South Australian Numbered Acts South Australian Numbered Acts3—Amendment of section 71—Instruments chargeable as conveyances
(1) Section
71(4a)(a)—delete "managed investment scheme registered under Chapter 5C
of the Corporations Act 2001 of the Commonwealth" and substitute:
registered managed investment scheme
(2) Section
71—after subsection (4a) insert:
(4b) For the purposes
of this Act (other than Part 4)—
(a)
property is taken to be held beneficially by a unit trust scheme if it is held
by the trustees of the scheme in trust for the unitholders; and
(b) the
holder of a unit in a unit trust scheme that is taken under paragraph (a)
to hold property beneficially is taken to have a beneficial interest in that
property; and
(c) the
transfer, creation, surrender, renunciation, redemption, cancellation or
extinguishment of a unit in a unit trust scheme that is taken under
paragraph (a) to hold property beneficially is taken to be a transfer,
creation, surrender, renunciation, redemption, cancellation or extinguishment
(as appropriate) of a beneficial interest in that property.
(3) Section
71(5)(e)—delete paragraph (e) and substitute:
(da) a
transfer of property subject to a registered managed investment scheme if the
transfer is—
(i)
from the responsible entity of the scheme to a person as
primary custodian for the responsible entity; or
(ii)
from a person as primary custodian for the responsible
entity of the scheme to the responsible entity;
Exception to paragraph (da)—
Paragraph (da) does not apply to a transfer of property that is part of an
arrangement under which—
(a) the
property ceases to be subject to the scheme; or
(b) the
persons who are members of the scheme do not have the same interest in the
property after the property is transferred as they had immediately before the
arrangement was entered into.
(e) a
transfer of property by a trustee to a person who has a beneficial interest in
the property in the following circumstances:
(i)
the person has a beneficial interest in the property
(other than a potential beneficial interest) by virtue of an instrument that
is duly stamped; and
(ii)
the property was acquired for the trust, or became
subject to the trust—
(A) by virtue of an instrument duly stamped
with ad valorem duty; or
(B) as a result of a transaction to which
section 71E applies in relation to which a statement under that section
has been lodged and ad valorem duty paid; or
(C) under 1 of the other paragraphs of this
subsection (except paragraph (d)); and
(iii)
if the trust is a discretionary trust (other than a
superannuation fund or a unit trust)—the person acquired the beneficial
interest by virtue of a duly stamped instrument that is separate from the
instrument under which he or she became an object of the trust;
Exception to paragraph (e)—
If v 1 exceeds [v 2 -v 3 ], then the instrument is liable to ad valorem duty
as if it were a transfer of property with a value equivalent to the excess. In
this exception—
"v" "1" is the net value of the property transferred;
"v" "2" is the value of the beneficiary's interest in the trust immediately
before the transfer takes effect;
"v" "3" is the value of the beneficiary's interest in the trust immediately
after the transfer takes effect.
(4) Section
71(7)—delete subsection (7) and substitute:
(7) The following
provisions apply for the purposes of subsection (5)(e) (including the
exception to paragraph (e)):
(a) the
net value of property is calculated by subtracting from its unencumbered value
the amount of any liability subject to which the property is transferred
(other than a liability that is to be discharged after the transfer takes
effect by the trustee or for some other reason is not finally assumed by the
transferee);
(b) in
calculating the value of a beneficiary's interest in a trust, all assets and
liabilities of the trust are to be taken into account;
(c) a
member of a superannuation fund is to be taken to have a beneficial interest
in the property of the fund equivalent to the amount to which the member would
be entitled on transfer of membership to another fund;
(d)
if—
(i)
property of a trust consisting of land is divided by
community plan under the Community Titles Act 1996 (including by strata
plan under that Act); and
(ii)
land subject to the division is subsequently transferred
to a beneficiary of the trust; and
(iii)
the Commissioner is satisfied that the land the subject
of the transfer was transferred to the beneficiary pursuant to the trust and
is identifiable as property in which the beneficiary had a fixed beneficial
interest contingent on, and arising from, the division,
the transfer will be taken to have been a transfer to the beneficiary of
property in which the beneficiary had a beneficial interest.
(5) Section
71(15)—after the definition of "family group insert:
"primary custodian" for the responsible entity of a registered managed
investment scheme means the person that has been appointed under
section 601FB(2) of the Corporations Act 2001 of the Commonwealth to hold
property for the scheme as agent for the responsible entity (but does not
include a person who is taken under section 601FB(3) of the Corporations
Act 2001 of the Commonwealth to be an agent appointed by the responsible
entity to do something for the purposes of subsection (2) of that
section);
(6) Section
71(15)—after the definition of "public company insert:
"registered managed investment scheme" means a managed investment scheme
registered under Chapter 5C of the Corporations Act 2001 of the Commonwealth;
"responsible entity" for a registered managed investment scheme means the
responsible entity for the scheme under the Corporations Act 2001 of the
Commonwealth;
"superannuation fund" means a fund that is, under section 45 of the
Superannuation Industry (Supervision) Act 1993 of the Commonwealth, a
complying superannuation fund for the purposes the Income Tax Assessment
Act 1936 or the Income Tax Assessment Act 1997 of the Commonwealth;
(7) Section
71(15)—after the definition of "trustee" insert:
"unit trust" means a trust giving effect to a unit trust scheme.