Document ID: chunk:federal_register_of_legislation:F2017L00231:body:0:p2
Version: federal_register_of_legislation:F2017L00231
Segment Type: other
Provision Reference: 
Character Range: 2464–5135

legal or equitable right to receive dividends or distributions under the constituent documents of the company or the terms of the trust.
 (4) The Secretary must consider the extent to which capital transferred in accordance with subsection (3) should be determined to be an excluded asset in relation to an attributable stakeholder of the company or trust, having regard to:
 (a) the value of the capital transferred to the company or trust; and
 (b) the value of shares or units received by the investor; and
 (c) the extent, if any, to which the value of the capital would not be required to be disregarded by any express provision of the Act.

Part 3 Excluded charge or encumbrance
7 Purpose of Part 3
  This Part sets out decision-making principles with which the Secretary must comply for the purposes of making a determination under subsection 1208G (6) of the Act.
8 Determination that charge or encumbrance is excluded
  In relation to a charge or encumbrance, the Secretary must take into account:
 (a) whether a transaction that gave rise to the charge or encumbrance was an arm's length transaction, having regard to the criteria described in section 9; and
 (b) the matters referred to in section 10.
9 Criteria for arm's length transaction
 (1) For paragraph 8 (a), a transaction is an arm's length transaction if:
 (a) the transaction is for the purposes of the business activities of the company or trust; and
 (b) the transaction is made under a written agreement that is signed by each party to the agreement, and witnessed by an individual who is not a party to the transaction; and
 (c) each party to the transaction is:
 (i) at least 18 years old; or
 (ii) at least 16 years old and engaged in a full-time occupation; or
 (iii) at least 16 years old and receiving a social security entitlement; and
 (d) the transaction is made for an arm's length amount.
 (2) For subparagraph (1) (c) (ii), a full-time occupation:
 (a) includes any employment, trade, business, profession, vocation or calling; and
 (b) does not include a course of education at a school, college, university or similar institution.
10 Other matters
  For paragraph 8 (b), the Secretary must also take into account, in relation to the transaction that gave rise to the charge or encumbrance:
 (a) whether the individual is the sole attributable stakeholder, or a member of a couple both members of which are the only 2 attributable stakeholders of the company or trust; and
 (b) the commercial, social and familial relationships (if any) between the parties to the transaction; and
 (c) the nature and circumstances of the transaction.

Part 4 Effect of loan not secured by charge or