21DGrouping of commonly controlled businesses

21D Grouping of commonly controlled businesses

(1) For the purposes of this Act, where a person has, or 2 or more persons together have, a controlling interest in each of 2 businesses, the persons who carry on those businesses constitute a group. (2) For the purposes of this section, a person, or 2 or more persons together, shall be taken to have a controlling interest in a business if, and only if: (a) in the case of a business carried on by a corporation: (i) any one or more of the directors of the corporation, being a director or directors who is or are entitled to exercise a majority in voting power at meetings of the directors, is or are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of that person or of those persons acting together; or (ii) that person or those persons acting together may (whether directly or indirectly) exercise, control the exercise of, or substantially influence the exercise of, 50% or more of the voting power attached to voting shares issued by the corporation; (b) in the case of a business carried on by a partnership, that person or those persons: (i) owns, or own together (whether or not beneficially), 50% or more of the capital of the partnership; or (ii) is, or are together, entitled (whether or not beneficially) to 50% or more of any profits of the partnership; (c) in the case of a business carried on by the trustee of a trust—that person (whether or not as the trustee of another trust) is the beneficiary, or those persons (whether or not as the trustees of another trust) are together the beneficiaries, in respect of 50% or more of the value of the interests in the first‑mentioned trust; or (d) in any case: (i) whether or not that person is a trustee of a trust, that person is the sole owner of the business; or (ii) whether or not those persons are trustees of a trust, those persons are the owners of the business. (3) A corporation that has a controlling interest in a business shall be deemed, for the purposes of this section, to have a controlling interest in any other business in which another corporation that is a related body corporate of the first‑mentioned corporation for the purposes of the Corporations Act 2001 has a controlling interest. (4) Where: (a) a person has, or persons have together, a controlling interest in a business; and (b) the person or persons who carries on or carry on that business has or have such a controlling interest in another business; the person or persons referred to in paragraph (a) shall, for the purposes of this section, be deemed to have a controlling interest in the business referred to in paragraph (b). (5) Where: (a) a person is a beneficiary under a trust; or (b) 2 or more persons together are beneficiaries under a trust; in respect of 50% or more of the value of the interests in that trust and the trustee or trustees of that trust has or have a controlling interest in a business, that beneficiary or those beneficiaries shall, for the purposes of this section, be deemed to have a controlling interest in that business. (6) A reference in this section to 2 businesses does not include a reference to 2 businesses both of which are owned by the same person, not being a trustee, or by the trustee or trustees of a trust. (7) A person who, as the result of the exercise of a power or discretion by the trustee of a discretionary trust, or by any other person or by that trustee and another person, may benefit under that trust shall be deemed, for the purposes of this section, to be a beneficiary in respect of 50% or more of the value of the interests in that trust.