A New Tax System (Goods and Services Tax) Act 1999

Chapter 4 - The special rules  

Part 4-7 - Special rules mainly about returns, payments and refunds  

Note:

The special rules in this Part mainly modify the operation of Part 2-7 , but they may affect other Parts of Chapter 2 in minor ways.

Division 165 - Anti-avoidance  

Subdivision 165-B - Commissioner may negate effects of schemes for GST benefits  

165-45   Commissioner may reduce an entity ' s net amount or GST to compensate  

(1)    
This section operates if:

(a) the Commissioner has made a declaration under subsection 165-40(1) to negate the * GST benefit an entity gets or got from a * scheme ; and

(b) the Commissioner considers that another entity (the loser ) gets or got a * GST disadvantage from the scheme; and

(c) the Commissioner considers that it is fair and reasonable that the loser ' s GST disadvantage be negated or reduced.

(2)    
An entity gets a GST disadvantage from a * scheme if:

(a) an amount that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, larger than it would have been apart from the scheme or a part of the scheme; or

(b) an amount that is payable to the entity under this Act apart from this Division is, or could reasonably be expected to be, smaller than it would have been apart from the scheme or a part of the scheme; or

(c) all or part of an amount that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, payable earlier than it would have been apart from the scheme or a part of the scheme; or

(d) all or part of an amount that is payable to the entity under this Act apart from this Division is, or could reasonably expected to be, payable later than it would have been apart from the scheme or a part of the scheme.

(3)    
For the purposes of negating or reducing the loser ' s * GST disadvantage from the * scheme , the Commissioner may make a declaration (under this section) stating either or both of the following:

(a) the amount that is (and has been at all times) the loser ' s * net amount for a specified tax period that has ended;

(b) the amount that is (and has been at all times) the amount of GST on a specified * taxable importation that was made (or is stated in the declaration to have been made) by the loser.

(4)    
An amount stated in a declaration as the loser ' s * net amount or the amount of GST on a * taxable importation must not be less than the net amount or amount of GST (as appropriate) would have been apart from the * scheme , or part of the scheme, and the declaration.

(5)    
An entity may give the Commissioner a written request to make a declaration under this section relating to the entity. The Commissioner must decide whether or not to grant the request, and give the entity notice of the Commissioner ' s decision.