Tax and Superannuation Laws Amendment (2016 Measures No. 2) Act 2017 (15 of 2017)
Schedule 1 Commissioner's remedial power
Taxation Administration Act 1953
3 After Part 5-5 in Schedule 1
Insert:
Part 5-10 - Commissioner's remedial power
Division 370 - Commissioner's remedial power
Table of Subdivisions
Guide to Division 370
370-A Commissioner's remedial power
Guide to Division 370
370-1 What this Division is about
The Commissioner may determine a modification of the operation of a provision of a taxation law. The modification must not be inconsistent with the intended purpose or object of the provision. Furthermore:
(a) the Commissioner must consider the modification to be reasonable; and
(b) the Department, or the Finance Department, must advise that any impact of the modification on the Commonwealth budget would be negligible.
Example: After a provision of a taxation law is enacted, it is found that, because of developments in the practices of businesses or the Commissioner, the provision imposes disproportionate compliance costs on taxpayers. The Commissioner might, under this Division, be able to modify the operation of the provision to give timely relief.
An entity must not apply a modification if it would produce a less favourable result for the entity.
Note: The Commissioner must include in the Commissioner's annual report under section 3B of this Act information about the exercise of his or her powers under this Division.
Subdivision 370-A - Commissioner's remedial power
Table of sections
370-5 Commissioner's remedial power
370-10 Intended purpose or object
370-15 Repeal of determinations
370-20 Commencement of determinations
370-5 Commissioner's remedial power
(1) The Commissioner may, by legislative instrument, determine a modification of the operation of a provision of a *taxation law if:
(a) the modification is not inconsistent with the intended purpose or object of the provision; and
(b) the Commissioner considers the modification to be reasonable, having regard to:
(i) the intended purpose or object of the provision; and
(ii) whether the cost of complying with the provision is disproportionate to that intended purpose or object; and
(c) any of the following persons advises the Commissioner that any impact of the modification on the Commonwealth budget would be negligible:
(i) the Secretary of the Department, or an APS employee in the Department who is authorised by the Secretary for the purposes of this paragraph;
(ii) the *Finance Secretary, or an APS employee in the *Finance Department who is authorised by the Finance Secretary for the purposes of this paragraph.
(2) If the Commissioner determines a modification of the operation of a provision of a *taxation law under subsection (1), the provision operates with the modification.
Scope of determination
(3) A modification applies generally, unless the determination states that the modification only applies:
(a) to a specified class of entities; or
(b) in specified circumstances.
(4) An entity (the first entity ) must treat a modification as:
(a) not applying to the first entity; and
(b) not applying to any other entity;
if the modification would produce a less favourable result for the first entity.
(5) If the Commissioner determines a modification of the operation of a provision of a *taxation law, the modification (as applied by subsection (2)) does not affect a right or liability under an order (including any judgment, conviction or sentence) made by a court before the commencement of the determination.
370-10 Intended purpose or object
In ascertaining the intended purpose or object of a provision of a *taxation law for the purposes of paragraph 370-5(1)(a) or subparagraph 370-5(1)(b)(i):
(a) consideration must be given to any documents that may be considered under subsection 15AB(2) of the Acts Interpretation Act 1901 (or that subsection as applied by section 13 of the Legislation Act 2003) in relation to the provision; and
Example: An explanatory memorandum, second reading speech or report of a parliamentary committee.
(b) consideration may be given to any other material (including material not forming part of the provision) that would assist in ascertaining the intended purpose or object of the provision; and
(c) primacy is not required to be given to the text of the provision.
Note: Ascertaining an intended purpose or object for the purposes of paragraph 370-5(1)(a) or subparagraph 370-5(1)(b)(i) is not necessarily the same as ascertaining a purpose or object for the purposes of interpreting a provision of an Act.
370-15 Repeal of determinations
(1) The Commissioner may, by legislative instrument, repeal a determination made under section 370-5.
(2) A legislative instrument made under subsection (1) of this section may make an application, saving or transitional provision relating to the repeal.
(3) Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to the repeal, rescission or revocation of a determination made under section 370-5 in this Schedule (but does apply in relation to the amendment or variation of such a determination).
370-20 Commencement of determinations
A determination made under section 370-5, or a repeal made under section 370-15, must not commence before the first day it is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003.