Foreign Acquisitions and Takeovers Regulation 2015 (Cth)

PART 2 - PROVISIONS RELATING TO DEFINITIONS AND RULES OF INTERPRETATION  

SECTION 14   MEANING OF CONSIDERATION  

14(1)    
This section prescribes the meaning of consideration for section 4 of the Act.

14(2)    
The consideration for an acquisition of an interest in securities, assets, Australian land or a tenement, or for an issue of securities in an entity, includes the following:

(a) consideration in any form;

(b) any GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 ), or equivalent tax under a law of a foreign country or a part of a foreign country, that is payable in relation to the acquisition or issue;

(c) any consideration that is contingent on the occurrence or non-occurrence of a particular event.

Assessing the value of consideration

14(3)    

The value of the consideration for an acquisition of an interest in securities, assets, Australian land or a tenement, or for an issue of securities in an entity, is:

(a) if there is an agreement relating to the acquisition or issue and the parties to the agreement are not dealing at arm ' s length, or if there is no agreement that sets out the value of the consideration - a reasonable assessment of the value of the consideration for the acquisition or issue; or

(b) otherwise - the value of the consideration set out in the agreement relating to the acquisition or issue.

14(4)    
Without limiting paragraph (3)(a), an assessment of consideration is reasonable on a particular day if it is worked out on the basis of:

(a) for an acquisition of an interest in securities, assets, Australian land or a tenement that has a publicly available price - a price that was publicly available no more than 7 days earlier; and

(b) for an acquisition of an interest in securities made under a takeover bid (whether under the Corporations Act 2001 or a law of a foreign country or part of a foreign country) - the first amount specified for the interest in the bidder ' s statement (within the meaning of the Corporations Act 2001 ) or any equivalent document under a law of a foreign country or part of a foreign country.

14(4A)    

Despite subsection (3), the value of the consideration for the acquisition of an interest in Australian land is to be adjusted under this subsection if:

(a)    the interest is:

(i) an interest as lessee in a lease; or

(ii) an interest as licensee in a licence;
giving rights to occupy agricultural land, commercial land or residential land; and

(b)    

the term of the lease or licence (including any extension or renewal) is reasonably likely, at the time the interest is acquired, to exceed 20 years; and

(c)    

there is an agreement relating to the acquisition that sets out the value of the consideration and the parties to the agreement are dealing at arm ' s length (see paragraph (3)(b) ).
The value of the consideration for the acquisition is adjusted to be the following:

20	×	Value of the consideration apart from the adjustment under this subsection
Term of the lease or licence (including any extension or renewal)

Consideration for acquisition of interests in securities of foreign entities

14(5)    
The consideration for the acquisition of an interest in securities in a foreign entity may be apportioned between the relevant Australian business or Australian entity and any other business or entity on the basis of the earnings before interest and tax of the Australian business or Australian entity and the other business or entity.