Western Australian Current Acts Western Australian Current Acts (1) Despite anything
else in this Division, duty is to be calculated under this section in respect
of a relevant acquisition by a person of an interest in a landholder if the
acquisition —
(a)
occurs in the circumstances referred to in subsection (2); and
(b) is
not exempt under section 167 because the effect of the acquisition is that the
person receives a benefit in excess of the person’s entitlement.
Note for this subsection:
The combined operation
of sections 29(4) and 167 will make the acquisition exempt if the value of the
person’s benefit is not in excess of the person’s entitlement.
(2) The circumstances
referred to are that —
(a) the
relevant acquisition occurs as a result of a transfer of shares in a
corporation or units in a unit trust scheme by —
(i)
the liquidator of a corporation in the course of a
distribution of its assets as a consequence of the winding up of the
corporation; or
(ii)
the trustee of a unit trust scheme in the course of the
winding up of the scheme;
and
(b) the
person concerned is —
(i)
a shareholder in the corporation; or
(ii)
a unit holder in the unit trust scheme,
that is being wound
up; and
(c) the
Commissioner is satisfied that the winding up is not a scheme or arrangement,
or part of a scheme or arrangement, for which a dominant purpose of any party
is the reduction of the duty otherwise payable.
(3) The amount of duty
payable in respect of the relevant acquisition is an amount that bears to the
amount of duty that would otherwise be calculated under this Division in
respect of the acquisition the same proportion as the value of the benefit
received by the person in excess of the person’s entitlement bears to
the value of all the assets distributed or to be distributed to the person as
a consequence of the winding up.
(4) For the purposes
of this section —
(a) a
shareholder in a corporation receives a benefit in excess of the
shareholder’s entitlement if the value, when the winding up begins, of
all the assets distributed or to be distributed to the shareholder (the
distributed value ) exceeds the value at that time of the shareholder’s
entitlement to the net assets of the corporation (the entitlement value ); and
(b) a
unit holder in a unit trust scheme receives a benefit in excess of the unit
holder’s entitlement if the value, when the winding up begins, of all
the assets distributed or to be distributed to the unit holder (also the
distributed value ) exceeds the value at that time of the unit holder’s
entitlement to the net assets held by the trustee of the unit trust scheme as
trustee of that trust (also the entitlement value ).
(5) For the purpose of
calculating duty under subsection (3), the value of a benefit received by a
shareholder or unit holder in excess of the person’s entitlement is the
greater of —
(a) the
amount by which the distributed value exceeds the entitlement value in
relation to the person; and
(b) the
amount that is the total of —
(i)
any amount owing to the shareholder or unit holder that
the shareholder or unit holder has, in the relevant period, released the
corporation or the trustee of the unit trust scheme from paying; and
(ii)
the amount of any liability that the shareholder or unit
holder, or a person related to the shareholder or unit holder, has, in the
relevant period, assumed or discharged on behalf of the corporation or the
trustee of the unit trust scheme.
(6) In subsection
(5)(b) —
person related , to a shareholder or unit holder,
means that the person and the shareholder or unit holder are related persons
within the meaning of section 162(1)(a) to (g);
relevant period means the period beginning on the
day that is 12 months before the day on which the winding up begins and ending
on the day on which the relevant acquisition occurs.
(7A) For the purposes
of subsection (5)(b)(ii), the Commissioner may exclude part or all of the
amount of any liability that a person related to a shareholder or unit holder,
as the case requires, has assumed or discharged if the Commissioner is
satisfied that it is appropriate to do so having regard to the application of
subsection (5) to all relevant acquisitions occurring as a consequence of the
winding up.
(7) Section 29(6), (7)
and (8) apply for the purposes of subsection (2)(c) as if —
(a) a
reference to the property were a reference to the shares or the units, as the
case may require; and
(b) a
reference to the duty chargeable were a reference to the duty payable in
respect of the relevant acquisition.
[Section 194 2 amended: No. 29 of 2012 s. 5.]
[Heading inserted: No. 10 of 2013 s. 6.]