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-A - Application of this Division  

165-5   When does this Division operate?  
General rule

(1)    
This Division operates if:

(a) an entity (the avoider ) gets or got a * GST benefit from a * scheme ; and

(b) the GST benefit is not attributable to the making, by any entity, of a choice, election, application or agreement that is expressly provided for by the * GST law , the * wine tax law or the * luxury car tax law ; and

(c) taking account of the matters described in section 165-15 , it is reasonable to conclude that either:

(i) an entity that (whether alone or with others) entered into or carried out the scheme, or part of the scheme, did so with the sole or dominant purpose of that entity or another entity getting a * GST benefit from the scheme; or

(ii) the principal effect of the scheme, or of part of the scheme, is that the avoider gets the GST benefit from the scheme directly or indirectly; and

(d) the scheme:

(i) is a scheme that has been or is entered into on or after 2 December 1998; or

(ii) is a scheme that has been or is carried out or commenced on or after that day (other than a scheme that was entered into before that day).

Territorial application

(2)    
It does not matter whether the * scheme , or any part of the scheme, was entered into or carried out inside or outside Australia.

Creating circumstances or states of affairs

(3)    

A * GST benefit that the avoider gets or got from a * scheme is not taken, for the purposes of paragraph (1)(b), to be attributable to a choice, election, application or agreement of a kind referred to in that paragraph if:

(a) the scheme, or part of the scheme, was entered into or carried out for the sole or dominant purpose of creating a circumstance or state of affairs; and

(b) the existence of the circumstance or state of affairs is necessary to enable the choice, election, application or agreement to be made.