Taxation Administration Act 1953

SCHEDULE 1 - COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES  

Note: See section 3AA .

Chapter 2 - Collection, recovery and administration of income tax  

PART 2-5 - PAY AS YOU GO (PAYG) WITHHOLDING  

Division 12A - Distributions by AMITs (including deemed payments)  

Subdivision 12A-C - Deemed payments by AMITs etc.  

Operative provisions

SECTION 12A-220   CUSTODIAN PAYMENT TO THE COMMISSIONER IN RESPECT OF DEEMED PAYMENTS TO OFFSHORE ENTITIES ETC.  

12A-220(1)    
A *custodian must pay an amount to the Commissioner if:

(a) the trustee of a trust that was an *AMIT for an income year and was a *withholding MIT in relation to the income year made a payment (the first deemed payment ) that:

(i) arose because of the operation of section 12A-205 ; and

(ii) was a *fund payment or an *AMIT DIR payment; and

(b) the custodian makes a payment (the subsequent deemed payment ) that arises because of the operation of section 12A-205 ; and

(c) the first deemed payment gave rise to the subsequent deemed payment, because of one or more operations of section 12A-205 ; and

(d) the subsequent deemed payment or part of it (the covered part ) was covered by a notice or information under:

(i) if the first deemed payment was a fund payment - section 12-395 ; or

(ii) if the first deemed payment was an AMIT DIR payment - section 12A-15 ; and

(e) the subsequent deemed payment is made to an entity (the recipient ) that is:

(i) if the first deemed payment was a fund payment - covered by section 12-410 ; or

(ii) if the first deemed payment was an AMIT DIR payment - not an Australian resident.

Note 1:

An entity may be covered by section 12-410 if the entity has an address outside Australia or payment is authorised to be made to a place outside Australia.

Note 2:

If the payment is made to a recipient not covered by subparagraph (e)(i) or (ii), the trustee is required to give a notice to the recipient or publish information on a website setting out certain details about the payment: see sections 12-395 and 12A-15 .

12A-220(2)    
The amount that the *custodian must pay is the amount that the custodian would, if the assumptions in subsection (3) were made, have had to withhold under:

(a) if the first deemed payment was a *fund payment - subsection 12-390(1) ; or

(b) if the first deemed payment was an *AMIT DIR payment - section 12-210 , 12-245 or 12-280 .

12A-220(3)    
The assumptions are that:

(a) the subsequent deemed payment had not arisen because of the operation of section 12A-205 ; and

(b) the subsequent deemed payment had instead been an actual payment; and

(c) if the first deemed payment was an *AMIT DIR payment:

(i) where the first deemed payment corresponded to the character of a dividend (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936 ) that is subject to a requirement to withhold under Subdivision 12-F - the *custodian had been a company, and it had paid the subsequent deemed payment as a dividend; or

(ii) where the first deemed payment corresponded to the character of interest (as defined in Division 11A of Part III of the Income Tax Assessment Act 1936 ) that is subject to a requirement to withhold under Subdivision 12-F - the subsequent deemed payment were the payment of interest; or

(iii) where the first deemed payment corresponded to the character of a *royalty that is subject to a requirement to withhold under Subdivision 12-F - the subsequent deemed payment were the payment of a royalty; and

(d) if the first deemed payment was an AMIT DIR payment - the condition in either or both of paragraphs 12-210(a) or (b), of paragraphs 12-245(a) or (b) or of paragraphs 12-280(a) or (b) (as the case requires) were satisfied.

12A-220(4)    
The *custodian may recover from the recipient as a debt an amount that the custodian has paid to the Commissioner under subsection (1).

12A-220(5)    
The *custodian is entitled to set off an amount that the custodian can recover from the recipient under subsection (4) against debts due by the custodian to the recipient.