Treasury Laws Amendment (2018 Measures No. 4) Act 2019 (8 of 2019)
Schedule 1 Direction powers
Part 1 Direction to pay superannuation guarantee charge
Taxation Administration Act 1953
1 At the end of Division 265 in Schedule 1
Add:
Subdivision 265-C - Direction to pay superannuation guarantee charge
Guide to Subdivision 265-C
265-85 What this Subdivision is about
If you are liable to pay an amount of superannuation guarantee charge or certain related liabilities, the Commissioner may direct you to pay the amount.
If the amount is not paid, you may commit an offence.
Table of sections
265-90 Direction to pay superannuation guarantee charge
265-95 Offence
265-100 Variation or revocation
265-105 Effect of liability being reduced or ceasing to exist
265-110 Taxation objection
265-115 Extension of period to comply if taxation objection made
265-90 Direction to pay superannuation guarantee charge
(1) The Commissioner may, by written notice, give you a direction requiring you to pay to the Commissioner:
(a) an amount of superannuation guarantee charge that is payable by you under the Superannuation Guarantee (Administration) Act 1992; or
(b) if an estimate under Division 268 in this Schedule of an amount of a liability of yours to pay superannuation guarantee charge for a quarter under section 16 of the Superannuation Guarantee (Administration) Act 1992 is in force as referred to in subsection 268-10(5) - the amount of the estimate.
Note: The direction does not create a separate liability to pay the amount. However, it may result in you committing an offence against subsection 265-95(1) if the amount is not paid.
(2) In deciding whether to give a direction under subsection (1), the Commissioner must have regard to the following matters:
(a) your history of compliance with obligations to pay superannuation guarantee charge, and obligations to pay estimates under Division 268 of superannuation guarantee charge;
(b) your history of compliance with other obligations under *taxation laws;
(c) whether the amount mentioned in paragraph (1)(a) or (b) is substantial, having regard to the size and nature of your business;
(d) any steps that you have taken to discharge the liability to pay the amount or dispute that the liability exists;
(e) any other matter that the Commissioner considers relevant.
(3) The direction must:
(a) set out the amount that you are required to pay to the Commissioner; and
(b) if the amount referred to in paragraph (1)(a) or (b) relates to a *quarter - set out the quarter; and
(c) specify the period before the end of which you must comply with the direction (which must end at least 21 days after the day the direction is given); and
(d) explain the consequences of failing to comply with the direction; and
(e) explain how you may have the Commissioner's decision to give the direction reviewed.
(4) To avoid doubt, a single notice may relate to 2 or more directions, but must comply with subsection (3) in relation to each of them.
(5) A notice given under subsection (1) is not a legislative instrument.
265-95 Offence
(1) You commit an offence if:
(a) you are given a direction under subsection 265-90(1); and
(b) the liability to pay the amount set out in the direction is not discharged (whether by you or by another entity) before the end of the period specified in the direction under paragraph 265-90(3)(c).
Penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply if both of the following apply:
(a) you took all reasonable steps to comply with the direction before the end of the period specified in the direction under paragraph 265-90(3)(c);
(b) you took all reasonable steps to ensure that the liability was discharged before the direction was given.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
265-100 Variation or revocation
(1) If the Commissioner has given you a direction under subsection 265-90(1), the Commissioner may, at any time before the end of the period specified in the direction under paragraph 265-90(3)(c), by written notice given to you:
(a) vary the direction to reduce the amount that you are required to pay to the Commissioner in order to comply with the direction; or
(b) vary the direction to extend the period specified in the notice of the direction under paragraph 265-90(3)(c); or
(c) revoke the direction.
(2) To avoid doubt, the variation or revocation of a direction under subsection (1) does not affect any liability that you may have to pay an amount referred to in the direction.
265-105 Effect of liability being reduced or ceasing to exist
(1) If:
(a) you have been given a direction under subsection 265-90(1) requiring you to pay an amount of a liability referred to in that subsection to the Commissioner; and
(b) the period specified in the direction under paragraph 265-90(3)(c) has not expired; and
(c) the liability is reduced (but not to nil);
the amount set out in the direction is taken to be reduced by the amount of the reduction referred to in paragraph (c).
(2) If:
(a) you have been given a direction under subsection 265-90(1) requiring you to pay an amount of a liability referred to in that subsection to the Commissioner; and
(b) the period specified in the direction under paragraph 265-90(3)(c) has not expired; and
(c) either:
(i) the liability is reduced to nil; or
(ii) the liability ceases to exist;
the direction is taken to be revoked.
(3) You may be convicted of an offence against subsection 265-95(1) in relation to a direction under subsection 265-90(1) requiring you to pay an amount of a liability referred to in subsection 265-90(1) to the Commissioner even if:
(a) the liability is reduced, or ceases to exist, after the end of the period specified in the direction under paragraph 265-90(3)(c); or
(b) the liability is discharged after the end of that period; or
(c) the liability is, after the end of that period, taken never to have existed, or taken not to have existed at a time on or before the end of that period.
265-110 Taxation objection
If you are dissatisfied with a decision of the Commissioner to give you a direction under subsection 265-90(1), you may, at any time before the end of the period specified in the direction under paragraph 265-90(3)(c), object against the decision in the manner set out in Part IVC.
265-115 Extension of period to comply if taxation objection made
(1) This section applies if:
(a) the Commissioner gives you a direction under subsection 265-90(1); and
(b) the period specified in the direction under paragraph 265-90(3)(c) has not expired; and
(c) you:
(i) make an objection in accordance with section 265-110 in relation to the Commissioner's decision to give you the direction; or
(ii) make an objection in the manner set out in Part IVC against a taxation decision that relates to your liability to pay an amount referred to in the direction.
(2) The period specified in the direction under paragraph 265-90(3)(c) is extended by one day for each day in the period that begins on the day the objection is made and ends at the end of the later of the following days:
(a) the day 21 days after the day the Commissioner notifies you of the Commissioner's decision under section 14ZY in relation to the objection;
(b) if, before the end of the day referred to in paragraph (a), you:
(i) apply to the *AAT in accordance with Division 4 of Part IVC for review of the Commissioner's decision; or
(ii) lodge an appeal against the Commissioner's decision with the Federal Court of Australia under Division 5 of that Part;
the day the review or the appeal is finally determined.
(3) To avoid doubt, the extension of the period under subsection (2) does not affect any liability that you may have to pay an amount referred to in the direction.