SALES TAX PROCEDURE ACT 1934 (Repealed)

SECTION 1 (Repealed)   SHORT TITLE  

1    This Act may be cited as the Sales Tax Procedure Act 1934-1973.

SECTION 2   COMMENCEMENT  

2    This Act shall be deemed to have commenced on the eighteenth day of August, One thousand lime hundred and thirty.

SECTION 3   DEFINITIONS  

3    In this Act, unless the contrary intention appears -

``Agent'' includes every person who in Australia, for or on behalf of any person out of Australia (in this section called ``the principal''), holds or has the management or control of the business of his principal, and every person declared by the Commissioner to be an agent or the sole agent for any person for the purposes of this Act;

``Company'' includes all bodies or associations, corporate or unincorporate, but does not include partnerships;

``Deputy Commissioner'' means a Deputy Commissioner of Taxation;

``Goods'' includes commodities, but (except in the application of this Act to goods to which the Sales Tax Assessment Act (No. 9) 1930 or the Sales Tax Assessment Act (No. 10) 1985 applies) does not include goods which have, either through a process of retailing or otherwise, gone into use or consumption in Australia;

``monthly remitter'' has the same meaning as in the Sales Tax Assessment Act (No. 1) 1930;

``Person'' includes a company;

``quarterly remitter'' has the same meaning as in the Sales Tax Assessment Act (No. 1) 1930;

``Sales tax'' means any tax imposed under the name of sales tax by any Act;

``Sales Tax Assessment Act'' means an Act providing for the assessment of sales tax;

``sales tax quarter'' has the same meaning as in the Sales Tax Assessment Act (No. 1) 1930;

``the Commissioner'' means the Commissioner of Taxation;

[``the Regulations'' (Omitted by No 216 of 1973, effective 31 December 1973)

``the Second Commissioner'' means a Second Commissioner of Taxation;

``this Act'' includes Part IVC of the Taxation Administration Act 1953, in so far as that Part relates to a Sales Tax Assessment Act;

``Trustee'' , in addition to every person appointed or constituted trustee by act of parties, by order or declaration of a court, or by operation of law, includes -

(a)  an executor or administrator, guardian, committee, receiver, or liquidator; and

(b)  every person having or taking upon himself the administration or control of goods affected by any express or implied trust, or acting in any fiduciary capacity, or having the possession, control or management of the goods of a person under any legal or other disability.

SECTION 4   GENERAL ADMINISTRATION OF ACT  

4    The Commissioner has the general administration of this Act.

SECTION 4A   SECRECY  

4A(1)  [Meaning of ``officer'']  

In this section, ``officer'' means a person -

(a)  who is or has been appointed or employed by the Commonwealth; or

(b)  to whom powers or functions have been delegated by the Commissioner,

and who, by reason of the appointment or employment or in the course of the employment, or by reason of, or in the course of the exercise of powers or the performance of functions under, the delegation, as the case may be, may acquire or has acquired information with respect to the affairs of any other person disclosed or obtained under or for the purposes of this Act.

4A(2)  [Deemed Commonwealth employee]  

For the purposes of this section, a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.

4A(3)  [Secrecy offences]  

Subject to sub-section (5), a person who is or has been an officer shall not, except for the purposes of this Act or otherwise than in the performance of the person's duties as an officer, directly or indirectly -

(a)  make a record of any information with respect to the affairs of a second person; or

(b)  divulge or communicate to a second person any information with respect to the affairs of a third person,

being information disclosed or obtained under or for the purposes of this Act and acquired by the person by reason of the person's appointment or employment by the Commonwealth or in the course, of such employment, or by reason of the delegation to the person of powers or functions by the Commissioner, or in the course of the exercise of such powers or the performance of such functions, as the case may be.

Penalty: $10,000 or imprisonment for 2 years, or both.

4A(4)  [Disclosure to courts only pursuant to Act]  

Except where it is necessary to do so for the purpose of carrying into effect the provisions of this Act, a person who is or has been an officer shall not be required -

(a)  to produce in court any document made or given under or for the purposes of this Act; or

(b)  to divulge or communicate to a court a matter or thing with respect to information disclosed or obtained under or for the purposes of this Act,

being a document or information acquired by the person by reason of the person's appointment or employment by the Commonwealth or in the course of such employment, or by reason of the delegation to the person of powers or functions by the Commissioner, or in the course of the exercise of such powers or the performance of such functions, as the case may be.

4A(5)  [Permissible communications]  

Nothing in sub-section (3) shall be taken to prohibit the Commissioner, a Deputy Commissioner or a person authorised by the Commissioner or a Deputy Commissioner from communicating any information to a person performing, as an officer, duties arising under an Act administered by the Commissioner for the purpose of enabling the person to perform those duties or to the Comptroller-General of Customs.

4A(6)  [Deemed communication of information]  

For the purposes of sub-section (3), an officer shall be deemed to have communicated information to another person in contravention of that sub-section if the officer communicates that information to any Minister.

4A(7)  [Oath or declaration of secrecy]  

An officer shall, if and when required by the Commissioner or a Deputy Commissioner to do so, make an oath or declaration, in a manner and form specified by the Commissioner in writing, to maintain secrecy in conformity with the provisions of this section.

SECTION 5   RETURNS  

5(1)  [Return within 21 days of taxing event]  

Notwithstanding anything contained in any Sales Tax Assessment Act, a person who is a monthly remitter in relation to a month, who is registered or required to be registered under any such Act and who, during that month -

(a)  sells goods;

(b)  being a manufacturer of goods, treats those goods as stock for sale by him by retail; or

(c)  applies goods to his own use;

shall, within twenty-one days after the close of that month, furnish to the Commissioner, for the purposes of the ascertainment of the liability of that person to sales tax in respect of those goods, a return of those goods.

5(1A)  [Return within 21 days of quarter]  

In spite of anything contained in any Sales Tax Assessment Act, a person who is a quarterly remitter in relation to a sales tax quarter, who is registered or required to be registered under any such Act and who, during the quarter:

(a)  sells goods; or

(b)  being a manufacturer of goods, treats those goods as stock for sale by the person by retail; or

(c)  applies goods to his or her own use;

must, within 21 days after the end of the quarter, give to the Commissioner, for the purposes of the ascertainment ofthe liability of that person to sales tax in respect of those goods, either:

(d)  a return for the quarter; or

(e)  a separate. monthly return for each month in the quarter.

5(1B)  [Lease returns]  

In spite of anything contained in any Sales Tax Assessment Act, where:

(a)  a person is registered or required to be registered under any such Act; and

(b)  during a month, the person leases goods to a lessee;

the person must, within 21 days after the end of the month, give to the Commissioner, for the purposes of the ascertainment of the liability of the person to sales tax in respect of those goods, a return of those goods.

5(2)  [Form of return]  

Every return furnished under this section shall be in the prescribed form and shall set forth such information as is prescribed or, where no such form is prescribed, shall be in such form as is authorized by the Commissioner, and, in either case, shall set forth such information as is required for the due completion of that form.

5(3)  [Details required]  

Without restricting the generality of the foregoing provisions of this section, forms of returns may, for the purposes of those provisions, be prescribed or authorized which will permit, in cases provided for in the forms, a person required to furnish a return under this section in respect of goods sold by him or applied by him to his own use, to furnish a return without specifying which of the Sales Tax Assessment Acts applies to those goods.

5(4)  (Omitted by No 216 of 1973)

5(5)  [Return pursuant to section]  

Any return furnished under this section by any person in respect of any goods shall, subject to this Act, be in lieu of any return required to be furnished by him under any Sales Tax Assessment Act in respect of those goods.

SECTION 6   FURTHER RETURNS  

6    In addition to any return required to be furnished under the last preceding section the Commissioner may, by notice in writing, call upon any person to furnish to him, within the time specified in the notice -

(a)  such return, or such further or fuller return, as the Commissioner requires, whether in that person's own behalf or as an agent or trustee; or

(b)  a return which shall be a return under, subject to the provisions of, and in the form prescribed under, any Sales Tax Assessment Act.

SECTION 7   [REPEALED]  (Repealed by No 123 of 1984)

SECTION 8   [REPEALED]  (Repealed by No 123 of 1984)

SECTION 9   [REPEALED]  (Repealed by No 123 of 1984)

SECTION 10   RECOVERY OF TAX  

10(1)  [Suing for unpaid tax]  

Any sales tax unpaid maybe sued for and recovered in any court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his or her official name.

10(2)  [Proof of applicable Assessment Act not required]  

Notwithstanding anything contained in any Sales Tax Assessment Act, in any proceedings for the recovery of sales tax it is not necessary to prove under which of the Sales Tax Assessment Acts the sales tax became payable.

10(3)  [Evidence]  

In any proceedings for the recovery of sales tax -

(a)  the mere production of -

(i) a notice of an assessment or a notice of the making of a refund decision; or

(ii) a document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner and purporting to be a copy of a notice of an assessment or of the making of a refund decision,

is conclusive evidence -

(iii) of the due making of the assessment or the decision, as the case may be:

(iv) in the case of a notice of an assessment - that the amounts and all of the particulars of the assessment are correct; and

(v) in the case of a notice of a refund decision - that the decision is correct; and

(b)  the mere production of a certificate in writing signed by the Commissioner, a Second Commissioner or a Deputy Commissioner certifying that a sum specified in the certificate was, at the date of the certificate, due and payable by a person in respect of an amount of sales tax is prima facie evidence of the matters stated in the certificate.

10(4)  [Proof of issue or service of document]  

The mere production of a document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner and purporting to be a copy of a document issued or served by the Commissioner, a Second Commissioner or a Deputy Commissioner is prima facie evidence that the second-mentioned documents was so issued or served.

10(5)  [Definitions]  

In this section -

assessment has the same meaning -

(a)  in relation to the Sales Tax Assessment Act (No. 1) 1930 - as is specified in section 3 of that Act; and

(b)  in relation to any other Sales Tax Assessment Act - as is specified in that section as it is applied for the purposes of that other Sales Tax Assessment Act;

``refund decision'' means a decision made on or after 1 July 1986 in respect of an application -

(a)  for action to be taken under section 26 of the Sales Tax Assessment Act (No. 1) 1930, section 11 or 11B of the Sales Tax Assessment Act (No. 5) 1930, section 15 of the Sales Tax Assessment Act (No. 11) 1985 or section 11 of another Sales Tax Assessment Act; or

(b)  under the Sales Tax Regulations for the refund or payment of an amount of money to prevent double taxation or for the purpose of effectuating an exemption from sales tax;

``sales tax'' includes -

(a)  further tax; and

(b)  additional tax,

under a Sales Tax Assessment Act.

SECTION 11   [REPEALED]  (Repealed by No 123 of 1984)

SECTION 12   [REPEALED]  (Repealed by No 123 of 1984)

SECTION 12A   REFUNDS  

12A(1)  [Preconditions for recovery]  

Notwithstanding the provisions of any Sales Tax Assessment Act (other than provisions relating to objections and appeals) or of any regulations made under any such Act, where any person has paid any amount either as sales tax or for sales tax in respect of any goods, by reason of any transaction, act or operation effected or done in relation to those goods, that person shall not be entitled to any refund of that amount -

(a)  if the amount was paid prior to the thirteenth day of December, One thousand nine hundred and thirty-four - upon any ground to the effect, expressly or impliedly, that those goods had gone into use or consumption in Australia prior to that trunsaction, act or operation; or

(b)  if the amount was paid either before or after that date - upon a prescribed ground as defined in this section, unless that person finally succeeds in an action, upon that ground, brought, in pursuance of this section, for the recovery of that amount:

12A(2)  [Payment under protest]  

Where any amount has been or is paid as specified in the last preceding sub-section by any person, and that person has paid or pays the amount under protest, as provided in the next succeeding sub-section, upon a prescribed ground as defined in this section, that person may, within six months after the date on which the amount was paid, bring an action upon that ground against the Commonwealth, in any Commonwealth or State Court of competent jurisdiction, for the recovery of the amount so paid.

12A(3)  [Lodgment of endorsement]  

A person shall not be deemed to have paid any amount under protest in pursuance of this section unless, at the time of the payment, that person has lodged or lodges, at the office at which the payment is made, a statement in writing bearing the endorsement ``Paid under protest'', and stating the prescribed ground upon which the protest is made.

12A(4)  [Definitions]  

For the purposes of this section -

``goods'' includes -

(a)  commodities; and

(b)  goods or commodities which have gone into use or consumption in Australia;

``prescribed ground'' means -

(a)  in relation to any amount paid by a person either as sales tax or for sales tax payable under the Sales Tax Assessment Act (No. 1) 1930 or that Act as amended from time to time - any ground to the effect, expressly or impliedly, that the goods in respect of which the amount was paid were not, within the meaning of that Act, or of that Act as amended from time to time, goods manufactured in Australia by that person; and

(b)  in relation to any amount paid by a person either as sales tax or for sales tax payable under any other Act relating to the imposition, assessment and collection of tax upon the sale value of goods manufactured in Australia - any ground to the effect, expressly or impliedly, that the goods in respect of which the amount was paid were not, within the meaning of that Act, goods manufactured in Australia;

``sale'' includes a lease of goods under a hire purchase agreement.

SECTION 12B   REMISSION OF TAX UNPAID AFTER THREE YEARS  

12B(1)  [Commissioner may remit]  

Where tax (not being tax paid prior to the commencement of this section) in respect of any transaction, act or operation, effected or done in relation to any goods has not been paid at the expiration of a period of three years from -

(a)  where the tax is payable in respect of the importation of those goods - the date of the entry of those goods for home consumption; or

(b)  in any other case - the close of the month in which the transaction, act or operation was effected or done,

the Commissioner may remit that tax unless he -

(c)  has required payment of the tax prior to the expiration of that period; or

(d)  is satisfied that the payment of the tax was avoided by fraud or evasion.

12B(2)  [Appropriation of part payments]  

For the purposes of this section, the payment (whether before or after the commencement of this section) of any amount in part satisfaction of tax payable in respect of several transactions, acts or operations shall, unless otherwise appropriated by, or with the concurrence of, the Commissioner, be appropriated in satisfaction of the tax payable in respect of transactions, acts or operations in the order of time in which those transactions, acts or operations, were effected or done.

12B(3)  [Service of notice]  

For the purposes of this section the Commissioner shall be deemed to have required payment of tax if he, or an officer acting on his behalf, has served upon any person a notice in writing specifying that an amount of tax is payable by that person in respect of -

(a)  the transaction, act or operation specified in sub-section (1) of this section; or

(b)  any transactions, acts or operations which include the transaction, act or operation specified in that sub-section.

12B(4)  [Definition of ``tax'']  

For the purposes of this section ``tax'' includes any further tax payable under any Sales Tax Assessment Act and any additional tax for which the person is liable under this Act or under any Sales Tax Assessment Act.

SECTION 12C   REFUNDS OF TAX  

12C(1)  [Claim in writing and finding within 3 years]  

Where the Commissioner finds that any person has made an overpayment of tax, the Commissioner shall not make any refund to that person in respect of that overpayment unless he so finds -

(a)  within a period of three years; or

(b)  on consideration of a claim in writing for that refund lodged with the Commissioner within a period of three years,

from the date upon which the overpayment was made.

12C(2)  [Operation of other provisions]  

Nothing in this section shall affect the operation of -

(a)  any provision of any Sales Tax Assessment Act relating to objections and appeals;

(b)  section twelve A of this Act;

(c)  sub-sections (2), (4) and (5) of section twenty-six of the Sales Tax Assessment Act (No. 1) 1930-1936;

(ca)  sub-section 26(3A) of the Sales Tax Assessment Act (No. 1) 1930, or that sub-section as applied by any other Sales Assessment Act;

(d)  sub-sections (2) and (3) of section eleven of the Sales Tax Assessment Act (No. 2) 1930-1936;

(e)  sub-sections (2) and (3) of section eleven of the Sales Tax Assessment Act (No. 3) 1930-1936;

(f)  sub-sections (2), (2B) and (3) of section eleven and section eleven A of the Sales Tax Assessment Act (No. 5) 1930-1936;

(g)  sub-sections (2) and (3) of section eleven of the Sales Tax Assessment Act (No. 6) 1930-1936;

(h)  sub-sections (2) and (3) of section eleven of the Sales Tax Assessment Act (No. 7) 1930-1936;

(ha)  sub-section 11(1B) of the Sales Tax Assessment Act (No. 9) 1930;

(i)  sub-section (1) of section eleven of the Sales Tax Assessment Act (No. 9) 1930-1936 insofar as it empowers the Commissioner to make any refund consequential upon any reduction in the sale value of goods pursuant to sub-section (1A) of section four of that Act;

(ia)  sub-section 11(2) of the Sales Tax Assessment Act (No. 10) 1985 to the extent that a refund shall be made under that sub-section in pursuance of an amount being refunded or refundable under any provision referred to in paragraph (c), (d), (e), (f), (g), (h), (ha) or (i);

(ib)  sub-section 11(3) of the Sales Tax Assessment Act (No. 10) 1985; or

(j)  the amendments effected to the Sales Tax Exemptions Act 1935 by the Sales Tax Exemptions Act 1936 insofar as those amendments apply to transactions, acts or operations performed or entered into prior to the date of the commencement of the Sales Tax Exemptions Act 1935.

12C(3)  [Notice of refund decision]  

Where a person makes a claim in writing for a refund or other payment under a Sales Tax Assessment Act and the Commissioner is satisfied that -

(a)  part only of the amount claimed is refundable or payable; or

(b)  no part of the amount claimed is refundable or payable,

the Commissioner shall cause notice in writing of the decision to be served on the person.

SECTION 12D   REMISSION OF TAX WHERE RULING OF COMMISSIONER ALTERED  

12D(1)  [Remission entitlement]  

Where the Commissioner alters a ruling previously given, then notwithstanding anything contained in any Sales Tax Assessment Act, if the Commissioner is satisfied -

(a)  that any person has acted in accordance with that prior ruling and that, by reason of so acting, that person has, in respect of any transaction, act or operation effected or done by that person between the date upon which the prior ruling was given and the date upon which the Commissioner alters the prior ruling -

(i) not paid sales tax; or

(ii) paid a less amount of sales tax than he would have paid if the ruling as altered had been given at the time of the prior ruling and he had acted in accordance with the ruling as altered; and

(b)  that that person did not contribute to the giving or to the continuing in force of the prior ruling by any mis-statement or by any suppression of material fact,

the Commissioner may remit, the amount of tax so unpaid.

12D(2)  [When ruling deemed altered]  

The Commission shall be deemed to alter a ruling where the Commissioner, a Second Commissioner or a Deputy Commissioner gives any further ruling which expressly or by necessary implication withdraws, amends, modifies or qualifies so much, if any, of any prior ruling as has not been withdrawn, amended, modified or qualified by any intervening ruling:

12D(3)  [When ruling deemed given]  

For the purposes of this section a ruling shall be deemed to have been given -

(a)  where the ruling is published in a newspaper - on the day next following the date on which the ruling is first published in any newspaper; or

(b)  where the ruling is published in any book or other publication printed by the Government Printer - on the day next following the date on which that book or publication is first available for sale in the Australian Capital Territory; or

(c)  where the ruling is given by a letter or other communication addressed to the taxpayer at his last known place of address in Australia - on the date on which the letter or communication would, in the ordinary course of the post, be delivered at that address,

or on such later date as may be specified in the ruling.

12D(4)  [Definition of ``ruling'']  

In this section ``ruling'' means any written ruling, decision or advice either given to a particular person or published for general information by the Commissioner, Second Commissioner or a Deputy Commissioner with respect to any law relating to the imposition, assessment or collection of Sales Tax and whether in relation to a particular case or in relation to any matter or class of matter.

SECTION 12E   ACCESS TO PREMISES ETC.  

12E(1)  [Rights of entry and removal]  

For the purposes of a Sales Tax Assessment Act, an officer authorized in writing by the Commissioner to exercise powers under this section -

(a)  may, at all reasonable times, enter and remain on any land or premises;

(b)  is entitled to full, and free access at all reasonable times to any documents or goods;

(c)  may inspect, examine, make copies of, or take extracts from, any documents; and

(d)  may inspect, examine, count, measure, weigh, gauge, test or analyse any goods and, to that end, remove or take samples of any goods.

12E(2)  [Proof of authority to be produced]  

An officer is not entitled to enter or remain on any land or premises in pursuance of this section if, on being requested by the occupier of the land or premises for proof of authority, the officer does not produce an authority in writing signed by the Commissioner stating that the officer is authorized to exercise powers under this section.

12E(3)  [Occupier to provide reasonable assistance]  

The occupier of land or premises entered or proposed to be entered by an officer under sub-section (1) shall provide the officer with all reasonable facilities and assistance for the effective exercise of powers under this section.

Penalty: $1,000.

12E(4)  [Definition of goods]  

In this section, ``goods'' includes -

(a)  commodities; and

(b)  goods and commodities which have gone into use and consumption in Australia.

SECTION 12F   EFFECT OF AMENDMENTS OF SALES TAX ACTS  

12F(1)  [Definitions]  

In this section:

``amending provision'' means a provision of an Act that amends:

(a)  this Act; or

(b)  an Act imposing, or relating to the imposition, assessment and collection of, a tax on the sale value of goods; or

(c)  the Sales Tax (Exemptions and Classifications) Act 1935;

``postponed day'' , in relation to an amending provision, means the 28th day after the day on which the Act containing that provision receives the Royal Assent.

12F(2)  [Offences and additional tax]  

A reference in this section to a person being liable to a sales tax penalty is a reference to:

(a)  the person being guilty of an offence; or

(b)  the person being liable to additional tax by way of penalty.

12F(2)  [Acts and omissions]  

An amending provision does not have the effect of making a person liable to a sales tax penalty in respect of an act or omission before the postponed day.

12F(4)  [Commencement of requirements]  

Where, apart from this section, an amending provision would have had the effect of making a person liable to a sales tax penalty because the person contravened a requirement to do something:

(a)  within a specified period ending before the postponed day; or

(b)  before a specified time occurring before the postponed day;

that requirement has effect by reference to a period ending at the beginning of the postponed day, or by reference to the beginning of the postponed day, as the case may be.

SECTION 13   REGULATIONS  

13    The Govenor-General may make Regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Act, and, in particular -

(a)  authorizing the Commissioner to obtain information and evidence;

(b)  relating to the service of process in any proceedings for the recovery of tax;

(c)  for defining the liabilities of the executors and administrators of deceased persons in relation to sales tax payable by those persons during their lifetime;

(d)  (Omitted by No 123 of 1984, s 289 and Sch 12, effective 14 December 1984)

(e)  relating to the liability under this Act of companies and of liquidators of companies and for defining the liability of any persons who, for the purposes of any Sales Tax Assessment Act, are the public officers of companies;

(f)  for defining the liabilities of agents and trustees under this Act;

(g)  for defining, in relation to the liabilities under this Act of persons who are resident out of Australia, the liabilities of persons who have the receipt, control or disposal of money belonging to persons so resident;

(h)  for prescribing matters relating to the giving of certificates under this Act and the acceptance of any such certificate as proof in legal proceedings;

(i)  for prescribing penalties not exceeding a fine of $500 for offences against the regulations; and

(j)  for requiring persons who execute or perform, or who have executed or performed, any power or duty under this Act to observe secrecy.

SECTION 14   SAVING  

14(1)  (Omitted by No 216 of 1973)

14(2)  [Assessment Acts]  

Nothing in this Act shall, except where otherwise expressly provided, take away the remedies, or alter the liabilities, provided for in any Sales Tax Assessment Act.