Western Australian Current Acts Western Australian Current Acts (1) In this section
—
cancelled transaction has the meaning given in
subsection (2);
replacement transaction , in relation to a
cancelled transaction, means another dutiable transaction that —
(a) is
between all of the same parties as the parties to the cancelled transaction;
and
(b) is
substantially similar in effect to the cancelled transaction; and
(c) in
the opinion of the Commissioner, is a scheme or arrangement, or part of a
scheme or arrangement, for which the sole or dominant purpose of any party is
to avoid, reduce or defer the payment of tax;
subsale transaction , in relation to a cancelled
transaction, means another dutiable transaction which results in a beneficial
interest in the dutiable property the subject of the cancelled transaction
being held by —
(a) a
person who is not a party to the cancelled transaction, a result which is
contemplated or provided for under the cancelled transaction; or
(b) a
person who is not a party to the cancelled transaction, a result which is
substantially similar in effect to the effect of the cancelled transaction; or
(c)
another person, as a result of an agreement, arrangement or understanding
between a person liable to pay duty on the cancelled transaction and any other
party to the transaction (including any other person liable to pay duty on the
cancelled transaction).
(2) A reference to a
cancelled transaction is to a dutiable transaction that has not been, and will
not be, carried into effect but the following transactions are not cancelled
transactions —
(a) a
call option of a simultaneous put and call option taken to be an agreement for
the transfer of the option property under section 45;
(b) an
assignment of a call option taken to be an agreement for the transfer of the
option property under section 49;
(c) a
terms contract (within the meaning given in the Sale of Land Act 1970 ) if
the person liable to pay duty on the transaction has under the contract,
obtained exclusive use or control of the dutiable property, whether or not
that contract is not fully carried into effect for any reason;
(d) a
concessional farm-in transaction if the farmee has fulfilled the exploration
requirement for the concessional farm-in transaction.
(3A) To avoid doubt,
for the purposes of subsection (2), a dutiable transaction has not been, and
will not be, carried into effect if —
(a) the
transaction is a transfer of dutiable property; and
(b) the
transaction is effected or evidenced by an electronic conveyancing instrument
(as defined in section 22A); and
(c)
under section 42, no duty is chargeable on the transfer; and
(d) the
instrument, having been digitally signed (as defined in the
Electronic Conveyancing Act 2014 section 3(1)) is unsigned in accordance with
the participation rules (as so defined) applicable to that instrument.
(3) Subject to
subsection (4), duty is not chargeable on a cancelled transaction.
(4) Duty is chargeable
on a cancelled transaction if the transaction has been cancelled so that a
replacement transaction or a subsale transaction can be entered into.
(5) The Commissioner,
on the application of a taxpayer, is to reassess the liability to duty of a
dutiable transaction that is not liable to duty because of this section.
(6) An application for
assessment or reassessment under this section in relation to a cancelled
transaction must be —
(a) in
the approved form; and
(b)
accompanied by such transaction record for the transaction as is required to
be lodged under section 23.
(7) For the purposes
of this section, in relation to an agreement for the transfer of dutiable
property or to a concessional farm-in transaction, the
Taxation Administration Act section 17 applies as if —
(a)
despite subsection (1) of that section, a person is not entitled to apply for
a reassessment —
(i)
more than 5 years after the original assessment was made;
or
(ii)
more than 12 months after the day on which the agreement
for the transfer of dutiable property, or the concessional farm-in
transaction, became a cancelled transaction,
whichever is the
later; and
(b)
despite subsection (4) of that section, the Commissioner may only make a
reassessment on an application if the application was made within that time.
[Section 107 amended: No. 29 of 2012 s. 6; No. 2
of 2014 s. 53; No. 12 of 2019 s. 42; No. 37 of 2022 s. 9.]