Explanatory Memorandum
(Circulated by the authority of the Minister for Revenue and Financial Services, the Hon Kelly O'Dwyer MP)Chapter 4 - Miscellaneous amendments
Outline of chapter
4.1 This Schedule makes a number of miscellaneous amendments to the taxation, superannuation and other laws. These amendments are part of the Government's commitment to the care and maintenance of the taxation and superannuation systems.
4.2 These amendments include style and formatting changes, the repeal of redundant provisions, the correction of anomalous outcomes and corrections to previous amending Acts.
Context of amendments
4.3 Miscellaneous amendments to the taxation and superannuation laws such as those contained in Schedule 4 are periodically made to remove anomalies and correct unintended outcomes. Progressing such amendments gives priority to the care and maintenance of the tax system, a process supported by a recommendation of the 2008 Tax Design Review Panel, which was appointed to examine how to reduce delays in the enactment of tax legislation and improve the quality of tax law changes.
Summary of new law
4.4 These miscellaneous amendments address technical deficiencies and legislative uncertainties within the taxation, superannuation and other laws.
4.5 Schedule 4 contains the following Parts:
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- Part 1: Community Development Employment Projects (CDEP) Scheme
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- Part 2: Other amendments of principal Acts
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- Part 3: Amendments of amending Acts
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- Part 4: Repeals of Excise Tariff Acts
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- Part 5: Other repeals
Detailed explanation of new law
Part 1 - CDEP Scheme
Consequential amendments to the tax law following the cessation and repeal of the Community Development Employment Projects Scheme
Context of the amendments
4.6 The CDEP Scheme operated from 1977 as a means of assisting Indigenous job-seekers to find and retain employment. The CDEP Scheme was subsumed into the Remote Jobs and Communities Program in July 2013, and ceased operation on 1 July 2015. The Social Security Legislation Amendment (Community Development Program) Bill 2015 (the SSLA Bill) will, if enacted, amend the social security law to reflect the cessation of the CDEP Scheme. This Schedule amends the taxation law to remove redundant references to the CDEP Scheme.
Detail of the amendments
4.7 Prior to the amendments made by this Schedule, an amount paid under Part 3.15A of the Social Security Act 1991 (the SSA) was considered a 'rebatable benefit' under paragraph 160AAA(1)(a) of the ITAA 1936.
4.8 Following cessation of the CDEP Scheme itself, the whole of Part 2.27 (Northern Territory CDEP Transition payments) and Part 3.15A (CDEP Scheme) of the SSA are repealed by the SSLA Bill. This Schedule removes the redundant inclusion of Part 2.27 and Part 3.15A payments from the definition of 'rebatable benefit'. [Schedule 4, items 1 and 7, paragraphs 160AAA(a) and 160AAA(d) of the ITAA 1936]
4.9 Sections 202CB and 202CE of the ITAA 1936 respectively relate to the requirement for recipients of eligible PAYG payments to quote their tax file number in a tax file number declaration, and the effect of incorrectly quoting a TFN. Paragraphs 202CB(6)(a) and 202CE(7)(a) state that earlier paragraphs in those sections do not apply to a person in receipt of a CDEP Scheme Participant Supplement.
4.10 This Schedule removes the words 'CDEP Scheme Participant Supplement' from those paragraphs as their inclusion is redundant following cessation of the CDEP Scheme. [Schedule 4, items 2 and 3, paragraphs 202CB(6)(a) and 202CE(7)(a) of the ITAA 1936]
4.11 Prior to the amendments made by this Schedule, eligible pensioner was defined in paragraph 16(c) of the Income Tax Rates Act 1986 as including a person to whom a compensation, pension, allowance or benefit was payable under Part 3.15A of the SSA.
4.12 With the repeal of Part 3.15A of the SSA, it is redundant to include Part 3.15A payments in the definition of 'eligible pensioner', and so the reference to Part 3.15A payments is removed from paragraph 16(c) of the Income Tax Rates Act 1986. [Schedule 4, item 4, paragraph 16(c) of the Income Tax Rates Act 1986]
4.13 Subsection 12-110(1) of Schedule 1 of the TAA 1953 requires an entity to withhold an amount from a payment it makes to an individual if the payment is specified in that subsection. At paragraph 12-110(1)(d) of Schedule 1, a payment made under Part 3.15A of the SSA is listed as such a payment.
4.14 With the repeal of Part 3.15A, its inclusion in paragraph 12-110(1)(d) of the TAA 1953 is redundant, and so the paragraph is repealed. A minor grammatical amendment is also made to paragraph 12-110(1)(cb), because it will be the last item in the list. [Schedule 4, items 5 and 6, paragraphs 12-110(cb) and 12-110(d) in Schedule 1 of the TAA 1953]
Application and transitional provisions
4.15 The amendments at items 1 to 12 and 8, commence at the same time as Part 1 of Schedule 2 to the Social Security Legislation Amendment (Community Development Program) Act 2015 will commence, if enacted. This ensures that references to the CDEP Scheme in the tax law are repealed at the same time as the references to the CDEP Scheme in the social security law.
4.16 The amendment at item 7 also commences at the same time as Part 1 of Schedule 2 to the Social Security Legislation Amendment (Community Development Program) Act 2015 will commence, if enacted. However, if item 146 of Schedule 12 to the Omnibus Repeal Day (Spring 2015) Act 2015 commences at or before that time, the amendment does not commence at all. This is because item 146 of that Act contains a similar amendment.
4.17 Despite the amendments made by this Schedule to a particular provision, the provision continues to apply on and after commencement in relation to payments made under Part 2.27 or Part 3.15A prior to commencement. [Schedule 4, item 8]
Parts 2 and 3 - Other amendments of principal Acts and amending Acts
Updating terminology in various provisions of the TAA 1953, ITAA 1997, ITAA 1936 and the GST Act 1999 to improve clarity in the law
4.18 Prior to the amendments made by this Schedule, Education Minister was defined in subsection 995-1(1) of the ITAA 1997 as the Minister administering the Student Assistance Act 1973. Education Secretary was defined as the Secretary of the Department administered by the Education Minister.
4.19 The term Education Minister was also used in section 177-10 of the GST Act, which also defined Education Minister by reference to the Student Assistance Act 1973.
4.20 Following the Administrative Arrangements Order made on 18 September 2013, responsibility for the Student Assistance Act 1973 is moved from the Minister for Education to the Minister for Social Services. Therefore, since 18 September 2013, the legal meaning of the terms Education Minister and Education Secretary under the tax law did not accord with their ordinary meaning.
4.21 Therefore, this Schedule improves clarity by, wherever the terms appears in the TAA 1953, ITAA 1997, ITAA 1936 and the GST Act:
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- replacing the term 'Education Minister' with 'Student Assistance Minister', which means the Minister administering the Student Assistance Act 1973; and
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- replacing the term 'Education Secretary' with 'Student Assistance Secretary', which means the Secretary of the Department administered by the Student Assistance Minister.
4.22 A reference to the Secretary of the Department of Education and Training has been retained in table item 5 of section 355-65(2). That table item currently allows taxation officers to share protected information with the Education Secretary for the purpose of administering any Commonwealth law relating to financial assistance to students. This includes both the Student Assistance Act 1973 and the Higher Education Support Act 2003.
4.23 To ensure the scope of this ability to share information does not change, this Schedule allows information to be shared with both the Student Assistance Secretary and the Secretary of the Department administered by the Minister administering the Higher Education Support Act 2003. [Schedule 4, item 91, item 5 in the table in subsection 355-65(2) in Schedule 1 to the TAA 1953]
4.24 This amendment applies in relation to records and disclosures of information on or after 18 September 2013 (regardless of when the information was acquired). This will ensure that the scope of taxation officers' ability to share protected information did not change when the responsibility for administering the Student Assistance Act 1973 moved from the Minister for Education to the Minister for Social Services. [Schedule 4, subitem 92(1)]
Removing duplicate reference in the Commonwealth Grants Commission Act 1973
4.25 Subsection 25(2) of the Commonwealth Grants Commission Act 1973 (CGC Act) concerns reports made by the Commonwealth Grants Commission under certain listed sections of the CGC Act being laid before Parliament. Prior to the amendments made by this Schedule, section 16AA was listed twice in subsection 25(2). This Schedule removes the extra reference to section 16AA. [Schedule 4, item 19, subsection 25(2) of the CGC Act]
Repealing redundant paragraph of the definition of assessment in the ITAA 1936
4.26 Prior to the amendments made by this Schedule, the definition of assessment in section 6(1) of the ITAA 1936 included the ascertainment of an amount of additional tax under section 128TE (section 6(1)(f)). Section 128TE has been repealed. Therefore this Schedule repeals paragraph (f) of the definition of assessment because it is ineffective. [Schedule 4, item 20, subsection 6(1) (paragraph (f) of the definition of assessment) of the ITAA 1936]
Updating the definition of securities dealer in the ITAA 1936 and ITAA 1997
4.27 Section 202A of the ITAA 1936 defines 'securities dealer' by reference to the Securities Industry Act 1980. However, the Securities Industry Act 1980 was repealed in 2001 with the introduction of the Corporations Act 2001. Prior to the amendments made by this Schedule, the ITAA 1997 did not define securities dealer. This Schedule updates the definition in the ITAA 1936 and ITAA 1997 to refer to dealing in securities under the Corporations Act 2001, drawing on the definitions of 'deal' and 'securities' in that Act. [Schedule 4, items 23 and 81, subsection 995-1(1) of the ITAA 1997 and section 202A of the ITAA 1936]
Duplication of word 'the' in the ITAA 1997
4.28 Subsection 25-25(4) of the ITAA 1997 sets out a method statement for working out how much you can deduct for borrowing expenses in an income year. Prior to the amendments made by this Schedule, the word 'the' was erroneously duplicated in step 1 of the method statement. This Schedule corrects the error. [Schedule, 4, item 26, subsection 25-25(4) of the ITAA 1997]
Name changes for deductible gift recipients
4.29 Three deductible gift recipients changed their names because they changed entity type. These are technical and minor changes.
4.30 The amendments apply retrospectively. This ensures that all gifts collected by the entities after they changed name are lawful and tax deductibility for donations is preserved.
4.31 Given that the entities have not changed their activities or objects, the Australian Taxation Office has been administering the law by allowing deductions made on or after the names changed to the renamed entities. Therefore, retrospective application of the changes is beneficial to taxpayers.
National Trust of Australia (Queensland) Limited (ABN 85 836 591 486)
4.32 The National Trust of Queensland became a public company limited by guarantee, effective from 1 July 2014.
4.33 Schedule 4 updates the listing of The National Trust of Queensland to the National Trust of Australia (Queensland) Limited, effective for gifts or contributions made from 1 July 2014. [Schedule 4, items 27 and 33, item 6 in the table in section 30-15, and item 6.2.15 in the table in subsection 30-55(2) of the ITAA 1997]
4.34 These amendments apply in relation to gifts or contributions made on or after 1 July 2014. [Schedule 4, item 34)
RSPCA Australia (ABN 99 668 654 249)
4.35 R.S.P.C.A. Australia Incorporated became a public company limited by guarantee, effective from 10 July 2015.
4.36 Schedule 4 updates the listing of R.S.P.C.A. Australia Incorporated to RSPCA Australia, effective for gifts or contributions made from 10 July 2015. [Schedule 4, item 31, item 4.2.14 in the table in subsection 30-45(2) of the ITAA 1997]
4.37 This amendment applies in relation to gifts or contributions made on or after 10 July 2015. [Schedule 4, item 32]
Playgroup Queensland Ltd (ABN: 80 180 917 496)
4.38 Playgroup Queensland Incorporated became a public company limited by guarantee, effective from 17 December 2014.
4.39 Schedule 4 updates the listing of Playgroup Queensland Incorporated to Playgroup Queensland Ltd, effective for gifts or contributions made on or after 17 December 2014. [Schedule 4, item 35, item 8.2.6 in the table in subsection 30-70(2) of the ITAA 1997]
4.40 This amendment applies in relation to gifts or contributions made on or after 17 December 2014. [Schedule 4, item 36]
Consequential amendments
4.41 The index in Division 30 has been updated to reflect the amended listing for Playgroup Queensland Ltd. [Schedule 4, item 37, item 86C in the table in section 30-315 of the ITAA 1997]
4.42 The index does not require consequential amendment for the name changes for the National Trust of Australia (Queensland) Limited or RSPCA Australia because the entries in the index are to 'National Trust bodies' and the 'Royal Societies for the Prevention of Cruelty to Animals', which are broad enough to cover the changes.
Removing incorrect references to determinations in various provisions of the ITAA 1997
4.43 Several provisions and notes in the ITAA 1997 refer to a determination made under subsection 250-150(3) of that Act. However, subsection 250-150(3) does not provide for the making of determinations. This Schedule amends the language in these provisions and notes to remove the references to determinations. [Schedule 4, items 38, 41 to 49, paragraph 40-25(8)(a), subsections 40-525(1), (2), (3) and (4) (paragraph (a) of the note), subsection 40-630(1) (paragraph (a) of the note), subsection 40-730(1) (paragraph (a) of the note), subsection 40-735(1) (paragraph (a) of note 2), subsection 40-750(1) (paragraph (a) of note 2), subsection 40-755(1) (paragraph (a) of the note), section 40-835 (paragraph (a) of the note), subsection 40-880(1) (paragraph (a) of the note) and subsection 43-140(1) (paragraph (a) of note 2) of the ITAA 1997]
4.44 Additional references to subsection 250-150(3) of the ITAA 1997 in section 40-525 of that Act are updated to more correctly describe the application of that subsection. The references to determinations in those references have already been removed by Schedule 2 to the Tax Laws Amendment (Small Business Measures No. 2) Act 2015. [Schedule 4, item 41, subsections 40-525(1), (2), (3) and (4) (paragraph (a) of the note) of the ITAA 1997].
Incorrect paragraph reference in a note in the ITAA 1997
4.45 The Tax and Superannuation Laws Amendment (2015 Measures No. 2) Act 2015 inserted a note into subsection 40-180(4) of the ITAA 1997. Prior to the amendments made by this Schedule, the note referred to reducing the first element of cost under section 40-1105 of the ITAA to account for exploration benefits received under farm-in farm-out arrangements.
4.46 Section 40-1105, also introduced by the Tax and Superannuation Laws Amendment (2015 Measures No. 2) Act 2015, relates to reducing the termination value of interests in a mining, quarrying or prospecting right.
4.47 This Schedule amends the note to refer instead to section 40-1130, which relates to reducing the first element of the cost when the taxpayer provides an exploration benefit in relation to the transfer to them of part of another entity's interest in a mining, quarrying or prospecting right. This is the correct paragraph reference. [Schedule 4, item 39, subsection 40-180(4) (note) of the ITAA 1997]
Inconsistent use of term 'live stock' in the ITAA 1997
4.48 Subsection 995-1(1) of the ITAA 1997 includes a definition of live stock. However, prior to the amendments made by this Schedule, the ITAA 1997 used 'livestock' (without a space) in several places instead of 'live stock'. This Schedule amends various provisions of the ITAA 1997 to change references from 'livestock' to 'live stock' for consistency throughout the Act. [Schedule 4, items 40, 52-53, 55-56, 60, 74-76, subsection 40-520(1), subsection 124-784B(2), paragraphs 165-60(3)(a), 165-60(3)(b), 701-25(4)(b), 701-35(4)(b), and 705-30(1)(b), and section 328-285 (note 2) of the ITAA 1997]
Formatting changes in the ITAA 1997
4.49 Subsection 122-25(3) of the ITAA 1997 includes a definition of 'precluded asset'. This Schedule amends the subsection to ensure 'precluded asset' is bolded and italicised in line with drafting practice throughout the Act. [Schedule 4, item 51, subsection 122-25(3) of the ITAA 1997]
Missing asterisks for defined phrase in the ITAA 1997
4.50 Prior to the amendments made by this Schedule, paragraphs 149-15(3)(e) and 165-202(1)(c) of the ITAA 1997 use the defined phrase 'local governing body' without asterisks. This Schedule inserts the missing asterisks to make the paragraphs consistent with drafting practice throughout the Act. [Schedule 4, items 54 and 58, paragraphs 149-15(3)(e) and 165-202(1)(c) of the ITAA 1997]
Correcting paragraph referencing in the ITAA 1997
4.51 Subsection 165-115A(1A) of the ITAA 1997 refers to paragraph 165-115A(1)(c). This Schedule corrects the reference to 'paragraph (1)(c)', because the referenced paragraph is in the same section. [Schedule 4, item 57, subsection 165-115A(1A) of the ITAA 1997]
Missing word in the ITAA 1997
4.52 Subsection 307-290(3) of the ITAA 1997 sets out a formula used to calculate the taxable component of a superannuation lump sum. This Schedule adds the missing word 'where' after the formula but before the terms used in the formula are explained. [Schedule 4, item 59, subsection 307-290(3) of the ITAA 1997]
Consequential amendments relating to the standardisation of the definition of Australia across the tax law and Norfolk Island tax reforms
4.53 Schedule 4 to the Treasury Legislation Amendment (Repeal Day) Act 2015 made various amendments to the tax law as part of rewriting and standardising the definition of 'Australia' for income tax purposes. A number of consequential amendments to Division 355 of the ITAA 1997 were not made to reflect the new terminology.
4.54 Division 355 of the ITAA 1997 (Research and Development) contained references to 'Australia or an external Territory' or 'Australia and the external Territories'. The definition of 'Australia' in the ITAA 1997 already includes the external territories, making the additional words unnecessary. This Schedule removes these unnecessary references in Division 355 of the ITAA 1997. [Schedule 4, items 61 to 69, subparagraphs 355-210(1)(d)(i), 355-210(1)(e)(i), 355-210(1)(e)(ii), 355-215(b)(i) and 355-220(1)(b)(i), paragraphs 355-210(1)(a), 355-215(a) and 355-220(1)(a), and subsection 355-210(1) (note) of the ITAA 1997]
Ensuring life insurance companies are entitled to an exploration development incentive tax offset in accordance with the policy intent
4.55 Section 418-15 of the ITAA 1997 determines when a life insurance company will be entitled to an exploration development incentive tax offset.
4.56 Life insurance companies hold assets wholly on behalf of their policy holders rather than for the benefit of their shareholders. These assets are taxed for income tax and imputation purposes consistently with the treatment those assets would receive if they were held in comparable investment arrangements such as superannuation funds or managed investment trusts.
4.57 Section 418-15 is intended to provide that life insurance companies would be eligible to obtain the exploration development incentive tax offset for that portion of exploration credits they receive in respect of investments they hold on behalf of policy-holders, provided the offset is applied wholly for the benefit of policy-holders.
4.58 However, prior to these amendments, section 418-15 did not apply to all exploration credits received by life insurance companies in respect of assets they held on behalf of policy holders because an incorrect cross-reference was included. This Schedule makes amendments to ensure that this provision applies in accordance with the policy intent. [Schedule 4, item 70, paragraph 418-15(1)(d) of the ITAA 1997]
4.59 The amendments commence from the commencement date of item 2 of Schedule 6 to the Tax and Superannuation Laws Amendment (2014 Measures No. 7) Act 2015 (which alongside the Excess Exploration Credit Tax Act 2014 introduced the exploration development incentive tax offset).
Ensuring the correct paragraphs of the ITAA 1997 are repealed
4.60 Item 21 of Schedule 6 to the Tax and Superannuation Laws Amendment (2014 Measures No. 7) Act 2015 purported to repeal subparagraphs 418-80(2)(b)(ii) and (iii) and to substitute a new subparagraph. However, those subparagraphs do not exist. This Schedule repeals the correct subparagraphs, which are subparagraphs 418-80(3)(d)(ii) and (iii) of the ITAA 1997, and substitutes the same words as were originally to be substituted. [Schedule 4, items 71, 72, 94 and 95, subparagraphs 418-80(3)(d)(ii) and 418-80(3)(d)(iii) of the ITAA 1997, item 8 in the table in subsection 2(1) and item 21 of Schedule 6 to the Tax and Superannuation Laws Amendment (2014 Measures No. 7) Act 2015]
Removing the redundant '5 share requirement' for rollover relief in the ITAA 1997
4.61 Division 615 of the ITAA 1997 is intended to provide rollover relief for certain business restructures that involve the introduction of an interposed company.
4.62 Prior to the amendments made by this Schedule, paragraph 615-10(1)(a) of the ITAA 1997 restricted rollover relief in cases where existing interests are cancelled or redeemed to cases where the interposed entity owned no more than five shares or units in the company before the restructure, although subsection 615-10(3) permits the interposed entity to receive additional interests in the course of the redemption or cancellation. The requirement for the interposed entity to own no more than five shares or units in the company served no current purpose, being a requirement that was retained from the prior versions of these provisions in the ITAA 1936.
4.63 This Schedule removes the requirement for the interposed entity to own no more than five shares or units in the company, removing an arbitrary restriction. [Schedule 4, item 73, paragraph 615-10(1)(a) of the ITAA 1997]
Spelling error in heading to Subdivision 716-S of the ITAA 1997
4.64 Prior to the amendments made by this Schedule, the heading to Subdivision 716-S of the ITAA 1997 contained a spelling error of the word 'Miscellaneous'. This Schedule corrects the error. [Schedule 4, item 77, Subdivision 716-S (heading) of the ITAA 1997]
Removing reference to a repealed subsection in the ITAA 1997
4.65 Prior to the amendments made by this Schedule, paragraph 770-135(1)(b) of the ITAA 1997 referred to subsection (3), (5) and (6) of that section. This Schedule removes the reference to subsection (6) because subsection (6) was repealed in 2010. [Schedule 4, item 78, paragraph 770-135(1)(b) of the ITAA 1997]
Incorrect capitalisation of the words 'government agency' in the ITAA 1997
4.66 Prior to the amendments made by this Schedule, subsection 995-1(1) of the ITAA 1997 defined public official as an employee or official of an Australian Government Agency or of a local governing body. This Schedule removes the incorrect capitalisation of the words 'government agency'. [Schedule 4, item 80, subsection 995-1(1) (definition of public official) of the ITAA 1997]
Spelling error in definition of shortfall amount in the ITAA 1997
4.67 Subsection 995-1(1) of the ITAA 1997 defines 'shortfall amount'. Prior to the amendments made by this Schedule, this definition contained a spelling error. By replacing the word 'give' with 'given', this Schedule corrects the spelling error. [Schedule 4, item 82, subsection 995-1(1) (definition of shortfall amount) of the ITAA 1997]
Incorrect paragraph reference in the Product Grants and Benefits Administration Act 2000
4.68 Section 42 of the Product Grants and Benefits Administration Act 2000 was amended by the Treasury Legislation Amendment (Repeal Day) Act 2015 as part of the consolidation of administrative provisions into Schedule 1 to the TAA 1953. Section 42 was incorrectly amended to include a reference to section 350-10 in Schedule 1 to the TAA 1953 (about the evidentiary effect of official tax documents).
4.69 This Schedule corrects the reference to section 353-10 in Schedule 1 to the TAA 1953, which is about information gathering. The amendment commences from 25 February 2015, the commencement of item 6 of Schedule 2 to the Treasury Legislation Amendment (Repeal Day) Act 2015. [Schedule 4, item 84, subsection 42(2A) of the Product Grants and Benefits Administration Act 2000]
Reference to incorrect Act
4.70 Prior to the amendments made by this Schedule, section 20N of the Superannuation (Unclaimed Money and Lost Members) Act 1999 referred to the Immigration Secretary (within the meaning of the ITAA 1936). The words 'Immigration Secretary' do not appear in the ITAA 1936.
4.71 This Schedule amends the section to refer to the Immigration Secretary within the meaning of the ITAA 1997, which is the Act containing the definition of Immigration Secretary. [Schedule 4, item 85, paragraph 20N(2)(a) of the Superannuation (Unclaimed Money and Lost Members) Act 1999]
Consequential amendments relating to the consolidation of the confidentiality of taxpayer information provisions
4.72 Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 consolidated various secrecy and disclosure provisions that were located throughout various taxation Acts into Division 355 in Schedule 1 to the Taxation Administration Act 1953 (TAA 1953). As part of this consolidation, section 3D (relating to taxation information given to the Australian Crime Commission) and section 3E (relating to taxation information given to relevant law enforcement agencies and eligible Royal Commissions) in the TAA 1953 were repealed. They had become redundant as they were replicated in Division 355. However some references to these sections were not removed at this time. This Schedule removes the redundant references to sections 3D and 3E from subsection 3B(1C) of the TAA 1953. [Schedule 4, item 86, subsection 3B(1C) of the TAA 1953]
4.73 Removing the redundant reference to section 3E prevents confusion arising from the fact that the section number 3E has since been reused for a provision that is unrelated to the repealed section 3E. The current section 3E requires the Commissioner to publish the final annual amount of an entity's annual Petroleum Resource Rent Tax payable.
Repealing redundant definition in the TAA 1953
4.74 Prior to the amendments made by this Schedule, section 14ZQ of the TAA 1953 included a definition of starting base assessment. The phrase 'starting base assessment' is not used anywhere in the TAA 1953. The provisions that used that phrase (sections 14ZZK and 14ZZO) have previously been repealed. This Schedule repeals the redundant definition. [Schedule 4, item 87, section 14ZQ (definition of starting base assessment) of the TAA 1953]
Consequential amendments relating to the consolidation of the evidence provisions and the Commissioner's information gathering provisions
4.75 As part of the Treasury Legislation Amendment (Repeal Day) Act 2015, various evidence provisions were consolidated into one set of rules for application across all tax laws. This involved amendments to item 2 of the table in subsection 350-10(1) in Schedule 1 to the TAA 1953, which concerns the evidentiary effect of official tax documents for the purposes of taxation laws.
4.76 Item 262 of Schedule 1 of the Indirect Tax Laws Amendment (Assessment) Act 2012 contains conflicting amendments to item 2 of that table, which will commence on 1 January 2017. This Schedule amends item 262 and amends the table in subsection 350-10(1) in Schedule 1 to the TAA 1953 to ensure that the amendments purported to be made by item 262 are given effect, without undoing the consolidation of the evidence provisions. [Schedule 4, items 88 to 89 and 93, subsections 350-10(1), and 350-10(2) in Schedule 1 to the TAA 1953 and item 262 of Schedule 1 to the Indirect Tax Laws Amendment (Assessment) Act 2012]
4.77 Section 271-100 in Schedule 2F to the ITAA 1936 concerns the evidentiary effect of a notice of liability relating to family trust distribution tax. However, section 271-100 was not included in the consolidation of the evidence provisions. This Schedule brings section 271-100 into the consolidated framework. [Schedule 4, items 25 and 88, section 271-100 in Schedule 2F of the ITAA 1936 and subsection 350-10(1) in Schedule 1 to the TAA 1953]
Update references in the exception to the confidentiality of taxpayer information provisions regarding the Trade Support Loans Act
4.78 Prior to the amendments made by this Schedule, item 5AA of the table in subsection 355-65(2) in Schedule 1 to the TAA 1953 created an exception to the secrecy provisions where a record or disclosure is made to the Industry Secretary for the purpose of administering the Trade Support Loans Act 2014.
4.79 Following the Administrative Arrangements Order made on 23 December 2014, responsibility for the Trade Support Loans Act 2014 moved to the Education Minister.
4.80 This Schedule updates item 5AA of the table to ensure that the Australian Tax Office (ATO) may disclose protected information to the department that has responsibility for the Trade Support Loans Act 2014 (currently the Department of Education and Training). [Schedule 4, item 91, item 5AA in the table in subsection 355-65(2) in Schedule 1 to the TAA 1953]
4.81 This amendment applies in relation to records and disclosures of information on or after 23 December 2014 (regardless of when the information was acquired). This will ensure that the scope of taxation officers' ability to share protected information did not change when the responsibility for administering the Trade Support Loans Act 2014 moved from the Minister for Industry and Science to the Minister for Education and Training. [Schedule 4, subitem 92(2)]
Incorrect commencement dates in Tax and Superannuation Laws Amendment (2015 Measures No. 1) Act 2015
4.82 Prior to the amendments made by this Schedule, the commencement table in section 2 of Tax and Superannuation Laws Amendment (2015 Measures No. 1) Act 2015 incorrectly provided that Schedule 4 commenced on Royal Assent.
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- Part 1 of that Schedule was meant to commence the day after Royal Assent.
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- Part 2 should not commence until 1 July 2021.
This is clear from the headings to these Parts. This Schedule corrects the commencement dates in section 2 of Tax and Superannuation Laws Amendment (2015 Measures No. 1) Act 2015. [Schedule 4, item 96, item 7 in the table in subsection 2(1) of the Tax and Superannuation Laws Amendment (2015 Measures No. 1) Act 2015]
Repeal amendments made by the Treasury Legislation Amendment (Repeal Day) Act 2015 that conflicted with other amendments
4.83 Item 3 of Schedule 2 to the Treasury Legislation Amendment (Repeal Day) Act 2015 amended subsection 102(3) of the Petroleum Resource Rent Tax Act 1987 on 25 February 2015; this clashed with item 89 of that Schedule, which repealed the whole of Part IX at the same time. Item 36 of Schedule 2 to the Treasury Legislation Amendment (Repeal Day) Act 2015 also purported to amend that subsection on 1 July 2015, although the provision had already been repealed (by item 89). This Schedule repeals items 3 and 36 of the amending Act, as the amendments made by those items were ineffective and unnecessary. [Schedule 4, items 97 to 98, items 3 and 36 of Schedule 2 to the Treasury Legislation Amendment (Repeal Day) Act 2015]
4.84 The amendments commence immediately after the time specified in the Treasury Legislation Amendment (Repeal Day) Act 2015 for the commencement of items 3 and 36 respectively. Item 3 will be repealed from 25 February 2015 and item 36 from 1 July 2015.
Part 4 - Repeals of Excise Tariff Acts
Repeals of Excise Tariff Acts
4.85 Schedule 4 to this Act repeals 45 amending Acts that are largely redundant. [Schedule 4, items 99 to 143]
4.86 Subsection 5(2) of the Excise Tariff Act 1921 (ETA 1921) states that it is the amending Act that imposes excise where the amending Act alters the Schedule to the ETA 1921.
4.87 In 2006, the whole table contained in the Schedule to the ETA 1921 was repealed and replaced, so it is no longer possible for an excise tariff amending Act before 2006 to impose excise. For that reason, these 45 amending Acts are no longer operative and can be repealed.
Example 4.1: the repeals do not invalidate any excise already collected or any future liability
Golden Whistler Co paid excise on 6 October 1933 on 50 crates of beer at a rate of 1 shilling and 9 pence per gallon as imposed by the Excise Tariff (No. 2) 1933. Even though Excise Tariff (No. 2) 1933 is now repealed, this collection is validated by the savings provision which provides that the imposition and collection of excise was lawful valid and effectual before the repeal and is so to the same extent after the repeal.
Transitional rules
4.88 Schedule 4 also includes general savings provisions. These provisions, which are standard when there are repeals of legislation that has become inoperative, preserve the rights and obligations of taxpayers in relation to past years. This ensures that the repeal can have no effect on liabilities and entitlements in prior income years, even where these liabilities or entitlements are not identified until after the repeal commences. [Schedule 4, items 144 to 148]
Part 5 - Other repeals
Repeal inoperative Act (Income Tax (War-time Arrangements) Act 1942)
4.89 This Schedule repeals the Income Tax (War-time Arrangements) Act 1942, as it is inoperative. [Schedule 4, item 149, Income Tax (War-time Arrangements) Act 1942]
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Schedule 4: Miscellaneous Amendments
4.90 This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
4.91 This Schedule makes a number of miscellaneous amendments to the taxation, superannuation and other laws. These amendments are part of the Government's commitment to the care and maintenance of the taxation and superannuation systems.
4.92 These amendments include style and formatting changes, the repeal of redundant provisions, the correction of anomalous outcomes and corrections to previous amending Acts.
Human rights implications
4.93 These amendments make a number of minor and machinery changes to the taxation and superannuation provisions to ensure the provisions are consistent with their original policy intent. As such, this Schedule does not engage any of the applicable rights or freedoms.
Conclusion
4.94 This Schedule is compatible with human rights as it does not raise any human rights issues