INCOME TAX ASSESSMENT ACT 1936 (ARCHIVE)

PART VI - COLLECTION AND RECOVERY OF TAX  

Division 1 - General  

SECTION 215   LIQUIDATORS, RECEIVERS AND CERTAIN AGENTS  

215(1)   [Notice to Commissioner]  

Every person (in this section called `` the trustee ''):

(a) who is liquidator of any company which is being wound up; or

(b) who is receiver for any debenture holders, and has taken possession of any assets of a company; or

(c) who is agent for a non-resident and has been required by his principal to wind up the business or realize the assets of his principal,

shall within 14 days after he has become liquidator, or after he has so taken possession of assets, or after he has been so required by his principal, give notice thereof to the Commissioner.

215(2)   [Amount to cover tax]  

The Commissioner shall as soon as practicable thereafter, notify to the trustee the amount which appears to the Commissioner to be sufficient to provide for any tax which then is or will thereafter become payable by the company or principal, as the case may be.

215(3)   [Liquidator or receiver for debenture holders]  

Subject to subsection (3B), if the trustee is a person of the kind referred to in paragraph (1)(a) or (b), the trustee:

(a) shall not, without the leave of the Commissioner, part with any of the assets of the company until the trustee has been so notified;

(b) shall set aside, out of the assets available for payment of ordinary debts of the company, assets to the value of an amount that bears to the value of the assets available for payment of ordinary debts of the company the same proportion as the amount notified by the Commissioner under subsection (2) bears to the sum of:

(i) the amount notified by the Commissioner under subsection (2);

(ii) any amount of prescribed tax that the Commissioner is required to notify to the trustee under an Act other than this Act and has so notified; and

(iii) the aggregate of the ordinary debts of the company (excluding any debt in respect of tax or prescribed tax); and

(c) is, to the extent of the value of the assets that the trustee is so required to set aside, liable as trustee to pay the tax.

215(3A)   [Agent for non-resident]  

If the trustee is a person of the kind referred to in paragraph (1)(c), the trustee:

(a) shall not, without the leave of the Commissioner, part with any of the assets of the principal until the trustee has been notified by the Commissioner under subsection (2);

(b) shall set aside, out of the assets available for the payment of the tax, assets to the value of the amount so notified, or the whole of the assets so available if they are of less than that value; and

(c) is, to the extent of the value of the assets that the trustee is so required to set aside, liable as trustee to pay the tax.

215(3B)   [Payment of debts, other than ordinary debts]  

Nothing in paragraph (3)(a) prevents the trustee parting with assets of the company for the purpose of paying debts of the company that are not ordinary debts of the company.

215(3C)   [Meaning of ordinary debt]  

For the purposes of subsections (3) and (3B), a debt of the company is an ordinary debt if:

(a) the debt is an unsecured debt; and

(b) the debt is not required, under a law of the Commonwealth or of a State or Territory, to be paid in priority to some or all of the other debts of the company.

215(3D)   [``prescribed tax'']  

In subsection (3), ``prescribed tax'' means any amount that the Commissioner is required to notify under a section of another Act that corresponds to this section.

215(4)   [Failure to comply]  

If the trustee refuses or fails to comply with any provision of this section or refuses or fails as trustee duly to pay the tax for which the trustee is liable under subsection (3) or (3A), the trustee:

(a) is, to the extent of the value of the assets that the trustee is required under subsection (3) or (3A), as the case may be, to set aside, personally liable to pay the tax; and

(b) is guilty of an offence punishable on conviction by a fine not exceeding $1,000.

215(5)   [Joint liability]  

Where more than one person is the trustee, the obligations and liabilities attaching to the trustee under this section shall attach to those persons jointly.

215(6)   [``tax'']  

In this section, unless the contrary intention appears:

"tax"
includes:

(a) the general interest charge under a provision of this Act; and

(b) additional tax under Part VII ; and

(c) an amount payable to the Commissioner under Division 1AAA , 1AA , 1A , 1B , 1C , 2 , 3 , 3A , 3B , 4 , 8 or 9 .

Note 1:

The general interest charge is worked out under Division 1 of Part IIA of the Taxation Administration Act 1953 .

Note 2:

Subsection 8AAB(4) of that Act lists the provisions that apply the charge.

215(7)   Application.  

This section (including the extended operation that this section has because of any provision of this or any other Act) does not apply in relation to:

(a) a person who, on or after 1 July 2000, becomes the liquidator of a company; or

(b) a person who, on or after 1 July 2000, takes possession of assets of a company as a receiver for any debenture holders of the company; or

(c) an agent who, on or after 1 July 2000, is instructed to wind up the principal's business or realise the principal's assets.

Example:

Subsection 163A(8) provides for an extended operation of this section in respect of a penalty under section 163A . However, despite that extended operation, this section does not apply in relation to a person mentioned in a paragraph of subsection (7).

Note:

For provisions about collection and recovery of tax and other amounts on or after 1 July 2000 (including provisions about liquidators, receivers and agents), see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953 .