Income Tax Assessment Act 1936

S 264A repealed by No 8 of 2019, s 3 and Sch 8 item 12, effective 1 April 2019. S 264A formerly read:

SECTION 264A OFFSHORE INFORMATION NOTICES  
264A(1)
Where the Commissioner has reason to believe that:

(a) information relevant to the assessment of a taxpayer is:

(i) within the knowledge (whether exclusive or otherwise) of a person outside Australia; or

(ii) recorded (whether exclusively or otherwise) in a document outside Australia; or

(iii) kept (whether exclusively or otherwise) by means of a mechanical, electronic or other device outside Australia; or

(b) documents relevant to the assessment of a taxpayer are outside Australia (whether or not copies are in Australia or, if the documents are copies of other documents, whether or not those other documents are in Australia);

the Commissioner may, by notice in writing served on the taxpayer (which notice is in this section called the offshore information notice ), request the taxpayer:

(c) to give to the Commissioner, within the period and in the manner specified in the offshore information notice, any such information; or

(d) to produce to the Commissioner, within the period and in the manner specified in the offshore information notice, any such documents; or

(e) to make copies of any such documents and to produce to the Commissioner, within the period and in the manner specified in the offshore information notice, those copies.

264A(2)
The period specified in the offshore information notice must end 90 days after the date of service of the notice.

264A(3)
Upon written application made by the taxpayer within the period specified in the offshore information notice, the Commissioner may, by notice in writing served on the taxpayer, extend the period specified in the offshore information notice.

264A(4)
Where:

(a) an application under subsection (3) is made before the end of the period specified in the offshore information notice; and

(b) at the end of the period, the Commissioner has not notified the taxpayer of the Commissioner's decision on the application;

the following provisions have effect:

(c) the Commissioner is taken to have extended the period under subsection (3) to the end of the day (in this subsection called the decision day ) on which the Commissioner's decision is notified to the taxpayer;

(d) if the Commissioner decides to extend the period - the extended period must end after the decision day.

264A(5)
A reference in this section (other than subsection (3)) to the period specified in the offshore information notice is a reference to the period as extended under subsection (3).

264A(6)
Where:

(a) an offshore information notice (in this subsection called the first notice ) was served on a taxpayer; and

(b) during the period specified in the first notice (including a period specified by virtue of one or more previous applications of this subsection), another offshore information notice (which other notice is in this subsection called the subsequent notice ) is served on the taxpayer; and

(c) the subsequent notice is expressed to be by way of variation of the first notice;

the following provisions have effect:

(d) the request, or each of the requests, set out in the subsequent notice is taken, for the purposes of subsections (10), (11) and (14), to have been set out in the first notice;

(e) if the period specified in the first notice would, apart from this subsection, end before the end of the period specified in the subsequent notice - the period specified in the first notice is taken to have been extended under subsection (3) to the end of the period specified in the subsequent notice.

264A(7)
The Commissioner may, by notice in writing served on the taxpayer, vary the offshore information notice by:

(a) reducing its scope; or

(b) correcting a clerical error or obvious mistake;

and, if the Commissioner does so, a reference in this section to the offshore information notice is to be read as a reference to the notice as so varied.

264A(8)
The Commissioner may withdraw an offshore information notice.

264A(9)
If the Commissioner withdraws an offshore information notice, nothing in this section prevents the Commissioner giving another offshore information notice in substitution, in whole or in part, for the withdrawn notice.

264A(10)
If the taxpayer refuses or fails to comply with the request or requests set out in the offshore information notice, then, except with the consent of the Commissioner:

(a) if the information or documents to which the request or requests apply are only relevant to one issue concerning the assessment of the taxpayer:

(i) where the request, or any of the requests, apply to information - the information is not admissible in proceedings disputing the taxpayer's assessment; or

(ii) where the request, or any of the requests, apply to documents - neither the documents, nor any secondary evidence of the documents, are admissible in proceedings disputing the taxpayer's assessment; or

(b) if:

(i) the information or documents to which the request or requests apply are relevant to 2 or more issues concerning the assessment of the taxpayer; and

(ii) the refusal or failure of the taxpayer relates to information or documents that are relevant to any or all of those issues;

the following provisions have effect:

(iii) where the request, or any of the requests, apply to information - the information, to the extent to which it is relevant to the issue or issues mentioned in subparagraph (ii), is not admissible in proceedings disputing the taxpayer's assessment;

(iv) where the request, or any of the requests, apply to documents - neither:

(A) the documents, to the extent to which they are relevant to the issue or issues mentioned in subparagraph (ii); nor

(B) secondary evidence of the documents, to the extent to which the secondary evidence is relevant to the issue or issues mentioned in subparagraph (ii);

are admissible in proceedings disputing the taxpayer's assessment.

264A(11)
Without limiting the power conferred by subsection (10), where:

(a) the taxpayer refuses or fails to comply with the request or requests set out in the offshore information notice; and

(b) the refusal or failure of the taxpayer relates to some, but not all, of the information or documents to which the request or requests apply and that are relevant to a particular issue concerning the assessment of the taxpayer;

the Commissioner, in exercising that power, must have regard to whether there is reason to believe that, because of the absence of that information or those documents, the remaining information or documents that are relevant to that issue are, or are likely to be, misleading.

264A(12)
The Commissioner, in exercising the power conferred by subsection (10), must ignore the consequences (whether direct or indirect) of an obligation arising under a law of, or of a part of, a foreign country, in so far as that obligation relates to the secrecy of information or documents.

264A(13)
In spite of anything in this section, the Commissioner must give a consent under subsection (10) in any case where a refusal would have the effect, for the purposes of the Constitution, of making any tax or penalty incontestable.

264A(14)
Where, before the commencement of the hearing of proceedings disputing the taxpayer's assessment, the Commissioner forms both of the following views:

(a) the view that the taxpayer has refused or failed to comply with the request or requests set out in the offshore information notice;

(b) the view that the Commissioner is unlikely to give a consent under subsection (10) in relation to that request or those requests and in relation to those proceedings;

the Commissioner must serve on the taxpayer a notice in writing setting out those views.

264A(15)
A failure to comply with subsection (14) does not affect the validity of a decision under subsection (10).

264A(16)
A reference in this section to a refusal or failure of a taxpayer to comply with a request includes a reference to a refusal or failure resulting from the taxpayer being incapable of complying with the request.

264A(17)
A reference in this section to proceedings disputing the taxpayer's assessment is a reference to proceedings before a court or the Tribunal arising out of, or relating to, an objection against the assessment.

264A(18)
Nothing in this Act precludes an offshore information notice from being set out in the same document as a notice under section 353-10 in Schedule 1 to the Taxation Administration Act 1953 .

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History

S 264A(18) amended by No 2 of 2015, s 3 and Sch 2 item 27, by substituting " section 353-10 in Schedule 1 to the Taxation Administration Act 1953 " for " section 264 " , effective 1 July 2015.

264A(19)
An offshore information notice must set out the effect of subsection (10).

264A(20)
A failure to comply with subsection (19) does not affect the validity of the offshore information notice.

264A(21)
A request under this section is not taken to be a requirement for the purposes of any other provision of this Act or of any provision of the Taxation Administration Act 1953 .

264A(22)
A refusal or failure to comply with a request set out in an offshore information notice is not an offence.

264A(23)
The express references in this section to documents do not imply that references to documents in any other provision of this Act, or in a provision of the Taxation Administration Act 1953 , do not have the meaning given by the definition of document in section 2B of the Acts Interpretation Act 1901 .

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History

S 264A(23) amended by No 46 of 2011, s 3 and Sch 2 item 691, by substituting " the definition of document in section 2B " for " section 25 " , effective 27 December 2011. For saving and transitional provisions see note under s 109CA(6) .

264A(24)
Nothing in this section affects the operation of section 353-10 in Schedule 1 to the Taxation Administration Act 1953 and nothing in that section affects the operation of this section.

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History

S 264A(24) amended by No 2 of 2015, s 3 and Sch 2 item 28, by substituting " section 353-10 in Schedule 1 to the Taxation Administration Act 1953 and nothing in that section " for " section 264 and nothing in section 264 " , effective 1 July 2015.

S 264A inserted by No 5 of 1991.