Australian Capital Territory Numbered Acts

DUTIES AMENDMENT ACT 2009 (NO. 15 OF 2009) - SECT 8

after section 115H, insert

Division 3.7.2     Exempt transactions—‘top hatting' arrangements

115I     Definitions—div 3.7.2

In this division:

"exchanging members"—see the Income Tax Assessment Act 1997 (Cwlth), section 124-1045 (1).

"interposed trust"—see the Income Tax Assessment Act 1997 (Cwlth), section 124-1045 (1).

115J     Exemption for relevant acquisitions

    (1)     An exchanging member who makes a relevant acquisition to which section 87 (Acquisition statements) applies may apply to the commissioner for an exemption from duty under this Act on the relevant acquisition.

    (2)     The commissioner must grant the exemption if satisfied that—

        (a)     the relevant acquisition was made to give effect to a scheme that would qualify as a roll-over under the Income Tax Assessment Act 1997 (Cwlth), subdivision 124-Q; and

Note     A roll-over involves a scheme for interposing a unit trust scheme (whether a new or existing unit trust scheme) between people who have an ownership interest in 2 or more unit trust schemes, or in 1 or more companies and 1 or more unit trust schemes, and the unit trust schemes or companies in which they have an ownership interest. The interests of the unit holders or shareholders are stapled together to form stapled securities and the interposed unit trust becomes the owner of all the stapled interests.

        (b)     when the scheme is completed, the interposed trust will be a listed trust, widely held trust or landholder; and

        (c)     the acquisition is not part of a scheme a purpose of which is to minimise duty otherwise payable under this Act; and

        (d)     the conditions of the exemption, if any, will be met by the applicant.

    (3)     If duty under this chapter has been paid on the relevant acquisition, the commissioner must refund any duty paid that is not payable because of the exemption.

115K     Conditions of exemption

    (1)     An exemption granted under this division is subject to any conditions stated by the commissioner.

    (2)     A condition of the exemption is binding on each exchanging member.

115L     Revocation of exemption

    (1)     The commissioner may revoke an exemption granted under this division if—

        (a)     the interposed trust is not a listed trust, widely held trust or landholder when the scheme is completed; or

        (b)     the interposed trust ceases to be a listed trust, widely held trust or landholder within 12 months after the day the scheme is completed; or

        (c)     the commissioner is no longer satisfied of a matter mentioned in section 115J (2) (a) or (c); or

        (d)     the decision to grant the exemption was based on false or misleading information in a material particular given to the commissioner in relation to the application; or

        (e)     a condition of the exemption is not met.

    (2)     If the commissioner revokes an exemption granted under this division—

        (a)     duty is chargeable under this chapter on the relevant acquisition as if the exemption had never been granted; and

        (b)     the exchanging member who made the relevant acquisition must lodge an acquisition statement with the commissioner not later than 28 days after the day the exemption is revoked; and

        (c)     the commissioner must make an assessment of duty chargeable under this chapter on the relevant acquisition; and

        (d)     a tax default happens for the Taxation Administration Act if the whole of any duty assessed under paragraph (c) is not paid to the commissioner within 90 days after the assessment.