Transfer of Assets
Whilst this heading is defined in the Act, there is a layering of definitions that bring under its ambit a wide range of property that would be subject to duty. Generally, if something (cash, shares, other) is being paid for something then there is a reasonable likelihood duty may apply. However, there are exemptions.
The Act defines Dutiable Property as:
Land is extensively defined in the Duties Act, including deeming anything fixed to land, as being land i.e.
(a) an estate or interest in land; (b) a mining tenement; (c) an estate or interest in a mining tenement; (d) a pastoral lease; (e) an interest of a pastoral lessee under a pastoral lease; (f) anything fixed to land (including land the subject of a mining tenement or pastoral lease), (g) an estate or interest in a thing to which subsection (1)(f) applies.
Without limiting subsection (1)(f), a thing is taken to be fixed to land if it has a physical connection to the land or is buried or partly buried under the surface of the land.
There are exceptions.
A right is extensively defined in the Act. However, the right should be examined in relation to the concession that it is not a dutiable transaction if no consideration is given for it.
The following is an exhaustive list of defined rights
(a) an option to acquire dutiable property, unless the option
is part of a simultaneous put and call option over
(b) a right of pre-emption for dutiable property;
(c) a right to acquire dutiable property;
(d) a right under a joint venture relating to dutiable property
of the joint venture;
(e) a right to exploit dutiable property;
(f) a right to income from dutiable property;
(g) a right to the capital growth of dutiable property;
(h) a fixed infrastructure control right;
(i) a fixed infrastructure access right;
(j) a fixed infrastructure statutory licence.
A chattel takes its ordinary meaning but excludes any of the following —
- chattels that are stock-in-trade;
- chattels held for use in manufacture;
- chattels under manufacture;
- chattels held or used in connection with the business of primary production;
- a vehicle the transfer or grant of a licence for which is chargeable with, or exempt from, vehicle licence duty;
- a ship or vessel;
- a thing that is land to which section 3A(1)(f) applies;
- any other chattel prescribed for the purpose of this definition;
A question that often arises is in relation to mining companies and whether or not stock piles of ore are exempt chattels.
The circumstances need to be considered in detail before assuming that they are. It may not always be the case.
a Western Australian business asset has the meaning given in section 79 of the WA Act.
(a) goodwill of a business;
(b) a restraint of trade arrangement for a business;
(c) a business identity;
(d) a business licence;
(e) a right of a business under an uncompleted agreement to
supply commodities or provide services;
(f) intellectual property of a business;
(g) things that a business has that are in the nature of rent rolls and client lists.
…but does not include a trade debt;
These are further defined or refined.