition or an 10 associated acquisition if -- 11 (a) the acquisition or associated acquisition is of a 12 kind referred to in subsection (2)(b); and 13 (b) the consideration is the transfer of securities of 14 the affected entity by the holder of those 15 securities to the head entity. 16 17 120. Section 260 amended 18 (1) After section 260(1) insert: 19 20 (1A) For the purposes of subsection (1)(a)(v), a surrender of 21 a mining tenement, in whole or in part, by one member 22 of a family is taken to be a surrender to another 23 member of the family if the surrender is made in 24 contemplation of, or as part of an agreement that, the 25 tenement, or the part of the tenement, be granted to or 26 acquired by the other member of the family. 27 (1B) For the purposes of subsection (1)(d), an acquisition of 28 an interest in an entity by one member of a family is 29 taken to be an acquisition from another member of the 30 family if -- 31 (a) the interest of the other member of the family in 32 the entity is decreased because of the 33 acquisition; or page 118 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 121 1 (b) the interest of the other member of the family in 2 the entity decreased resulting in the acquisition. 3 4 (2) After section 260(4) insert: 5 6 (5) A transaction, transfer or acquisition referred to in 7 subsection (1) is not a relevant reconstruction 8 transaction if any part of the consideration for the 9 transaction, transfer or acquisition has been or is to be 10 provided by a person that is not a member of the family 11 referred to in that subsection. 12 13 121. Section 260A inserted 14 After section 260 insert: 15 16 260A. Consideration provided as loan 17 For the purposes of sections 259(5) and 260(5), 18 consideration provided by a person other than a 19 member of the family is taken to have been provided 20 by a member of the family if the Commissioner is 21 satisfied that the consideration was provided as a loan 22 and has been or will be repaid by a member of the 23 family. 24 25 122. Section 261 amended 26 (1) In section 261(1) in the definition of pre-transaction decision 27 request delete "subsection (2), (3)" and insert: 28 29 subsection (2) 30 31 (2) Delete section 261(3). page 119 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 123 1 (3) Delete section 261(7)(a). 2 (4) After section 261(7) insert: 3 4 (7A) The Commissioner must refuse a pre-transaction 5 decision request if the transaction to which the request 6 relates has been entered into. 7 8 123. Section 263 amended 9 Delete section 263(4) and insert: 10 11 (4) An exemption cannot be granted in relation to a 12 relevant transaction if -- 13 (a) the Commissioner is satisfied that the 14 transaction is part of a scheme or arrangement 15 that has been, or is to be, entered into or carried 16 out by a person -- 17 (i) for a purpose of avoiding or reducing 18 any liability of a person for duty; or 19 (ii) for the sole or dominant purpose of 20 avoiding or reducing any liability of a 21 person for tax other than duty; 22 or 23 (b) the Commissioner is satisfied that the 24 exemption would be revoked under 25 section 264A because of the occurrence of a 26 notifiable event referred to in that section; or 27 (c) any member of the family has an outstanding 28 tax liability. 29 30 124. Section 264 amended 31 (1) In section 264(1) delete the definition of notifiable event. page 120 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 125 1 (2) Delete section 264(3)(c) and insert: 2 3 (c) an acquisition by one member of a family from 4 another member of the family of an interest in 5 an entity, if landholder duty is not chargeable 6 on the acquisition; or 7 8 125. Section 264A inserted 9 After section 264 insert: 10 11 264A. Automatic revocation of exemption 12 (1) The exemption for an exempt relevant reconstruction 13 transaction is revoked by this subsection if -- 14 (a) a notifiable event to which section 264(2)(b) 15 applies occurs in relation to the relevant 16 reconstruction transaction within 3 years after 17 the date of the transaction; and 18 (b) the member of the transaction group referred to 19 in whichever of section 264(2)(b)(i) or (ii) 20 applies (the relevant entity) is -- 21 (i) for a relevant reconstruction transaction 22 referred to in section 260(1)(a)(iii) or 23 (aa)(iii) -- the entity for which the 24 dutiable property or residential property 25 is held on trust; or 26 (ii) for a relevant reconstruction transaction 27 referred to in section 260(1)(d) -- the 28 acquirer of the interest referred to in that 29 section; or 30 (iii) otherwise -- the entity who would, but 31 for the exemption, be liable to pay the 32 transfer duty, foreign transfer duty or page 121 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 125 1 vehicle licence duty chargeable on the 2 transaction; 3 and 4 (c) when the notifiable event occurs, the property 5 referred to in subsection (2), or a part of that 6 property, is held by, or on trust for, the relevant 7 entity. 8 (2) For the purposes of subsection (1)(c), the property is -- 9 (a) for a relevant reconstruction transaction 10 referred to in section 260(1)(a) -- the dutiable 11 property to which the transaction relates; or 12 (b) for a relevant reconstruction transaction 13 referred to in section 260(1)(aa) -- the 14 residential property to which the transaction 15 relates; or 16 (c) for a relevant reconstruction transaction 17 referred to in section 260(1)(b) -- the licence 18 for a vehicle to which the transaction relates; or 19 (d) for a relevant reconstruction transaction 20 referred to in section 260(1)(d) -- the interest 21 in an entity to which the transaction relates. 22 (3) This section does not apply -- 23 (a) to a notifiable event that results from a public 24 float; or 25 (b) in prescribed circumstances. 26 (4) This section applies whether or not there has been a 27 change in the legal description of the property referred 28 to in subsection (2) between the relevant reconstruction 29 transaction and the notifiable event. 30 Note for this subsection: 31 For example, a change in the legal description of property 32 when a new certificate of title is registered following a 33 subdivision of land. 34 page 122 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 126 1 126. Section 265 amended 2 In section 265: 3 (a) in paragraph (a) delete "duty on a transaction, transfer of 4 licence or acquisition; or" and insert: 5 6 any liability of a person for duty; or 7 8 (b) in paragraph (b) after "reducing" insert: 9 10 any liability of a person for 11 12 Note: The heading to amended section 265 is to read: 13 Revocation of exemption by Commissioner 14 127. Section 266 amended 15 (1) In section 266(1) delete "On revoking an exemption for a 16 relevant transaction" and insert: 17 18 If the exemption for a relevant transaction is revoked under 19 section 264A or 265, 20 21 (2) After section 266(1) insert: 22 23 (1A) If the exemption is revoked under section 264A, the 24 official assessment -- 25 (a) must determine the amount of duty payable on 26 the relevant transaction as at the date of the 27 transaction (subject to any reduction that 28 applies under section 266A or 266B); and 29 (b) may include penalty tax equal to the amount of 30 that duty. 31 page 123 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 128 1 (3) In section 266(2) delete "The" and insert: 2 3 If the exemption is revoked under section 265, the 4 5 (4) After section 266(5) insert: 6 7 (6) Despite the Taxation Administration Act section 17, if 8 an exemption for a relevant transaction is revoked 9 under section 264A on the occurrence of a notifiable 10 event, the Commissioner may make a reassessment in 11 relation to the transaction at any time before the later 12 of -- 13 (a) the day that is 5 years after the day on which 14 the Commissioner made a reassessment under 15 section 263(2), or issued a certificate or made 16 an assessment under section 263(3), in relation 17 to the transaction (whichever is relevant); or 18 (b) the day that is 12 months after the day on which 19 notice of the notifiable event was lodged under 20 section 264(4). 21 22 128. Sections 266A to 266D inserted 23 At the end of Chapter 6 insert: 24 25 266A. Reduction of duty following automatic revocation 26 or refusal of exemption 27 (1) The duty to be assessed on a relevant reconstruction 28 transaction is to be reduced in accordance with 29 subsection (2) if -- 30 (a) either of the following occurs -- 31 (i) an exemption is granted for a relevant 32 reconstruction transaction but the page 124 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 128 1 exemption is revoked under 2 section 264A on the occurrence of a 3 notifiable event; 4 (ii) an exemption application is made in 5 accordance with section 262 for a 6 relevant reconstruction transaction and 7 the exemption would have been granted 8 but for the application of 9 section 263(4)(b) because of the 10 occurrence of a notifiable event; 11 and 12 (b) at the time of the notifiable event, only part of 13 the property referred to in section 264A(2) to 14 which the relevant reconstruction transaction 15 relates is held by, or on trust for, the member of 16 the transaction group referred to in whichever 17 of section 264(2)(b)(i) or (ii) applies (the 18 relevant entity). 19 (2) Duty is chargeable on the relevant reconstruction 20 transaction only to the extent that the transaction 21 relates to the part of the property referred to in 22 section 264A(2) that is held by, or on trust for, the 23 relevant entity at the time of the notifiable event. 24 (3) This section applies whether or not there has been a 25 change in the legal description of the property referred 26 to in section 264A(2) between the relevant 27 reconstruction transaction and the notifiable event. 28 Note for this subsection: 29 For example, a change in the legal description of property 30 when a new certificate of title is registered following a 31 subdivision of land. page 125 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 128 1 266B. Reduction of duty following automatic revocation 2 or refusal of exemption resulting from relevant 3 acquisition 4 (1) In this section -- 5 property means land assets (as defined in 6 section 148(1)), or chattels, or both; 7 relevant acquisition has the meaning given in 8 section 148(1). 9 (2) The duty assessed on a relevant reconstruction 10 transaction is to be reduced in accordance with 11 subsection (3) if -- 12 (a) either of the following occurs -- 13 (i) an exemption is granted for the relevant 14 reconstruction transaction but the 15 exemption is revoked under 16 section 264A on the occurrence of a 17 notifiable event; 18 (ii) an exemption application is made in 19 accordance with section 262 for the 20 relevant reconstruction transaction and 21 the exemption would have been granted 22 but for the application of 23 section 263(4)(b) because of the 24 occurrence of a notifiable event; 25 and 26 (b) the notifiable event results from a relevant 27 acquisition (the triggering acquisition) on 28 which landholder duty is chargeable; and 29 (c) transfer duty or landholder duty is chargeable 30 on the relevant reconstruction transaction in 31 relation to particular property (the relevant 32 reconstruction transaction property); and page 126 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 128 1 (d) landholder duty is chargeable on the triggering 2 acquisition in relation to particular property 3 (the triggering acquisition property); and 4 (e) the triggering acquisition property is or 5 includes the relevant reconstruction transaction 6 property or part of the relevant reconstruction 7 transaction property. 8 Note for this subsection: 9 Section 266C provides for the property in relation to which 10 landholder duty is taken to be chargeable for the purposes 11 of this section. 12 (3) The duty assessed in respect of the relevant 13 reconstruction transaction is to be reduced by the lesser 14 of -- 15 (a) the amount of transfer duty or landholder duty 16 that is chargeable on the relevant reconstruction 17 transaction, to the extent that the duty is 18 chargeable in relation to relevant property; or 19 (b) the amount of landholder duty that is 20 chargeable on the triggering acquisition, to the 21 extent that the duty is chargeable in relation to 22 relevant property. 23 (4) For the purposes of subsection (3), relevant property is 24 property that is both triggering acquisition property and 25 relevant reconstruction transaction property, whether or 26 not there has been a change in the legal description of 27 the property between the relevant reconstruction 28 transaction and the triggering acquisition. 29 Note for this subsection: 30 For example, a change in the legal description of property 31 when a new certificate of title is registered following a 32 subdivision of land. 33 (5) If the relevant reconstruction transaction property is or 34 includes an interest in particular property, and the 35 triggering acquisition property is or includes a different page 127 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 128 1 interest in the same property, property is relevant 2 property for the purposes of subsection (3) only to the 3 extent of the lesser of the 2 interests. 4 266C. Property in relation to which landholder duty taken 5 to be chargeable for s. 266B 6 (1) In this section -- 7 property means land assets (as defined in 8 section 148(1)), or chattels, or both; 9 relevant acquisition has the meaning given in 10 section 148(1). 11 (2) For the purposes of section 266B, landholder duty that 12 is chargeable on a relevant acquisition of an interest in 13 an entity is taken to be chargeable in relation to -- 14 (a) for property of which 100% of the value is 15 taken into account for the purposes of 16 calculating that landholder duty -- that 17 property; and 18 (b) for property of which a lower percentage of the 19 value is taken into account for the purposes of 20 calculating that landholder duty -- a percentage 21 interest in that property that is equal to the 22 percentage taken into account for the purposes 23 of calculating that landholder duty. 24 (3) For the purposes of subsection (2), the percentage of 25 the value of property that is taken into account for the 26 purposes of calculating landholder duty is to be 27 determined in accordance with the following 28 formula -- 29 P × (I − E) 30 where -- 31 P is the percentage (expressed as a decimal) of the 32 unencumbered value of that property taken into page 128 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 128 1 account under section 186 in determining the value 2 of the landholder; 3 I is the percentage (expressed as a decimal) of the 4 interest of the acquirer in the landholder after the 5 relevant acquisition referred to in section 188(3); 6 E is the aggregate percentage (expressed as a 7 decimal) of each excluded interest in relation to the 8 relevant acquisition referred to in section 189. 9 266D. Application of s. 266B and 266C to foreign transfer 10 duty and foreign landholder duty 11 If foreign transfer duty or foreign landholder duty is 12 chargeable on a relevant reconstruction transaction, 13 sections 266B and 266C apply in relation to the foreign 14 transfer duty or foreign landholder duty chargeable on 15 the relevant reconstruction transaction as if -- 16 (a) a reference to transfer duty were a reference to 17 foreign transfer duty; and 18 (b) a reference to landholder duty were a reference 19 to foreign landholder duty; and 20 (c) a reference to a landholder were a reference to a 21 residential landholder (as defined in 22 section 205ZD(1)); and 23 (d) a reference to a relevant acquisition were a 24 reference to a foreign landholder acquisition (as 25 defined in section 205ZD(1)); and 26 (e) a reference to land assets (as defined in 27 section 148(1)) were a reference to residential 28 property; and 29 (f) a reference to an acquirer were a reference to a 30 foreign acquirer (as defined in 31 section 205ZD(1)); and page 129 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 129 1 (g) a reference to a provision of Chapter 3 were a 2 reference to that provision as applied by 3 section 205ZE(1). 4 5 129. Section 277 amended 6 (1) Delete section 277(1) and insert: 7 8 (1) In this section -- 9 relevant licence means -- 10 (a) a business licence (as defined in section 79) 11 that is issued, granted or given under a law of 12 Western Australia; or 13 (b) a fixed infrastructure statutory licence that is 14 issued, granted or given under a law of Western 15 Australia. 16 17 (2) In section 277(2): 18 (a) delete "business licence" and insert: 19 20 relevant licence 21 22 (b) in paragraph (b) delete "business licences," and insert: 23 24 relevant licences, 25 26 (3) In section 277(3)(a) delete "business licence" and insert: 27 28 relevant licence 29 page 130 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 130 1 130. Schedule 1 amended 2 In Schedule 1 in the item for section 11(1)(g) in column 4 after 3 "18(g)," insert: 4 5 (ga), (gb) or (gc), 6 7 131. Schedule 3 clause 1 amended 8 In Schedule 3 clause 1 in the definition of relevant acquisition 9 delete "sections 163 and 164." and insert: 10 11 section 148. 12 13 132. Schedule 3 Division 9 inserted 14 At the end of Schedule 3 insert: 15 16 Division 9 -- Provisions for Revenue Laws Amendment 17 Act 2018 18 46. Terms used 19 (1) In this Division -- 20 commencement day means the day on which the Revenue 21 Laws Amendment Act 2018 Part 2 comes into operation; 22 transaction means any transaction, transfer, acquisition or 23 other matter of a kind on which duty is or may be 24 chargeable under this Act and includes the following -- 25 (a) a transaction of a kind referred to in section 11 26 (including a transaction that would be a dutiable 27 transaction if it related to dutiable property, new 28 dutiable property or special dutiable property); 29 (b) an acquisition of an interest in an entity for the 30 purposes of Chapter 3 or Chapter 3A Part 3; page 131 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 132 1 (c) a transaction of a kind referred to in section 205H 2 (including a transaction that would be a foreign 3 dutiable transaction if it related to residential 4 property, special residential property or new 5 residential property); 6 (d) the grant or transfer of a licence for a vehicle for the 7 purposes of Chapter 5. 8 (2) In this Division a reference to doing anything includes 9 omitting to do anything. 10 (3) For the purposes of this Division -- 11 (a) when an acquisition of an interest in an entity for 12 the purposes of Chapter 3 occurs is to be 13 determined under section 176; and 14 (b) when an acquisition of an interest in an entity for 15 the purposes of Chapter 3A Part 3 occurs is to be 16 determined under section 176 as applied by 17 section 205ZE(1). 18 47. Application of amendments made by Revenue Laws 19 Amendment Act 2018 20 (1) The amendments made by the Revenue Laws Amendment 21 Act 2018 apply in relation to the imposition of duty on 22 transactions that occur on or after commencement day. 23 (2) Sections 155(4), 156A, 204D(2)(d) and 204F (including 24 sections 156A and 204F as applied by section 205ZE(1)) do 25 not apply in relation to acquisitions that together form, 26 evidence, give effect to or arise from what is, substantially 27 one arrangement unless each of those acquisitions occurs on 28 or after commencement day. 29 (3) Section 91C(3) does not apply in relation to transactions that 30 together form, evidence, give effect to, or arise from what is, 31 substantially one arrangement unless each of those 32 transactions occurs on or after commencement day. 33 (4) Sections 14(3) and 91C(4) do not apply in relation to a 34 transaction and an acquisition or agreement that together 35 form, evidence, give effect to, or arise from what is, page 132 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 132 1 substantially one arrangement unless each of the transaction 2 and the acquisition or agreement occurs on or after 3 commencement day. 4 (5) This clause has effect subject to the other provisions of this 5 Division. 6 48. Definition of land taken always to have included pastoral 7 leases 8 (1) In this clause -- 9 pre-commencement period means the period beginning on 10 1 July 2008 and ending immediately before commencement 11 day. 12 (2) This Act is taken, for all purposes, to have applied during 13 the pre-commencement period as if the definition of land in 14 force for the purposes of this Act had, at all times during the 15 pre-commencement period, included an express statement 16 that land includes a pastoral lease and an interest of a 17 pastoral lessee under a pastoral lease. 18 (3) Without limiting subclause (2), an assessment of duty 19 chargeable under this Act made, or purported to be made, in 20 the pre-commencement period is, and is taken to have 21 always been, as valid and effective as it would have been if, 22 when the liability for duty arose, the definition of land in 23 force for the purposes of this Act had included the statement 24 referred to in subclause (2). 25 (4) Without limiting subclause (2), if a transaction occurred 26 during the pre-commencement period, but an assessment of 27 duty in relation to the transaction was not made before 28 commencement day, an assessment of duty made on or after 29 commencement day in relation to the transaction is to be 30 made as if, when the transaction occurred, the definition of 31 land in force for the purposes of this Act had included the 32 statement referred to in subclause (2). page 133 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 132 1 49. Validation of administration agreements entered into 2 before commencement day 3 (1) In this clause -- 4 previous administration agreement means an 5 administration agreement entered into under the First Home 6 Owner Grant Act 2000 section 37 on or after 7 3 October 2015 and before commencement day. 8 (2) A previous administration agreement entered into, or 9 purported to be entered into, is, and is taken to have always 10 been, as valid and effective as it would have been if the 11 amendment made by the Revenue Laws Amendment 12 Act 2018 section 52 had been in force when the agreement 13 was entered into. 14 50. Transfers of vehicle licences between spouses between 15 1 July 2014 and commencement day 16 (1) In this clause -- 17 amended section 244A means section 244A as in force 18 immediately after the coming into operation of the Revenue 19 Laws Amendment Act 2018 section 117; 20 relevant vehicle licence transfer means the transfer of a 21 licence for a vehicle if -- 22 (a) the transfer occurred during the period beginning on 23 1 July 2014 and ending immediately before 24 commencement day; and 25 (b) the person from whom, and the person to whom, the 26 licence was transferred were married to each other 27 or de facto partners of 2 years when the transfer 28 occurred. 29 (2) When this clause uses a term that is used in Chapter 5, the 30 term has the same meaning in this clause as it has in that 31 Chapter. 32 (3) An assessment made, or purported to be made, before 33 commencement day that no duty was chargeable on a 34 relevant vehicle licence transfer is, and is taken to have 35 always been, as valid and effective as it would have been if page 134 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 132 1 amended section 244A had been in force when the transfer 2 occurred. 3 (4) If no assessment of vehicle licence duty on a relevant 4 vehicle licence transfer was made before commencement 5 day, an assessment of vehicle licence duty on the transfer 6 made after commencement day must be made as if amended 7 section 244A had been in force when the transfer occurred. 8 (5) If an assessment that vehicle licence duty was chargeable on 9 a relevant vehicle licence transfer was made before 10 commencement day, and vehicle licence duty would not 11 have been chargeable on the transfer if amended 12 section 244A had been in force when the transfer occurred, 13 the Commissioner must, on application by the transferee, 14 make a reassessment of the liability for vehicle licence duty 15 as if amended section 244A had been in force at that time. 16 (6) The limitations as to time in the Taxation Administration 17 Act section 17 do not apply in respect of a reassessment 18 under subclause (5), but an application for reassessment 19 under that subclause must be made on or before the later 20 of -- 21 (a) the day that is 5 years after the day on which the 22 original assessment was made; or 23 (b) the day that is 12 months after commencement day. 24 51. Provisions relating to exemptions for connected entities 25 (1) The amendments to Chapter 6 made by the Revenue Laws 26 Amendment Act 2018 sections 118 to 128 apply in relation 27 to an exemption if the application for the exemption is made 28 on or after commencement day, whether the transaction 29 occurred before or after commencement day. 30 (2) Despite subclause (1), section 263(4)(a) and (b) (as in force 31 on commencement day), section 264A and sections 266A to 32 266D do not apply in relation to a relevant transaction that 33 occurred before commencement day. page 135 Revenue Laws Amendment Bill 2018 Part 2 Duties Act 2008 amended s. 132 1 (3) Subclause (4) applies if -- 2 (a) before commencement day, the Commissioner 3 makes a decision under section 261 on a 4 pre-transaction decision request made under 5 section 261(2) or (3) (as in force immediately 6 before commencement day) in relation to a 7 proposed relevant transaction; and 8 (b) the decision is -- 9 (i) in relation to a request made under 10 section 261(2) -- that if the transaction 11 were entered into it would be exempted; or 12 (ii) in relation to a request made under 13 section 261(3) -- that if the transaction 14 were entered into and exempted, the 15 exemption would not be revoked under 16 section 265; 17 and 18 (c) the transaction is not entered into before 19 commencement day. 20 (4) Despite section 261(10), the Commissioner is not bound by 21 the pre-transaction decision request if the Commissioner 22 would have made a different decision on the request if the 23 amendments made by the Revenue Laws Amendment 24 Act 2018 sections 123 to 126 had been in force when the 25 decision was made. 26 (5) Section 261(7)(b) does not apply to a pre-transaction 27 decision request if the pre-transaction decision request that 28 was made previously referred to in that section was made 29 before commencement day. 30 52. Provisions about validated assessments 31 (1) In this clause -- 32 previous assessment means an assessment to which 33 clause 48(3) or 50(3) applies. page 136 Revenue Laws Amendment Bill 2018 Duties Act 2008 amended Part 2 s. 132 1 (2) The rights, obligations and liabilities of all persons are taken 2 to be, and to have always been, the same as if a previous 3 assessment had been validly made. 4 (3) Anything done, or purportedly done, before commencement 5 day is as valid and effective, and is to be taken to have 6 always been as valid and effective, as it would have been if 7 a previous assessment had been validly made. 8 53. Application of s. 195B and 195 to acquisitions before 9 commencement day 10 Section 195B applies in relation to a main acquisition 11 referred to in section 195B(1) or (3) that occurred before 12 commencement day, and section 195 applies in relation to a 13 relevant acquisition referred to in section 195(1) or (3) that 14 occurred before commencement day, as if -- 15 (a) a reference to section 154B(a) included a reference 16 to section 156(8)(a) as in force immediately before 17 commencement day; and 18 (b) a reference to section 154B(b) included a reference 19 to section 156(8)(b) as in force immediately before 20 commencement day. 21 page 137 Revenue Laws Amendment Bill 2018 Part 3 Land Tax Assessment Act 2002 amended Division 1 Act amended s. 133 1 Part 3 -- Land Tax Assessment Act 2002 amended 2 Division 1 -- Act amended 3 133. Act amended 4 This Part amends the Land Tax Assessment Act 2002. 5 Division 2 -- Amendments commencing on day after Royal 6 Assent 7 134. Section 18A inserted 8 After section 18 insert: 9 10 18A. Taxable value of land subject to partial exemption 11 (1) In this section -- 12 exemption provision means a provision of this part 13 referred to in section 17(1)(b); 14 relevant requirements, in relation to an exemption 15 provision, has the meaning given in section 18(1). 16 (2) This section applies if, under section 18, an exemption 17 for an assessment year applies to a lot or parcel of land 18 only to a particular extent because -- 19 (a) the relevant requirements of the exemption 20 provision do not apply to any extent in respect 21 of a part of the area of the lot or parcel; and 22 (b) the relevant requirements of the exemption 23 apply, or apply to some extent, in respect of the 24 remainder of the area of the lot or parcel (the 25 exempt area). 26 (3) For the purposes of determining the taxable value of 27 the lot or parcel for the assessment year, the 28 unimproved value of the lot or parcel for the page 138 Revenue Laws Amendment Bill 2018 Land Tax Assessment Act 2002 amended Part 3 Amendments commencing on day after Royal Assent Division 2 s. 135 1 assessment year is the unimproved value of the whole 2 of the lot or parcel reduced by the unimproved value of 3 the exempt area, but only to the extent to which the 4 relevant requirements of the exemption provision apply 5 in respect of the exempt area. 6 (4) The unimproved value of the exempt area for the 7 purposes of subsection (3) is the amount that bears the 8 same proportion to the unimproved value, as 9 determined by the Valuer-General, of the whole of the 10 lot or parcel as the exempt area bears to the whole area 11 of the lot or parcel. 12 (5) If there is a multi-storey building on the lot or parcel, 13 the Commissioner may determine -- 14 (a) an area that is to be treated as the exempt area 15 for the purposes of this section; and 16 (b) an area that is to be treated as the whole area of 17 the lot or parcel for the purposes of 18 subsection (4). 19 (6) A determination under subsection (5) -- 20 (a) may be made on any basis that the 21 Commissioner decides is appropriate, taking 22 into account the areas of the lot or parcel and 23 parts of the building to which the relevant 24 requirements apply or apply to some extent; 25 and 26 (b) has effect according to its terms. 27 28 135. Section 26A amended 29 After section 26A(3)(a)(ii) insert: 30 31 (iii) a child of the disabled person; 32 page 139 Revenue Laws Amendment Bill 2018 Part 3 Land Tax Assessment Act 2002 amended Division 2 Amendments commencing on day after Royal Assent s. 136 1 136. Section 29 amended 2 In section 29 in the definition of beneficiary delete "an 3 individual" and insert: 4 5 a person 6 7 137. Section 46 amended 8 After section 46(3) insert: 9 10 (4) Regulations may be expressed to apply to or in relation 11 to an assessment year that began before the day on 12 which the regulations came into operation if the 13 application of the regulations to or in relation to that 14 assessment year would not adversely affect a person 15 who is or may become liable to pay land tax for the 16 assessment year. 17 18 138. Schedule 1 Division 6 inserted 19 At the end of Schedule 1 insert: 20 21 Division 6 -- Provisions for Revenue Laws Amendment 22 Act 2018 23 20. Application of section 30D to land held in trust for 24 assessment year 2019/20 25 (1) In this clause -- 26 compliant trustee, in relation to land, means a trustee of a 27 discretionary or other trust (other than a unit trust scheme) 28 that is -- 29 (a) a family owner of the land under section 30H(c); or page 140 Revenue Laws Amendment Bill 2018 Land Tax Assessment Act 2002 amended Part 3 Amendments commencing on 1 July 2019 Division 3 s. 139 1 (b) a person related to a family owner of the land 2 described in section 30I(1)(d), 30J(d), 30K(d) or 3 30(d). 4 (2) Land is exempt under section 30D for the assessment year 5 ending 30 June 2020 if -- 6 (a) it would not be so exempt, but for this clause, solely 7 because a trustee was not a compliant trustee at 8 midnight on 30 June 2019; and 9 (b) the trustee would have been a compliant trustee at 10 midnight on 30 June 2019 but for the amendment to 11 the definition of beneficiary in section 29 made by 12 the Revenue Laws Amendment Act 2018 13 section 136; and 14 (c) on or before midnight on 30 June 2020 the trustee is 15 a compliant trustee. 16 17 Division 3 -- Amendments commencing on 1 July 2019 18 139. Part 3 Division 2 Subdivision 1 heading inserted 19 At the beginning of Part 3 Division 2 insert: 20 21 Subdivision 1 -- Exemptions and rebates for private 22 residential property 23 24 140. Part 3 Division 2 Subdivision 2 inserted: 25 At the end of Part 3 Division 2 insert: 26 27 Subdivision 2 -- Application of private residential 28 exemptions to subdivided land 29 28A. Terms used 30 In this Subdivision -- page 141 Revenue Laws Amendment Bill 2018 Part 3 Land Tax Assessment Act 2002 amended Division 3 Amendments commencing on 1 July 2019 s. 140 1 exemption period means -- 2 (a) in relation to section 24, 25 or 27 -- an 3 assessment year; 4 (b) in relation to section 24A, 25A or 27A -- a 5 period of 2 consecutive assessment years; 6 exemption provision means section 24, 24A, 25, 25A, 7 27 or 27A; 8 new lot, in relation to a subdivision of land, means a lot 9 that comes into existence as a result of the subdivision; 10 parent lot, in relation to a subdivision of land, means a 11 lot that ceases to be a lot for the purposes of this Act 12 under the Glossary clause 2(2) as a result of the 13 subdivision. 14 28B. Application of certain private residential 15 exemptions to property subdivided during 16 exemption period 17 (1) This section applies if -- 18 (a) land is subdivided during an exemption period 19 for an exemption provision; and 20 (b) because of the subdivision, there are 1 or more 21 requirements (the unsatisfied requirements) of 22 the exemption provision that -- 23 (i) are not satisfied in relation to private 24 residential property that is a parent lot in 25 relation to the subdivision; but 26 (ii) would be satisfied if the private 27 residential property the subject of the 28 exemption provision were 1 or more of 29 the new lots in relation to the 30 subdivision. 31 (2) For the purposes of the application of the exemption 32 provision to private residential property that is a parent page 142 Revenue Laws Amendment Bill 2018 Land Tax Assessment Act 2002 amended Part 3 Amendments commencing on 1 July 2019 Division 3 s. 140 1 lot referred to in subsection (1)(b)(i) for the exemption 2 period -- 3 (a) the unsatisfied requirements are taken to be 4 satisfied; and 5 (b) if an exemption applies to the parent lot 6 because of paragraph (a), the exemption applies 7 only to the part or parts of the parent lot that, 8 after the subdivision, constitute the new lot or 9 lots referred to in subsection (1)(b)(ii); and 10 (c) if there is any area of the parent lot to which the 11 exemption does not apply because of 12 paragraph (b), the taxable value of the parent 13 lot is to be determined under section 18A as if 14 the area of each new lot referred to in 15 subsection (1)(b)(ii) were an exempt area 16 referred to in section 18A(2). 17 (3) For the purposes of determining under 18 subsection (1)(b)(ii) whether a relevant requirement 19 would be satisfied in relation to a new lot -- 20 (a) a requirement that relates to the ownership of 21 the private residential property at midnight on 22 30 June immediately before the exemption 23 period is taken to be satisfied in relation to a 24 new lot if each person who is an owner of that 25 new lot after the subdivision (a new lot owner) 26 was also an owner of the parent lot at that time; 27 and 28 (b) if, at that time, the new lot owners owned the 29 parent lot jointly with 1 or more other 30 persons -- the new lot is taken to have been 31 owned at that time by the new lot owners only. 32 (4) A reference in subsection (3) to an owner of a new lot 33 after a subdivision is to a person who is an owner of page 143 Revenue Laws Amendment Bill 2018 Part 3 Land Tax Assessment Act 2002 amended Division 3 Amendments commencing on 1 July 2019 s. 140 1 the new lot after the certificate of title for the new lot is 2 registered under the Transfer of Land Act 1893. 3 28C. Application of requirements relating to sale or 4 disposal of subdivided property 5 (1) For the purposes of the application of section 27 or 6 27A to private residential property, a requirement in 7 section 27(1)(f) or 27A(1)(j) that relates to the property 8 acquired first referred to in that section is taken to be 9 satisfied if -- 10 (a) the property acquired first is subdivided during 11 the exemption period for section 27 or 27A 12 (whichever is relevant); and 13 (b) the requirement is satisfied in relation to each 14 of the new lots in relation to the subdivision. 15 (2) Subsection (1) applies in relation to the requirement in 16 section 27(1)(f) whether the property acquired first is 17 property A or property B referred to in section 27. 18 (3) Despite section 28B(2)(a), a requirement in 19 section 27(1)(f) or 27A(1)(j) is not taken to be satisfied 20 under that section unless subsection (1)(b) of this 21 section applies. 22 28D. Application of 2-year private residential exemptions 23 if property subdivided during first year 24 If private residential property that is a parent lot is 25 exempt under section 24A, 25A or 27A (the relevant 26 2-year exemption provision) because of the application 27 of section 28B(2), and the subdivision occurs in the 28 first assessment year of the exemption period for the 29 relevant 2-year exemption provision, the exemption 30 applies for the second year of the exemption period to 31 the private residential property that is each new lot 32 referred to in section 28B(2)(b) rather than to the 33 parent lot. page 144 Revenue Laws Amendment Bill 2018 Land Tax Assessment Act 2002 amended Part 3 Amendments commencing on 1 July 2019 Division 3 s. 140 1 28E. Ownership of land during period when land 2 subdivided but certificates of title not issued 3 (1) This section applies if -- 4 (a) a parent lot that is owned jointly by 2 or more 5 persons (the joint owners) is subdivided; and 6 (b) there is a period of time (the relevant period) 7 between the subdivision occurring and a 8 certificate of title for any new lot being 9 registered under the Transfer of Land Act 1893; 10 and 11 (c) either -- 12 (i) after the certificate of title is registered, 13 each new lot is owned by some, but not 14 all, of the joint owners (the relevant 15 owners); or 16 (ii) the Commissioner is satisfied that after 17 the certificate of title is registered, each 18 new lot will be owned by some, but not 19 all, of the joint owners (the relevant 20 owners). 21 (2) For the purposes of this Division, the Commissioner 22 may treat each new lot as being owned during the 23 relevant period by the relevant owners only rather than 24 by all of the joint owners. 25 page 145 Revenue Laws Amendment Bill 2018 Part 3 Land Tax Assessment Act 2002 amended Division 3 Amendments commencing on 1 July 2019 s. 141 1 141. Schedule 1 amended 2 At the end of Schedule 1 Division 6 insert: 3 4 21. Application of amendments relating to subdivision of 5 land 6 (1) Part 3 Division 2 Subdivision 2 (other than section 28E) 7 applies in relation to exemption periods (as defined in 8 section 28A) that begin on or after 1 July 2019. 9 (2) Section 28E and the Glossary clause 2(2) apply in relation to 10 assessment years that begin on or after 1 July 2019, whether 11 the subdivision referred to in whichever of those provisions 12 is relevant occurs before or after 1 July 2019. 13 (3) Despite subclauses (1) and (2), Part 3 Division 2 14 Subdivision 2 and the Glossary clause 2(2) do not apply for 15 the purposes of determining whether private residential 16 property is exempt under section 24, 24A, 25, 25A or 27A 17 (the relevant exemption provision) if the commencement 18 date for the construction or refurbishment referred to in the 19 relevant exemption provision is before 1 July 2019. 20 21 142. Glossary clause 2 amended 22 After the Glossary clause 2(1) insert: 23 24 (2) Despite subclause (1), if -- 25 (a) land that constitutes a lot (the parent lot) is 26 subdivided resulting in 2 or more new lots referred 27 to in paragraph (a)(vii) or (c) of the definition of lot 28 in subclause (1) coming into existence, the parent 29 lot ceases to be a lot for the purposes of this Act 30 when the new lots come into existence; or 31 (b) land that constitutes 2 or more lots (the parent lots) 32 is subdivided resulting in a single new lot referred 33 to in paragraph (a)(vii) or (c) of the definition of lot 34 in subclause (1) coming into existence, the parent page 146 Revenue Laws Amendment Bill 2018 Land Tax Assessment Act 2002 amended Part 3 Amendment commencing when Community Titles Act 2018 s. Division 4 219(3) commences s. 143 1 lots cease to be lots for the purposes of this Act 2 when the new lot comes into existence. 3 (2A) Subclause (2) does not prevent land tax from being payable 4 on a parent lot, or an exemption, concession or rebate from 5 applying in relation to the parent lot, for the financial year in 6 which the land is subdivided or any earlier financial year. 7 (2B) Subclause (2) does not apply to a subdivision of land in 8 circumstances prescribed by the regulations. 9 10 Division 4 -- Amendment commencing when Community Titles 11 Act 2018 s. 219(3) commences 12 143. Glossary clause 2 amended 13 In the Glossary clause 2(2)(a) and (b) delete "paragraph (a)(vii)" 14 and insert: 15 16 paragraph (a)(via), (vii) 17 page 147 Revenue Laws Amendment Bill 2018 Part 4 Pay-roll Tax Assessment Act 2002 amended s. 144 1 Part 4 -- Pay-roll Tax Assessment Act 2002 amended 2 144. Act amended 3 This Part amends the Pay-roll Tax Assessment Act 2002. 4 145. Section 9FA amended 5 Delete section 9FA(3)(a) and (b) and insert: 6 7 (a) the rate determined by the Commissioner of 8 Taxation of the Commonwealth under the ITA 9 Act section 28-25(4) as the rate of cents per 10 kilometre for cars for the income year 11 corresponding to the financial year immediately 12 preceding the financial year in which the 13 allowance is paid or payable; or 14 (b) if no determination referred to in paragraph (a) 15 is in force -- the rate prescribed in the 16 regulations. 17 18
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