Customs Act 1901

PART XVB - SPECIAL PROVISIONS RELATING TO ANTI-DUMPING DUTIES  

Division 1 - Definitions and role of Minister  

SECTION 269TAA   ARMS LENGTH TRANSACTIONS  

269TAA(1)  
For the purposes of this Part, a purchase or sale of goods shall not be treated as an arms length transaction if:


(a) there is any consideration payable for or in respect of the goods other than their price; or


(b) the price appears to be influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; or


(c) in the opinion of the Minister the buyer, or an associate of the buyer, will, subsequent to the purchase or sale, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or any part of the price.

269TAA(1A)  
For the purposes of paragraph (1)(c), the Minister must not hold the opinion referred to in that paragraph because of a reimbursement in respect of the purchase or sale if the Minister is of the opinion that the purchase or sale will remain an arms length transaction in spite of the payment of that reimbursement, having regard to any or all of the following matters:


(a) any agreement, or established trading practices, in relation to the seller and the buyer, in respect of the reimbursement;


(b) the period for which such an agreement or practice has been in force;


(c) whether or not the amount of the reimbursement is quantifiable at the time of the purchase or sale.

269TAA(2)  
Without limiting the generality of subsection (1), where:


(a) goods are exported to Australia otherwise than by the importer and are purchased by the importer from the exporter (whether before or after exportation) for a particular price; and


(b) the Minister is satisfied that the importer, whether directly or through an associate or associates, sells those goods in Australia (whether in the condition in which they were imported or otherwise) at a loss;

the Minister may, for the purposes of paragraph (1)(c), treat the sale of those goods at a loss as indicating that the importer or an associate of the importer will, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or a part of the price.

269TAA(3)  
In determining, for the purposes of subsection (2), whether goods are sold by an importer at a loss, the Minister shall have regard to:


(a) the amount of the price paid or to be paid for the goods by the importer; and


(b) such other amounts as the Minister determines to be costs necessarily incurred in the importation and sale of the goods; and


(c) the likelihood that the amounts referred to in paragraphs (a) and (b) will be able to be recovered within a reasonable time; and


(d) such other matters as the Minister considers relevant.

269TAA(4)  
For the purposes of this Part, 2 persons shall be deemed to be associates of each other if, and only if:


(a) both being natural persons:


(i) they are members of the same family; or

(ii) one of them is an officer or director of a body corporate controlled, directly or indirectly, by the other;


(b) both being bodies corporate:


(i) both of them are controlled, directly or indirectly, by a third person (whether or not a body corporate); or

(ii) both of them together control, directly or indirectly, a third body corporate; or

(iii) the same person (whether or not a body corporate) is in a position to cast, or control the casting of, 5% or more of the maximum number of votes that might be cast at a general meeting of each of them; or


(c) one of them, being a body corporate, is, directly or indirectly, controlled by the other (whether or not a body corporate); or


(d) one of them, being a natural person, is an employee, officer or director of the other (whether or not a body corporate); or


(e) they are members of the same partnership.

Note: In relation to the reference to member of a family in subparagraph (4)(a)(i), see also section 4AAA.




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