Income Tax Assessment Act 1936
PART VIII
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MISCELLANEOUS
SECTION 255
PERSON IN RECEIPT OR CONTROL OF MONEY FROM NON-RESIDENT
255(1)
With respect to every person having the receipt control or disposal of money belonging to a non-resident, who derives income, or profits or gains of a capital nature, from a source in Australia or who is a shareholder, debenture holder, or depositor in a company deriving income, or profits or gains of a capital nature, from a source in Australia, the following provisions shall, subject to this Act, apply:
(a) the person shall when required by the Commissioner pay the tax due and payable by the non-resident;
(b) the person is hereby authorized and required to retain from time to time out of any money which comes to the person on behalf of the non-resident so much as is sufficient to pay the tax which is or will become due by the non-resident;
(c) the person is hereby made personally liable for the tax payable by the person on behalf of the non-resident to the extent of any amount that the person has retained, or should have retained, under paragraph (b); but the person shall not be otherwise personally liable for the tax;
(d) the person is hereby indemnified for all payments which the person makes in pursuance of this Act or of any requirement of the Commissioner.
255(2)
Every person who is liable to pay money to a non-resident shall be deemed to be a person having the control of money belonging to the non-resident, and, subject to subsection (2A), all money due by the person to the non-resident shall be deemed to be money which comes to the person on behalf of the non-resident.
255(2A)
For the purposes of this section, money due by a person to a non-resident from which an amount must be withheld under section 12-325 in Schedule 1 to the Taxation Administration Act 1953 (about natural resource payments) or Subdivision 12-H in that Schedule (about distributions to foreign residents from withholding MITs) shall be deemed not to be money which comes to the person on behalf of the non-resident.
255(2B)
For the purposes of subsection (2A), if an entity must pay an amount to the Commissioner under Subdivision 12A-C in Schedule 1 to the Taxation Administration Act 1953 in respect of money due by the entity to a non-resident, treat that amount as being an amount that must be withheld from the money under Subdivision 12-H in that Schedule.
255(3)
Where the Commonwealth, a State or an authority of the Commonwealth or a State has the receipt, control or disposal of money belonging to a non-resident, this section (other than paragraph (1)(c)) applies to and in relation to the Commonwealth, the State or the authority, as the case may be, in the same manner as it applies to and in relation to any other person.
255(4)
This section applies to the following in the same way as it applies to tax:
(a) the general interest charge under:
(b) additional tax under former Part VII of this Act;
(c) shortfall interest charge.
255(5)
This section applies to an equity holder in the same way as it applies to a shareholder.
With respect to every person having the receipt control or disposal of money belonging to a non-resident, who derives income, or profits or gains of a capital nature, from a source in Australia or who is a shareholder, debenture holder, or depositor in a company deriving income, or profits or gains of a capital nature, from a source in Australia, the following provisions shall, subject to this Act, apply:
(a) the person shall when required by the Commissioner pay the tax due and payable by the non-resident;
(b) the person is hereby authorized and required to retain from time to time out of any money which comes to the person on behalf of the non-resident so much as is sufficient to pay the tax which is or will become due by the non-resident;
(c) the person is hereby made personally liable for the tax payable by the person on behalf of the non-resident to the extent of any amount that the person has retained, or should have retained, under paragraph (b); but the person shall not be otherwise personally liable for the tax;
(d) the person is hereby indemnified for all payments which the person makes in pursuance of this Act or of any requirement of the Commissioner.
View history note
Hide history note255(2)
Every person who is liable to pay money to a non-resident shall be deemed to be a person having the control of money belonging to the non-resident, and, subject to subsection (2A), all money due by the person to the non-resident shall be deemed to be money which comes to the person on behalf of the non-resident.
255(2A)
For the purposes of this section, money due by a person to a non-resident from which an amount must be withheld under section 12-325 in Schedule 1 to the Taxation Administration Act 1953 (about natural resource payments) or Subdivision 12-H in that Schedule (about distributions to foreign residents from withholding MITs) shall be deemed not to be money which comes to the person on behalf of the non-resident.
255(2B)
For the purposes of subsection (2A), if an entity must pay an amount to the Commissioner under Subdivision 12A-C in Schedule 1 to the Taxation Administration Act 1953 in respect of money due by the entity to a non-resident, treat that amount as being an amount that must be withheld from the money under Subdivision 12-H in that Schedule.
255(3)
Where the Commonwealth, a State or an authority of the Commonwealth or a State has the receipt, control or disposal of money belonging to a non-resident, this section (other than paragraph (1)(c)) applies to and in relation to the Commonwealth, the State or the authority, as the case may be, in the same manner as it applies to and in relation to any other person.
255(4)
This section applies to the following in the same way as it applies to tax:
(a) the general interest charge under:
(i) former section 163AA , former section 170AA , former subsection 204(3) , former subsection 221AZMAA(1) , former subsection 221AZP(1) , former subsection 221YD(3) or former section 221YDB of this Act;
(ii) section 5-15 of the Income Tax Assessment Act 1997 ;
(b) additional tax under former Part VII of this Act;
(c) shortfall interest charge.
Note 1:
The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953 and shortfall interest charge is worked out under Division 280 in Schedule 1 to that Act.
Note 2:
Subsection 8AAB(4) of that Act lists the provisions that apply the general interest charge.
255(5)
This section applies to an equity holder in the same way as it applies to a shareholder.
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