The following definitions, which are related to landholders, reference the Duties Act 2000 (the Act).
- Associated person
- Associated transaction
- Beneficiary
- Declared public unit trust scheme
- Declared wholesale unit trust scheme
- Discretionary trust
- Disqualifying circumstance
- Equivalent exchange
- Goods that are excluded from the definition of dutiable property under s10(1)(d)
- Foreign corporation
- Foreign natural person
- Foreign purchaser
- Foreign trust
- Imminent wholesale unit trust scheme
- Linked entity
- Listed company
- Listed trust
- Market capitalisation
- Net tangible assets
- Primary production
- Private company
- Private unit trust scheme
- Public unit trust scheme
- Residential property
- Shares
- Unit
- Unit trust scheme
- Wholesale unit trust scheme
- Widely held trust
- Winding up
Associated person can include:
- related persons
- related bodies corporate
- companies if there are common majority shareholders
- trustees of trusts if there are common beneficiaries
- a company and a trustee if the company or a related body corporate of the company is a beneficiary of the trust of which the trustee is a trustee
- trustees if one of the trustees is a beneficiary of the private unit trust of which the other trustee is a trustee
- persons, if one of those persons is an associated person of a person of whom the other of those persons is an associated person.
For a complete list, refer to s3 of the Act.
Associated transaction means, in relation to the acquisition of an interest in a landholder by a person, an acquisition of an interest in the landholder by another person in circumstances in which those persons are acting in concert; or the acquisitions form, evidence, give effect to or arise from substantially one arrangement, one transaction or one series of transactions.
Beneficiary of a discretionary trust is a person in whose favour capital the subject of the trust may be applied, either in the event of the exercise of a power or discretion in favour of the person, or if the discretion conferred under the trust is not exercised.
Declared public unit trust scheme means a trust registered as a declared public unit trust scheme under the Act. Generally this will be a trust that does not quite meet the criteria of a public unit trust scheme, but is considered to be public in its nature and purpose.
Declared wholesale unit trust scheme means a trust registered as a declared wholesale unit trust scheme under the Act. Generally this will be a trust that does not quite meet the criteria for registration as a wholesale unit trust scheme, but is considered to be wholesale in its nature and purpose.
Discretionary trust means a trust under which the vesting of the whole or any part of the capital of the trust estate, or the whole or any part of the income from that capital, or both:
- is required to be determined by a person either in respect of the identity of the beneficiaries or the quantum of interest to be taken, or both,
- will occur if a discretion conferred under the trust is not exercised, or
- has occurred but under which the whole or any part of that capital or the whole or any part of that income, or both, will be divested from the person or persons in whom it is vested if a discretion conferred under the trust is exercised.
Disqualifying circumstance means:
- A circumstance that causes a unit trust scheme that is registered under Division 6 of Part 2 of Chapter 3 of the Act to cease to meet the relevant criteria for registration.
- Subject to s89X(2) of the Act, the failure by a unit trust scheme that is registered under Division 6 of Part 2 of Chapter 3 of the Act to meet a condition of registration, or the contravention of a condition of registration by a unit trust scheme or the trustee of the scheme.
Equivalent exchange means a recognised stock exchange operating in Australia which imposes, as a minimum, the following requirements on an entity applying for quotation of its securities on the relevant market:
- the entity must lodge a prospectus or product disclosure statement (or an equivalent document approved by the exchange) with the Australian Securities and Investment Commission (ASIC), and
- either:
- the following apply:
- the entity must have at least 400 security holders each having a parcel of the main class of securities on issue with a value of at least $2000, and
- persons who are associated persons of the entity must hold no more than 25% of the total number of securities in the main class of securities, or
- the entity must have at least 500 security holders each having a parcel of the main class of securities on issue with a value of at least $2000,
- the following apply:
- the entity must have:
- net tangible assets of at least $2 million at the time of listing, or
- market capitalisation of at least $10 million.
Foreign corporation means a corporation that is incorporated outside Australia or a corporation in which a controlling interest is held by a foreign natural person, another foreign corporation or the trustee of a foreign trust.
A person has a controlling interest in a corporation if the person is in a position to control more than 50% of the voting power or the potential voting power in the corporation, or has an interest of more than 50% of the issued shares in the corporation. When determining whether a person has a controlling interest in a corporation, all interests held by any other foreign natural person, foreign corporation or trustee of a foreign trust (whether an associated person or not) are to be aggregated. A person may also be considered to have a controlling interest in a corporation if the Commissioner has made a determination in respect of the person pursuant to section 3C of the Act.
Under section 3C, the Commissioner may determine that a person has a controlling interest in a corporation if, in the Commissioner’s opinion, the person has the capacity to determine or influence, directly or indirectly, the outcome of decisions about the corporation’s financial and operating policies.
Foreign natural person means a natural person who is not:
- an Australian citizen within the meaning of the Australian Citizenship Act 2007 (Cth).
- the holder a permanent visa within the meaning of section 30(1) of the Migration Act 1958 (Cth).
- a New Zealand citizen who is the holder of a special category visa within the meaning of section 32(1) of the Migration Act 1958.
Foreign purchaser means a person who makes a relevant acquisition and who is a foreign natural person, a foreign corporation or the trustee of a foreign trust.
Foreign trust means a trust in which a substantial interest in the trust estate is held by a foreign corporation, a foreign natural person or another person that holds the substantial interest as trustee as trustee of another foreign trust.
A person has a substantial interest in the trust estate of a trust if the person has a beneficial interest of more than 50% of the capital of the estate of the trust, or the Commissioner has made a determination under section 3D in respect of the person. When determining whether a person has a substantial interest in the trust estate, all interests held by any other foreign natural person, foreign corporation or trustee of a foreign trust (whether an associated person or not) are to be aggregated. Under section 3D, the Commissioner may determine that the person has a substantial interest in a trust estate if, in the Commissioner’s opinion, the person has the capacity to determine or influence the outcome of decisions about the administration and conduct of the trust.
Goods that are excluded from the definition of dutiable property under s10(1)(d) means:
- goods that are stock-in-trade
- materials held for use in manufacture
- goods under manufacture
- goods held or used in connection with primary production
- livestock.
Imminent wholesale unit trust scheme is a trust registered under the Act that will be eligible to be registered as a wholesale unit trust scheme within 12 months after the day on which the first units were issued to a qualified investor.
Linked entity is a person or body (corporate or unincorporated) that may hold property in its own right or for the benefit of any person (including a trust). A linked entity does not include a natural person but does include a partnership.
Listed company means a corporation all the shares in which are quoted on the Australian Securities Exchange (ASX) or an equivalent exchange, the London Stock Exchange, New York Stock Exchange or New Zealand Stock Exchange, or a corporation all the shares in which are quoted on any exchange of the World Federation of Exchanges (other than the ASX or an equivalent exchange).
Listed trust means a unit trust scheme all the units in which are quoted on the ASX or an equivalent exchange, the London Stock Exchange, New York Stock Exchange or New Zealand Stock Exchange, or on any exchange of the World Federation of Exchanges (other than the ASX or an equivalent exchange).
Market capitalisation means the total market value of an entity’s issued securities, calculated by multiplying the number of the entity’s securities by the current market value of one of those securities.
Net tangible assets means the value determined by calculating the value of the total assets of an entity, less the value of its total liabilities and the value of any intangible assets.
Primary production means the use of land primarily for:
- cultivating land for the purpose of selling the produce of such cultivation
- maintaining animals or poultry for the purpose of selling them or their natural increase or bodily produce
- keeping bees for the purpose of selling their honey
- commercial fishing, including preparing for fishing and storing or preserving fish and fishing gear
- cultivating or propagating plants, seedlings, mushrooms or orchids for sale.
Private company means a corporation that is not a listed company as defined in the Duties Act 2000.
Private unit trust scheme means a unit trust scheme that is not a wholesale unit trust scheme or public unit trust scheme.
Public unit trust scheme means a listed trust, a widely held trust, or a declared public unit trust scheme.
Residential property means land capable of being used solely or primarily for residential purposes and that may lawfully be used in that way. Among other things, it also includes land on which a person intends on constructing a building or undertaking land development so that the land is capable of being used solely or primarily for residential purposes. However, residential property does not include land used or capable of being used solely or primarily as commercial residential premises, a residential care facility, a supported residential service or for the purposes of a retirement village.
Shares means, shares or rights to shares. However, for the purpose of the definition of a listed company, shares are limited to those shares that entitle the shareholder to a distribution of the property of the company on a winding up of the company, other than a return of capital paid in the respect of the shares.
Unit in a unit trust scheme means a right or interest, whether described as a unit or a sub-unit or otherwise, of a beneficiary under the scheme, or a right to any such right or interest. For the purposes of the definition of a widely held trust, a unit means a right or interest of a beneficiary under the scheme that entitles the beneficiary to participate proportionately with the other unit holders in a distribution of the property of the trust on its vesting, or a right to any such right or interest. However, for the purposes of the definition of a listed trust, a unit is limited to a right or interest of a beneficiary under the scheme that entitles the beneficiary to participate proportionately with the other unit holders in a distribution of the property of the trust on its vesting, other than a return of capital paid in respect of the unit.
Unit trust scheme means any arrangements made for the purpose, or having the effect, of providing, for persons having funds available for investment, facilities for the participation by them, as beneficiaries under a trust, in any profits, income or distribution of assets arising from the acquisition, holding, management or disposal of any property whatever pursuant to the trust.
Wholesale unit trust scheme means a unit trust scheme that is registered under the Act as a wholesale unit trust scheme, declared wholesale unit trust scheme or imminent wholesale unit trust scheme.
Widely held trust is a unit trust scheme that has:
- not less than 300 registered unitholders
- none of the registered unitholders in which, either individually or together with associated persons, holds or is entitled to more than 20% of the units in the scheme.
- landholder that is a unit trust scheme for the purposes of s79 of the Act means the vesting of the trust property in the beneficiaries
- linked entity includes any means by which the entity’s property is divested in favour of the persons entitled to it
- linked entity that is a trust includes the vesting of the trust property in the beneficiaries.
