Income Tax Assessment Act 1936

PART VIII - MISCELLANEOUS  

SECTION 252A   PUBLIC OFFICER OF TRUST ESTATE  

252A(1)    

Where, at any time after the expiration of the period of 90 days after the commencement of this section:

(a) any business of a trust estate is carried on in Australia or any income from property (not being solely income in respect of which tax is payable under Division 11A of Part III ) is derived by a trust estate from sources in Australia;

(b) there is not a trustee of the trust estate who is a resident;

(c) there is not in force in relation to the trust estate an exemption granted by the Commissioner under subsection (3); and

(d) there is not in force in relation to the trust estate an appointment of a public officer made in accordance with subsection (5),

each person who, at that time, is a trustee of the trust estate is, in respect of each day on which the circumstances set out in paragraphs (a), (b), (c) and (d) are in existence (including the day of a conviction of an offence against this subsection or any subsequent day), guilty of an offence punishable on conviction by a fine not exceeding 1 penalty unit.

252A(1A)    

An offence under subsection (1) is an offence of strict liability.

Note:

For strict liability , see section 6.1 of the Criminal Code .

252A(2)    
A reference in subsection (1) to the period of 90 days after the commencement of this section shall, in the application of that subsection in relation to a trust estate that, before the commencement of this section, did not carry on any business in Australia or derive income from property (not being solely income in respect of which tax is payable under Division 11A of Part III ) from sources in Australia, be read as a reference to the period of 90 days after the date on which any business of the trust estate is commenced to be carried on in Australia, or the date on which the trust estate commences to derive such income from sources in Australia, whichever first occurs.

252A(2A)    

A person is not capable of being a public officer of a trust estate at a particular time unless the person:

(a) is a natural person who has attained the age of 18 years; and

(b) is ordinarily resident in Australia; and

(c) is capable of understanding the nature of the person's appointment as the public officer of the trust estate.

252A(3)    

The Commissioner may, by writing signed by him or her, grant to the trustee of a trust estate an exemption from the provisions of subsection (1) in relation to the trust estate.

252A(4)    
An exemption under subsection (3) may be granted unconditionally or on such conditions as the Commissioner thinks fit and may be granted without limitation as to time or may be granted in respect of a period specified in the exemption.

252A(5)    
An appointment of a public officer of a trust estate for the purposes of this section shall be made by giving notice in writing to the Commissioner:

(a) that is signed by a trustee of the trust estate or by a duly authorized agent or attorney of a trustee of a trust estate; and

(b) that specifies the name of the public officer and an address in Australia for service upon the public officer of any documents that are required or permitted by or under this Act or the regulations to be served upon the public officer of the trust estate.

252A(6)    

The appointment of a public officer of a trust estate ceases to be in force if the public officer dies or lodges with the Commissioner a notice of the officer's resignation as public officer of the trust estate.

252A(7)    
Where, by or under this Act or the regulations:

(a) a document is permitted to be served upon or given to the trustee of a trust estate; or

(b) a requisition is permitted or required to be made upon the trustee of a trust estate,

that document shall be deemed to have been served upon or given to the trustee if it is served upon the public officer of the trust estate or at the address for service of the public officer of the trust estate, or that requisition shall be deemed to have been made upon the trustee if it is made upon the public officer of the trust estate, as the case may be.

252A(8)    
A reference in subsection (7) to the service of a document upon the public officer of a trust estate, or the making of a requisition upon the public officer of a trust estate, shall, if there is not in force an appointment under this section of a public officer in relation to the trust estate, be read as a reference to any person acting or appearing to act in the business of the trust estate.

252A(9)    
The public officer of a trust estate shall be answerable for the doing of all such things as are required to be done by the trustee of the trust estate under this Act or the regulations, and in case of default shall be liable to the same penalties.

252A(10)    
Where any proceedings for an offence against this Act or the regulations are taken against the public officer, those proceedings shall be deemed to have also been taken against the trustee or trustees of the trust estate and the trustee or trustees shall be liable jointly with the public officer for any penalty in respect of the offence.

252A(11)    
Notwithstanding the preceding provisions of this section and without affecting any of the obligations or liabilities of the public officer of a trust estate, any notice, process or proceeding that, under this Act or the regulations, may be given to, served upon or taken against the trustee or public officer of the trust estate may, if the Commissioner thinks fit, be given to, served upon or taken against any agent or attorney of the trustee of the trust estate and that agent or attorney shall have the same liability in respect of that notice, process or proceeding as the trustee or public officer would have had if it had been given to, served upon or taken against the trustee or public officer.

252A(12)    

Everything done by the public officer of a trust estate that the officer is required to do in the officer's capacity of public officer shall be deemed to have been done by the trustee of the trust estate.

252A(13)    

The absence or non-appointment of a public officer shall not excuse the trustee of a trust estate from the necessity of complying with any of the provisions of this Act or the regulations, or from any penalty for refusal or failure to comply with any of those provisions, but the trustee shall be liable to the provisions of this Act and the regulations as if there were no requirement to appoint a public officer.

252A(14)    

A reference in this section to this Act or the regulations includes a reference to Part III of the Taxation Administration Act 1953 to the extent to which that Part of that Act relates to this Act or the regulations.

252A(15)    
(Repealed by No 2 of 2015)