Western Australian Numbered Acts Western Australian Numbered Acts After
section 63AD the following sections are inserted —
“
63ADA. Registration of private unit trust
scheme as provisional public trust
(1) A unit trustee may
apply to the Commissioner in an approved form for registration of a unit trust
scheme as a provisional public trust if the application is made before the end
of the start up period.
(2) The Commissioner
may register the unit trust scheme as a provisional public trust for the start
up period if satisfied that —
(a) it
is intended that, by the end of the start up period, the unit trust scheme
will no longer be a private unit trust scheme within the meaning in
section 63(2); and
(b)
registration is not being used and is not likely to be used as part of a
scheme or arrangement with the collateral purpose of avoiding or reducing the
duty that otherwise would be or might become payable on the conveyance or
transfer of trust property.
(3) For the purpose of
being satisfied as to a matter referred to in subsection (2)(b), the
Commissioner may take into account any matter that the Commissioner considers
to be relevant.
(4) The
Commissioner —
(a) must
advise the unit trustee as to whether or not the Commissioner has registered
the unit trust scheme as a provisional public trust; and
(b) if
the Commissioner decides not to register a unit trust scheme as a provisional
public trust, must give the unit trustee reasons for that decision.
(5) Subject to
section 17 of the Taxation Administration Act 2003 , if the
Commissioner registers a unit trust scheme as a provisional public trust, then
the Commissioner must make any reassessment necessary to give effect to that
registration.
(6) If the
Commissioner decides not to register a unit trust scheme as a provisional
public trust, the unit trustee may challenge the validity or correctness of
that decision in accordance with Part 4 of the Taxation Administration
Act 2003 as if the unit trustee were a taxpayer and the decision were a
decision affecting the trustee’s liability to pay duty.
63ADB. Cancellation of registration of provisional
public trust
(1) For the purposes
of this section and section 63AE a disqualifying event occurs in relation
to a unit trust scheme that has been registered as a provisional public
trust —
(a) if,
on the last day of the start up period, the scheme is a private unit trust
scheme within the meaning in section 63(2); or
(b)
without limiting paragraph (a), if —
(i)
the start up period begins on the day on which the
prospectus or information memorandum for the scheme is lodged with the
Australian Securities and Investments Commission; and
(ii)
during the start up period, there is a disposition of a
unit that was held in the scheme on the first day of that period.
(2) A disposition
referred to in subsection (1)(b)(ii) is to be disregarded if the
Commissioner is satisfied that in the circumstances of a particular case it is
reasonable to do so.
(3) If a disqualifying
event occurs —
(a) the
Commissioner must cancel the registration of the unit trust scheme as a
provisional public trust;
(b) the
cancellation is taken to have had effect on and from immediately before the
start up period; and
(c) the
unit trustee must, within 14 days after the day on which the
disqualifying event occurs, give the Commissioner notice about the
disqualifying event, unless it is taken to have occurred under
subsection (4) or (5).
(4) If the
Commissioner has not been notified of the occurrence of a disqualifying event
but is satisfied that a disqualifying event has occurred —
(a) a
disqualifying event is taken to have occurred and subsection (3)(a) and
(b) apply; and
(b) the
Commissioner must notify the unit trustee of —
(i)
the cancellation under subsection (3)(a) of the
registration of the unit trust scheme as a provisional public trust;
(ii)
the reasons for the cancellation; and
(iii)
when the Commissioner is satisfied that the disqualifying
event occurred.
(5) If the
Commissioner is satisfied that a provisional public trust is being used as
part of a scheme or arrangement with the collateral purpose of avoiding or
reducing the duty that otherwise would be or might become payable on the
conveyance or transfer of trust property —
(a) a
disqualifying event is taken to have occurred and subsection (3)(a) and
(b) apply; and
(b) the
Commissioner must notify the unit trustee of the matters referred to in
subsection (4)(b).
(6) For the purposes
of subsection (5), if a conveyance or transfer of the trust property of a
provisional public trust —
(a) is
taken to be made for the purposes of section 73D(4); and
(b)
results solely from the allotment or issue of units in the provisional public
trust during the start up period,
the conveyance or
transfer is to be disregarded in relation to a unit held in the provisional
public trust on the first day of the start up period.
(7) For the purpose of
being satisfied as to a matter referred to in subsection (5), the
Commissioner may take into account any matter that the Commissioner considers
to be relevant.
”.