Commonwealth Numbered Acts

SALES TAX ASSESSMENT (No. 2) AMENDMENT ACT 1978 No. 198, 1978 - SECT 4

4. After section 4 of the Principal Act the following section is inserted:
Sale value of goods in special cases
''4A. (1) Where-

   (a)  goods (in this sub-section referred to as the 'relevant goods') have
        been sold by a registered person, or by a person required to be
        registered, who purchased the goods from the manufacturer, to an
        unregistered person or to a registered person who has not quoted his
        certificate in respect of the purchase of the goods;

   (b)  under an agreement entered into for the purpose, or for purposes that
        included the purpose, of securing that the amount of the sale value of
        the relevant goods would be less than the amount that could reasonably
        be expected to be the amount of the sale value of the relevant goods
        if the agreement had not been entered into, valuable consideration (in
        this section referred to as the 'relevant consideration') has been
        given, directly or indirectly, by the purchaser, or by another person,
        to the vendor or another person for, or in connection with, any of, or
        any 2 or more of, the following acts:

        (i)    the grant of a right or option to purchase goods;

        (ii)   the exercise, in whole or in part, of a right or option to
               purchase goods;

        (iii)  the surrender or other termination, in whole or in part, of a
               right or option to purchase goods;

        (iv)   allowing a right or option to purchase goods to lapse in whole
               or in part;

        (v)    the assignment, in whole or in part, of a right or option to
               purchase goods;

        (vi)   the provision of, or procuring the provision of, services in
               connection with the relevant goods; and

   (c)  the relevant goods were sold-

        (i)    in a case where the relevant consideration has been so given,
               in whole or in part, for, or in connection with any of, or any
               2 or more of, any acts referred to in sub-paragraphs (i) to (v)
               (inclusive) of paragraph (b)-after 20 September 1978; or

        (ii)   if sub-paragraph (i) does not apply but the relevant
               consideration has been given for, or in connection with, any
               acts referred to in sub-paragraph (vi) of paragraph (b)-after
               16 November 1978, the sale value of the relevant goods shall,
               for the purposes of this Act, be determined in accordance with
               the provisions of this section and not in accordance with the
               provisions of sub-section (1), (2), (3) or (4) of section  4. 

''(2) In sub-section (1)-

   (a)  a reference to a right or option to purchase goods shall be read as a
        reference to a right or option (including a contingent right or
        option) to purchase-

        (i)    goods, as defined in sub-section (1) of section 3 of the Sales
               Tax Assessment Act (No. 1) 1930 in its application in
               accordance with section 12 of this Act;

        (ii)   excluded goods; or

        (iii)  goods as so defined and excluded goods,

whether ascertained or not and whether they comprise or include the relevant
goods or not; and

   (b)  a reference to services in connection with the relevant goods shall be
        read as a reference to services in connection with the relevant goods
        or with the relevant goods and other goods (including excluded goods)
        and, without limiting the generality of the foregoing, shall be read
        as including a reference to-

        (i)    the doing of any act or thing in relation to the manufacture or
               marketing of the relevant goods or the relevant goods and other
               goods (including excluded goods);

        (ii)   the giving of a guarantee or warranty in respect of the
               relevant goods or the relevant goods and other goods (including
               excluded goods); or

        (iii)  the doing of any act or thing in relation to the relevant goods
               or the relevant goods and other goods (including excluded
               goods) after their sale.

''(3) For the purposes of sub-section (1), where any valuable consideration
given under an agreement entered into for the purpose, or for purposes that
included the purpose, of securing that the amount of the sale value of the
relevant goods would be less than the amount that could reasonably be expected
to be the amount of the sale value of the relevant goods if the agreement had
not been entered into is required to be calculated by reference to the value
or quantity of goods (which may include excluded goods) sold to the purchaser
of the relevant goods, the valuable consideration shall be deemed to have been
given under an agreement for or in connection with the doing of acts by way of
the provision of services in connection with the relevant goods.

''(4) Subject to sub-sections (5) and (6), for the purposes of this Act, the
sale value of goods the sale value of which is required to be determined in
accordance with the provisions of this section is-

   (a)  if the relevant goods are of a class which the vendor himself sells by
        wholesale-the amount for which the goods could reasonably be expected
        to have been sold by the vendor by wholesale if no agreement of a kind
        referred to in paragraph (b) of sub-section (1) had been entered into;
        or

   (b)  in any other case-the amount for which the vendor could reasonably be
        expected to have purchased identical goods from a manufacturer if the
        manufacturer had, in the ordinary course of his business, manufactured
        the identical goods for sale and had sold them to the vendor by
        wholesale and no agreement of a kind referred to in paragraph (b) of
        sub-section (1) had been entered into in relation to the sale of the
        identical goods.

''(5) Where-

   (a)  the sale value of the relevant goods would, but for sub-section (1),
        be required to be determined, for the purposes of this Act, in
        accordance with the provisions of sub-section (2) or (3) of section 4;
        and

   (b)  the return required to be furnished under this Act with respect to the
        goods-

        (i)    does not set forth any amount as the sale value of the goods;
               or

        (ii)   sets forth an amount as the sale value of the goods that is
               less than the amount which, in the opinion of the Commissioner,
               is a fair and reasonable wholesale value of the goods, the
               Commissioner may determine the amount which, in his opinion, is
               a fair and reasonable wholesale value of the goods and, if he
               does so, the Commissioner shall be deemed to have altered the
               sale value of the goods (whether a sale value was set forth in
               the return or not) to the amount so determined by him, and the
               value as so deemed to be altered shall be the sale value of
               those goods for the purposes of this Act.

''(6) Subject to sub-section (5), where-

   (a)  the sale value of the relevant goods is required to be determined, for
        the purposes of this Act, in accordance with the provisions of this
        section;

   (b)  the Commissioner is satisfied that, having regard to any connection
        between the vendor and the purchaser of the relevant goods or to any
        other relevant circumstances (including circumstances arising out of
        any agreement entered into between the vendor and the purchaser, or
        out of any other agreement, that is related, directly or indirectly,
        to the sale of the relevant goods), the vendor and the purchaser were
        not dealing with each other at arm's length in relation to the
        transaction; and

   (c)  the Commissioner is also satisfied-

        (i)    that the amount for which the relevant goods were sold is less
               than the amount (in this section referred to as the 'arm's
               length price') for which, in the opinion of the Commissioner,
               the relevant goods could reasonably be expected to have been
               sold if the vendor and the purchaser had been dealing with each
               other at arm's length in relation to the transaction and no
               agreement of a kind referred to in paragraph (b) of sub-section
               (1) had been entered into in relation to the sale of the
               relevant goods; or

        (ii)   that-

                (A)  the purchaser could have purchased identical goods from
                     another person (not being a manufacturer of identical
                     goods) and obtained delivery of the identical goods at or
                     about the time when the purchaser obtained delivery of
                     the relevant goods; and

                (B)  the amount for which the relevant goods were sold is less
                     than the amount (in this section referred to as the
                     'alternative price') for which, in the opinion of the
                     Commissioner, the identical goods could reasonably be
                     expected to have been sold to the purchaser if no
                     agreement of a kind referred to in paragraph (b) of
                     sub-section (1) had been entered into in relation to the
                     sale of the identical goods, the Commissioner shall alter
                     the sale value of the relevant goods to the amount
                     ascertained in accordance with sub-section (7), and the
                     sale value so altered shall be the sale value of the
                     relevant goods for the purposes of this Act.

''(7) The amount ascertained in relation to the relevant goods for the
purposes of sub-section (6) is-

   (a)  if the Commissioner is satisfied as to the matter mentioned in
        sub-paragraph (i) of paragraph (c) of sub-section (6) but not as to
        the matters mentioned in sub-paragraph (ii) of that paragraph-an
        amount equal to the arm's length price;

   (b)  if the Commissioner is satisfied as to the matters mentioned in
        sub-paragraph (ii) of paragraph (c) of sub-section (6) but not as to
        the matter mentioned in sub-paragraph (i) of that paragraph-an amount
        equal to the alternative price; or

   (c)  if the Commissioner is satisfied as to the matter mentioned in
        sub-paragraph (i) of paragraph (c) of sub-section (6) and also to the
        matters mentioned in sub-paragraph (ii) of that paragraph-an amount
        equal to the lesser of-

        (i)    the arm's length price; and

        (ii)   the alternative price.

''(8) For the purposes of this section, an agreement shall be taken to have
been entered into for a particular purpose, or for purposes that include a
particular purpose, if any of the parties to the agreement entered into the
agreement for that purpose or for purposes that included that purpose.

''(9) In this section-

   (a)  a reference to excluded goods shall be read as a reference to goods,
        including commodities, of a kind referred to in paragraph (a) or (b)
        of the definition of 'goods' in sub-section (1) of section 3 of the
        Sales Tax Assessment Act (No. 1) 1930 in its application in accordance
        with section 12 of this Act; and

   (b)  a reference to identical goods shall be read as a reference to goods
        identical in all material respects with the goods in relation to which
        the expression is used.

''(10) In this section, 'agreement' means any agreement, arrangement or
understanding-

   (a)  whether formal or informal;

   (b)  whether express or implied; or

   (c)  whether or not enforceable, or intended to be enforceable, by legal
        proceedings.''.