Duties Act 2000

The unencumbered value of dutiable property is the amount for which the property might reasonably have been sold in the open market—

in the case of a transfer of dutiable property on a sale of the property—at the time the contract of sale was entered into;

in any other case—at the time the dutiable transaction occurred—

In determining the amount for which land or goods might reasonably have been sold free from encumbrances, there must be disregarded subject to subsection (3), any interest, agreement or arrangement (other than an encumbrance) granted or made in respect of the land or goods, that has the effect of reducing the value of the land or goods.

A reference in subsection (2) to an interest includes a reference to an equitable interest that—

was created before the time of the transfer of the land or goods; and

is in existence at that time.

An interest, agreement or arrangement referred to in subsection (2) is not to be disregarded if the Commissioner is satisfied that it was not granted or made as a part of an arrangement or scheme with a collateral purpose of reducing the duty otherwise payable on the transfer of the land or goods.

In considering whether or not he or she is satisfied for the purposes of subsection (3), the Commissioner may have regard to—

the duration of the interest, agreement or arrangement before the transfer; and

whether the interest, agreement or arrangement has been granted to or made with an associate, a related corporation or a trustee of the transferor or transferee; and

whether there is any commercial efficacy to the granting of the interest or the making of the agreement or arrangement other than to reduce duty; and

any other matters he or she considers relevant.

In computing for the purposes of this Chapter the unencumbered value of any marketable securities of a company, there must be disregarded any provision in the constitution of the company which, or the operation of which, restricts or would restrict the sale or disposition or reduces or would reduce the unencumbered value of the marketable securities, and the marketable securities are to be valued as if no such provision existed.

Despite anything to the contrary in this section, the Commissioner may adopt as the unencumbered value of any marketable securities of a company the net benefit that, in the opinion of the Commissioner, the holder of the marketable securities would receive after payment of all income taxes in respect of the marketable securities in the event of the company being voluntarily wound up at the time the dutiable transaction occurred, whether or not any such winding up was intended or contemplated at that time.