Overview
Advisers who are involved in the design, marketing and implementation of schemes that claim to provide tax advantages should consider the promoter penalty laws.
The promoter penalty laws are concerned with the promotion of arrangements that are designed to reduce tax or increase refunds, where the benefits claimed aren't available under the tax laws. These are called tax exploitation schemes.
The promoter penalty laws are also concerned with the misuse of rulings involving the promotion and implementation of arrangements which incorrectly claimed to be consistent with rulings that have been issued by the ATO. The promoter penalty laws are also concerned with super schemes that encourage early access to super before a condition of release is met.
The arrangements that the promoter penalty laws are concerned with are referred to as unlawful tax and super schemes.
The promoter penalty laws aren't intended to obstruct tax advisers and intermediaries from merely providing advice to their clients.
We actively monitor adviser behaviour and take action against potential promoters through application of the promoter penalty laws. Under the promoter penalty laws we can either seek an:
- order from the Federal Court that an entity pay a civil penalty
- injunction from the Federal Court to restrain an entity from engaging in a particular conduct.
Understanding promoter penalty laws
The promoter penalty laws are contained in Division 290 of Schedule 1 to the Taxation Administration Act (TAA) and section 68B of the Superannuation Industry (Supervision) Act 1993 (SISA).
Division 290 of Schedule 1 to the TAA contains the rules about the promotion of tax exploitation schemes and the misuse of rulings.
Section 68B of SISA applies to promotion of payments that are not in accordance with the payment standards, generally resulting in illegal early access to super.
Promoter penalty laws concerning tax exploitation schemes and misuse of ATO rulings
The promoter penalty laws in Division 290 of Schedule 1 to the TAA were introduced to deter the promotion of tax exploitation schemes.
These laws also deter the promotion and implementation of schemes that are materially different to the rulings they are claimed to conform with.
The promoter penalty laws are not restricted to widely offered schemes. They can even apply where there is only one client in an arrangement. The promoter penalty laws can also apply to schemes that haven't been implemented.
The promoter penalty laws apply to conduct both within and outside Australia that is prohibited conduct, unless an exclusion or exception applies.
Prohibited conduct means conduct that results in:
- any entity being a promoter of a tax exploitation scheme
- a scheme that has been promoted on the basis of conformity with a public, private or oral ruling if the scheme is materially different from that described in the ruling
- a scheme that has been promoted on the basis of conformity with a public, private or oral ruling being implemented in a way that is materially different to the way it has been described in the ruling
- a scheme will be implemented in a way that is materially different from the way it was described in a public, private or oral ruling, if it results in a different tax outcome for participants than the one described in the ruling.
A scheme will be a tax exploitation scheme if:
- at the time of promotion, it has the sole or dominant purpose of an entity gaining a scheme benefit
- the scheme benefit would not be legally available (and it is not reasonably arguable that the benefit is available).
A scheme is also a tax exploitation scheme if:
- the multinational anti-avoidance law or diverted profits tax provisions in Part IVA of Income Tax Assessment Act 1936 (ITAA 1936) apply to the scheme
- obtaining a scheme benefit was a principal purpose of the scheme and
- the scheme benefit would not be legally available (and it is not reasonably arguable that the benefit is available).
The definitions of tax exploitation scheme extend to treat promoted yet unimplemented schemes in the same way as implemented schemes.
A scheme will be a super scheme if:
- Payments from a regulated superannuation fund are not in accordance with the payment standards of the SISA.
An entity will be a promoter of a tax exploitation scheme if:
- it markets or encourages growth of the scheme, including schemes promoted but not implemented
- it directly or indirectly receives a benefit in respect of marketing or encouragement
- it causes another entity to be a promoter
- it has a substantial role in respect of marketing and promotion.
Exclusions and exceptions
Exclusions and exceptions to the promoter penalty laws under Division 290 include:
- employees or other entities that have only minor involvement
- conduct that occurred by reasonable mistake or accident
- something outside an entity's control and the entity took reasonable precautions, however, this doesn't include acts or defaults of their employees, agents, directors, partners and trustees
- more than 6 years have passed since the last relevant act of promotion or implementation, except where there is tax evasion.
For more information see:
Promoter penalty laws concerning illegal early access of super
The promoter penalty laws in section 68B of SISA were introduced to deter and penalise persons who promote illegal early access of super schemes as a means of accessing super benefits before meeting a condition of release.
The promoter penalty laws apply to promotion of a scheme that has resulted, or is likely to result, in a payment being made from a regulated superannuation fund otherwise than in accordance with the prescribed payment standards.
A scheme means:
- any agreement, arrangement, understanding, promise or undertaking
- whether express or implied
- whether or not it's enforceable, or intended to be enforceable, by legal proceedings, or
- any scheme, plan, proposal action, course of action or course of conduct, whether unilateral or otherwise.
Promotion in relation to a scheme includes:
- entering into the scheme
- inducing another person to enter into the scheme
- carrying out the scheme
- starting to carry out the scheme
- facilitating entry into, or the carrying out of, the scheme.
Exclusions and exceptions
Exclusions and exceptions to the promoter penalty laws under section 68B include:
- a reasonable mistake
- a reasonable reliance on information supplied by another person
- the act or default of another, or an accident or other cause beyond their control, where they took reasonable precautions and exercised due diligence to avoid the contravention
- a 6-year time limit.
Our practice statement sets out the processes we follow when administering the promoter penalty laws. For more details, refer to PS LA 2021/1 Application of the promoter penalty laws.
Strengthening the promoter penalty laws
The Government announced a package of reforms on 6 August 2023 designed to strengthen the integrity of the taxation system and increase the powers of regulators.
As part of this package, the Treasury Laws Amendment (Tax Accountability and Fairness) Act 2024External Link made changes to the promoter penalty laws in Division 290 of Schedule 1 to the TAA that apply from 1 July 2024. These changes improve the ability of the ATO to target promoters of tax exploitation schemes and seek the application of civil penalties and include:
- extending the time limitation for the ATO to commence civil proceedings from 4 years to 6 years
- increasing the maximum penalties the Federal Court can impose for both body corporates and SGEs. Under the amendments, the maximum civil penalties for promoters of tax exploitation schemes increased to $780 million
- changing the requirement that a promoter (or associate) receive consideration to the promoter (or associate) receiving a benefit which can include benefits received that are less obvious, intangible, disguised and non-quantifiable
- extending the meaning of a tax exploitation scheme to include a scheme that has a principal purpose of obtaining a scheme benefit, and to which the multinational anti-avoidance law or diverted profits tax provisions apply
- extending the scope of promoter penalty laws to apply to all ATO rulings rather than only product rulings; and
- expanding the scope of prohibited conduct to include any conduct that results in a scheme that is materially different from that outlined in a public, private or oral ruling being promoted on the basis of conforming with the ruling (irrespective of whether the scheme is implemented or not).
Managing promoter penalty risks and corrective action
Penalties
Promoter penalties can apply to any entity. The promoter penalty legislation is aimed at dealing with those who market unlawful tax and super schemes.
Promotion of tax exploitation schemes and misuse of ATO rulings
We can apply to the Federal Court of Australia to request that a civil penalty be imposed on an entity that has contravened the promoter penalty laws.
Where the Court agrees to make the order, the maximum penalty the Federal Court can impose:
- For a body corporate, partners in a partnership that is a significant global entity or trustees of a trust that is a significant global entity, is the greater of:
- 50,000 penalty units
- 3 times the value of the benefits received or receivable by the entity or its associates in respect of the scheme – whether directly or indirectly
- 10% of the aggregated turnover of the entity for the most recent income year to end before the entity contravened, or began to contravene, the provision (to a maximum of 2.5 million penalty units)
- For all other entities, is the greater of
- 5,000 penalty units or
- 3 times the value of the benefits received or receivable by the entity or its associates in respect of the scheme – whether directly or indirectly.
Where a civil penalty has been imposed on a partnership, all partners in the partnership are jointly and severally liable for the penalty. Where a civil penalty has been imposed on one of the trustees of a trust, all trustees of the trust are jointly and severally liable for the penalty.
Promotion of illegal early release schemes
The maximum penalty the Federal Court can impose is 2,400 penalty units.
For the penalty unit amount, see Penalty units.
Other corrective action
Depending on a range of factors, we could also consider:
- voluntary self-correction for less significant non-compliance with these laws
- applicants for legally binding advice (public, private or oral rulings) providing additional promises or guarantees to mitigate taxation risks, including material differences in implementation of the relevant arrangement
- executing an enforceable voluntary undertaking
- applying to the Federal Court to seek an injunction.
Guidance on offering an enforceable voluntary undertaking
We'll determine the most appropriate response to any prohibited conduct based on a range of considerations, including the facts and circumstances of that conduct.
Offering us an enforceable voluntary undertaking may, in appropriate circumstances, be relevant to:
- a decision about whether proceedings should be initiated in the Federal Court
- certain decisions made by the Federal Court in respect of such proceedings.
When we accept an enforceable voluntary undertaking offer, it doesn't mean that we can't make an application to the Federal Court for a civil penalty or an injunction against the entity responsible for the prohibited conduct.
For example, even though we may have accepted an enforceable voluntary undertaking, we may form the view that the appropriate way to bring the conduct (or threat of future conduct) to an end is by applying to the Federal Court for an injunction.
We are unlikely to accept an offer that doesn't include meaningful undertakings relating to:
- the cessation of marketing or encouragement of the growth of a scheme or schemes
- actions designed to prevent future involvement in tax exploitation schemes.
Case studies
These case studies demonstrate how promoter penalty laws are applied to keep promoters of tax avoidance schemes accountable.
- Largest promoter penalty in R&D history handed down
- $4.25 million penalty for promotion of boutique R&D schemes
- $1.5 million penalty for charity donation scheme
- First use of promoter penalty laws upheld on appeal
- Penalty and ban for promoter of illegal early release of super.
Court cases
Read about the outcome of Federal Court cases concerning the promoter penalty laws:
- Commissioner of Taxation v Rowntree [2020] FCA 1322
- Commissioner of Taxation v Bogiatto [2020] FCA 1139
- Commissioner of Taxation v Pavihi [2019] FCA 2056
- Commissioner of Taxation v International Indigenous Football Foundation Australia Pty Ltd [2018] FCA 528
- Commissioner of Taxation v Arnold (No 2) [2015] FCA 34
- Commissioner of Taxation of the Commonwealth of Australia v Barossa Vines Ltd [2014] FCA 20
- Commissioner of Taxation v Ludekens [2013] FCAFC 100.
Decision impact statements
The following Decision impact statements outline our views on the applications of the relevant court decisions.
- Decision Impact Statement – Bogiatto – published 4 February 2021
- Decision Impact Statement – Ludekens – published 7 May 2014
- Decision Impact Statement – Barossa Vines Ltd – published 31 March 2014.