Part 5.1 of the Corporations Act 2001 that:
(A) has been made with the corporation's creditors or a
class of them; and
(B) has been approved by the court; and
(C) is not a tax avoidance scheme or part of a tax
avoidance scheme; or
(iv) the distribution of the estate of a deceased person,
including an acquisition that occurs as the result of:
(A) a will, a codicil or an order of a court varying or
modifying the provisions of a will or codicil; or
(B) an intestacy or an order of a court varying or
modifying the application, in relation to the estate of
a deceased person, of the provisions of a law
relating to the distribution of the assets of persons
who die intestate.
corporation has the same meaning as in the Corporations
Act 2001.
director has the same meaning as in the Corporations Act 2001.
entitled means beneficially entitled.
interest has the meaning in section 56Q, and includes a significant
interposed trust, see section 124-1045 of the Income Tax
Assessment Act 1997 (Cth).
land includes anything fixed to the land (irrespective of whether it
would be regarded as a fixture at common law).
linked entity, of a corporation, has the meaning in
section 56NA(1).
listed corporation means a corporation that is on the official list of
a recognised financial market if the listing is not a tax avoidance
scheme or part of a tax avoidance scheme.
listed unit trust scheme means a unit trust scheme that is on the
official list of a recognised financial market if the listing is not a tax
Stamp Duty Act 1978 50
relevant period, in relation to a relevant acquisition, means:
(a) the period of 3 years ending on the date of 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 period commencing 3 years before the day on
which the person or a related person acquired the right to
acquire the interest and ending on the date of the relevant
acquisition.
share means a share in the share capital of a corporation and
includes stock and an interest in a share or stock, and
shareholding has a corresponding meaning.
significant interest has the meaning in section 56Q(4).
unit means a right or interest, whether described as a unit or sub-
unit or otherwise, of a beneficiary under a unit trust scheme, and
includes an interest in a unit.
unit trustee means a trustee of a unit trust scheme.
unlisted unit trust scheme means a unit trust scheme that is not a
listed unit trust scheme.
(3) For the purposes of this Division, the following persons are related:
(a) natural persons who are spouses of each other, or who are
related as parent and child;
(b) related corporations;
(c) trustees of the same trust, or of different trusts if there is a
beneficiary common to both trusts;
(d) a natural person and a corporation if the natural person is a
majority shareholder, director or secretary of the corporation
or a related corporation;
(e) a natural person and a trustee of a trust of which the natural
person is a beneficiary;
(f) a corporation and a trustee of a trust of which:
(i) the corporation, or a majority shareholder, director or
secretary of the corporation, is a beneficiary; or
(ii) a related corporation is a beneficiary;
Part Part 5 - Stamp Duty Act 1978 - 1 of the Corporations Act 2001 that: | Zoe
Stamp Duty Act 1978 51
(g) persons who acquire interests in a corporation by virtue of
acquisitions that together form or arise from substantially one
transaction or one series of transactions;
(h) in relation to the acquisition of an interest in a corporation by a
declaration of trust over shares – the trustees and
beneficiaries of the trust;
(i) in relation to an acquisition of an interest in a corporation by
virtue of the addition of a beneficiary or class of beneficiaries
to the existing beneficiaries under a discretionary trust – the
trustees of, and the additional beneficiary or class of
beneficiaries under, the trust.
(4) But a person will not be regarded as related to another if the
Commissioner is satisfied that they are not, and have not been,
acting in concert in relation to the acquisition of interests in a
corporation.
(6) For the purposes of this Division, and subject to section 56CA, the
entitlement of a person to participate as a shareholder in the
distribution of the property of a corporation on a winding up of the
corporation is an entitlement to an amount calculated as if:
(a) the winding up were carried out in accordance with the
constitution or rules of the corporation and the law relevant to
the winding up, as the constitution or rules and law exist at the
time of the winding up; or
(b) the person (whether acting alone or together with related
persons) had, immediately before the winding up, paid up any
uncalled amount for the shares in the corporation and
exercised all powers and discretions exercisable by the
person (whether acting alone or together with related persons)
by reason of having acquired an interest in the corporation to:
(i) effect or compel an alteration to the constitution or rules;
or
(ii) vary the rights conferred by shares in the corporation; or
(iii) effect or compel the substitution or replacement of
shares in the corporation with other shares in the
corporation,
in such manner as to maximize that amount,
Stamp Duty Act 1978 52
whichever of the amounts under paragraph (a) or (b) results in the
greater amount, unless the Commissioner determines, where the
calculation under paragraph (b) results in the greater amount, that
the amount of the entitlement should be calculated under
paragraph (a).
(7) For the purposes of this Division, and subject to section 56CA, the
entitlement of a person on the distribution of a trust shall be
determined as the greatest entitlement that the person could derive
at any time from the trust whether by the fulfilment of a condition,
the outcome of a contingency or the exercise of a power or
discretion or otherwise and, in particular, a person that may benefit
from, or the trust property of another trust that may comprise or be
augmented by a benefit from, a discretionary trust shall be deemed
to be entitled to or comprise, or be augmented by:
(a) the property subject to the discretionary trust, unless the
Commissioner determines otherwise; or
(b) such part of that property as the Commissioner determines.
(9) Farming land is not to be taken into account as land of a land-
holding corporation for the purpose of assessing duty on a relevant
acquisition if:
(a) the transaction would, assuming it were a conveyance of the
farming land between the parties to the relevant acquisition,
be exempt from duty under section 87; and
(b) the parties acquiring the relevant interest intend that the
farming land will continue to be used solely or principally for
farming purposes; and
(c) the parties from whom the relevant interest is acquired held
the relevant interest for at least 5 years before the date of the
relevant acquisition or the land-holding corporation acquired
the farming land before those parties acquired their interest in
it.
(10) For this Division, if an interest or a shareholding in a corporation is
acquired by virtue of a declaration of trust over shares:
(a) the interest or shareholding vested or to be vested in the
declarant is taken to be the interest or shareholding acquired;
and
(b) the declarant is taken to be the person who acquired the
Stamp Duty Act 1978 53
(c) the acquisition is taken to have occurred at the time the
declaration is made.
(11) For this Division, if an interest or a shareholding in a corporation is
acquired by virtue of the addition of a beneficiary or class of
beneficiaries to the existing beneficiaries under a discretionary
trust:
(a) the interest or shareholding over which the trust is declared is
taken to be the interest or shareholding acquired; and
(b) the trustees are taken to be the persons who acquired the
(c) the acquisition is taken to have occurred at the time of the
addition.
(11A) For this Division, the addition of a beneficiary or class of
beneficiaries to the existing beneficiaries under a discretionary trust
includes any of the following:
(a) the addition of a beneficiary who is a natural person or a body
corporate;
(b) the addition of a class of beneficiaries the members of which
are natural persons, bodies corporate or both;
(c) the addition of a person or class of persons in whom the whole
or part of the trust property vests if the trustee does not make
a determination to vest that whole or part;
(d) the transfer or other disposition by a beneficiary of his or her
beneficial interest under the trust.
(11B) If the effect of an amendment or variation of the terms of a
non-discretionary trust is to create a discretionary trust, this Division
applies in relation to the discretionary trust as if, at the time the
amendment or variation is made:
(a) there are beneficiaries or classes of beneficiaries already
existing under the discretionary trust; and
(b) the beneficiaries or classes of beneficiaries under the
discretionary trust are added to the existing beneficiaries or
classes of beneficiaries.
Stamp Duty Act 1978 54
(12) For this Division, if an interest or a shareholding in a corporation is
acquired by virtue of a change in control of a beneficiary under, and
a change of or in control of a trustee of, a discretionary trust
mentioned in paragraph (cd) of the definition of acquire:
(a) the interest or shareholding over which the trust is declared is
taken to be the interest or shareholding acquired; and
(b) the trustees are taken to be the persons who acquired the
(c) the acquisition is taken to have occurred at the time of the
later of the changes.
(13) For this Division, if an interest or a shareholding in a corporation is
acquired by virtue of a statutory vesting:
(a) the interest or shareholding that vests in the person or body
concerned is taken to be the interest or shareholding acquired;
and
(b) the person or body in whom the interest or shareholding vests
is taken to be the person or body who acquired the interest or
(c) the acquisition is taken to have occurred at the time the law by
or under which the vesting occurs determines when the
interest or shareholding vests in the person or body.
(14) The following provisions apply to a merger vesting of shares in a
land-holding corporation:
(a) for a merger vesting mentioned in section 4E(2):
(i) a 100% shareholding in each of the merging entities is
taken to be the shareholding acquired; and
(ii) entity A is taken to be the person who acquired the
merger is completed;
(b) for a merger vesting mentioned in section 4E(3):
(i) a 50% shareholding in each of the merging entities is
taken to be the shareholding acquired; and
(ii) the merging entities are taken together to be the persons
who acquired the shareholding; and
Stamp Duty Act 1978 55
merger is completed;
(c) for a merger vesting mentioned in section 4E(4):
(i) a 100% shareholding in, or in each of, the merging entity
or entities is taken to be the shareholding acquired; and
(ii) entity B is taken to be the person who acquired the
merger is completed.
(15) Subsection (16) applies to an acquisition of an interest in a
corporation if all of the following conditions are satisfied:
(a) the acquisition is made only for one of the following purposes:
(i) to enable the person (other than the corporation) from
whom the interest is acquired to obtain finance under an
arrangement (the finance arrangement), whether by
way of renewal of the finance arrangement or otherwise;
(ii) to enable the person to obtain an extension of the period
for which finance was obtained under the finance
arrangement;
(i) the acquisition alone does not constitute a significant
interest in the corporation;
(ii) an amount was deducted from the duty charged on a
statement lodged under section 56K in relation to the
acquisition under section 56M(2)(c)(ix).
(16) For this Division, if the conditions in subsection (15) are satisfied:
(a) the person from whom the interest is acquired is taken to be
still holding the interest; and
(b) the person acquiring the interest is taken not to be holding the
(17) Subsection (16) ceases to have effect in relation to the persons
mentioned in that subsection at the earlier of the following:
(a) the enforcement or termination of the finance arrangement;
Stamp Duty Act 1978 56
(b) the person mentioned in subsection (16)(b) is required under
section 56K(7) to relodge a statement.
56CA Arrangement relating to certain entitlement
(1) This section applies if the Commissioner is satisfied:
(a) any of the following entitlements of a person is reduced
(including reduced to nil) as a direct or indirect result of an
arrangement:
(i) an entitlement in the distribution of the property of a
corporation as a shareholder on the winding up of the
corporation as described in section 56C(6);
(ii) an entitlement on the distribution of a trust as described
in section 56C(7); and
(b) one of the following (a relevant transaction) occurs:
(i) an acquisition of an interest or shareholding by a person
in a land-holding corporation;
(ii) an event that would be such an acquisition apart from
the arrangement.
(2) Unless the Commissioner is satisfied the arrangement is not a tax
avoidance scheme or part of a tax avoidance scheme:
(a) the arrangement must be disregarded for the purposes of this
Act in relation to the relevant transaction; and
(b) the Commissioner may determine that, in relation to the
relevant transaction, on a specified date:
(i) the person has made an acquisition of an interest or
shareholding in the land-holding corporation that
is 100% or a lesser specified percentage; or
(ii) the person has an entitlement to receive 100%, or a
lesser specified percentage, of the unencumbered value
of the property of the corporation or trust mentioned in
subsection (1)(a).
Example for subsection (2)(a) and (b)(i)
An amendment of the constitution of a corporation has the effect of reducing to nil
the entitlement of all of its shareholders to the distribution of its property on its
winding up. The Commissioner considers the amendment is an arrangement
covered by this section.
Stamp Duty Act 1978 57
There has been a transfer of shares in the corporation (which is a relevant
transaction in relation to a land-holding corporation mentioned in
subsection (1)(b)). The reduction of the shareholders' entitlement must be
disregarded for this Act in relation to the transfer under subsection (2)(a). In
addition, the Commissioner determines under subsection (2)(b)(i) that, in relation
to the transfer, a person has acquired a 90% interest in the corporation on a
specified day. As a result, the person is liable to pay stamp duty in relation to the
acquisition.
(3) To avoid doubt, subsection (2) has effect in relation to the
application of section 56C(6) and (7) for the purposes of this Act.
(4) Without limiting subsection (1), an arrangement includes:
(a) a scheme as defined in section 4B(1); and
(b) all or part of the constitution or rules of a corporation, or of the
constituent document of a trust; and
(c) an amendment to the constitution, rules or constituent
document.
56CAA Acquisition of interest by share transfer
(1) This section applies to an acquisition of an interest in a corporation
that is, or is to be, evidenced by a transfer of shares.
(2) For this Act, the acquisition is taken to occur, on the earliest of the
following dates:
(a) the date on which the documents evidencing the transfer of, or
the title to, the shares are delivered to the person acquiring
the shares or someone else on that person's behalf;
(b) the date on which all or any part of the consideration for the
shares is given to the person from whom the shares are
acquired or someone else on that person's behalf;
(c) the date on which the name of the person acquiring the shares
is registered on the register of the members of the corporation.
(3) Subsection (4) applies if:
(a) the acquisition is taken to occur on the date mentioned in
subsection (2)(b); and
(b) none of the events mentioned in subsection (2)(a) and (c) has
occurred; and
(c) the transaction for the transfer of the shares is rescinded,
annulled or otherwise terminated.
Stamp Duty Act 1978 58
(4) The Commissioner may:
(a) determine the acquisition did not occur; and
(b) assess or reassess a person's liability to pay duty accordingly.
(5) If an acquisition of an interest in relation to shares in a corporation
is taken to have occurred on a day under subsection (2):
(a) the person acquiring the interest is taken to have become a
shareholder of the corporation in relation to those shares on
that day; and
(b) the person from whom the interest is acquired is taken to have
ceased to be a shareholder of the corporation in relation to
those shares on that day.
(6) If the Commissioner subsequently determines under subsection (4)
that the acquisition did not occur:
(a) the person mentioned in subsection (5)(a) is taken never to
have been the shareholder of the corporation in relation to
those shares as provided under that subsection; and
(b) the person mentioned in subsection (5)(b) is taken never to
have ceased to be a shareholder of the corporation in relation
to those shares as provided under that subsection.