Western Australian Numbered Acts Western Australian Numbered Acts After section 74A
the following sections are inserted —
“
74B. Transactions involving a call option
and a put option
(1) In this
section —
“call option” means the right referred
to in subsection (2)(a);
“option property” means —
(a) the
property to which the call option applies; or
(b) if
the put option applies to only a part of the property to which the call option
applies, that part of the property;
“property” includes an estate or
interest in property;
“put option” means the right referred
to in subsection (2)(b).
(2) Subject to
subsection (4), this subsection applies if, at the same time —
(a) a
person ("A") has a right to require another person ("B") to sell property to
A, or to a person who has an agreement, arrangement or understanding with A
relating to the property; and
(b) B
has a right to require A, or a person referred to in paragraph (a), to
purchase —
(i)
the property;
(ii)
a part of the property; or
(iii)
property that includes the property,
from B.
(3)
Subsection (2) applies regardless of when the call option or the put
option is exercisable.
(4) The Commissioner
may determine that subsection (2) does not apply if the Commissioner is
satisfied —
(a) that
the call option and the put option are for, and only for, the purpose of
obtaining finance or making other financial arrangements; or
(b) that
the call option and the put option form part of a scheme of call options and
put options given by the proprietors of a business that —
(i)
are for, and only for, the purpose of facilitating the
continuation of the business by one or some of the proprietors (the
"continuing proprietor or proprietors” ); and
(ii)
are not exercisable except on the occurrence of an event
specified in them that would cause the continuing proprietor or proprietors to
seek to acquire the interest of another of the proprietors.
(5) In subsection
(4)(b) —
“proprietor” means —
(a) in
the case of a partnership, a partner;
(b) in
the case of a company, a shareholder;
(c) in
the case of a unit trust scheme, a unit holder; or
(d) in
any other case, a person the Commissioner determines to be a proprietor of the
business.
(6) From the time when
subsection (2) applies the call option is to be regarded as —
(a) a
contract for the sale of the option property to A for the purposes of
section 74(1); or
(b) an
acquisition by A of beneficial ownership of the option property for the
purposes of section 31B,
whichever is
applicable in the circumstances.
(7) The consideration
for the contract or acquisition mentioned in subsection (6) is taken to
be —
(a) the
sum of —
(i)
the amount paid by way of consideration for the granting
of the call option in respect of the option property; and
(ii)
the amount payable in the event of the call option being
exercised in respect of the option property;
or
(b) if
the unencumbered value of the option property is ascertainable and it is
greater than the sum mentioned in paragraph (a), that unencumbered value.
(8) If as a result of
the call option or the put option being exercised —
(a) a
contract or agreement for the sale of the option property is executed; or
(b)
there is an acquisition of beneficial ownership of the option property for the
purposes of section 31B,
the duty payable in
respect of the contract or agreement or because of the acquisition is to be
reduced by the amount of any duty paid because of subsections (6)
and (7).
(9) This subsection
applies if —
(a) A
has assigned the call option to another person ("C") so that C has a right to
require B to sell the option property to C, or to a person who has an
agreement, arrangement or understanding with C relating to the property; and
(b) B
has a right to require C, or a person referred to in paragraph (a), to
purchase the option property from B.
(10) If
subsection (9) applies, subsection (2) does not apply in relation to
the rights of C and B referred to in subsection (9)(a) and (b).
(11) From the time
when subsection (9) applies the assignment of the call option is to be
regarded as —
(a) a
contract for the sale of the option property to C for the purposes of
section 74(1); or
(b) an
acquisition by C of beneficial ownership of the option property for the
purposes of section 31B,
whichever is
applicable in the circumstances.
(12) The consideration
for the contract or acquisition mentioned in subsection (11) is taken to
be —
(a) the
sum of —
(i)
the amount paid by way of consideration for the
assignment of the right referred to in subsection (9)(a); and
(ii)
the amount payable in the event of the right referred to
in subsection (9)(a) being exercised;
or
(b) if
the unencumbered value of the option property is ascertainable and it is
greater than the sum mentioned in paragraph (a), that unencumbered value.
(13) If as a result of
the right referred to in subsection (9)(a) or the right referred to in
subsection (9)(b) being exercised —
(a) a
contract or agreement for the sale of the option property is executed; or
(b)
there is an acquisition of beneficial ownership of the option property for the
purposes of section 31B,
the duty payable in
respect of the contract or agreement or because of the acquisition is to be
reduced by the amount of any duty paid because of subsections (11)
and (12).
(14) If —
(a) the
call option and the put option both expire without being exercised; or
(b)
after either of those options is rescinded or cancelled by agreement, the
other expires without being exercised,
and subsection (9) has
never applied, the duty chargeable on the call option is reduced to the amount
of duty that would have been payable but for subsections (6) and (7).
(15) If —
(a) the
rights referred to in subsection (9)(a) and (b) both expire without being
exercised; or
(b)
after either of those rights is rescinded, withdrawn, surrendered or cancelled
by agreement, the other expires without being exercised,
the duty chargeable on
the assignment of the call option is reduced to the amount of duty that would
have been payable but for subsections (11) and (12).
(16) Subject to
section 17 of the Taxation Administration Act 2003 , the Commissioner must
make any reassessment necessary to give effect to subsection (14) or (15).
(17) For the purposes
of subsection (16), section 17 of the Taxation Administration Act 2003
applies as if the original assessment had been made —
(a) in
the case of subsection (14), as soon as the call option and the put option had
both expired; or
(b) in
the case of subsection (15), as soon as the rights referred to in subsection
(9)(a) and (b) had both expired.
(18) In relation to
duty paid because of subsections (6) and (7) —
(a) the
matter is not carried into effect for the purposes of section 20(1)(a) or
(2)(a) if —
(i)
the call option and the put option are rescinded or
cancelled by agreement; or
(ii)
after either of those options expires without being
exercised, the other is rescinded or cancelled by agreement,
and
(b) if
section 20(1) or (2) applies, the amount of duty is not to be reduced to less
than the amount that would have been payable but for subsections (6) and (7).
(19) In relation to
duty paid because of subsections (11) and (12) —
(a) the
matter is not carried into effect for the purposes of section 20(1)(a) or
(2)(a) if —
(i)
the rights referred to in subsection (9)(a) or (b) are
rescinded, withdrawn, surrendered or cancelled by agreement; or
(ii)
after either of those rights expires without being
exercised, the other is rescinded, withdrawn, surrendered or cancelled by
agreement,
and
(b) if
section 20(1) or (2) applies, the amount of duty is not to be reduced to less
than the amount that would have been payable but for subsections (11) and
(12).
74C. Acquisition of certain business assets
(1) In this
section —
"business asset" means —
(a)
goodwill of a business;
(b) a
restraint of trade arrangement for a business;
(c) a
business identity;
(d) a
business licence as defined in paragraph (b) of the definition of that
term in section 73F(1) if it authorises the carrying out of an activity
in Western Australia and elsewhere;
(e) a
right of a business under an uncompleted contract to supply commodities or
provide services;
(f)
intellectual property of a business; or
(g)
things that a business has that are in the nature of rent rolls and client
lists;
"business identity" means a business name, trading
name or Internet domain name, or a right to use a business name, trading name
or Internet domain name;
“circuit layout right” means an
exclusive right under the Circuit Layouts Act 1989 of the Commonwealth
for an eligible layout under that Act;
“commodities” includes land, money,
credit and goods and any interest in them;
“franchise arrangement” means an
agreement or other
arrangement under which a person (the "franchisor") who carries on a business
authorises or permits another person (the
"franchisee") —
(a) to
engage in the business of producing, supplying or providing commodities or
services, or both, at a place other than the place of business of the
franchisor as long as the franchisee does so under —
(i)
a stated marketing, business or technical plan or system;
and
(ii)
a common format or common procedure, or both;
and
(b) to
use a mark or common trade name in such a way that the business carried on by
the franchisee is or is capable of being identified by the public as being
substantially associated with the mark or name identifying, commonly connected
with or controlled by the franchisor or a person who would be related to the
franchisor for the purposes of Part IIIBA;
“intellectual property”
means —
(a) a
patent, trademark, industrial design, copyright, registered design, plant
breeder right or circuit layout right;
(b)
anything else that has the following characteristics —
(i)
it is in the nature of a strategy, process, procedure,
mode of operation or way of working that enables a commodity or service to be
produced, supplied or provided or that enhances the production, supply,
provision or quality of a commodity or service;
(ii)
it was created, devised or developed to be used for
business purposes or, having been created, devised or developed for other
purposes, has been applied, adapted or modified for use for business purposes;
or
(c) a
right to use or exploit —
(i)
anything mentioned in paragraph (a) or (b); or
(ii)
an adaptation or modification of anything mentioned in
paragraph (a) or (b);
“plant breeder right”
means —
(a) a
plant breeder’s right under the Plant Breeder’s Rights
Act 1994 of the Commonwealth; or
(b) a
plant breeder’s right corresponding to a right mentioned in
paragraph (a);
“restraint of trade arrangement” for a
business means a restraint of trade arrangement which, in the opinion of the
Commissioner, enhances or is likely to enhance the value of the business.
(2) This section
applies if a business asset of a business is acquired by a person and, at any
time in the year preceding the acquisition, the business has —
(a) been
carried on in or from Western Australia; or
(b)
supplied commodities or provided services to customers in Western Australia.
(3) This section does
not apply to the acquisition of a business asset by the franchisee from the
franchisor in accordance with a franchise arrangement unless another person
has relinquished, or agreed not to extend, that business asset or a
business asset of the same kind so that the franchisee could acquire that
business asset.
(4) This section does
not apply to the acquisition of intellectual property unless the acquisition
is the subject of an arrangement that includes the acquisition of a
business asset other than intellectual property.
(5) If a
person —
(a)
carries on, or has carried on, a business (the "first business” ); and
(b)
creates intellectual property, a restraint of trade arrangement or a
business identity related to the first business for the purpose of the
carrying on of the first business or another business by another person,
the creation of the
intellectual property, restraint of trade arrangement or business identity is
to be regarded for the purposes of this section as the acquisition by that
other person of a business asset of the first business.
(6) If this section
applies —
(a) the
business asset is to be regarded for the purposes of this Act as property; and
(b) the
acquisition of the business asset is to be regarded for the purposes of this
Act as a transaction that transfers property and is chargeable with duty,
whether or not the
business asset would otherwise be regarded under this Act as property and
despite item 2(7) of the Third Schedule.
(7) Subject to
subsection (10), duty on the acquisition of the business asset is to be
assessed in accordance with whichever of subsection (8) or (9) is
applicable.
(8) If the principal
place of business or head office of the business is in Western Australia, duty
is to be assessed on the amount determined using the following
formula —
where —
A is the dutiable
amount;
CUV is the
consideration for the acquisition of the business asset, or the unencumbered
value of the business asset, whichever is the greater;
TS is the gross amount
(in Australian dollars) of all the commodities supplied and services provided
by the business in the last 3 completed financial years preceding the
acquisition; and
IS is the gross amount
(in Australian dollars) of the commodities supplied and services provided by
the business to customers elsewhere in Australia in the last 3 completed
financial years preceding the acquisition.
(9) If neither the
principal place of business nor the head office of the business is in Western
Australia, duty is to be assessed on the amount determined using the following
formula —
where —
A is the dutiable
amount;
CUV is the
consideration for the acquisition of the business asset, or the unencumbered
value of the business asset, whichever is the greater;
TS is the gross amount
(in Australian dollars) of all the commodities supplied and services provided
by the business in the last 3 completed financial years preceding the
acquisition; and
WAS is the gross
amount (in Australian dollars) of the commodities delivered and services
provided by the business to customers in Western Australia in the last 3
completed financial years preceding the acquisition.
(10) Despite whichever
of subsection (8) or (9) is applicable, the Commissioner may determine
the dutiable amount on another basis if the Commissioner is satisfied that the
other basis would be more appropriate in the circumstances.
(11) If this section
applies to the acquisition of a business asset as defined in
paragraph (d) of the definition of that term in subsection (1),
section 73F does not apply to the acquisition.
(12) Section 74
applies to a contract or agreement for the acquisition of a business asset to
which this section would apply.
”.