Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Part 3.2A Registration of unit trust schemes
95A Definitions—pt 3.2A
In this part:
"disqualifying circumstance", in relation to a registered unit trust scheme, means a circumstance that causes the scheme to fail or cease to meet the relevant criteria for registration of the scheme.
"registered" means registered under this part.
"responsible entity", of a unit trust scheme for which there is no responsible entity within the meaning of the Corporations Act, section 9, means the trustee of the scheme.
Note Responsible entity , for this Act generally—see the Corporations Act, s 9 (see dict).
95B Applications for registration
(1) The responsible entity of a unit trust scheme may apply to the commissioner for registration of the scheme as—
(a) an imminent public unit trust scheme; or
(b) a wholesale unit trust scheme; or
(c) an imminent wholesale unit trust scheme.
Note If a form is approved under the Taxation Administration Act, s 139C for an application, the form must be used.
(2) In considering an application for registration, the commissioner may take into account any matter the commissioner considers on reasonable grounds relevant.
95C Registration of imminent public unit trust schemes
(1) On application by the responsible entity of a unit trust scheme, the commissioner may register the unit trust scheme as an imminent public unit trust scheme if satisfied that the scheme meets the criteria for registration as an imminent public unit trust scheme.
(2) The criteria for registration as an imminent public unit trust scheme are that—
(a) the unit trust scheme will become a listed trust or widely held trust within the prescribed period after the date of effect under section 95F (1) of the registration of the unit trust scheme as an imminent public unit trust scheme; and
(b) the units issued in the unit trust scheme before the scheme becomes a listed trust or widely held trust have been or will be issued only for the purpose of the unit trust scheme becoming a listed trust or widely held trust; and
(c) those units are or will be the only units issued until the unit trust scheme becomes a listed trust or widely held trust.
(3) In this section:
"prescribed period" means—
(a) 12 months; or
(b) if the commissioner allows, in writing, a longer period—the longer period.
95D Registration of wholesale unit trust schemes
(1) On application by the responsible entity of a unit trust scheme, other than a listed trust, the commissioner may register the unit trust scheme as a wholesale unit trust scheme if satisfied that the scheme meets the criteria for registration as a wholesale unit trust scheme.
Note Listed trust —see the dictionary.
(2) The criteria for registration as a wholesale unit trust scheme are that—
(a) at least 80% of the units in the unit trust scheme are held by qualifying investors; and
(b) each qualifying investor holds less than 50% of the units in the unit trust scheme or, if a qualifying investor holds units in the unit trust scheme in more than 1 capacity, the qualifying investor holds less than 50% of the units in each capacity.
(3) For this section, a qualifying investor in a unit trust scheme is a person who holds units in the unit trust scheme in any of the following capacities:
(a) as the trustee of a complying superannuation fund that has at least 300 members;
(b) as the trustee of a complying approved deposit fund that has at least 300 members;
(c) as the trustee of a pooled superannuation trust;
(d) as the trustee of a public unit trust scheme;
(e) as a life company if its holding of the units in the unit trust scheme is an investment of a statutory fund maintained by it under the Life Insurance Act 1995 (Cwlth);
Note For units held in a separate capacity by a life company, see s (4).
(f) as a custodian for a trustee, or a trustee for a life company, mentioned in any of paragraphs (a) to (e) in its capacity as such a custodian or trustee;
(g) as the trustee of another wholesale unit trust scheme;
(h) as the custodian or trustee for an IDPS if the IDPS has at least 300 clients or investors none of whom (individually or together with any associated person) is beneficially entitled to more than 20% of the property to which the IDPS relates;
Note IDPS means an investor directed portfolio service—see the relevant ASIC regulatory guide which is defined in s (6).
(i) as the responsible entity of a managed investment scheme registered under the Corporations Act (not being a person to whom paragraph (d) or (h) applies) if the managed investment scheme has at least 300 members, none of whom (individually or together with any associated person) is beneficially entitled to more than 20% of the property to which the scheme relates;
(j) as the Crown in right of the Territory, the Commonwealth, a State or another Territory (including any statutory body representing the Crown in right of the Territory, the Commonwealth, a State or another Territory);
(k) a capacity approved by the commissioner under subsection (5).
(4) For subsection (3) (e), the holding of units by a life company by way of an investment of a statutory fund of the life company is taken to be a holding of units by the life company in a separate capacity from a holding of units by the life company by way of investment of another statutory fund of the life company.
(5) The commissioner may approve a capacity to be a capacity for subsection (3) (k) if satisfied that—
(a) the capacity corresponds to a capacity mentioned in any of subsection (3) (a) to (f) under the law of an external Territory or foreign country; or
(b) the capacity is as a wholly owned subsidiary of a person in a capacity referred to in paragraph (a).
(6) In this section:
"IDPS"—see the relevant ASIC regulatory guide.
"relevant ASIC regulatory guide" means—
(a) the regulatory guide RG 148: Investor directed portfolio services published by the Australian Securities and Investments Commission, as in force from time to time; or
(b) if the Commission publishes another regulatory guide (the replacement guide ) as a replacement for the guide mentioned in paragraph (a)—the replacement guide.
"subsidiary"—see the Corporations Act, section 9.
(7) The Legislation Act, section 47 (6) does not apply to the relevant ASIC regulatory guide.
95E Registration of imminent wholesale unit trust schemes
(1) On application by the responsible entity of a unit trust scheme, the commissioner may register the unit trust scheme as an imminent wholesale unit trust scheme if satisfied that the scheme meets the criteria for registration as an imminent wholesale unit trust scheme.
(2) The criteria for registration as an imminent wholesale unit trust scheme are that—
(a) the unit trust scheme will meet the criteria for registration as a wholesale unit trust scheme within the prescribed period after the date of effect under section 95F (1) of the registration of the unit trust scheme as an imminent wholesale unit trust scheme; and
(b) the units issued in the unit trust scheme before the scheme meets the criteria for registration as a wholesale unit trust scheme have been or will be issued only for the purpose of the unit trust scheme meeting those criteria; and
(c) those units are or will be the only units issued before the unit trust scheme meets those criteria.
(3) In this section:
"prescribed period" means—
(a) 12 months; or
(b) if the commissioner allows, in writing, a longer period—the longer period.
95F Duration of registration
(1) Registration of a unit trust scheme takes effect on the day notified in writing by the commissioner to the applicant for registration of the scheme as being the date of effect of the registration.
(2) The date of effect may be earlier than the day on which the unit trust scheme is registered.
(3) Unless cancelled sooner, the registration of an imminent public unit trust scheme remains in force for the prescribed period under section 95C.
Note For the cancellation of registration, see s 95I.
(4) Registration of a unit trust scheme registered as a wholesale unit trust scheme remains in force until it is cancelled by the commissioner.
(5) Unless cancelled sooner, the registration of an imminent wholesale unit trust scheme remains in force for the prescribed period under section 95E.
95G Register of wholesale unit trust schemes
(1) The commissioner must keep a register of unit trust schemes registered as wholesale unit trust schemes.
(2) The register must include the following information for each unit trust scheme registered as a wholesale unit trust scheme:
(a) the name of the scheme;
(b) the date of effect under section 95F (1) of the registration of the scheme;
(c) any other information the commissioner approves.
(3) The register is to be kept in the form the commissioner considers appropriate.
(4) The commissioner must arrange for a copy of the register to be made available for public inspection on the revenue website and in any other way the commissioner approves.
(5) For subsection (4), the commissioner may declare a website to be the revenue website.
(6) A declaration under subsection (5) is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
95H Reporting requirements for registered schemes
(1) It is a condition of registration of a wholesale unit trust scheme that the responsible entity of the unit trust scheme gives the commissioner, within 1 month after the end of each financial year, a report containing the following particulars for the financial year:
(a) any acquisition by a person of any interest in the unit trust scheme that would entitle the person, in the event of an immediate distribution of all the property of the unit trust scheme, to at least 20% of the property distributed;
(b) any acquisition by a person of any interest in the unit trust scheme that, when aggregated with other interests the person has in the unit trust scheme, would entitle the person, in the event of an immediate distribution of all the property of the unit trust scheme, to at least 20% of the property distributed.
Note If a form is approved under the Taxation Administration Act, s 139C for a report, the form must be used.
(2) The commissioner may, as a condition of registration, impose other reporting requirements on the responsible entity of a registered unit trust scheme (whether or not a wholesale unit trust scheme).
(3) Requirements may be imposed under subsection (2) at the time of registration or at any later time by written notice sent to the responsible entity by the commissioner.
95I Cancellation of registration
(1) The commissioner may cancel the registration of a unit trust scheme at any time if the commissioner is satisfied that—
(a) a disqualifying circumstance has occurred in relation to the scheme; or
Note Disqualifying circumstance —see s 95A.
(b) the responsible entity of the unit trust scheme has contravened a condition of registration of the unit trust scheme imposed under this part; or
(c) for an imminent public unit trust scheme—the unit trust scheme has become a listed trust or widely held trust; or
(d) for an imminent wholesale unit trust scheme—the unit trust scheme is registered as a wholesale unit trust scheme.
(2) The registration of a unit trust scheme is cancelled by the commissioner giving written notice of the cancellation to the responsible entity of the scheme.
(3) A notice under subsection (2) must include the reasons for the cancellation.
95J Disqualifying circumstances for registered unit trust schemes
(1) If a disqualifying circumstance happens in relation to a registered unit trust scheme—
(a) the responsible entity of the unit trust scheme must give the commissioner written notice of the disqualifying circumstance not later than 28 days after the day it happens; and
(b) the unit trust scheme is taken to have not been a public unit trust scheme or wholesale unit trust scheme on and after the disqualification date; and
(c) the commissioner must make an assessment of duty chargeable under this Act in relation to any acquisition of an interest in the unit trust scheme as if the unit trust scheme had not been a wholesale unit trust scheme or public unit trust scheme, as the case requires, on and after the disqualification date; and
(d) a tax default occurs for the purposes of the Taxation Administration Act if the whole of any duty assessed under paragraph (c) is not paid to the commissioner within 90 days after the assessment.
Note Disqualifying circumstance —see s 95A.
(2) For this section, the "disqualification date" means—
(a) in relation to a unit trust scheme registered as a wholesale unit trust scheme—the date on which the disqualifying circumstance happens; or
(b) in relation to a unit trust scheme registered as an imminent public unit trust scheme or imminent wholesale unit trust scheme—the date of effect under section 95F (1) of the registration of the unit trust scheme.