Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actssubstitute
Division 3.2.1 Preliminary
78 Definitions—pt 3.2
In this part:
"acquires", an interest in a landholder—see section 84.
"associated person"—see section 83A and section 86 (2).
"entity"—see section 78A.
"interest", in a landholder—see section 83.
"landholder"—see section 79.
"landholding"—see section 80.
"relevant acquisition", in relation to a person—see section 86.
"relevant period", for a relevant acquisition, means—
(a) the 3-year period before the relevant acquisition; or
(b) if a person makes a relevant acquisition because the person acquires an interest by exercising a right to acquire the interest—the 3-year period before the person or an associated person acquired the right to acquire the interest and ending on the date of the relevant acquisition.
"significant interest", in a landholder—see section 83.
Division 3.2.2 Landholding entities
78A Meaning of entity —pt 3.2
In this part:
"entity" means—
(a) a private company; or
(b) a private unit trust scheme; or
(c) a wholesale unit trust scheme.
Note Private company , private unit trust scheme and "wholesale unit trust scheme"—see the dictionary.
79 Meaning of landholder —pt 3.2
For this part, a landholder is an entity that has a landholding in the ACT.
80 Meaning of landholding —pt 3.2
(1) For this part, a landholding is any interest in land, other than the interest of a mortgagee, chargee or other secured creditor or a profit à prendre .
Note Interest —see the dictionary.
(2) However, an interest in land is not a landholding of—
(a) a private company unless the interest of the company is a beneficial interest; or
(b) a unit trust scheme unless the interest is held by the trustees in their capacity as trustees of the scheme.
(3) This section is in aid of, but does not limit, the operation of any provision of this part providing for constructive ownership of interests.
(4) For this part, the vendor and the purchaser under an uncompleted agreement for the sale of land are taken to be separately entitled to the whole of the land.
81 Constructive ownership of landholdings and other property—linked entities
(1) In addition to any interest in land or other property that it may hold in its own right, an entity (the principal entity ) is taken, for this part, to hold an interest in land or other property held by a linked entity of the principal entity.
(2) For this section, a "linked entity" of a principal entity means a person (other than an individual)—
(a) who is part of a chain of people—
(i) which includes the principal entity; and
(ii) which is comprised of 1 or more links; and
(iii) in which a link exists if a person would be entitled to receive at least 20% of the unencumbered value of the property of another person if the other person were to be wound up; and
(iv) which does not include in any of the links between the person and the principal entity, a public unit trust scheme, a wholesale unit trust scheme or a company whose shares are listed on the Australian Stock Exchange or any other exchange of the World Federation of Exchanges; and
(b) who is not a public unit trust scheme, a wholesale unit trust scheme or a company whose shares are listed on the Australian Stock Exchange or any other exchange of the World Federation of Exchanges.
(3) The value, for duty purposes, of the interest in land or other property that a principal entity is taken, by subsection (1), to hold because of a holding by a linked entity is that portion of the interest's unencumbered value to which the principal entity would be entitled (without regard to any liabilities of the linked entity or any other person in the ownership chain) if each entity in the chain of entities were to be wound up.
(4) In this section:
"person" includes an entity.
Note Entity —see s 78A.
82 Constructive ownership of landholdings and other property—discretionary trusts
(1) For this section, a person is a beneficiary of a discretionary trust if the person is a person, or a member of a class of people, in whose favour, by the terms of the trust, capital the subject of the trust may be applied in the event—
(a) of the exercise of a power or discretion in favour of the person or class; or
(b) that a discretion conferred under the trust is not exercised.
Note Discretionary trust —see the dictionary.
(2) A beneficiary of a discretionary trust is taken to own or to be otherwise entitled to the property the subject of the trust.
(3) For this part, any property that is the subject of a discretionary trust (the primary trust ) is taken to be the subject of any other discretionary trust—
(a) that is a beneficiary of the primary trust; or
(b) any trustee of which (in the capacity of trustee) is a beneficiary of the primary trust.
(4) Subsection (3) extends to apply to property that is the subject of a discretionary trust only by the operation of that subsection.
(5) However, subsection (2) or (3) does not apply in a particular case if the commissioner—
(a) is satisfied that the application of the subsection would be inequitable; and
(b) determines, in writing, that the subsection does not apply.
(6) In this section:
"person" includes an entity.
Note Entity —see s 78A.
83 Interest and significant interest in landholders—pt 3.2
(1) For this part, a person has an interest in a landholder if the person has an entitlement (otherwise than as a creditor or other person to whom the landholder is liable) to a distribution of property from the landholder on a winding up of the landholder or otherwise.
(2) A person who, under subsection (1), has an interest in a landholder has a significant interest in the landholder if the person, in the event of a distribution of all the property of the landholder immediately after the interest was acquired, would be entitled to—
(a) if the landholder is a private unit trust scheme—at least 20% of the property distributed; or
(b) if the landholder is a private company or wholesale unit trust scheme—at least 50% of the property distributed.
(3) In this section:
"person" includes an entity.
Note Entity —see s 78A.
83A Meaning of associated person —pt 3.2
(1) Without limiting the meaning of the dictionary, definition of "associated person", paragraph (a), a public company and a subsidiary of a public company are taken to be associated people for this part.
(2) However, the responsible entity of a managed investment scheme (the first scheme ), and the responsible entity of another managed investment scheme (the other scheme ), are associated people for this part only if a person who is a member of the first scheme and is beneficially entitled to more than 20% of the property to which the scheme relates is also a member of the other scheme and is beneficially entitled to more than 20% of the property to which the other scheme relates.
Note For another exception to associated person —see s 86 (2).
(3) In this section:
"subsidiary"—see the Corporations Act, section 9.
84 How person acquires an interest in a landholder—pt 3.2
(1) For this part, a person acquires an interest in a landholder if the person obtains an interest, or the person's interest increases, in the landholder regardless of how it is obtained or increased.
(2) Without limiting subsection (1), a person may acquire an interest in a landholder—
(a) by any of the following:
(i) purchase, gift, allotment, issue or transfer of a share or unit in the landholder;
(ii) variation, abrogation or alteration of a right attaching to any such share or unit;
(iii) cancellation, redemption or surrender of any such share or unit;
(iv) variation, abrogation or alteration of a right of a holder of any such share or unit;
(v) payment of an amount owing for any such share or unit; or
(b) by any combination of the means mentioned in paragraph (a).
(3) If the acquisition arises from an agreement to purchase, allot or issue a unit or share, the acquisition is made, for this part, when the agreement is completed.
(4) For subsection (3)—
(a) it does not matter whether or not the acquisition or interest acquired is registered; and
(b) an agreement is taken to be completed when the necessary transfer or title documents are delivered to the person acquiring the interest and the purchase price is paid in full.
(5) To remove any doubt, a person may acquire an interest in a landholder without acquiring shares or units in the landholder.